When Can Australian Police Take Forensic Samples?

14/06/2019

If you have been lawfully arrested, police have the power to take various forms of identification – including your photograph, fingerprints and handprints. If you are suspected of having committed an indictable offence, the police may wish to take this a step further to conduct a ‘forensic procedure’ to obtain a body sample for DNA analysis.

In New South Wales, these procedures have been regulated by the Crimes (Forensic Procedures) Act 2000 (CFPA), which establishes a legal framework for the taking, destruction and storage of forensic samples.

What is a forensic procedure?

Section 5 CFPA splits forensic procedures into intimate and non-intimate forensic procedures, as these categories have slightly different legal requirements.

Under Section 3, an intimate forensic procedure can include an external examination of a person’s private parts, a buccal swab (from inside your mouth), taking a sample of blood, pubic hair, taking a dental impression or taking a sample of any matter by various means, from the person’s private parts.

A non-intimate forensic procedure is less invasive, involving things such as a finger or foot print, taking photographs or sample of the person (other than their private parts), taking a sample of the person’s hair or carrying out a self-administered buccal swab.

A forensic procedure does not include any intrusion into a person’s body cavities (except the mouth) or the taking of a sample for the sole purpose of establishing the identity of the person from whom the sample is taken. These procedures are dealt with in separate enabling legislation.

Consenting to a forensic procedure

Under Section 7 CFPA, a forensic procedure may be carried out on a suspect with their informed consent.

Informed consent will only be inferred when the relevant police officer provides necessary information under Section 13. This includes the following matters:

  1. That the giving of consent, is being or will be recorded by electronic means, or in writing, and that the suspect has a right to be given an opportunity to hear or view the recording,
  2. the purpose for which the forensic procedure is required,
  3. the offence in relation to which the police officer wants the forensic procedure carried out,
  4. the way in which the forensic procedure is to be carried out,
  5. that the forensic procedure may produce evidence against the suspect that might be used in a court of law,
  6. that the forensic procedure will be carried out by an appropriately qualified police officer or person,
  7. that the suspect is entitled to have a medical practitioner or dentist present for an intimate forensic procedure,
  8. if the suspect identifies as an Aboriginal person or a Torres Strait Islander—that the suspect’s interview friend may be present while the forensic procedure is carried out,
  9. that the suspect may refuse to consent to the carrying out of the forensic procedure,
  10. the consequences of not consenting, where the Police may apply to a Magistrate to compel the carrying out of a forensic procedure,
  11. that information obtained may be placed on the DNA database system.

You do not have to consent. You should consider the fact that while you may be cleared in relation to this offence, your DNA profile will be stored on a DNA database system. Until this sample is destroyed, it could implicate you (rightly or wrongly) in relation to other outstanding offences.

It is also important to note that a “child”, being a person above the age of 10 and under 18 cannot consent to a forensic procedure. Also, an “incapable person”, being an adult who is unable to understand the general nature and effect of a forensic procedure or indicating their consent, cannot consent.

Applying for a Forensic Procedure

An authorised applicant can apply for a person to be compelled to undergo a forensic procedure, if consent is not given or not capable of being given.

Under Section 3 CFPA, an authorised applicant can be the police officer in charge of a police station, a custody manager, any police officer involved in the investigation of an offence or the Director of Public Prosecutions.

Under section 24, a Magistrate may order the carrying out of a forensic procedure if satisfied on the balance of probabilities that:

  • There are reasonable grounds to believe that the suspect has committed an offence, or a prescribed offence for an intimate forensic procedure;
  • There are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove the above suspicion; and
  • That the carrying out of such a procedure is justified in all the circumstances.

In considering whether the forensic procedure is justified, the Magistrate will consider the gravity of the alleged offence against the effect on the suspect and the reasons that the person did not consent, while considering whether there are any other less-intrusive means to gather evidence.

Procedure for taking forensic samples

Section 44 outlines general rules for carrying out forensic procedures such as, for example, the suspect must be afforded reasonable privacy and must not involve more visual inspection, removal of clothing or onlookers than is required.

There must be no questioning of the suspect whilst the forensic procedure is being carried out, under Section 45.

Reasonable force may be used to enable a forensic procedure to be carried out and to prevent the loss, destruction or contamination of any sample [section 47]. However, it is noted under Section 48 that the Act does not authorise the carrying out of a forensic procedure in a cruel, inhuman or degrading way.

Before you undergo a forensic procedure, it is important to speak to experienced criminal lawyers who can speak to police about the alleged crime and purpose of the procedure and advise you what to do.