Forensic procedures

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Police have power to request a suspect to undergo a forensic procedure if:

  • there are reasonable grounds to believe that
  • the result of the procedure
  • will tend to confirm or disprove
  • the suspect’s involvement
  • in an indictable offence.

You should refuse to undergo any forensic procedure unless the police have a court order compelling you to do so.

There are specific powers for taking forensic material from suspects. The following information focuses on the requirements of the Victorian law, which is found in sections 464R to 464ZK of the Crimes Act 1958 (Vic).

The Commonwealth law is found in sections 23WA to 23XWA of the Crimes Act 1914 (Cth), and is dealt with briefly below.

Forensic procedures include:

  • Intimate samples: pubic hair, anal swabs, external genital swabs, breast swabs, saliva, mouth scrapes or dental impressions
  • Non-intimate samples: hair, fingernail or toenail scrapes, external swabs or washings
  • Other samples, or any other procedures or physical examinations of the body (but, in Victorian, does not include the taking of fingerprints)

The powers of police to seek to have a suspect undergo a forensic procedure depend in part on the suspect’s age.

 

Adults

A forensic procedure can be conducted if one of the following occurs:

  • The suspect gives their informed consent to the conduct of the procedure;
    • Before a suspect can be said to have given informed consent, police will have to provide certain information.
  • a Magistrates’ Court orders that the procedure be conducted; or
  • a senior police officer authorises the taking of a non-intimate sample of a person 18 years of age and over.

You should refuse any request for forensic samples and ask to speak to your lawyer.

 

Children and young people

A forensic procedure can only be conducted on a young person aged from 10–17 years (inclusive) if it is ordered by a Children’s Court. 

The conduct of forensic procedures cannot be ordered in relation to children under 10 years of age.

A senior police officer can authorise the taking of a DNA profile sample from person aged 15 years and under 18 years.

A court order can only be sought where:

  • the young person is suspected of having committed, or has been charged with, one of the indictable offences specified in section 464U(3) of the Crimes Act (Vic); and
  • the Children’s Court is satisfied that  the making of the order is justified
    • the court will consider the seriousness of the offence, the degree to which the child is said to have been involved, and the child’s age.

 

Commonwealth offences

The conduct of forensic procedures under Commonwealth law ( Crimes Act 1914 (Cth)) follows the general procedure set out under the Victorian legislation. That is, a police officer can obtain a forensic sample with the informed consent of the suspect.

If the suspect refuses, an authorised police officer may seek a court order for the conduct of the procedure.

There are some limited circumstances where a police officer of the rank of sergeant or higher may order a non-intimate forensic procedure to be carried out on a suspect.

The Commonwealth Act imposes time limits for carrying out forensic procedures and also imposes special requirements in relation to Aboriginal and Torres Strait Islander people.

 

Information on this page has been adapted from the Law Handbook section on Evidence.

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