Forensic Procedures

Contributed by Richard Davies and current to 16 December 2021.

Introduction

There are strict rules in place to govern the obtaining and use of what is called forensic evidence from suspects, that is, those suspected by police of having committed a serious offence.

The rules are laid down in the ACT in the Crimes (Forensic Procedures) Act 2000and in the Commonwealth Crimes Act 1914 in relation to Federal offences. The provisions in each case are similar but not identical.

Unless otherwise indicated all references in this chapter to sections are references to sections in the ACT in the Crimes (Forensic Procedures) Act 2000.

Special rules apply to children (persons under the age of 18 years) and incapable persons and to Aboriginal and Torres Strait Islander persons.

A failure by police to comply with the provisions of the relevant legislation can result in a court exercising its discretion to rule the evidence illegally or improperly obtained and therefore inadmissible in the proceedings.

Important concepts

Suspect

A forensic procedure may be carried out by police on anyone who is suspected of having committed an offence.

The term suspect is defined (section 8) to be

(a) a person suspected by a police officer, on reasonable grounds, to have committed an offence; and
(b) a person charged with an offence or summonsed to appear before a court for an offence.

Serious offence

A serious offence is defined (section 9) to be

(a) an offence against a territory law punishable by imprisonment for longer than 12 months; or
(b) an offence against the law of another state or territory punishable by imprisonment for life or by a maximum penalty of 2 or more years of imprisonment.

Accordingly, there will be many offence where investigating police will not be able to use the legislation to gather forensic evidence without the consent of the suspect.

Incapable person

An incapable person is an adult who is incapable or temporarily incapable (e.g. a person who is sedated or affected by drugs or alcohol) of

(a) understanding the general nature and effect of, and purposes of carrying out, a forensic procedure; or
(b) indicating whether or not he or she consents or does not consent to a forensic procedure being carried out (section 15).

Informed consent

However if a suspect (who is not a child or an incapable person) gives informed consent to the procedure being undertaken there is no obligation on police to comply with the requirements of the legislation (sections 19 and 20).

Consent is informed consent (section 21) if the suspect consents after a police officer requests the suspect to consent and informs the suspect of the following matters,

(a) that the giving of any information and the giving of consent (if any) by the suspect will be recorded by electronic means or in writing, and that the suspect has a right to a copy of that record;

(b) the purpose for which the forensic procedure is required;

(c) the fact that the person is a suspect in the offence in relation to which the police officer wants the forensic procedure carried out;

(d) the way in which the forensic procedure is to be carried out;

(e) that the forensic procedure may produce evidence against the suspect that might be used in a court of law;

(f) that the forensic procedure will be carried out by an appropriately qualified person;

(g) if relevant, that the suspect may request that a doctor of the suspect's choice be present while an intimate forensic procedure (other than the taking of a dental impression in which case the suspect may request the presence of a dentist of the suspect’s choice) is carried out or a sample of saliva or sample by buccal swab is taken.

(h) that the suspect may refuse to consent to the carrying out of the forensic procedure;

(i) the consequences of not consenting, which are as follows,

(j) that evidence of a person’s refusal or failure to consent or withdrawal of consent to a forensic procedure is admissible in proceedings but only to rebut any allegation that a police officer acted contrary to law in carrying out the investigation (section 87);

(k) that information obtained from analysis of forensic material obtained may be placed on the ACT DNA database and the rules that will apply to its disclosure and use under this Act, including that the information may be compared with information from the DNA databases of other participating jurisdictions;

Forensic procedures

The legislation allows for a wide range of forensic procedures to be undertaken. They are divided into intimate and non-intimate forensic procedures.

Table 18 appears in section 18 of the Crimes (Forensic procedures) Act 2000 and shows the circumstances in which a forensic procedure may be carried out on a suspect, and shows the provisions that authorise the carrying out of the procedure.

Table 18 Authorisations for forensic procedures

column 1 item	column 2 sections	column 3 suspect	column 4 intimate forensic procedure	column 5 non-intimate forensic procedure
1	19	adult not in custody	with informed consent under part 2.3 with informed consent under part 2.3
	31		by forensic order of a magistrate under part 2.5 by forensic order of a magistrate under part 2.5
2	19	adult in custody	with informed consent under part 2.3 with informed consent under part 2.3
	27			by forensic order of a police officer under part 2.4
	31		by forensic order of a magistrate under part 2.5	by forensic order of a magistrate under part 2.5
3	31	incapable person (whether or not in custody)	by forensic order of a magistrate under part 2.5	by forensic order of a magistrate under part 2.5
4	31	child (whether or not in custody)	by forensic order of a magistrate under part 2.5	by forensic order of a magistrate under part 2.5

Non-intimate forensic procedures

Non-intimate forensic procedures are the most commonly used. They are defined (section 7) to be any of the following,

(a) an examination of a part of the body (other than the genital or anal area, buttocks, or, for a female or a transgender or intersex person who identifies as a female, the breasts) that requires touching of the body or removal of clothing;
(b) the taking of a sample of hair (other than pubic hair);
(c) the taking of a sample from a nail or under a nail;
(d) the taking of a sample of saliva or a sample by buccal swab;
(e) the taking of a sample by swab or washing from any external part of the body (other than the genital or anal area, the buttocks, or, for of a female or a transgender or intersex person who identifies as a female, the breasts);
(f) the taking of a sample by vacuum suction, by scraping or by lifting by tape from any external part of the body (other than the genital or anal area, the buttocks, or, for a female or a transgender or intersex person who identifies as a female, the breasts);
(g) the taking of a handprint, fingerprint, footprint or toeprint;
(h) the taking of a photograph or video recording of, or an impression or cast of a wound from, a part of the body (other than the genital or anal area, the buttocks, or, for a female or a transgender or intersex person who identifies as a female, the breasts).

A non-intimate forensic procedure may be carried out by order of a police officer if:

• the person is a suspect and,
• the person has not consented to the carrying out of the forensic procedure and,
• the police officer is satisfied on the balance of probabilities,
  1. that the offence for which the person is a suspect is a serious offence and there are reasonable grounds to believe that the suspect
     (a) committed that offence; or
     (b) another serious offence arising out of the same circumstances as that offence; or
     (c) another serious offence for which the evidence likely to be obtained because of carrying out the procedure on the suspect is likely to have probative value; and
  2. there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed the relevant offence; and
  3. the carrying out of the forensic procedure without consent is justified in all the circumstances.

In deciding whether the carrying out of the forensic procedure without consent is justified in all the circumstances, the police officer must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.

In balancing those interests, the police officer must have regard to the following matters:

(a) the seriousness of the circumstances surrounding the commission of the offence and the gravity of the offence;
(b) the degree of the suspect's alleged participation in the commission of the offence;
(c) the age, physical and mental health and cultural background of the suspect, to the extent that they are known to the police officer;
(d) whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the offence;
(e) if the suspect gives any reasons for refusing to consent—the reasons;
(f) any other matter considered relevant to balancing those interests.

Intimate forensic procedures

Intimate forensic procedures are defined (section 6) to be any of the following,

(a) an external examination of the genital or anal area, the buttocks, or, for a female or a transgender or intersex person who identifies as a female, the breasts;
(b) the taking of a sample of blood;
(c) the taking of a sample of pubic hair;
(d) the taking of a sample by swab or washing from the external genital or anal area, the buttocks, or, for a female or a transgender or intersex person who identifies as a female, the breasts;
(e) the taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks, or, for a female or a transgender or intersex person who identifies as a female, the breasts;
(f) the taking of a dental impression;
(g) the taking of a photograph or video recording of, or an impression or cast of a wound from, the genital or anal area, the buttocks, or, for a female or a transgender or intersex person who identifies as a female, the breasts.

Court orders

A magistrate may make final orders and interim orders for the carrying out of forensic procedures.

Final orders

As mentioned above at Informed Consent above, if a suspect who is not in custody does not consent to the carrying out of a forensic procedure or police wish a suspect who is in custody to undergo an intimate forensic procedure and the suspect does not consent then it is necessary for police to apply in writing to a magistrate for an order authorising a person to carry out a forensic procedure (section 35).

In addition a court order authorizing a forensic procedure is required where the suspect is a child or an incapable person (see Incapable Person) (section 32).

A magistrate may make an order authorizing a forensic procedure upon being satisfied on the balance of probabilities as to matters similar to those required for an order by a police officer (see Non-Intimate Forensic Procedures) (section 34).

The suspect must be present at the hearing of the application for the order unless detained in lawful custody interstate or, having been served with the application, is not present. A suspect who is a child, and incapable person or an Aboriginal or Torres Strait Islander person must be represented by an interview friend and may be represented by a lawyer. The suspect may cross examine the applicant police officer with the leave of the magistrate call or cross-examine any other witnesses, and make submissions.

If a suspect is in custody at the time the court orders the carrying out of the forensic procedure, the court may also order that the suspect be kept in custody for as long as is reasonably necessary to carry out the forensic procedure (Section 40). If the suspect was not in custody when the order was made the magistrate may if considered necessary order the arrest of the suspect for the purpose of carrying out the forensic procedure (section 40A(3)).

Interim orders

A magistrate may make an interim order authorizing the immediate carrying out of a forensic procedure on a suspect (Part 2.5, sections 31 – 48)

(a) if the magistrate is satisfied that the probative value of evidence obtained because of the forensic procedure concerned is likely to be lost or destroyed if there is delay in carrying out the procedure; and
(b) that there is sufficient evidence to indicate that a magistrate is reasonably likely to be satisfied of the existence of the matters necessary for the making of a final order (see section 41).

A police officer may, while waiting for the application seeking an interim order to be decided, use reasonable force to prevent the suspect destroying any evidence that might be obtained by carrying out the forensic procedure if the order is made (section 46).

Carrying out forensic procedures

The legislation lays down strict rules for the carrying out of forensic procedures.

General rules for carrying out forensic procedures on suspects

A forensic procedure—

(a) must be carried out in circumstances providing reasonable privacy to the suspect person; and
(b) must not be carried out in the presence or view of anyone who is of the opposite sex to the suspect; and
(c) must not be carried out in the presence or view of a person whose presence is not necessary for the forensic procedure; and
(d) must not involve the removal of more clothing than is necessary for carrying out the procedure; and
(e) must not involve more visual inspection than is necessary for carrying out the procedure (section 49)
(f) must not be carried out in a cruel, inhuman or degrading way (section 51)
(g) in taking a sample of hair by removing the root, must not remove more hair than is necessary for analysis of the sample, or other examination of the hair (section 52).

Before a forensic procedure is carried out a police officer must ensure that the suspects informed about his or her rights to request,

(a) if a sample is to be taken from the person, and there is sufficient material taken, a part of the material sufficient for analysis may be made available to the suspect; and
(b) if a photograph or a video recording of a part of the person's body is to be taken, a copy of the photograph or video recording may be made available to the suspect; and
(c) if a sample is to be taken from the person, and material from the sample is analysed in the investigation of the matter, a copy of the results of the analysis may be made available to the suspect (section 49A).

A police officer may use reasonable force to enable a forensic procedure to be carried out or to prevent loss destruction or contamination of a sample (section 50).

Rules for carrying out forensic procedures on transgender and intersex people

(Section 49B)

(a) The transgender or intersex person may elect to be identified as a male or female.
(b) If the transgender or intersex person is a child, incapable person or Aboriginal or Torres Strait Islander person, the transgender or intersex person's interview friend or lawyer may elect that the person be identified as a male or female.
(c) If the election is to be identified as a male, the transgender or intersex person is taken to be male.
(d) If the election is to be identified as a female, the transgender or intersex person is taken to be female.
(e) If the transgender or intersex person does not make an election, but requires that the forensic procedure be carried out by a male, the person is taken to be male.
(f) If the transgender or intersex person's interview friend or lawyer does not make an election, but requires that the forensic procedure be carried out by a male, the transgender or intersex person is taken to be male.
(g) If the transgender or intersex person does not make an election, but requires that the forensic procedure be carried out by a female, the person is taken to be female.
(h) If the transgender or intersex person's interview friend or lawyer does not make an election, but requires that the forensic procedure be carried out by a female, the transgender or intersex person is taken, to be female.

People involved in forensic procedures

The table below is set out in section 53 of the Crimes (Forensic Procedures) Act 2000.

Relevant person = suspect

Table 53 People involved in forensic procedures

column 1 item	column 2 forensic procedure	column 3 people who may carry out forensic procedure	column 4 is relevant person entitled to ask for doctor or dentist of person’s choice to be present?
1	external examination of— genital or anal area buttocks breasts of female or transgender or intersex person who identifies as female doctor nurse appropriately qualified person		yes, doctor
2	taking sample of blood	doctor nurse	yes, doctor
3	taking sample of saliva or sample by buccal swab	doctor dentist dental technician nurse appropriately qualified person	yes, doctor or dentist
4	taking sample of pubic hair	doctor nurse	yes, doctor
5	taking sample by swab or washing from— external genital or anal area buttocks breasts of female or transgender or intersex person who identifies as female doctor nurse		yes, doctor
6	taking sample by vacuum suction, scraping or lifting by tape from— external genital or anal area buttocks breasts of female or transgender or intersex person who identifies as female doctor nurse		yes, doctor
7	taking dental impression	doctor dentist dental technician	yes, dentist
8	taking photograph or video recording of, or impression or cast of, wound from— genital or anal area buttocks breasts of female or transgender or intersex person who identifies as female appropriately qualified person		yes, doctor
9	external examination of part of body (other than— genital or anal area buttocks breasts of female or transgender or intersex person who identifies as female) that requires touching of body or removal of clothing	doctor nurse appropriately qualified person	no
10	taking sample of hair (other than pubic hair)	doctor nurse appropriately qualified person	no
11	taking sample from nail or from under nail	doctor nurse appropriately qualified person	no
12	taking sample by swab or washing from any external part of body (other than— genital or anal area buttocks breasts of female or transgender or intersex person who identifies as female) doctor nurse appropriately qualified person		no
13	taking sample by vacuum suction, scraping or lifting by tape from any external part of body (other than— genital or anal area buttocks breasts of female or transgender or intersex person who identifies as female) doctor nurse appropriately qualified person		no
14	taking handprint, fingerprint, footprint or toeprint	appropriately qualified person	no
15	taking photograph or video recording of, or impression or cast of wound from, external part of body (other than— genital or anal area buttocks breasts of female or transgender or intersex person who identifies as female) appropriately qualified person		no

Presence of doctor or dentist of suspect’s choice

A suspect may request a doctor or where appropriate, a dentist, of the person’s choice to be present while an intimate forensic procedure is carried out or a sample of saliva or sample by buccal swab is taken (Section 56).

Presence of an interview friend or lawyer - children, incapable persons and Aboriginal and Torres Strait Islander suspects

If the suspect is a child, an incapable person or an Aboriginal or Torres Strait Islander person then an interview friend or a lawyer must be present while the forensic procedure is carried out. However an Aboriginal or Torres Strait Islander suspect may waive this requirement. An interview friend may be excluded from the place where the forensic procedure is being carried out if they unreasonably interfere with or obstructs the carrying out of the procedure (Section 57).

Presence of police and an independent person while a forensic procedure is carried out

Only those police officers reasonably necessary for the carrying out of a forensic procedure should be present when the procedure is carried out (Section 58(1)).

A police officer of the opposite sex to the suspect may be present during the carrying out of the procedure only if,

• it would not be reasonably practicable to carry out the procedure in the absence of that police officer and,
• there is no police officer of the same sex available to be present instead (section 58(2)). This rule however does not apply in the case of basic non-intimate forensic procedures such as the taking of fingerprints and the like and other non-intimate procedures that do not involve touching the suspect or requiring the suspect to remove any clothing other than coats, gloves, socks, shoes and hats (section 58(3)).

As a general rule the carrying out of a forensic procedure must be video recorded unless the suspect objects or it is not reasonably practicable to do so (section 59(1)).

This rule however does not apply in the case of basic non-intimate forensic procedures such as the taking of fingerprints and the like and photographing or video recording a part of the suspect’s body other than intimate parts of the body such as genital or anal area or breasts of a female or transgender suspect (section 59(2)).

Before the forensic procedure is carried out the suspect must be given an explanation of the value of making a video recording of the carrying out of the forensic procedure to avoid disputes about how it was carried out and also must be informed that he or she may object to the video recording (section 59(3)).

If the procedure is not video recorded then unless the suspect waives any objection, the procedure must be carried out in the presence of an independent person who is not a police officer. Despite any waiver a police officer may nevertheless still require that an independent person be present (section 59(4)-(6)).

Procedure after carrying out of forensic procedure

If possible, a suspect must be provided with a part of a sample sufficient for analysis as soon as practicable if requested (section 60(3)-(4)).

Similarly if the forensic procedure was the taking of a photograph or video recording of a part of the suspect’s body, the suspect may request and upon request must be provided with a copy of these (Section 61).

A suspect may request and upon request must be provided with the results of any analysis of samples taken during a forensic procedure (section 62).

Forensic Procedures after conviction of serious offenders

Part 2.7 of the Act authorises police to carry out certain forensic procedures on persons who have been convicted of a serious offence (see the definition of Serious Offence).

The purpose of carrying out forensic procedures on convicted offenders is to facilitate future criminal investigations by storing an offender’s information on the ACT DNA database.

The procedures permitted are the taking of a sample of blood (which is an intimate procedure) and the taking of a sample of hair, a buccal swab or fingerprints all of which are non-intimate forensic procedures (section 64).

The offender must give informed consent (section 69) or an order of a police officer (section 73) or a court order (section 77) must be obtained before the procedure is carried out.

Inadmissibility of evidence from improper forensic procedures

Evidence obtained as a result of the carrying out of a forensic procedure in breach of or failing to comply with the provisions of the Crimes (Forensic Procedures) Act will only be admissible in evidence in proceedings if either,

1. the suspect does not object to the admission of the evidence or
2. the court is satisfied on the balance of probabilities that the evidence should be admitted in the proceedings having regard to specific considerations, including the significance of the evidence in the case, the reasons for the breach or failure to comply with the provisions of the Act, the seriousness of the breach or failure to comply with the provisions of the act, and whether the breach or failure to comply was intentional or reckless (section 85).

Destruction of Forensic Material

Forensic material must be destroyed,

1. if obtained pursuant to an interim order for carrying out a forensic procedure which order is subsequently disallowed (section 90),
2. if taken from a serious offender whose conviction for the serious offence is later quashed (section 91).

A suspect may apply to a court for an order that forensic material be destroyed unless,

1. the proceedings to which the forensic material relates has not been finally decided or is still subject to appeal,
2. the suspect is convicted of an offence to which the forensic material relates and does not appeal against the conviction or does appeal and the appeal is unsuccessful (section 92(2)).

An application to destroy forensic material may only be made one year or later after

1. the forensic material was taken, or
2. an earlier application for destruction of the forensic material was refused (section 92(3)).

The court hearing the application must order that the forensic material be destroyed unless satisfied that—

1. there are reasonable grounds to believe that the forensic material is likely to be of probative value in relation to the investigation of, or a proceeding for, an offence, and
2. the destruction of the forensic material is not justified in all the circumstances (section 92(4)).