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What is a Forensic Procedure?

A “forensic procedure” is a procedure by which police obtain “forensic material”, such as DNA, fingerprints or photographs, from a suspect.

A forensic procedure can be carried out by police if:

  • The suspect consents; or
  • The court or a Senior Police Officer orders it

In general, an order may be made if:

  • There are reasonable grounds to believe that the suspect has committed an offence,
  • The procedure might produce evidence tending to confirm or disprove that the suspect has committed that offence, and
  • The procedure is justified in the circumstances.

The carrying out of a forensic procedure is governed by the Crimes (Forensic Procedures) Act 2000 (NSW).

Should I consent to a forensic procedure?

No.  In most cases it is strongly recommended that any forensic procedure application be opposed.  Consent should only be given after a careful review of all other evidence and after obtaining legal advice.

One thing to consider is that once a suspect’s forensic material is on the police database, it will remain there indefinitely and may be used to link them with other unrelated crimes.

What happens if I don’t consent?

Police will either make an application to the Local Court or obtain an order from a Senior Police Officer.

If an order for a forensic procedure is made by a Senior Police Officer, the suspect must comply.  However, they should still note their objection and ask to speak to a lawyer if police will permit it.

By objecting it will be easier at trial to argue that the evidence should be ruled inadmissible.

Why is DNA evidence so important?

A DNA match can in some cases make a defending an allegation extremely difficult, for example where the DNA matches a sample found on the private parts of a child.  Conversely, without DNA evidence some cases are considered too weak for charges to be laid, for example where a victim believes they were sexually assaulted while unconsciousness but does not know who by.

Types of forensic procedures

There are two types of forensic procedures, “intimate” and “non-intimate”.  Intimate procedures include:

  • A buccal swab administered by another person
  • Taking a sample of the person’s blood
  • Taking a sample of any matter, by swab or washing, from the person’s private parts
  • An external examination of a person’s private parts

Non-intimate procedures include:

  • A self-administered buccal swab
  • Taking a sample of the person’s hair, other than pubic hair
  • Taking a photograph of a part of a person’s body, other than the person’s private parts

The collection of samples by methods that are not set out in the Act, for example by taking DNA from a discarded cigarette butt from a suspect at the police station, are not forensic procedures for the purposes of the Act: R v Jason Michael Kane [2004] NSWCCA 78; R v Clarence Herman White [2005] NSWSC 60.

If police attempt to obtain such a sample in order to circumvent the purposes of the Act there may be an argument that the evidence should be ruled inadmissible for having been improperly obtained.

When can police carry out a forensic procedure?

Generally, a Senior Police Officer can order a forensic procedure if satisfied of each of the following: Section 20 Crimes (Forensic Procedures) Act 2000 (NSW):

  • The person is a suspect under arrest
  • There are reasonable grounds to believe that the suspect has committed an offence
  • There are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed that offence
  • The suspect is neither a child nor an incapable person, and
  • The procedure is justified in the circumstances

There are a host of requirements that police must strictly comply with when carrying out a forensic procedure.  Failure to do so can result in the forensic material being ruled inadmissible in court.

A person who has been subject to a forensic procedure should provide a detailed account to a lawyer while their memory is fresh so that there can be proper consideration as to whether to challenge the evidence.

When will the Court order a forensic procedure?

The grounds on which a Court will order a forensic procedure are set out in section 24 Crimes (Forensic Procedures) Act 2000 (NSW).  In summary they are:

  • There are reasonable grounds to believe that the suspect has committed an offence
  • There are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed that offence, and
  • The procedure is justified in the circumstances

Forensic procedure applications are civil proceedings and so the grounds must be proved “on the balance of probabilities”, not “beyond a reasonable doubt”.

Who is considered to be a ‘suspect’?

A suspect is:

  • a person whom a police officer suspects on reasonable grounds has committed an offence
  • a person charged with an offence
  • a person who has been summoned to appear before a court in relation to an offence alleged to have been committed by the person.

Importantly, police cannot use a forensic procedure to identify a subject. “… the purpose of the legislation is not to enable investigating police (or other authorised persons) to identify a person as a suspect; it is to facilitate the procurement of evidence against a person who already is a suspect”: Orban v Bayliss [2004] NSWSC 428

When is a procedure ‘justified in the circumstances’?

The court will take into account the following factors in deciding whether a procedure is justified in the circumstances:

  • The gravity and seriousness of the alleged offence
  • The degree to which the suspect is alleged to have participated in the offence
  • The age, cultural background and physical and mental health of the suspect
  • The best interests of the child or incapacitated person
  • Other practicable ways of obtaining evidence as to whether or not the suspect committed the offence
  • The suspect’s reasons refusing to consent
  • Time spent in custody
  • Any other relevant matter

All factors must be considered. “… the Magistrate [is] required to balance the public interest in obtaining evidence as to whether or not the defendant committed the alleged offence, as against the public interest in upholding his physical integrity … [and is] … required to have regard to all of the factors enumerated in ss 24(4)(a)-(i)”: ACP v Munro [2012] NSWSC 1510

How to defend an application for a Court ordered forensic procedure

Police are required to provide evidence in support of their application.  This usually takes the form of an affidavit from the Officer in Charge (“OIC”) setting out the allegation, the evidence in support, the reasons why the suspect is indeed a suspect, and what is hoped to be achieved by carrying out a forensic procedure.

In some cases, it will be necessary to gather evidence to contradict the evidence put forward by the police and leave may be sought from the Court to cross examine the OIC and other witnesses.  However, consistent with section 30 of the Act it is “incumbent upon the Magistrate not to grant leave to the defendant to undertake such cross-examination unless” the Magistrate is “affirmatively satisfied by the defendant that there were “substantial reasons why in the interests of justice” that should be done”: ACP v Munro [2012] NSWSC 1510

In other cases, the better approach is to identify the weaknesses and gaps in the application and make submissions that the applicant has not met the requirements of the Act.

Common points of contest are:

  • Whether the person is in fact a suspect
  • Whether the procedure is justified in all the circumstances

There are many authorities that suggest that the Court should take a very strict approach to applying the test in section 24 of the Act. Examples include:

  • “The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language”:Coco v The Queen (1994) 179 CLR 427 at 437.
  • “Authorisation under the Act can only be granted strictly in accordance with its provisions”: Walker v Budgen[2005] NSWSC 898
  • “The Act authorises the performance of forensic procedures upon person against their consent. Those procedures include invasive procedures. In these circumstances, it is often said that a strict construction should be adopted. … I proceed on the basis, therefore, that while it is important for the Court to adopt a construction which will give effect to the provisions in the legislation, if there is any doubt or ambiguity as to whether [… the Act …] extends to the situation of the Appellant, that doubt or ambiguity should be resolved in favour of the Appellant”:Stephanopoulos v Police (2000) 79 SASR 91.

Section 115A provides for an appeal if the application is granted.  Any appeal must be lodged within 28 days.

Can police make multiple applications?

Yes.  However, if a Magistrate refuses an application, the applicant (the police or any other person aware of the application) may not make a further application to carry out the same forensic procedure on the suspect unless they provide additional information that justifies the making of the further application: Section 26(3) Crimes (Forensic Procedures) Act 2000 (NSW)

A police officer must not give information to a Magistrate or authorised officer that they know to be false or misleading in a material particular: Section 43A.  Evidence offered by police in support of a forensic procedure application should be carefully scrutinised with this provision in mind.

What happens to my DNA and forensic material once police have it?

The evidence obtained through a forensic procedure is kept in the database and can be used to connect a suspect with alleged offences unconnected with the original investigation.  This is one reason why it is so important to oppose the carrying out of a forensic procedure.

When is my forensic material destroyed?

Destruction of forensic material is mandatory in the following circumstances:

  • If an interim forensic procedure was subsequently disallowed: s 86
  • If the conviction of the suspect is set aside or quashed: s 87
  • If fingerprints have been given by consent for the purposes of eliminating the person as a suspect under the Crimes Act 1900 (NSW) and they have in fact been eliminated: s 87A
  • After 12 months if proceedings have not been commenced, or have been discontinued: s 88
  • If the person is found not guilty or no conviction is recorded: s 88
  • If the evidence is ruled inadmissible due to being obtained in contravention of the Act: s 89

For the purposes of the Act, a person who is required to destroy forensic material is required not only to destroy the material but also to ensure that any information that relates any DNA profile derived from that material to a person whose DNA it describes, is removed from the DNA database system.