This article was written by Fernanda Dahlstrom - Content Editor - Brisbane
Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.
Forensic Procedures (NSW)
The Crimes (Forensic Procedures) Act 2000 establishes the legislative framework for the taking, testing, destruction and storage of forensic samples in New South Wales. Some of the most reliable evidence in criminal matters is forensic evidence and this must be obtained in a lawful manner to ensure it will be admissible as evidence should the matter proceed to a contested hearing in the Local Court or a criminal trial in the District Court or Supreme Court
There are two types of procedures used to obtain forensic evidence:
- An intimate forensic procedure; and
- A non-intimate forensic procedure.
Intimate forensic procedure
Section 3 of the Act, outlines that intimate forensic procedures include samples of blood, pubic hair, a swab from a person’s private parts, dental impressions, photographs of a person’s private parts, and impressions or casts of a wound from the person’s private parts.
Non-intimate forensic procedure
Section 3 of the Act, outlines that non-intimate forensic procedures include external examinations of a part of a person’s body, other than the person’s private parts, that requires touching of the body or removal of clothing, a self-administered buccul swab, a sample of hair or nail clippings, a sample from part of a person’s body taken by vacuum suction, scraping or lifting by tape, a person’s handprint, fingerprint, footprint or toeprint, photographs of parts of a person’s body (other than private parts) or a person’s physical measurements.
Do the police need a court order?
Section 5 of the Act 2000 sets out what form of authorisation the New South Wales police require to carry out different types of forensic procedures under different circumstances.
Adult not under arrest
Non-intimate forensic procedures can be carried out on an adult who is not under arrest either with the person’s informed consent or with an order from a magistrate or registrar.
Intimate forensic procedures can be carried out on an adult who is not under arrest with the person’s informed consent or with an order from a magistrate or registrar.
Adult under arrest
Non-intimate forensic procedures can be carried out on an adult who is under arrest either with the person’s informed consent or with an order from a senior police officer.
Intimate forensic procedures can be carried out on an adult who is under arrest with the person’s informed consent or with an order from a magistrate or registrar.
Child between 10 and 18 or incapable person
Intimate or non-intimate forensic procedures can be carried out on a child or on an incapable person only with an order from a magistrate or an authorised officer.
The most common types of forensic evidence that are used are fingerprints and DNA evidence.
Fingerprints
Police can ask for a person’s fingerprints to be taken if they believe the person has committed an offence. If the person refuses, they may obtain an order to take the fingerprints without the person’s consent. They are allowed to use reasonable force to do so.
If a person’s fingerprints were taken when they were arrested and they are found not guilty or are not charged with an offence, the police must destroy the fingerprints after 6 months.
DNA
Police can ask a person to let them take a sample of the person’s DNA if they believe the person has committed an offence. If the person refuses, they may obtain an order to take a DNA sample without the person’s consent. They are allowed to use reasonable force to do this.
If the person is found not guilty or is not charged with an offence, the police must destroy the DNA evidence after 12 months.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.