Forensic Procedure Applications

Forensic Procedure Applications can be made by a police officer to a court seeking an order that a forensic procedure be carried out on a person. 

A forensic procedure application can be made when a person does not consent to the forensic procedure, or cannot consent (because they are under 18 or lack sufficient capacity). The Application is heard in a court and can be opposed. If the application is granted, the police will be permitted to perform the forensic procedure. If it is refused, they will not be able to.

A senior police officer can make an order for a Forensic Procedure to be undertaken without the need for an application to a court, but can only do so for a non-intimate forensic procedure on a suspect who has been arrested and who is not a child or incapable person.

Who can apply for a forensic procedure to be carried out?

The police officer in charge of a police station, a custody manager, the investigating police officer in relation to an offence, or the Director of Public Prosecutions can make an application for a Forensic Procedure.

Who can make an order?

An authorised justice can make an ‘interim order’. An authorised justice includes a Magistrate; a Registrar of a Local Court or the Registrar of the Drug Court, or a person who is employed in the Attorney General’s Department and who is declared by the Attorney to be an authorised justice. An interim order requires the forensic procedure to be carried out without delay. The order ceases to operate when a Magistrate confirms or disallows the interim order by way of the granting of a ‘final order’.

A Magistrate can make a final order.

What happens once an application is made?

When an application is made for a final order the person the matter will be listed before a court and the person who is the intended subject of the procedure is required to attend court.

The prosecution are required to prove that there are reasonable grounds to believe that the person committed a particular type of offence (which is dependent upon the type of forensic procedure sought), and that the forensic procedure might produce evidence tending to confirm or disprove that they committed the relevant offence. The Magistrate must also be satisfied that the carrying out of the forensic procedure is justified in all of the circumstances.

At the court hearing, the legal representative (or the person themselves if they are unrepresented) will have the opportunity to address the court and cross-examine the applicant for the order. With the Magistrate’s leave, further witnesses may be called or cross-examined, provided it can be shown that there are ‘substantial reasons why, in the interests of justice’, the witness should be called or cross-examined.

What happens once an order is made?

Once an order is made, the forensic procedure must be carried out without delay. 

Legal representation

If you would like assistance regarding forensic procedures please contact us.