Forensic Procedure Application
Forensic procedure applications can be made by a police officer to a court seeking an order that a forensic procedure be carried out on you. The application needs to be drafted carefully. It is our experience these are poorly drafted and if challenged in many instances can be prevented. We recently won a matter in the Supreme Court on these grounds.
A forensic procedure application can be made when you do not consent to the forensic procedure, or cannot consent (because you are a minor (under 18) or an incapable person within the definition of the Crimes (Forensic Procedures) Act 2000 (NSW). An application may be made for an order to be made compelling you to undergo a forensic procedure.
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.
Who can make an order?
- A senior police officer, but only for a non-intimate forensic procedure on a suspect who has been arrested and who is not a child or incapable person.
- An authorised justice can make an ‘interim order’. An authorised justice means 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?
If an application is made for a final order, you will be required to attend court.
The prosecution will have to prove that there are reasonable grounds to believe that you 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 you 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.
You or your lawyer will have the opportunity to address the court and cross-examine the applicant for the order. With the magistrate’s leave, you or your lawyer may call or cross-examine any other witness, 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. See the section on DNA for information on your rights during a forensic procedure.
As indicated above we have been successful in preventing the police in taking forensic procedures. We recently won a case in the Supreme Court and were awarded our legal costs. If you would like assistance regarding forensic procedures please contact us.