Forensic Procedures: Intimate and Non-Intimate Samples (Vic)

This article sets out police powers to take samples from the body of an adult suspect in Victoria. It explains the difference between intimate and non-intimate samples and the processes that must be followed when police are conducting forensic procedures.

Legislation on forensic procedures

Under section 464R of the Crimes Act 1958, police can request a suspect to undergo a forensic procedure. To do so, police must have formed the view that the person is a suspect and that there are reasonable grounds to believe that the procedure would tend to confirm whether they were involved in an indictable offence.

Under section 464(2) a suspect is a person 18 years and older who:

1. is suspected on reasonable grounds; or
2. has been charged; or
3. has been summonsed;
4. for an indictable offence.

Under section 464Y, immediately before a forensic procedure is conducted, a police officer must inform the suspect that he or she does not have to answer any questions asked by the person conducting the procedure but that anything the person does say may be given in evidence.

Intimate and non-intimate samples

Depending on the nature of the allegations against a person, the police may wish to take intimate or non-intimate samples. Intimate samples include blood, saliva and pubic hair. Non-intimate samples include hair, fingernail scrapings and external body swabs.

Different rules apply to the authorisation of a procedure depending on whether it is an intimate or a non-intimate procedure.

Forensic procedures done with consent

Police are required to provide certain information to a person who is being asked to participate in a forensic procedure so that they can provide consent or refuse to do so. The majority of the information that a police officer must provide is set out in section 464(2) of the Crimes Act 1958. Under this section, a police officer must inform the person of the following:

• the purpose of the procedure;
• the nature of the procedure;
• medical preference of the accused choice can be used;
• the offence which has occurred;
• that the evidence can be used in court;
• that information can be placed on a DNA database and used in investigations;
• that the person may refuse and if they refuse, the police may apply for court order (intimate) or obtain the Police Authorisation (for non intimate).

If a person refuses to consent to a procedure, the police may be able to perform it compulsorily.

Compulsory forensic procedures authorised by senior officer

Under section 464SA of the Crimes Act 1958, a senior police officer, of the rank of Senior Sargent or above who is not involve in the investigation may authorise a non-intimate compulsory procedure if satisfied that:

1. the suspect is a ‘relevant’ suspect under Section 464(2);
2. the suspect is under arrest or in custody;
3. the suspect is not under 18;
4. the suspect is not incapable of giving consent;
5. the suspect has refused consent;
6. the police officer has reasonable grounds to believe Suspect has committed an offence; and
7. it is justified in all circumstances justified pursuant to section 464SA (2) of Crimes Act 1958.

Compulsory forensic procedures authorised by court order

Under section 464T of the Crimes Act 1958, a police officer may apply to a Magistrates Court for an order directing a suspect to undergo a compulsory procedure provided:

1. the suspect has refused consent or is incapable of giving informed consent,
2. the sample can be obtained by compulsory procedure,
3. the suspect is a relevant suspect, and
4. police officer believes on reasonable grounds that the suspect has committed the offence.

Importantly, the suspect must be informed of any application to the Magistrates Court. Failing to inform the suspect of such an application is a breach of natural justice, as noted in the case of Kirsh v Dolman (2001).

Evidence obtained improperly

A breach of the statutory requirements regarding obtaining forensic evidence will generally result in the evidence being deemed inadmissible under section 464ZE (1) of the Crimes Act 1958. However, the court may admit such evidence if the accused consents or the prosecution satisfies the court on the balance of probabilities that the circumstances justify its admission.

It is extremely important that a suspect does not agree to participate in a forensic procedure without first seeking legal advice. By consulting a legal professional, you have the opportunity to receive sound legal advice and to assess all of your options before deciding whether or not to consent to a forensic procedure.

The above information relates to forensic procedures on adult suspects. Different rules apply to collecting samples from suspects who are under 18. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.