A Quick Guide to the Law on Forensic Procedures in NSW

We often receive calls from those in police custody who want information about their rights when it comes to taking part in forensic procedures.

Forensic procedures generally involve the taking of a sample from a person by police for investigative purposes. Common forensic procedures include the taking of fingerprints, photos or a saliva sample by a buccal swab of a person’s mouth – however there are many other types of forensic procedures under the law.

Here we discuss the different types of forensic procedures, whether you should consent to a procedure and what happens if you choose not to consent.

The Law

The law relating to forensic procedures is contained in the Crimes (Forensic Procedures) Act 2000 (‘the Act’) Under section 3 of the Act, a ‘forensic procedure’ can relate to either an ‘intimate’ or a ‘non-intimate’ procedure.

Intimate forensic procedures include:

• External examination of a person’s private parts (a person’s genitals, buttocks or breasts);
• Buccal swabs carried out by a person other than the person being swabbed;
• Blood samples;
• Samples of a person’s pubic hair;
• Samples of any matter from a person’s private parts using a swab or washing;
• Samples taken by vacuum suction, scraping or lifting by tape, from a person’s private parts;
• Dental impressions;
• Photographs of a person’s private parts;
• An impression or cast of a wound taken from a person’s private parts.

Non-intimate forensic procedures include:

• External examinations of a part of a person’s body (other than their private parts) which involves the touching of that person’s body or the removal of clothing;
• Procedures involving a self-administered buccal swab;
• Samples of a person’s hair (excluding their pubic hair);
• Samples taken of a person’s nails or matter obtained from underneath a person’s nails;
• Samples of any matter taken from any external part by swab or washing of a person’s body (excluding their private parts);
• Samples taken of any matter by vacuum suction, scraping or lifting by tape from any external part of a person’s body (excluding their private parts);
• Hand prints, fingerprints, footprints or toe prints;
• Photographs of a person’s body (excluding their private parts);
• Impressions or casts of a wound taken from a person’s body (excluding their private parts);
• Measurements o a person’s body or parts (excluding their private parts).

Should I Consent to a Forensic Procedure?

Under section 7 of the Act, police and other authorised persons may carry out a forensic procedure if they obtain informed consent from a suspect.

However, this does not apply if the suspect is a child, or an incapable person – who is unable to understand what a forensic procedure is, or is otherwise incapable of giving consent.

Forensic procedures cannot be carried out at all on children under the age of 10.

One of the most common questions we are asked it: ‘Should I, or do I have to consent to a forensic procedure?’

The straightforward answer is that you should give consent to a forensic procedure in serious criminal matters in cases where a non-intimate procedure is obviously relevant to the charge in question.

For instance, if a person has been charged with aggravated sexual assault, most criminal lawyers would advise their clients to consent to forensic procedures if those procedures are relevant to the investigation at hand; for example, where police have conducted swabs upon the complainant and are seeking a ‘buccal swab’ from the suspect to determine whether his or her bodily fluids are on the complainant.

On the other hand, lawyers may advise their clients not to consent to a certain intimate procedures where there the sample sought does not appear to be relevant to investigating the crime – especially if it appears that police are undertaking a ‘fishing expedition’ to secure the sample and enter it into the DNA database to see whether they can match it with samples from past unsolved crimes.

If a person is under arrest and refuses to give consent, the following may occur:

• If it is a non-intimate forensic procedure, a senior police officer can order it to be carried out;
• If it is an intimate forensic procedure, or if the suspect is not under arrest, police can seek an order from a Magistrate that authorises the forensic procedure.

Magistrates and other authorised officers can make orders for forensic procedures to be carried out on children over the age of 10.

Before a magistrate can order a forensic procedure, they must be satisfied on the balance of probabilities that there are reasonable grounds to believe that the suspect has committed an offence (or an indictable offence if an intimate forensic procedure is sought).

Importantly, they must also be satisfied that there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence in question.

In making that decision, the Magistrate must consider the public interest in obtaining the evidence against the suspect’s integrity. That assessment can take into account the gravity of the offence, the seriousness of the circumstances surrounding the offence, the degree of alleged participation by the suspect, and the age, cultural background and physical and mental health of the suspect.

Procedural Requirements

Police are required to follow a number of procedures before a person is deemed to have given their consent. These include asking the person if they consent and providing them with a range of information – including the purpose of the procedure, the offence to which it relates, the way in which the procedure will be carried out, and the fact that it may produce evidence that can be used against the person in court.

Police will generally provide suspects with a ‘Forensic Procedure Consent Form’ which contains this information and records the giving of their consent.

A suspect must also be given the opportunity to speak to a lawyer before consenting to the procedure.

Additionally, a person who is undergoing a procedure that involves an impression or cast of a wound from their body can have a medical practitioner or dentist of their choice present.

Before you consent to a forensic procedure, it is important to speak to experienced criminal lawyers who can speak to police about the alleged crime and purpose of the procedure, and advise you about what to do.