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Forensic procedures

Police have power to request a suspect to undergo a forensic procedure where there are reasonable grounds to believe that the result of the procedure will tend to confirm or disprove the suspect's involvement in an indictable offence.

You should refuse to undergo any forensic procedure unless the police have a court order compelling you to do so.

Under both the Victorian and the Commonwealth Crimes Act, there are now specific legislative powers for taking forensic material from suspects. The following information focuses on the requirements of the Victorian law, which is found in sections 464R to 464ZK of the Crimes Act 1958 (Vic). The Commonwealth law is found in sections 23WA to 23XWA of the Crimes Act 1914 (Cth), and is dealt with briefly below. Forensic procedures include:

  • Intimate samples: pubic hair, anal, external genital or breast swabs, saliva, mouth scrapes or dental impressions
  • Non-intimate samples: hair, fingernail or toenail scrapes, external swabs or washings
  • Other samples, or any other procedures or physical examinations of the body (but, under the Victorian Act, do not include the taking of fingerprints)

The powers of police to seek to have a suspect undergo a forensic procedure depend in part on the suspect's age.

Adults

A forensic procedure can be conducted if either:

  • The suspect gives his or her informed consent to the conduct of the procedure. Before a suspect can be said to have given informed consent, police will have to provide certain information, or
  • a Magistrates' Court orders that the procedure be conducted

You should refuse any request for forensic samples and ask to speak to your lawyer.

Commonwealth offences

The conduct of forensic procedures under Commonwealth law ( Crimes Act 1914 (Cth)) follows the general procedure set out under the Victorian legislation. That is, a police officer can obtain a forensic sample with the informed consent of the suspect.

Where such consent is not forthcoming, an authorised police officer may seek a court order for the conduct of the procedure.

The distinction between an intimate and a non-intimate sample or procedure is also present in the Commonwealth Act, however there are some slight differences in definition and approach. There are some limited circumstances where a police officer of the rank of sergeant or higher may order a non-intimate forensic procedure to be carried out on a suspect.

The Commonwealth Act imposes time limits for carrying out forensic procedures and also imposes special requirements in relation to Aboriginal people and Torres Strait Islanders.