A Criminal Lawyer's Guide on Rights in Forensic Procedures

The Crimes (Forensic Procedures) Act 2000 governs police applications for forensic procedures. The application process is complex; in essence, it means that if a police officer has reason to believe that you are a suspect in a crime, they can request that you submit to a procedure that will prove or disprove it. If you refuse to comply, the Commissioner of the Australian Federal Police may elevate the request to a Magistrate, who may then issue a court order.

For instance, a person suspected of a crime might be requested to uncover their tattoos to have these photographed by the police. Perhaps the police are confirming the identity of a suspect, or are searching for an individual who has a specific tattoo in a certain body region.

If the person refuses to consent to the procedure, the police cannot demand that a person immediately submit to the procedure if the person refuses. An order must be granted and the Magistrate must be convinced that on balance, the criteria for the procedure favours the making of an order, pursuant to Section 34 of the Crimes (Forensic Procedures) Act 2000.

Your rights during forensic procedures

Informed consent should always be established before an officer carries out a forensic procedure. The officer must categorically state the procedure as a request, inform the suspect about the procedure, and give the suspect the opportunity to communicate or attempt to communicate in private with a criminal lawyer of their choice regarding the procedure.

The officers may prevent this communication, provided that they have strong grounds to believe that the suspect will attempt to contaminate or destroy evidence that can be gathered through the procedure. In all of these, the burden of proof is on the prosecution—it must show that the police officer has reasonable grounds for suspecting the person of interest.

The police officer’s duties during a procedure

If the procedure involves anything other than taking handprints, fingerprints, footprints or toeprints, the offence being investigated must be serious enough to warrant the procedure.

When taking identifying prints, an officer must still consider the gravity of the offence, the degree of participation of the suspect, their age, physical and mental health, and cultural background. They must be sure that there isn’t a less intrusive way of confirming the person’s involvement in the alleged criminal act.

Furthermore, the officer should inform you of several things. First, they should tell you that your consent will be recorded and that you have a right to a copy of the record. They should also inform you of the purpose of the procedure, why you are a suspect in the offence and the manner in which the procedure will be carried out.

The officers also have a duty to inform suspects of their right to refuse consent and the consequences of refusal and compliance. All of these will be further affected by whether or not you are in police custody and whether the procedure is intimate or non-intimate.

Forensic evidence admissibility in court

If an accused person does not object to the admission of the forensic evidence, or if the court believes that the evidence should be admitted, there’s the possibility it may be used in a trial even if the forensic procedure used by police to obtain the evidence breaches or fails to comply with the requirements of the Crimes (Forensic Procedures) Act. The court might also consider the probative value of the evidence, the reasons for the breach of the Act, the intentionality of the breach, and other relevant matters.

It may be possible to may make an application for forensic material to be destroyed, provided that a lengthy list of criteria are fulfilled. These applications may be made if proceedings are not brought against you in relation to alleged crimes to which the forensic material is related.

Conclusion

Police powers in conducting forensic procedures vary according to each case’s individual circumstances. When you are asked to consent to a procedure, you should consult a criminal lawyer. In some circumstances, it may be possible that an officer will still conduct the forensic procedure and rely on it at Court even if a suspected person has not consented to it—knowing your rights is important in situations like these.

For criminal lawyers in Canberra, get in touch with the Andrew Byrnes Law Group today. We provide fearless, deliberately different legal representation. Book a free phone or video conference with our lawyers today to learn more.