The Crimes (Forensic Procedure) Act 2002 (NSW) sets out the forensic procedures the police are able to perform in respect to DNA

On occasions, a suspect might be required to submit to a forensic procedure. For this to take place you may need a lawyer to represent you in the Local or Children’s court, whichever is applicable, if you cannot give consent to the procedure. If you are able and prepared to give consent, then a lawyer will not be required.

The information below discusses the details of the various orders for forensic procedures that can be sought and granted which are laid down in the Crimes Forensic Procedures Act (CFPA) 2000 (NSW).

The person who is most likely to request a forensic procedure and who has authorisation to do so will be the police officer who is in charge of the particular police station or a police officer who is taking part in the investigation of an offence.

There are Three Types of Forensic Procedures

1. An intimate forensic procedure 
2. A non-intimate forensic procedure
3. A buccal swab, which is a sample of saliva taken from inside a person’s mouth.

The CFPA states that forensic procedures do not include intruding into any cavity belonging to a person with the exception of the mouth or allowing a sample to be taken as a means of establishing that person’s identity.

Giving Consent for a Forensic Procedure

There is no provision under the CFPA for conducting a forensic procedure under the following circumstances.

• A person under the age of 10 years.
• A child who is over 10 years but hasn’t reached the age of 18 years is not allowed to personally give consent for the conducting of a forensic procedure.
• A person who is considered to be incapable as an adult, because he or she does not know that a forensic procedure is not permitted to give consent for a forensic procedure.
• A forensic procedure may only be carried out on an adult who is a suspect and is able to give informed consent.

Under section 10 of the CFPA there is specific information related to a Torres Strait Islander and an Aboriginal person.

If a suspect is not able to give consent or fails to consent to a forensic procedure, under section 23 it is possible to make an order if the person is not classified as an incapable person or a child.

An order may be made by a senior police officer for a non-intimate forensic procedure or an authorised justice if the case is an interim order or a magistrate if it is a final order.

The Application for An Interim Order for Forensic Procedure

Section 33 of the CFPA says that an authorised applicant can carry out a forensic procedure without delay and does not need to obtain an order from a magistrate or bring the suspect in front of an authorised justice. The sample under this interim order cannot be analysed until a final order is made unless it is likely to become unusable.

A Final Order under Section 26 (CFPA)

An authorised applicant may place an application with a magistrate for an order that authorises the conducting of a forensic procedure as long as the application is made in writing and is supported through evidence under oath or through an affidavit. The sort of forensic procedure to be conducted should be detailed and the suspect has to be present.

If an application is refused by a magistrate no further application can be made unless more evidence is produced. An authorised applicant might be able to apply to a magistrate for an order which gives him or her the authority to conduct a second forensic procedure on a suspect if the first sample did not prove to be sufficient due to contamination.

Who Can Order a Forensic Procedure?

A senior police officer can order a non-intimate forensic procedure on a suspect, but not on an incapable person or a child or a person who has failed to give consent.

If however, there are good grounds that a suspect did commit a named offence and that a forensic procedure may produce useful evidence then it can be carried out.

If a suspect is not an incapable person or a child, and has been requested to submit to a buccal swab but fails to give consent, a senior police officer might order the taking of a hair sample if it can be justified. Pubic hair cannot be taken as a sample in these circumstances.

Interim Order by an Authorised Justice

If a person fails to give consent, or is not in the position to give consent to a forensic procedure, an authorised justice can enforce an interim order giving the authority to the conducting of a forensic procedure. However the authorised justice has to be satisfied that any likely evidence from the forensic procedure may be lost or destroyed if the procedure is not carried out immediately. Once the authorisation is given the forensic procedure must not be delayed.

Final Order by a Magistrate

If a person is not able to or fails to give consent to a forensic procedure, a magistrate might order the conducting of a forensic procedure if there are reasonable grounds to assume that a forensic procedure will throw light on who committed the offence.