The Law Handbook 2024

Chapter 3.5: Arrest, search, interrogation and your rights 187 Body samples and forensic procedures Police powers relating to forensic procedures Police have the power to request a suspect to undergo a forensic procedure where there are reasonable grounds to believe the result of the procedure will tend to confirm or disprove the suspect’s involvement in an indictable offence. Under both the Crimes Act (Vic) and the Crimes Act (Cth) there are specific legislative powers for taking forensic material from suspects. The Commonwealth law is found in sections 23WA to 23XWA of the Crimes Act (Cth), and is dealt with briefly below. The powers of police to seek to have a suspect undergo a forensic procedure depend in part on the suspect’s age. The following discussion focuses on the requirements of the Victorian law, which is found in sections 464R–464ZL of the Crimes Act (Vic). What are forensic procedures? Forensic procedures include: • taking intimate samples: pubic hair; anal, external genital or breast swabs; saliva; mouth scrapes or dental impressions; • taking non-intimate samples: hair; fingernail or toenail scrapes; external swabs or washings; and • taking other samples or any other procedures or physical examinations of the body (but, under the Victorian Act, do not include taking fingerprints or a DNA profile sample). Definition of a DNA person A DNA person (s 464(2) Crimes Act (Vic)) is a person who is: • aged 18 years old or over, who is suspected of having attempted to commit, having committed, or has been charged with or summonsed for, an indictable offence; or • aged 15 years old and under 18 years old, who is suspected of having attempted to commit, having committed, or has been charged with or summonsed for, a DNA sample offence set out in schedule 9 of the Crimes Act (Vic). DNA profile samples A DNA profile sample is a sample of blood, hair (but not pubic hair) or saliva, or a scraping from the mouth of a person. The sample is taken for the purpose of deriving a DNA profile. DNA sample offences include: • child homicide, murder or manslaughter; • sexual offences; • kidnapping; • armed robbery; • culpable driving causing death, dangerous driving causing death or serious injury, or dangerous or negligent driving while pursued by police; • aggravated burglary, aggravated home invasion or home invasion; • aggravated carjacking or carjacking; • arson causing death; • trafficking a commercial quantity of a drug of dependence; • cultivating a commercial quantity of a narcotic plant; and • recklessly or intentionally causing serious injury in circumstances of gross violence or intentionally causing serious injury. The senior police officer must be satisfied that the DNA person is not incapable of giving informed consent, they or a relevant adult have refused to give consent, there are reasonable grounds to suspect the DNA person has committed an indictable offence (in the case of a child aged 15 years and under 18 years, a DNA sample offence) and taking the sample without consent is justified in all the circumstances (s 464SE Crimes Act (Vic)). A senior police officer must not authorise a DNA profile sample to be taken if there is an application for an order before a court for the person to give a sample or authorisation has previously been refused by a senior police officer in relation to the same matter and on the same grounds. Conducting a forensic procedure on an adult A forensic procedure can be conducted if either: • the suspect gives their informed consent to the conduct of the procedure; before a suspect can be said to have given informed consent, police have to provide certain information (see ‘Informed consent’, below);