The Law Handbook 2024

188 SECTION 3: Fines, infringements and criminal law • a Magistrates’ Court orders the procedure be conducted; or • a senior police officer authorises the taking of a non-intimate sample of a person not under 18 years of age. Informed consent for a forensic procedure A person gives informed consent to the conduct of a forensic procedure only after the police have explained (s 464S Crimes Act (Vic)): a the purpose for which the sample is required; b the procedure for taking the sample; c that the person can ask for a doctor or nurse of their choice to take the sample or be present when it is taken; d the crime they are suspected of having committed; e that the procedure may produce evidence to be used in court and the information obtained will be placed on a DNA database to be used for the purposes for which such DNA databases may be used; f that the person can refuse to undergo the procedure; and g that if the person refuses, police can apply for a Magistrates’ Court order to conduct the procedure or, if the sample sought is a non-intimate sample, ask approval from a senior police officer. A person in a prison, police jail or youth justice centre is deemed to have refused consent if they refuse or fail to give consent within 24 hours after a police officer has explained the matters set out in a–g above. Court order to conduct a forensic procedure A Magistrates’ Court order can only be sought if the person is a ‘relevant suspect’ as defined in section 464(2) of the Crimes Act (Vic). A relevant suspect is a person of or above the age of 18 who is suspected of having attempted to commit, or having committed, or has been charged with, an indictable offence. Before ordering that a procedure be conducted, a court will have to be satisfied on the balance of probabilities (i.e. more likely than not) that there are reasonable grounds to believe that the suspect has committed the indictable offence in question and that any of the following circumstances apply: • material from the offender’s body has been found at the scene of the crime, on the victim, or on some object or person associated with the offence; • there are reasonable grounds to believe that, because of the nature of the offence or the victim’s injuries, there will be material from the victim on the offender or on an object connected to the offence; • the victim has not been found and there are reasonable grounds for believing material from the victim’s body may be on a suspect; or • the conduct of the procedure may be relevant to determining the paternity of a child conceived allegedly as a result of a rape, an offence of incest, or a sexual offence against a child. The person from whom police want to take a body sample is not a party to the proceedings and as such cannot cross-examine police witnesses or call witnesses of their own. They are limited to addressing the court, either personally or through their lawyer, on the specific issues set out in section 464T(3) of the Crimes Act (Vic). Forensic procedure authorised by a senior police officer A senior police officer may authorise the taking of a non-intimate sample from a person not under 18 years of age who has refused to give a non-intimate sample. The person must not be incapable of giving informed consent, there must be reasonable grounds to believe the person committed the offence with respect to which authorisation is sought, and authorisation must be justified in all the circumstances (ss 464SA, 464SB Crimes Act (Vic)). A police officer may request a DNA person to give a DNA profile sample. The sample may be taken if the person (in the case of a child, also their parent or guardian) gives informed consent. In the absence of consent, a senior police officer can authorise the taking of the sample. This authorisation can only be given if the senior police officer is satisfied that the taking of the sample is justified considering all the circumstances (ss 464SC–464SF Crimes Act (Vic)). Conducting a forensic procedure on a young person A forensic procedure can only be conducted on a young person aged 10–17 years (inclusive) if it is ordered by a Children’s Court. However, a senior police officer can authorise the taking of a DNA profile sample from a person aged