The Law Handbook 2024

Chapter 3.5: Arrest, search, interrogation and your rights 189 15 years and under 18 years (see ‘Forensic procedure authorised by a senior police officer’, above). The conduct of forensic procedures cannot be ordered in relation to children less than 10 years of age. A court order can only be sought where the young person is suspected of having committed, or has been charged with, one of the indictable offences specified in section 464U(3) of the Crimes Act (Vic). In addition to satisfying one of the tests for the ordering of a forensic procedure upon an adult, the Children’s Court must also be satisfied that in all the circumstances the making of the order is justified (this includes considering the seriousness of the offence, the degree to which the child is said to have been involved, and the child’s age). As with adults, the young 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 the Crimes Act (Vic) (sub-s 464U(7), (8)). Urgent court order to conduct a forensic procedure Police can also apply to the court for an urgent order to conduct a forensic procedure by audio or audiovisual link if they believe, on reasonable grounds, that the sample or evidence sought from the procedure is likely to be lost if the procedure is delayed. This process cannot be used in relation to a blood sample. Before making an order for the conduct of the procedure, the court must be satisfied that the sample or evidence would be lost if the procedure was delayed by the need to apply in person for the order. Any order made as a result of an audio or audiovisual link application operates as an interim order until a further hearing, which will proceed in the manner outlined above. Conducting a forensic procedure on a person with a ‘mental impairment’ Where a suspect cannot give informed consent due to a ‘mental impairment’, police must apply to a Magistrates’ Court if they wish the suspect to undergo a forensic procedure. See Chapter 8.3: Disability and criminal justice. Execution of a court order to conduct a forensic procedure The Chief Commissioner of Victoria Police may authorise a police officer or custody officer to supervise the taking of a DNA profile sample. Taking a DNA profile sample or conducting a forensic procedure must be done in the least intrusive way using the least painful method that is practicable in the circumstances and that affords reasonable privacy to the subject person. A forensic procedure involving an intimate sample, physical examination of an intimate part of the body, or a dental impression must be conducted by a qualified doctor, nurse, midwife or dentist. The subject person can request that the procedure be conducted by, or in the presence of, a doctor or dentist of their choice. Any intimate sample or DNA profile sample will need, if practicable, to be taken by a doctor or nurse of the same sex as the subject person. The circumstances of the conduct of the procedure must afford reasonable privacy to the subject person. If practicable, the police members present to assist with the conduct of the procedure should be of the same sex as the subject person. A person may elect to provide a mouth scraping as an alternative to a DNA profile sample or a hair sample if the hair sample sought is not a pubic hair sample. A person may elect to take a mouth scraping themself, provided the officer authorised to supervise the taking of the sample considers this to be appropriate. Also, the person’s consent to take their own scraping must be in writing and signed by them or recorded by audio or audiovisual recording. Immediately before the sample is taken or the procedure is conducted, police must inform the subject person that they do not have to answer any questions asked by the doctor (or other person taking the sample or conducting the procedure) but that anything they do say can be used in evidence. The giving of this warning and the subject person’s response must be taped (audio or audiovisual) or recorded in writing and signed by the subject person or, if they refuse to sign, by an independent person. A police officer (assisted by others if it is considered to be necessary) may use reasonable force to assist the person taking the sample or conducting the procedure. If practicable, the police officer(s) involved must be of the same sex as the subject person and not be involved in the investigation of the related offences.