The Law Handbook 2024

190 SECTION 3: Fines, infringements and criminal law The taking of a DNA profile sample or an intimate sample – other than a blood sample or a scraping from the mouth – must be audiovisually recorded if this is practicable and if the suspect consents. Otherwise, the taking of the sample must be witnessed by an independent doctor or dentist (as appropriate) or by the doctor or dentist chosen to be present by the suspect. The conduct of any other forensic procedure must be audiovisually recorded, if practicable, or witnessed by an independent person. An independent person who has witnessed the procedure must endorse the order with their name and signature. Copies of audio and audiovisual recordings must be given to the subject person or their lawyer within seven days. Admissibility of forensic procedure evidence Evidence from a DNA profile sample or a forensic procedure is not admissible if the steps outlined above have not been followed. This includes steps for the conduct of procedures, the analysis of samples obtained from the procedures, and for any sample or information that should have been, but has not been, destroyed. However, the courts have discretion to admit evidence that would otherwise not be admissible if the prosecution satisfies the court that on the balance of probabilities the circumstances justify the evidence being admitted. The accused can consent to the evidence being admitted. Taking a forensic sample after conviction Police can apply to the court for a forensic sample of any person found guilty of committing a ‘forensic sample offence’, or of conspiracy or incitement to commit, or attempting to commit, a forensic sample offence. The court may order the person to undergo a forensic procedure for the taking of a sample from any part of the body. Such orders are now routinely made at the time of sentencing. A forensic sample offence is any offence specified in schedule 8 of the Crimes Act (Vic). Forensic sample offences include: • murder; • manslaughter; • causing serious injury intentionally; • causing serious injury recklessly; • intentionally causing a very serious disease; • kidnapping; • rape; • assault with intent to rape; • incest; • sexual penetration, committing an indecent act or having a sexual relationship with a child under 16 years; • sexual penetration of a child aged 16 or 17 years; • indecent assault with serious violence or that involved an act likely to seriously or substantially degrade or humiliate the victim; • sexual relationship with a child under the age of 16 or a person with impaired mental functioning; • facilitating sexual offences against children and child pornography offences; • abduction or detention; • bomb hoaxes and offences connected with explosive substances; • arson and intentionally or recklessly causing a bushfire; • armed robbery and robbery; • burglary or aggravated burglary; and • trafficking, cultivating or administering drugs. Destruction of identifying material Police must destroy any information obtained from an analysis of samples obtained as a result of a forensic procedure that might identify the person from whom the sample was taken, if either: • the person has not been charged with a relevant offence within 12 months of the sample being taken; or • the person has been charged and then not convicted, except where found not guilty because of mental impairment, and the period during which the prosecution can appeal has finished. However, police can apply to a court for an order to retain the sample and any related information. If a court grants such a police application, it must give reasons and a copy of the order must be given to the person upon whom the procedure was conducted. No person is allowed to use any sample, or any information derived from a sample, that should have been destroyed. To do so is an offence. Forensic procedures and Commonwealth offences The conduct of forensic procedures under Commonwealth law follows the general procedure