The Law Handbook 2024

Chapter 3.5: Arrest, search, interrogation and your rights 191 set out under the Victorian legislation. That is, a police officer can obtain a forensic sample with the informed consent of the suspect. Where such consent is not forthcoming, an authorised police officer may seek a court order for the conduct of the procedure. The distinction between an intimate and a non- intimate sample or procedure is also present in the Crimes Act (Cth), however there are some slight differences in definition and approach. There are some limited circumstances where a police officer of the rank of sergeant or higher may order a non-intimate forensic procedure to be carried out on a suspect. The Crimes Act (Cth) imposes time limits for carrying out forensic procedures and also imposes special requirements in relation to Aboriginal and Torres Strait Islander people. Photographs, voice and handwriting records Everyone can rely on the common law privilege against self-incrimination. Unless ordered by a court or an Act of parliament, you don’t have to say or do anything that could later be used against you in court. This privilege extends to attempts by police to obtain evidence (other than admissions of guilt) that can be used to support their case against a suspect. Handwriting samples and voice prints are useful and commonly used methods of police identification. Very often, police gather this type of information for purposes other than pre-trial investigations. The police may want to have the information available for future cases. The police probably do have power under the common law to use compulsion to photograph a person for the purpose of identification. This power does not extend to using compulsion for photography of a person for a purpose other than identification, such as recording injuries or other markings that may indicate guilt. See the decision of the High Court R v Ireland [1970] HCA 21 at 333–4. In certain circumstances, police have the power to take ‘identification material’ from a suspect being held in relation to a Commonwealth offence. Identification material includes fingerprints (see ‘Fingerprints’, above), voice recordings, handwriting samples, and photographs (including video recordings). Such identification material can be taken with the suspect’s written consent. However, the police may take the identification material without the suspect’s written consent if they reasonably believe that it will: • establish who the suspect is; • identify the suspect as the person who has committed the relevant offence or some other offence; or • provide evidence in relation to the relevant offence or some other offence. Reasonable force can be used by police to take such identification material. The different rules that apply in relation to taking fingerprints from young people aged from 10–18 years who are suspected of a Commonwealth offence (see ‘Fingerprints’, above) also apply here. At common law, police can probably photograph a suspect without their consent, but that suspect can lawfully take evasive actions to avoid the photo (short of assaulting police). The Law Reform Commission has said that: …the taking of photographs and fingerprints involves a degree of embarrassment and indignity. So too does the retention in police records of such information. In the case of an innocent person, the very knowledge that such information is so stored may be a source of anguish and discomfort. That discomfort may be particularly well founded in the case of photographs. The legal rights and powers in this area remain unclear. As a matter of practice, police will take photographs as they see fit. A suspect who does not want to be photographed should say so clearly and, if need be, should ask to lodge a complaint with the senior officer present (see Chapter 12.4: Complaints against Victoria Police). There is no present or proposed procedure for the enforcement of such a claim to privacy. In practice, the police usually comply with such requests if a person has no previous record, but if they refuse there is little that can be done. Identification parades Identification parades for Victorian offences Identification parade evidence No one has to take part in an identification parade. Failure or refusal to participate may be admissible evidence against an accused person. This is not because an inference of guilt can be drawn from the