Forensic Procedures Flashcards
What does Forensic procedure mean? Section?
S3. An intimate forensic procedure or a non-intimate forensic procedure.
What is not a Forensic Procedure?
- Intrusion into body cavities except mouth.
- Taking of sample for sole purpose of ID only.
What are intimate forensic procedures?
- Any examination, photographing or sampling by any means from the private parts
- Sample of pubic hair
- Sample of blood
- Dental impression
- Buccal swab administered by another
When can intimate forensic procedure be carried out?
only in relation to a prescribed offence.
Non intimate forensic procedures?
- Sample of hair (not pubic)
- photograph of body parts (not private)
- Measurement of persons body whether or not involving the marking of persons body (not private)
- sample under fingernail or nail itself
- Hand, foot, finger or toe print
- Self administered Buccal swab.
Is a covert sample a forensic procedure?
No
Categories of people under S3?
Adult - 18 or above
Child - 10 - under 18
Incapable person - Adult who
a) Is incapable of understanding general nature and effect of FP or;
b) incapable of indicating whether they onsent or do not consent to FP.
Who can consent to a forensic procedure? Sections?
Adults - informed consent to any forensic proceudre if they are suspets S7 or volunteers S76
Who can never consent? Section?
Children or incapable persons who are SUSPECTS. S7(2)
S24 C(FP) Act?
Final order for carrying out forensic procedure
final order is decided on what standard of proof?
Balance of probs
Conditions for a final order?
- Person is suspect
- Under arrest & not consented or
- Not under arrest & not consented
- Can apply to child or incapable person
- Suspected of committing a preseribed offence (intimate) or ‘an offence’ (non-intimate).
- Reasonable grounds to believe procedure might produce evidence tending to confirmor disporve the suspect committed the offence.
- Request for consent is justified inall the circumstances.
24(4)?
Justified in all the circumstances.
What are the circumstances of justification? 9 items. case law?
24 (4).
a) gravity of the offence
b) Seriousness of circumstances
c) the degree participated in
d) age, cultural background
e) best interests of child or person
f) other ways of obtaining evidence
g) reasons suspect gave for refusing
h) period suspect has been in custody
i) other matters
S 32?
Interim order may be made by authorised officer if;
- Must be a suspect and S23 applies AND
- Probative value of evidence is likely to be lost or destroyed if there is a delay.
- Authorised officer satisfied sufficient evidence to convince magistrate.
- Interim order operates until interim order is confirmed or disallowed.
Authorised Officer?
Same as LEPRA
Section 3 of LEPRA?
Authorised Officer;
a) Magistrate
b) Registrar local court
c) Employee of Attorney Generals Department authorised by Attorney General as an authorised officer for purposes of this Act.
S41 Crimes (Forensic Procedure) Act?
Arrest of suspect for forensic procedure.
What do need to satisfy for s41?
a) that the arrest is necessary to ensure that the forensic procedure can be carried out, or
(b) that the issue of the warrant is otherwise justified.
When can warrant be issued?
Only if satisfied arrest is necessary to carry out forensic procedure or issue of warrant is otherwise justified.
When can’t issue warrant?
If one has previously been issued for that FP.
Does Evidence Act apply?
yes
Untested Former Offenders requirements?
- Previously served a sentence of imprisonment for SIO. (not control order)
- Since beenserved with CAN fo IO. (can be past CAN, since finalised)
- DNA profile is not in the offenders index of the DNA Database. (Need statement from FIRM)
- Must be Justified in all the circumstances.
What also applies to FP other than evidence Act?
Common law rules of evidence.
What does s8 evidence Act say?
Evidence Act does not affect operation of the provisions of any other Act.
Can we cross examine deponenet of an affidavit for FP hearings? Law?
Yes, S8 evidence Act gives precendence for S30 CFPA (procedure of hearing for FP)
Ts v Constable James?
The evidence Act applies to FP hearings. FP hearings are not exempt proceedings under Telecommunications (Interception Acces) Act
S23 C(FP) Act?
Circumstances which mag/auth officer may make order for FP.
- Under arrest non consent
- nont under arrest non consent
- child/incapable person
Walker + Budgen?
Police must have DNA sample from scene prior to being able to get FP granted.
