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KAYLA REVISION > Forensic Procedures > Flashcards

Forensic Procedures Flashcards

1
Q

What is a forensic procedure

A

Section 3 crimes forensic procedures act 2000 (NSW) means an intimate forensic procedure or a non intimate forensic procedure but not intrusion into body cavities (except mouth) and taking a sample for the sole purpose of ID only.

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2
Q

What is an intimate forensic procedure?

A

Section 3 crimes forensic procedure act

An intimate forensic procedure is any examination, photographing or sampling by means from the private parts, sample of pubic hair, blood dental impression buccal swap administered by another

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3
Q

What are the requirements for an intimate forensic procedure

A

Can only be carried out it relation to a prescribed offence (inevitable offence or offence prescribed by the regulations).

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4
Q

What is a non intimate forensic procedure?

A

Section 3 crimes forensic procedure act: a non intimate forensic procedure is a sample of hair (not pubic hair), photograph of body (Not private parts) measurement of a person’s body (whether or no marking the person’s body), sample under finger nail or nail itself, hand, food, toe prints, self administered buccal swab.

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5
Q

Is a finger print an intimate or non intimate forensic procedure

A

Non intimate

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6
Q

Is a hair sample intimate or non intimate forensic procedure

A

Non intimate

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7
Q

Is a sample of pubic hair intimate or non intimate

A

Intimate

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8
Q

Is a photograph of a nose intimate or non intimate forensic procedure

A

Non intimate

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9
Q

Is a photograph of a person’s buttocks an intimate or non intimate forensic procedure

A

Intimate

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10
Q

Is measuring a person’s arm intimate or non intimate

A

Non intimate

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11
Q

Is a buccal swab intimate or non intimate forensic procedure

A

Non intimate if suspect self administers the swab. Intimate if someone else administers the swab

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12
Q

Are fingerprints and photographs governed by the crimes forensic procedure act? Cite authority.

A

No. Section 133 LEPRA provides police with the power to take photographs and fingerprint people in lawful custody to identify suspect and provide evidence of the commission on the offence.

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13
Q

What about a DNA sample taken from a cigarette butt or can of drink is this a forensic procedure?

A

No. Forensic Procedures only relate to samples taken from a person. R v Jason Michael Kane.

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14
Q

What conditions do police require to conduct a non voluntarily forensic procedure?

A

Section 11 crimes forensic procedure act
The person is a suspect
The person gives informed consent to the procedure
There are reasonable grounds to believe procedure might produce evidence tending to confirm or disprove the suspect committed the offence
The request for consent is justified in all the circumstances
Cannot be a child or incapable person

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15
Q

Who is a suspect ?

A

Section 3 crimes forensic procedure act 2000 (NSW) defines a suspect as
A person who police officer suspects on reasonable grounds has committed an offence, a person charged with an offence or a person summoned to appear before a court in relation to an offence alleged to be committed by them

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16
Q

Can there be more then one suspect

A

Yes AP v Burrell

17
Q

What’s important about the case of Helen Maquire and Jason Beaton?

A

Case relates to the requirement that a person be a suspect for a forensic procedure to be carried out. Held that police never suspected Helen Maquire and the forensic procedure was to effectively rule her out and prove it was her son who committed the offence

18
Q

What is important about the case of r v white?

A

Related to forensic procedures act only applying to procedures on people.

The accused discarded a cigarette butt. He was never a suspect but the DNA from the cigarette butt was analysised and linked him to an offence. The DNA was discarded voluntarily, consent not required, a suspect nor required and the crimes forensic procedure act does apply

19
Q

Who can consent to a forensic procedure

A

Adults can give informed consent if they are a suspect section 7 or
Adults if they are volunteers s76.

Children and incapable person’s can not consent if they are a suspect a court order is required s7(2)

20
Q

Who can order a forensic procedure if an adult does not consent and what is required?

A

A senior police officer may order a forensic procedure under section 18 crimes forensic procedure act.

Requirements:
Person is a suspect
Prescribed offence under the regulations
Reasonable grounds to believe procedure might produce evidence tending to confirm or disprove the suspect committed an offence
The request for consent is justified in all the circumstances
AND
Suspect is not a child
Suspect is under arrest
The suspect does not consent and
The procedure is a non intimate forensic procedure

21
Q

When will a magistrate grant a forensic procedure order?

A

Section 24 crimes forensic procedure act:
Prosecution must prove on the balance of possibilities:
1. The person is a suspect
2. The suspect is does not consent or can not consent (can be under arrest or not under arrest can also be a child or incapable person)
3. Suspected of committing a prescribed offence (for intimate forensic procedure) or an offence (non intimate)
4. Reasonable grounds to believe procedure might produce evidence tending to confirm or disprove the suspect committed the offence and
5. The request for the order is justified in all the circumstances

22
Q

What is required for a forensic procedure order application

A

Section 26 crimes forensic procedure act
Requires written application by police officer supported by evidence on affidavit or path specifying the type of order sought and satisfy the requirements under section 24

23
Q

Does a suspect have to be present for a forensic procedure application?

A

No but they must be there for the hearing if order is disputed

24
Q

Does a DNA profile have to be available for comparison?

A

No but must balance the invasivness with interests of community and be justified in all the circumstances walker v burden.

25
Q

What does justified in all the circumstances mean cite authority?

A 
Codified by Walker v Bugden section 24(4) crimes forensic procedure act sets out that the magistrate must balance the public interest k  upholding the suspect physical integrity having regard to the following 
A) gravity of the offence 
B) the seriousness of the circumstances 
C) the degree participated in 
D age cultural back ground
E).Best interests of the child/person
F) other ways of obtaining evidence 
G) reasons the suspect given for refusing 
H) period suspect has been in custody 
I) other matters
26
Q

What is the authority of Plassas v person and Jordan Gibson v new authority for

A

That there is prejudice in old DNA samples being used in court and it is in the interests of just for a new forensic procedure to occur to ensure that there are no errors in matching the sample taken and the crime scene DNA and for the old hit to be used in court prejudicing the accused as implication of previous criminal offences.

27
Q

What is an interim forensic procedure order?

A

An interim forensic procedure order may be made by an authorised officer if:
There is a suspect and the probative value of any evidence is likely to be lost or destroyed if there is delay and the authorised officer is satisfied sufficient evidence to convince the magistrate justified in all the circumstances.

(Generally used for intimate samples?

28
Q

Who makes an interim forensic procedure order?

A

Section 33 crimes forensic procedure act require an interim.prder to be made by an authorised officer (magistrate, registrar or employee of attorney general’s department)

29
Q

How is an interim forensic procedure order made?

A

Section 33 crimes forensic procedure act

Authorised applicant applies in person supported by evidence on path or affidavit specifying the time of procedure

30
Q

What happens with a sample taken under an interim forensic procedure order?

A

S38 crime forensic procedure act
A sample taken under an interim forensic procedure order must not be analysed unless the sample is likely to perish before a final order is made of a final order is made.

Interim order operafsz until order confirmed or disallowed

31
Q

Can you arrest for a forensic procedure?

A

Section 41 crime forensic procedure act Requires police to apply for a warrant for a person to be arrested for a forensic procedure if not already under arrest

Required evidence on oath accompanied by affidavit to carry out forensic procedure or issue warrant if otherwise justified, Can not issue warrant if one has previously been issued regarding that forensic procedure.

32
Q

What rules of evidence apply to forensic procedures cite authority

A

TS v Con James 2014

  • evidence act applies and civil law rules of evidence apply
  • forensic procedures are civil proceeding
  • section 8 evidence act gives precedence to section 30 forensic procedure act gives a right to rely on affidavit evidence
  • reasonable grounds for suspicion may include what was known/ reasonable capable of being known at the time
  • telephone intercept material Not available
  • applicant has the onus of proving any belief or suspicion on the balance of probabilities 103 cfpa

KAYLA REVISION (5 decks)

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