Forensic Procedures

Question 1

What is a forensic procedure

Answer 1

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.

Question 2

What is an intimate forensic procedure?

Answer 2

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

Question 3

What are the requirements for an intimate forensic procedure

Answer 3

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

Question 4

What is a non intimate forensic procedure?

Answer 4

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.

Question 5

Is a finger print an intimate or non intimate forensic procedure

Answer 5

Non intimate

Question 6

Is a hair sample intimate or non intimate forensic procedure

Answer 6

Non intimate

Question 7

Is a sample of pubic hair intimate or non intimate

Answer 7

Intimate

Question 8

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

Answer 8

Non intimate

Question 9

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

Answer 9

Intimate

Question 10

Is measuring a person’s arm intimate or non intimate

Answer 10

Non intimate

Question 11

Is a buccal swab intimate or non intimate forensic procedure

Answer 11

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

Question 12

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

Answer 12

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.

Question 13

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

Answer 13

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

Question 14

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

Answer 14

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

Question 15

Who is a suspect ?

Answer 15

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

Question 16

Can there be more then one suspect

Answer 16

Yes AP v Burrell

Question 17

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

Answer 17

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

Question 18

What is important about the case of r v white?

Answer 18

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

Question 19

Who can consent to a forensic procedure

Answer 19

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)

Question 20

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

Answer 20

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

Question 21

When will a magistrate grant a forensic procedure order?

Answer 21

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

Question 22

What is required for a forensic procedure order application

Answer 22

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

Question 23

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

Answer 23

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

Question 24

Does a DNA profile have to be available for comparison?

Answer 24

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

Question 25

What does justified in all the circumstances mean cite authority?

Answer 25

``` 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 ```

Question 26

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

Answer 26

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.

Question 27

What is an interim forensic procedure order?

Answer 27

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?

Question 28

Who makes an interim forensic procedure order?

Answer 28

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)

Question 29

How is an interim forensic procedure order made?

Answer 29

Section 33 crimes forensic procedure act | Authorised applicant applies in person supported by evidence on path or affidavit specifying the time of procedure

Question 30

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

Answer 30

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

Question 31

Can you arrest for a forensic procedure?

Answer 31

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.

Question 32

What rules of evidence apply to forensic procedures cite authority

Answer 32

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