3. Case Study : Criminal Case

3.3. Forensic Evidence

Forensic Evidence

There become a time where a person in custody might be required to give forensic evidence. Following the introduction of the Crimes (Forensic Procedures) Act 2000 (NSW), there are clear rules as to how police may obtain bodily samples for forensic purposes. A distinction is made between intimate and non-intimate procedures. 

 

Non-intimate procedures 

A non-intimate sample might consist of: 

  • fingerprints
  • hair 
  • nail scrapings 
  • body moulds 
  • photographs (s 3(1)). 

A non-intimate procedure can be carried out under an order from a senior police officer (Crimes (Forensic Procedures) Act 2000 (NSW) s 17).

 

Intimate procedures 

An “intimate forensic procedure” includes: 

  • examination of the genitals 
  • taking a sample of blood, saliva or pubic hair 
  • taking dental impressions (s 3(1)). 

 

To carry out such procedures the police officer must have either: the consent of the person from whom they wish to obtain the sample, or a court order (ss 7, 22). A sample that has not been obtained in accordance with the Act is not admissible as evidence in court (s 82). 

 

Intimate procedures and Aboriginal people 

If the police wish to carry out an intimate procedure on an Aboriginal person, an interview friend (a support person chosen by the person) must be present when the person is asked for their consent, unless they have expressly and voluntarily waived their right to have an interview friend present. The police must also inform the person that the relevant Aboriginal legal service will be notified of the proposal to ask for consent (s 10). An interview friend or legal representative must be present when the procedure is being carried out on an Aboriginal person (s 55).

 

Reasons for the provisions 

The special provisions in relation to Aboriginal people arise in part from an inquiry by the NSW Legislative Council Standing Committee on Law and Justice into the Crimes (Forensic Procedures) Act 2000 (NSW)  . The Aboriginal and Torres Strait Islander Commission and the NSW Aboriginal Land Council made submissions to this inquiry, pointing out that bodily samples are used by Aboriginal people for spiritual purposes and as a result Aboriginal people may be particularly reluctant to give such samples.