Crimes (Forensic Procedure) Act 2000

Note:

Unless otherwise stated, all references to sections in this chapter are to the Crimes (Forensic Procedures) Act 2000.

[58-000] Nature of application

The types of forensic procedure applications which may come before the Local Court under Pt 4 Local Court Act 2007 and Pt 8 Div 2 Local Court Rules 2009 are discussed below.

Note:

A magistrate must give specific reasons when determining an application, having regard to the evidence before the court.

1. 

Interim order application (Order form “A”)

An application before an “authorised officer” under s 32 for an interim order for the carrying out of a forensic procedure that must be carried out without delay. A magistrate is an “authorised officer” under the Act: s 3.

A suspect, including a child, does not have a right to a hearing when an interim order is made: Kindermann v JQ [2020] NSWSC 1268 at [37]. The special requirements which apply to a child (as well as certain others) for a final order do not apply to interim orders: Kindermann v JQ; see further [58-040] Procedural requirements, below, and [38-020] Criminal procedure generally.

2. 

Final order — confirmatory/disallowance application (Order form “B”)

Where an authorised officer has made an interim order it operates until a magistrate at a hearing held under Pt 5 ss 24–31 confirms or disallows the interim order, whether or not the suspect consents to the carrying out of the forensic procedure after the interim order is made, but before it is confirmed or disallowed: s 32(3). However, a sample taken upon the making of an interim order is not to be analysed unless a final order is made, or the sample is likely to perish: s 38.

Note:

the terms “confirm” and “disallow” would not admit a power to vary the interim order, for example, by adding another procedure.

The interim order cannot be withdrawn and it must be confirmed or disallowed after a consideration of the matters under s 24: Kerr v Commissioner of Police (NSW) [2001] NSWSC 637 at [57] (which refers to s 25 which preceded s 24).

Further, whether or not the samples were taken in the fixed time by an authorised officer does not bear upon the legality and validity of the order made by the justice: [42].

Where the suspect is a child, an incapable person, or a person who identifies as an Aboriginal or Torres Strait Islander person, and they are present at the hearing, an “interview friend” must be present and the suspect has a right to legal representation: ss 4, 30; Kindermann v JQ at [31]–[32]. See further [58-040] Procedural requirements, below.

3. 

Final order (original application) (Order form “B”)

An application before a magistrate in the first instance under s 26 for an order under s 24.

4. 

Repeated application (Order form “C”)

An application before a magistrate for a second or subsequent time for an order under s 27(3) on a suspect on whom a forensic procedure has already been carried out under s 24.

5. 

Convicted serious indictable offender application (Order form “D”)

An application before the court under ss 62–63, for non-intimate (ss 62(1)(c) and 74) or intimate (ss 63(1)(b) and 74) forensic procedures on a person who is serving a sentence of imprisonment for a serious indictable offence in a correctional centre or other place of detention.

A serious indictable offence is defined in s 3 as an offence that carries life or a maximum penalty of 5 years imprisonment or more under the law of NSW or a like offence in a participating jurisdiction.

6. 

Untested former offender application (Order form “E”)

An application before the court for non-intimate (ss 75B–75L) or intimate (ss 75C–75L) forensic procedures on a person who is an untested former offender.

An untested former offender is defined in s 75A(3) as a person who has served a sentence of imprisonment for a serious indictable offence in a correctional centre or other place of detention and who is served with a court attendance notice in respect of an indictable offence, whose DNA profile does not appear to be contained in the offenders index of the DNA database system (as defined in s 90).

The reference to a person who “is served” with a court attendance notice does not require that the offence alleged in the CAN be undetermined at the time of making the application. Rather, it should be construed as meaning “any person upon whom a court attendance notice has been served”: Daley v Brown [2014] NSWSC 144 at [76]–[77].

7. 

Untested registrable persons application (Order form “F”)

An application before the court for non-intimate (ss 75Q–75ZC) and intimate (ss 75R–75ZC) forensic procedures on a person who is an untested registrable person.

An untested registrable person is defined in s 75P(3) as a registrable person under the Child Protection (Offenders Registration) Act 2000, who is required to comply with reporting obligations under that Act, and whose DNA profile does not appear to be contained in the offenders index of the DNA database system (as defined in s 90).

8. 

Volunteers and other persons application (Order form “G”)

An application before the court in circumstances where the applicant cannot obtain informed consent of the parent or guardian of a volunteer who is:

  • a child (ss 76(2A)(b) and 80), or

  • an incapable person (ss 76(2B)(b) and 80).

Section 76 provides for the following categories of “volunteer” s 76A:

  • a person (other than a child or an incapable person) who consents to a request by a police officer to undergo a forensic procedure

  • a child who consents and whose parent or guardian consents to a request by a police officer to undergo a forensic procedure, and

  • an incapable person whose parent or guardian consents to a request by a police officer to undergo a forensic procedure but is not a suspect or an excluded volunteer.

    The circumstances in which a person is an “excluded volunteer” are set out in s 76A.

9. 

Children under 10 years of age application (Order form “H”)

An application before the court under s 81F for an order carrying out a forensic procedure on a child under the age of 10 years for the purpose of investigating an offence, assisting in locating or identifying a missing person, or assisting in identifying a deceased person. The application may be made generally or where the informed consent of a child’s parent or guardian cannot be obtained or has been withdrawn (s 81C).

10. 

Order for retention of forensic material taken from a child under 10 years of age application (Order form “I”)

An application before the court for the retention of forensic material taken from a child under 10 years of age.

Such forensic material is to be destroyed:

  • as soon as reasonably practicable after 12 months have elapsed since collection, unless criminal proceedings for an offence to which the investigation relates have not yet concluded, or

  • within 12 months of collection, in the case of forensic material obtained to assist in locating or identifying a missing person or identifying a deceased person (s 81M(3)).

    Where a parent or guardian withdraws consent to the retention of forensic material after collection, such material is to be destroyed as soon as practicable after consent is withdrawn unless the court has made an order to retain the material under s 81N (where the material collected relates to the investigation of a serious indictable offence): s 81D(2).

11. 

Order for retention of forensic material where a volunteer withdraws consent to a forensic procedure (Order form “J”)

An application before the court for an order that forensic material or information obtained from carrying out a forensic procedure on a volunteer who subsequently withdraws consent (s 79) may be retained: s 81.

12. 

Order for extension of the retention period of forensic material obtained where the Act requires its destruction (Order form “K”)

An application before the court for an extension of the period after which forensic material must be destroyed (s 88), relating to material obtained under:

  • Pt 3 — Forensic procedure on suspect with consent

  • Pt 4 — Non-intimate forensic procedure on suspect by order of senior police officer, or

  • Pt 5 — Forensic procedure authorised on suspect by order of a magistrate or other authorised officer.

13. 

Order to match DNA profile placed on the DNA database system of a volunteer who is a child or incapable person (Order form “L”)

An application before the court for an order allowing the matching of a DNA profile of a volunteer child or incapable person placed on the DNA database system with another DNA profile on the system.

Section 93A restricts the indices of the DNA database system on which a volunteer child or incapable person’s DNA profile may be placed and provides that the profile can only be used for the purpose for which it was placed on the database. Such a person’s profile must not be matched with any DNA profile on the same or another index of the DNA database system for any other purpose, unless otherwise ordered by a magistrate upon consideration of the criteria set out in s 93A(2).

[58-020] Substantive matters

  • Where the Act requires a police officer to have or suspect a certain belief on reasonable grounds, the prosecution bears the onus of proof on the balance of probabilities: s 103.

  • Where the Act requires something to be done “if practicable”, the prosecution bears the onus to prove it was not practicable on the balance of probabilities: s 104.

  • The prosecution bears the onus to prove, on the balance of probabilities, that a person who identifies as an Aboriginal or Torres Strait Islander person has waived their rights provided for in the Act: s 106.

  • A forensic procedure application is not a “criminal proceeding” for relevant purposes under the Children (Criminal Proceedings) Act 1987 or the Evidence Act 1995: L v Lyons (2002) 56 NSWLR 600 at [28], [33], [35] and [43].

  • Generally, proceedings under the Act are governed by the rules of evidence: see, for example, LK v Commissioner of Police [2011] NSWSC 458 at [26]; ss 26, 33.

  • Authorisation under the Act can only be granted strictly in accordance with its provisions: Walker v Bugden [2005] NSWSC 898 at [53].

  • The purpose of the Act is:

    not to enable investigating police (or other authorised persons) to identify a person as a suspect: it is to facilitate the procurement of evidence against a person who is already a suspect: Orban v Bayliss [2004] NSWSC 428 at [31]; cited in Walker v Bugden at [18].

  • The test is “reasonable belief”, not suspicion: Walker v Bugden at [37] and [43] following George v Rockett (1990) 170 CLR 104 at 115:

    Facts that can reasonably ground a suspicion may be substantially less than would be reasonably required to ground a belief

    …

    It is clear that an applicant for a final order under the Forensic Procedures Act must place before the magistrate information which enables the latter to be able to assess whether or not there are reasonable grounds for the asserted belief. The mere assertion or contention in an affidavit that there are reasonable grounds to believe that a forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the relevant offence is clearly insufficient: see Orban (supra) at [40]. The factual foundation constituting reasonable grounds for the specified belief must be given with sufficient particularity to permit an authorising magistrate to be in a position to determine whether there are reasonable grounds to believe that the forensic procedure might produce the outcome or result referred to in the sub-paragraph.

  • The magistrate must bring their own independent evaluation to the evidence which the prosecution contends amounts to reasonable grounds to believe that

    • the suspect committed the relevant offence

    • there existed reasonable grounds for believing that any of the forensic procedures sought might produce evidence tending to confirm or disprove the respondent committed the relevant offence, and

    • the forensic procedures are justified in all the circumstances (taking into account the s 24(2) criteria). It is insufficient to merely recount that it is alleged the suspected person committed the relevant offence: Orban v Bayliss at [56].

  • It is not necessary for the evidence obtained from a forensic procedure to be capable of establishing all of the elements of the offence in order to amount to “evidence tending to confirm or disprove that the suspect has committed the offence” (s 24(3)); indeed, it is difficult to envisage a case where every element could be proved by such evidence: KC v Sanger [2012] NSWSC 98 at [100].

  • It is necessary to pay particular and individual attention to the type of procedure sought against the anticipated evidence to be obtained from it and the requirements to be considered under s 24(4): see Police v JW [2007] NSWLC 30 as to the interpretation of “physical integrity”; LK v Commissioner of Police at [29], [32], [36]–[37] in relation to DNA evidence; see also Orban v Bayliss at [32], [54] which predates the s 24(4) amendment.

    In Orban v Bayliss, Simpson J said of the requirement under s 25(g) (now repealed) that the forensic procedure was “justified in all the circumstances”:

    Application of s 25(g) requires a balancing of, inter alia, the invasiveness of a compulsory forensic procedure, against the anticipated evidence to be obtained from it, and the requirements of the administration of justice in the most accurate solution of a particular crime. This question also was not addressed. That also constitutes error of law: [54].

  • The test whether it “is justified in all the circumstances” also applies for a repeated forensic procedure: s 27(3)(c); convicted serious indictable offender: s 74(5); untested former offender: s 75L(2); and volunteers: s 80(2)(f) — note also the additional criteria (a)–(e). Although no specific reference is made to the s 24(4) criteria in these provisions, those criteria would still be of relevance as “de facto” circumstances to consider.

  • Approach with caution any pro forma application form used by police: Orban v Bayliss at [14]–[16], [46], [50]–[51]: ss 24–25 since amended.

    Note:

    “the process of consideration required by the provisions of s 25 (now s 24) is not merely a ritualistic one to be addressed in a peremptory fashion without due regard to the import of those provisions”: Walker v Bugden at [28] following George v Rockett at 111.

  • See Police v JW [2007] NSWLC 30 as to whether alleged police misconduct or impropriety in making an application for an interim order and carrying out the procedure under that order can be considered in an application for a final order, particularly the right of an incapable suspect to an interview friend or lawyer under s 54. In that case, the relationship between ss 24 and 82 (inadmissibility of evidence following improper forensic procedure) is considered.

[58-040] Procedural requirements (Pt 5 ss 26–31) — confirmatory/ disallowance or original or repeated applications

(These are the most common forensic procedure applications that come before the court).

The application — ss 26–27

  • Can only be made by an “authorised applicant” (s 3) and no other person (ss 26, 27 and 33).

  • The application must:

    • be in writing,

    • be supported by evidence on affidavit or oath, and

    • specify the type of procedure to be carried out: ss 26(2), 27(2).

  • Where a magistrate has refused an application the authorised applicant (or any other person aware) may not make a further application to carry out the same forensic procedure unless additional information is provided that justifies the making of the further application: s 26(3). There is no statutory requirement to consider common law principles such as double jeopardy or whether to grant the application would undermine the fundamental principle of finality of litigation: Prott v Munro [2013] NSWCA 241 at [24].

  • Warrants or summonses may issue depending upon whether the suspect is under arrest (s 28) or not under arrest (s 29) for the attendance of the suspect at the hearing.

Hearing procedure — s 30

  • An order may be made in the presence of the suspect concerned or, at the discretion of the magistrate, ex parte: s 30(1).

  • A child/incapable person/Aboriginal or Torres Strait Islander person suspect (unless the Aboriginal or Torres Strait Islander suspect waives) must have an “interview friend” present (if the suspect is present) and may be represented by a legal practitioner: ss 4, 30(2). However, the interview friend may be excluded if they unreasonably interfere with or obstruct the hearing: s 30(8).

  • At the beginning of the hearing the court must ask the suspect (if present at the hearing) whether they identify as an Aboriginal or Torres Strait Islander person: s 30(4).

  • A legal practitioner may represent any other suspect: s 30(5).

  • The suspect or legal representative may:

    • cross-examine the applicant,

    • call or cross-examine any other witness, but only with leave (substantial reasons required, in the interests of justice), and

    • address the magistrate: s 30(6).

The order — s 31

  • If the magistrate makes an order, they must:

    • specify the procedure authorised,

    • give reasons for making the order,

    • ensure a written record of the order is kept,

    • order the suspect to attend for the carrying out of the procedure (the magistrate may give directions as to the time and place at which the order is to be carried out), and

    • inform the suspect reasonable force may be used to ensure the suspect complies.

Non-publication of suspect identity — s 43

Section 43 restricts publication of the name or information likely to enable the identification of the suspect of proceedings under the Act unless the suspect has been charged or the magistrate authorises publication.

[58-060] Warrants or summonses that a magistrate may issue for the attendance of “suspects”

  • under arrest — s 28

    A magistrate may issue a warrant to secure the attendance of a suspect under arrest for the hearing of an application under Pt 5.

  • not under arrest — s 29

    A magistrate may issue a summons or a warrant to secure the attendance of a suspect not under arrest for the hearing of an application under Pt 5.

  • not under arrest to carry out a forensic procedure — s 41

    Where an order for a forensic procedure on a suspect has been made under the Act a magistrate or other authorised officer may issue a warrant to secure the attendance of the suspect for the purpose of carrying out the forensic procedure.

[58-080] Costs

The court has the power to award costs in forensic procedure application proceedings pursuant to s 69 Local Court Act 2007, such proceedings being a class of application proceedings under Pt 4. The power to award costs extends to circumstances where an invalid forensic procedure application is dismissed: Baglin v JG [2014] NSWSC 902.