Intimate and Non-Intimate Forensic Procedures (NT)
When a person has been arrested or charged and summonsed in relation to an offence in the NT, the police may seek to perform intimate procedures, non-intimate procedures or identifying procedures on them to obtain evidence such as DNA and fingerprints. The circumstances under which these procedures can be conducted with adults and with young people are set out in the Police Administration Act 1978 and the Youth Justice Act 2005, respectively. This article examines police powers and responsibilities when carrying out forensic procedures in the NT.
Identifying non-intimate procedures
Identifying non-intimate procedures are forensic procedures that are conducted to obtain finger, foot, hand and toe prints and photographs.
A police officer of the rank of sergeant of higher may carry out identifying procedures on a person who is in lawful custody if the person is an adult or a young person over 14. In order to carry out identifying procedures with a young person under 14 police must have the approval of a court.
Police may use reasonable force to obtain the prints or photographs.
Intimate procedures are forensic procedures that involve the examination or taking of samples from an intimate part of the body. They include:
- An examination of an intimate part of the body;
- An internal examination of a non-intimate part of the body;
- Taking a blood sample;
- Taking a pubic hair sample;
- Taking samples from an intimate part of the body;
- Taking a dental impression;
- Taking a photograph of a wound;
- Taking an X-ray;
- Taking a urine sample.
An intimate procedure can be carried out with an adult who is in custody if the person provides their written consent to the procedure, or with the Local Court’s approval.
An intimate procedure can be carried out with a young person who is in custody only with the approval of the Local Court. The Local Court may approve the procedure being carried out if satisfied that there are reasonable grounds for believing that the procedure may provide evidence relating to the offence for which the person is in custody, or in relation to any other offence punishable by imprisonment.
The intimate procedure must be carried out by a medical practitioner, who may be assisted by the police.
Section 145A of the Police Administration Act and section 31 of the Youth Justice Act govern carrying out non-intimate procedures.
Non-intimate procedures are procedures that involve taking a sample from a non-intimate part of the body or taking a photograph or impression of a non-intimate part of the body. They include:
- Taking a saliva sample;
- An external examination of a non-intimate part of the body;
- Taking a hair sample;
- Taking a swab from a non-intimate part of the body;
- Taking a photograph or cast from a non-intimate part of the body.
- An identifying procedure, such as taking fingerprints or photos.
A police officer of the rank of Senior Sergeant or higher may approve the carrying out of a non-intimate procedure on a person over the age of 14 who they reasonably suspect has committed an offence or who is in lawful custody for an offence punishable by imprisonment.
In order to carry out a non-intimate procedure on a child under 14, the court’s approval is required.
Police may use reasonable force in order to carry out a non-intimate procedure.
Chain of custody
When evidence obtained from a suspect by the police is relied on in court, the prosecution must be able to demonstrate that the chain of custody of the sample was unbroken. This means that best practice procedures must have been followed at all times in the handling and analysing of the sample.
If the chain of custody is unbroken in relation to a forensic sample, there is no doubt that the sample that was analysed is the same sample that the accused provided and that it has not been contaminated or tampered with.
If the chain of custody was broken at some stage in the storage, transportation, or analysis of the sample this may raise questions as to the reliability of the sample as evidence against the accused. The sample may be found to be unreliable and/or inadmissible as a result.
The information obtained during intimate and non-intimate procedures may be stored in a database and shared with authorities of other jurisdictions.
Information in the database may be accessed only for the purposes of investigating an offence, prosecuting an offence, administering the database, providing the information to the person to whom it relates, investigating a reportable death or disaster, locating a missing person or identifying a deceased person.
Forensic evidence improperly obtained
If the police obtain evidence through one of the procedures described above in a way that does not comply with the rules set out in the legislation, this may result in the evidence being inadmissible as evidence against the suspect.
If the defence in a criminal matter believes that forensic evidence was improperly obtained, it may request the court allow a voir dire to be held to determine the issue. A voir dire is a pre-trial proceeding in which the admissibility of evidence is determined.
During a voir dire, both defence and prosecution may adduce evidence and make submissions as to whether or not an item of evidence should be admitted against the accused.
If the court finds that the evidence was obtained improperly, it may exclude it from the proceeding on that basis. Whether this occurs will depend on the severity of the impropriety and the probative value of the evidence.
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