Forensic Evidence (ACT)
In the ACT police have the power to collect forensic evidence in the course of a criminal investigation. These powers are set out in the Crimes (Forensic Procedures) Act 2000. There are strict rules about when forensic material can be obtained and the procedures that must be followed when collecting it. This page deals with forensic evidence in the ACT.
Forensic procedures
Forensic material includes fingerprints, handprints, footprints and toeprints, as well as photos and videos, casts and impressions.
Intimate forensic procedures include blood samples, pubic hair samples, buccal swabs, examination or photographs of a suspect’s private parts and dental impressions.
How is a forensic procedure authorized?
Under section 5 of the Crimes (Forensic Procedures) Act 2008, the procedure for authorizing a forensic or intimate forensic procedure is different depending on the situation.
When the suspect is an adult who is not under arrest, a forensic procedure or intimate forensic procedure may be carried out with the suspect’s informed consent or by order of a magistrate or authorized officer.
When the suspect is an adult who is under arrest, an intimate forensic procedure may be carried out with the suspect’s informed consent or by order of a magistrate. A non-intimate forensic procedure may be carried out with the suspect’s informed consent or by order of an authorized officer.
When the suspect is a child or an incapable person, a forensic procedure or intimate forensic procedure may be carried out by order of a magistrate or authorized officer.
Time limit
When a forensic procedure is carried out on a suspect who is not under arrest, this must occur within two hours of the suspect presenting to police.
Suspects’ rights
A forensic procedure must be carried out in a way that allows the suspect reasonable privacy and not within view of a person of the opposite sex. The procedure must not take place in front of more people than necessary and must not involve removing more clothing than necessary (section 44, Crimes (Forensic Procedures) Act 2008.
A suspect must not be questioned while undergoing a procedure and must be given a caution to the effect that they do not need to say anything during the procedure but that anything they do say may be used as evidence.
The person carrying out a forensic procure or intimate forensic procedure may use reasonable force to do so but must not carry out the procedure in a cruel, degrading or inhuman manner.
Forensic procedures after conviction
In some circumstances, a forensic procedure or intimate forensic procedure can be carried out on a person after they have been convicted of a serious indictable offence.
A forensic procedure may be carried out with the person’s informed consent, by order of a police officer or by order of a court.
An intimate forensic procedure may be carried out with the person’s informed consent or by order of a court.
Chain of custody
After forensic evidence has been collected, it is generally sent to a forensics lab for testing. If the material is subsequently relied on in court proceedings, it is important that it can be proven that the chain of custody was not broken during this process. This means that there must be evidence that the sample was properly stored and transported and was not left unsupervised at any time. The court must be satisfied that there was no opportunity for the sample to become contaminated, to be tampered with, or confused with another sample.
Challenging forensic evidence
If a person is charged with an offence and the prosecution seeks to rely on forensic evidence, this evidence may be challenged. Forensic evidence may be excluded from criminal proceedings if there is evidence that it was obtained improperly or if there is reason to doubt its reliability.
When the defence challenges the admissibility of prosecution evidence, the court may hold a voir dire. This is a pre-trial proceeding during which both parties adduce evidence and make submissions as to whether evidence should be admitted at trial. The court then decides whether or not to admit the evidence based on the common law principles and the rules set out in the Evidence Act 2011.
Grounds for challenging the admissibility of forensic evidence include:
- The procedure was unlawful because it was not authorized by a court or because the person did not give informed consent;
- The procedure was unlawful because of the way it was carried out – for example, because excessive force was used or because the suspect was subjected to inhuman or degrading treatment;
- The evidence is unreliable because the chain of custody was broken.
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