Forensic Procedures (SA)
In South Australia, the Criminal Law (Forensic Procedures) Act 2007 governs how the police must go about taking samples of DNA and fingerprints from offenders. The Summary Offences Act 1953 gives the police powers to search person who are taken into custody and to take photographs, voice recordings and handwriting samples. The Road Traffic Act 1961 also contains forensic procedures for taking blood and saliva samples. This page deals with forensic procedures in South Australia.
DNA samples and fingerprints
Under section 20 of the Criminal Law (Forensic Procedures) Act 2007, the police may take fingerprints and DNA samples from those who:
- Are serving terms of imprisonment, detention or home detention;
- Are convicted of serious offences;
- Are registrable offenders under the Child Sex Offenders Registration Act;
- Are liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935.
If a person does not fall into any of the above categories, but is suspected of an offence, a senior police officer may authorise the taking of sample of their DNA sample or their fingerprints under section 19 of the Criminal Law (Forensic Procedures) Act 2007.
SA Police may take a person’s fingerprints or DNA sample whether or not the person is in custody.
Under section 32 of the Criminal Law (Forensic Procedures) Act 2007, it is an offence to obstruct the carrying out of a forensic procedure and this is punishable by up to two years imprisonment.
Searches
Under section 81 of the Summary Offences Act 1935, a person who is taken into custody may be searched by the police or by a doctor or nurse. An intrusive search, which involves searching bodily orifices, may only be carried out by a doctor or nurse. An intimate search, where the person is required to undress, must be conducted a person of the same sex or gender identity where this is reasonably possible.
Reasonable force can be used to carry out a search.
A person may request an interpreter if they are not fluent in English.
If a person under 18 is being subjected to an intimate search, a lawyer or adult friend or relative must be present (section 81, Summary Offences Act 1935).
Photographs and prints
Where a person is in custody for an offence, the police are allowed to take photos and prints of them if it is necessary for the purpose of identifying them. The police may take prints of a person’s hands, fingers, feet, toes and may also take a recording of their voice and a sample of their handwriting.
This may only be done where the person has been charged with an offence or a magistrate has authorised the procedure.
Your rights
Under section 21 of the Criminal Law (Forensic Procedures) Act 2007, forensic procedures much be carried out humanely. As far as possible, police must avoid offending cultural and religious views or causing unnecessary harm or embarrassment in the way they carry out the search.
A procedure must not be carried out in front of more people than necessary. A procedure that involves exposing intimate parts of the body must be carried out by a person of the same sex where this is possible.
Police are allowed to use reasonable force to carry out a search or to take a forensic sample. However, they must not use more force than is reasonably necessary.
If you believe the police have treated you unlawfully, you can make a complaint to the Office of Public Integrity.
Unlawful forensic procedures
If the police carry out a forensic procedure unlawfully, this may mean that the sample they have collected is not admissible in court as evidence. If you have been charged with an offence and you believe that the police did not carry out the forensic procedures lawfully, talk to a lawyer about whether the charge should be contested on this basis.
The admissibility of evidence can be challenged in a pre-trial procedure known as a voir dire. This involves both parties calling evidence and making submissions about how the evidence was obtained and whether it should be admitted or excluded from evidence. The court will then make a decision as to whether or not to admit the evidence. In some situations, where a crucial piece of evidence is excluded, the prosecution will not be able to go ahead.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers..