Evidence
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The law set out here in relation to fingerprints is that which applies for offences against state laws. The situation in relation to Commonwealth offences is similar, but not identical. The differences will be outlined where relevant. The term ‘fingerprints’ includes finger, palm, toe and sole prints. Fingerprints can be taken using a finger scan device as well as the traditional ink print method.
The powers of police to take fingerprints from a suspect depend, in part, on the suspect’s age. The major difference is between people aged 15 years and over and those from 10 to 14 years of age. Fingerprints cannot be taken from a child less than 10 years old.
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Police can use reasonable force to fingerprint a person aged 15 or over who has been charged with, or is reasonably suspected of having commi ed, an indictable or specified summary offence. The use of reasonable force must be authorised by the officer in charge of the police station, or by a sergeant.
Taking fingerprints is a significant intrusion on the right against self-incrimination and the requirements of section 464K of the Crimes Act (Vic) must be complied with.
Before taking a suspect’s fingerprints, the police officer who is intending to fingerprint the suspect must provide them with the following information:
the purpose for which the fingerprints are required;
the offence that they believe the person has committed;
that the prints may be used in evidence in court;
that if the person refuses to give their prints, police may use reasonable force to obtain them; and
that if no charge is laid with six months, or if the person is found not guilty of charges that are laid, the prints will be destroyed.
The giving of this information must be recorded (audio or audiovisual) and a copy provided to the suspect, or it must be recorded in writing and signed by the suspect.
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Before a young person aged 15, 16 or 17 can be finger printed, a parent or guardian – or, if neither of these is available, an independent person (see ‘Role of the independent person’, below) – must be present both when the request for the prints is made and when the prints are taken. Where reasonable force is to be used in the taking of fingerprints from a 15-, 16- or 17-year old, the actual taking of the prints must be audio visually recorded, if practicable, or audio recorded.
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A child aged from 10 to 14 years can be fingerprinted if they are reasonably suspected of having committed an indictable or specified summary offence and either:
the child and their parent or guardian consent to the prints being taken; or
the Children’s Court orders that the prints be taken. Before ordering the taking of prints, the court will need to be satisfied on the balance of probabilities (i.e. that it is more likely than not) that:
there are reasonable grounds to believe that the child has commi ed the offence in question; and
in all the circumstances, the making of the order is justified. This involves taking into account the seriousness of the circumstances surrounding the offence, the degree to which the child is said to have been involved, and the child’s age.
At the hearing by the Children’s Court of an application by police for an order to take the fingerprints of a young person, the young person can be represented by a lawyer or, if the court agrees, by a parent or guardian. However, there is no right to call witnesses to give evidence or to cross-examine any police witnesses. The young person or their representative may ‘address the court’, but only about whether or not the requirements for the making of an order have been met.
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Fingerprints can be taken from an adult by a police officer of sergeant rank or above, either with the suspect’s written consent, or if it is reasonably believed that the prints are required to:
establish who the suspect is;
identify the suspect as the person who has committed the offence in question or some other offence; or
provide evidence in relation to the offence in question or some other offence.
Prints can also be taken without consent if the offence in question is punishable by 12 months’ imprisonment or more.
Under the Crimes Act (Cth), the requirements in relation to fingerprints apply to ‘identification material’ as defined. This term includes recordings of a person’s voice or handwriting and photographs of the person (s 3ZJ). When taking such fingerprints and other identification material, police can use such force as is necessary and reasonable.
Where the suspect is aged from 10 to 18, or is not able to manage their own affairs, fingerprints can only be taken if police obtain a court order, or with the consent of the suspect’s parent or guardian. In deciding whether to make such an order, the court will take into account the seriousness of the offence, the age or any disability of the accused and such other ma ers as it thinks fit. If fingerprints are to be taken from such a suspect following the making of a court order, this must be done in the presence of the suspect’s parent or guardian or an independent person (see ‘Role of the independent person’, below).
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Fingerprint, including fingerscan, records and related identification material have to be destroyed if, after six months, the person has not been charged with the offence for which the material was taken or with any other offence for which the material has some value as evidence. Identification material must also be destroyed if the person was charged with a relevant offence but then was found not guilty.
A special rule applies to fingerprints and fingerscans taken from a person while they are still a child and who is found not guilty of any further offences before they turn 26 years old. Except in the case of certain serious offences, such fingerprints have to be destroyed.
Police can apply, without telling the fingerprinted person, to the Magistrates’ or Children’s Court for an order extending by up to six months the time before which the fingerprints must be destroyed. Police can only seek one such extension in any case. If a court makes such an order, a copy of the order must be given to the person whose prints have been taken. Where the offence is one under Commonwealth law, the period can be extended by 12 months at a time and can be extended more than once.
The police must give notice within 14 days to the person whose fingerprints have been destroyed. A fine of up to 10 penalty units can be imposed on any person who uses or makes any record, copy or photograph of fingerprints that should have been destroyed.
Body samples and forensic procedures
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Police have the power to request a suspect to undergo a forensic procedure where there are reasonable grounds to believe the result of the procedure will tend to confirm or disprove the suspect’s involvement in an indictable offence.
Under both the Crimes Act (Vic) and the Crimes Act (Cth) there are specific legislative powers for taking forensic material from suspects.
The Commonwealth law is found in sections 23WA–23XWA of the Crimes Act (Cth), and is dealt with briefly below.
The powers of police to seek to have a suspect undergo a forensic procedure depend in part on the suspect’s age.
The following discussion focuses on the requirements of the Victorian law, which is found in sections 464R–464ZL of the Crimes Act (Vic).
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Forensic procedures include:
taking intimate samples: pubic hair; anal, external genital or breast swabs; saliva; mouth scrapes or dental impressions;
taking non-intimate samples: hair; fingernail or toenail scrapes; external swabs or washings; and
taking other samples or any other procedures or physical examinations of the body (but, under the Victorian Act, do not include taking fingerprints or a DNA profile sample).
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A DNA person (Crimes Act (Vic) s 464(2)) is a person who is:
aged 18 years old or over, who is suspected of having attempted to commit, having committed, or has been charged with or summonsed for, an indictable offence; or
aged over 15 years old and under 18 years old, who is suspected of having attempted to commit, having committed, or has been charged with or summonsed for, a DNA sample offence set out in schedule 9 of the Crimes Act (Vic).
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A DNA profile sample is a sample of blood, hair (but not pubic hair) or saliva, or a scraping from the mouth of a person. The sample is taken for the purpose of deriving a DNA profile.
DNA sample offences include:
child homicide, murder or manslaughter;
sexual offences;
kidnapping;
armed robbery;
culpable driving causing death, dangerous driving causing death or serious injury, or dangerous or negligent driving while pursued by police;
aggravated burglary, aggravated home invasion or home invasion;
aggravated carjacking or carjacking;
arson causing death;
trafficking a commercial quantity of a drug of dependence;
cultivating a commercial quantity of a narcotic plant; and
recklessly or intentionally causing serious injury in circumstances of gross violence or intentionally causing serious injury.
The senior police officer must be satisfied that the DNA person is not incapable of giving informed consent, they or a relevant adult have refused to give consent, there are reasonable grounds to suspect the DNA person has committed an indictable offence (in the case of a child aged above 15 years and under 18 years, a DNA sample offence) and taking the sample without consent is justified in all the circumstances (Crimes Act (Vic) s 464SE).
A senior police officer must not authorise a DNA profile sample to be taken if there is an application for an order before a court for the person to give a sample or authorisation has previously been refused by a senior police officer in relation to the same matter and on the same grounds.
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A forensic procedure can be conducted if either:
the suspect gives their informed consent to the conduct of the procedure; before a suspect can be said to have given informed consent, police have to provide certain information (see ‘Informed consent for a forensic procedure’, below);
a Magistrates’ Court orders the procedure be conducted; or
a senior police officer authorises the taking of a non-intimate sample of a person not under 18 years of age.
Informed consent for a forensic procedure
A person gives informed consent to the conduct of a forensic procedure only after the police have explained (Crimes Act (Vic) s 464S):
a the purpose for which the sample is required;
b the procedure for taking the sample;
c that the person can ask for a doctor or nurse of their choice to take the sample or be present when it is taken;
d the crime they are suspected of having committed;
e that the procedure may produce evidence to be used in court and the information obtained will be placed on a DNA database to be used for the purposes for which such DNA databases may be used;
f that the person can refuse to undergo the procedure; and
g that if the person refuses, police can apply for a Magistrates’ Court order to conduct the procedure or, if the sample sought is a non-intimate sample, ask approval from a senior police officer.
A person in a prison, police jail or youth justice centre is deemed to have refused consent if they refuse or fail to give consent within 24 hours after a police officer has explained the matters set out in a–g above.
Court order to conduct a forensic procedure
A Magistrates’ Court order can only be sought if the person is a ‘relevant suspect’ as defined in section 464(2) of the Crimes Act (Vic). A relevant suspect is a person of or above the age of 18 who is suspected of having attempted to commit, or having committed, or has been charged with, an indictable offence.
Before ordering that a procedure be conducted, a court will have to be satisfied on the balance of probabilities (i.e. more likely than not) that there are reasonable grounds to believe that the suspect has committed the indictable offence in question and that any of the following circumstances apply:
material from the offender’s body has been found at the scene of the crime, on the victim, or on some object or person associated with the offence;
there are reasonable grounds to believe that, because of the nature of the offence or the victim’s injuries, there will be material from the victim on the offender or on an object connected to the offence;
the victim has not been found and there are reasonable grounds for believing material from the victim’s body may be on a suspect; or
the conduct of the procedure may be relevant to determining the paternity of a child conceived allegedly as a result of a rape, an offence of incest, or a sexual offence against a child.
The person from whom police want to take a body sample is not a party to the proceedings and as such cannot cross-examine police witnesses or call witnesses of their own. They are limited to addressing the court, either personally or through their lawyer, on the specific issues set out in section 464T(3) of the Crimes Act (Vic)
Forensic procedure authorised by a senior police officer
A senior police officer may authorise the taking of a non-intimate sample from a person not under 18 years of age who has refused to give a non-intimate sample. The person must not be incapable of giving informed consent, there must be reasonable grounds to believe the person committed the offence with respect to which authorisation is sought, and authorisation must be justified in all the circumstances (Crimes Act (Vic) ss 464SA, 464SB).
A police officer may request a DNA person to give a DNA profile sample. The sample may be taken if the person (and, in the case of a child, also their parent or guardian) gives informed consent. In the absence of consent, a senior police officer can authorise the taking of the sample.
This authorisation can only be given if the senior police officer is satisfied that the taking of the sample is justified considering all the circumstances (Crimes Act (Vic) ss 464SC–464SF).
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A forensic procedure can only be conducted on a young person aged 10–17 years (inclusive) if it is ordered by the Children’s Court.
However, a senior police officer can authorise the taking of a DNA profile sample from a person aged over 15 years and under 18 years (see ‘Forensic procedure authorised by a senior police officer’, above). The conduct of forensic procedures cannot be ordered in relation to children less than 10 years of age.
A court order can only be sought where the young person is suspected of having committed, or has been charged with, one of the indictable offences specified in section 464U(3) of the Crimes Act (Vic).
In addition to satisfying one of the tests for the ordering of a forensic procedure upon an adult, the Children’s Court must also be satisfied that in all the circumstances the making of the order is justified (this includes considering the seriousness of the offence, the degree to which the child is said to have been involved, and the child’s age).
As with adults, the young person from whom police want to take a body sample is not a party to the proceedings and as such cannot cross-examine police witnesses or call witnesses of their own. They are limited to addressing the court, either personally or through their lawyer, on the specific issues set out in the Crimes Act (Vic) (ss 464U(7), (8)).
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Police can also apply to the court for an urgent order to conduct a forensic procedure by audio or audiovisual link if they believe, on reasonable grounds, that the sample or evidence sought from the procedure is likely to be lost if the procedure is delayed. This process cannot be used in relation to a blood sample.
Before making an order for the conduct of the procedure, the court must be satisfied that the sample or evidence would be lost if the procedure was delayed by the need to apply in person for the order. Any order made as a result of an audio or audiovisual link application operates as an interim order until a further hearing, which will proceed in the manner outlined above.
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Where a suspect cannot give informed consent due to a ‘mental impairment’, police must apply to a Magistrates’ Court if they wish the suspect to undergo a forensic procedure. See Chapter 8.3: Disability and criminal justice.
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The Chief Commissioner of Victoria Police may authorise a police officer or custody officer to supervise the taking of a DNA profile sample. Taking a DNA profile sample or conducting a forensic procedure must be done in the least intrusive way using the least painful method that is practicable in the circumstances and that affords reasonable privacy to the subject person.
A forensic procedure involving an intimate sample, physical examination of an intimate part of the body, or a dental impression must be conducted by a qualified doctor, nurse, midwife or dentist. The subject person can request that the procedure be conducted by, or in the presence of, a doctor or dentist of their choice. Any intimate sample or DNA profile sample will need, if practicable, to be taken by a doctor or nurse of the same sex as the subject person. The circumstances of the conduct of the procedure must afford reasonable privacy to the subject person. If practicable, the police members present to assist with the conduct of the procedure should be of the same sex as the subject person.
A person may elect to provide a mouth scraping as an alternative to a DNA profile sample or a hair sample if the hair sample sought is not a pubic hair sample. A person may elect to take a mouth scraping themself, provided the officer authorised to supervise the taking of the sample considers this to be appropriate. Also, the person’s consent to take their own scraping must be in writing and signed by them or recorded by audio or audiovisual recording.
Immediately before the sample is taken or the procedure is conducted, police must inform the subject person that they do not have to answer any questions asked by the doctor (or other person taking the sample or conducting the procedure) but that anything they do say can be used in evidence. The giving of this warning and the subject person’s response must be taped (audio or audiovisual) or recorded in writing and signed by the subject person or, if they refuse to sign, by an independent person.
A police officer (assisted by others if it is considered to be necessary) may use reasonable force to assist the person taking the sample or conducting the procedure. If practicable, the police officer(s) involved must be of the same sex as the subject person and not be involved in the investigation of the related offences.
The taking of a DNA profile sample or an intimate sample – other than a blood sample or a scraping from the mouth – must be audio-visually recorded if this is practicable and if the suspect consents. Otherwise, the taking of the sample must be witnessed by an independent doctor or dentist (as appropriate) or by the doctor or dentist chosen to be present by the suspect.
The conduct of any other forensic procedure must be audio-visually recorded, if practicable, or witnessed by an independent person. An independent person who has witnessed the procedure must endorse the order with their name and signature. Copies of audio and audiovisual recordings must be given to the subject person or their lawyer within seven days.
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Evidence from a DNA profile sample or a forensic procedure is not admissible if the steps outlined above have not been followed. This includes steps for the conduct of procedures, the analysis of samples obtained from the procedures, and for any sample or information that should have been, but has not been, destroyed. However, the courts have discretion to admit evidence that would otherwise not be admissible if the prosecution satisfies the court that on the balance of probabilities the circumstances justify the evidence being admitted. The accused can consent to the evidence being admitted.
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Police can apply to the court for a forensic sample of any person found guilty of committing a ‘forensic sample offence’, or of conspiracy or incitement to commit, or attempting to commit, a forensic sample offence. The court may order the person to undergo a forensic procedure for the taking of a sample from any part of the body. Such orders are now routinely made at the time of sentencing.
A forensic sample offence is any offence specified in schedule 8 of the Crimes Act (Vic). Forensic sample offences include:
murder;
manslaughter;
causing serious injury intentionally;
causing serious injury recklessly;
intentionally causing a very serious disease;
kidnapping;
rape;
assault with intent to rape;
incest;
sexual penetration, committing an indecent act or having a sexual relationship with a child under 16 years;
sexual penetration of a child aged 16 or 17 years;
indecent assault with serious violence or that involved an act likely to seriously or substantially degrade or humiliate the victim;
sexual relationship with a child under the age of 16 or a person with impaired mental functioning;
facilitating sexual offences against children and child pornography offences;
abduction or detention;
bomb hoaxes and offences connected with explosive substances;
arson and intentionally or recklessly causing a bushfire;
armed robbery and robbery;
burglary or aggravated burglary; and
trafficking, cultivating or administering drugs.
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Police must destroy any information obtained from an analysis of samples obtained as a result of a forensic procedure that might identify the person from whom the sample was taken, if either:
the person has not been charged with a relevant offence within 12 months of the sample being taken; or
the person has been charged and then not convicted, except where found not guilty because of mental impairment, and the period during which the prosecution can appeal has finished.
However, police can apply to a court for an order to retain the sample and any related information. If a court grants such a police application, it must give reasons and a copy of the order must be given to the person upon whom the procedure was conducted.
No person is allowed to use any sample, or any information derived from a sample, that should have been destroyed. To do so is an offence.
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The conduct of forensic procedures under Commonwealth law follows the general procedure set out under the Victorian legislation. That is, a police officer can obtain a forensic sample with the informed consent of the suspect. Where such consent is not forthcoming, an authorised police officer may seek a court order for the conduct of the procedure.
The distinction between an intimate and a non-intimate sample or procedure is also present in the Crimes Act (Cth), however there are some slight differences in definition and approach. There are some limited circumstances where a police officer of the rank of sergeant or higher may order a non intimate forensic procedure to be carried out on a suspect.
The Crimes Act (Cth) imposes time limits for carrying out forensic procedures and also imposes special requirements in relation to Aboriginal and Torres Strait Islander people.
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Everyone can rely on the common law privilege against self-incrimination. Unless ordered by a court or an Act of parliament, you do not have to say or do anything that could later be used against you in court.
This privilege extends to attempts by police to obtain evidence (other than admissions of guilt) that can be used to support their case against a suspect. Handwriting samples and voice prints are useful and commonly used methods of police identification. Very often, police gather this type of information for purposes other than pre-trial investigations.
The police may want to have the information available for future cases. The police probably do have power under the common law to use compulsion to photograph a person for the purpose of identification. This power does not extend to using compulsion for photography of a person for a purpose other than identification, such as recording injuries or other markings that may indicate guilt.
In certain circumstances, police have the power to take ‘identification material’ from a suspect being held in relation to a Commonwealth offence. Identification material includes fingerprints (see ‘Fingerprints’, above), voice recordings, handwriting samples, and photographs (including video recordings).
Such identification material can be taken with the suspect’s wri en consent. However, the police may take the identification material without the suspect’s written consent if they reasonably believe that it will:
establish who the suspect is;
identify the suspect as the person who has committed the relevant offence or some other offence; or
provide evidence in relation to the relevant offence or some other offence.
Reasonable force can be used by police to take such identification material.
The different rules that apply in relation to taking fingerprints from young people aged from 10–18 years who are suspected of a Commonwealth offence (see ‘Fingerprints’, above) also apply here.
At common law, police can probably photograph a suspect without their consent, but that suspect can lawfully take evasive actions to avoid the photo (short of assaulting police).
The legal rights and powers in this area remain unclear. As a matter of practice, police will take photographs as they see fit. A suspect who does not want to be photographed should say so clearly and, if need be, should ask to lodge a complaint with the senior officer present (see Chapter 12.4: Complaints against Victoria Police).
Identification parades
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Identification parade evidence
No one has to take part in an identification parade. Failure or refusal to participate may be admissible evidence against an accused person. This is not because an inference of guilt can be drawn from the refusal, but to establish why less satisfactory means of identification were used by the investigating police.
Section 114 of the Evidence Act implicitly gives priority to identification parade evidence over other visual identification evidence, by making other visual identification evidence inadmissible unless an identification parade was held, or there were good reasons why it was not held.
Identification parade procedure and rules
The identification parade procedure is governed by the Victoria Police Manual (operations 111: identification of suspects and offenders), which are designed to provide maximum fairness to an accused person. Whether the procedures actually provide fairness in a particular case is always open to being challenged by an accused.
The following is a summary of the rules that apply to identification parades in Victoria:
No person is obliged, or can be compelled, to participate in an identification parade or ‘line-up’. However, police are not required to tell a person that they do not have to participate.
An identification parade must be held if the suspect requests one and it is practical to do so.
The other people in the identification parade must be of similar age, height, general appearance and class of life as the person who is standing for identification.
A person who is being put up for identification must be told that:
they can choose where they wish to stand among those in the parade, can change places, and can object to any person selected or to the arrangements made;
they can have a friend, lawyer or relative present, so long as that friend, lawyer or relative arrives within a reasonable time and agrees not to do or say anything to interfere with the parade; and
the witnesses will not receive details of the person’s identity.
The friend or lawyer who a ends the parade must play the role of passive observer. This person can observe and listen but must not speak to anyone.
Where it is practicable, and if all the participants consent, the parade should be photographed before it begins.
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Section 3ZM of the Crimes Act (Cth) sets out the situations where identification parades can be conducted. The Crimes Act (Cth) also sets out detailed procedures for the conduct of identification parades. Section 3ZN of the Crimes Act (Cth) sets out the situations where identification parades of suspects under 18 years can be conducted.
An identification parade can be conducted in relation to any Commonwealth offence, provided the suspect agrees. If the suspect requests that a parade be conducted, then such a parade must be conducted if the circumstances make it reasonable to do so.
Before any parade can take place, the suspect must be informed that they can refuse to take part but that to do so without a reasonable excuse would mean that evidence of that refusal, and of any identification of the suspect by a witness using other means such as photographs, could be given in any court proceedings. Such evidence would be likely to be very prejudicial to the suspect.
The procedures for conduct of such identification parades are similar to those that apply for Victorian offences. The procedures also allow for:
the parade to take place so that the witness can view the parade without being seen; and
a witness to ask a person in the parade to speak, move or adopt a specified posture.
The parade must be video recorded if practicable and, if not, photographed in colour.
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While lawyers are generally not present at identification parades, they may attend so long as they agree to meet certain conditions to the effect that they do not interfere in any way. However, in the event that some later allegation is made against the conduct of the parade, the suspect’s lawyer will then face the difficult possibility of becoming a witness against the client.
Suspects should make a careful note of anything to do with the parade as soon as possible afterwards. They should particularly take details of the various persons placed with them. Suspects who enter parades and are not identified can rely heavily upon this fact to assert their innocence in court. If they are identified, they will not be prevented from generally contesting the fairness and conduct of the parade in court.
Evidence
Chapter: 3.4: Sex work
Contributor: Gregory Connellan, Magistrate, Magistrates’ Court of Victoria
Current as of: 1 September 2024
Law Handbook Page: 165
Next Section: Arrest and interrogation of children
