Crimes (Forensic Procedures) Act 2000 - NSW Ombudsman - NSW ...

Chapter 9. Procedures outside the Act
Police have powers other than those contained in the Crimes (Forensic Procedures) Act which enable them to
conduct various forensic procedures. For example, they may conduct breath analysis on drivers, or take identification
photographs of people in custody for an offence. The Act specifically states that it does not limit or exclude the
operation of other laws relating to the carrying out of forensic procedures.
Through our monitoring activities, we found that there is some confusion about whether certain types of procedures
are ‘forensic procedures’ for the purposes of the Crimes (Forensic Procedures) Act. Further, some officers have
conducted certain types of procedures ostensibly under the authority of the Act when in fact there is no law
authorising those types of procedures.
This chapter examines the relationship between the Crimes (Forensic Procedures) Act and other powers police have
to conduct ‘forensic procedures’.
9.1. Other procedures – prints, photos, urine samples, medical
examinations
9.1.1. Fingerprints
The Act states that a forensic procedure includes “the taking of a hand print, finger print, foot print or toe print.”
However, it does not include prints taken for the sole purpose of establishing the identity of the person from whom
they are taken. 833
Police routinely take fingerprints from suspects at the time of charging, under Part 10 of the Law Enforcement (Powers
and Responsibilities) Act (formerly under section 353A(3) of the Crimes Act). A police officer may take “all particulars
that are necessary to identify a person who is in lawful custody for any offence.” This may include the person’s
photograph, fingerprints and palm prints. Where a child under the age of 14 is in custody for an offence, police may
apply to a court for an order authorising police to take the child’s fingerprints and palm prints, for the purpose of
identifying the child. 834
9.1.2. Photographs
Photographs as forensic procedures involve taking a photograph of a part of the body. These photographs can be
taken under the Act as either intimate or non-intimate forensic procedures. Photographs taken as an intimate forensic
procedure will include a photograph of the genital or anal area or the buttocks of a person, or the breasts of a female
or a transgender person who identifies as a female. A non-intimate forensic procedure photograph would be a photo
of any other part of the body. 835
Police routinely photograph suspects at the time of charging, under Part 10 of the Law Enforcement (Powers and
Responsibilities) Act (formerly under section 353A(3) of the Crimes Act). 836 A photograph may be taken under this
provision to show to a witness, if an identification parade cannot be held (for example, because the suspect has
declined to participate, or has altered his or her appearance).
We understand that NSW Police initially advised officers that all identification photographs should be taken under the
Crimes (Forensic Procedures) Act: “A photograph for a photograph identification is a photograph of a part of the body,
namely the head and shoulders. Accordingly, it must be treated as a forensic procedure under the Act.” 837 However,
after obtaining legal advice on this issue, the current NSW Police position is that photographs can be taken under
the provisions of the Law Enforcement (Powers and Responsibilities) Act, provided the suspect is in custody for an
offence, and the photograph is deemed necessary for the identification of the person. Officers need only proceed
under the Crimes (Forensic Procedures) Act if the provisions of the Law Enforcement (Powers and Responsibilities) Act
do not apply, either because the photograph is not for identification purposes, or the suspect is not in custody for an
offence. 838
However, we found there is still considerable confusion among police officers about when photographs can be taken
under the provisions of the Law Enforcement (Powers and Responsibilities) Act, and when they must be taken under
the Crimes (Forensic Procedures) Act. For example, one police officer we interviewed commented:
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 167