Evidence

There are strict laws relating to the collection, storage and use of evidence in Victoria. Fingerprints, body samples and forensic procedures, photographs, voice and handwriting records and Identification parades are all considered evidence in Victoria.

Fingerprints

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.

People aged 15 and over

Police can use reasonable force to fingerprint a person aged 15 or over who has been charged with, or is reasonably suspected of having committed, an indictable or specified summary offence.

Before taking a suspect’s fingerprints, police must provide the suspect 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.

Young people aged 15, 16 or 17: special requirement

Before a young person aged 15, 16 or 17 can be fingerprinted, a parent or guardian – or, if neither of these is available, an independent person (seeRole of the independent person”) – 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 audiovisually recorded, if practicable, or audio recorded.

Young people aged from 10 to 14

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

a 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 committed the offence in question; and

in all the circumstances, the making of the order is justified. This will involve 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 a 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.

Commonwealth offences

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 matters 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 (seeRole of the independent person”).

Destruction of identification material

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 are 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 a 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 any such order, then a copy of the order must be given to the person whose prints have been taken. Where the offence in question 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

Police have 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 to 23XWA of the Crimes Act (Cth), and is dealt with briefly below.

Forensic procedures include:

intimate samples: pubic hair; anal, external genital or breast swabs; saliva; mouth scrapes or dental impressions;

non-intimate samples: hair; fingernail or toenail scrapes; external swabs or washings; and

other samples or any other procedures or physical examinations of the body (but, under the Victorian Act, do not include the taking of fingerprints).

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).

Adults

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 (seeInformed consent”);

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

A person gives informed consent to the conduct of a forensic procedure only after the police have explained (s 464S Crimes Act (Vic)):

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 for the conduct of the procedure or, if the sample sought is a non-intimate sample, ask approval from a senior police officer.

Court order

A Magistrates’ Court order can only be sought if the person is “relevant suspect” as defined in section 464(2) of the Crimes Act (Vic). A relevant suspect is a person suspected of having committed, or has been charged with, an indictable offence, including:

murder or manslaughter;

sexual offences;

riot or affray;

robbery or armed robbery;

culpable driving causing death;

burglary or aggravated burglary;

destroying or damaging property where the offence is charged as arson;

arson causing death;

contamination of goods;

trafficking a drug of dependence;

cultivating of a commercial quantity, or cultivating for the purpose of trafficking, a drug of dependence; and

recklessly, negligently or intentionally causing injury or serious injury.

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 of the offence has not been found and there are reasonable grounds for believing material from the body of the victim 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).

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 (ss 464SA, 464SB Crimes Act (Vic)).

Young people

A forensic procedure can only be conducted on a young person aged from 10 to 17 years (inclusive) if it is ordered by a Children’s Court. 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 offences that apply to adult court orders (seeCourt order”).

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 depends on 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 subsections 464U(7) and (8) of the Crimes Act (Vic).

Urgent orders

Police can also make their application to the court by telephone 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 a phone application operates as an interim order until a further hearing, which will proceed in the manner outlined above.

Conducting a forensic procedure on a person with a “mental impairment”

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 Disability and criminal justice.

Execution of order

Police can use reasonable force to assist a qualified doctor or dentist with the conduct of a court-ordered forensic procedure. The suspect can request that the procedure be conducted by, or in the presence of, a doctor or dentist of their choice. Any intimate sample will need, if practicable, to be taken by a doctor or dentist of the same sex as the suspect. The circumstances of the conduct of the procedure must afford reasonable privacy to the suspect. If practicable, the police members present to assist with the conduct of the procedure should be of the same sex as the suspect.

Immediately before the procedure is conducted, police must inform the suspect that they do not have to answer any questions asked by the doctor but that anything they do say can be used in evidence. The giving of this warning and the suspect’s response must be taped (audio or audiovisual) or recorded in writing and signed by the suspect or, if the suspect refuses to sign, by an independent person.

The taking of an intimate sample, other than a blood sample or a scraping from the mouth (a “buccal swab”), must be video 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 video recorded, if practicable, or witnessed by an independent person. If an independent person has witnessed the conduct of the procedure, that person must endorse the order with their name and signature.

Admissibility of forensic procedure evidence

Evidence from a forensic procedure will not be 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 could, of course, consent to the evidence being admitted, but this is unusual.

Taking a forensic sample after conviction

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). Currently, 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;

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

administration of drugs.

Destruction of identifying material

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.

Commonwealth offences

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.

Photographs, voice and handwriting records

As noted, everyone can rely on the common law privilege against self-incrimination. Unless ordered by a court or an Act of Parliament, you don’t 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. See the decision of the High Court R v Ireland [1970] 126 CLR 321 at 333–4.

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 (seeFingerprints”), voice recordings, handwriting samples, and photographs (including video recordings).

Such identification material can be taken with the suspect’s written 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 to 18 who are suspected of a Commonwealth offence (seeFingerprints”) 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).

It has been said that:

… the taking of photographs and fingerprints involves a degree of embarrassment and indignity. So too does the retention in police records of such information. In the case of an innocent person, the very knowledge that such information is so stored may be a source of anguish and discomfort. That discomfort may be particularly well founded in the case of photographs (The Law Reform Commission 1975).

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 Complaints against Victoria Police).

There is no present or proposed procedure for the enforcement of such a claim to privacy. In practice, the police usually comply with such requests if a person has no previous record, but if they refuse there is little that can be done.

Identification parade

Victorian offences

No one is obliged, or can be compelled, to take part in an identification parade or “line-up”. 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.

The procedure is governed by the guidelines in the Victoria Police Manual (operations 111–1: identification of suspects and offenders), which are designed to provide maximum fairness to an accused person. Whether they actually do so in a particular case is always open to being challenged by an accused. The following is a summary of the rules that apply.

No person can be compelled to participate in an identification parade, but 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 attends 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.

Commonwealth offences

The Crimes Act (Cth) sets out the situations where identification parades can be conducted. It also sets out detailed procedures for the conduct of identification parades.

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.

Presence of lawyers

While lawyers are generally not present at a parade, 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.