an ncylc e-bulletin

Issue #1: June 2003

CHILDREN AND THE CRIMES (FORENSIC PROCEDURES) ACT 2002

Introduction
The Act
Interpretation

Introduction

The Centre recently received a query regarding the possible consequences for a person under 18 years old where they refused to submit to blood and/or urine tests after being suspected of driving under the influence of alcohol or a drug (ie as charged under the Road Transport (Safety and Traffic Management) Act 1999 (NSW)).

The Act

The Crimes (Forensic Procedures) Act 2002 (NSW) gives wide powers to Police and other enforcement officers to take photographs, body samples (including DNA samples), dental impressions and casts from convicted criminals and people suspected of committing a criminal offence.

In short, the provisions affecting children are as follows (as reproduced from the NSW Commission for Children and Young People at http://www.kids.nsw.gov.au/ourwork/cfpa200.html, and reworked):

  • Procedures cannot be undertaken on children under 10: s 111.
  • A child (at least 10 but under 18) cannot consent to a forensic procedure: s 8.
  • Intimate and non-intimate procedures can by undertaken on a young person aged between 10 and 18 only by order of the Magistrate: ss 3 and 5.
  • A magistrate can order that a young person voluntarily submit to a forensic procedure if:
    • the consent of a parent or guardian cannot be obtained, or
    • the young person withdraws a consent previously given, or
    • the young person is a suspect and the procedure may produce evidence tending to confirm or disprove his/her involvement.
    • In considering whether to make an order the Magistrate must take into account the young person's best interests and young person's expressed wishes: s 80.
  • Where a Court orders that a procedure be undertaken, it must be carried out:
    • within two hours of the young person presenting to the Police (if the suspect is not under arrest) or
    • within two hours of the permitted investigation period (if the suspect is under arrest): s 6.
  • The young person must have an 'interview friend' present on the hearing of the application and may have a lawyer present. An interview friend may be a parent, guardian or other person chosen by, or acceptable to, the young person, a lawyer, Aboriginal legal aid worker or, if none of these are available, an independent person: ss 4 and 54.
  • A parent can give an informed consent to a young person undergoing a voluntary forensic procedure but the young person must be informed that if s/he objects or resists it will not be carried out.

Interpretation

In relation to blood tests, the Crimes (Forensic Procedures) Act 2000 provides that “intimate forensic procedures” (which includes the taking of a sample of blood, under s 3) can be carried out on a person between 10 and 18 years old only by the order of a Magistrate. There are also time limit requirements after the Court makes its order as to when the procedure must be carried out. Additionally, there is the requirement of an “interview friend” to be present while the procedure is being carried out.

As for the taking of urine samples, it does not appear to be covered by the Act (either as an intimate or non-intimate forensic procedure), which would imply that the police powers and road safety legislation would apply in the instance. The latter pieces of legislation do not seem to prohibit the taking of urine samples from persons under 18.

Also note that s 114 of the Act operates to not exclude the operation of laws regulating the production the samples of blood or urine to determine the level of alcohol or drugs in the bloodstream. When read together with the Road Transport (Safety and Traffic Management) Act, the Crimes (Forensic Procedures) Act 2000 appears to provide extra protection when taking blood from children between 10 and 18 (with the provision of an interview friend, etc). However, the child will still likely be charged under s 29 of the Road Transport (Safety and Traffic Management) Act for refusing to submit to the sobriety/drugs assessment.

Chelyn Woon