DNA


There are strict procedures that must be followed by police and medical staff when collecting DNA samples.

The Crimes (Forensic Procedure) Act 2002 (NSW) sets out the forensic procedures the police are able to perform in respect to DNA.

Types of forensic procedures

A forensic procedure does not include an intrusion into a person’s body cavity except the mouth. Nor does it include the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken.

1. Intimate forensic procedure

An intimate forensic procedure may only be carried out on a person suspected of having committed a “prescribed offence”.  A prescribed offence means an indictable offence, or any offence prescribed by the regulations.  Currently, there are no offences prescribed by the regulations.

Intimate forensic procedures include:

(a)  an external examination of a person’s private parts
(b)  the carrying out on a person of an other-administered buccal swab
(c)  the taking from a person of a sample of the person’s blood
(d)  the taking from a person of a sample of the person’s pubic hair
(e)  the taking from a person of a sample of any matter, by swab or washing, from the person’s private parts
(f)  the taking from a person of a sample of any matter, by vacuum suction, scraping or lifting by tape, from the person’s private parts
(g)  the taking from a person of a dental impression
(h)  the taking of a photograph of the person’s private parts
(i)  the taking from a person of an impression or cast of a wound from the person’s private parts

2. Non-intimate forensic procedure

A non intimate forensic procedure may be carried out on a person whom a police officer suspects has committed a summary or indictable offence.

Non-intimate forensic procedures include:

(a)  an external examination of a part of a person’s body, other than the person’s private parts, that requires touching of the body or removal of clothing
(b)  the carrying out on a person of a self-administered buccal swab
(c)  the taking from a person of a sample of the person’s hair, other than pubic hair
(d)  the taking from a person of a sample (such as a nail clipping) of the person’s nails or of matter from under the person’s nails
(e)  the taking from a person of a sample of any matter, by swab or washing, from any external part of the person’s body, other than the person’s private parts
(f)  the taking from a person of a sample of any matter, by vacuum suction, scraping or lifting by tape, from any external part of the person’s body, other than the person’s private parts
(g)  the taking from a person of the person’s hand print, finger print, foot print or toe print
(h)  the taking of a photograph of a part of a person’s body, other than the person’s private parts
(i)  the taking from a person of an impression or cast of a wound from a part of the person’s body, other than the person’s private parts
(j)  the taking of a person’s physical measurements (whether or not involving marking) for biomechanical analysis of an external part of the person’s body, other than the person’s private parts

Time limits for forensic procedures

Generally, most procedures must be carried out within 2 hours of the procedure being authorised. More detailed information on time limits can be found in section 6 of the Crimes (Forensic Procedures) Act 2002 (NSW).

How forensic procedures can be authorised in different circumstances

The following table shows the circumstances in which a forensic procedure may be carried out on a suspect, and shows the provisions that authorise the carrying out of the procedure.

Suspect’s status Intimate forensic procedure Non-intimate forensic procedure
Adult not under arrest With informed consent under Part 3
By order of a Magistrate or an authorised officer under Part 5
With informed consent under Part 3
By order of a Magistrate or an authorised officer under Part 5
Adult under arrest With informed consent under Part 3 By order of a Magistrate or an authorised officer under Part 5 With informed consent under Part 3 By order of a senior police officer under Part 4
Incapable person (whether or not under arrest) By order of a Magistrate or an authorised officer under Part 5 By order of a Magistrate or an authorised officer under Part 5
Child at least 10 but under 18 (whether or not under arrest) By order of a Magistrate or an authorised officer under Part 5 By order of a Magistrate or an authorised officer under Part 5

What is informed consent?

A suspect’s consent will only be informed consent if it is given after the police have given the suspect (personally or in writing):

  • the information that the suspect must be given under section 13(1)(a), (e), (f), (g), (i), (j) and (k) of the Crimes (Forensic Procedures)Act 2000 (NSW), and
  • a description of the nature of the information that the suspect must be given under section 13(1)(b), (c) and (d), and

In addition, the police officer must be satisfied that

  • the person on whom the procedure is proposed to be carried out is a suspect
  • the person on whom the procedure is proposed to be carried out is not a child or an incapable person, and intimate forensic procedure / taking a sample of hair – not pubic / taking a sample by buccal swab
  • there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed:
    (i) a prescribed offence, or
    (ii) another prescribed offence arising out of the same circumstances as that offence, or
    (iii) another prescribed offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and non intimate forensic procedure
  • other than taking a sample of hair other than pubic hair—there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed:
    (i) an indictable or a summary offence, or
    (ii) another indictable or summary offence arising out of the same circumstances as that offence, or
    (iii) another indictable or summary offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and (e) the request for consent to the forensic procedure is justified in all the circumstances.

In addition, the police officer must have asked the suspect to consent to the forensic procedure and informed the suspect about the forensic procedure, giving the suspect a reasonable opportunity to communicate, or attempt to communicate, with a legal practitioner of the suspect’s choice and, provided the suspect is not under arrest, to do so in private.

Your rights during a forensic procedure

Part 6 of the Crimes (Forensic Procedures) Act 2000 (NSW) outlines rules for carrying out forensic procedures on suspects. These rules include safeguards of your rights, such as:

  • The suspect must be afforded reasonable privacy.
  • The procedure must not involve more visual inspection than is required.
  • The procedure should not be carried out in the presence of a person of the opposite sex, unless it is a self-administered buccal swab.
  • Before anyone starts to carry out a forensic procedure on the suspect, a police officer must caution the suspect that he or she does not have to say anything while the procedure is carried out but that anything the person does say may be used in evidence.
  • Reasonable force may be used to enable a forensic procedure to be carried out and to prevent the loss, destruction or contamination of any sample. However, the procedure may not be carried out in a cruel, inhuman or degrading way.
  • A child, incapable person or Aboriginal or Torres Strait Islander must, if reasonably practicable, have an interview friend (parent or guardian or other person chosen by or acceptable to the suspect or offender, a representative of an Aboriginal legal aid organisation) and/or legal representative present while the forensic procedure is being carried out.

The destruction of forensic material

Forensic samples will be destroyed if:

  • Taken pursuant to an interim order if the order is disallowed by the Magistrate;
  • A conviction is quashed;
  • 12 months have elapsed and proceedings against the suspect have not been instituted or have
  • been discontinued (the 12 month period may be extended by a Magistrate if satisfied that there are special reasons to do so);
  • The forensic material was given voluntarily for elimination purposes;
  • No conviction has been recorded; or
  • The person is acquitted (and there is no appeal lodged regarding the acquittal or the appeal was unsuccessful or withdrawn).

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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