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The Crimes (Forensic Procedures) Act 2000 allows police to take forensic samples

The Crimes (Forensic Procedures) Act 2000 allows police to take forensic samples (eg a strand of hair, a swab from inside the mouth, a blood test). These are usually used for DNA testing, to match against DNA found at the crime scene or on victims.

A forensic procedure may be carried out on a suspect, a convicted indictable offender (someone serving a prison sentence for an offence carrying a maximum penalty of 5 years or more), or a volunteer (e.g. someone who is not a suspect but wants to take a DNA test to establish their innocence).

Police powers to take forensic samples from suspects

Police have the power to carry out a forensic procedure on a suspect aged over 18 who is capable of understanding the procedure. The police must have the person's informed consent or else must get an order from either a court or a senior police officer.

Intimate forensic procedure is carried out on a person suspected of having committed an indictable offence. Non-intimate forensic procedure on the other hand is carried on person whom a police officer suspects has committed a summary or indictable offence.

Suspects who are children or incapable persons (eg people with intellectual disabilities who cannot understand the procedure or its implications) are deemed to be unable to give informed consent. To carry out a forensic procedure on them, there must be a court order.

Police powers to take forensic samples from victims

Police can also take DNA samples from victims with their consent. If the victim is a child under 14, police will instead need a parent or guardian’s consent.

Police powers to take forensic samples from volunteers

Police can conduct forensic procedures on from volunteers, eg. people who agree to provide their DNA to eliminate them from suspicion. If the volunteer is a child, the police will need a parent or guardian’s consent.

In general, most procedures must be carried out within 2 hours of the procedure being authorized (section 6 of the Crimes (Forensic Procedures) Act 2002 (NSW).

Forensic material obtained may be later destroyed if:

  • Forensic procedure is taken without proper authorization from the Magistrate
  • A conviction is quashed
  • 12 months have elapsed and proceedings against the suspect have not been instituted or have been discontinued
  • The forensic material was given voluntarily for elimination purposes
  • No conviction has been recorded
  • The person is acquitted

This article provides basic information only and is not a substitute for a professional or legal advice

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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