When can the police take DNA evidence?
When DNA (Deoxyribo Nucleaic Acid) as a source of evidence was first developed, it was hailed as leap light years ahead in forensic science and as a tool in crime investigation and evidence gathering. The law was amended in many parts of the world to give the police broad powers to use DNA as a source of evidence and often collect samples of DNA without the consent of the subjects. Under the CRIMES (FORENSIC PROCEDURES) ACT 2000 in New South Wales, originally the police could take DNA and it was an offence to refuse a sample. However, this power is now only granted to magistrates and 'authorised officers'. Now, the informed consent of a suspect in an investigation is necessary in order to procure a DNA sample and there is a large amount of information that must be given to the subject before they can be considered to have given their informed consent.
To be considered as having given informed consent, the subject must be given the following information:
(a) that the giving of information and the giving of consent (if any) by the suspect, is being or will be recorded by electronic means, or in writing, and that the suspect has a right to be given an opportunity to hear or view the recording;
(b) the purpose for which the forensic procedure is required,
(c) the offence in relation to which the police officer wants the forensic procedure carried out,
(d) the way in which the forensic procedure is to be carried out,
(e) that the forensic procedure may produce evidence against the suspect that might be used in a court of law,
(f) that the forensic procedure will be carried out by an appropriately qualified police officer or person,
(g) that the suspect may refuse to consent to the carrying out of the forensic procedure,
(h) the consequences of not consenting
(i) if the police officer intends forensic material obtained from the carrying out of the forensic procedure to be used for the purpose of deriving a DNA profile on the suspect-that information obtained from analysis of the forensic material obtained from carrying out the forensic procedure may be placed on the DNA database system and the rules that will apply under this Act to its disclosure and use, including that the information may be compared with information from the DNA database systems of other participating jurisdictions.
However, the present position of the law has not come without some controversy. Professor Findlay of Sydney University Law School has asked for reform in this area. After handing over his 176-page report, Findlay waited for his recommendations to form the basis of what he hoped would be tighter regulation of this crucial part of the criminal justice system. "Nothing of substance has happened -- certainly nothing in terms of legislation," says Findlay. Justice Barr, an acting judge of the NSW Supreme Court, was given responsibility this month for conducting a second review of the regulation of DNA and forensic science evidence. If you have further questions about DNA evidence, you can contact the author using the links below.
To be considered as having given informed consent, the subject must be given the following information:
(a) that the giving of information and the giving of consent (if any) by the suspect, is being or will be recorded by electronic means, or in writing, and that the suspect has a right to be given an opportunity to hear or view the recording;
(b) the purpose for which the forensic procedure is required,
(c) the offence in relation to which the police officer wants the forensic procedure carried out,
(d) the way in which the forensic procedure is to be carried out,
(e) that the forensic procedure may produce evidence against the suspect that might be used in a court of law,
(f) that the forensic procedure will be carried out by an appropriately qualified police officer or person,
(g) that the suspect may refuse to consent to the carrying out of the forensic procedure,
(h) the consequences of not consenting
(i) if the police officer intends forensic material obtained from the carrying out of the forensic procedure to be used for the purpose of deriving a DNA profile on the suspect-that information obtained from analysis of the forensic material obtained from carrying out the forensic procedure may be placed on the DNA database system and the rules that will apply under this Act to its disclosure and use, including that the information may be compared with information from the DNA database systems of other participating jurisdictions.
However, the present position of the law has not come without some controversy. Professor Findlay of Sydney University Law School has asked for reform in this area. After handing over his 176-page report, Findlay waited for his recommendations to form the basis of what he hoped would be tighter regulation of this crucial part of the criminal justice system. "Nothing of substance has happened -- certainly nothing in terms of legislation," says Findlay. Justice Barr, an acting judge of the NSW Supreme Court, was given responsibility this month for conducting a second review of the regulation of DNA and forensic science evidence. If you have further questions about DNA evidence, you can contact the author using the links below.
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