The DNA Dilemma

What happens if the police want to take my DNA?

What if the police approach you and ask you for a sample of your DNA such as saliva, blood, or hair etc, what are you going to do?

First, DNA stands for Deoxyribonucleic Acid and is found in all cells except red blood cells.

It is like a fingerprint and is for all intents and purposes it is a unique signature when it comes to proof and evidence in a prosecution case. It is a very powerful tool in establishing that a person was at a crime scene.

The Crimes (Forensic Procedures) Act 2000 (NSW) is the legislation that governs how DNA is to be taken and under what circumstances.

It can be taken forcibly, that is against the consent of the person, in circumstances where the police may use reasonable force. It may also be taken voluntarily or via informed consent.

There are some limitations and prohibitions around whom DNA may be taken, for example from a child or vulnerable person who has an intellectual disability.

A police officer will usually ask you for DNA if they know or think your DNA is at the scene of a crime.

They might want to either eliminate you as a suspect or think you are a suspect. Irrespective, when they ask or confront you they are seeking to exercise police power.  In those circumstances, the police are required to inform you of why and the reason they want you to provide a sample of your DNA.

Whenever police officers seek to exercise a power requiring them to comply with a law they must comply with section 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA).

As discussed above, forensic procedures may be carried out with the informed consent of a person whether they are a suspect or not. However, a child or incapable person (a person incapable of understanding the nature and effect of a forensic procedure or incapable of indicating whether they consent or do not consent to the forensic procedure) cannot give consent.

Informed consent to a suspect must be given in the manner that is outlined in section 9 of the Act. If police officers are requesting consent (and it is given) and they do not comply with these provisions any evidence that is found could be deemed inadmissible by a court and excluded under section 138 of the Evidence Act 1995.

Suspect Under Arrest – Senior Police Officer

If you are under arrest and a police officer wants to take a DNA sample from you, then they can only conduct a non-intimate forensic procedure. This means a range of things but usually, it will be a swab of your saliva (called a buccal swab), a sample of hair (other than pubic hair), nail clippings, handprints, fingerprints, footprints, toe prints, taking of photos of your body (other than private parts), and or taking measurements of your body (other than private parts) etc.

A senior police officer (of the rank of Sergeant or above) may order the carrying out of the procedure if they satisfied that:

  • You are a suspect under arrest, and
  • There are reasonable grounds to believe that you committed the offence (that means you are probably going to be charged)
  • There are reasonable grounds to believe that the procedure might produce evidence that tends to prove or disprove that you committed the offence.
  • You are neither a child or an incapable person and
  • The carrying out of the procedure is justified in all the circumstances.

In making the order the senior police officer must record those reasons.

Order of a Magistrate

The Police can also make an application to a Magistrate for the forensic procedure to be conducted.

The conditions upon which a court can make an order are similar to that of the senior police officer, that is:

  • The suspect is not under arrest and has not consented, or
  • The suspect is under arrest and has not consented, or
  • The suspect is a child or an incapable person.

The legal test is the same in that the Magistrate must find that:

  • There are reasonable grounds to believe that you committed the offence (that means you are probably going to be charged), and
  • There are reasonable grounds to believe that the procedure might produce evidence that tends to prove or disprove that you committed the offence, and
  • That the forensic procedure is justified in all the circumstances.

The application for a forensic procedure is a civil proceeding. The court only needs to be satisfied on the balance of probabilities (civil proof) and not beyond a reasonable doubt (criminal proof).

In determining whether the forensic procedure is justified the Magistrate must balance the public interest in obtaining the evidence of whether the suspect committed the offence against the public interest in upholding the suspect’s physical integrity: section 24(4).

Volunteers

A police officer may ask you to provide a sample of your DNA voluntarily. This means that you are not a suspect…yet.

For instance, you may have been at the scene where a crime occurred but you had nothing to do with it.

For example, you come across a burning house, and you go onto the property to help put out the fire. While doing that you see a bunch of jerry cans full of petrol near the fire. You grab the jerry cans and remove them so the fire can’t catch them and explode. Later on, a police officer might ask you to provide a sample of your fingerprints or provide a buccal swab (which is a forensic procedure under the Act) to eliminate you because they want to see whether someone else’s fingerprints or DNA is on the jerry cans and compare those prints and or DNA for forensic comparison on the DNA database system.

If you are a suspect a police officer cannot mislead you by asking you to be a volunteer under Part 8 of the Act.

They must comply with all the usual informed consent procedures as per section 77 of the Act.

You can also withdraw your consent before and during the procedure: Section 79(1).

If you withdraw consent to the retention of any forensic material taken and if the police choose not to seek an order for its retention (section 81) then they must destroy it as soon as reasonably practicably after the consent is withdrawn: section 79 (2)

The police may request but cannot require that you provide confirmation of your withdrawal in writing: section 79(3).

Do you know how your DNA is used and compared?

It is important for you to know that in obtaining your consent the police must advise you if they want to use your DNA (such as in the above example) whether you consent to it being used for a ‘limited purpose’ or ‘unlimited purpose’.

The limited purpose would be only to use your DNA in connection with the investigation into the house fire.

An unlimited purpose is they may use your DNA for other investigations and across different jurisdictions.

This may not concern you but I will always advise clients that if they want to consent to be a volunteer and provide DNA to assist the police, then the most prudent path is not to agree to provide your DNA for an unlimited purpose so that your DNA isn’t used for matters that are unrelated to the original purpose for which your consent was given.

You may also want to think of protecting your DNA from inadvertently being used unlawfully. Police are human beings and can make mistakes and have demonstrated recklessness in the past in regard to the handling of evidence.

You should always seek legal advice about your circumstance so you can be properly advised about any potential pitfalls and issues that could arise.

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