The law in this area is set out in the Criminal Law (Forensic Procedures) Act 2007 (SA).
The Act grants police very broad powers to take a DNA sample from you. There are two main ways that they can take a sample involuntarily – a “suspect procedure” and an “offender procedure”.
A “suspect procedure” can be used if the police suspect you of a “serious offence”. If they even suspect you, they are permitted to obtain a DNA sample from you. This is usually done by use of a “buccal swab” – essentially the rubbing of a cotton bud type implement inside your cheek. What is a “serious offence”? The Act defines this term extremely broadly. Anything that is an indictable offence (ie more serious offences) or which is a summary offence punishable by imprisonment is covered. This definition covers a wide variety of petty offences.
An “offender procedure” can be used on any of the following:
- Anyone serving a term of imprisonment, detention or home detention;
- Anyone declared liable to be detained or who is actually being detained under Part 8A of the Criminal Law Consolidation Act 1935 due to a mental impairment;
- Anyone convicted of a serious offence by a court.
The police can use force to take a sample from you. It is an offence to resist.
The legislation contains provisions establishing the state “DNA Database System”. There are provisions for the destruction of DNA samples taken from victims of crime and volunteers, but there are no such provisions for suspects or offenders. If you have been the subject of a suspect procedure or an offender procedure, your DNA will be added to the database and remain there indefinitely. It can be compared to DNA samples obtained in connection with past and future criminal activity.
Dewar Legal has experience in dealing with DNA samples and in challenging DNA evidence in connection with criminal law matters.
If you are suspected of a criminal offence or have been charged, you should immediately contact a criminal lawyer. Dewar Legal acts in criminal law matters in South Australia. Please call (08) 8311 3964 or click here to contact Dewar Legal about your criminal law matter today.