24 MARCH 2016

I recently had a client seek my advice regarding an order the Police made under the Crimes (Forensic Procedures) Act 2000 (“the Act”).

The Act enables the Police to “backcapture” DNA, that is, request an individual undergo a forensic procedure to obtain a DNA sample for inclusion on a national database if that individual has previously served a gaol sentence for a serious indictable offence.

Immediately, questions about issues of privacy and appropriateness are raised. Should an individual, who, in this case, had not had any dealings with the police for a period of 8 years be subject to such a procedure? Is it in the public interest to obtain DNA from past offenders or does it go against a basic human right?

The Act does not specifically state if the individual must be a current suspect of crime but the Second Reading Speech given in the Legislative Assembly in September 2006 does. It specifically states:

“…those who have finished their sentences, have been fully rehabilitated, and pose no further risk to society will not be affected. DNA backcapture laws will only require a former serious offender to provide a sample when that person is charged with a fresh indictable offence.”

Interestingly, this was not how the Police interpreted the Act and the application was made. I was able to have the application dismissed by the Court.

One might question in what circumstances an application would be granted. Most probably the Police would need to have cogent evidence that the individual is suspected of involvement in further serious offending.