Can You Refuse to Give a DNA Sample to Police?

By Jimmy Singh and Fahim Khan

Australian criminal law can be complex to understand, especially when it’s concerning police rights regarding when they can and can’t carry out intrusive tests on your body.

Generally, DNA samples are considered to be more effective at solving crimes than fingerprints. DNA samples are considered to be very effective in regard to burglary, and car theft offences.

There are significant advantages from the obtaining of DNA samples from suspects, which include speeding up investigation times in cases, and assistance in solving serious crimes.

However, taking DNA from people does involve an extent of intrusion to your body, which can be done by your consent, by the use of force by a police officer or courts (without your permission).

These days, the police powers extend to police officers capable of asking you to consent to give them samples of your DNA, which includes fingerprints, samples of your saliva, and other kinds of intimate samples from your body.

Interestingly, police powers in NSW extend to now replace the courts role in granting orders for certain kinds of forensic procedures to be conducted on people.

The police are only allowed to exercise these kinds of powers if they comply with strict checks and balances reflected in the Crimes (Forensic Procedure) Act 2000 (NSW).

In contrast, Victorian police now no longer need court approval to obtain DNA samples from people suspected of serious crimes.

DNA includes your fingerprints, your saliva, or blood etc. It can be obtained from conducting forensic procedures with or without your permission in certain circumstances.

What is a Forensic Procedure?

Have you ever wondered, “do I have the right to refuse fingerprinting?”.

Forensic procedures can be intimate or non-intimate procedures to obtain samples, hand prints, fingerprints, foot/toe prints, photo’s or casts or impressions taken from your body.

It doesn’t include “any intrusion into your body cavities” unless it’s your mouth. It also doesn’t include the taking of a sample from you for the purpose of discovering your identity.

What is an Intimate and Non-Intimate Forensic Procedure?

An intimate forensic procedure includes:

  • External examination of your private parts
  • Carrying out a buccal swab by someone other than you
  • Taking samples of your blood, pubic hair, taking swabs of washing your private parts to obtain samples of any matter
  • Taking samples by vacuum suction, scraping or lifting by tape from your private parts
  • Taking your dental impressions
  • Taking photos of your private parts
  • Taking impressions or cast of a wound from your private parts

An non-intimate forensic procedure includes:

  • Examining external parts of your body, other than private parts. This can include the requirement to touch or remove your clothes
  • Self-administered buccal swab
  • Taking your hair (other than pubic hair)
  • Samples of your nail clipping or matter from under your nails
  • Taking samples of matter by swab or washing from external parts of your body, other than private parts. This extends to using a vacuum suction, scraping or lifting by tape on an external part of your body (other than your private parts)
  • Taking your handprint, fingerprints, footprints or toeprints
  • Taking photos of your body (other than your private parts)
  • Taking impressions or cast of a wound from a part of your body (other than your private parts)
  • Taking measurements of your body or body parts (other than your private parts)

Can Force be Used in Carrying Out a Forensic Procedure on You?

If you have refused to provide permission to be subjected to a forensic procedure, and where the forensic procedure to obtain your DNA was later ordered by a police officer or the Court, the person authorised to carry out the procedure on you (authorised person or police officer) is then allowed to use reasonable force on you to enable for the forensic procedure to occur.

That person may also use reasonable force to prevent any loss or destruction (or contamination) of any sample obtained.

The forensic procedure must be conducted in a way that’s consistent with appropriate medical or other relevant professional standards.

In these circumstances, any forensic procedure conducted on you, must not be carried out in “a cruel, inhuman or degrading manner”. The carrying out of the procedure itself is not considered to be cruel, inhuman or degrading.

When Can a Forensic Procedure be Carried Out on You?

Your permission to comply with a forensic procedure can be requested by the Police in certain circumstances where you’re not under arrest or after being arrested.

Before going into the circumstances of being requested for permission when not under arrest, it’s important to understand when the police can arrest you. It’s important to understand this because if the police end up getting your DNA following an illegal arrest, the DNA evidence obtained can be kicked out and not used in court.

Under s99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the police can only arrest you without a warrant if:

  • The police officer suspects on reasonable grounds that you are, or have, committed an offence; and
  • Where the officer believes that arresting you is reasonably necessary for any one of more of the following reasons:
    • To stop you from committing or repeating the offence, or committing another offence;
    • To stop you from getting away;
    • To enable enquiries to be made to discover your identity in certain circumstances where it’s not readily ascertainable, or if the officer suspects (on reasonable grounds) that the information you gave was false;
    • To ensure that you appear at court regarding an alleged offence;
    • To ensure that evidence is preserved or to prevent the fabrication of evidence;
    • To obtain property you have, that’s connected to the offence;
    • To prevent the harassment/interference with any potential witnesses;
    • To protect the safety of someone (including yourself);
    • Because of the nature/seriousness of the offence.

After being arrested, the police can detain you in order to investigate whether you committed the offence.

How Long Can the Police Detain You for After Arrest?

The police can detain you for a maximum of 6 hours from the time of your arrest. The 6-hour period is referred to as the ‘investigation period’ and can be extended if a detention warrant is issued.

Importantly, that 6-hour period doesn’t include ‘time outs’. The time taken to carry out a forensic procedure, or to prepare, make or dispose of a forensic procedure application in court isn’t included as part of that 6-hour investigation period.

What is the significance of knowing this? Well, if the police illegally hold you for longer than they are allowed, then any evidence obtained as a result can be kicked out of court-and isn’t allowed to be used as evidence against you.

What is a ‘Time Out’?

‘time out’ periods do not count towards the 6-hour investigation period that police are allowed to detain you for.

‘Time out’ periods include the time taken:

  • To convey you to the nearest facilities to carry out a forensic procedure;
  • To wait for the police officer or a qualified person to arrive to carry out a forensic procedure on you;
  • To wait for facilities or equipment needed to become available for the forensic procedure;
  • For you to communicate or consult with a lawyer or friend, family member, interpreter or doctor;
  • To wait for you to recover from effects of alcohol or drugs;
  • To wait for a senior police officer or magistrate to make an order regarding a forensic procedure.

How Forensic Procedures Can Be Legally Authorised on You

As there are 2 types of Forensic Procedures, intimate and non-intimate- there are various circumstances where these procedures can be carried out on you. The various circumstances are explained below.

Forensic Procedure Where You Give Permission

If you are an adult, an intimate and non-intimate forensic procedure can be carried out on you by the police if you give permission, and if certain checks and balances are satisfied, including:

  • Informed Consent: Where you give ‘informed consent’ for police to carry out the forensic procedure. This means that the police must comply with rules. These rules include:
  • Request for Consent: There needs to first be a request for your permission by the Police to conduct the forensic procedure. The Police are not allowed to request for your consent unless the following is satisfied first:
    • Where it involves an intimate forensic procedure: The alleged offence is an offence that carried a maximum penalty of 5 years imprisonment or more, and where there are reasonable grounds to believe that the procedure might product evidence tending to prove or disprove your guilt.
    • Where it involves a non-intimate forensic procedure: In relation to an alleged offence, where there are reasonable grounds to believe that the procedure might reveal evidence tending to prove or disprove your guilt.
    • Where the request for your consent is justified in the circumstances. (this is explained further below)
  • Police must provide you with certain information: The Police must inform of certain things, including, that you may refuse to consent to this, the consequences of not consenting, the way the procedure is to be carried out, the offence relating to the forensic procedure, the purpose that the procedure is required for. The list of other things are expressed in section 13 of the Crimes (Forensic Procedures) Act 2000 (NSW).
  • Allow you to contact a lawyer: A requirement that police allow you a reasonable opportunity to communicate with a lawyer.
  • When carrying out a forensic procedure, police must comply with Part 6 of the Crimes (Forensic Procedures) Act 2000 (NSW), which include the following:
    • Police must provide you with reasonable privacy, and generally must not carry out the procedure in the presence of a person of the opposite sex as you.
    • Police must carry out the procedure in the presence or view of people whose presence isn’t necessary.
    • The procedure must not involve the removal of more clothing or visual inspection than necessary.
    • There must be no questioning during the forensic procedure.
    • Before the forensic procedure starts, the police must tell you that you don’t have to say anything while the procedure is carried out, and that anything you do say may be used in evidence.
    • Generally, if practicable, in respect to intimate and non-intimate forensic procedures, (other than taking blood, saliva, or taking off an overcoat, jacket, gloves, socks, shoes, scarf or hat), the procedure is to be carried out by a person of the same gender as you.

Forensic Procedure Where You Refuse Permission

If you are an adult, an intimate and non-intimate forensic procedure can be carried out on you by the police where you refuse permission, and if certain checks and balances are satisfied, including:

  • You refused permission: You have refused to give permission for police to carry out a forensic procedure.
  • Court orders the forensic procedure: Where the Magistrate makes an order to allow the forensic procedure to take place. The Magistrate will only make this order if satisfied that on the balance of probabilities the following 2 points are satisfied:
  • Where the forensic procedure is justified in the circumstances: Were the public interest in obtaining evidence relevant to your guilt, against the public interest in upholding your physical integrity. The Magistrate will consider the gravity of the alleged offence, seriousness of the circumstances, degree of your alleged participation, your age, cultural background, mental health, whether there are other practicable ways of getting the evidence in a less intrusive way, reasons why you had initially refused to give your consent.
  • Where it involves an intimate forensic procedure: Here the police must prove that there are reasonable grounds to believe that you committed an offence that carries a term of 5 years imprisonment or more. In addition, police must also prove that there are also reasonable grounds to believe that the forensic procedure may show evidence tending to confirm or disprove your guilt.
  • Where it involves a non-intimate procedure: Here the police must prove that there are reasonable grounds to believe that you committed an offence, and that there are also reasonable grounds to believe that the forensic procedure may show evidence tending to confirm or disprove your guilt.
  • Police must also comply with Part 6 of the Crimes (Forensic Procedures) Act 2000 (NSW): As explained earlier.

Can Police Carry Out DNA Tests Without a Court Order & Without Your Permission?

Where you refuse permission for police to conduct a non-intimate forensic procedure, after being arrested for an alleged offence, the police do not need to get an order by a Magistrate to conduct the procedure.

A senior police officer (an officer of or above the rank of sergeant) can order the carrying out of a non-intimate forensic procedure on you (after you have been arrested) if each of the following points are satisfied:

  • Request for Consent: There needs to first be a request for your permission by the Police to conduct the forensic procedure. The Police are not allowed to request for your consent unless the following is satisfied first:
    • Where it involves a non-intimate forensic procedure: In relation to an alleged offence, where there is reasonable grounds to believe that the procedure might reveal evidence tending to prove or disprove your guilt.
    • Where the request for your consent is justified in the circumstances. (this is explained further below).
  • You then refuse permission to conduct the forensic procedure.
  • There are reasonable grounds to believe that you committed an offence.
  • There are reasonable grounds to believe that the forensic procedure may reveal evidence tending to confirm or disprove your guilt.
  • Carrying out the forensic procedure if justified in the circumstances. (this is explained earlier).

Forensic Procedures Concerning Children and Vulnerable People

Where an adult is incapable of giving consent or understanding in respect to an intimate or non-intimate forensic procedure, the police are not allowed to carry out the procedure at all, unless a court order is obtained. The same applied in relation to children.

Time Limits to Conduct Forensic Procedures

Where a child or person incapable of consenting or understanding has been ordered to comply with a forensic procedure, and where that person hasn’t been arrested:

  • A forensic procedure must be carried out by police within 2 hours after the person presents him/herself to the police station after the court order has been made.

However, where a child or person incapable of consenting or understanding has already been arrested, and a court order has subsequently been ordered for a forensic procedure:

  • A forensic procedure must be carried out within 2 hours from the expiration of the 6-hour investigation period (investigation period starts from time of arrest and doesn’t include the time taken during the process of getting a court order).

In any other case, where you are an adult, a forensic procedure must be carried out within 2 hours from the expiration of the 6-hour investigation period where:

  • You consent to, a senior police officer, or a court grants, the carrying out of an intimate or non-intimate forensic procedure on you after you have been arrested.

In those circumstances, where you have not been arrested, a forensic procedure must be carried out on you by police within 2 hours from when you present yourself to the police officer.

As a criminal defence law firm, our lawyers are available 24/7 to answer any further questions arising from this blog.

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