Page 1264 - Week 04 - Thursday, 10 April 2008
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The bill addresses a range of operational issues that ACT Policing have identified under the current act. An unintended legislative gap has prevented ACT Policing from obtaining forensic samples from convicted serious offenders when they are suspects for another crime that does not warrant the taking of a forensic procedure. The bill ensures that forensic samples are taken from all convicted serious offenders so that they cannot evade detection for other offences they may commit.
The bill also addresses the rules surrounding the destruction of forensic samples belonging to suspects. The existing act requires that all material—including materials obtained through non-intimate processes, such as photographs, casts and fingerprints—belonging to a suspect be destroyed after one year unless the Director of Public Prosecutions makes a successful application to the court for the material to be retained for a longer period. While this provision may have provided some protection for suspects, it has proved to be a risky investigative tool for police, with potential evidence being lost when an investigation has spanned a long period of time.
In looking at how best to address this issue, the benefits of preserving forensic material as evidence need to be balanced against the rights of an individual to have their privacy and DNA profile protected. As a result, the bill now distinguishes between the identifying information that is obtained from a person’s forensic sample—that is, their DNA analysis, which can be placed on a DNA database and compared against all other DNA profiles on the database—and the forensic material itself—the actual swabs, blood samples or fingerprints. The existing provisions are retained with respect to the identifying material so that it must be removed from DNA databases after 12 months or, if the person is acquitted of the charge, in less than 12 months. The police, though, still have the ability to apply to keep those samples on the database if there is a proper forensic purpose.
To round out the new approach to preserving forensic evidence, a new provision is introduced in the bill that allows police to retain forensic samples for the life of the investigation. The suspect is still afforded protection as, if proceedings have not been commenced against the suspect, the suspect will have the right to apply for the destruction of the material after a year and the police will be required to show why the material should be retained. This new provision provides police with greater certainty that they can retain evidence in ongoing investigations and prosecutions without fear that it will be destroyed part way through the process.
Another issue that has affected the efforts of police in the investigation of crimes is the situation that occurs when a suspect avoids coming to court for the hearing of an application for a forensic sample to be taken or where the suspect is apprehended in another jurisdiction and is in the custody of that state or territory. The existing act did not provide for this common situation. This bill introduces the ability for a magistrate to make an order for a forensic procedure in the absence of the suspect where the suspect is in the custody of another jurisdiction and cannot appear by audio link, video link or hearing or where a person who has been served with a summons to appear before a magistrate chooses not to appear.
Victims of crime often provide forensic samples to police to aid in the investigation of the crime. The bill introduces new provisions to ensure that these volunteers are
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