DNA Samples (Vic)

The Crimes Act 1958 authorises a police officer to collect a “DNA profile sample” in certain situations. A DNA profile sample is a sample taken to derive a DNA profile. It can be a sample of blood, hair, saliva or a scraping from the mouth.

When can police take a DNA sample?

A police officer can request a DNA profile sample from an adult who:

• is suspected of committing or attempting to commit an indictable offence;
• has been charged with an indictable offence;
• has been summonsed over a charge for an indictable offence.

The sample can be taken if the adult gives informed consent or a senior police officer authorises the taking of a sample.

An officer can also request a DNA profile sample from a child aged between 15 and 18 who:

• is reasonably believed to have committed a “DNA sample offence”;
• has been charged with a DNA sample offence;
• has been summonsed over a charge for an DNA sample offence.

“DNA sample offences” include murder, manslaughter, rape, kidnapping, armed robbery, arson causing death and drug trafficking.

The sample can be taken if the child and parent or guardian give informed consent or a senior police officer authorises the taking of a sample.

A police officer must inform the person providing the sample:

• why the sample is required;
• the procedure for collecting it;
• the offence the person is suspected of committing, or has been charged with, or the charge they have been summonsed to answer;
• that the sample could produce evidence to be used in a court;
• that the sample will be destroyed after 12 months if the person has not been charged with an offence or has been found not guilty of the offence;
• that the person’s DNA will be stored on a DNA database and could be used in a criminal investigation;
• that the person can refuse to give a sample, and if they do, a senior police officer can authorise the taking of the sample.

The giving of this information and the person’s responses must be recorded by audio recording or audio-visual recording, or in writing signed by the person.

A police officer is also required to warn the person that they do not have to answer questions asked by the sample-taker, but anything they do say may be given in evidence. Police can be authorised to take a scraping of a person’s mouth; other samples must be taken by a medical practitioner or nurse. If the sample is to be taken from a child, a parent or guardian must be present.

Sex offenders

A police officer can direct that a DNA profile sample be taken at any time from a “registrable offender” – a person who has been sentenced at any time for sexual crimes against a child – if police do not have a sample from that person which can be retained indefinitely. A senior police officer can order a registrable offender to attend a police station to have a sample taken within 28 days of service of a notice. A warrant can be issued for non-compliance.

Other serious criminals

A police officer can direct that a DNA profile sample be taken from a person who has been found guilty of an indictable offence. This authorisation cannot be given until the appeal period expires or an appeal against the verdict is dismissed. The sample can be retained indefinitely.

Juveniles

If a person has a DNA profile taken as a child, and a person commits no further offences before reaching age 26, the sample must be destroyed.

DNA database

DNA database means the Victorian DNA Database, National Criminal Investigation DNA Database, or DNA database of another state or territory. The use of information stored in the Victorian database is limited under the Act to purposes including the identification of a body, a coronial inquest, and investigations into public sector corruption or misconduct.

Volunteering a sample

An adult can volunteer a sample to a police officer with consent. That consent allows the sample to be analysed, placed on a DNA database and used in a criminal investigation, unless the volunteer specifies a limited purpose. Consent also acknowledges that the volunteer understands that information gained from an analysis could produce evidence to be used in a court. Consent to retain the sample can be withdrawn at any time but a police officer can apply to the Magistrates Court for an order to retain the sample.

Destruction of sample

“Destruction” of a sample means physical destruction of the sample and removal from the DNA database of the DNA profile derived from it, as well as destruction of any form of the DNA profile that could combine with other information to identify a person.

For advice or representation in any legal matter, please contact Armstrong Legal.