A forensic procedure under section 14 of the Criminal Law (Forensic Procedures) Act 2007 (SA) is known as a suspects procedure.
With a suspects procedure, simple forensic procedures (which includes a simple indentity procedure, a gun shot residure procedure and other procedures prescribed by regulation) [see s3, s14(2)] can be carried out on any person suspected of committing a serious offence.
The taking of a DNA profile of a person is a simple identity procedure. Samples are obtained either by buccal swab (taken from the cheek area inside the mouth) or by finger-prick.
The taking of hand or fingerprints is also a simple identity procedure [see s 3 Criminal Law (Forensic Procedures) Act 2007 (SA)].
A suspect or offender has no right to refuse a request for a simple identity procedure and it is an offence to obstruct or resist [see s 32; and Use of Reasonable Force (above)].
A suspects procedure may be carried out on persons whether or not they are in custody [see s 14(3)]. The police may issue directions for a person to attend a police station for the purpose of providing a DNA sample [see Directions to Persons not in Custody (below)].
A simple identity procedure does not require the authorisation of a senior police officer [see s 14].
|In their advice the duty solicitor must inform the person that they will be required to undertake a buccal swab for the DNA database system. Reasonable force can be used to obtain this sample and any resistance can result in further criminal charges.|
Any other forensic procedure conducted on a person suspected of having committed a serious offence (aside from a simple forensic procedure) requires authorisation by a senior police officer [see Criminal Law (Forensic Procedures) Act 2007 (SA) s 14(2); s 15 for application for an order authorising a forensic procedure; s 19 for considerations in making an order].
The police officer applying for the order for a forensic procedure must state in writing the nature of the suspected offence, the grounds for the suspicion that the person has committed the offence, the nature of the forensic procedure sought and how the forensic procedure will provide evidence of value to the investigation of the offence [see Criminal Law (Forensic Procedures) Act 2007 s 15(2)].
The person who is the subject of the application for the forensic procedure (known as the respondent), has a right to legal representation (as well as other representation if they are a child, or physically or mentally incapable of understanding the nature and consequences of the procedure) at the hearing of the application [see Criminal Law (Forensic Procedures) Act 2007 (SA) ss 17(1), 17(2) and 17(3)].
The application can be conducted by telephone or other electronic means [see s 17(4)].
The representative must be given an opportunity to make representations at the hearing to the senior police officer determining the application [see s 17(4)].
In making a decision about an order for a forensic procedure, a senior police officer must be satisfied there are reasonable grounds to suspect the person of the serious offence, the procedure could produce evidence of value to the investigation, and the public interest weighs in favour of obtaining evidence of the offence [see s 19(1); and s 19(2) for public interest considerations].
Also note that, as of 12 December 2016, under section 20B a senior police officer may requite a sample of blood to be provided if the person is suspected of a prescribed serious offence and is likely to have come into contact with a police officer or person involved in emergency work, or someone involved in the provision of services at a hospital (medical practitioner, nurse etc).This procedure can be carried out whether or not the person is in lawful custody [s 20B(3)].