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SAPOL must destroy stolen DNA!
It wasn’t that long ago that DNA evidence was first being introduced into our legal system through state legislation. At the time civil libertarians had grave concerns about how the police may use and abuse this new technology and power.
Many people, like myself that stand to protect out most basic civil rights, were up in arms about the taking of our DNA. We wanted to know that if our DNA was to be taken, that there were in place protections to not only protect our civil liberties but also the rights of the innocent.
"while protections are in place, in regards to our civil liberties, they must be upheld"
The government promised that they would include such safe guards and that if found 'not guilty' respective DNA samples would be destroyed.
Under the Rann government when a man was convicted on DNA evidence which was ‘promised’ to have been destroyed from a previous not guilty verdict, the people knew the governments promises were a lie. Enactments were quickly made to quash the appeal by retrospectively changing legislation…and from that point on, the initial safeguards that we were promised were slowly eroded…now little is left of them.
Thankfully, there are some safeguards still in place to protect the civil liberties of our citizens. But who is protecting them, it is definitely not SAPOL, as is becoming very apparent,
This is not a new debate, the police have been abusing their powers for as long as they have had them, but for the purposes of this article I’ll try limit their abuse and contempt of the law to the issue of taking DNA samples.
The majority of the people out there would believe (or lime to be lead to believe) that mistakes by SAPOL would be simply that, and if a mistake was pointed out to them, it would be corrected in a timely manner.
I have a personal case where I know this not to be true, in fact I have many, which is a shame considering I have no criminal history at all, in fact I have publicly fought for accountability across the board for many years. Mark
A notable doctrine of our criminal law system is that of innocent until proven guilty and it is from this doctrine that the Criminal Law (Forensics Procedures) Act 2007 (SA) draws its distinction between Suspects and Offenders.
As a suspect, the legislature provided certain safeguards to protect the innocent. One such safeguard was that forensic procedures had to be approved by a senior police officer (a police officer of or above the rank of inspector). Another important safeguard was that the procedure had to be relevant to the investigation and could produce some evidence of value.
The offence that they suspect a person to have committed must be a serious offence and the must have a reasonable ground to suspect it was that person.
In most recent cases it appears all the police feel they have to do in their eyes, is suspect you of any offence, whether that be worthy or not, but this is not the case.
A serious offence is defined in the interpretation section of the Criminal Law (forensic procedures) Act 2007: serious offence means—
(a) an indictable offence; or
(b) a summary offence that is punishable by imprisonment;
A forensic procedure is defined in the interpretation section of the Criminal Law (forensic procedures) Act 2007:
forensic procedure means a procedure carried out by or on behalf of South Australia
Police or a law enforcement authority and consisting of—
(a) the taking of prints of the hands, fingers, feet or toes; or
(b) an examination of a part of a person's body (but not an examination that can
be conducted without disturbing the person's clothing and without physical
contact with the person); or
(c) the taking of a sample of biological or other material from a person's body
(but not the taking of a detached hair from the person's clothing); or
This would include, for example, taking a sample of the person's hair, a sample
of the person's fingernails or toenails or material under the person's fingernails
or toenails, a blood sample, a sample by buccal swab or a sample of saliva.
(d) the taking of an impression or cast of a part of a person's body;
This would include, for example, the taking of a dental impression or the taking
of an impression or cast of a wound.
So would a simple identity procedure be considered a forensic procedure? Yes in fact it does, do SAPOL know this?
Simple identity procedure means a forensic procedure consisting of 1 or more of the
(a) the taking of prints of the hands or fingers of a person;
(b) the taking of forensic material from a person by buccal swab or finger-prick
for the purpose of obtaining a DNA profile of the person;
It is really not that difficult. If the police want to perform a forensic procedure on a suspect (someone they suspect of having committed a serious offence) they have to follow the suspect procedure which is set out in Criminal Law (forensic procedures) Act 2007:
Division 2—Suspects procedures
The Legal Services Commission condenses this procedure and can be viewed at:
Ill condense it even a bit more for you. If the police want to perform any forensic procedure on a suspect they must:
1. Reasonably suspect them of having committed an offence that is punishable by imprisonment;
2. Obtain approval of this from a police officer ranked above inspector and that person must give written reasons as to how any such procedure may provide evidence of value.
The problem is, this is not proving to be the case, as SAPOL simply tell you that you are suspect of an offence, and issue a demand for you to submit to a DNA sample, even when the suspicion has no basis of fact, or when the sample they are demanding could have no impact in the suspicion of an offence.
So how do the Police keep getting it wrong? Answers to this can be seen in the form they use to conduct a forensic procedure. The Police have decided that the law doesn’t apply to them.
When ticking which boxes are appropriate after deciding a person is suspected of a serious offence the officer has the following choices:
1. Simple identity procedure (buccal swab/finger-prick and/or fingerprint)
2. Forensic procedure pursuant to an order by a Senior Police Officer.
Can you see the problem?
Option 1 is also a forensic procedure which requires the authorization of a senior Police Officer when it is carried out on someone suspected of an offence. But apparently the Police have different ideas?
What this means in essence is most if not all suspect procedures carried out in recent years is invalid and there for they should be destroyed.
The police are employed to up hold the law, not become above it, or to become the law in themselves, if SAPOL wish to build up a DNA data base, then it is up to them to lobby parliament to give them that right, is it not up to them to make up the law as they go.
An article from The Advertiser July 10th 2010, clearly reminds us of the debate about DNA, and the South Australian police forces promise to do the right thing, I add this as a reminder to them.
It’s now three years later. It is hard to believe that the police still can’t get this right. It’s a good thing these ‘officers were thoroughly trained in DNA laws and given regular "refresher" courses, the Super Intendant promised at the time.
So if they obviously know the law, then the only inference that can be drawn by way of their ignorance of our protections is that they think that they are above it. You can change my font, size, line height, colour and more by highlighting part of me and selecting the options from the toolbar.
An interesting question to finish on, if the police are willing to break the law to obtain our DNA, can we trust them to uphold the law once they have it?
It is past time we the people stood up against abuse of the law, by those we pay to uphold it, and in the protection of our fights and liberties, whether this is by way of a bill of rights, or by increased legislative protections, change is necessary.
Mark Aldridge & Greg Morcom
For the Australian Alliance