Taking DNA

Do I have to be in custody before police can take a DNA sample?

A suspect or offender does not have to be in custody for police to conduct a simple identity procedure (DNA
sample) [s 14(3)] and police may issue directions to attend a police station for the purpose of providing a
DNA sample.

Can I refuse to give a DNA sample?

A suspect or offender has no right to refuse a request for a simple identity procedure (DNA sample). Consent
is only required if you are a volunteer or victim.
If you are issued with directions to provide DNA and you refuse or fail to comply a warrant can be issued for
your arrest to ensure you do undergo the simple identity procedure request.
In addition, police have the power to use reasonable force in obtaining a DNA sample [Criminal Law
(Forensic Procedures) Act 2007 (SA) s 31]. If reasonable force is to be used police must inform the person of
this. They must also inform the person that if they obstruct or resist the procedure this may be used in
evidence against them [s 30].
It is an offence to obstruct or resist a forensic procedure under s 32 of the Criminal Law (Forensic
Procedures) Act 2007 (SA).
Penalty: maximum penalty is 2 years imprisonment.

Will the DNA sample be destroyed at a later date?

Once a suspect or offender has provided DNA it is added to the DNA database and there is no provision for it
to be removed later. This means that where a person was questioned in relation to a serious offence and
provided DNA, the sample will remain on the database even if no charges were ever laid. However
volunteers and victims DNA can be destructed [see s 39].

What if I am charged with an offence but later acquitted dont police have to destroy any DNA
sample taken?
There are no provisions to destroy DNA samples taken from people charged with an offence who are
subsequently acquitted.

Can police take DNA samples from children without their parents consent?
There are no special protections for persons under the age of 18 who have samples taken because they are
offenders or suspects. However, if they are providing DNA as volunteers or victims they receive special
protection under sections 10 and 11 , see Volunteers and victims (below).

Law report - DNA database of all Australians may be 'fairer system'

June 2013, Damien Carrick
In South Australia anyone who is even suspected of a crime punishable by imprisonment can have their DNA
taken and never given back. The sample stays on the database forever, even if they were instantly cleared of
the crime.
The SA legislation was a response to a very controversial court rulingR v. Dean. Up until that point South
Australia was more in line with east coast states.
In the Dean case, a DNA sample taken in relation to a family assault that did not proceed to court was kept
on the database well after the 12 month cut-off. The sample subsequently linked the defendant with the
aggravated robbery of a supermarket.
Dean argued that the sample should not be used and the evidence should be thrown out. The judge agreed. As
a result SA changed the system to allow the indefinite retention of all lawfully obtained samples.