Should Police Be Allowed to Doorknock for DNA?

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Imagine this: you hear a knock at the door and you go to open it. You see two police officers, who ask you for a DNA sample. They say that you can refuse, in which case they will just get an order from the Local Court forcing you to comply. They say that disobeying the order would be an offence. They don’t suspect you of any crime, but because you have previously been in trouble with the law, they now want to collect your DNA.

This happened to one illiterate pensioner on disability support, who had been out of prison for fifteen years and had not committed any offence. He wasn’t even suspected of any crime, and was shocked to find the police on his doorstep asking for a mouth swab so that they could collect a sample of his DNA.

Sound unfair? Unfortunately, this disabled pensioner is not the only one who has been targeted – hundreds of people across NSW have opened their front doors to find police asking for samples of their DNA, and thousands more nationwide.

The DNA Back-capture Program has been legal since 2007, but lay dormant until just a few years ago, when NSW police started taking full advantage of it.

What is the DNA Back-capture program?

The DNA Back-capture Program is used by police to compile a huge database containing the DNA of people who have been convicted of serious crimes.

Police hope to use the database to solve both cold cases and fresh crimes. The program has already led to the commencement of current court cases in NSW. Police aim to eventually capture the DNA of all former offenders, even those who haven’t offended in decades, or are not suspects in any current crime investigation.

The program allows police to go to people’s homes and collect DNA samples from what the legislation calls ‘untested former offenders.’

Who can be tested?

The legislation is targeted at people who have been convicted of serious crimes, where there is no DNA porfile on police files.

Under section 75A of the Crimes (Forensic Procedures) Act, an ‘untested former offender’ is a person who has been:

  • Imprisoned for a serious indictable offence; and
  • Served with a Court Attendance Notice (CAN) in respect of an indictable offence

A serious indictable offence is one that comes with a maximum penalty of at least 5 years imprisonment, regardless of the actual prison sentence imposed upon a person. Even if a person spent just a few weeks or days in prison, they would fulfil this criterion. A very wide range of criminal offences in NSW are serious indictable offences, including larceny (stealing), fraud, assault occasioning actual bodily harm, affray and drug supply.

An indictable offence is one that can be dealt with in a higher court such as the District Court, and covers an even broader range of offences.

The legislation purports to target re-offenders, but this is clearly not the case. Only one serious indictable offence needs to be proved, and one CAN for an indictable offence received. And it is important to note that simply receiving a CAN does not imply guilt – the prosecution may drop charges or the defendant may be found not guilty in court.

This means that someone who is classified as a ‘re-offender’ may not have re-offended at all – but they can still be targeted under the legislation.

What happens if I refuse?

Refusing to give a DNA sample when police come knocking is not an offence by itself; but if you refuse, police can simply go to the Local Court and apply for a court order, which will be granted if the outlined requirements are satisfied. If granted, you will face a maximum penalty of 12 months imprisonment and/or a $5,500 fine if you then fail to comply.

South Australia – an even stricter approach

Other Australian states have similar legislation allowing police to collect DNA from people who have previously been in trouble with the law, but the direction taken by South Australia is definitely the most extreme.

South Australian police can take samples from those who are simply suspected of a crime punishable by imprisonment of any length. This means that the suspected offence does not even need to be proved – and many offences, even trivial ones, carry prison time.

In South Australia, even graffiti carries a possible prison sentence of 12 months, meaning that anyone suspected of committing relatively-trivial offences like graffiti offence can be required to submit to the procedure.

The South Australian approach has been criticised for giving police a back-door mechanism for extracting a person’s DNA. In other words, police can charge someone that they simply don’t like with a trivial offence based upon shaky evidence to get that person’s DNA, on nothing more than a hunch that the person may have committed a serious crime, rather than any firm evidence.

The problems with DNA Back-capture

Proponents of the NSW program argue that DNA back-capturing only affects those who re-offend – but as already outlined, this is just not the case. Simply receiving a CAN should never be enough to imply guilt, or to allow a person to be labelled a ‘re-offender’.

Perhaps of greater concern, the program means that people who have not committed a crime for many years or even decades can be hounded when they have served their time and are just trying to get on with their lives.

Laws relating to ‘spent convictions’ allow many past offenders to move on with a clean slate after a period of ten years without breaking the law. After that time, many are able to state that they have no criminal record, which is conducive to rehabilitation and reintegration. But DNA back-capturing works the other way, further stigmatising those who are just trying to get on with their lives – even though they are not suspected of anything at all.

David Porter from the Redfern Legal Centre is concerned that DNA back-capturing is not only speculative and unfair, it casts the net far too wide. While crucial DNA evidence may help solve crime, during an interview on the ABC, Porter questioned whether the Australian public would think it is appropriate for police to door-knock for DNA on people unlikely to be a danger to the community, such as repeat shop-lifters.

In recent months, the Redfern Legal Centre has seen a sharp increase in the amount of requests for advice from people targeted by the police. Many of those people have not broken the law in years, and are not suspected of committing any crime, nor considered a threat to society. And there is also the logistical cost to consider: obtaining court orders is another procedure that clogs up the already over-crowded Local Court system.

These concerns are hard to ignore – although police are not deterred. They hope to continue until all ‘re-offenders’ are in their DNA database, adamant that it helps solve crimes. Despite the concerns with this extremely invasive program, it appears that DNA back-capturing is not going away anytime soon.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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