CRIMES (APPEAL AND REVIEW) ACT 2001 - SECT 96
Duty of police officers and other officers to retain certain biological material evidence
CRIMES (APPEAL AND REVIEW) ACT 2001 - SECT 96
Duty of police officers and other officers to retain certain biological material evidence
96 Duty of police officers and other officers to retain certain
biological material evidence
(1) This section applies to physical evidence comprising or containing
biological material (
"relevant biological material" ) obtained by any member of the NSW Police
Force in connection with the investigation or prosecution of an offence for
which a person was convicted (the
"convicted person" ), but only if--
(a) the offence was punishable by
imprisonment for life or 20 years or more, and
(b) the convicted person was
sentenced to imprisonment or full-time detention for the offence following a
trial on indictment.
(2) It is the duty of members of the NSW Police Force
(or members of any other authority of the State) to retain
relevant biological material in their possession or control.
(2A) The
retention of a swab or sample taken from the relevant biological material is
sufficient compliance with the duty if--
(a) the swab or sample taken is
enough to permit DNA testing, and
(b) the swab or sample was taken by a
member of the NSW Police Force or the NSW Forensic [#38] Analytical Science
Service (or its successor) qualified to take forensic swabs or samples.
(a) the
material is required, by the order of any court, to be returned to the person
to whom the material belongs, or
(b) the owner of the material is the victim
of the offence concerned and the material is required to be returned promptly
to minimise inconvenience to the victim, or
(c) the material is of such size
or nature as to render its retention impracticable (but only if steps have
been taken to retain a portion of the material sufficient for DNA testing), or
(d) the material has already been subject to DNA testing and the testing
indicates that it relates only to the convicted person concerned, or
(f) the material is required by or under any Act to be given to
another person or destroyed.
(4) An authority of the State is not under a
duty to retain biological material if the material is given to a court or
another authority of the State and has not been returned.
(5) A person who,
knowing that relevant biological material is required to be retained under
this section, destroys or tampers with the material (or a swab or sample taken
from the material) with the intention of preventing the material (or swab or
sample) being subjected to DNA testing is guilty of an offence.