FDNAPI Wiki - User contributions [en]

Australia

2014-04-04T14:06:53Z

86.98.6.226:

DNA databases operate in each state/territory and CrimTrac's National Criminal Investigation DNA Database (NCIDD) allows the nine Australian jurisdictions to match profiles.

The 2008 Interpol survey reports that 97,705 crime scene DNA profiles and 276,237 individuals' profiles, plus 30 missing person and 15 unknown/deceased DNA profiles were held in Australia at the time of the survey.

South Australia, Western Australia and the Northern Territory allow DNA profiles taken from innocent people to be retained. Concerns have also been expressed in Queensland that poor practices mean DNA profiles from innocent people are not being removed.

== Resources ==
* External links
**[http://www.comlaw.gov.au/Series/C1914A00012 Crimes Act 1914]
**[http://dnapolicyinitiative.org/australia-dna-database-produces-false-conviction/ FGPI: Australia DNA database produces false conviction]
**[http://www.justice.vic.gov.au/home/justice+system/laws+and+regulation/criminal+law/report+on+the+conviction+of+mr+farah+abdulkadir+jama Report on the conviction of Mr Farah Abdulkadir Jama (6th May 2010)] Investigation of a wrongful conviction for rape due to DNA contamination. Mr Jama was convicted on the basis of a match with the DNA database and served a year in prison before being exonerated.
**[http://www.crimtrac.gov.au/ CrimTrac]
**[http://www.alrc.gov.au/publications/43-dna-database-systems/dna-database-systems Australian Law Reform Commission (2003): DNA Database Systems]
**[http://www.cla.asn.au/ Civil Liberties Australia]
* Press articles
**[http://www.smh.com.au/nsw/its-a-fair-cop-police-academy-uses-dna-testing-on-students-20140402-35yot.html Sydney Morning Herald: It's a fair cop: Police academy uses DNA testing on students (3rd April 2014)]
**[http://www.canberratimes.com.au/act-news/emerging-dna-technology-will-impinge-on-privacy-civil-liberties-australia-20131116-2xnzt.html Canberra Times: Emerging DNA technology will impinge on privacy: Civil Liberties Australia (17th November 2013)]
**[http://www.governmentnews.com.au/2013/10/01/article/Australias-police-DNA-database-expands-to-cover-disasters/RGRMCICRXJ Government News: Australia's police DNA database expands to cover disasters (1st October 2013)]
**[http://www.itnews.com.au/News/357465,crimtrac-to-widen-its-dna-matching-net.aspx ITnews: CrimTrac to widen its DNA matching net (18th September 2013)]
**[http://www.computerworld.com.au/article/526771/crimtrac_tenders_dna_ict_platform_/ Computer World: CrimTrac tenders for DNA ICT platform (18th September 2013)]
** [http://www.couriermail.com.au/news/national/autistic-boy-declan-sables-10-charged-with-assaulting-teacher-had-sample-withdrawn-from-huge-dna-database-sa-kids/story-fnii5yv5-1226662751282 Courier Mail: Autistic boy Declan Sables,10 ,charged with assaulting teacher, had sample withdrawn from huge DNA database SA kids (12th June 2013)]
** [http://www.heraldsun.com.au/news/dna-used-to-solve-more-crimes-in-south-australia/story-e6frf7jo-1226614472629 Herald Sun: DNA used to solve more crimes in South Australia (7th April 2013)]
** [http://www.abc.net.au/news/2012-09-27/dna-report-mix-up/4284472 DNA Report Mix Up 'Unfortunate Mistake'(28th September 2012)]
** [http://www.abc.net.au/news/2012-04-24/dna-test-improvements-questioned/3968200/DNA Test Improvements Questioned in Australia (25th April 2012)]
** [http://au.news.yahoo.com/a/-/newshome/13289130/nationwide-dna-database-proposed/ 7 News: Nationwide DNA database proposed (28th March 2012)]
**[http://news.brisbanetimes.com.au/breaking-news-national/national-dna-database-worth-discussing-20120328-1vyoo.html Brisbane Times: National DNA database 'worth discussing' (28th March 2012)]
** [http://www.heraldsun.com.au/opinion/bandali-debs-case-a-victory-for-tough-guidelines-over-dna-evidence/story-e6frfhqf-1226221313538 Herald Sun: Bandali Debs case a victory for tough guidelines over DNA evidence (14th December 2011)]
** [http://www.heraldsun.com.au/news/more-news/man-sues-state-over-dna-bungle/story-fn7x8me2-1226193132890 Herald Sun: Man sues state over DNA bungle (12th November 2011)]
** [http://www.adelaidenow.com.au/ipad/more-cases-solved-by-dna-checks/story-fn6bqphm-1226001055671 Adelaide Now: More cases solved by DNA checks (7th February 2011)]
** [http://www.heraldsun.com.au/ipad/police-dna-system-back-on-track/story-fn6bfm6w-1225973587077 Herald Sun: Police DNA system back on track (20th December 2010)]
** [http://www.smh.com.au/national/clearing-their-names-20100604-xklz.html Sydney Morning Herald: Clearing their names (5th June 2010)]
** [http://www.theaustralian.com.au/business/legal-affairs/miscarriage-of-justice-leads-to-plan-for-reform/story-e6frg97x-1225866326772 The Australian: Miscarriage of justice leads to plan for reform (14th May 2010)]
** [http://news.smh.com.au/breaking-news-national/dna-samples-of-juveniles-is-ok-lucas-20100110-m0in.html Sydney Morning Herald: DNA samples of juveniles is OK: Lucas (10th January 2010)]
** [http://www.theaustralian.com.au/news/nation/police-put-ban-on-dna-evidence/story-e6frg6nf-1225808820951 The Australian: Police put ban on DNA evidence (10th December 2009)]
** [http://www.abc.net.au/worldtoday/content/2009/s2754248.htm The World Today: Police rethink on DNA evidence (26th November 2009)]
** [http://www.couriermail.com.au/news/queensland/uproar-at-dna-loophole/story-e6freoof-1225712934606 Courier Mail: DNA samples stay on file whether innocent or guilty (16th May 2009)]
** [http://www.canberratimes.com.au/news/national/national/general/call-for-national-dna-bank-to-expand-criminal-profiles/1486690.aspx Canberra Times: Call for national DNA bank to expand criminal profiles (15th April 2009)]

==Detailed analysis==

In Australia, legislation operates on a commonwealth level across all states as well as on a state to state basis. On the commonwealth level, the Commonwealth Crimes Act of 1914 (as amended up to July 2008) regulates the taking, use and destruction of fingerprints and DNA samples.

With regard to DNA samples –

* Part ID of the Act deals in detail with forensic procedures and provides for forensic procedures to be carried out on suspects in relation to indictable offences, offenders in relation to prescribed and serious offences and volunteers.
* An intimate or non-intimate DNA sample can be collected from a suspect with his or her consent. If consent is not given then a non-intimate sample can be collected from a suspect in custody, by order of a senior constable. An intimate sample can only be collected without the suspect’s consent by order of a magistrate.
* The Act makes provision for the taking of intimate and non-intimate samples from offenders convicted of serious (and other stipulated) offences.
* The Act also provides for the taking of samples from volunteers and provides that if consent is withdrawn, by a volunteer, then the forensic procedure will not continue and the information obtained will be deleted. A magistrate can in exceptional circumstances order that forensic material obtained from a volunteer who has subsequently withdrawn his consent be retained for a specific period.
* Samples taken from suspects must be destroyed after a period of 12 months has elapsed since the material was taken, unless a magistrate extends the period, and proceedings have not been instituted against the suspect or the suspect has been acquitted of the relevant offence.
* Any forensic material obtained from a convicted offender must be destroyed, if such offender’s conviction is quashed.

Three states in Australia have adopted legislation to make provision for the retention of forensic samples (DNA and fingerprints), where a person is not convicted of an offence: South Australia, Western Australia and the Northern Territory. CrimTrac's DNA National Criminal Investigation DNA database (NCIDD) allows the nine Australian jurisdictions to match DNA profiles. It operates in accordance with relevant Commonwealth, State and Territory legislation governing the collection and matching of DNA profiles. DNA profiles will be removed from the database in accordance with destruction dates notified by the jurisdictions.

New South Wales (NSW)

The Crimes (Forensic Procedures) Act of 2000 No 59 came into operation in 2001 and regulates DNA sample collection, usage and destruction in NSW. The custodian of the database is CrimeTrac in Canberra.

Sample collection and entry criteria:

Forensic procedures may be performed on:

a.Suspects: before authorising a non-intimate procedure, the senior police officer must be satisfied that:

(i) The suspect is under arrest;

(ii) The suspect is not a child or incapable person;

(iii) There are reasonable grounds to believe that the suspect has committed an offence;

(iv) There are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect has committed an offence;

(v) Carrying out of such a procedure is justified under the circumstances.

b. All convicted serious indictable offenders serving sentences in New South Wales correctional centers, whether convicted before or after the legislation comes into force. A serious indictable offender is defined as a person convicted of an offence carrying a maximum penalty of five or more years of imprisonment.

c.On a volunteer, other than a child or incapable person, with the volunteer’s informed consent.

d. Unknown deceased persons.

e. Missing persons.

DNA samples may only be taken after obtaining a court order in the following circumstances:

a.DNA samples taken from children or incapable persons;

b.DNA samples taken from a suspect not under arrest who does not consent to a procedure; and

c.An intimate forensic procedure or buccal swab on a suspect under arrest who does not consent to such a procedure.

The criteria for a magistrate making a court order are similar to that for a senior police officer’s order. The magistrate must be satisfied that the person is a suspect, there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed a relevant offence, and that the carrying out of the procedure is justified in all the circumstances.

Sample retention: The Act provides for the destruction of forensic material obtained from a person who is acquitted or whose conviction is quashed. It also ensures that forensic material taken from a suspect is to be destroyed if proceedings against the suspect have not commenced within 12 months of the material being taken, unless a court is satisfied that there are special reasons for extending the 12 month period or where there is an outstanding warrant against the suspect. By contrast, DNA profiles taken from volunteers for limited purposes may only be matched against the crime scene in respect of which the volunteer has freely provided his or her DNA.

Removal of entries:

* Twelve months from the day that the DNA profile was placed on the system.
* If the DNA profile is derived from forensic material taken from a volunteer, the DNA profile must be removed from the database after the period agreed by the volunteer and the Chief Commissioner of Police.
* The period will be determined by the Chief Commissioner of Police for unknown deceased persons.

The database does not contain the identities of persons who have supplied samples for DNA profiling. Identity fields are removed from records before they are transmitted to the national DNA database. Only State and Territory forensic laboratories supplying the DNA profiles will know the identities of the profiles' providers. The Act sets out the forensic procedures that may be carried out on suspects. There are two types of procedures: (a) A non-intimate forensic procedure (such as the taking of finger or palm prints, a sample of non-pubic hair or the taking of a sample from under a nail); (b) An intimate forensic procedure (such as a blood sample or dental impression).

South Australia

The Criminal Law (Forensic Procedures) Act 2007, provides for the carrying out of forensic procedures to obtain evidence relevant to the investigation of criminal offences and makes provision for a DNA database system:

* The Act distinguishes between procedures to be followed depending on whether the person from whom a sample is to be taken is a volunteer, a suspect or a convicted offender.
* Volunteers and victims procedures: Only carried out with the consent of the person involved. If consent is withdrawn any evidence obtained from the procedures is inadmissible. Material can be retained, where consent is withdrawn, if a senior police official makes an order authorizing such retention based on the fact that the person is a suspect in a serious offence.
* Suspect procedures: May be carried out regardless of whether or not the suspect is in lawful custody, but is limited to the fact that the person is suspected to have committed a serious offence. Where consent is not given, reasonable force may be used to obtain the samples.
* Offender’s procedures: The section applies regardless of whether a person was convicted before or after commencement of the Act.

Canada

2014-04-04T13:40:46Z

86.98.6.226:

Canada's DNA database was introduced in 2000.

The 2008 Interpol survey reports that 34,254 crime scene DNA profiles and 110,930 individuals' profiles were held in Canada at the time of the survey.

== Resources ==
* External links
** [http://www.bccla.org/othercontent/Genetic-privacy.pdf BCCLA: Genetic Privacy and Dicrimination (19th January 2012)]
** [http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=2328217&File=22&Language=e&Mode=1 Bill C-104 (13th July 1995)]<br/> Bill C-104 (2005) enables a judge to issue a warrant to police for the collection of biological samples from suspects in a criminal investigation for DNA analysis and compare those samples against evidence left at a specific crime scene.
** [http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=2329919&Language=E&Mode=1&File=31 Bill C-3 (1997-98)]<br/> Bill C-3 establishes a National DNA Data Bank and allows for a judge to authorise the police to collect DNA samples from convicted offenders for inclusion in it.
** [http://www.nddb-bndg.org/main_e.htm National DNA Data Bank website]
* Press articles
**[http://thechronicleherald.ca/canada/1191433-loretta-saunders-vigil-calls-for-inquiry-into-missing-murdered-native-women The Chronicle Herald: Loretta Saunders vigil calls for inquiry into missing, murdered native women (5th March 2014)]
**[http://www.thespec.com/news-story/4395420-opp-faces-scrutiny-over-dna-testing-sweep/ The Spec: OPP faces scrutiny over DNA testing sweep (4th March 2014)]
**[http://www.calgaryherald.com/news/calgary/database+offers+hope+families+haunted+loss/9514825/story.html Calgary Herald: DNA database offers hope for families haunted by loss (16th February 2014)]
**[http://www.therecord.com/news-story/4369617-new-missing-persons-dna-database-celebrated/ The Record: New missing persons’ DNA database celebrated (15th February 2014)]
**[http://www.vancouversun.com/news/Judy+Peterson+victim+database+triggers+bittersweet+emotions/9500595/story.html The Vancouver Sun: For B.C.’s Judy Peterson, victim DNA database triggers bittersweet emotions(12th February 2014)]
**[http://www.cbc.ca/news/canada/missing-persons-body-id-centre-shows-promise-but-needs-time-to-work-1.2519071 CBC: Missing persons, body ID centre shows promise but needs ‘time to work’ (3rd February 2014)]
**[http://www.thestar.com/news/immigration/2013/12/12/opp_faces_racial_profiling_complaint_from_migrant_workers_asked_for_dna_samples.html The Star: OPP faces racial profiling complaint from migrant workers asked for DNA samples (12th December 2013)]
**[http://www.theglobeandmail.com/news/politics/ottawa-looks-at-plan-to-collect-dna-from-suspects-upon-arrest/article14652881/ Globe and Mail: Feds looks at plan to collect DNA from suspects upon arrest (2nd October 2013)]
**[http://forensicconnect.wordpress.com/2013/05/28/law-enforcement-pushes-for-power-to-swab-for-dna-on-arrest/ Forensic Connect: Law enforcement pushes for power to swab for DNA on arrest (28th May 2013)]
**[http://www.huffingtonpost.ca/amy-macpherson/freemason_b_1906521.html?just_reloaded=1 Why Are the Freemasons Collecting Our Children's DNA? (26th September 2012)]
**[http://www.capebretonpost.com/News/Local/2012-08-22/article-3058579/Police-chiefs-call-for-missing-persons-DNA-index/1 Cape Breton Coast: Canada Police Chief Calls for Missing Persons Index (22nd August 2012)]
**[http://www.theglobeandmail.com/news/national/exclusion-of-dna-in-missing-persons-database-draws-criticism/article4435192/ The Globe and Mail: Exclusion of DNA in missing persons database draws criticism (22nd July 2012)]
**[http://www.forensictalk.ca/Community/showthread.php?4300-Canadian-lab-closures-prompt-criticism-and-concern ForensicTalk.ca: Canadian Lab Closure Prompts Criticism (11th June 2012)]
**[http://www.mjtimes.sk.ca/Local/News/2012-05-25/article-2988404/More-signatures-for-petition-to-create-national-DNA-database-for-missing-persons/1 Times Herald: More signatures for petition to create national DNA database for missing persons (25th May 2012)]
** [http://www.canada.com/news/presents+petition+create+national+database/6093662/story.html Regina Leader-Post: MP presents petition to create national DNA database (2nd February 2012)]
** [http://www.vancouversun.com/health/Improved+genetic+mapping+leads+privacy+concerns+Civil+Liberties+Association/6020082/story.html Vancouver Sun: Improved genetic mapping leads to privacy concerns - B.C. Civil Liberties Association (19th January 2012)]
** [http://www.lawtimesnews.com/201105308477/Headline-News/Youth-DNA-collection-a-burning-issue Law Times: Youth DNA collection a burning issue (30th May 2011)]
** [http://www.cbc.ca/news/canada/toronto/story/2011/05/25/toronto-ccla-dna.html Rights watchdog calls for halt to DNA testing (25th May 2011)]
** [http://www.vancouversun.com/news/Westminster+cold+case+revived+Alberta/4804235/story.html The Vancouver Sun: New Westminster cold case revived by Alberta DNA (17th May 2011)]
**[http://www.theglobeandmail.com/technology/science/the-dark-side-of-dna/article4310360/ The Globe and Mail: The dark side of DNA (13th March 2010)]

==Detailed analysis==

The DNA Identification Act, 1998 provides for the establishment of a DNA databank and amended the Criminal Code of Canada to provide a mechanism for a judge to order persons convicted of designated offences to provide blood, buccal or hair samples from which DNA profiles could be derived. The DNA Identification Act includes strict guidelines on genetic privacy and stipulates that samples collected from convicted offenders can only be used for law enforcement purposes. The Canadian DNA database is therefore restricted in its application to convicted offenders and is limited to those convicted of designated offences as defined in the Criminal Code. The DNA data bank of Canada manages two principal indices, namely: a) The Convicted Offender Index; and b) the Crime Scene Index containing DNA profiles obtained from crime scenes.

The National DNA Data Bank conforms with the requirements of ISO/IEC 17025 and is recognized as an accredited testing laboratory for specific tests listed in the scope of accreditation approved by the Standards Council of Canada.

Section 9(1) of the DNA Identification Act, provides that information in the convicted offenders index is to be kept indefinitely. Section 9(2) however provides for the removal of information from the convicted offenders index if the person’s conviction is set aside or if the person is subsequently acquitted of the offence. If a person’s profile was entered into the convicted offenders’ index and that person is subsequently granted a pardon then the Act stipulates that his or her profile may not be used for forensic DNA analysis (section 9(8) of the Act). With regard to children, the Act provides that information may be kept on the convicted offenders’ register, but must be removed when the record relating to the same offence is required to be destroyed, sealed or transmitted to the National Archivist of Canada under Part 6 of the Youth Criminal Justice Act. Samples may only be used for forensic DNA analysis and may only be used for comparing offender profiles with crime scene profiles.

The Act provides for the retroactive collection of profiles. In ''R v Rodgers'' (2006), the Supreme Court of Canada upheld the legality of the DNA database, including the retroactive collection of profiles. The Court held that “DNA sampling is no more part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence than the taking of a photograph or fingerprints. The fact that the DNA order may have a deterrent effect on the offender does not make it a punishment”.