New South Wales Consolidated Acts

CRIMES (APPEAL AND REVIEW) ACT 2001 - SECT 96

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 & Analytical Science Service (or its successor) qualified to take forensic swabs or samples.

(3) However, that duty does not apply to relevant biological material if--

(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

(e) the convicted person has ceased to be subject to the sentence imposed for the offence (whether in custody or on parole) or subject to an extended supervision or continuing detention order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017 , 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.

: Maximum penalty--Imprisonment for 10 years.