New South Wales Consolidated Acts

CRIMES (APPEAL AND REVIEW) ACT 2001 - SECT 97

97 Information about and testing of retained biological material

(1) This section applies with respect to biological material (
"retained biological material" ) that is or may be in the possession or control of members of the NSW Police Force or members of any other authority of the State in connection with an offence for which a person has been convicted.

(2) The Commissioner of Police (or the head of any other authority of the State) may, at the request of a person convicted of an offence (the
"convicted person" ) or his or her legal representative, do either or both of the following--

(a) provide information to the person making the request about whether the NSW Police Force (or the authority) has retained biological material in connection with that offence and, if so, what that material comprises,

(b) arrange for such items of retained biological material as may be specified in a request to be sent to the NSW Forensic & Analytical Science Service (or its successor) for DNA testing and then forward the results of that testing to the person making the request.

(3) The convicted person is liable for the cost of any DNA testing of retained biological material that is carried out at the request of the convicted person or his or her legal representative.

(4) A person who has made a request under this section may apply to the Supreme Court for an order (a
"compliance order" ) requiring the Commissioner of Police (or the head of any other authority of the State) to comply with the request to him or her.

(5) The Supreme Court may make a compliance order if--

(a) the offence committed by the convicted person was punishable by imprisonment for life or 20 years or more, and

(b) the convicted person's claim of innocence for the offence may be affected by DNA information obtained from biological material retained by members of the NSW Police Force or members of another authority of the State, and

(c) the convicted person continues 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 .

(6) Despite subsection (5) (a), the Supreme Court may make a compliance order even if the offence for which the convicted person was convicted was not an offence of the kind referred to in that paragraph if the Court considers that special circumstances exist with respect to the offence that warrant the making of the order.

(7) In determining whether there are special circumstances for the purposes of subsection (6), the Supreme Court is to have regard to the following matters and any other relevant matter--

(a) the nature and seriousness of the offence concerned,

(b) the length of any sentence currently being served by the convicted person,

(c) whether the convicted person has exhausted all avenues of appeal,

(d) the interests of justice.

(8) Nothing in this section permits--

(a) the Commissioner of Police (or the head of any other authority of the State) to provide information that may reveal the identity of a person other than the convicted person in connection with the offence for which he or she was convicted, or

(b) the head of one authority of the State to provide information about, or arrange DNA testing for, retained biological material held by another authority of the State.