New South Wales Consolidated Acts

CRIMES (FORENSIC PROCEDURES) ACT 2000 - SECT 88

88 Destruction of forensic material after 12 months

(1) This section applies where forensic material has been taken from a suspect by a forensic procedure carried out under Part 3, 4 or 5.

(2) If--

(a) forensic material has been taken from a suspect, and

(b) a period of 12 months has elapsed since the forensic material was taken, and

(c) proceedings for an offence in respect of the act or omission in relation to which the forensic material was taken have not been instituted against the suspect, or have been discontinued,

the forensic material must be destroyed as soon as practicable unless a warrant for the apprehension of the suspect has been issued.

Note : Section 3 (5) explains the meaning of
"destroy" .

(3) If a warrant for the apprehension of the suspect is issued during the period of 12 months after forensic material is taken, the forensic material must be destroyed as soon as practicable after--

(a) the warrant lapses, or

(b) a period of 12 months elapses after the suspect is apprehended.

(4) If forensic material has been taken from a person who is a suspect and--

(a) the person is found to have committed an offence to which the forensic material relates but no conviction is recorded, or

(b) the person is acquitted of such an offence and--

(i) no appeal is lodged against the acquittal, or

(ii) an appeal is lodged against the acquittal and the acquittal is confirmed or the appeal is withdrawn,

the forensic material must be destroyed as soon as practicable unless an investigation into, or a proceeding against the person for, another offence is pending.

(5) A Magistrate may, on application by a police officer or the Director of Public Prosecutions, extend the period of 12 months referred to in subsection (2), or that period as previously extended under this subsection in relation to particular forensic material, if the Magistrate is satisfied that there are special reasons for doing so.

(6) A Magistrate to whom an application is made under subsection (5) is not to extend the period unless--

(a) the applicant for the extension has taken reasonable steps to notify the person from whom the forensic material was taken of the making of the application, and

(b) the person or his or her legal representative or interview friend (if any) has been given an opportunity to speak to or make a submission to the Magistrate concerning the extension.

(7) An extension in relation to particular forensic material may be given on more than one occasion.

(8) The Magistrate is to ensure that the responsible person in relation to the DNA database system is notified of any extension given under this section.

(9) For the purposes of subsection (4), a person is not a suspect who has been acquitted of an offence to which the forensic material relates if--

(a) a special verdict of act proven but not criminally responsible within the meaning of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 has been returned, or

(b) the person has been found, following a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 , on the limited evidence available, to have committed the offence charged or an available alternative offence.

Note : Part 13 contains provisions restricting the use of information obtained as a result of the carrying out of a forensic procedure.