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Giving a sample voluntarily

Information about when a person can give a forensic sample voluntarily and why they might choose to do this.

A person who is over 18 years old may voluntarily provide a sample to police. This can be intimate or non-intimate sample.

Why would someone volunteer?

A person may volunteer to provide their forensic material to assist police to locate a missing person or to locate relatives of an unidentified corpse. They may also choose to voluntarily provide a sample so that they are eliminated from suspicion. There is no need for the person to be a relevant suspect.

The sample can only be taken after the person gives informed consent in the presence of an independent person. Consent must not be withdrawn before the sample is taken.

What police must explain

Police must explain to the person that:

  • any sample given will be analysed
  • information will be placed on a DNA database and may be used for criminal investigation
  • the person can choose to allow sample to be used only for a specific purpose (say to assist with identification of missing person)
  • information produced could be used as evidence in court
  • the person is not obliged to give a sample
  • person may withdraw consent at any time before sample is taken
  • if consent is withdrawn—police may apply to court for order that sample (and related information) be retained
  • the person can consult a lawyer before they give consent, and
  • the person can request sample to be taken in presence of dentist, nurse or doctor of their choice.

This police warning must be recorded on video (or audio if video not practical) and in writing and must include person's responses to information given.

If recorded in writing the document must be signed by both person who volunteers and independent person.

Copy must be sent to person or their lawyer within 7 days.

See s. 464ZGB—Crimes Act 1958 (Vic)(opens in a new window).

A volunteer can withdraw their consent at any time before giving sample. This can be done either orally or in writing.

After sample has been taken, person must write to police commissioner if they want to withdraw their consent and would like police to destroy the sample.

Police may apply to court for an order permitting them to retain sample even though it was given voluntarily. If police do not apply to court police must destroy all material related to the forensic sample within 28 days of withdrawal of consent.

If consent has been withdrawn and court order is refused, all material must be destroyed immediately.

See ss. 464GC, 464GE, 464GF—Crimes Act 1958 (Vic)(opens in a new window).

More information

Legislation

Crimes Act 1958 (Vic)

  • s. 464ZGB—samples given voluntarily
  • s. 464ZGC—consent may be withdrawn prior to sample being given
  • s. 464ZGD—procedure for taking voluntary sample
  • s. 464ZGE—withdrawal of consent after sample is taken
  • s. 464ZGF—application to court if consent has been withdrawn by volunteer

See also Victoria Police Manual > Operations > Aids to Investigation 111—7 Forensic Procedures for a police perspective of the procedure for taking a sample from a volunteer (scroll to 5).

References

Victoria Police Manual

These guidelines, designed for use by Victoria Police, explain their rights and responsibilities in relation to taking forensic procedures and destroying forensic material under Victorian law.

See Victoria Police Manual—Forensic procedures.

Updated