30 March 2019

Identity and Victoria's Justice Legislation Amendment (Police and Other Matters) Act 2019

'Limiting Identity in Criminal Law' by Mihailis Diamantis in (2019) 61 Boston College Law Review comments 
 People change with time. Their personalities, values, and preferences shift incrementally as they accrue life experience, discover new sources of meaning, and form/lose memories. Accumulated psychological changes eventually reshape not just how someone relates to the world about her, but also who she is as a person. This transience of human identity has profound implications for criminal law. Previous legal scholarship on personal identity has assumed that only abrupt tragedy and disease can change who we are. However, psychologists now know that the ordinary processes of growth, maturation, and decline alter us all in fundamental respects. Many young adults find it hard to identify with their adolescent past. Senior citizens often reflect similarly on their middle years. However tightly we hold on to the people we are today, at some tomorrow we inevitably find ourselves changed. 
Criminal justice has not come to grips with this aspect of the human condition. The law — by imposing lengthy sentences, allowing enduring consequences of conviction, and punishing long bygone violations — assumes that people’s identities remain fixed from birth to death. If people do change with time, these policies must violate the criminal law’s most basic commitment to prosecute and punish present-day people only for crimes they (and not some different past person) committed. 
Drawing on contemporary psychology and philosophy of personal identity, this Article concludes that criminal law punishes too often and too severely. Lengthy prison terms risk incarcerating people past the point at which their identity changes. Elderly inmates who have languished on death row for decades should have a new claim for release — that they are now different people, innocent of the misdeeds of yesteryear. One-time felons should recover lost civil rights sooner. And defendants should benefit from juvenile process well into their twenties, when personal identity first begins to stabilize. By confronting the challenges posed by the limits of personal identity, the criminal law can become more just and humane.
In Victoria the Justice Legislation Amendment (Police and Other Matters) Bill 2018 received assent earlier this month. The new Act amends the Bail Act 1977, Confiscation Act 1997, the Corrections Act 1986, Crimes Act 1958, Drugs, Poisons and Controlled Substances Act 1981, Firearms Act 1996, Magistrates' Court Act 1989, Protected Disclosure Act 2012, Road Safety Act 1986, Second-Hand Dealers and Pawnbrokers Act 1989, Sentencing Act 1991, Sex Offenders Registration Act 2004, Sex Offender Registration Amendment (Miscellaneous) Act 2017, Surveillance Devices Act 1999 and the Victoria Police Act 2013.

From the perspective of identity law the salient feature is Part 8, which
introduces a new scheme for the taking of DNA profile samples in Subdivision (30A) of the Crimes Act 1958. This scheme is comprised of 3 elements—senior police authorisation of DNA profile samples from adults and children (aged 15 to 17 years) who are suspected of or charged with an indictable offence; senior police authorisation of DNA profile samples from adults after a finding of guilt, or a finding of not guilty because of mental impairment, for a DNA offence; senior police authorisation to take a DNA profile sample from certain adults and children who have previously provided a sample and, new oversight mechanisms governing the authorisation, use, retention and destruction of DNA profile samples.
The lower house 2nd Reading Speech states
Streamlining and expanding police powers to collect DNA evidence has the potential to significantly enhance Victoria Police’s ability to keep the community safe. Victoria Police indicate that there are approximately 11,000 unsolved crimes in Victoria where an unidentified DNA sample has been identified and recorded. These crimes range from rapes and murders to serious assaults and burglaries. Under current practice, however, Victoria’s level of forensic capture is not as expansive as some other states. The reforms in this Bill will address this matter and result in improved forensic capability which is essential to modern and contemporary policing. 
The Bill will provide Victoria Police with new streamlined powers to take DNA samples from persons suspected of committing, or found to have committed a serious offence. These new powers will enhance Victoria Police’s ability to identify criminals, particularly serious recidivist offenders. The additional evidence will not only solve serious and high-volume crime, but through successful prosecutions will prevent further offending and the resultant significant impact on victims in our community. It will also reduce the administrative burden on police and courts. 
The Bill achieves these changes by introducing a new class of procedure called a 'DNA profile sample’. A DNA profile sample will include procedures for the taking of a DNA sample by way of a mouth scraping, saliva, a pin prick to take blood or a sample of hair with the root. These changes give police the power to authorise the taking of a DNA profile sample from adults found guilty, or not guilty because of mental impairment, of an indictable offence or a specified summary offence. 
These changes mean that police will no longer need to seek a court order and demonstrate to the court that taking the sample is justified in all the circumstances. This recognises that there are no excuses when it comes to serious crimes, and highlights that Victoria Police will be provided with the powers they need to deal with offenders. 
The reforms will also give a senior police officer the power to authorise the taking of a DNA profile sample, without a court order, from persons suspected of committing serious offences. These powers will apply to adults suspected of committing an indictable offence as well as children aged 15 to 17 years who police believe on reasonable grounds have committed a DNA sample offence. A list of DNA sample offences will be set out in new Schedule 9 to the Crimes Act, and capture serious violent, sexual and drugs offences including gross violence offences, rape, home invasion, dangerous driving causing serious injury, carjacking, trafficking in a drug of dependence, armed robbery and aggravated burglary. 
To reflect the fact these suspects are yet to be found guilty, DNA may only be taken in two circumstances: either with the consent of the suspect (and where the suspect is aged 15 to 17 years, the consent of their parent or guardian), or where the suspect does not consent, by the authorisation of a senior police officer. 
First, if a police officer is satisfied that the carrying out of the procedure is justified in all of the circumstances, the police officer may request the suspect to provide a DNA sample by consent. For 15 to 17 year old suspects, their parent or guardian will also need to consent. This will allow DNA profile samples to be obtained by consent without having to arrest the person under suspicion, which may assist with the elimination of an innocent suspect and free up police resources to focus on other suspects. 
Second, if the suspect does not consent, the taking of a DNA profile sample may be authorised by a senior police officer. The senior police officer would have to be satisfied that there are reasonable grounds to believe that the suspect committed the indictable offence or DNA sample offence if the suspect is a child, and that the carrying out of the procedure is justified in all the circumstances. 
It is important to emphasise that the senior police officer’s ability to authorise such a procedure applies only to suspects who are in lawful custody. A court order will still be required under the existing DNA powers in the Crimes Act 1958, which will continue to operate alongside the new powers in specific circumstances. Existing requirements for how police may use DNA samples, and the length of time that samples may be retained, will stay the same. 
This means that if police do not charge the suspect, or the charges are withdrawn, or the charges are not proven, the DNA sample must be destroyed. DNA samples taken from adult suspects who are subsequently found guilty or not guilty by mental impairment, may be retained indefinitely without a court order. For child suspects, a court order will still be required to retain the DNA sample, which requires the court to consider the seriousness of the circumstances of the offence and that the making of the order is justified. A court order will also be required to seek an offender sample from a child. Maintaining court oversight in both of these circumstances is consistent with various other extra protections afforded to children in the justice system and reflects the potentially life-long consequences of having their DNA sample retained. 
The taking of DNA profile samples will be governed by the current legislative requirements to ensure that the procedures are carried out safely and with respect to the person’s privacy. For example, the person may elect to take the mouth scraping themselves rather than have another person take it for them. If a blood sample is to be taken, only a medical practitioner or nurse will be able to take that sample. For children, the procedure must be witnessed by their parent or guardian or an independent person. 
The Bill also includes a new requirement that police must use the least intrusive and least painful method practicable in the circumstances. This provides an additional safeguard that applies to all forensic procedures, not just when taking DNA profile samples, and regardless of how the procedure was authorised. The admissibility of any evidence obtained as a result of a DNA profile sample will be a matter for the courts and will be a question for the trier of fact in each case. As is currently the case, the evidence will generally be inadmissible in proceedings against the person if the police fail to comply with the requirements set out in the legislation. The current exceptions will continue to exist, for example where the prosecution satisfies the court on the balance of probabilities that the circumstances justify the reception of the evidence. 
The Crimes Act 1958 makes clear that the probative value of the evidence does not of itself justify the reception of the improperly obtained evidence. Finally, to ensure that these new powers are being used in the manner intended, the Bill also provides that the Independent Broad-based Anti-corruption Commission (the IBAC) will have oversight of Victoria Police’s use of these powers, and the Attorney-General will also be able to make a complaint to the IBAC the use of these powers.