Dear flage,
The police are generally responsible for collecting and preserving
evidence at the scene of a crime. Under the law of Queensland, however,
there are certain types of evidence, such as those consisting of
dangerous drugs or weapons, that the police are empowered to destroy
immediately. Another special case is that of a DNA sample taken from a
suspect. Such a DNA sample must be destroyed if legal proceedings are
not due to begin within one year, and under certain other circumstances.
The relevant statutes, which I shall cite below, can all be found in the
Police Powers and Responsibilities Act 2000, reprinted as in force on
21 March 2005. This document is available in PDF format from the Office
of the Queensland Parliamentary Counsel, an agency of the Queensland
Government. To find it on their website, select "Current Reprints" in
Step 1 of the Search Query, then enter "police powers" in Step 2. Finally,
press Search in Step 3. The first-place result is the act you want.
Queensland Parliamentary Counsel: Search Query
http://www.legislation.qld.gov.au/search97cgi/s97r_cgi?action=FormGen&Template=pwersrcp.hts
In Chapter 3, Part 3, Division 1, Section 86 of the Act, on page 110, we
find that police are charged with preserving evidence at the crime scene.
The responsible officer at a crime scene must ensure that nothing
in the crime scene is unnecessarily touched or moved---
(a) until all necessary forensic and technical
examinations are finished; or
(b) unless there is a possibility that the thing could
be damaged, interfered with or destroyed it is not moved.
Examples of when evidence may be damaged or
destroyed if a thing is not moved---
1 If the arrival of the investigator, or an
authorised assistant or specialist officer will be
delayed and the scene is exposed to the weather.
2 If falling or threatened rain may damage
fingerprints that may be on a knife left on
the ground.
In Chapter 8A, Part 5, Division 5, Section 318H of the Act, on page 254,
are listed circumstances under which a DNA sample taken from a suspect
must be destroyed.
(1) A DNA sample taken from a person suspected of having
committed an indictable offence and the results of a DNA analysis
of the sample must be destroyed within a reasonably practicable
time after the end of 1 year from---
(a) if the person's arrest for the indictable offence
is discontinued under section 208(1) or 211(6)---the
day the arrest is discontinued; or
(b) if the proceeding for the indictable offence is
discontinued before a court---the day the proceeding is
discontinued; or
(c) if the person is found not guilty of the indictable
offence, including on appeal---the day the person is
found not guilty of the offence; or
(d) if a proceeding for the indictable offence is not
started within 1 year after the sample is taken---the
day the sample is taken.
(2) Subsection (1) does not apply if---
(a) the person has been proceeded against for another
indictable offence the charge of which has not been
decided; or
(b) the person has been found guilty of another
indictable offence, including an indictable offence dealt
with summarily, whether before or after the commencement
of this section; or
(c) the DNA sample and the results of the DNA analysis
of the sample are required for the investigation of
another indictable offence the person is reasonably
suspected of having committed; or
(d) the person is not proceeded against for an indictable
offence because he or she has been found unfit for trial
because of mental illness.
(3) Subsection (1) does not apply if the DNA sample was taken
under a forensic procedure consent and the person has not, under
section 281(1)(g), limited the purpose for which the sample may
be used under the consent.
(4) Subsection (1) does not apply to a DNA sample taken from a
prisoner under section 314 or 315 or division 4, or the results of
a DNA analysis of the sample, other than to the extent subsection
(1)9c) applies to the offence for which the person was imprisoned.
(5) For subsection (1), the results of a DNA analysis may be
destroyed by deleting any information in QDNA that identifies
the person from whom the DNA sample was taken with the results
obtained by analysing the sample.
Chapter 10, entitled "Other standard safeguards", details the
circumstances under which drugs seized as evidence may be destroyed. Note,
however, the exceptions named in sections 378 and 379 on page 320.
Part 1 Preliminary
378 Chapter does not apply to covert operations
This chapter does not apply to functions of a police
officer performed in a covert way, including, for example,
anything done under a covert search warrant.
Part 2 Safeguards for things seized
Division 1 Application of pt 2
379 Application of pt 2
This part does not apply to a thing seized by a police
officer if, under another Act, the thing must be taken
before a stated person.
Example---
The Commissions of Inquiry Act 1950, section
19A(1) requires property seized under a warrant
issued by a commission of inquiry to be taken
before the commission.
Part 3, Division 3, starting on page 351, lays out the rules concerning
the destruction of drug evidence.
Division 3 Dealing with dangerous drugs etc.
430 Application of div 3
This division applies if a police officer seizes a thing
the police officer reasonably suspects is any of the
following (drug evidence)---
(a) a dangerous drug;
(b) a thing intended for use, or that was used, in the
commission of an offence against the Drugs Misuse Act
1986, part 2.
431 Destruction of drug evidence soon after seizure
(1) A police officer may destroy drug evidence where
it is found or move drug evidence, or arrange for it
to be removed, to another place where it can safely be
destroyed if---
(a) a police officer is satisfied it is not
reasonably practicable to---
(i) to take it to a property point; or
(ii) to keep it at a police station; and
(b) the police officer reasonably believes that
unless it is destroyed there is a risk it may
be used in the commission of an offence.
Example for paragraph (a)(i)---
It may be necessary to destroy a large
plantation of cannabis sative plants after
taking samples of the plants because it
is impracticable to transport them to a
property point for storage and leaving
them where they are may lead to them being
used in the commission of an offence.
(2) Also, a police officer may destroy drug evidence
where it is found or move drug evidence, or arrange
for it to be removed, to another place where it can
safely be destroyed if it may be dangerous to take it,
or any part of it, to a property point or to keep it at
a police station.
(3) However, before destroying drug evidence under
subsection (1) or (2), a police office must---
(a) photograph the drug evidence where it is found; and
(b) for a dangerous drug, if practicable---
(i) weight it, or for plants, count
the number of plants; and
(ii) retain a representative sample of
the dangerous drug.
(4) Subsections (1) and (2) apply even though---
(a) a proceeding for an offence of which the
drug evidence may be relevant has not been
started or decided; and
(b) notice of the proposed destruction of
the drug evidence has not been given under
section 432.
To summarize, a Queensland police officer may destroy drug evidence if
it would not be easy to transport and store the evidence, and if there
is a good chance that the evidence would be used in a further offence,
such as trafficking or consumption. It also suffices to destroy the
evidence if it poses a danger. However, before destroying the evidence,
the police must photograph it, weight it or count it, and keep a sample
of it. Finally, the police are not required to give notice that they
intend to destroy the evidence.
Section 432, starting at the bottom of page 352, applies if "an analyst's
certificate has been given under the Drugs Misuse Act 1986". I shall not
quote it extensively, since it applies only in cases where drug testing
has been ordered.
Section 433 on page 354 is entitled "Destruction of things used in the
administration of a dangerous drug".
(1) If the commissioner is reasonably satisfied a thing seized---
(a) has been used in the administration, consumption
or smoking of a dangerous drug; and
(b) is no longer required as evidence in a proceeding;
the commissioner may destroy the thing in a way that prevents
the thing being used in the commission of an offence.
(2) If the commissioner disposes of a thing that is a hypodermic
syringe or needle in a way required under the Drugs Misuse
Regulation 1987, the thing is taken to have been destroyed.
Other sections that may be of interest to you are: Section 434, Disposal
of weapons; Section 436, Perishable things; and Section 359, Dealing
with forfeited things. I urge you to download the Act and read these
sections yourself if you are interested in them.
It has been an interesting challenge to address this question on your
behalf. If you find fault with my answer, do let me know through a
Clarification Request so that I may fully meet your needs before you
assign a rating.
Regards,
leapinglizard |
