NAME : FARANIZAH BINTI BAHRIN
MATRIC NO : 142743
GROUP : 39
KUALA LUMPUR: Police can apply for a court order to compel a suspect to undergo DNA tests or they can obtain a sample illegally which can be tendered as evidence, say lawyers.
These are among the suggestions by the legal fraternity in dealing with a suspect who refused to undergo the tests voluntarily.Kuala Lumpur Bar criminal practice chairman N. Sivananthan said police could seek refuge of a provision in the Criminal Procedure Code (CPC) in obtaining samples for DNA tests from stubborn suspects.He said Section 5 of the CPC stated that laws as practised in England could be imported here provided it was not contradictory to the Penal Code.
“In the United Kingdom, the authorities are allowed to go to court to compel a person to undergo DNA examination.”
However, there were two criteria which must be fulfilled before the application was made to compel a suspect to undergo DNA tests.Sivananthan used the example of a sexual crime to explain the criteria.”First, police must show the court that a foreign DNA was found in the victim’s private parts.”Second, they must show that they have reasonable suspicion that the person whose DNA is being sought may be involved in the case.”
Sivananthan said that a High Court order in 2000 that a person could refuse DNA testing might not be applicable in criminal cases.In that case, a woman wanted her ex-husband to take the DNA test to show that he fathered their child. She was applying for maintenance.Bar Council criminal practice committee chairman Hisyam Teh Poh Teik said a person might refuse to undergo testing but it did not prevent the prosecution from tendering the DNA test results which were obtained illegally.”Such evidence could be tendered as proof as long as it was relevant to the subject matter of the trial. This position has been affirmed following a number of court rulings,” he said.Hisyam said the aggrieved party could only seek civil remedy for breach of privacy.
However, criminal lawyer Datuk V. Sithambaram said: “Even if a person volunteered for a test, his consent is needed before the results are made public.”This is ensure that the doctor-patient privilege is not breached.”Sithambaram was the counsel for engineer Hanif Basree Abdul Rahman, who was acquitted of the murder of sales executive Noritta Samsuddin.
All three lawyers agreed on one point: a person being investigated for a sexual crime should cooperate fully if he is innocent. The DNA test is the quickest and most reliable method to prove his innocence.Failure to do so would result in an adverse inference being drawn against the person.Lawyer Haresh Mahadevan, meanwhile, said DNA evidence alone was not conclusive to prove that a person was involved in a crime.
SUMMARY
Police can obtain for a court order to force a suspect to undertake DNA test. It is for avoid suspect get a sample illegally as proof. In the United Kingdom, the authorities are authorized to go to court to require a person to do DNA test but there have two conditions that must be fulfilled before the request was made. Though, if a person volunteered for a test, his permission is needed before the results are made public. This is ensure that the doctor-patient privilege is not breached. A person being investigated for a sexual crime should cooperate fully if he is innocent. The DNA test is the quickest and most reliable method to prove his innocence but DNA proof alone was not conclusive to prove that a person was involved in a crime.
