Crimes (Forensic Procedures) Act 2000 - NSW Ombudsman - NSW ...

More documents

Recommendations

Info

He is not here yet. [The form then indicates that police waited until the suspect had spoken to a legal practitioner before proceeding.] However, 15 consent forms indicated the person had not been given the opportunity to obtain legal advice, and did not explain why. For example: Not that I am aware of. No, not tonight. No. I wish to contact a solicitor. One form had “N/A. Elimination only” written on it. We note police taking DNA samples from suspects for elimination purposes are still required to provide the suspect with reasonable opportunity to obtain legal advice. For the rest of the procedures we audited, we could not gauge whether the person was given reasonable opportunity to obtain legal advice, as the consent form failed to indicate either way (in 37 procedures), the consent form could not be located (for 131 procedures), or the procedure was not conducted by consent and there was no record of whether the requirement had been met (for 29 procedures). 6.2.2. How often is legal advice obtained Only a small proportion of suspects and volunteers obtain legal advice before deciding whether to consent to a procedure. They rarely have a legal practitioner present during the provision of information, consent process or the procedure itself. Many consent forms indicated the suspect had been given the opportunity to seek legal advice, but had chosen not to: That’s all right, we’ll just do it. No thanks. No, there’s no need for that. I’ve done it all by myself. Don’t want one, I’ve got nothing to worry about. Some suspects gave reasons for not seeking legal advice, although they may have wanted to: Too complicated. I can’t call no one. It’ll cost me two grand for them to come here. Some of the submissions we received raised concerns that police may interpret the requirement to give suspects reasonable opportunity “to attempt to communicate” with a legal practitioner too narrowly, and so deprive suspects of any real opportunity to obtain legal advice: A very narrow interpretation might be that one phone call to a solicitor to discover that the solicitor was presently on the phone might be construed as meeting the requirements of the section. 422 The consent forms we reviewed did show that some suspects were unsuccessful in their attempts to obtain legal advice: They tried to get him for me but he wasn’t available. Yes, I have attempted but there was no answer. Attempt only didn’t get through. No access to phone. I can’t do this at present time I don’t have phone. They refused me a phone. No. 78 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
Without further information we are unable to determine whether these suspects were in fact given reasonable opportunity to attempt to communicate with a legal practitioner. However, it would appear that police could have given some suspects greater opportunity to obtain legal advice. They should at least provide phone access, and allow the suspect reasonable time to get through. 6.2.3. Difficulties obtaining legal advice Many of the submissions we received explained that legal advice is not readily available for adult suspects and volunteers. The NSW Law Society stated: A very small percentage of people actually contact a lawyer to obtain legal advice as to whether they should or should not consent to the forensic procedure. Children have access to Legal Aid NSW’s Under 18s Hotline and can be advised by that service, but, other than through the Aboriginal and Torres Straight Islander Services, there is no corresponding provision for free legal advice for adult suspects and volunteers. 423 Although free legal advice should be available for Aboriginal and Torres Strait Islander suspects and volunteers, this is not always the case. As the NSW Department of Aboriginal Affairs explained: There are practical limitations to all Aboriginal suspects obtaining legal advice while in police custody due to Aboriginal legal services not being sufficiently staffed to attend all matters. 424 The Intellectual Disability Rights Service commented: This right [to seek legal advice] is greatly weakened by the fact that there are very few avenues for free legal advice. Very few offenders can afford to pay a private solicitor to advise them about whether or not they must submit to DNA sampling. 425 The Service further commented that it is particularly difficult for people with intellectual disabilities to access legal advice: People with an intellectual disability have even greater barriers to accessing legal advice as they may not appreciate the need for the advice or they may not know where to find legal advice. 426 It is not clear from the information available exactly what impact obtaining legal advice has on whether a person consents or not. However, we did find some evidence to suggest that suspects may be less likely to consent to a forensic procedure after obtaining legal advice on the issue. 427 6.2.4. Relationship with Part 9 of the Law Enforcement (Powers and Responsibilities) Act Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (formerly Part 10A of the Crimes Act 1900) sets out the rights of people detained in police custody after arrest. Before conducting any investigative procedure, such as questioning or searching a suspect, police must tell the suspect that he or she may attempt to communicate with a legal practitioner, and must provide reasonable facilities for this. Police must suspend the investigative procedure while the person attempts to obtain legal advice, and must wait if the person has asked a legal practitioner to attend the police station. 428 Some of the police officers we interviewed advised that suspects often seek legal advice when they are first taken into custody. At this stage, they may not be aware that police intend to ask them to consent to a forensic procedure. By the time police do ask for consent, the suspect may have been in custody for some time, and may be reluctant to go back and seek further legal advice about the matter. This may be one reason why only a very small proportion of suspects obtain legal advice about forensic procedures. 429 Police are required to give suspects a summary of their rights under Part 9 of the Law Enforcement (Powers and Responsibilities) Act. 430 Suspects could then seek legal advice on this issue when they are first taken into custody. Advising suspects when they are taken into custody that police may wish to conduct a forensic procedure would not replace suspects being given reasonable opportunity to seek legal advice about proposed forensic procedures. Police would still have to ask, when completing the consent form, whether the suspect has had reasonable opportunity to communicate with a legal practitioner. If the suspect indicates they have not, police must then provide this opportunity. 431 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 79
Page 2 and 3:
DNA sampling and other forensic pro
Page 4 and 5:
October 2006 The Honourable Bob Deb
Page 6 and 7:
October 2006 Commissioner Ken Moron
Page 8 and 9:
Contents Executive summary ........
Page 10 and 11:
Chapter 17. Conclusion ............
Page 12 and 13:
to children, incapable persons and
Page 14 and 15:
The distinction between suspects an
Page 16 and 17:
inadmissible, the suspect is acquit
Page 18 and 19:
• establishing ‘best practice
Page 20 and 21:
12 13 14 15 16 17 18 19 20 Recommen
Page 22 and 23:
Recommendation Paragraph number 29
Page 24 and 25:
46 47 48 49 50 51 52 53 54 55 Recom
Page 26 and 27:
68 69 70 71 72 73 74 75 76 77 78 Re
Page 28 and 29:
89 Recommendation Staff in all labo
Page 30 and 31:
xx NSW Ombudsman DNA sampling and o
Page 32 and 33:
Part 7 of the Crimes (Forensic Proc
Page 34 and 35:
means that a significant number of
Page 36 and 37:
The aim of the audit was to observe
Page 38 and 39:
We followed up 180 of the 371 foren
Page 40 and 41:
Chapter 2. Key provisions of the Ac
Page 42 and 43:
(ii) the breasts of a female or a t
Page 44 and 45:
scraping or lifting by tape from th
Page 46 and 47:
• Some people have the right to h
Page 48 and 49:
Chapter 3. DNA sampling in Australi
Page 50 and 51:
• Security issues. There are conc
Page 52 and 53:
3.3.2. Australian Capital Territory
Page 54 and 55:
3.3.6. Queensland Forensic procedur
Page 56 and 57:
analysis must be relevant to the of
Page 58 and 59: The FSS is still the largest forens
Page 60 and 61: The Garda Commissioner (the Irish e
Page 62 and 63: of operation, 50 per cent of states
Page 64 and 65: 86 For example, NSW Legislative Ass
Page 66 and 67: 150 Police Powers and Responsibilit
Page 68 and 69: 226 DNA Identification Act 1998 (Ca
Page 70 and 71: Chapter 4. Implementation of the Ac
Page 72 and 73: Separate training courses are run f
Page 74 and 75: 4.2.1. How easy is it for police of
Page 76 and 77: Given the widespread reluctance to
Page 78 and 79: Recommendation 03 NSW Police ensure
Page 80 and 81: NSW Police has long term plans to r
Page 82 and 83: The Audit Group has advised that it
Page 84 and 85: the carrying out of these forensic
Page 86 and 87: 322 Crimes (Forensic Procedures) Ac
Page 88 and 89: We asked NSW Police why there is su
Page 90 and 91: Table 2 shows the rate at which for
Page 92 and 93: Figure 5 shows that, of the forensi
Page 94 and 95: For procedures conducted on child s
Page 96 and 97: These figures show that the number
Page 98 and 99: cent result in a warm link and 13 p
Page 100 and 101: 355 40 out of 450 child suspects: C
Page 102 and 103: In our 2004 report on the DNA sampl
Page 104 and 105: 6.1.3. Does it matter whether the p
Page 106 and 107: The distinction between suspects an
Page 110 and 111: Recommendation 15 Police consider i
Page 112 and 113: 393 Ombudsman audit of local area c
Page 114 and 115: Chapter 7. Authority to conduct a f
Page 116 and 117: Case Study 10 An unknown offender b
Page 118 and 119: In any event, not all people of int
Page 120 and 121: intellectual functioning, someone e
Page 122 and 123: Case Study 15 An elderly woman was
Page 124 and 125: Even where there is direct evidence
Page 126 and 127: interest in upholding the physical
Page 128 and 129: of consent; and secondly, it sugges
Page 130 and 131: 7.3. Suspects: proceeding by order
Page 132 and 133: second because the orders we were a
Page 134 and 135: The Police Association of NSW reque
Page 136 and 137: Case Study 28 A homeless man died a
Page 138 and 139: grounds to believe the suspect comm
Page 140 and 141: concern that, in any Act where no s
Page 142 and 143: forensic procedures by consent, pol
Page 144 and 145: Case Study 37 Several young men sto
Page 146 and 147: 7.4.11. Appealing against court ord
Page 148 and 149: Case Study 43 A 25 year old woman w
Page 150 and 151: involved in the investigation of th
Page 152 and 153: use a DNA profile from a volunteer
Page 154 and 155: Several targeted screens have been
Page 156 and 157: Recommendation 29 The Minister regu
Page 158 and 159:
128 482 Intellectual Disability Rig
Page 160 and 161:
569 Law Enforcement (Powers and Res
Page 162 and 163:
657 Crimes (Forensic Procedures) Ac
Page 164 and 165:
Chapter 8. Conducting a forensic pr
Page 166 and 167:
The availability of persons is some
Page 168 and 169:
Some metropolitan commands suggeste
Page 170 and 171:
conducting forensic procedures (tak
Page 172 and 173:
Section 57 of the Act provides that
Page 174 and 175:
8.5.7. Recording a forensic procedu
Page 176 and 177:
j. The testing officer asks the sus
Page 178 and 179:
Case Study 52 Police took a hair sa
Page 180 and 181:
Recommendation 38 When police offic
Page 182 and 183:
Recommendation 40 NSW Police retain
Page 184 and 185:
It is unclear whether this directiv
Page 186 and 187:
Generally, police provided adequate
Page 188 and 189:
Recommendation 45 NSW Police ensure
Page 190 and 191:
8.10.3. Photographs Section 59 of t
Page 192 and 193:
Recommendation 48 The Crimes (Foren
Page 194 and 195:
746 Since the Act came into force,
Page 196 and 197:
823 NSW Police response to Ombudsma
Page 198 and 199:
Sometimes it’s not clear whether
Page 200 and 201:
This recommendation is supported by
Page 202 and 203:
test container and the man’s t-sh
Page 204 and 205:
considerations. Alternatively, the
Page 206 and 207:
police appear to have treated victi
Page 208 and 209:
We also note that children under th
Page 210 and 211:
888 Confidential LAC survey respons
Page 212 and 213:
the initial agreement between NSW P
Page 214 and 215:
10.3. Receipt of DNA samples DNA sa
Page 216 and 217:
Table 04: Person samples rejected b
Page 218 and 219:
10.3.6. Samples unconnected to a ca
Page 220 and 221:
10.4.1. Suspect-suspect matching Su
Page 222 and 223:
Recommendation 64 DAL deletes all p
Page 224 and 225:
Case Study 68 Four young people lef
Page 226 and 227:
profiles put on the database, but c
Page 228 and 229:
NSW Health supports recommendation
Page 230 and 231:
10.6.5.2. Volunteers For each of th
Page 232 and 233:
10.6.8. DNA analysis in relation to
Page 234 and 235:
‘Depends on seriousness of offenc
Page 236 and 237:
admits being there then what is the
Page 238 and 239:
Figure 13 indicates there are a lar
Page 240 and 241:
turnaround times (in particular, wh
Page 242 and 243:
In New South Wales, police or the D
Page 244 and 245:
The funding will be used to create
Page 246 and 247:
• representatives from human righ
Page 248 and 249:
large batch of serious indictable o
Page 250 and 251:
965 Discussion at meeting with DAL,
Page 252 and 253:
1050 FSG presentation to DAL, attac
Page 254 and 255:
DAL confirmed that its records were
Page 256 and 257:
Recommendation 81 An audit process
Page 258 and 259:
Case Study 75 An unknown offender b
Page 260 and 261:
Endnotes 1070 Where police records
Page 262 and 263:
Case Study 76 A man was arrested an
Page 264 and 265:
it has been there, whether it has d
Page 266 and 267:
Case Study 77 Police investigating
Page 268 and 269:
Recommendation 89 Staff in all labo
Page 270 and 271:
We realise this is a sensitive issu
Page 272 and 273:
1130 Legislative Assembly Hansard,
Page 274 and 275:
Case Study 84 An unknown offender b
Page 276 and 277:
In making this decision, the court
Page 278 and 279:
evidence. Police would still, of co
Page 280 and 281:
If two samples match, it is possibl
Page 282 and 283:
Similar issues were considered in R
Page 284 and 285:
Where the defence wishes to challen
Page 286 and 287:
These results must be interpreted w
Page 288 and 289:
1179 Letter from DPP, 24 March 2005
Page 290 and 291:
Chapter 14. Destruction of forensic
Page 292 and 293:
14.2.2. Identifying DNA profiles wh
Page 294 and 295:
Recommendation 94 When DAL receives
Page 296 and 297:
Recommendation 96 DAL delete all pr
Page 298 and 299:
Recommendation 98 Section 87 of the
Page 300 and 301:
14.3. Retaining genetic material fr
Page 302 and 303:
1255 Based on DAL’s advice in its
Page 304 and 305:
• a complaint about the incorrect
Page 306 and 307:
The Ombudsman found that the police
Page 308 and 309:
• The man was not cautioned prior
Page 310 and 311:
15.3.5. Failure to maintain proper
Page 312 and 313:
• the supervising sergeant did no
Page 314 and 315:
Case Study 91 In 2004, a lorry driv
Page 316 and 317:
16.2. Possible problems with DNA Be
Page 318 and 319:
1319 Letter from Homicide Squad dat
Page 320 and 321:
Appendix. Implementation of recomme
Page 322 and 323:
at staff development days. In addit
Page 324 and 325:
Term Definition / explanation Conta
Page 326 and 327:
Term Definition / explanation Incap
Page 328 and 329:
Term Definition / explanation Victi
show all

Crimes (Forensic Procedures) Act 2000 - NSW Ombudsman - NSW ...

Create successful ePaper yourself

Delete template?

Save as template?