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

Executive summary
Background to this report
The Ombudsman is required to keep under scrutiny the exercise of functions conferred on police officers under the
Crimes (Forensic Procedures) Act (the Act) from July 2000 to November 2004, and provide a report on our work and
activities to the Attorney General, Minister for Police and Commissioner for Police as soon as practicable after the
expiration of the review period. 1 We provided an initial report, on the DNA sampling of serious indictable offenders,
in August 2004. This second report deals with DNA sampling and other forensic procedures conducted on suspects
and volunteers.
This report follows two other reviews of the legislation. First, the NSW Parliamentary Standing Committee on Law
and Justice inquired into the operation of the Act, focusing on the effectiveness of DNA evidence and the implications
of its use in criminal investigations. The Committee reported its findings to Parliament in February 2002. Second, the
Attorney General reviewed the Act to determine whether its policy objectives remain valid, and whether the terms of
the Act remain appropriate to securing those objectives. The Attorney General’s report was finalised in April 2003.
This review focuses on whether police officers and others involved in forensic procedures are complying with their
legislative obligations, and are exercising their powers fairly and effectively.
Key provisions of the Act
A forensic procedure is a way to obtain evidence that relates to the investigation and prosecution of a crime.
The Act authorises three different categories of forensic procedures – buccal swabs (for DNA sampling); non-intimate
forensic procedures (which includes photographs, swabs, nail scrapings, fingerprints, hair samples and visual
examinations of the body); and intimate forensic procedures (including blood samples, dental impressions, pubic hair
samples, intimate photographs and visual examinations of genitals, buttocks or breasts). Most forensic procedures
are conducted by police officers, although some may be conducted by other experts, such as medical practitioners
or dentists.
Forensic procedures can be conducted on suspects, volunteers and certain convicted offenders. A suspect is a
person who police believe on reasonable grounds has committed an offence. Volunteers are generally people who
have some connection to a crime or crime scene, but are not suspects, for example witnesses, residents of a place
where a crime has been committed, and partners of people who have been sexually assaulted by somebody else.
Convicted offenders are people who have been convicted of a “serious indictable offence”; that is, an offence which
carries a maximum penalty of five years imprisonment or more. Victims of crime are specifically excluded from the
operation of the Act.
Volunteers can only undergo forensic procedures by consent, but suspects and convicted offenders can undergo
forensic procedures by consent, senior police order or court order. For a forensic procedure to be conducted on a
suspect in the absence of consent, the suspect must be under arrest, there must be reasonable grounds to believe
the procedure might produce evidence tending to confirm or disprove the suspect committed the offence, and
carrying out the procedure must be justified in all the circumstances. Police may use reasonable force to conduct
a forensic procedure, but cannot conduct the procedure in a cruel, inhuman or degrading manner.
The Act provides for a DNA database system, which contains indexes of DNA profiles obtained from crime scenes,
suspects, volunteers, convicted offenders, missing persons and unknown deceased persons. When DNA profiles
are put on the database, only certain types of matching are permitted. DNA profiles obtained from suspects and
convicted offenders can be matched against the entire crime scene index, while profiles obtained from volunteers
can only be used for a purpose permitted by the volunteer, and are usually only used in relation to the investigation
of a particular offence.
The Act contains a number of safeguards, to protect the rights and interests of people on whom police would like
to conduct a forensic procedure. Police must inform the person of the nature and consequences of the proposed
procedure, give the person reasonable opportunity to communicate with a legal practitioner before asking for
consent, and electronically record the request for consent and, unless the person objects, the procedure itself.
Forensic procedures cannot be conducted during questioning, and there are limits on the amount of time a person
can be kept in custody for the purpose of conducting a forensic procedure. There are particular provisions relating
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
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