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

Recommendation 15
Police consider informing suspects who have been taken into detention after arrest, and who are likely to
undergo a forensic procedure, that police may wish to conduct a forensic procedure on the person, such as a
DNA sample, and that this information be provided when police give suspects their summary of the provisions
of Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002.
NSW Police supports this recommendation and has advised that it will consider updating its procedures to include
this information. 432
6.2.5. Improving access to legal advice
Many submissions argued that access to legal advice should be improved. Some advocated establishing a 24 hour
telephone hotline for people who have been detained by police. 433
There were also suggestions that suspects and volunteers be given notice prior to police requesting consent to
a forensic procedure, so they can seek legal advice if they wish. The Anti-Discrimination Board argued this would
enable suspects and volunteers to be better informed about the procedure and its consequences before deciding
whether to consent or not. 434 The Police Association of NSW also suggested that suspects and volunteers be given
a copy of the information sheet beforehand, to give them the opportunity to go through the information with a legal
practitioner. 435
Some other jurisdictions provide for notice periods before taking DNA samples. 436 These tend to relate to samples
taken by compulsion, but could be adapted for samples taken by consent.
Obviously it would not be appropriate to give notice for some types of forensic procedures, like gun shot residue
tests, nail scrapings or photographs of injuries. These have to be taken while the suspect is in custody or the
evidence will be lost. However, a person’s DNA can be taken at any time. As discussed above, giving notice before
asking for consent to a forensic procedure, and providing information about the procedure with the notice, could
improve access to legal advice, ensure suspects and volunteers are better informed, and shorten the length of time
the person spends in police custody receiving information and waiting for legal advice.
There are several reasons why providing notice may not be appropriate where police wish to take a DNA sample
from a suspect who is under arrest. First, it is much more convenient to conduct the procedure while police have the
person in custody, rather than attempting to carry it out at a later date. Second, police may wish to carry out other
forensic procedures, which have to be carried out straight away, before the evidence is lost. In those circumstances,
police would still have to provide the suspect with the relevant information and the opportunity to seek legal advice.
Third, police will in some circumstances have the power to compel the person to provide the sample regardless of
consent. Finally, there is the possibility that providing advice in advance of a forensic procedure may increase the risk
of the person absconding.
These considerations do not apply to volunteers or suspects who are not under arrest, and in our view there would be
considerable merit in providing these people with notice about intended forensic procedures. This approach seems to
be supported by the Police Association of NSW. In its submission, the Association suggested that “one better option
would be to give the suspect the Information Sheet prior to the procedure for them to read or go over with their lawyer
and then simply explain the gist of the information in language more suitable”. 437
In our draft report, we made a provisional recommendation, that the Act be amended “so that police are required to
give volunteers and suspects who are not under arrest a period of notice, specified in the Act or Regulation, before
asking them to provide a DNA sample.”
NSW Police did not support this recommendation, commenting:
NSW Police has reservations about being able to comply with such requirements. Additionally, it is believed that
investigations may be unnecessarily hampered or delayed, and suspects and volunteers may be unnecessarily
inconvenienced. 438
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000