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

The Attorney General’s Department also expressed concern about mandatory notice periods:
Proposed Recommendation 16 appears appropriate in relation to many volunteers (including any volunteer
who Police intend to request consenting to having his or her profile placed on the ‘volunteers: unlimited
purposes’ index), and suspects who are not under arrest. However, in relation to victims of non-violent offences
and third parties who are witnesses or whose sample is taken only for exclusion purposes, it is questionable
whether any utility in imposing a mandatory statutory period for advice and cooling off will be outweighed by the
inconvenience to the person. Persons in that second category are more likely to prefer to have their dealings
with Police finalised in one transaction; a mandatory statutory waiting period will require that these persons are
given information, sent away, and then required to attend on a second occasion to actually provide a sample. 439
Most of these concerns can be addressed by allowing the suspect or volunteer to waive his or her right to a notice
period. Suspects and volunteers who prefer to have their dealings with police finalised in one transaction can do so,
and those who would prefer some time to consider the police request or seek legal advice would have the benefit of
the notice period. In relation to police concerns about investigations being hampered, we note that the notice period
would not relate to suspects who are under arrest. In our view providing notice of a police request for a DNA sample
with a right to waive the notice period strikes an appropriate balance between the needs of police and the rights and
interests of suspects and volunteers.
Recommendation 16
The Crimes (Forensic Procedures) Act 2000 be amended so that:
a. Police officers 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.
b. Police need not wait until the end of the notice period to take the DNA sample, if the suspect or volunteer
has expressly and voluntarily waived his or her right to the period of notice.
Endnotes
375
Crimes (Forensic Procedures) Act 2000 s 13.
376 Crimes (Forensic Procedures) Act 2000 s 77 and Crimes (Forensic Procedures) Regulation 2000 cl 7A.
377 Crimes (Forensic Procedures) Act 2000 s 13(1).
378 NSW Police, “Standard Operating Procedures – Forensic Procedures”.
379 NSW Legislative Council Standing Committee on Law and Justice, Review of the Crimes (Forensic Procedures) Act 2000, 7 February
2002, at paragraph 5.108 and Recommendation 24.
380
NSW Ombudsman, The Forensic DNA Sampling of Serious Indictable Offenders under Part 7 of the Crimes (Forensic Procedures) Act
2000, August 2004, Recommendation 19, p. 104.
381 Letter from the Director General, NSW Attorney General’s Department dated 25 February 2005.
382 Legal Aid NSW submission, 28 February 2005, Law Society of NSW submission 9 March 2005, Police Association of NSW, March 2005.
383 Legal Aid NSW submission, 28 February 2005.
384 Police Association of NSW submission, March 2005.
385 Police Association of NSW submission, March 2005.
386 Ombudsman audit of local area commands, confidential interview with police officer, 2 August 2004.
387 Ombudsman audit of local area commands, confidential interview with police officer, 3 August 2004.
388 Police Association of NSW submission, March 2005.
389 Ombudsman audit of local area commands, confidential interview with police officer, 3 August 2004.
390 Confidential LAC survey response.
391 Confidential LAC survey response.
392 Ombudsman audit of local area commands, confidential interview with police officer, 27 September 2004.
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 81