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

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393 Ombudsman audit of local area commands, confidential interview with police officer, 29 September 2004. 394 Police Association of NSW submission, March 2005. 395 Police Association of NSW submission, March 2005. 396 Confidential LAC survey response. 397 Police Association of NSW submission, March 2005. 398 Taken from the Forensic Procedures Information Sheet for Volunteers. 399 Confidential LAC survey response. 400 NSW Police Legislative Changes Working Group, “Proposed Amendments to the Crimes (Forensic Procedures) Act 2000”, undated. 401 Consent form reviewed during Ombudsman audit of local area commands, dated 10 January 2003. 402 Section 15 requires that police must electronically record the provision of information. See discussion at 8.5. 403 Police Association of NSW submission, March 2005. 404 Attorney General’s Department response to Ombudsman draft report, 5 May 2006. 405 NSW Police response to Ombudsman draft report, 2 June 2006. 406 NSW Police Forensic Procedures Information Sheet Volunteer, Version 2003/1. 407 Telephone advice from DAL, 3 March 2005, and meeting at DAL, 5 October 2005. 408 Crimes (Forensic Procedures) Act 2000 s 77(1)(c) and 13(1)(e) (emphasis added). 409 NSW Police response to Ombudsman draft report, 2 June 2006. 410 Attorney General’s Department response to Ombudsman draft report, 5 May 2006. 411 NSW Police response to Ombudsman draft report, 2 June 2006. 412 NSW Police Standard Operating Procedure No. 9, “Suspect Under Arrest or Not Under Arrest – Juvenile or Incapable.” 413 Crimes (Forensic Procedures) Act 2000 s 76(2)(b)(ii) and 77. 414 NSW Commission for Children and Young People submission, 11 February 2005. 415 See figure 7 at section 5.3.2. 416 NSW Police response to Ombudsman draft report, 2 June 2006; and Attorney General’s Department response to Ombudsman draft report, 5 May 2006. 417 Anti-Discrimination Board submission dated 18 February 2005. 418 Intellectual Disability Rights Service submission dated 11 March 2005. 419 NSW Police response to Ombudsman draft report, 2 June 2006; and Attorney General’s Department response to Ombudsman draft report, 5 May 2006. 420 Crimes (Forensic Procedures) Act 2000 s 9(2)(d). 421 Crimes (Forensic Procedures) Act 2000 s 77(1)(e). 422 Intellectual Disability Rights Service submission, 11 March 2005. 423 Legal Aid NSW submission, 28 February 2005. The Law Society of NSW raised similar concerns in its submission, 9 March 2005. 424 NSW Department of Aboriginal Affairs submission, 11 April 2005. 425 Intellectual Disability Rights Service submission, 11 March 2005. 426 Intellectual Disability Rights Service submission, 11 March 2005. 427 Review of custody records, interviews with police officers and the Police Association of NSW submission, March 2005. 428 Law Enforcement (Powers and Responsibilities) Act s 123, formerly Crimes Act 1900 s 356N. 429 Ombudsman audit of local area commands, confidential interview with police officer, 27 September 2004. 430 Law Enforcement (Powers and Responsibilities) Act s 122, formerly Crimes Act 1900 s 356M. 431 NSW Police, “Standard Operating Procedures – Forensic Procedures”. 432 NSW Police response to Ombudsman draft report, 2 June 2006. 433 Intellectual Disability Rights Service submission, 11 March 2005; and Anti-Discrimination Board submission, 18 February 2005. The NSW Legislative Council Standing Committee on Law and Justice also recommended this in its Review of the Crimes (Forensic Procedures) Act 2000 (7 February 2002), Recommendation 27. 434 Anti-Discrimination Board submission, 18 February 2005. The Intellectual Disability Rights Service made similar comments in its submission, 11 March 2005. 435 Police Association of NSW submission, March 2005. 82 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
436 For example, the Queensland legislation provides for “DNA sample notices” where it is not necessary to take the DNA sample immediately – see the Police Powers and Responsibilities Act 2000 (Qld) s 309. 437 Police Association of NSW submission, March 2005. 438 NSW Police response to Ombudsman draft report, 2 June 2006. 439 Attorney General’s Department response to Ombudsman draft report, 5 May 2006. NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 83
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DNA sampling and other forensic pro
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October 2006 The Honourable Bob Deb
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October 2006 Commissioner Ken Moron
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Contents Executive summary ........
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Chapter 17. Conclusion ............
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to children, incapable persons and
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The distinction between suspects an
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inadmissible, the suspect is acquit
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• establishing ‘best practice
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12 13 14 15 16 17 18 19 20 Recommen
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Recommendation Paragraph number 29
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46 47 48 49 50 51 52 53 54 55 Recom
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68 69 70 71 72 73 74 75 76 77 78 Re
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89 Recommendation Staff in all labo
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xx NSW Ombudsman DNA sampling and o
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Part 7 of the Crimes (Forensic Proc
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means that a significant number of
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The aim of the audit was to observe
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We followed up 180 of the 371 foren
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Chapter 2. Key provisions of the Ac
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(ii) the breasts of a female or a t
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scraping or lifting by tape from th
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• Some people have the right to h
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Chapter 3. DNA sampling in Australi
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• Security issues. There are conc
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3.3.2. Australian Capital Territory
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3.3.6. Queensland Forensic procedur
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analysis must be relevant to the of
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The FSS is still the largest forens
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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 108 and 109: He is not here yet. [The form then
Page 110 and 111: Recommendation 15 Police consider i
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
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657 Crimes (Forensic Procedures) Ac
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Chapter 8. Conducting a forensic pr
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The availability of persons is some
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Some metropolitan commands suggeste
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conducting forensic procedures (tak
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Section 57 of the Act provides that
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8.5.7. Recording a forensic procedu
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j. The testing officer asks the sus
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Case Study 52 Police took a hair sa
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Recommendation 38 When police offic
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Recommendation 40 NSW Police retain
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It is unclear whether this directiv
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Generally, police provided adequate
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Recommendation 45 NSW Police ensure
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8.10.3. Photographs Section 59 of t
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Recommendation 48 The Crimes (Foren
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746 Since the Act came into force,
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823 NSW Police response to Ombudsma
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Sometimes it’s not clear whether
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This recommendation is supported by
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test container and the man’s t-sh
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considerations. Alternatively, the
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police appear to have treated victi
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We also note that children under th
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888 Confidential LAC survey respons
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the initial agreement between NSW P
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10.3. Receipt of DNA samples DNA sa
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Table 04: Person samples rejected b
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10.3.6. Samples unconnected to a ca
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10.4.1. Suspect-suspect matching Su
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Recommendation 64 DAL deletes all p
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Case Study 68 Four young people lef
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profiles put on the database, but c
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NSW Health supports recommendation
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10.6.5.2. Volunteers For each of th
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10.6.8. DNA analysis in relation to
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‘Depends on seriousness of offenc
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admits being there then what is the
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Figure 13 indicates there are a lar
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turnaround times (in particular, wh
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In New South Wales, police or the D
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The funding will be used to create
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• representatives from human righ
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large batch of serious indictable o
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965 Discussion at meeting with DAL,
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1050 FSG presentation to DAL, attac
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DAL confirmed that its records were
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Recommendation 81 An audit process
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Case Study 75 An unknown offender b
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Endnotes 1070 Where police records
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Case Study 76 A man was arrested an
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it has been there, whether it has d
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Case Study 77 Police investigating
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Recommendation 89 Staff in all labo
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We realise this is a sensitive issu
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1130 Legislative Assembly Hansard,
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Case Study 84 An unknown offender b
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In making this decision, the court
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evidence. Police would still, of co
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If two samples match, it is possibl
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Similar issues were considered in R
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Where the defence wishes to challen
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These results must be interpreted w
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1179 Letter from DPP, 24 March 2005
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Chapter 14. Destruction of forensic
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14.2.2. Identifying DNA profiles wh
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Recommendation 94 When DAL receives
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Recommendation 96 DAL delete all pr
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Recommendation 98 Section 87 of the
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14.3. Retaining genetic material fr
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1255 Based on DAL’s advice in its
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• a complaint about the incorrect
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The Ombudsman found that the police
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• The man was not cautioned prior
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15.3.5. Failure to maintain proper
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• the supervising sergeant did no
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Case Study 91 In 2004, a lorry driv
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16.2. Possible problems with DNA Be
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1319 Letter from Homicide Squad dat
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Appendix. Implementation of recomme
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at staff development days. In addit
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Term Definition / explanation Conta
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Term Definition / explanation Incap
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Term Definition / explanation Victi
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