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

Chapter 7. Authority to conduct a
forensic procedure
Forensic procedures can be conducted by consent, by order of a senior police officer or by order of a court.
This chapter examines how often procedures are conducted by consent, and whether forensic procedures are
being conducted with the appropriate authority.
7.1. The distinction between suspects and volunteers
The Act draws a distinction between ‘suspects’ and ‘volunteers’. A ‘suspect’ is a person whom police suspect on
reasonable grounds has committed an offence, a person who has been charged with an offence, or a person who
has been summoned to appear before a court in relation to an offence allegedly committed by the person. 440 A
‘volunteer’ is a person, other than a suspect or victim, who volunteers to police to undergo a forensic procedure. 441
7.1.1. Why is the distinction important
The distinction between suspects and volunteers is important for several reasons. First, there are different criteria
for taking a sample. For suspects, police must be satisfied that the person is a suspect, that there are reasonable
grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the
suspect committed an offence (and in the case of a DNA sample, that the suspect committed an indictable offence),
and that the request for consent is justified in all the circumstances. 442 These criteria do not apply to volunteers
– a volunteer can be any person, other than a suspect or victim, who volunteers to a police officer to undergo a
procedure. 443
Second, the basis of authority for a procedure is different for forensic procedures conducted on suspects and
volunteers. In some circumstances, a suspect may be compelled to undergo a forensic procedure, by a senior
police officer or a court. 444 A volunteer can never be compelled to undergo a forensic procedure. Another important
distinction is that a court order is required to conduct a forensic procedure on a child or incapable person who is a
suspect, but is not required if the child or incapable person is treated as a volunteer, provided the person’s parent or
guardian consents to the procedure. 445
Third, the Act sets out different obligations on the person conducting the procedure, depending on whether the
person providing the sample is classified as a suspect or volunteer. The information the person must be given
before giving consent is different, and when a volunteer gives consent, it must be in writing, and be witnessed by an
independent person. 446
Fourth, the consequences of providing a DNA sample differ, depending on whether the person providing the sample
is classified as a suspect or volunteer. A sample taken from a suspect may be matched against the entire crime scene
index on the DNA database. However, a sample taken from a volunteer may only be used for a purpose permitted
by the volunteer. A volunteer may consent to his or her profile being placed on the DNA database for the limited
purpose of comparison against forensic material obtained in relation to the particular offence being investigated.
Alternatively, a volunteer may consent to his or her profile being placed on the DNA database for unlimited purposes,
in which case the information may be used for the purpose of a criminal investigation or any other purpose for which
the DNA database may be used under the Act. 447 Further, forensic material taken from a suspect must be destroyed if
proceedings have not been commenced within 12 months, or if the person is acquitted of the offence, and the person
is not being investigated for another offence. 448 By contrast, forensic material taken from a volunteer may be retained
for such period as police and the volunteer agree, and then must be removed from the system. 449
The form NSW Police uses when sending DNA samples to the laboratory indicates whether the person is a volunteer
or suspect. 450 The laboratory relies on this information to determine what the person’s DNA profile can be used for.
If the officer completing the form does not have a good understanding of the distinction between suspects and
volunteers, and fills in the form incorrectly, this error will be carried over to the laboratory.
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000