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

Case Study 12
A woman was sexually assaulted on a train station in the early hours of the morning. The assault was captured
on closed circuit television. Police identified several possible suspects. According to police records, one
“denied any involvement and was subsequently offered the opportunity to undergo a forensic procedure. A
buccal swab procedure was volunteered to.” Another attended the police station and “consented to supplying
police a mouth buccal swab to rule out himself as a suspect in the commission of this offence.” A third person
of interest was questioned about the incident but did not have a DNA sample taken as police knew his profile
was already on the DNA database. 457
Case Study 13
A 36 year old man was at home with his girlfriend and three young children when he heard a knock at the door.
He opened the door and saw two unknown men, asking for pot. When the man replied he did not have any,
they asked for money, then pushed past him and went into the house. One pulled out a claw hammer and
tried to strike the man. After a short struggle the two men ran from the house, taking two wallets with them. A
short time later police arrested two men whose descriptions matched those of the offenders. The men agreed
to have fingerprints and photographs taken. Both denied being involved in the incident, and gave similar
accounts as to their movements. Investigating police formed the view that they were not the offenders after
all, and released them without charge. Police records stated that “both volunteers agreed to participate in a
forensic procedure photograph and fingerprinting.” 458
Case Study 14
A woman alleged she had been sexually assaulted and identified a particular man as the perpetrator. There
was some evidence that the man was in another town at the time of the incident. Police took a DNA sample
from the man, as a volunteer, to eliminate him from the investigation. 459
In these case studies, it appears the person was treated as a volunteer because there was insufficient evidence
to suspect on reasonable grounds that the person committed the offence. This is consistent with the NSW Police
position that ‘volunteer’ includes “persons who have not been excluded as POIs but are not yet suspects.” 460
In some circumstances, police will not ask people of interest to undergo forensic procedures as volunteers because
they do not want to alert them to the fact they are under investigation. For example, in R v White (2005), police
investigating a murder case identified about twenty people of interest. Police obtained covert DNA samples from five
of them, who were then eliminated from the investigation. DNA analysis implicated a sixth person, who subsequently
pleaded guilty to the offence. The police officer in charge of the investigation gave evidence that he did not attempt
to take DNA samples under the Act because in his view, the people of interest, including the person subsequently
identified as the offender, were not at that time ‘suspects’ for the purposes of the Act. 461
During proceedings in White, the judge commented that he thought suspects and people of interest were “one and
the same.” 462 When asked how a person of interest differs from a suspect, the police officer gave evidence that “a
suspect is a subset of a group of people we call persons of interest and a person of interest is a very broad term and
describes a lot of people.” 463
Should people of interest be considered suspects for the purposes of the Act The problem with interpreting ‘suspect’
too broadly is that police could compel people who fall short of being suspected on reasonable grounds of having
committed an offence to undergo forensic procedures. Further, DNA samples taken from suspects can be used much
more broadly than samples taken from volunteers – they can be used for searching against the entire crime scene
index on the DNA database.
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 87