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

In any event, not all people of interest could be considered ‘suspects’ – reasonable suspicion involves more than a
mere possibility, it must have some factual basis. 464 The courts have been critical of police treating people of interest
as suspects, in the absence of evidence to support a reasonable suspicion. In Orban v Bayliss (2004), the court
commented that “the purpose of the legislation is not to enable investigating police (or other authorised persons)
to identify a person as a suspect; it is to facilitate the procurement of evidence against a person who is already a
suspect.” 465 Similarly, in Maguire v Beaton (2005), the court set aside an order for a person of interest to undergo
a forensic procedure on the basis that police sought her fingerprints to identify whether she was a suspect or not,
although it was “no more than a possibility” that she had committed the offence. 466
The problem with interpreting ‘suspect’ too narrowly, though, is that there are few restrictions on police asking
volunteers to undergo forensic procedures. For volunteers, there is no requirement that the procedure be of
investigative value (i.e. that it is likely to confirm or disprove the person’s involvement in an offence) or that it be
justified in the circumstances. One submission we received raised concerns about police placing pressure on people
of interest to undergo forensic procedures as volunteers. 467 It may also be easier to conduct a forensic procedure on
a child who is considered a volunteer rather than a suspect, as a court order is required if the child is considered a
suspect but the consent of the child’s parent or guardian is sufficient if the child is considered to be a volunteer. The
same goes for incapable persons.
Whether a person of interest is a suspect or volunteer will depend on the circumstances, in particular whether the
evidence supports a reasonable suspicion that the person committed an offence. In our view, police should in the
event of uncertainty err on the side of treating people of interest as volunteers. Although there are few restrictions on
who police can ask to volunteer to undergo a forensic procedure, the person can at least decline to participate.
7.2. Suspects: proceeding by consent
7.2.1. How often are procedures conducted by consent
Forensic procedures are almost always conducted on the basis of consent.
Police records indicate that during the review period, 6,718 buccal swabs were taken from adult suspects, compared
to 289 hair samples. As buccal swabs can only be taken by consent, this suggests that at least 96 per cent of DNA
samples taken from adult suspects were taken by consent. 468 We understand this figure includes some buccal swabs
taken by order of a court, where the suspect was sufficiently cooperative to self-administer a buccal swab, but the
basis of authority was actually a court order and not consent. For this reason, the actual number of DNA samples
taken on the basis of the suspect’s consent would be slightly lower.
It is not possible from COPS records to gauge how often forensic procedures other than DNA samples are conducted
by consent.
7.2.2. Records of consent
During our audit of local area commands, we sought to review the basis of authority for each of the forensic
procedures we audited, to gauge how many of these were conducted by consent. We were able to review consent
forms for 198 of the 343 forensic procedures on suspects. We found evidence that a further 29 procedures had been
conducted by order of a court or senior police officer rather than by consent. However, we were unable to locate the
consent form or other source of authority for the remaining 116 procedures – a third of those included in the audit.
There are several reasons why so many consent forms could not be located. We discovered that some officers were
printing consent forms from the intranet instead of using the NSW Police issue consent books. It is preferable to use
the books, as this ensures there is a central record of consent, and includes a duplicate, which should be provided to
the suspect. At our request FPIT has since marked the intranet form “SAMPLE ONLY.”
In our video audit, we saw that some police officers asked the suspect to sign the information sheet rather than a
consent form. We note that NSW Police has developed consent forms which reflect the requirements of the Act and
having the suspect sign the information sheet will not on its own meet the relevant legislative requirements.
Further, while most police officers are aware of the requirement to complete consent forms for DNA samples, it
appears that consent forms are not always used for forensic procedures other than DNA samples.
We have noted that NSW Police is developing a new forensic procedures register, so that information relating to
forensic procedures can all be kept in a single book. We understand that the source of authority for the procedure
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000