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

interest in upholding the physical integrity of the suspect. It also specifies a number of factors police must consider
in conducting this balancing exercise, including the seriousness of the offence, the circumstances surrounding its
commission, the degree of the suspect’s alleged participation, personal characteristics of the suspect (including
age, health, cultural background), whether evidence of the suspect’s involvement in the offence can be gained in a
less intrusive way, and other relevant matters. 515 The 2000 model bill for forensic procedures contained guidelines
for balancing the competing public interests, but these were not ultimately included in the New South Wales Act. The
model bill is discussed in detail in section 3.2 of this report.
Some of the submissions we received raised concerns about forensic procedures being conducted in circumstances
where they are not warranted. 516 Some recommended that guidelines be developed to assist police officers in
determining whether a forensic procedure request is justified. 517 We note that the Legislative Council Standing
Committee on Law and Justice has previously recommended that guidelines to assist police officers in determining
whether a request of order for a DNA sample is justified in all the circumstances be inserted into the New South Wales
Act. 518
Despite the calls for further guidance about when a request for consent will be “justified in all the circumstances,”
our research does not suggest this would be of significant value. While we did find instances of forensic procedures
which appeared unwarranted, this was because other criteria were not satisfied, for example where the person
was not a suspect, or there were no reasonable grounds for believing the procedure would confirm or disprove the
suspect committed an offence. We also note that the discussion above only deals with whether a request for consent
by a suspect to a forensic procedure is “justified in all the circumstances”. Whether conducting a forensic procedure
in the absence of consent is justified raises very different issues, which we address below, at 7.2.6.
7.2.4. Factors affecting whether a suspect consents to a procedure
In our work scrutinising the operation of the Act, we identified a number of different factors which affected a suspect’s
decision to consent to a forensic procedure, including:
• a wish to cooperate with police
• a desire to show the suspect has nothing to hide: “I’ve got nothing to hide and I know this will clear me... I'm
innocent and forensics will prove that.” 519
• a belief that there is no choice about the matter and the procedure will be conducted regardless: “I had to do
it. You would get a sample anyway.” 520
• the threat of being subjected to a more painful procedure, on the basis that police may order a hair sample be
taken if a person does not consent to a buccal swab
• fear that police may take a sample by force, and
• the length of time spent in police custody and a desire to be released as soon as possible: “I want it done to
get out of here.” 521
Several submissions we received raised concerns about suspects undergoing forensic procedures without having
given properly informed consent. Legal Aid NSW advised that:
In general our clients do not sufficiently understand the nature of the procedure and their option not to consent...
For example, clients often indicate that they were scared that police would forcibly take samples from them,
which they try to avoid by consenting to the procedure. 522
The NSW Department of Aboriginal Affairs similarly commented:
There is anecdotal evidence that some police officers are advising suspects that if they don’t consent to a
buccal swab the police have the power to use reasonable force to take a sample of growing hairs. In such
cases a suspect would be misled as to their rights to decline to participate in DNA forensic procedures. 523
Our monitoring of police suggests these concerns are well founded. In particular, we found that most police officers
do not appreciate that the criteria for requesting consent and for making an order are quite different. First, to ask for
consent to a procedure, the police officer need only suspect on reasonable grounds that the person has committed
an offence. 524 But to order a procedure be carried out in the absence of consent, the police officer must be satisfied
that “there are reasonable grounds to believe that the suspect committed an offence,” 525 which creates a much
higher threshold. Although a reasonable suspicion involves more than a mere possibility, and must have some factual
basis, it involves less than a reasonable belief. 526 Second, to ask for consent to a procedure, the police officer must
be satisfied that “the request for consent to the procedure is justified in all the circumstances.” 527 However, to order a
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000