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

7.2.7. What if consent is withdrawn
The Act provides that if a person withdraws consent before or during the carrying out of the procedure, the person is
deemed to have refused to consent to the procedure, and it cannot proceed except by order of a senior police officer
or a court. 544
Some submissions raised concerns about what may happen to any forensic material which may have been obtained
before consent was withdrawn. 545 Legal Aid NSW suggested that any forensic material obtained before consent is
withdrawn should have to be destroyed, and that a court could order that it be retained if satisfied that the probative
value of the evidence would otherwise be lost.
In practice, we found that if a suspect withdraws consent before or during a forensic procedure, police would only
proceed by order of a senior police officer or a court.
Case Study 24
A man was arrested after assaulting security officers at a university. Police asked him to provide a DNA sample
by buccal swab, and he declined. Police explained that a senior officer could make an order to take a DNA
sample if he did not consent. The man again declined to provide a sample by buccal swab but changed his
mind before a hair sample was taken. Police recorded his consent on video and began to take the swab.
However, the man withdrew consent. A senior officer from another police station attended and made an order
for a DNA sample to be taken by hair sample, and the hair sample was taken. 546
The Act already provides that if a person withdraws consent before or during a forensic procedure, police cannot
proceed unless they obtain an order. There is no provision for a person withdrawing consent after the procedure has
been conducted. In our view this is not required.
7.2.8. Concluding comment
There are a number of factors which are impacting on police processes to obtain DNA or other forensic samples
by consent. These include the fact that inexperienced officers are undertaking procedures, and the complexity of
information required to be given. We have made a number of recommendations to address these issues, in particular
Recommendations 3 and 10. The only substantial matter raised here that requires further response is the issue of self
administered buccal swabs:
Recommendation 19
The Crimes (Forensic Procedures) Act 2000 be amended so that a senior police officer order can authorise a
suspect to provide a DNA sample by self-administered buccal swab.
Both NSW Police and the Attorney General’s Department support this recommendation. 547 The Attorney General’s
Department also advised it is already being implemented:
My Department is currently instructing in the preparation of a Bill that will include self-administered buccal swabs
in the definition of “non-intimate forensic procedure”. The Bill as currently drafted will also specifically provide
(both in relation to serious indictable offenders, and suspects) that a senior police officer who is considering
whether to order the taking of a sample by removal of hair, or by self-administered buccal swab, must take the
option of self-administered buccal swab, unless the person from whom the sample is to be taken has indicated
that he or she will not perform a self-administered buccal swab (or indicates that he or she prefers to have the
sample taken by removal of hair).
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 99