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

It is not possible to report on the number of people eliminated from police investigations through DNA analysis, as
the fact that there is no “DNA match” does not necessarily exclude a suspect from investigation. It could be that no
forensic material was found on an item submitted for analysis, or that somebody else’s DNA was on it, but this does
not mean the suspect was not involved. This is especially so in cases involving multiple offenders. In some cases,
most notably sexual assaults involving only one offender, suspects can be positively eliminated through DNA analysis,
and DAL estimates that about 480 suspects were eliminated during the review period. This indicates that for every
elimination, there are between six and seven warm links, and shows that DNA analysis is, in the majority of cases,
used to produce evidence to confirm, rather than disprove, a suspect committed an offence. Given that police must
suspect on reasonable grounds that a person has committed an offence before asking the person to provide a DNA
sample, we would expect that DNA analysis is used more often to implicate than exculpate suspects.
3. The legislation is complex and compliance with legal obligations can be difficult
The Crimes (Forensic Procedures) Act is long and complex and in parts difficult to follow. The fact that it deals with
DNA sampling as part of a general forensic procedures regime, when really it raises significantly different issues,
creates some awkward obligations for police officers, for example having to videotape the taking of a photograph.
Some elements of the DNA sampling regime itself are ill conceived, such as the requirement that police share a
person’s own DNA sample with the person, when a person’s DNA does not change and a sample can be taken
for independent analysis at any time.
Despite the significant impact forensic procedure powers have had on policing, we found that many officers are
extremely reluctant to conduct the procedures, due to:
• the complexity of the legislation and there being so much to remember for officers who do not conduct forensic
procedures very often
• lack of experience in conducting procedures despite widespread training and accreditation
• fear that doing something wrong may lead to the evidence being excluded and the suspect being acquitted,
and
• a perception that forensic procedures are cumbersome and time consuming.
In some commands, reluctance to conduct forensic procedures has contributed to a low level of use of the powers
available under the Act. Some commands end up relying on one or two officers to conduct all their forensic procedure
work although most officers have completed the relevant training.
Many of the forensic procedures we audited had been conducted in a professional and competent manner.
However, we also found evidence of non-compliance with various aspects of the legislation, for example where
officers failed to record the provision of information to the suspect, or the request for consent. Other problems
related to difficulties obtaining court orders, the length and complexity of the information provided to people
undergoing procedures, difficulty conducting procedures within the prescribed time limits, difficulty arranging
for support persons, delays in obtaining DNA analysis results, and storage and security of forensic material.
Many police officers expressed frustration that, while they had been taught how to conduct the procedures
themselves, they would like more specific guidance on how forensic procedures as a whole should be managed
within a local police command. Few commands had clear strategies for the management of forensic procedures,
which made it difficult for police – let alone our office – to assess whether forensic procedure powers are being
used effectively and appropriately.
In our view, having a single person responsible for running forensic procedures within a command, or having a
specialised forensic procedures unit rather than mass training and accreditation, would improve compliance with
legislative obligations, and enable police to measure the use and effectiveness of their forensic procedure powers
more effectively.
4. The distinction between suspects and volunteers is not always clear
Our review shows there is some confusion among police officers about the difference between suspects and
volunteers. The proper classification will depend on the circumstances, in particular whether the evidence supports
a reasonable suspicion that the person committed an offence, and hence is a suspect. We argue that, in the event
of uncertainty, police should err on the side of treating potential suspects 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.
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
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