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

7.3. Suspects: proceeding by order of a senior police officer
7.3.1. Criteria for making an order
A senior police officer, being a police officer of, or above, the rank of sergeant 548 may order the carrying out of a
non-intimate forensic procedure on a suspect under sections 18 and 19 of the Act. The orders can be made once the
senior police officer is satisfied that the following conditions in section 20 of the Act have been met:
• the suspect has not consented to the procedure
• the suspect is under arrest
• the suspect is not a child or incapable person
• there are reasonable grounds to believe that the suspect committed an offence, or another offence arising out
of the same circumstances, or another offence in respect of which evidence likely to be obtained as a result of
carrying out the procedure is likely to have probative value
• there are reasonable grounds to believe the forensic procedure might produce evidence tending to confirm of
disprove that the suspect committed such an offence, and
• the carrying out of the procedure without consent is justified in all the circumstances. 549
It is important to note, as discussed above, that the criteria for ordering a procedure and for requesting consent to a
procedure are different – first, because there must be reasonable grounds to believe (as opposed to suspect) that the
suspect committed the offence; and second, police must be satisfied that conducting the procedure in the absence
of consent is justified in all the circumstances (as opposed to the request for consent being justified).
Under section 21 of the Act, these orders can be made by the senior police officer in person, or if this is not
practicable by telephone, radio, telex, facsimile or other means of transmission. The suspect, or any legal
representative or interview friend of the suspect are to be provided the opportunity to make a submission to the senior
police officer making the order. These submissions can be made either orally or in writing depending on the format
the senior police officer order will take. If a senior police officer does make an order for a hair sample to be taken from
a suspect, the officer must, as soon as practicable after the order is made, record the date and time the order was
made together with his or her reasons for making the order and provide a copy of the order to the suspect. 550
7.3.2. How often are forensic procedures conducted by senior police officer order
NSW Police has developed a form for senior police officers to fill in when ordering forensic procedures. The form sets
out the relevant test but does not allow any provision for the senior police officer to record the reasons for making
the order.
We sought to review how often forensic procedures are conducted by order of a senior police officer, as opposed
to by consent or by order of a court. However, we found very limited information about procedures conducted by
order of a senior police officer. The local area commands we audited usually kept such orders on the individual briefs
of evidence, and did not keep any central record. We were able to identify procedures which had been conducted
by order of senior police officer only because one of the officers present during our audits remembered the details,
or because it was apparent from the video that a senior police officer order had been made. In some cases it was
unclear whether a procedure was conducted by consent or by order, because police had completed a consent form,
but recorded on it that the suspect did not in fact consent. Often there was no way of checking whether a senior
police officer order had been made.
We also asked each local area command in our survey, how many of its forensic procedures had been authorised by
order of a senior police officer. 21 commands advised they had not conducted any forensic procedures by order of a
senior police officer, and 32 commands advised they had. 27 commands were unable to provide this information, as
they did not keep any central record of procedures conducted by order:
There are no records held which indicate on what basis the forensic procedure was taken. 551
The data presented is presented as the best estimate in many cases, and may not reflect the exact position. 552
The answers have been supplied based on recollection only, and as no recollection of such events occurring I
can only assume that the answer is nil. 553
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000