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

Again, we know that only a small proportion of DNA samples are taken by order of senior police officer, as the vast
majority are taken by buccal swab. There is no way to gauge what proportion of forensic procedures other than DNA
samples were taken by order of a senior police officer.
We also asked each command on how many occasions senior police officers had refused to make an order
authorising a forensic procedure, on request from another officer. Only one command indicated this had occurred.
The others either did not know (35 commands) or advised it had not occurred (44 commands). In our interviews with
officers, some indicated that if there is any doubt about whether a senior police officer order can be made in the
circumstances, they would apply for a court order to authorise the procedure. 554
We expect that record keeping will improve with the forensic procedures register the NSW Police Audit Group is
developing, as we understand officers conducting procedures will have to include a copy of the source of authority
(consent form, police order or court order) for each procedure.
7.3.3. Circumstances in which senior police officer orders are made
We sought to review the circumstances in which senior police officers ordered suspects to undergo forensic
procedures, to determine whether the legislative test was properly applied and accordingly, whether the procedures
were properly authorised. In our survey of local area commands, we asked each command for details of any senior
police officer orders made, and reviewed the relevant event narratives on COPS. During our audit of local area
commands, we reviewed each of the orders the command was able to locate. The following case studies illustrate
the types of circumstances in which police have ordered suspects to undergo forensic procedures.
Case Study 25
A homeless man died after being bashed in a park one night. After interviewing a number of witnesses, police
identified and arrested a suspect. The suspect declined to be interviewed and did not consent to having his
photograph or DNA taken. A senior police officer made an order authorising the procedures be conducted and
the photo and hair sample were taken. 555
Case Study 26
Police heard an alarm sounding and drove towards the place it was coming from. They saw two people
crouching outside a newsagent putting things into a bag. The two people ran off when police approached, and
police saw the glass door of the newsagent was broken. A short time later, police stopped a man nearby, who
was breathing heavily and sweating. On the footpath nearby police found a green garbage bag, containing 35
packets of cigarettes. Police arrested the man, who declined to be interviewed or provide a DNA sample. A
senior police officer authorised a hair sample to be taken. 556
Case Study 27
A suspect was arrested several days after the Redfern Riots of February 2004. It appeared that the clothes
he was wearing may have been the same as those worn during the incident. Police sought to photograph
the suspect’s face and body, while he was in the clothes in question, but the suspect did not consent to the
procedure. A senior police officer made an order authorising the procedures to be carried out.
The photographs were taken and the suspect was subsequently charged. 557
From the information available, the orders we reviewed appeared to have been warranted in the circumstances.
However, our capacity to determine whether the legislative test was properly applied and accordingly, whether the
procedure was properly authorised, was limited first by the fact that no central records of orders were kept; and
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 101