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

second because the orders we were able to locate contained very little information. They included objective details,
like the suspect’s name and the type of procedure. But there was no record of the reasons supporting the decision to
conduct the procedure, in particular the grounds for believing the suspect committed the offence, or the reasons why
carrying out the procedure without consent was justified in all the circumstances. 558 Without this information, we were
unable to determine whether the procedure was properly authorised. In our view, there would be considerable merit in
the person making the order recording:
• what the reasonable grounds are for believing that the suspect committed an offence
• what the reasonable grounds are for believing that the procedure might produce evidence tending to confirm
or disprove that the suspect committed the offence,
• whether it was possible to give the suspect the opportunity to provide a submission, and if so, the nature of the
submission, and
• why the carrying out of the procedure without consent is justified in all the circumstances.
Recording the reasons for making an order would be of benefit to NSW Police because it would demonstrate that
the senior officer making the order had sufficient knowledge of the circumstances before deciding to order a forensic
procedure.
As with the requirement that police only request consent in circumstances where it is justified, we are of the view that
further guidance should be given to police officers about when carrying out a forensic procedure without consent will
be justified in all the circumstances. This is consistent with the view of the Legislative Council Standing Committee on
Law and Justice. 559
Justice Kirby has commented on this matter:
Amongst the considerations which need to be taken into account in placing effective controls over the
procurement of body samples from individuals for DNA testing [is] that where an individual objects to the
provision of a body sample, whether for DNA testing or otherwise, such objection is decided by reference to
legal criteria which take into account the need to establish a strong reason to authorise the state to extract a
body sample from a suspect in the face of that person’s non-consent. 560
The model code suggests that, before ordering a forensic procedure, the senior police officer should consider,
in addition to the issue of non-consent, the seriousness of the offence and the circumstances surrounding its
commission, the degree of the suspect’s alleged participation, whether evidence of the suspect’s involvement in
the offence can be gained in a less intrusive way, any reasons given for refusing consent and, in the case of DNA
samples, whether a comparison sample from the crime scene has been or is going to be obtained. This is perhaps at
least some appropriate guidance to senior police officer when considering an order.
Recommendation 20
The form used for recording senior police officer orders be amended so that the senior police officer who
makes an order authorising a forensic procedure can record their reasons for believing the suspect committed
an offence, the grounds on which the officer believes the procedure might produce evidence tending to
confirm or disprove that the suspect committed the offence, and the reasons why carrying out of the procedure
without consent is justified in all the circumstances. The amended form should also include information about
any submissions received from the suspect, their legal representative or interview friend. Any amended form
for senior police officer orders should also be included in the proposed forensic processes book.
Recommendation 21
The Crimes (Forensic Procedures) Act 2000 be amended to provide clearer guidance to senior police officers
about when carrying out a forensic procedure without consent will be “justified in all the circumstances”,
including factors which must be considered in making this decision.
102
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000