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

NSW Police does not support recommendation 20, on the basis that it “would add additional unnecessary delay and
workload to the process for undertaking a forensic procedure.” 561 We believe that a record of the decision making
process for senior police officer orders should be documented. Given that the matters we have outlined must be
considered by the senior police officer, requiring a brief note recording the matters cannot conceivably result in
unnecessary delay and workloads. It will, however, ensure compliance with legal obligations under the Act.
NSW Police supports recommendation 21. 562
7.3.4. Soliciting consent as an alternative to making an order
As discussed above, police officers appear to sometimes seek to convince suspects they should consent to a
proposed procedure, or police will simply make an order and carry it out anyway. We found evidence of this in
the very low number of procedures conducted by order, through interviews with officers who saw it as their role to
persuade suspects to consent, and in the many references in consent forms and COPS records to suspects initially
declining to undergo forensic procedures, and then changing their minds at some point while in police custody. We
recognise that in the case of DNA samples, many officers are acting in good faith, on the basis that the suspect
should be convinced to consent to a buccal swab to avoid having a hair sample taken.
The Act clearly anticipates that if a suspect does not consent to a forensic procedure, whether a DNA sample or
another type of procedure, police should not proceed without an order. Our recommendation 19, about making
buccal swabs available in the case of senior police officer orders, may go some way towards encouraging officers to
seek orders by senior police officers in circumstances where suspects do not consent to procedures.
As an additional safeguard, consideration could be given to amending the Act to require any senior police officer
making an order for a forensic procedure to be independent of the investigation. This in conjunction with our
earlier recommendation regarding the recording of the reasons for making the order would ensure the process is
transparent.
Recommendation 22
The Crimes (Forensic Procedures) Act 2000 be amended to require a senior police officer making an order
under sections 18 or 19 to be independent of the investigation.
NSW Police does not support this recommendation, on the basis that it is unnecessary. 563 However, the Attorney
General’s Department advised it has no objection to the recommendation, and commented:
It appears to be implicit in the legislative scheme that the senior police officer exercising the power of
considering whether to make an order must act objectively according to the statutory criteria, and so does not
have carriage of the investigation in relation to which the order is being sought. 564
This is consistent with our own view, and should be made clear in the Act.
7.3.5. How senior does an officer have to be to authorise a forensic procedure
The Act specifies that a “senior police officer” means a police officer of or above the rank of sergeant. 565 Some
officers have asked whether this includes an officer who is an acting sergeant. The Police Association of NSW gave
the following example:
The suspect refused to take part in the conducting of the forensic procedure, so he had the supervisor in charge
of the station at the time direct him. The officer was not a sergeant, but an acting sergeant. Later, an Inspector
spoke with the officer and stated that the acting sergeant was not allowed to direct the suspect as per the Act,
as the officer was not a substantive sergeant and therefore the procedure could be challenged at court…
The officer has since spoken with other police who have done forensic procedures at other locations and they
have had an acting sergeant direct the suspect to complete the mouth swab. 566
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 103