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

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The Police Association of NSW requested that this issue be clarified. 567 We note that section 48(2) of the Interpretation Act 1987 provides: If an Act or instrument confers or imposes a function on a particular officer or the holder of a particular office, the function may be exercised (or, in the case of a duty, shall be performed) by the person for the time being occupying or acting in the office concerned. Accordingly, a person acting in the office of sergeant may exercise the functions of a senior police officer under the Act. Perhaps NSW Police should clarify this for its officers. Recommendation 23 NSW Police clarify to officers in the field that an acting sergeant is a “senior police officer” for the purposes of the Crimes (Forensic Procedures) Act 2000. NSW Police supports this recommendation. 568 7.3.6. Suspects on remand Section 3(2) of the Act provides that, “for the purposes of this Act, a person is under arrest if he or she is a person to whom Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies.” Part 9 of the Law Enforcement (Powers and Responsibilities) Act (formerly Part 10A of the Crimes Act) sets out the rights of people detained in police custody after arrest. It applies “to a person, including a person under the age of 18 years, who is under arrest by a police officer for an offence.” 569 Further, “a person ceases to be under arrest for an offence if the person is remanded in respect of the offence.” 570 The difficulty this presents for police is that a senior police officer can only order a forensic procedure be conducted on a person who is “under arrest.” Once a suspect has been charged and remanded in custody, any forensic procedures can only be conducted by consent or by order of a court. Some of the police officers we surveyed identified this as a problem: Once a person in custody has been charged and is no longer under Part 10A, to conduct a forensic procedure a court order is required if he/she does not consent. This causes unnecessary inconvenience on the person in custody, the police involved and the authorising justice… [The Act] should be amended so that the requirements to perform a forensic procedure upon a person to whom Part 10A of the Crimes Act applies, also apply to a person who is charged with an offence, but is no longer in Part 10A custody. 571 The NSW Police Legislative Changes Working Group has also described this as a “significant problem” for police officers, arguing that: 572 • Charge documentation cannot be prepared until after all forensic procedures have been completed, which delays the entire process – officers would prefer to be able to prepare charge documentation while forensic procedures are being carried out. • Investigating police may not be aware that a particular procedure should be carried out until after the initial investigation period has ended, and the suspect has been charged. For example, additional evidence may be found at the crime scene. This group has suggested that a suspect who is remanded in custody be treated as a suspect who is under arrest, so that forensic procedures may be carried out by order of a senior police officer, if the suspect does not consent. 573 In our draft report, we recommended that the Act be amended to allow senior police officers to order a forensic procedure be conducted on a suspect who has been charged and remanded in police custody, as if the suspect were still under arrest. Our view was that police should not delay the charging of a suspect so that a forensic procedure could be conducted. Since a senior police officer has the authority to order a forensic procedure be conducted on a suspect who is under arrest, we reasoned that this authority should continue while the suspect is in police custody in relation to that offence. This would not be an extension of the authority of senior police officers to order forensic procedures, but an extension of the time in which the power may be exercised. Given that the suspect will be in custody anyway, it would not be a serious imposition on the suspect, but would provide greater flexibility to 104 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
police. Further, it would remove any incentive police may have to conduct a forensic procedure when otherwise they might not, for fear of forfeiting the opportunity. NSW Police supported the proposed recommendation. 574 However, the Attorney General’s Department expressed concern about it, pointing out: 575 • there is nothing preventing police from preparing charge documentation while other steps, including forensic procedures, are occurring • it would be undesirable if suspects held in court cells managed by NSW Police had different legal rights from suspects in court cells managed by the Department of Corrective Services • there is a risk of suspects being detained in court cells longer while forensic procedures are carried out, rather than being transferred to a remand centre, and • police must bring the person before a court anyway, once the charge process has been finalised, and can apply for a court order authorising a forensic procedure then. In its 2002 review of the Act, the Standing Committee on Law and Justice considered a proposal by NSW Police that all suspects on bail or held on remand be considered ‘under arrest’ for the purpose of the Act. The Committee concluded there was insufficient justification for removing the requirement that police obtain a court order to conduct forensic procedures on charged suspects. In this report, we recommend that time taken to conduct a forensic procedure be regarded as ‘time out’ for the purpose of calculating the investigation period (see discussion at 8.3 and Recommendation 34). NSW Police supports this recommendation and the Attorney General’s Department advised it is already being implemented. 576 We anticipate that designating time spent conducting forensic procedures as ‘time out’ will give police greater flexibility in deciding when to conduct the procedures and, in light of the comments made by the Attorney General’s Department, this would appear to be a better solution than enabling senior police officers to order post-remand forensic procedures. However, if this change does not resolve the issues confronting police, a further consideration of our draft recommendation, or some variation of it may be appropriate. 7.3.7. Appealing against senior police officer orders There is no provision in the Act for suspects to appeal against a decision by a senior police officer to order a forensic procedure. However, if police breach any provision of the Act in relation to a forensic procedure carried out on a suspect, the evidence generally will not be admissible in any proceedings against the suspect. 577 7.4. Suspects: proceeding by court order In certain circumstances police may apply to a court for an order authorising a forensic procedure. The magistrate must specify the type of procedure authorised, give reasons for making the order, and inform the suspect that reasonable force may be used to ensure he or she complies with the order. The magistrate may give directions as to the time and place at which the procedure is to be carried out, and must order the suspect to attend. The suspect must be present at the hearing, unless the magistrate makes a contrary order. The suspect may be represented and may cross-examine the applicant for the order and, with leave, any other witnesses. 578 7.4.1. Why proceed by court order Police officers would generally only apply for a court order if the suspect does not (or cannot) consent to the proposed procedure, and a senior police officer order is not available. Accordingly, police apply for court orders in the following circumstances: 7.4.1.1. Because the suspect is not under arrest and does not consent to the procedure As discussed above, senior police officers can only order forensic procedures on suspects who are under arrest. If a suspect is not under arrest (whether they have been charged or not), police must obtain a court order before conducting a forensic procedure in the absence of consent. 579 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 105
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DNA sampling and other forensic pro
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October 2006 The Honourable Bob Deb
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October 2006 Commissioner Ken Moron
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Contents Executive summary ........
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Chapter 17. Conclusion ............
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to children, incapable persons and
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The distinction between suspects an
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inadmissible, the suspect is acquit
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• establishing ‘best practice
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12 13 14 15 16 17 18 19 20 Recommen
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Recommendation Paragraph number 29
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46 47 48 49 50 51 52 53 54 55 Recom
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68 69 70 71 72 73 74 75 76 77 78 Re
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89 Recommendation Staff in all labo
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xx NSW Ombudsman DNA sampling and o
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Part 7 of the Crimes (Forensic Proc
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means that a significant number of
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The aim of the audit was to observe
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We followed up 180 of the 371 foren
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Chapter 2. Key provisions of the Ac
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(ii) the breasts of a female or a t
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scraping or lifting by tape from th
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• Some people have the right to h
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Chapter 3. DNA sampling in Australi
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• Security issues. There are conc
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3.3.2. Australian Capital Territory
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3.3.6. Queensland Forensic procedur
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analysis must be relevant to the of
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The FSS is still the largest forens
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The Garda Commissioner (the Irish e
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of operation, 50 per cent of states
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86 For example, NSW Legislative Ass
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150 Police Powers and Responsibilit
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226 DNA Identification Act 1998 (Ca
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Chapter 4. Implementation of the Ac
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Separate training courses are run f
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4.2.1. How easy is it for police of
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Given the widespread reluctance to
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Recommendation 03 NSW Police ensure
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NSW Police has long term plans to r
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The Audit Group has advised that it
Page 84 and 85: the carrying out of these forensic
Page 86 and 87: 322 Crimes (Forensic Procedures) Ac
Page 88 and 89: We asked NSW Police why there is su
Page 90 and 91: Table 2 shows the rate at which for
Page 92 and 93: Figure 5 shows that, of the forensi
Page 94 and 95: For procedures conducted on child s
Page 96 and 97: These figures show that the number
Page 98 and 99: cent result in a warm link and 13 p
Page 100 and 101: 355 40 out of 450 child suspects: C
Page 102 and 103: In our 2004 report on the DNA sampl
Page 104 and 105: 6.1.3. Does it matter whether the p
Page 106 and 107: The distinction between suspects an
Page 108 and 109: He is not here yet. [The form then
Page 110 and 111: Recommendation 15 Police consider i
Page 112 and 113: 393 Ombudsman audit of local area c
Page 114 and 115: Chapter 7. Authority to conduct a f
Page 116 and 117: Case Study 10 An unknown offender b
Page 118 and 119: In any event, not all people of int
Page 120 and 121: intellectual functioning, someone e
Page 122 and 123: Case Study 15 An elderly woman was
Page 124 and 125: Even where there is direct evidence
Page 126 and 127: interest in upholding the physical
Page 128 and 129: of consent; and secondly, it sugges
Page 130 and 131: 7.3. Suspects: proceeding by order
Page 132 and 133: second because the orders we were a
Page 136 and 137: Case Study 28 A homeless man died a
Page 138 and 139: grounds to believe the suspect comm
Page 140 and 141: concern that, in any Act where no s
Page 142 and 143: forensic procedures by consent, pol
Page 144 and 145: Case Study 37 Several young men sto
Page 146 and 147: 7.4.11. Appealing against court ord
Page 148 and 149: Case Study 43 A 25 year old woman w
Page 150 and 151: involved in the investigation of th
Page 152 and 153: use a DNA profile from a volunteer
Page 154 and 155: Several targeted screens have been
Page 156 and 157: Recommendation 29 The Minister regu
Page 158 and 159: 128 482 Intellectual Disability Rig
Page 160 and 161: 569 Law Enforcement (Powers and Res
Page 162 and 163: 657 Crimes (Forensic Procedures) Ac
Page 164 and 165: Chapter 8. Conducting a forensic pr
Page 166 and 167: The availability of persons is some
Page 168 and 169: Some metropolitan commands suggeste
Page 170 and 171: conducting forensic procedures (tak
Page 172 and 173: Section 57 of the Act provides that
Page 174 and 175: 8.5.7. Recording a forensic procedu
Page 176 and 177: j. The testing officer asks the sus
Page 178 and 179: Case Study 52 Police took a hair sa
Page 180 and 181: Recommendation 38 When police offic
Page 182 and 183: Recommendation 40 NSW Police retain
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It is unclear whether this directiv
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Generally, police provided adequate
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Recommendation 45 NSW Police ensure
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8.10.3. Photographs Section 59 of t
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Recommendation 48 The Crimes (Foren
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746 Since the Act came into force,
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823 NSW Police response to Ombudsma
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Sometimes it’s not clear whether
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This recommendation is supported by
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test container and the man’s t-sh
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considerations. Alternatively, the
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police appear to have treated victi
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We also note that children under th
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888 Confidential LAC survey respons
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the initial agreement between NSW P
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10.3. Receipt of DNA samples DNA sa
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Table 04: Person samples rejected b
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10.3.6. Samples unconnected to a ca
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10.4.1. Suspect-suspect matching Su
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Recommendation 64 DAL deletes all p
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Case Study 68 Four young people lef
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profiles put on the database, but c
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NSW Health supports recommendation
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10.6.5.2. Volunteers For each of th
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10.6.8. DNA analysis in relation to
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‘Depends on seriousness of offenc
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admits being there then what is the
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Figure 13 indicates there are a lar
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turnaround times (in particular, wh
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In New South Wales, police or the D
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The funding will be used to create
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• representatives from human righ
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large batch of serious indictable o
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965 Discussion at meeting with DAL,
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1050 FSG presentation to DAL, attac
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DAL confirmed that its records were
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Recommendation 81 An audit process
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Case Study 75 An unknown offender b
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Endnotes 1070 Where police records
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Case Study 76 A man was arrested an
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it has been there, whether it has d
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Case Study 77 Police investigating
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Recommendation 89 Staff in all labo
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We realise this is a sensitive issu
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1130 Legislative Assembly Hansard,
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Case Study 84 An unknown offender b
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In making this decision, the court
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evidence. Police would still, of co
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If two samples match, it is possibl
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Similar issues were considered in R
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Where the defence wishes to challen
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These results must be interpreted w
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1179 Letter from DPP, 24 March 2005
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Chapter 14. Destruction of forensic
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14.2.2. Identifying DNA profiles wh
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Recommendation 94 When DAL receives
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Recommendation 96 DAL delete all pr
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Recommendation 98 Section 87 of the
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14.3. Retaining genetic material fr
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1255 Based on DAL’s advice in its
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• a complaint about the incorrect
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The Ombudsman found that the police
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• The man was not cautioned prior
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15.3.5. Failure to maintain proper
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• the supervising sergeant did no
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Case Study 91 In 2004, a lorry driv
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16.2. Possible problems with DNA Be
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1319 Letter from Homicide Squad dat
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Appendix. Implementation of recomme
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at staff development days. In addit
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Term Definition / explanation Conta
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Term Definition / explanation Incap
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Term Definition / explanation Victi
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