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

Case Study 32
Police called a pursuit after seeing two men driving a stolen Subaru WRX. The pursuit was called off after the
officers lost sight of the vehicle. Two suspects, aged 26 and 17, were located in the area a short time later. The
vehicle was examined for fingerprints and DNA. The 26 year old suspect provided police with a DNA sample
by consent. Police obtained a court order authorising a DNA sample to be taken from the 17 year old. 586
Case Study 33
A young man was walking home from the pub late at night when he was assaulted. He suffered serious facial
injuries from being kicked in the head, and also had his wallet stolen. Witnesses reported seeing the three
offenders run from the scene, with blood on their hands, clothes and shoes. Police identified three suspects,
who were aged 16, 18 and 22. Police seized the clothes and shoes the suspects were wearing when the
offence was committed. They took DNA samples, by consent, from both adult suspects. They obtained a court
order authorising a DNA sample and photograph of the 16 year old suspect. 587
7.4.1.4. Where the suspect is incapable
A court order is required to conduct a forensic procedure on a suspect who is incapable of understanding the general
nature and effect of a forensic procedure, or of indicating whether he or she consents to the procedure being carried
out. 588 Where police apply for a court order, the incapable person must have an interview friend present at the hearing,
and may also have legal representation. 589
Case Study 34
A woman in a country town flagged down a passing police car and alleged she had been sexually assaulted
by a man who was hiding in the bushes. Police arrested the man and took him to back to the police station.
Investigating police wished to take a DNA sample and genital swabs from the suspect, but formed the view
that he was an incapable person for the purposes of the Act. Police applied to the on call duty magistrate for
an interim court order. The order was granted, the procedures were conducted and the man was charged with
aggravated sexual assault. 590
As discussed above, at 7.2.3, police officers have made very few applications for orders authorising a forensic
procedures on incapable persons, and many officers have advised that they regularly conduct forensic procedures
on people who do not understand the information provided. We are concerned that police officers may not in fact be
identifying people as being incapable, and are conducting forensic procedures by consent, when the Act requires a
court order be made before police can proceed. To address this issue, we reiterate our recommendation 17 that the
forensic procedure SOPs include guidelines to help police officers identify and communicate with incapable people,
and that NSW Police provide further training and guidance to police officers in this area.
7.4.2. Criteria for making an order
Before making an order, the magistrate must be satisfied that the person is a suspect, there are reasonable grounds
to believe that the suspect committed an offence and that the procedure might produce evidence tending to confirm
or disprove that the suspect committed the offence, and that the procedure is justified in all the circumstances. 591
If the relevant offence is an indictable offence, the magistrate may order any type of procedure, but if it is a summary
offence, the magistrate may only order a non-intimate procedure (except a hair sample). 592 This means that a
DNA sample can only be ordered by a magistrate where there are reasonable grounds to believe the suspect has
committed an indictable offence.
Again, the criteria for making an order for the carrying out of a forensic procedure on a suspect are different from
the criteria for requesting consent to a procedure – the magistrate must be satisfied that there are reasonable
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 107