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

The distinction between suspects and volunteers is central to the forensic procedures regime. Suspects can be
ordered by senior police officers to undergo forensic procedures, and their samples can be matched against all
crime scenes. By contrast, volunteers must generally consent, and their samples are only used in a particular case,
unless specific permission is given to use the sample for other purposes.
In some cases, mistakes were due to poor understanding of the legislation, for example where a police officer treats
a suspect as a volunteer because the suspect consents to the procedure. In other cases, though, it simply wasn’t
clear whether the person was best classified as a suspect or volunteer. This occurred in particular where the person
was described by police as a “person of interest”.
5. Some forensic procedures are conducted without appropriate authorisation
Most forensic procedures conducted by police officers are appropriately authorised. However, we found that some
procedures are conducted in circumstances where they are not authorised. This sometimes occurs because of a
mistaken belief as to what constitutes a ‘forensic procedure’ for the purposes of the Act. For example, in one case
police had a doctor conduct searches of a suspect’s vaginal and rectal cavities, pursuant to a court order authorising
these “intimate forensic procedures.” However, the Act specifically excludes searches of body cavities. We are
not aware of any law authorising police officers to carry out, or cause to be carried out, searches of people’s body
cavities. It is of serious concern that such intrusive searches were carried out, without consent, and without any legal
basis, ostensibly under the authority of the Crimes (Forensic Procedures) Act.
Police sometimes take covert DNA samples, by retrieving discarded items like cigarette butts or tissues, or through
some other investigative procedure, like a random breath test. The Act does not specifically prohibit police from
taking covert DNA samples, and this type of conduct is essentially unregulated. However, a court may find the
evidence inadmissible, if it has been obtained improperly. We do not know how often police are submitting covert
DNA samples for analysis, or the circumstances in which covert samples are being taken. In our view, this issue
should be specifically considered by Parliament.
Another area where forensic procedures are being carried out without proper authority are procedures carried out
on children under the age of ten. The Act states that it does not authorise the carrying out of forensic procedures
on children under ten, but it does not prohibit it either. This area is essentially unregulated. We found that police
officers are DNA testing young children, usually because the child’s DNA may be at a crime scene and a sample
is required for elimination purposes, or because the paternity of the child is of evidentiary value in the prosecution
of a sexual assault offence. We found that there are occasions where police investigating an offence have good
reason for wanting to take a DNA sample from a young child. We have recommended that the Act should be
amended to provide for this.
We also found evidence of forensic procedures being conducted in circumstances where there were insufficient
grounds to believe the procedure might produce evidence tending to confirm or disprove the suspect committed
the offence. This included cases where the identity of the offender was not at issue, either because the person was
caught in the act, or because of the nature of the offence, such as sexual assault proceedings which turn on the
issue of consent.
6. Forensic procedures are almost always conducted on the basis of consent
Forensic procedures are almost always conducted on the basis of consent. About 96 per cent of the 7,000 DNA
samples taken from adult suspects during the review period were taken by self-administered buccal swab. While there
are no accurate records of the number of DNA samples taken by senior police order or court order, we know it is very
few, and that the vast majority of samples are taken by consent. Volunteers, of course, can only undergo forensic
procedures by consent.
Although the numbers suggest that suspects almost always undergo forensic procedures by consent, many agree
to the procedure because they believe they have no choice. Further, many officers see it as their role to encourage
suspects to consent, and tell the suspect they will conduct the procedure whether the suspect consents or not.
Most officers do not appreciate that the criteria for requesting consent and for making an order are quite different.
First, to ask for consent to a procedure, the police officer need only suspect on reasonable grounds that the person
has committed an offence. However, to order a procedure be carried out in the absence of consent, the senior police
officer must be satisfied that “there are reasonable grounds to believe that the suspect committed an offence,” which
creates a much higher threshold. Although a reasonable suspicion involves more than a mere possibility, and must
have some factual basis, it involves less than a reasonable belief.
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000