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

Case Study 37
Several young men stole a car and drove to a post office. They ordered staff and customers to the ground,
jumped the counter and removed cash from the tills. They drove off and police pursued the vehicle for a short
time. The vehicle crashed and the occupants all ran off. Police subsequently arrested three suspects, aged
22, 20 and 15. They were taken to the police station, where they were interviewed and charged with robbery.
Police conducted forensic procedures on the 22 and 20 year olds. They applied for an interim order authorising
a DNA sample to be taken from the 15 year old, but the application was refused, on the basis that police
could apply for it at the suspect’s first court appearance. In the end, police abandoned the application, as the
suspect made admissions and the procedure was not necessary to secure a conviction. 644
The Police Association of NSW expressed concern about having to apply for an interim order before taking any action
to preserve evidence, arguing:
In special circumstances, such as stopping a suspect from destroying possible evidence, there should be
emergency provisions allowing police to take the sample/s and apply for an order retrospectively. 645
While we note that there are circumstances in which a forensic procedure may need to be carried out without delay,
it is an important safeguard for suspects that forensic procedures cannot be carried out by force unless authorised
by a senior police officer or a court. The Act does not require that the suspect be brought before the authorised
justice for an interim order to be granted. Further, if it is not practicable for police to apply for the interim order in
person, it can be made by fax or over the phone. 646 We have not been provided with any instances in this review of
practical difficulties with the current process. In our view this provides sufficient flexibility where the urgency of the
circumstances makes it impractical to apply for a final order.
Further, section 37 of the Act provides that “a police officer may use reasonable force... to prevent loss, destruction or
contamination of any sample.” In our view, the current provisions strike an appropriate balance between the interests
of police and the interests of the suspect, and there is no need for extra “emergency provisions” enabling police to
conduct procedures without obtaining authorisation.
7.4.9. Disclosure of information at the hearing
Many police officers expressed concern about having to disclose information to suspects when applying for forensic
procedure orders. In particular, officers are concerned that disclosing information increases the risk of suspects
interfering with witnesses and gives the suspect an opportunity to concoct a story about why his or her DNA was
found at the crime scene. 647 The Police Association of NSW described instances where officers applying for orders
had to choose between disclosing all the relevant evidence at the risk of compromising the investigation, and
disclosing only some of the evidence, at the risk of the application being rejected. 648 However, we have not been
provided, and are unaware of any actual circumstances, in the hundreds of procedures ordered by courts, where
these fears have been realised.
We note that under New South Wales law, the prosecution is already required to disclose its case to the defence
before a criminal trial starts. In summary proceedings, the prosecution generally has to serve a copy of the brief
of evidence at least 14 days before the hearing. In indictable proceedings, the prosecution generally has to serve
a copy of the brief of evidence at least 28 days before the committal hearing. Courts may also impose pre-trial
disclosure requirements on a case by case basis in order to reduce delays in complex criminal trials. 649 Proposed
changes to criminal case processing also aim for full disclosure of the brief of evidence at a much earlier stage in
indictable matters, to enable the defence to make an informed decision about how to plead while the matter is still
in the local court. 650 In the context of these broad disclosure requirements, our view is that disclosing information at
forensic procedure hearings is not a significant issue. The risks cited by police officers – that suspects may interfere
with witnesses or fabricate an explanation for their DNA being at crime scenes – are no more significant for forensic
procedure hearings than for trials in general. If police officers are concerned about compromising an investigation,
then they should conduct all other relevant inquiries before applying for the forensic procedure order. It appears that
any tension between compromising an investigation by disclosing evidence too early, and ensuring enough evidence
is disclosed to obtain the forensic procedure order, must be managed on a case by case basis by investigating
police.
In some jurisdictions, police can apply for court orders authorising forensic procedures without the suspect being
present. For example, police in Canada apply for “DNA warrants” on an ex parte basis. The Canadian courts upheld
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000