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

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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 114 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
the constitutionality of this scheme when it was challenged on the basis that suspects should be given notice of DNA sampling and should have an opportunity to appear before the judge who issues the warrant. 651 Moving towards ex parte DNA hearings in New South Wales would represent a substantial departure from the current provisions, which provides that suspects must generally be present at the hearing, may be represented, and may cross-examine the applicant and other witnesses. 652 From the information available, our view is that such a departure is not warranted. Further, the Act provides that an application and any order must be made in the presence of the suspect, “subject to any contrary order made by the magistrate.” 653 If police held genuine concerns that their investigation might be compromised through a hearing in respect of a forensic procedure, they could make an application to the court that an order be made that the suspect is not present for the hearing of the application. 7.4.10. Effect of application on suspect’s plea Some police officers reported that applying for a court order authorising a forensic procedure may prompt the suspect to plead guilty. Case Study 38 Police applied for an order authorising a forensic procedure to be conducted on a child suspect. The child’s legal representative requested an adjournment, which was granted. The child and his father went to the police station and the child made full admissions to the offence. Police subsequently withdrew the forensic procedure application. 654 Case Study 39 Several cars were broken into and clothes, CDs and stereo parts were stolen. There was blood left on the cars. Police identified three suspects, aged 13, 14 and 15. Police interviewed the 14 year old, who made full admissions. He implicated the 15 year old but denied that the 13 year old was in any way involved. Police suspected that the 13 year old was involved, as he had a small cut on his hand and glass on his shoes. Police applied for court orders authorising DNA samples to be taken from the 13 and 15 year old suspects. After obtaining legal advice, both suspects went to the police station and made full admissions. They pleaded guilty and police withdrew the forensic procedure applications. 655 Some police officers have also speculated that offenders plead guilty to avoid having their DNA profile put on the database, which may link them to other unsolved crimes. 656 While there is anecdotal evidence of suspects pleading guilty after police apply for an order authorising a forensic procedure, it is not possible to gauge the full extent to which pleas are affected by applications for forensic procedure orders. NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 115
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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
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the carrying out of these forensic
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322 Crimes (Forensic Procedures) Ac
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We asked NSW Police why there is su
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Table 2 shows the rate at which for
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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 134 and 135: The Police Association of NSW reque
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 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
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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
Page 184 and 185: It is unclear whether this directiv
Page 186 and 187: Generally, police provided adequate
Page 188 and 189: Recommendation 45 NSW Police ensure
Page 190 and 191: 8.10.3. Photographs Section 59 of t
Page 192 and 193: 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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