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

In our survey of magistrates, we asked how many of these types of applications had been heard, and whether the
orders sought were granted. One magistrate described having made three such orders. In one case, it was because
the initial buccal swab did not have enough biological material on it to analyse. In another case it was because police
used the wrong type of camera to take the initial photographs.
We are not aware of any difficulties with these provisions.
7.4.13. Further applications
If a magistrate refuses an application for an order authorising a forensic procedure on a suspect, police cannot
reapply unless they provide additional information that justifies the making of the further application. 662
One magistrate described having made an order after the initial application had been refused:
Another magistrate had refused an application where the magistrate was not satisfied... that an adequate
description of the suspect was given in the application to say the respondent was reasonably suspected.
The police then came back with very detailed descriptions of the suspect that had been given by witnesses.
The defence argued that this was not additional information because police already had these descriptions
when the first application was made. I held in favour of the applicant that it was “additional” material in relation
to the application. 663
Again, we are not aware of any difficulties with these provisions.
7.5. Volunteers: proceeding by consent
7.5.1. When can police ask a volunteer to undergo a forensic procedure
Volunteers can only undergo a forensic procedure by consent. The Act does not set out any criteria for when police
may ask an adult volunteer to consent to a forensic procedure – it simply defines a volunteer as a person, other than
a suspect or excluded volunteer (victim), who volunteers to police to undergo a forensic procedure. 664 If the volunteer
is a child or incapable person, the proposed procedure may be carried out with the informed consent of the person’s
parent or guardian, provided the child or incapable person does not object to or resist the procedure. 665
A typical volunteer is a person who, while not a suspect, has good reason for his or her DNA to be on a victim
(such as the partner of a person who has been sexually assaulted by someone else) or at a crime scene (such as a
witness, or a person who lives at or has recently been to the place where a crime has been committed). DNA samples
obtained from crime scenes are often mixed, and the laboratory may be able to determine the DNA profile of an
unknown offender if it has the DNA profiles of the other people whose DNA is also present in the mixture.
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 117