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

Case Study 43
A 25 year old woman went to the toilet in the shopping centre where she worked. A young man climbed into
her cubicle, held up a knife and put a hand over her face. He threatened her, told her to turn around and not
to pull up her pants. One of the other toilets flushed and hearing this the offender unlocked the door and ran
away. There was security footage of the offender entering and leaving the complex, but it was not of very good
quality. After making further inquiries police identified a 14 year old suspect, who was arrested and interviewed.
He admitted being in the vicinity but denied any involvement in the assault. Police obtained a DNA sample
from the toilet cubicle wall, which contained DNA from two people, one male and one female. Police applied
to a court to have a DNA sample taken from the 14 year old suspect. The mixed sample was analysed and
compared to the sample provided by the suspect. Police were advised that the suspect could be the male
contributor, but this could only be verified with a high degree of certainty if the female contributor could also be
identified. Police asked all women known to have been in the toilets around the time of the assault to provide
a DNA sample for elimination purposes. Samples were taken from a number of people, including cleaners,
security officers and other people who worked at the complex. The suspect subsequently pleaded guilty to
being armed with intent to commit an indecent assault. 666
In this case, the 14 year old was sampled as a suspect, while the others (the people who worked at the
shopping centre who had a legitimate reason for their DNA being at the crime scene) were sampled as
volunteers.
Case Study 44
A woman was unable to find a taxi in the early hours of the morning and accepted a lift from an unknown man.
She directed him to her house but he refused to let her out of the car. He kept driving for a while, then stopped
the car, reclined her seat, climbed on top of her and sexually assaulted her. He then drove her back to her
house and let her out of the car. On arrival she told her husband what had just happened and he contacted
police. Police immediately identified a suspect. The woman was taken to hospital to be examined, and a DNA
sample was taken from her husband for elimination purposes. 667
People may also volunteer a DNA sample to police help identify a deceased relative:
Case Study 45
A woman reported not having seen an elderly neighbour for a couple of weeks. Police entered the premises
and found the woman, deceased and badly decomposed. After extensive inquiries, police were unable to
locate dental records, so they asked the woman’s brother to provide a DNA sample, so the identity of the
deceased could be confirmed. 668
The definition of a volunteer, as a person “who volunteers to a police officer to undergo a forensic procedure,” is
not very clear. Does it require the person to volunteer the sample of their own volition Or can police ask the person
to undergo the procedure Some other jurisdictions have interpreted ‘volunteer’ very narrowly, for example the
explanatory memoranda to the equivalent legislation in the Australian Capital Territory, which is substantially similar to
the New South Wales Act, explains:
The power to take a DNA sample cannot be exercised automatically... For suspects and offenders the
circumstances in which consent may be requested are limited, and include a requirement that the request be
justified. There is no power to ‘solicit’ consent from volunteers – people cannot be asked by police to consent
to a procedure if they are not suspects or serious offenders, but they may come forward at their own initiative...
A police officer can only request a person’s consent to a forensic procedure under the provisions dealing with
suspects and serious offenders. 669
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000