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

Second, to ask for consent to a procedure, the police officer must be satisfied that “the request for consent to the
procedure is justified in all the circumstances.” However, to order a procedure be carried out, the police officer must
be satisfied that “the carrying out of the forensic procedure without consent is justified in all the circumstances”
– which is quite different. Carrying out a forensic procedure against a person’s will is much more intrusive than merely
asking for consent to a procedure.
Third, police can only order forensic procedures be carried out on suspects who are under arrest. To ask for consent
to a procedure, the suspect need not be under arrest.
We found that many officers do not fully understand these differences, and regard the consent process as an
opportunity for the suspect to elect how a DNA sample will be taken – by buccal swab if the suspect consents,
otherwise by hair sample – rather than an opportunity for the suspect to decline to undergo the proposed procedure.
Our findings suggest that the real proportion of forensic procedures conducted by consent would be much lower
than the 96 per cent indicated by police records.
7. Police rarely use force to conduct forensic procedures
The Act authorises police to use reasonable force to carry out a forensic procedure, or to prevent the loss, destruction
or contamination of any sample. We examined every incident during the review period that we could identify where
force was used. We found little evidence of force being used inappropriately, although in one case, police took a
buccal swab by force, when in the circumstances they should have taken a hair sample. We found that forensic
procedures are almost always carried out without any force being used (other than the force required to pull a
person’s hair out).
We also found that in almost all cases where a hair sample was taken, the same result could have been achieved,
at greater convenience to police and the person undergoing the procedure, had a self administered buccal swab
been taken instead. We have recommended that buccal swabs should be made available to suspects who comply
with police directions, even though they may object to the procedure – and that hair samples should only be taken
from suspects who are uncooperative and refuse to provide a sample by buccal swab even when ordered to do so.
8. The information given to suspects and volunteers is confusing
NSW Police has developed information sheets, which are designed so that officers can meet their legislative
obligation to provide certain information to the person undergoing the procedure, simply by reading through the
relevant sheet. The information currently provided to suspects and volunteers is long, complex and confusing. It is
obvious that many police officers, as well as people undergoing forensic procedures, do not understand it. Many
stakeholders expressed concern that suspects and volunteers cannot give informed consent if the information they
are provided is unintelligible. Many police officers argued that the information sheet is so complex that the essential
points – how a sample will be taken, what it will be used for, and that the person can decline if they wish – are lost.
Simplifying the information provided to suspects and volunteers would be enormously beneficial, both for police
officers and for people undergoing forensic procedures. We also recommend that children and incapable persons
should be given information about forensic procedures, in a manner appropriate to their age and understanding.
9. Few suspects access legal advice about forensic procedures
Very few suspects obtain legal advice before consenting to a forensic procedure, although the Act requires that police
give suspects reasonable opportunity to communicate with a legal practitioner before requesting consent. Many of
the submissions we received explained that legal advice is not readily available for people whom police may wish to
undergo forensic procedures. Often, a suspect will have been in custody for considerable time before being asked
to consent to a forensic procedure, and may have already obtained legal advice about other matters, but not the
forensic procedure. We recommend that police consider informing suspects who have been taken into custody where
they may wish to conduct a forensic procedure, and that information about forensic procedures be provided to those
suspects when police give the summary of rights in accordance with Part 9 of the Law Enforcement (Powers and
Responsibilities) Act. We also recommend that police be required to give people who are not under arrest a period
of notice before asking for consent to a forensic procedure, to enable the person to obtain legal advice if they wish.
10. Some DNA samples are being unlawfully retained
NSW Police and DAL are not meeting their legislative obligations to destroy forensic material taken from suspects
and volunteers. DNA and other forensic material taken from suspects must be destroyed if the evidence is
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
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