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

involved in the investigation of the offence. A copy of the consent form must be given to the volunteer, parent or
guardian as soon as practicable. 674
NSW Police has developed separate consent forms for suspects, volunteers, and children and incapable people, to
reflect the legislative requirements relating to each category. During our audits, we found that some commands were
not aware that NSW Police had issued separate consent pads for volunteers and for children and incapable people.
Some had volunteers sign the volunteer information sheet, while others were using suspect consent forms for all
forensic procedures. This raises concerns that forensic procedures may have been conducted on volunteers without
complying with the requirements set out in the legislation – specifically, that the volunteer signed the consent form in
the presence of an independent person, and that the volunteer specified whether his or her DNA profile would be put
on the DNA database and what it would be matched against.
We also have concerns about whether volunteers are giving informed consent to forensic procedures. As discussed
in chapter 6, police are not always providing the correct information to volunteers. In particular, there is considerable
confusion among police officers about whether volunteer profiles are put on the DNA database, and what index they
should be put on. As discussed at 6.1.4, DAL puts all volunteer profiles on the DNA database. It does not match them
against any of the other indexes, unless it confirms with the officer who took the sample that the volunteer did actually
specify that his or her DNA sample could be used for unlimited purposes.
We are concerned that many volunteers have provided DNA samples on the basis that their profile would not be put
on the DNA database, when in fact it has been.
Our recommendations 11 and 12 about providing accurate information to volunteers about forensic procedures
should address our concerns about whether volunteers are giving informed consent. In addition, our recommendation
3(b) as to which police officers should perform forensic procedures will increase the likelihood that officers seeking
consent from volunteers understand the distinctions between volunteer and suspect testing. The proposed forensic
procedures book will include a copy of the volunteers form, allowing for easy auditing and education plus other
remedial responses where necessary. Given the development and the practice of DAL to date, we do not propose to
make any further recommendations on this issue.
7.5.3. Should child volunteers be able to consent to forensic procedures
A forensic procedure may be carried out on a child volunteer with the consent of the child’s parent or guardian,
provided the child does not object to or resist the procedure. 675 Unlike child suspects, child volunteers can never be
compelled to undergo a forensic procedure, and any DNA sample taken from the child volunteer will normally be used
within the case for which it was provided, and will not be matched against the entire crime scene index.
We note the 2002 recommendation by the Legislative Council Standing Committee on Law and Justice that the
Attorney General consider amending the child volunteer provisions so that forensic procedures can be conducted on
volunteers between the ages of 10 and 14 with the consent of the child and the child’s parent, and volunteers aged
15 to 17 can consent to forensic procedures themselves. 676 In submissions to our review, Legal Aid NSW and the Law
Society of NSW suggested that a volunteer aged between 14 and 16 should be able to consent, provided the child’s
parent or guardian also consents, and that a volunteer aged between 16 and 18 should be able to consent to the
procedure without the involvement of a parent or guardian. 677
We generally support the recommendation that child volunteers who are sufficiently mature should be able to consent
to forensic procedures. Our only concern is that, because the distinction between suspects and volunteers is not
always clear, police officers may treat children who are under investigation for an offence but who do not meet the
threshold of ‘suspect’ for the purposes of the Act, as ‘volunteers’. If the child consents to the forensic procedure (or
can be persuaded to consent), this obviates the need for police to obtain a court order. The Act as it currently stands
protects children against this, to a limited extent, by requiring consent from the child’s parent or guardian before the
procedure can be conducted.
In our view these concerns could be adequately addressed by ensuring that child volunteers are given appropriate
information about the proposed procedure, including why the procedure is required, that it might produce evidence
against them, and that they do not have to undergo the procedure if they do not want to. Our recommendation 13,
about providing child volunteers with information about forensic procedures, seeks to address this problem. On
this basis, we agree with the recommendation of the Standing Committee that volunteers aged between 15 and
17 should be able to consent to forensic procedures. However, an appropriate safeguard would be to ensure that
child volunteers could only consent to providing a DNA sample for use within a particular case, and not for unlimited
purposes.
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000