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

Other reviews of forensic procedures legislation have considered whether mass screenings need to be more closely
regulated. The Standing Committee on Law and Justice recommended that the Attorney General consider amending
the Act so that police would have to obtain a court order before conducting a mass screening, and would have to
satisfy the court that it was justified in all the circumstances, taking into account whether a smaller number of potential
suspects could instead be tested, and whether any other less intrusive investigative means are available. 704 The
Australian Law Reform Commission considered it necessary “to ensure that individuals who would not otherwise be
considered suspects in a criminal investigation do not feel undue pressure to ‘volunteer’ for a forensic procedure in
order to eliminate themselves from potential suspicion,” but decided against requiring court orders to authorise mass
screenings. Instead, it recommended (in the context of the equivalent federal legislation) that the government develop
guidelines for mass screenings, to cover both the process for approving the screening and the manner in which it is
to be conducted. 705
One of the difficulties in regulating mass screenings is that the term is difficult to define. Wee Waa is a clear example
of a mass screening. However, there are other circumstances where police officers seek DNA samples from a smaller
group of people over a period of time, as the investigation progresses, rather than masses of people who have only a
very tenuous connection to the crime, if any.
In addition, we note that mass screenings are expensive to run and may not be the most effective investigative
strategy. Police officers are required, in accordance with the Act, to provide each volunteer with the relevant
information, obtain his or her written consent, electronically record the procedure and so on. The samples then have
to be sent to the laboratory for analysis. Given that mass screenings are so resource intensive, and may be of limited
investigative value, it would be hoped that police would not conduct a Wee Waa style mass screening unless it was
reasonably necessary and had been approved at a fairly senior level within NSW Police. We note that no Wee Waa
style mass screenings have been conducted in New South Wales since the volunteer provisions of the Act came
into force.
Our primary concern about police conducting mass screens is whether the testing officers are providing accurate
advice to volunteers, and consequently whether volunteers are giving properly informed consent. In particular, police
are likely to tell volunteers that their profile will only be used to eliminate them from suspicion, and will not be used
for any other purpose. However, we know that DAL puts all volunteer samples on the DNA database, and does not
destroy them unless the volunteer makes a written request to NSW Police that the sample be destroyed.
We are also concerned that, unlike suspects, people who participate in mass screenings as volunteers need not be
informed that the procedure may produce evidence against them. 706 This was discussed previously at 6.1.4. This
would be adequately addressed by our recommendation 11, that police be required to inform all volunteers that the
forensic procedure may produce evidence against them, which can be used in court.
Mass screen volunteers, like people of interest, differ from ‘true’ volunteers in that they are asked to provide a DNA
sample because they are potential suspects, not because they have a legitimate reason for their DNA being at the
crime scene. In our view, police officers should be required by law to inform all volunteers that the forensic procedure
may produce evidence against them, which might be used in a court or law.
Otherwise, we agree with the position of the Australian Law Reform Commission, that there should be guidelines
covering the process for approving mass screenings, and the manner in which they are to be conducted.
The guidelines should also clarify what constitutes a mass screening, and what information should be provided
to mass screen volunteers. In our view, given the special nature of mass screenings, it is appropriate they are
adequately regulated.
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 125