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

More documents

Recommendations

Info

Recommendation 29 The Minister regulate arrangements for mass screenings. This should include: a. a definition of what constitutes a “mass screening” b. a requirement that mass screenings only be conducted in the approved manner c. a requirement that a senior officer (Superintendent or above) approve the undertaking of a mass screening d. the criteria to be met before a senior officer approves a mass screening e. that samples obtained during a mass screening only be used for “within case matching” with the relevant criminal investigation f. a requirement that samples be destroyed within a specified period after the relevant case or investigation is finalised g. the information to be provided to volunteers, and h. the arrangements for conduct of mass screening procedures. NSW Police indicated it supports the recommendation, and will provide further comment once the proposed arrangements are developed. 707 The Attorney General’s Department commented in part: There is a certain level of ambiguity in the discussion between in-case matching and off-database matching. In true ‘in-case matching’, there is no legislative need for the DNA profile to be loaded to the database at all—the Act does not prevent the matching of two DNA samples, neither of which are on the database. However, in practice, as set out in paragraph 6.1.4 of the report, all volunteer samples are currently loaded to the volunteers (limited purposes) index of the database, presumably as this is the most efficient way of DAL performing the matching. It is unclear whether proposed Recommendation 30(d) is intended to prevent the placing of the person samples from volunteers on the volunteers (limited purposes) index of the database. 708 Our recommendation that “that samples obtained during a mass screening only be used for ‘within case matching’ within the relevant criminal investigation” is not intended to prevent the placing of profiles obtained through mass screenings on the volunteers (limited purposes) index of the database. Whether profiles obtained through a mass screening are placed on the volunteers (limited purposes) index, or are not put on the database at all, may be a matter for consideration by the Minister in developing arrangements for mass screenings. Our concern is that DNA samples provided by mass screen participants should not be used beyond the case for which they were provided, for example by matching them against the unsolved crime scenes index. We also stress that should profiles obtained from volunteers during mass screenings be put on the database, as would appear to be the current practice by DAL, this should be explained to volunteers. The Attorney General’s Department also commented: The proposed Recommendation raises the broader question of whether the Crimes (Forensic Procedures) Act is intended to be a code; or alternatively whether any forensic investigative conduct not specifically mentioned in the Act is completely unregulated. The Courts have taken the view that the latter formulation is the correct interpretation of the Act as it now stands... The current state of affairs provides little incentive for investigating police officers to work within the confines of the Act, rather than arranging their investigation so that the Act does not apply at all. This issue may need to be considered in due course. 709 Our own view is that it is clearly the intention that persons who provide samples as part of mass screenings do so as volunteers. If there is room for these to take place outside the Act, this discretion should be removed. We have amended our recommendation accordingly. 126 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
Endnotes 440 Crimes (Forensic Procedures) Act 2000 s 3. 441 Crimes (Forensic Procedures) Act 2000 s 76. 442 Crimes (Forensic Procedures) Act 2000 s 12 and 20. 443 Crimes (Forensic Procedures) Act 2000 s 76(1). 444 Crimes (Forensic Procedures) Act 2000 s 14, 17 and 22. 445 Crimes (Forensic Procedures) Act 2000 s 8, 24, 76 and 77. 446 Crimes (Forensic Procedures) Act 2000 s 13, 77 and 78. 447 Crimes (Forensic Procedures) Act 2000 s 93. 448 Crimes (Forensic Procedures) Act 2000 s 88. 449 Crimes (Forensic Procedures) Act 2000 s 77(2)(d). 450 The Sample Information Form (P377). 451 Information obtained through Ombudsman review of COPS records. 452 Information obtained through Ombudsman review of COPS records. 453 Information obtained through Ombudsman review of COPS records. 454 Information obtained through Ombudsman review of COPS records. 455 Information obtained through Ombudsman review of COPS records. 456 FPIT intranet site, frequently asked questions page, accessed 8 September 2005. 457 Information obtained through Ombudsman review of COPS records. 458 Information obtained through Ombudsman review of COPS records. 459 Information obtained through Ombudsman review of COPS records. 460 “Forensic procedures involving volunteers and excluded volunteers”, Police Weekly Volume 15, Number 20, 26 May 2003 at p. 10. 461 R v White [2005] NSWSC 60 and transcript of proceedings, 14 February 2005. 462 R v White [2005] NSWSC 60, transcript of proceedings, 14 February 2005, p. 5 line 28. 463 R v White [2005] NSWSC 60, transcript of proceedings, 14 February 2005, p. 12 line 5. 464 R v Rondo [2001] NSWCCA 540 (24 December 2001) at paragraph 53 (Smart AJ). 465 Orban v Bayliss [2004] NSWSC 428. 466 Maguire v Beaton (unreported) NSWSC (11 May 2005) (Latham J). 467 NSW Department of Aboriginal Affairs submission, 11 April 2005. 468 COPS download data provided by FPIT on 15 July 2005. This does not include the 26 blood samples taken from suspects as most of these either were taken under other legislation or were not forensic procedures for the purposes of the Act: see discussion of blood samples at 8.6.3. 469 Crimes (Forensic Procedures) Act 2000 s 12. 470 This is discussed in more detail at 7.1.2. 471 Crimes (Forensic Procedures) Act 2000 s 12(b). 472 Crimes (Forensic Procedures) Act 2000 s 82(4)(c). 473 Crimes (Forensic Procedures) Act 2000 s 3, 12(b), 8(2) and 23. 474 See Law Enforcement (Powers and Responsibilities) Act s 112 (formerly Crimes Act 1900 s 356A). 475 Law Enforcement (Powers and Responsibilities) Regulation 2005, Schedule 2, clause 3 (formerly Crimes (Detention After Arrest) Regulation 1998, Schedule 1). 476 NSW Police Code of Practice for Custody, Rights, Investigation, Management and Evidence. 477 NSW Police, Guidelines for Police when Interviewing People with Impaired Intellectual Functioning. 478 NSW Ombudsman, The Forensic DNA Sampling of Serious Indictable Offenders under Part 7 of the Crimes (Forensic Procedures) Act 2000 (August 2004) at p. 129 to 137. 479 Anti-Discrimination Board submission, 18 February 2005. 480 Anti-Discrimination Board submission, 18 February 2005. 481 Anti-Discrimination Board submission, 18 February 2005. NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 127
Page 2 and 3:
DNA sampling and other forensic pro
Page 4 and 5:
October 2006 The Honourable Bob Deb
Page 6 and 7:
October 2006 Commissioner Ken Moron
Page 8 and 9:
Contents Executive summary ........
Page 10 and 11:
Chapter 17. Conclusion ............
Page 12 and 13:
to children, incapable persons and
Page 14 and 15:
The distinction between suspects an
Page 16 and 17:
inadmissible, the suspect is acquit
Page 18 and 19:
• establishing ‘best practice
Page 20 and 21:
12 13 14 15 16 17 18 19 20 Recommen
Page 22 and 23:
Recommendation Paragraph number 29
Page 24 and 25:
46 47 48 49 50 51 52 53 54 55 Recom
Page 26 and 27:
68 69 70 71 72 73 74 75 76 77 78 Re
Page 28 and 29:
89 Recommendation Staff in all labo
Page 30 and 31:
xx NSW Ombudsman DNA sampling and o
Page 32 and 33:
Part 7 of the Crimes (Forensic Proc
Page 34 and 35:
means that a significant number of
Page 36 and 37:
The aim of the audit was to observe
Page 38 and 39:
We followed up 180 of the 371 foren
Page 40 and 41:
Chapter 2. Key provisions of the Ac
Page 42 and 43:
(ii) the breasts of a female or a t
Page 44 and 45:
scraping or lifting by tape from th
Page 46 and 47:
• Some people have the right to h
Page 48 and 49:
Chapter 3. DNA sampling in Australi
Page 50 and 51:
• Security issues. There are conc
Page 52 and 53:
3.3.2. Australian Capital Territory
Page 54 and 55:
3.3.6. Queensland Forensic procedur
Page 56 and 57:
analysis must be relevant to the of
Page 58 and 59:
The FSS is still the largest forens
Page 60 and 61:
The Garda Commissioner (the Irish e
Page 62 and 63:
of operation, 50 per cent of states
Page 64 and 65:
86 For example, NSW Legislative Ass
Page 66 and 67:
150 Police Powers and Responsibilit
Page 68 and 69:
226 DNA Identification Act 1998 (Ca
Page 70 and 71:
Chapter 4. Implementation of the Ac
Page 72 and 73:
Separate training courses are run f
Page 74 and 75:
4.2.1. How easy is it for police of
Page 76 and 77:
Given the widespread reluctance to
Page 78 and 79:
Recommendation 03 NSW Police ensure
Page 80 and 81:
NSW Police has long term plans to r
Page 82 and 83:
The Audit Group has advised that it
Page 84 and 85:
the carrying out of these forensic
Page 86 and 87:
322 Crimes (Forensic Procedures) Ac
Page 88 and 89:
We asked NSW Police why there is su
Page 90 and 91:
Table 2 shows the rate at which for
Page 92 and 93:
Figure 5 shows that, of the forensi
Page 94 and 95:
For procedures conducted on child s
Page 96 and 97:
These figures show that the number
Page 98 and 99:
cent result in a warm link and 13 p
Page 100 and 101:
355 40 out of 450 child suspects: C
Page 102 and 103:
In our 2004 report on the DNA sampl
Page 104 and 105:
6.1.3. Does it matter whether the p
Page 106 and 107: The distinction between suspects an
Page 108 and 109: He is not here yet. [The form then
Page 110 and 111: Recommendation 15 Police consider i
Page 112 and 113: 393 Ombudsman audit of local area c
Page 114 and 115: Chapter 7. Authority to conduct a f
Page 116 and 117: Case Study 10 An unknown offender b
Page 118 and 119: In any event, not all people of int
Page 120 and 121: intellectual functioning, someone e
Page 122 and 123: Case Study 15 An elderly woman was
Page 124 and 125: Even where there is direct evidence
Page 126 and 127: interest in upholding the physical
Page 128 and 129: of consent; and secondly, it sugges
Page 130 and 131: 7.3. Suspects: proceeding by order
Page 132 and 133: second because the orders we were a
Page 134 and 135: The Police Association of NSW reque
Page 136 and 137: Case Study 28 A homeless man died a
Page 138 and 139: grounds to believe the suspect comm
Page 140 and 141: concern that, in any Act where no s
Page 142 and 143: forensic procedures by consent, pol
Page 144 and 145: Case Study 37 Several young men sto
Page 146 and 147: 7.4.11. Appealing against court ord
Page 148 and 149: Case Study 43 A 25 year old woman w
Page 150 and 151: involved in the investigation of th
Page 152 and 153: use a DNA profile from a volunteer
Page 154 and 155: Several targeted screens have been
Page 158 and 159: 128 482 Intellectual Disability Rig
Page 160 and 161: 569 Law Enforcement (Powers and Res
Page 162 and 163: 657 Crimes (Forensic Procedures) Ac
Page 164 and 165: Chapter 8. Conducting a forensic pr
Page 166 and 167: The availability of persons is some
Page 168 and 169: Some metropolitan commands suggeste
Page 170 and 171: conducting forensic procedures (tak
Page 172 and 173: Section 57 of the Act provides that
Page 174 and 175: 8.5.7. Recording a forensic procedu
Page 176 and 177: j. The testing officer asks the sus
Page 178 and 179: Case Study 52 Police took a hair sa
Page 180 and 181: Recommendation 38 When police offic
Page 182 and 183: Recommendation 40 NSW Police retain
Page 184 and 185: It is unclear whether this directiv
Page 186 and 187: Generally, police provided adequate
Page 188 and 189: Recommendation 45 NSW Police ensure
Page 190 and 191: 8.10.3. Photographs Section 59 of t
Page 192 and 193: Recommendation 48 The Crimes (Foren
Page 194 and 195: 746 Since the Act came into force,
Page 196 and 197: 823 NSW Police response to Ombudsma
Page 198 and 199: Sometimes it’s not clear whether
Page 200 and 201: This recommendation is supported by
Page 202 and 203: test container and the man’s t-sh
Page 204 and 205: considerations. Alternatively, the
Page 206 and 207:
police appear to have treated victi
Page 208 and 209:
We also note that children under th
Page 210 and 211:
888 Confidential LAC survey respons
Page 212 and 213:
the initial agreement between NSW P
Page 214 and 215:
10.3. Receipt of DNA samples DNA sa
Page 216 and 217:
Table 04: Person samples rejected b
Page 218 and 219:
10.3.6. Samples unconnected to a ca
Page 220 and 221:
10.4.1. Suspect-suspect matching Su
Page 222 and 223:
Recommendation 64 DAL deletes all p
Page 224 and 225:
Case Study 68 Four young people lef
Page 226 and 227:
profiles put on the database, but c
Page 228 and 229:
NSW Health supports recommendation
Page 230 and 231:
10.6.5.2. Volunteers For each of th
Page 232 and 233:
10.6.8. DNA analysis in relation to
Page 234 and 235:
‘Depends on seriousness of offenc
Page 236 and 237:
admits being there then what is the
Page 238 and 239:
Figure 13 indicates there are a lar
Page 240 and 241:
turnaround times (in particular, wh
Page 242 and 243:
In New South Wales, police or the D
Page 244 and 245:
The funding will be used to create
Page 246 and 247:
• representatives from human righ
Page 248 and 249:
large batch of serious indictable o
Page 250 and 251:
965 Discussion at meeting with DAL,
Page 252 and 253:
1050 FSG presentation to DAL, attac
Page 254 and 255:
DAL confirmed that its records were
Page 256 and 257:
Recommendation 81 An audit process
Page 258 and 259:
Case Study 75 An unknown offender b
Page 260 and 261:
Endnotes 1070 Where police records
Page 262 and 263:
Case Study 76 A man was arrested an
Page 264 and 265:
it has been there, whether it has d
Page 266 and 267:
Case Study 77 Police investigating
Page 268 and 269:
Recommendation 89 Staff in all labo
Page 270 and 271:
We realise this is a sensitive issu
Page 272 and 273:
1130 Legislative Assembly Hansard,
Page 274 and 275:
Case Study 84 An unknown offender b
Page 276 and 277:
In making this decision, the court
Page 278 and 279:
evidence. Police would still, of co
Page 280 and 281:
If two samples match, it is possibl
Page 282 and 283:
Similar issues were considered in R
Page 284 and 285:
Where the defence wishes to challen
Page 286 and 287:
These results must be interpreted w
Page 288 and 289:
1179 Letter from DPP, 24 March 2005
Page 290 and 291:
Chapter 14. Destruction of forensic
Page 292 and 293:
14.2.2. Identifying DNA profiles wh
Page 294 and 295:
Recommendation 94 When DAL receives
Page 296 and 297:
Recommendation 96 DAL delete all pr
Page 298 and 299:
Recommendation 98 Section 87 of the
Page 300 and 301:
14.3. Retaining genetic material fr
Page 302 and 303:
1255 Based on DAL’s advice in its
Page 304 and 305:
• a complaint about the incorrect
Page 306 and 307:
The Ombudsman found that the police
Page 308 and 309:
• The man was not cautioned prior
Page 310 and 311:
15.3.5. Failure to maintain proper
Page 312 and 313:
• the supervising sergeant did no
Page 314 and 315:
Case Study 91 In 2004, a lorry driv
Page 316 and 317:
16.2. Possible problems with DNA Be
Page 318 and 319:
1319 Letter from Homicide Squad dat
Page 320 and 321:
Appendix. Implementation of recomme
Page 322 and 323:
at staff development days. In addit
Page 324 and 325:
Term Definition / explanation Conta
Page 326 and 327:
Term Definition / explanation Incap
Page 328 and 329:
Term Definition / explanation Victi
show all

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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?