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

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Some metropolitan commands suggested that the information sheet, as well as being shorter, should be available in different languages. 738 We agree this is a good idea. Information sheets in other languages could be available on the FPIT intranet site, and those local area commands with significant populations who speak languages other than English could keep hardcopies of the translated information sheet in their command. We note this would be in addition to the use of an interpreter. Recommendation 33 NSW Police consider translating the information sheet into the most commonly used community languages. NSW Police supports this recommendation, commenting that it should be addressed by the Attorney General’s Department. 739 8.3. Time limits Police generally have two hours to conduct a forensic procedure. For example, where a suspect is under arrest, police have 2 hours in addition to the usual investigation period of 4 hours to conduct the forensic procedure. In circumstances where the procedure is conducted in response to a court order on a suspect who is not under arrest, the procedure must be carried out as quickly as reasonably possible and within 2 hours of the suspect arriving at the police station or testing area. 740 Procedures conducted on suspects under arrest in accordance with a court order also have the same time provisions of 2 hours from the end of the investigation period. The only difference is the calculation of the commencement of the investigation period which starts from when the magistrate orders the carrying out of the procedure, or the suspect is arrested pursuant to a warrant under section 41 of the Act. 741 The permitted detention period may be suspended to enable certain things to happen. Time which is disregarded for the purpose of calculating the time for a forensic procedure to be carried out is called ‘time out’. Time outs include: • the time required to convey a suspect to the nearest premises with facilities for carrying out the procedure • any time spent waiting for facilities or equipment to become available • delays to allow the suspect to communicate with a legal practitioner, interview friend or interpreter • any time spent waiting for a legal practitioner, interview friend or interpreter to arrive • delays to allow the suspect to recover from the effects of intoxication or receive medical advice • delays at the suspect’s request, and • time spent waiting for a senior police officer or magistrate to make an order authorising a forensic procedure. 742 8.3.1. At what stage of the investigation period is the forensic procedure conducted The Act specifies that a suspect who is under arrest may be detained for up to two hours after the investigation period permitted under 115 of the Law Enforcement (Powers and Responsibilities) Act (formerly section 356D of the Crimes Act) expires, for the purpose of carrying out a forensic procedure. A forensic procedure may be carried out during the investigation period, but the investigation period itself cannot be extended. 743 This means that police officers must choose between conducting a forensic procedure before a person is interviewed, in which case the forensic procedure counts towards the permitted investigation period, or conducting it after the investigation period expires, in which case police have an additional two hours. In our audit of local area commands, some police officers we interviewed expressed concern that to avoid reducing the investigation period, forensic procedures have to be conducted at the end of the investigation period. While some types of procedures, such as DNA samples, can be carried out after a suspect has been interviewed, other types, such as hand swabs or gun shot residue tests, should be conducted as soon as possible. One regional command described conducting a gun shot residue test in relation to a shooting incident within the investigation period because the swab had to be taken within three hours of the incident, and it took police an hour and a half to drive to the police station where the suspects were being held. 744 138 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
In our view whether a forensic procedure is conducted at the beginning or end of the investigation period is a matter for investigating police to decide. Enabling police officers to conduct forensic procedures at the beginning rather than the end of the investigation period would not increase the length of time a suspect is in detention. We note that NSW Police has suggested that conducting a forensic procedure be time out for the purpose of calculating the investigation period. It gave the following example: 30 minutes of forensic procedures could be performed at the beginning of the four hours of investigation time. Another 30 minutes of forensic procedure may be performed after two hours of investigation time, with the last hour of forensic procedures being used after the investigation time has elapsed. 745 NSW Police argued that being able to conduct forensic procedures at the beginning of the investigation period would mean that evidence could be obtained before it degraded, and police could still have a four hour investigation period, without having to apply for an extension warrant. NSW Police advised this would require changes to the way COPS custody management records are maintained, but that these changes would be warranted given improvements in quality of evidence and time saved overall. We support this proposal. Provided that all forensic procedures are still conducted within reasonable time, and that the maximum time permitted to conduct forensic procedures (excluding time outs) is still two hours, it does not disadvantage the suspect. 8.3.2. How long police take to conduct forensic procedures During our audit of local area commands, we sought to find out how long forensic procedures generally take, and to check that they are being conducted within the permitted 2 hours. 8.3.2.1. Audit of local area commands We attempted to review each custody management record for the forensic procedures included in our audit. However, not all forensic procedures were recorded on the custody management system. We undertook an in depth analysis of the custody management records from four of the eight commands audited by reviewing 259 procedures from two metropolitan and two rural commands. For these 259 procedures, we were provided with 123 custody management records. The results from our review of these 123 custody management records were indicative of all the commands audited. We found that of the 123 records: • 73 custody management records had included the forensic procedure as a specific item providing details of the type of procedure undertaken and the time the procedure started and finished • 27 custody management records had a reference made to a forensic procedure being conducted in either the ‘move location’ or ‘general comments’ and provided miscellaneous details about the forensic procedure, and • 23 custody management records had no mention of a forensic procedure being conducted. This left 136 forensic procedures where there were no custody management records. This was because the person undergoing the procedure was a volunteer or a suspect who was not under arrest, or because police had recorded the forensic procedure in COPS instead of the custody management system. 746 For those forensic procedures which were recorded through the custody management system, we found the records were often incomplete. Custody management records include three sets of questions relating to forensic procedures, about: 1. the request for consent for the procedure to be conducted 2. whether the person was capable of understanding the process and giving consent, and 3. the performance of the forensic procedure, including whether the person had been cautioned and whether the person resisted the procedure. Where the forensic procedure was recorded on the custody management record, it was often only the third set of questions which had been answered. We noted that of the 73 custody management records reviewed in-depth, only six had all three sets of questions completed, a further 22 had two sets completed and the remaining 45 had only one of the three sets of questions completed. For each of the procedures conducted at the eight commands audited where sufficient information was included in the custody management record, we calculated the length of time the person was in custody for the purposes of NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 139
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DNA sampling and other forensic pro
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October 2006 The Honourable Bob Deb
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October 2006 Commissioner Ken Moron
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Contents Executive summary ........
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Chapter 17. Conclusion ............
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to children, incapable persons and
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The distinction between suspects an
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inadmissible, the suspect is acquit
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• establishing ‘best practice
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12 13 14 15 16 17 18 19 20 Recommen
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Recommendation Paragraph number 29
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46 47 48 49 50 51 52 53 54 55 Recom
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68 69 70 71 72 73 74 75 76 77 78 Re
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89 Recommendation Staff in all labo
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xx NSW Ombudsman DNA sampling and o
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Part 7 of the Crimes (Forensic Proc
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means that a significant number of
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The aim of the audit was to observe
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We followed up 180 of the 371 foren
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Chapter 2. Key provisions of the Ac
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(ii) the breasts of a female or a t
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scraping or lifting by tape from th
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• Some people have the right to h
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Chapter 3. DNA sampling in Australi
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• Security issues. There are conc
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3.3.2. Australian Capital Territory
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3.3.6. Queensland Forensic procedur
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analysis must be relevant to the of
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The FSS is still the largest forens
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The Garda Commissioner (the Irish e
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of operation, 50 per cent of states
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86 For example, NSW Legislative Ass
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150 Police Powers and Responsibilit
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226 DNA Identification Act 1998 (Ca
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Chapter 4. Implementation of the Ac
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Separate training courses are run f
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4.2.1. How easy is it for police of
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Given the widespread reluctance to
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Recommendation 03 NSW Police ensure
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NSW Police has long term plans to r
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The Audit Group has advised that it
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the carrying out of these forensic
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322 Crimes (Forensic Procedures) Ac
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We asked NSW Police why there is su
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Table 2 shows the rate at which for
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Figure 5 shows that, of the forensi
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For procedures conducted on child s
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These figures show that the number
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cent result in a warm link and 13 p
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355 40 out of 450 child suspects: C
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In our 2004 report on the DNA sampl
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6.1.3. Does it matter whether the p
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The distinction between suspects an
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He is not here yet. [The form then
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Recommendation 15 Police consider i
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393 Ombudsman audit of local area c
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Chapter 7. Authority to conduct a f
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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 156 and 157: Recommendation 29 The Minister regu
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 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
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10.3.6. Samples unconnected to a ca
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10.4.1. Suspect-suspect matching Su
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Recommendation 64 DAL deletes all p
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Case Study 68 Four young people lef
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profiles put on the database, but c
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NSW Health supports recommendation
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10.6.5.2. Volunteers For each of th
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10.6.8. DNA analysis in relation to
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‘Depends on seriousness of offenc
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admits being there then what is the
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Figure 13 indicates there are a lar
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turnaround times (in particular, wh
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In New South Wales, police or the D
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The funding will be used to create
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• representatives from human righ
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large batch of serious indictable o
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965 Discussion at meeting with DAL,
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1050 FSG presentation to DAL, attac
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DAL confirmed that its records were
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Recommendation 81 An audit process
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Endnotes 1070 Where police records
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Case Study 76 A man was arrested an
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it has been there, whether it has d
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Case Study 77 Police investigating
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Recommendation 89 Staff in all labo
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We realise this is a sensitive issu
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1130 Legislative Assembly Hansard,
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In making this decision, the court
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evidence. Police would still, of co
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If two samples match, it is possibl
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Similar issues were considered in R
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Where the defence wishes to challen
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These results must be interpreted w
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1179 Letter from DPP, 24 March 2005
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Chapter 14. Destruction of forensic
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14.2.2. Identifying DNA profiles wh
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Recommendation 94 When DAL receives
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Recommendation 96 DAL delete all pr
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Recommendation 98 Section 87 of the
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14.3. Retaining genetic material fr
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1255 Based on DAL’s advice in its
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• a complaint about the incorrect
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The Ombudsman found that the police
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• The man was not cautioned prior
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15.3.5. Failure to maintain proper
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• the supervising sergeant did no
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Case Study 91 In 2004, a lorry driv
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16.2. Possible problems with DNA Be
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1319 Letter from Homicide Squad dat
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Appendix. Implementation of recomme
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at staff development days. In addit
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Term Definition / explanation Conta
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Term Definition / explanation Incap
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Term Definition / explanation Victi
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