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

conducting forensic procedures (taking into account any time out). We did not find any procedures where it appeared
a person had been kept in custody for longer than two hours after the investigation period expired.
We have discussed at 4.2.8.2 (see also recommendation 5), that NSW Police review procedures for custody
management records, to ensure standard processes enabling the meeting of legal requirements, including detention
requirements. If adopted, this should also go some way to remedying the inadequate custody records identified in our
review.
8.3.2.2. Video audit
We also noted the length of time taken to conduct the forensic procedures included in our video audit. We were able
to calculate the length of the procedure for 73 of the 146 videos we watched. 747 The forensic procedures we watched
took, on average, 23 minutes. Only five took longer than 45 minutes, and the longest time was 1 hour and 8 minutes.
The procedure itself usually only took a few minutes. The bulk of the time was spent providing information about the
procedure to the suspect or volunteer. The longer ones were those where an interpreter was used, or multiple forensic
procedures were conducted (for example a DNA sample, photographs and hand swabs).
The results of our video audit show that forensic procedures are being conducted well within the two hours permitted
by the Act.
8.3.2.3. Survey of local area commands
We also asked commands about compliance with the statutory time limits in our survey, with only four commands
advising they had difficulty completing procedures within two hours. However, none provided advice that the
procedure could not be completed within the permitted timeframe. The issues related to:
• Use of interpreters. As we have previously explained, it takes longer to conduct a forensic procedure with an
interpreter. If the information sheet is translated into a variety of community languages, as per recommendation
33, this may reduce the overall length of time a procedure takes. As it appears that no procedures have fallen
outside the two hour timeframe, it would not be appropriate to suggest any increased period because of a
possibility a procedure may not be completed.
• Police having to cover long distances in regional commands. In one case police described having to
take suspects to a hospital to conduct a forensic procedure authorised by a court. In another case, police had
to drive an hour and a half to conduct gun shot residue tests on suspects in a shooting incident. However,
time required to convey a suspect to facilities for carrying out the procedure and time spent waiting for an
appropriately qualified person to arrive at the place where the procedure is to be carried out will be ‘time out’,
and does not count towards the two hours permitted to conduct the procedure. Although, having to cover long
distances may still be an issue where a court makes an order authorising a particular procedure, and specifies
a time limit in the order. We have canvassed this issue previously at 7.4.6, and noted that the solution lies in
police officers seeking appropriate orders.
Recommendation 34
Section 117 of the Law Enforcement (Powers and Responsibilities) Act 2002 be amended so that time taken
to conduct a forensic procedure is to be regarded as ‘time out’ in determining how much of an investigation
period has elapsed.
NSW Police supports this recommendation. 748 The Attorney General’s Department advised this recommendation is
already being implemented:
My Department is currently instructing in the preparation of a Bill that will add to the list of ‘times out’ under
Part 9 of the [Law Enforcement (Powers and Responsibilities)] Act , any time that is reasonably required to
carry out a forensic procedure, or to prepare, make or dispose of the making of an order for the carrying out
of a forensic procedure. 749
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000