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

Section 57 of the Act provides that police must electronically record the carrying out of the forensic procedure, unless
it is impractical, or the suspect objects to the recording. The suspect must be informed of the reasons for recording
the procedure, including the protection this provides for the suspect. The suspect must also be informed that he or
she may object to the procedure being recorded.
The SOPs include instructions on how to record forensic procedures, and include prompts to make sure officers
comply with the legislative requirements.
8.5.1. How procedures are recorded
We watched 146 videos of forensic procedures during our audit. The standard of recording varied. On some videos
the sound or picture quality made it difficult to determine what was happening. Some showed the whole testing area
and each of the people present, while others showed only the person being tested or the police officer carrying out
the procedure. Not all videos showed the opening or sealing of the tamper-evident bag.
For example, one video showed only a very limited area of the room in which the procedure was conducted. There
was a partial view of the suspect, and only the shoulder of the testing officer was visible. The DNA sample kit or table
were not shown in the video. It appeared that the camera was on a tripod and it was only the testing officer and the
person undergoing the procedure present, but this was not clear. There may have been other people in the room. 755
After reviewing the videos of forensic procedures, we consider the following to be best practice:
• where an officer takes measures to minimise contamination, for example by cleaning the table, that this be
done on video
• the testing officer and person being tested are clearly visible at all times
• the testing officer states the date and time at the start and end of the procedure
• the testing officer introduces himself or herself
• the testing officer identifies by name and role any other persons present, including other police officers
• the testing officer provides an overview of the forensic procedure and process
• the testing officer cautions the person being tested
• the testing officer reads out all relevant information to the suspect or volunteer
• the testing officer obtains both the written and verbal consent of the suspect or volunteer
• the testing officer asks the suspect or volunteer whether they consent to the electronic recording of the
conducting of the forensic procedure after consent has been obtained and prior to commencing the procedure
• where the forensic procedure is the taking of a DNA sample, the opening of the DNA sample kit, the sampling
process and the sealing of the tamper-evident bag are clearly visible and the contents of the DNA sample kit
are visible at all times, and
• the testing officer at the completion of the forensic procedure asks the suspect or volunteer if they have any
complaints about the way the procedure was conducted.
There were few videos where the testing officer identified the other people present or explained their roles. This made
it difficult to assess whether certain legislative obligations were being met, for example whether an interview friend
was present where one was required, or whether the procedure was carried out in reasonable privacy, with only the
necessary people present (as required by section 44 of the Act).
8.5.2. Recording the provision of information
We found that contrary to their legislative requirements, police are not always recording the provision of information
to a suspect. In a number of videos we watched, the provision of information was not recorded, although the fact that
the procedure itself was recorded suggested that it was actually practicable to record the provision of information. 756
In some cases, the testing officer referred to having provided the information before starting to record the process. 757
8.5.3. Recording the consent process
We also found that police are not always recording the consent process, which includes the request for consent,
and completion of the consent form. Section 15 of the Act requires police to record any response to the information
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000