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

Case Study 49
A suspect who was having a buccal swab and photographs taken asked the police officer, “Do I have to have
a video” The officer replied, “I have to record the reading of the information so it can be seen I’m reading
this information to you. If you don’t want the buccal swab recorded we can cancel that but we have to get
someone, an independent person in here.” The suspect made an inaudible reply. The officer asked, “So we’ll
continue the recording” The suspect replied, “No, really, I don’t want that on.” The officer said, “So you don’t
want this on OK, I’ll continue reading this information so you’ll understand it on here and when we get to the
buccal swab we’ll stop the recording and work out process we’ll have to follow from there. OK” The officer
finished providing the information.
The suspect asked for his mate who was also at the police station to act as an independent person. One of
the police officers present said, “He’s not independent” and that it had to be “someone who doesn’t know you
or us.” One of the other officers explained to the suspect that he could waive his right to have an independent
person present. She also advised that the purpose of recording the procedure was to “show everything’s OK.”
The suspect asked, “How long would it take to get someone” Police advised they did not know. The suspect
said, “Leave it on,” and the procedure was electronically recorded. 766
We note that the Act requires that if a forensic procedure is not electronically recorded, it must be carried out “in
the presence of an independent person who is not a police officer.” 767 In our view it would have been appropriate
for police in the above case study to allow the suspect’s friend to act as an independent person. It appears that the
suspect did not want the procedure to be electronically recorded, but eventually agreed to it because he did not want
to have to wait for police to arrange for another person to attend.
In its submission, the Police Association of NSW argued that the suspect should not be able to choose not to have
the forensic procedure recorded, on the basis that it creates an objective record of the procedure which can be used
in court, if required. 768
The suspect or volunteer may have particular reasons for not wanting a forensic procedure to be recorded, for
example where the procedure requires the person to remove items of clothing. In our view it is important that suspects
and volunteers are allowed to choose not to have a procedure electronically recorded. In addition, we note that
through our monitoring activities, we found very few instances where the person objected to a forensic procedure
being electronically recorded.
Recommendation 36
NSW Police amend the SOPs to reflect the best practice for video recording of forensic procedures.
In particular we recommend:
a. Where an officer takes measures to minimise contamination, for example by cleaning the table, that this
be done on video
b. The testing officer and person being tested are clearly visible at all times
c. The testing officer states the date and time at the start and end of the procedure
d. The testing officer introduces himself or herself
e. The testing officer identifies by name and role any other persons present, including other police officers
f. The testing officer provides an overview of the forensic procedure and process
g. The testing officer cautions the person being tested
h. The testing officer reads out all relevant information to the suspect or volunteer
i. The testing officer obtains both the written and verbal consent of the suspect or volunteer
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 145