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

Recommendation 38
When police officers seek an order for a person DNA sample, the request include that the order permit the
option for the sample to be taken as either a buccal swab, a hair sample or a blood sample and that these
choices be provided to the person being tested.
NSW Police supports these recommendations. 792
8.6.4. Taking DNA samples by more than one method
We found some instances where police took DNA samples by more than one method. This might happen when police
apply for a court order authorising a buccal swab and hair sample, and then go ahead and take both, even though
only the buccal swab was needed to obtain the person’s DNA profile. 793
It may be prudent for police who are applying for a court order authorising a DNA sample to include both a hair
sample and buccal swab in the application, in case the suspect declines to self-administer the buccal swab. However,
there is no need to take the hair sample if the buccal swab is obtained.
Recommendation 39
NSW Police procedures clarify that only one DNA sample is required from any person.
NSW Police supports this recommendation. 794
8.6.5. Taking further DNA samples from people already on the database
It is NSW Police policy to take a fresh DNA sample each time a suspect is going to be prosecuted, even if the
suspect’s DNA profile is already on the database. There are two reasons for this – first, to confirm the suspect’s
DNA profile is in fact the same as the profile obtained from the crime scene; and second, so the evidence will be
admissible in court. Evidence of an accused’s criminal record is generally not admissible, and taking a fresh sample
overcomes the need to disclose that the accused’s profile is already on the DNA database. Given that it may take
months or even years for crime scene exhibits to be examined, cold links may not be made until a long time after the
offence was committed. By then, the suspect may already be serving a custodial sentence for another offence. In
these circumstances, police generally take the suspect from the correctional centre to the nearest police station to
conduct the forensic procedure. 795
Taking further samples from people already on the database creates a significant amount of work for NSW Police,
and for DAL. We do not know what proportion of the 7,000 or so DNA samples taken from suspects during the review
period were taken to confirm a cold link, rather than for any investigative value. But in our small audit of samples
analysed by DAL, we found that 20 out of 140 DNA samples taken from suspects (or 14 per cent) were taken to
confirm a cold link. 796
In the videos we watched, some suspects asked why police were taking another sample, when the suspect’s DNA
profile was already on the database. Some officers were not able to give adequate responses. For example, one
officer said, “It has to be done each time. There’s DNA leftover at the scene of the crime.” 797 Another told the suspect
the new sample would be used only in relation to the offence being investigated, although DNA profiles taken from
suspects are actually added to the database. One magistrate we surveyed also questioned the need for police to
apply for orders to obtain further samples:
Police are asking for orders to duplicate evidence they already have: eg they have DNA from crime scene and
on gaol file. Why 798
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000