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

Many police officers argued that suspects who are already on the database should not have to provide further DNA
samples. Some pointed to the inconvenience this caused for police and for the suspect:
Say you have a suspect who has left DNA at eight different break and enter crime scenes. He is a suspect for
one of them, the sample is taken and matched against the crime scene being investigated, and there may be
one or more cold links to other crime scenes. But then two weeks later DAL puts another crime scene sample
on the database and you get another cold link, police have to possibly arrest the suspect and take another
sample. And then a month after that you get another one. And 6 months later another. You keep getting cold
hits into the future, why do you have to keep taking samples 799
The Police Association of NSW acknowledged the legal reasons for taking further samples, but argued that it should
not be necessary:
Once an initial DNA sample from a suspect is properly taken and recorded, there should be no need to
continually take additional samples each time an additional offence is detected in the future. This seems to
be a substantial waste of time and resources. Even suspects have complained to police officers when they
have already had more than one DNA sample taken previously and ask why an additional sample needs to be
taken again. 800
Others argued that taking further samples from suspects only contributes to the already sizeable workload of DAL.
While person samples are much easier to process than crime scene samples, time and resources still have to be
spent on taking the sample, transporting it to DAL, analysing it, communicating analysis results and monitoring it for
possible destruction. 801 Another problem with the current practice is that, because suspect samples cannot currently
be matched against the suspects index, duplicate profiles are constantly being added to the database.
We understand that FPIT has proposed that no further samples be taken from suspects once they have provided
DNA samples on two separate occasions, provided that if a person under arrest claims to be on the DNA database
already, police verify the person’s identity on the spot through Livescan fingerprinting, and check that the person’s
profile is actually on the DNA database. FPIT argued that in criminal trials, there is no need to inform the court as to
how police obtained the accused’s DNA sample, and that if it became an issue, the judge could hear the evidence
on voir dire.
While this model appears to have some merit, we remain concerned about whether such a system would be
adequate. We are aware of at least two matters where police charged the wrong person because of errors in police
records of forensic procedures:
• In 2004, police arrested and charged a man for shoplifting, self administering a prohibited drug and a break,
enter and steal offence, based on a link between a crime scene and a profile already on the DNA database.
However, the wrong person was charged with the offences, as the forensic procedure was on the wrong
person’s records on the police computer system. By the time the mistake was discovered, the person had
been convicted, and was serving a custodial sentence. 802
• In 2005, police arrested and charged a man with a break and enter offence, based on a link between a crime
scene and a profile already on the DNA database. The suspect was denied bail and spent three weeks in
custody before DAL notified police that the profile obtained from the suspect on arrest did not match the profile
obtained from the crime scene. The matter was withdrawn, and the suspect was released the following day. 803
In both cases, the error only came to light when DAL analysed the confirmation sample and found that the
suspect’s DNA profile was not the same as the profile obtained from the crime scene. These matters are of serious
concern, and clearly should be taken into account before any decision is taken to abandon repeat sampling to
confirm cold links.
Also relevant to this debate is the fact that, through our audits, we identified a number of discrepancies in the
information held on the DNA database. Of the 153 DNA samples we followed up with DAL, the name recorded on
the DNA database was an alias for nine profiles, and was spelled differently from the name recorded by police for
a further six profiles. In most cases DAL relied on the handwritten information provided with the DNA sample, and
had no way of verifying whether the information was actually correct. The accuracy of the information on the DNA
database is discussed in further detail at 11.1.
While the FPIT proposal has merit, and we agree that it is inconvenient and possibly inefficient to take repeat samples,
the possible criminal justice issues raised require very careful consideration. We note the Attorney General’s working
group is considering the Findlay report’s recommendations and that this group seems well placed to consider this
matter and make suitable recommendations. In the meantime, the safer course from a criminal justice perspective is
to continue to require samples on each occasion.
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 151