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

Blood sample:
Before a blood sample is obtained from a suspect, the suspect should be asked whether he/she would like
some of the blood to be returned to him/her to enable him/her to have the DNA independently analysed and
profiled. If the suspect answers ‘yes’, an FTA card should be obtained from another Blood Sampling Kit.
After the suspect’s DNA material has been transferred onto the FTA card for analysis by the Division of Analytical
Laboratories, further blood should be transferred onto the FTA card that was obtained from the second Blood
Sampling Kit. This second card should then be placed in the envelope from which it was originally obtained
and the envelope sealed with one of the spare barcodes from the first kit before being handed to the suspect.
There is no need to obtain a receipt from the suspect unless the forensic procedure is not being videotaped.
The second kit should be sealed and sent the Division of Analytical Laboratories for destruction. The only items
that will have been used from this second kit are the FTA card and the envelope.
We assessed the sharing of forensic material taken by buccal swab or hair sample though our video audit. In
many cases, police followed the procedures outlined above. 825 However, for a significant number of buccal swab
procedures, police put the swab in the tamper-evident bag, instead of giving it back to the suspect. 826 When the
legislation was first implemented, police were instructed to place the swab in the tamper-evident bag, and some of
the older sampling kits still contain these instructions.
We did not view any procedure where a suspect wished to have additional hairs removed for independent analysis.
Many suspects found the offer quite offensive, as police officers were offering to pull out even more hairs, for no
apparent reason. In a number of the buccal swab videos, the suspect stated that he or she did not wish to retain the
swab, and in these cases the swab was often returned to the tamper evident bag and sent to the laboratory. Our audit
did not include any blood samples so we were unable to comment on the process for sharing this sample type.
We also reviewed procedures for sharing samples with suspects in our survey of local area commands. Responses
varied greatly. Many commands advised that they complied with the SOPs, or at least indicated they were aware of
the sharing requirements. However, eight commands responded that they did not have SOPs in place to manage
sharing forensic material, or had no record of samples being shared. An additional four commands advised they
share samples with suspects only if the suspect requests this in writing, and one command had “never heard of it.”
It is clear that a significant number of commands are not aware of the requirement that forensic material be shared
with suspects.
Police officers who were aware of the requirement that DNA samples be shared with suspects were universally critical
of it. We agree that application of section 58 to a person’s own DNA sample is ill conceived. A person’s DNA is with
them all the time and a sample can be taken for independent analysis at any time. There is no difficulty with the police
policy of returning the used buccal swab to the person who provided the sample if requested, but the apparent
requirement that a police officer offer to take a further hair sample from a suspect who has just had between 15 and
20 hairs pulled out is unnecessary and inappropriate.
8.10.2. Other forensic material
Unlike DNA samples, forensic procedures like nail scrapings, gun shot residue tests and swabs of hands or genitals
cannot be replicated at any time. The section 58 sharing requirement means that if enough forensic material is taken,
part of it must be made available to the suspect for independent analysis.
In these circumstances, it is sometimes unlikely there would be sufficient material to share with the suspect, at least
not at the police station at the time the procedure is carried out. In addition, given the evidence cannot be replicated,
an officer is unlikely to share material in circumstances where the officer is not absolutely certain material collected for
analysis is entirely sufficient. It is NSW Police policy to advise suspects that if they wish to be provided with a portion
of any material remaining after analysis, they should put this request in writing to the investigating police officer. The
investigating police officer is responsible for ensuring any remaining material is made available to the suspect within
90 days of receiving the request. 827
While this approach is not consistent with the legal requirements of section 58, it appears a sensible compromise
between the suspect’s rights and the investigation’s integrity. However, we found little evidence of commands
providing this advice to suspects.
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 159