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

8.10.3. Photographs
Section 59 of the Act provides that where a forensic procedure involves the taking of a photograph of a part of the
suspect’s body, police must ensure that a copy of the photograph is made available to the suspect. The FPIT site
on the NSW Police intranet has instructions on how to provide copies of photographs to suspects:
A copy of any photograph taken of a suspect’s body as a forensic procedure e.g. a photograph of the face of
a suspect to be shown to witnesses or a photograph of a wound or tattoo on a suspect’s body, is required to
be provided to the suspect as a matter of course. Photographs can either be sent to the suspect’s last known
address or kept for collection at the place where the forensic procedure was carried out.
Officers are instructed to ensure they make at least three copies of any photos – one for the investigator, one for the
brief of evidence and one for the suspect. 828
During our audit of local area commands, we found that commands generally only provide suspects with a copy of
forensic procedure photographs if the matter goes to court, and they are included in the brief of evidence. We found
little evidence of commands complying with the section 59 requirements.
In response to our survey, commands generally showed greater awareness of the need to share photographs than to
share DNA or other forensic material. However, two commands were unaware of the SOPs or legislative requirements
for sharing photographs. A further 12 commands considered that providing copies of photos in the brief of evidence
met the legislative requirements. Photos are taken on a digital camera at six commands and are printed and provided
to the suspect on the spot. Some also mentioned they asked the suspect to sign a receipt for the digital photos, and
put the receipt on the brief of evidence. Another two commands indicated that they still used film and that once the
suspect was advised of the time required to develop the photos, they often declined the offer of receiving copies.
A further two commands indicated that they also used film but they had systems in place to notify the suspect once
the photos became available.
In our view, the provision of photographs is unnecessary unless they are to be used in a brief of evidence. We note
that providing photographs with the brief of evidence will not meet the section 59 requirements in matters which do
not go to court, or where it takes more than 90 days to provide the brief of evidence. To overcome this problem, we
feel that consideration should be given to amending section 59 so that it is met by NSW Police including photographs
as part of the brief of evidence or providing copies in response to a written request from the person undergoing the
forensic procedure.
8.10.4. Providing analysis results to suspects
Section 60 provides that if material taken from a suspect is analysed in the investigation of an offence, the
investigating police officer must ensure a copy of the analysis result is made available to the suspect. Analysis results
must be made available within 90 days. This is not required where providing a copy of the results would prejudice the
investigation. However, the result must be made available “a reasonable time before evidence of it is adduced in any
prosecution of the suspect for the offence.” Police can send results to the suspect or their legal practitioner, or if there
is no known address, may make it available for collection at the police station where the investigator was based at the
time the procedure was carried out. 829
It is not clear from the Act exactly what “results of the analysis” means. As explained in chapter 10, laboratory staff
generally derive the person’s DNA profile within a few days of receiving the DNA sample, and upload it onto the
database. At this stage, the person’s profile and any cold links to other crime scenes would be available. However,
it may be some time before evidence from the relevant crime scene is examined and a DNA profile obtained for
comparison with the suspect’s DNA profile. Further, DNA analysis does not always give clear results. The results may
be open to interpretation and testing may be ongoing.
As with photographs, it appears that police officers generally only provide suspects with a copy of DNA analysis
results if the matter goes to court, and the results are included in the brief of evidence. Police do not inform suspects
of their DNA profile once it is derived, or of any links to crime scenes, unless they decide to prosecute the suspect
for the offence. We note that providing DNA analysis results with the brief of evidence will not meet the requirements
of the Act where links to crime scenes do not ultimately go to court, or where it takes more than 90 days from the
results becoming available to provide the brief of evidence. Our view is that there is little benefit in providing the
DNA profile, as this is merely a series of numbers (see 1.4.2). Only where the results are to be used in a criminal
justice proceeding does fairness require they be made available to suspects or volunteers. Police practice appears
consistent with fair practice in this matter, and we consider the Act should be amended so that results be provided
in these circumstances.
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000