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

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823 NSW Police response to Ombudsman draft report, 2 June 2006. 824 Crimes (Forensic Procedures) Act 2000 s 58 and 101. 825 Information obtained through Ombudsman review of COPS records. 826 Information obtained through Ombudsman review of COPS records. 827 NSW Police Intranet, FPIT page on “Sharing of forensic material” accessed 18 January 2006. 828 FPIT FAQ page on the NSW Police Intranet accessed 24 June 2005. 829 Crimes (Forensic Procedures) Act 2000 s 60 and 101. 830 Crimes (Forensic Procedures) Act 2000 s 76(4). 831 NSW Police response to Ombudsman draft report, 2 June 2006. 832 Attorney General’s Department response to Ombudsman draft report, 5 May 2006. 166 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
Chapter 9. Procedures outside the Act Police have powers other than those contained in the Crimes (Forensic Procedures) Act which enable them to conduct various forensic procedures. For example, they may conduct breath analysis on drivers, or take identification photographs of people in custody for an offence. The Act specifically states that it does not limit or exclude the operation of other laws relating to the carrying out of forensic procedures. Through our monitoring activities, we found that there is some confusion about whether certain types of procedures are ‘forensic procedures’ for the purposes of the Crimes (Forensic Procedures) Act. Further, some officers have conducted certain types of procedures ostensibly under the authority of the Act when in fact there is no law authorising those types of procedures. This chapter examines the relationship between the Crimes (Forensic Procedures) Act and other powers police have to conduct ‘forensic procedures’. 9.1. Other procedures – prints, photos, urine samples, medical examinations 9.1.1. Fingerprints The Act states that a forensic procedure includes “the taking of a hand print, finger print, foot print or toe print.” However, it does not include prints taken for the sole purpose of establishing the identity of the person from whom they are taken. 833 Police routinely take fingerprints from suspects at the time of charging, under Part 10 of the Law Enforcement (Powers and Responsibilities) Act (formerly under section 353A(3) of the Crimes Act). A police officer may take “all particulars that are necessary to identify a person who is in lawful custody for any offence.” This may include the person’s photograph, fingerprints and palm prints. Where a child under the age of 14 is in custody for an offence, police may apply to a court for an order authorising police to take the child’s fingerprints and palm prints, for the purpose of identifying the child. 834 9.1.2. Photographs Photographs as forensic procedures involve taking a photograph of a part of the body. These photographs can be taken under the Act as either intimate or non-intimate forensic procedures. Photographs taken as an intimate forensic procedure will include a photograph of the genital or anal area or the buttocks of a person, or the breasts of a female or a transgender person who identifies as a female. A non-intimate forensic procedure photograph would be a photo of any other part of the body. 835 Police routinely photograph suspects at the time of charging, under Part 10 of the Law Enforcement (Powers and Responsibilities) Act (formerly under section 353A(3) of the Crimes Act). 836 A photograph may be taken under this provision to show to a witness, if an identification parade cannot be held (for example, because the suspect has declined to participate, or has altered his or her appearance). We understand that NSW Police initially advised officers that all identification photographs should be taken under the Crimes (Forensic Procedures) Act: “A photograph for a photograph identification is a photograph of a part of the body, namely the head and shoulders. Accordingly, it must be treated as a forensic procedure under the Act.” 837 However, after obtaining legal advice on this issue, the current NSW Police position is that photographs can be taken under the provisions of the Law Enforcement (Powers and Responsibilities) Act, provided the suspect is in custody for an offence, and the photograph is deemed necessary for the identification of the person. Officers need only proceed under the Crimes (Forensic Procedures) Act if the provisions of the Law Enforcement (Powers and Responsibilities) Act do not apply, either because the photograph is not for identification purposes, or the suspect is not in custody for an offence. 838 However, we found there is still considerable confusion among police officers about when photographs can be taken under the provisions of the Law Enforcement (Powers and Responsibilities) Act, and when they must be taken under the Crimes (Forensic Procedures) Act. For example, one police officer we interviewed commented: NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 167
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DNA sampling and other forensic pro
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October 2006 The Honourable Bob Deb
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October 2006 Commissioner Ken Moron
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Contents Executive summary ........
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Chapter 17. Conclusion ............
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to children, incapable persons and
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The distinction between suspects an
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inadmissible, the suspect is acquit
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• establishing ‘best practice
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12 13 14 15 16 17 18 19 20 Recommen
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Recommendation Paragraph number 29
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46 47 48 49 50 51 52 53 54 55 Recom
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68 69 70 71 72 73 74 75 76 77 78 Re
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89 Recommendation Staff in all labo
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xx NSW Ombudsman DNA sampling and o
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Part 7 of the Crimes (Forensic Proc
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means that a significant number of
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The aim of the audit was to observe
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We followed up 180 of the 371 foren
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Chapter 2. Key provisions of the Ac
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(ii) the breasts of a female or a t
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scraping or lifting by tape from th
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• Some people have the right to h
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Chapter 3. DNA sampling in Australi
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• Security issues. There are conc
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3.3.2. Australian Capital Territory
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3.3.6. Queensland Forensic procedur
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analysis must be relevant to the of
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The FSS is still the largest forens
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The Garda Commissioner (the Irish e
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of operation, 50 per cent of states
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86 For example, NSW Legislative Ass
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150 Police Powers and Responsibilit
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226 DNA Identification Act 1998 (Ca
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Chapter 4. Implementation of the Ac
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Separate training courses are run f
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4.2.1. How easy is it for police of
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Given the widespread reluctance to
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Recommendation 03 NSW Police ensure
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NSW Police has long term plans to r
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The Audit Group has advised that it
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the carrying out of these forensic
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322 Crimes (Forensic Procedures) Ac
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We asked NSW Police why there is su
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Table 2 shows the rate at which for
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Figure 5 shows that, of the forensi
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For procedures conducted on child s
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These figures show that the number
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cent result in a warm link and 13 p
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355 40 out of 450 child suspects: C
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In our 2004 report on the DNA sampl
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6.1.3. Does it matter whether the p
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The distinction between suspects an
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He is not here yet. [The form then
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Recommendation 15 Police consider i
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393 Ombudsman audit of local area c
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Chapter 7. Authority to conduct a f
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Case Study 10 An unknown offender b
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In any event, not all people of int
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intellectual functioning, someone e
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Case Study 15 An elderly woman was
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Even where there is direct evidence
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interest in upholding the physical
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of consent; and secondly, it sugges
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7.3. Suspects: proceeding by order
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second because the orders we were a
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The Police Association of NSW reque
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Case Study 28 A homeless man died a
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grounds to believe the suspect comm
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concern that, in any Act where no s
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forensic procedures by consent, pol
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Case Study 37 Several young men sto
Page 146 and 147: 7.4.11. Appealing against court ord
Page 148 and 149: Case Study 43 A 25 year old woman w
Page 150 and 151: involved in the investigation of th
Page 152 and 153: use a DNA profile from a volunteer
Page 154 and 155: Several targeted screens have been
Page 156 and 157: Recommendation 29 The Minister regu
Page 158 and 159: 128 482 Intellectual Disability Rig
Page 160 and 161: 569 Law Enforcement (Powers and Res
Page 162 and 163: 657 Crimes (Forensic Procedures) Ac
Page 164 and 165: Chapter 8. Conducting a forensic pr
Page 166 and 167: The availability of persons is some
Page 168 and 169: Some metropolitan commands suggeste
Page 170 and 171: conducting forensic procedures (tak
Page 172 and 173: Section 57 of the Act provides that
Page 174 and 175: 8.5.7. Recording a forensic procedu
Page 176 and 177: j. The testing officer asks the sus
Page 178 and 179: Case Study 52 Police took a hair sa
Page 180 and 181: Recommendation 38 When police offic
Page 182 and 183: Recommendation 40 NSW Police retain
Page 184 and 185: It is unclear whether this directiv
Page 186 and 187: Generally, police provided adequate
Page 188 and 189: Recommendation 45 NSW Police ensure
Page 190 and 191: 8.10.3. Photographs Section 59 of t
Page 192 and 193: Recommendation 48 The Crimes (Foren
Page 194 and 195: 746 Since the Act came into force,
Page 198 and 199: Sometimes it’s not clear whether
Page 200 and 201: This recommendation is supported by
Page 202 and 203: test container and the man’s t-sh
Page 204 and 205: considerations. Alternatively, the
Page 206 and 207: police appear to have treated victi
Page 208 and 209: We also note that children under th
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Page 212 and 213: the initial agreement between NSW P
Page 214 and 215: 10.3. Receipt of DNA samples DNA sa
Page 216 and 217: Table 04: Person samples rejected b
Page 218 and 219: 10.3.6. Samples unconnected to a ca
Page 220 and 221: 10.4.1. Suspect-suspect matching Su
Page 222 and 223: Recommendation 64 DAL deletes all p
Page 224 and 225: Case Study 68 Four young people lef
Page 226 and 227: profiles put on the database, but c
Page 228 and 229: NSW Health supports recommendation
Page 230 and 231: 10.6.5.2. Volunteers For each of th
Page 232 and 233: 10.6.8. DNA analysis in relation to
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Page 238 and 239: Figure 13 indicates there are a lar
Page 240 and 241: turnaround times (in particular, wh
Page 242 and 243: In New South Wales, police or the D
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• representatives from human righ
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large batch of serious indictable o
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965 Discussion at meeting with DAL,
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1050 FSG presentation to DAL, attac
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DAL confirmed that its records were
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Recommendation 81 An audit process
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Endnotes 1070 Where police records
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Case Study 76 A man was arrested an
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it has been there, whether it has d
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Case Study 77 Police investigating
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Recommendation 89 Staff in all labo
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We realise this is a sensitive issu
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1130 Legislative Assembly Hansard,
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In making this decision, the court
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evidence. Police would still, of co
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If two samples match, it is possibl
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Similar issues were considered in R
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Where the defence wishes to challen
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These results must be interpreted w
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1179 Letter from DPP, 24 March 2005
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Chapter 14. Destruction of forensic
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14.2.2. Identifying DNA profiles wh
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Recommendation 94 When DAL receives
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Recommendation 96 DAL delete all pr
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Recommendation 98 Section 87 of the
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14.3. Retaining genetic material fr
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1255 Based on DAL’s advice in its
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• a complaint about the incorrect
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The Ombudsman found that the police
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• The man was not cautioned prior
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15.3.5. Failure to maintain proper
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• the supervising sergeant did no
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Case Study 91 In 2004, a lorry driv
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16.2. Possible problems with DNA Be
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1319 Letter from Homicide Squad dat
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Appendix. Implementation of recomme
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at staff development days. In addit
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Term Definition / explanation Conta
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Term Definition / explanation Incap
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Term Definition / explanation Victi
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