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

Sometimes it’s not clear whether – or why – a procedure falls within the Act. Why do you have to go through the
Act to take a photo 839
In our survey of local area commands, some commands singled out the taking of photographs as one of their main
problems in implementing the Act:
A little confusion has arisen over the taking of photographs of suspects. Initially a full forensic procedure needed
to take place whereby the information sheet had to be read and consent given. Now it appears to be a complete
turnaround, whereby a photo during the charging process is sufficient. Even if the suspect is not charged, it
appears just taking a photograph is acceptable… [We would like] confirmation on photographing suspects,
confirmation on the difference between photographing for identification purposes as opposed to evidentiary
purposes. 840
The use of arrest photos is still very ambiguous. 841
Opinions can vary… for example the use of photographs… whether existing photos or new photos need to be
obtained. 842
Several police officers suggested that the Act should not deal with photographs at all, that they should not be treated
as forensic procedures. 843
During the review period, we received some complaints about photographs being taken in breach of the Act.
Case Study 59
Police interviewed an 18 year old man in relation to his involvement in an assault. Police asked him to
participate in an identification parade, but he declined. Police advised that he would be charged, and would
have his fingerprints and photographs taken. The young man’s legal representative left the room briefly, leaving
the young man alone with police. Police then informed the young man that they were not going to charge him,
but they went ahead and took his photograph.
When he returned, the man’s legal representative immediately asked why the photograph had been taken.
Police obtained legal advice about the matter and subsequently decided to destroy the photograph.
Police applied for a court order authorising a photograph to be taken under the Crimes (Forensic Procedures)
Act. The court made the order and police took the young man’s photograph again. 844
Case Study 60
A police officer arrested a boy at school in relation to an assault which had occurred some time previously.
The officer took him to the police station, and took his photograph, to show to people who witnessed the
assault. The matter went to court and the magistrate made serious adverse comments about the police
officer involved. In particular:
• The police officer arrested the young person at school to prevent him from seeking legal advice, knowing
that the young person was represented in the matter and that the photograph would not be taken if the
legal representative was present to advise the young person.
• The police officer acted unlawfully by arresting the young person for the purpose of taking a photograph,
rather than for the purpose of charging him with an offence.
• The police officer took the photograph on the basis of the young person’s consent, despite the fact that the
Act states that children cannot consent to forensic procedures. The police officer should not have taken the
photograph without obtaining a court order.
• The police officer separated the young person from his support person, his father, while the photograph
was being taken.
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000