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

considerations. Alternatively, the Australian Law Reform Commission has made recommendations which are against
current police practice and require due consideration. A middle course may be for courts to be permitted in certain
circumstances to order that covert samples be collected by police officers.
Recommendation 53
NSW Police keep records of the number of covert DNA samples submitted for analysis, the reason why the
sample was taken covertly, and the results of the analysis, and includes these in its annual report.
Recommendation 54
Parliament consider regulating the collection of covert samples to include under what circumstances covert
samples can be collected, whether a court order should be required, and how profiles obtained from covert
samples should be managed on the New South Wales DNA database.
NSW Police is still considering recommendation 53, but supports recommendation 54. 879 The Minister for Police
commented that he could not endorse this recommendation until he had the opportunity to consult further with
operational police. Given the complexity of the legislation, the Minister did not support any further restrictions on
police collecting covert samples, and advised that admissibility of such evidence should be left to the courts. 880
In its submission, the Attorney General’s Department noted the courts’ view that any investigative conduct not
specifically mentioned in the Act is unregulated, and commented:
The current state of affairs provides little incentive for investigating police officers to work within the confines of
the Act, rather than arranging their investigation so that the Act does not apply at all. This issue may need to be
considered in due course. 881
9.3. Obtaining DNA from deceased persons
The Act does not specify the circumstances in which police can take a DNA sample from a deceased person.
However, it does specify that forensic material “taken from the body of a deceased person” may be supplied for the
purpose of DNA analysis, for inclusion on one of the indexes of the DNA database. 882 Profiles from deceased persons
can be put on the “volunteers (unlimited purposes)” index where the person’s identity is known, and on the “unknown
deceased persons” index where the person’s identity is not known. 883
Case Study 62
Police were reinvestigating a sexual assault and murder which had been committed almost 20 years before.
Police took covert DNA samples from a number of suspects – in one case by retrieving a glass the suspect
had used, in another by buying a baseball cap from the suspect. Police identified a fifth suspect, who had
recently been killed in a road accident. Police obtained a blood sample which had been taken during the
autopsy, and submitted it for DNA analysis. Relying on DNA evidence, the coroner concluded that the
deceased committed the murder. A relative of the deceased made a complaint about a number of aspects
of the police investigation.
In our oversight role, we indicated that police investigating the complaint should consider why covert samples
were taken from suspects when the Act provides the regulatory framework for taking DNA samples from
suspects. The police investigator advised that the strategies used by police in reinvestigating the murder
depended on the operation remaining covert in its early stages, and further, that all of the living suspects
were interstate, so samples could not be taken under the Act. The investigator concluded that “police were
entirely within their powers to take such samples and analyse those samples in a criminal investigation through
common law powers to seize exhibits.”
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000