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

police appear to have treated victims of crime as volunteers for the purposes of the Act. For example, the following
people were recorded on COPS as being ‘volunteers’:
• the manager of a car wash who was held up and had the weekend’s banking stolen 891
• a woman who was sexually assaulted while staying at a friend’s house 892
• a man who was stabbed in the shoulder and abdomen during a fight 893
• a woman who was assaulted by her partner’s ex girlfriend 894
• a man who was assaulted by an acquaintance who had come to his house to return some property, 895 and
• a middle aged woman who was assaulted by a young woman in a café. 896
It appears that some police officers are not clear about how the forensic procedures legislation applies to victims.
This may be because the policies NSW Police has developed for conducting forensic procedures on victims largely
mirror those developed for volunteers.
In light of these findings, NSW Police may wish to consider SOPs which are specific to victims. Our view is that those
SOPs need not necessarily reflect the processes in the Act, especially as regards to formal consent and information
requirements. They should be as streamlined as possible, so that victims are dealt with sensitively and appropriately.
In our draft report, we recommended that “NSW Police consider amending SOPs for forensic procedures conducted
on victims in particular as concerns consent and information requirements.” NSW Police did not support our
recommendation, as the police SOPs are based on the Attorney General’s Department’s Victim’s Protocol. 897
It appears NSW Police and the Attorney General’s Department need to work together to resolve this issue.
Recommendation 55
The Attorney General’s Department and NSW Police consider whether the current protocol for conducting
forensic procedures on victims is appropriate, particularly in relation to consent and information requirements,
and make changes to the Victim’s Protocol and NSW Police SOPs as necessary.
9.5. Children under the age of 10
Section 111 of the Act provides, “This Act does not authorise the carrying out of a forensic procedure on a person
who is under 10 years of age.”
While the Act does not authorise the carrying out of forensic procedures on children under 10, it does not prohibit it
either. It would seem that ‘forensic procedures’ carried out on children under the age of 10 are not covered by the Act.
Indeed, the legislative heading for section 111 is, “Act does not apply to persons under 10.”
Despite this provision, we found 16 instances of police conducting forensic procedures on children under the age
of 10.
Case Study 63
A woman was found strangled in her car. During the investigation, DNA was located on the inside of the car,
on some double sided tape which had been stuck to the door handle. The deceased’s 9 year old nephew
said that he had put the tape there. To eliminate the nephew’s DNA from the investigation, police took a DNA
sample by buccal swab from the child. This sample was used to confirm that the only DNA on the tape was
from the nephew. This aided the police investigation by eliminating one line of inquiry and ensuring that the
DNA evidence on the tape did not come from anyone else, such as the offender. 898
Almost all of the forensic procedures conducted on children under the age of 10 were DNA samples taken from
babies or toddlers, where police were investigating sexual assaults on young girls which had resulted in pregnancies.
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000