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

We also note that children under the age of 10 cannot be convicted of an offence, being conclusively presumed to
be below the age of criminal responsibility, so there would be no evidentiary value in police conducting a forensic
procedure on a child this young. 900 However, if a young child had come to the adverse attention of police, then taking
a DNA sample for intelligence purposes may be of interest to police. The young child’s profile could not be put on the
DNA database, but could be analysed within a particular case.
While we are of the view it is highly unlikely this would occur, given section 111 of the Act, in our view there would
be merit in specifying that conducting a forensic procedure on a suspect or person of interest under the age of 10
is prohibited.
Recommendation 56
The Crimes (Forensic Procedures) Act 2000 be amended to specifically provide the following:
a. the taking of a DNA sample from a child under the age of 10 be prohibited except when a court order
authorises the sample having given due consideration to the age of the child and where:
i. the paternity of the child is of evidentiary value in an indictable or prescribed offence; or
ii. the DNA is required for exclusionary purposes.
b. the only permitted matching for a DNA profile obtained from a DNA sample from a child under the age of
10 is within case matching, and that the profile not be placed on any index of the DNA database.
This recommendation is supported by NSW Police. 901
Endnotes
833 Crimes (Forensic Procedures) Act 2000 s 3(1).
834 Law Enforcement (Powers and Responsibilities) Act 2002 s 133 and 136.
835 Crimes (Forensic Procedures) Act 2000 s 3.
836 The Crimes (Forensic Procedures) Act 2000 does not apply to the taking of photographs under Part 10 of the Crimes Act 1900: Crimes
(Forensic Procedures) Act 2000 s 112.
837 “Taking photographs of suspects for use in identification procedures”, NSW Police Law Notes (12 of 2002).
838 “Photographing of suspects”, advice on NSW Police intranet dated 25 June 2004 and accessed on 8 September 2005.
839 Confidential interview with police officer, 3 August 2004.
840 Confidential LAC survey response.
841 Confidential LAC survey response.
842 Confidential LAC survey response.
843 Responses to Ombudsman LAC survey.
844 Complaint 11.
845 Complaint 12.
846 See Williams v R (1986) 161 CLR 278 and R v Dungay [2001] NSWCCA 443. See also former section 352 of the Crimes Act 1900, which
has been replaced by section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002.
847 Law Enforcement (Powers and Responsibilities) Act 2002 s 99.
848 See DPP v Nicholls [2001] NSWSC 523; and R v Daley [2001] NSWSC 2111 at paragraph 153 (Simpson J). These discuss the equivalent
provisions of the Crimes Act 1900, which preceded Part 10 of the Law Enforcement (Powers and Responsibilities) Act 2002.
849 NSW Police response to Ombudsman draft report, 2 June 2006.
850 Crimes (Forensic Procedures) Act 2000 s 3(1). We note that police in some other jurisdictions can conduct cavity searches, under the
equivalent forensic procedures legislation. See Police Powers and Responsibilities Act 2000 (Qld) s 318ZA and schedule 4; Police
Administration Act (NT) s 4 and 145; Misuse of Drugs Act (NT) s 35A; and Forensic Procedures Act 2000 (Tas) s 3.
178
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000