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

10.2.2. Adequacy of systems for handling DNA exhibits
The processes outlined above usually work to ensure the location and movement of DNA samples is clearly
documented. However, it depends on individual police officers keeping proper records of exhibit movements.
As the following case study illustrates, this does not always occur.
Case Study 65
Police in a country town took a DNA sample from a young suspect in relation to a sexual assault investigation.
As the suspect was a child, the sample was authorised by court order. It was recorded in the DNA register and
the exhibit book at the police station, and was put in a cardboard box in the exhibit room. Police arranged for
the courier to collect the sample the following day, for transportation to DAL.
It appears the DNA sample was taken out and left on a counter in the exhibit room, ready for collection by
the courier. But when the courier arrived to collect the sample, it could not be found. The police station was
searched but the DNA sample could not be located anywhere.
After discussing the situation with an officer from the DPP, the investigating police officer applied for a court
order authorising a further sample to be taken from the suspect under section 27 of the Act, which provides
that a forensic procedure can be repeated if the forensic material originally obtained is “insufficient for analysis
or has been contaminated.” The court rejected the police officer’s application to take the second sample, on
the basis that the first sample was neither insufficient nor contaminated, but had simply been lost.
The suspect ultimately pleaded guilty to the sexual assault, without police relying on the DNA evidence.
Section 27 has since been amended, so police can apply for a forensic procedure to be repeated if the
forensic material originally taken “has been lost or is for any other reason not available for analysis.” However,
this is subject to the requirement that carrying out the forensic procedure a second time is justified in all the
circumstances. 910
NSW Police investigated the matter as a complaint as not only had the suspect’s DNA sample been lost, but
it appeared that a police officer may have lied in his affidavit in support of the application to take a second
sample. The officer stated that the first sample “was entered into the Exh. [exhibit] Book and placed in a
Fail Safe Delivery bag and forwarded to DAL,” but that “there is no evidence of that sample arriving at DAL,”
implying the sample had actually been collected by the courier and had been lost at some point between
leaving the police station and arriving at DAL. When questioned about his capacity to give such a definitive
answer, despite the lack of evidence of the exhibit ever being collected for transportation to DAL, the officer
said that at the time he believed the sample had been collected. He attributed the confusion to the fact that
another officer had written the date in the column in the exhibit book headed “to DAL.” The officer maintained
that “it was very ambiguous as to what had occurred… according to the exhibit book, it is still on hand at the
police station [but] according to the bag register it’s been forwarded.” Ultimately, no adverse findings were
made against the officer. However, the police officer who investigated the complaint did identify a number of
systems failures:
• DNA samples were kept in a box in the exhibit room as opposed to a lockable refrigerator, as required
• the supervising sergeant did not take possession of the exhibit and ensure that the exhibit was stored in the
exhibit room
• control and accountability of exhibit keys was ‘virtually non-existent’
• the supervisor’s keys were all on the one key ring, which meant that any officers requiring the keys to the
firearm room also had the keys to the exhibit room
• checking of exhibits on a regular basis did not occur, and
• recording of TNT Failsafe security bags was not recorded on DNA Forensic Bag Register or in the exhibit
book for cross referencing.
The local area command developed new SOPs for the handling of DNA exhibits. It also bought a lockable
refrigerator and implemented better security arrangements, in particular by limiting access to keys to a small
number of supervisory staff. 911
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 183