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

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10.3. Receipt of DNA samples DNA samples submitted to DAL for analysis fall into two categories, person samples and crime scene samples. Person samples are taken directly from the person through a forensic procedure. The biological material will be a saliva or blood sample on an FTA card, or a sample of hair. Crime scene samples may be swabs of biological material, like blood, or may be any type of item obtained from a crime scene, and include clothes, hats, bed sheets, cigarette butts, bottles, weapons and housebreaking implements. 10.3.1. Receipt of person samples Person samples are delivered to DAL either directly by NSW Police or by TNT Failsafe Couriers. Each person sample is entered onto the DNA Laboratory Information Management System (LIMS) and given a unique “A” number. Person samples taken in relation to the investigation of a particular offence should be given an “FS” case number which links the sample to the relevant crime scene evidence. All items submitted to the laboratory are received in accordance with the procedures detailed in DAL’s “Forensic Biology Procedures Manual.” Person samples are checked for sample integrity, which involves a review of the sample bag and the tamper evident seals, and confirmation that the correct documentation is present. If the sample information form is incomplete or appears to be incorrect, DAL seeks clarification from FPIT before proceeding. If the sample is acceptable, barcodes are printed. For samples taken by buccal swab, barcodes are placed on the yellow envelope containing the FTA paper, the protective plastic sheet and the sample information form. For blood samples and hair samples, barcodes are placed on the envelope containing the FTA paper or hair, the protective plastic sheet, the sample information form and the DNA submission sheet. Any samples which do not meet the sample integrity criteria are marked as rejected on LIMS. They are, in the first instance, returned to FPIT, along with the reasons for the sample being rejected. 184 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
10.3.2. How many person samples have been received We asked DAL to provide the number of samples taken from suspects and volunteers, received at DAL during the review period. Figure 10. DNA samples taken from suspects and volunteers received at DAL during review period 350 300 Volunteers Suspects No. of DNA samples received at DAL by month 250 200 150 100 50 0 Jan 2001 July Jan 2002 July Jan 2003 July Jan 2004 July Source: DAL response to Ombudsman investigation notice, 24 February 2005. Volunteer samples are measured from the time the relevant legislative provisions commenced, June 2003. Figure 10 shows that the number of samples taken from suspects each month has increased since the legislation commenced, but appears to have stabilised over the last 12 months of the review period, at between 200 and 300 samples a month. The number of samples taken from volunteers each month is much lower than the number of samples taken from suspects, and has remained stable at between 14 and 32 samples a month. 10.3.3. Date of receipt As discussed above, the date of receipt recorded by DAL refers to the date the sample is entered onto DAL’s case management system, rather than the date the sample is actually received by DAL. However, DAL has also advised that all exhibits are barcoded on receipt, and that “since the barcodes are scanned the date of receipt is recorded as are the dates of all movements of the exhibits.” 912 It is not clear why, if samples are barcoded on receipt, the actual date of receipt is not being recorded electronically. It may be because DAL checks every item for sample integrity, and ensures the correct documentation is present, before the sample is barcoded. If this is not done straight away, there will be a delay between the sample being received and it being entered onto the system at DAL. 10.3.4. Rejection of person samples by DAL We sought information about how many DNA samples DAL rejected during the review period, and for what reasons. DAL advised that it could provide electronic records of the samples it had rejected since 1 June 2003, but that records would have to be accessed manually for the period before this. We decided that for the purposes of our review it would be sufficient to examine the electronic records, which covered the last 17 months of the review period. During this period, DAL rejected 123 DNA samples. In most cases this was because there was insufficient DNA on the FTA card. NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 185
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DNA sampling and other forensic pro
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October 2006 The Honourable Bob Deb
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October 2006 Commissioner Ken Moron
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Contents Executive summary ........
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Chapter 17. Conclusion ............
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to children, incapable persons and
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The distinction between suspects an
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inadmissible, the suspect is acquit
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• establishing ‘best practice
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12 13 14 15 16 17 18 19 20 Recommen
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Recommendation Paragraph number 29
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46 47 48 49 50 51 52 53 54 55 Recom
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68 69 70 71 72 73 74 75 76 77 78 Re
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89 Recommendation Staff in all labo
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xx NSW Ombudsman DNA sampling and o
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Part 7 of the Crimes (Forensic Proc
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means that a significant number of
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The aim of the audit was to observe
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We followed up 180 of the 371 foren
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Chapter 2. Key provisions of the Ac
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(ii) the breasts of a female or a t
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scraping or lifting by tape from th
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• Some people have the right to h
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Chapter 3. DNA sampling in Australi
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• Security issues. There are conc
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3.3.2. Australian Capital Territory
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3.3.6. Queensland Forensic procedur
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analysis must be relevant to the of
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The FSS is still the largest forens
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The Garda Commissioner (the Irish e
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of operation, 50 per cent of states
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86 For example, NSW Legislative Ass
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150 Police Powers and Responsibilit
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226 DNA Identification Act 1998 (Ca
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Chapter 4. Implementation of the Ac
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Separate training courses are run f
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4.2.1. How easy is it for police of
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Given the widespread reluctance to
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Recommendation 03 NSW Police ensure
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NSW Police has long term plans to r
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The Audit Group has advised that it
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the carrying out of these forensic
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322 Crimes (Forensic Procedures) Ac
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We asked NSW Police why there is su
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Table 2 shows the rate at which for
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Figure 5 shows that, of the forensi
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For procedures conducted on child s
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These figures show that the number
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cent result in a warm link and 13 p
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355 40 out of 450 child suspects: C
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In our 2004 report on the DNA sampl
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6.1.3. Does it matter whether the p
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The distinction between suspects an
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He is not here yet. [The form then
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Recommendation 15 Police consider i
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393 Ombudsman audit of local area c
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Chapter 7. Authority to conduct a f
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Case Study 10 An unknown offender b
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In any event, not all people of int
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intellectual functioning, someone e
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Case Study 15 An elderly woman was
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Even where there is direct evidence
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interest in upholding the physical
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of consent; and secondly, it sugges
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7.3. Suspects: proceeding by order
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second because the orders we were a
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The Police Association of NSW reque
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Case Study 28 A homeless man died a
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grounds to believe the suspect comm
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concern that, in any Act where no s
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forensic procedures by consent, pol
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Case Study 37 Several young men sto
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7.4.11. Appealing against court ord
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Case Study 43 A 25 year old woman w
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involved in the investigation of th
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use a DNA profile from a volunteer
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Several targeted screens have been
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Recommendation 29 The Minister regu
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128 482 Intellectual Disability Rig
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569 Law Enforcement (Powers and Res
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657 Crimes (Forensic Procedures) Ac
Page 164 and 165: Chapter 8. Conducting a forensic pr
Page 166 and 167: The availability of persons is some
Page 168 and 169: Some metropolitan commands suggeste
Page 170 and 171: conducting forensic procedures (tak
Page 172 and 173: Section 57 of the Act provides that
Page 174 and 175: 8.5.7. Recording a forensic procedu
Page 176 and 177: j. The testing officer asks the sus
Page 178 and 179: Case Study 52 Police took a hair sa
Page 180 and 181: Recommendation 38 When police offic
Page 182 and 183: Recommendation 40 NSW Police retain
Page 184 and 185: It is unclear whether this directiv
Page 186 and 187: Generally, police provided adequate
Page 188 and 189: Recommendation 45 NSW Police ensure
Page 190 and 191: 8.10.3. Photographs Section 59 of t
Page 192 and 193: Recommendation 48 The Crimes (Foren
Page 194 and 195: 746 Since the Act came into force,
Page 196 and 197: 823 NSW Police response to Ombudsma
Page 198 and 199: Sometimes it’s not clear whether
Page 200 and 201: This recommendation is supported by
Page 202 and 203: test container and the man’s t-sh
Page 204 and 205: considerations. Alternatively, the
Page 206 and 207: police appear to have treated victi
Page 208 and 209: We also note that children under th
Page 210 and 211: 888 Confidential LAC survey respons
Page 212 and 213: the initial agreement between NSW P
Page 216 and 217: Table 04: Person samples rejected b
Page 218 and 219: 10.3.6. Samples unconnected to a ca
Page 220 and 221: 10.4.1. Suspect-suspect matching Su
Page 222 and 223: Recommendation 64 DAL deletes all p
Page 224 and 225: Case Study 68 Four young people lef
Page 226 and 227: profiles put on the database, but c
Page 228 and 229: NSW Health supports recommendation
Page 230 and 231: 10.6.5.2. Volunteers For each of th
Page 232 and 233: 10.6.8. DNA analysis in relation to
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Page 236 and 237: admits being there then what is the
Page 238 and 239: Figure 13 indicates there are a lar
Page 240 and 241: turnaround times (in particular, wh
Page 242 and 243: In New South Wales, police or the D
Page 244 and 245: The funding will be used to create
Page 246 and 247: • representatives from human righ
Page 248 and 249: large batch of serious indictable o
Page 250 and 251: 965 Discussion at meeting with DAL,
Page 252 and 253: 1050 FSG presentation to DAL, attac
Page 254 and 255: DAL confirmed that its records were
Page 256 and 257: Recommendation 81 An audit process
Page 258 and 259: Case Study 75 An unknown offender b
Page 260 and 261: Endnotes 1070 Where police records
Page 262 and 263: Case Study 76 A man was arrested an
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it has been there, whether it has d
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Case Study 77 Police investigating
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Recommendation 89 Staff in all labo
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We realise this is a sensitive issu
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1130 Legislative Assembly Hansard,
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Case Study 84 An unknown offender b
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In making this decision, the court
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evidence. Police would still, of co
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If two samples match, it is possibl
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Similar issues were considered in R
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Where the defence wishes to challen
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These results must be interpreted w
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1179 Letter from DPP, 24 March 2005
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Chapter 14. Destruction of forensic
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14.2.2. Identifying DNA profiles wh
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Recommendation 94 When DAL receives
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Recommendation 96 DAL delete all pr
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Recommendation 98 Section 87 of the
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14.3. Retaining genetic material fr
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1255 Based on DAL’s advice in its
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• a complaint about the incorrect
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The Ombudsman found that the police
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• The man was not cautioned prior
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15.3.5. Failure to maintain proper
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• the supervising sergeant did no
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Case Study 91 In 2004, a lorry driv
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16.2. Possible problems with DNA Be
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1319 Letter from Homicide Squad dat
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Appendix. Implementation of recomme
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at staff development days. In addit
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Term Definition / explanation Conta
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Term Definition / explanation Incap
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Term Definition / explanation Victi
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