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

This practice by NSW Police of marking person samples as ‘other’, especially in relation to elimination samples,
places police officers in jeopardy of acting in contravention to section 91(2) of the Act, which provides:
A person:
(a) whose conduct causes the supply of forensic material (other than permitted forensic material) to any person
for analysis for the purpose of deriving a DNA profile for inclusion on an index of the DNA database system,
and
(b) who intends or is reckless as to the supply of material of that kind,
is guilty of an offence. 918
In this respect, we note there is no ‘other’ index (see 10.4). Nor is the legal basis for storing ‘other’ profiles on a
separate index of the database entirely clear.
To ensure that officers’ actions are consistent with the Act, we support DAL’s suggestion that the category of ‘other’
be removed from the sampling information form.
Recommendation 58
NSW Police remove the option of ‘other’ on the sample information form.
NSW Police has already implemented recommendation 58.
In our draft report, we also recommended that the Attorney General consider including an additional index in the
regulations to allow DAL to continue its practice of segregating profiles that are used for in case matching purposes.
NSW Police indicated that it did not support this recommendation, commenting that “in case matching is being
removed from the volunteer’s documentation and the ‘limited purpose’ index will be used in all appropriate
instances.” 919 The Attorney General’s Department similarly commented that once other problems relating to the use
of volunteer profiles have been resolved, there would be no need for an additional index for ‘other’ samples. The
Attorney General’s Department also argued that adding a further index to the New South Wales DNA database would
further complicate and delay the implementation of the national DNA database. 920
As NSW Police has removed the option of ‘other’ from the sample information form, and DAL puts volunteer profiles
on the limited purposes index unless advised they have been provided for unlimited purposes, we agree there should
not be any need for an ‘other’ index. However, we note that DAL’s current practice is to use the ‘other’ index as a
holding index for samples arriving at the lab with incomplete or incorrect documentation. The improved processes
should reduce the number of profiles being put on the ‘other’ index, but we anticipate police will continue to send
some samples where the status of the person providing the sample will need to be clarified before DAL can put the
profile on the correct index of the database. In our view, the practice currently adopted by DAL is generally sound.
It does not add to the delay in processing samples, but ensures that profiles are not put onto the wrong index. We
disagree that recognising the ‘other’ index would complicate the implementation of the national DNA database, as
profiles on this index would not be uploaded onto the national database, unless they were transferred onto one of the
other New South Wales indexes first. Although we support DAL’s approach, there is currently no legal basis for DAL
dealing with profiles in this way. For this reason we remain of the view that the ‘other’ index should be given legislative
recognition.
Recommendation 59
The Attorney General consider including in the regulations provision for an additional index on the New South
Wales DNA database that allows DAL to continue its practice of holding profiles where the purpose for which
the sample was provided is not clear from the documentation accompanying the sample.
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 187