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

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10.4.1. Suspect-suspect matching Suspect profiles can be matched against the unsolved crime scenes, convicted offenders and unknown deceased persons indexes, but cannot be matched against profiles taken from other suspects, volunteers or missing persons. 931 DAL has advised that prohibiting the comparison of new suspect profiles with suspect profiles already on the database is a significant problem, for two reasons. First, it is not possible to state how many people have their DNA sample on the database. DAL advised that in February 2005, there were 6,066 suspect profiles on the database. 932 However, this figure includes samples from people who are represented more than once on the database, so the number of individual suspects who have their DNA on the database will actually be lower. Given that a new DNA sample is taken in relation to each cold link which results in prosecution, there are a significant number of suspects who have had their DNA profile put on the database more than once. Second, DAL cannot detect inconsistencies on the database in identifying information relating to suspects. The information DAL enters onto the database comes from the sample information form completed by the submitting police officer. If any of that information is incorrect – for example, if the suspect uses an alias, or the officer makes a transcription error – there is no way DAL can identify this. Being able to compare suspect samples against the suspect index would allow DAL to state how many suspects have their DNA profile on the database at any given time, and to identify multiple submissions from the same person where there are discrepancies in the identifying information. We note that the report on the independent review of Part 1D of the Crimes Act 1914 (Cth) made similar comments. It also pointed out that “it is not uncommon for persons who engage in criminal conduct to use different identities. Matching suspects to suspects will assist in determining whether persons with different identities are in fact the same person,” and recommended that suspect-suspect matching should be permitted. 933 NSW Police has also indicated that it would welcome a change in the legislation to allow suspect-suspect matching. 934 We agree with NSW Police and DAL that limited suspect-suspect matching of a type which would address the issues discussed above should be permitted in New South Wales. Recommendation 62 Part 11 of the Crimes (Forensic Procedures) Act 2000 be amended to permit the matching of DNA profiles within the suspects index. NSW Police and NSW Health both support this recommendation. 935 The Attorney General’s Department advised it did not object to the recommendation but noted: Not only the Commonwealth, but all jurisdictions that have legislation containing a ‘matching table’, currently prohibit matching suspect samples to the suspect index. Therefore, ultimately progressing this recommendation might best be achieved at a national level. 936 10.4.2. Volunteer profiles provided for limited purposes Volunteer profiles which have been provided for a limited purpose can only be used for that purpose. They can be matched against the unsolved crime scenes, convicted offenders, missing persons and unknown deceased persons indexes, but only if the volunteer has consented to the profile being used for this purpose. These profiles cannot be matched against profiles taken from other suspects or volunteers. 937 Volunteer profiles which have been provided for unlimited purposes can be matched against the unsolved crime scenes, convicted offenders, missing persons and unknown deceased persons indexes. They cannot, however, be matched against profiles taken from other suspects or volunteers. 938 Through our scrutiny of the Act, we found that NSW Police and DAL had different understandings of how samples taken from volunteers are to be used. 190 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
NSW Police had based its volunteer information sheet on clause 7A of the Crimes (Forensic Procedures) Regulation 2000, which provides that volunteers must be informed: 939 (a) that the DNA database system includes two indexes relevant to volunteers, a volunteers (limited purposes) index and a volunteers (unlimited purposes) index, (b) that the volunteer, or parent or guardian of the volunteer, may give consent subject to the condition that information obtained from the analysis of forensic material taken in accordance with the consent will only be placed on a specified index of that system, or will not be placed on either index. In this way, the legislation essentially sets up three options for volunteer profiles – they can: 1) be placed on the volunteers (limited purposes) index 2) be placed on the volunteers (unlimited purposes) index, or 3) not be placed on any index. However, DAL advised that it actually puts all DNA profiles obtained from volunteers on the DNA database. It considers that “samples taken for use within a case are a form of limited purposes volunteer,” and advised that “we do not see a distinction between ‘only matched within the case itself and placed on the limited purposes index’ – the effect is the same.” 940 DAL essentially treats the first and third options as the same thing. Further, DAL very rarely uses the volunteers (unlimited purposes) index. It finds that police officers who have indicated that a volunteer’s profile is to be used for unlimited purposes often do not have a good understanding of what this means. Before putting a volunteer profile on the unlimited purposes index, DAL always contacts the officer who took the sample, to confirm whether the volunteer did actually specify that his or her DNA sample could be used for unlimited purposes. Police usually advise that they cannot be sure of this and that the person’s profile should only be matched within the case for which it was provided. Accordingly, DAL has only put volunteer profiles on the unlimited purposes index once or twice. 941 Through our scrutiny of the Act, we have found that some police officers have a very poor understanding of the distinction between suspects and volunteers. We have also identified serious problems with the provision of information about forensic procedures to both suspects and volunteers. We are not convinced that volunteers consenting to forensic procedures have a good understanding of the implications of the procedure, or that they fully understand what their DNA sample will be used for. By treating all volunteers as having provided their DNA for the limited purpose of examination within a particular case, DAL is essentially applying a safeguard in case the police officer who conducted the forensic procedure has not complied with the legislation. Given the preliminary findings of our review, we support DAL’s approach in relation to using volunteer samples for limited rather than unlimited purposes. However, we are concerned that volunteers are providing DNA samples on the basis that they will not be put on the database, when in fact they will be. We raised these concerns with both agencies in October 2005. NSW Police agreed to remove the references to ‘within case matching’ from the volunteer information sheet, to ensure that volunteers know their DNA profile will be put on the DNA database. DAL also agreed that profiles taken for ‘within case matching’ could be deleted from the database provided the relevant court proceedings have been finalised. NSW Police has since advised us formally that it will remove ‘within case matching’ from its standard operating procedures, and that all volunteers will, in future, be made aware that their profiles will be put on the DNA database. 942 We note as well as removing references to ‘within case matching’ from the volunteer information sheet, NSW Police should remove the option that a volunteer’s profile not be placed on any index from the volunteer consent form. Recommendation 63 DAL continues to use volunteer samples only within the case for which the sample was provided, unless it has confirmed with the relevant police officer that the volunteer did actually intend that his or her profile be placed on the “unlimited purposes” index. NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 191
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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
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Chapter 8. Conducting a forensic pr
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The availability of persons is some
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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 214 and 215: 10.3. Receipt of DNA samples DNA sa
Page 216 and 217: Table 04: Person samples rejected b
Page 218 and 219: 10.3.6. Samples unconnected to a ca
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
Page 234 and 235: ‘Depends on seriousness of offenc
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
Page 264 and 265: it has been there, whether it has d
Page 266 and 267: Case Study 77 Police investigating
Page 268 and 269: 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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