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

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