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

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admits being there then what is the point. Even if the DNA relates to an issue that is at the end of the day (or otherwise) contentious, unfortunately in my experience, both the prosecution (and more so the defence) wish to have every potential piece of evidence disclosed before any significant decision is made regarding the future conduct of the case. One suspects that many defendants are sitting in gaol bail refused awaiting DNA results that are going to have absolutely no impact on the real issues in their cases. 998 In 2002, the Public Accounts Committee found that DAL was not providing an effective, efficient and timely laboratory service to the criminal justice system, although the widespread use of DNA profiling in criminal proceedings meant that it was “an issue of the highest priority.” 999 In 2002 and 2003, the Chief Magistrate of the Local Court issued practice notes setting out procedures to ensure time standards are met for cases committed for trial. The practice notes specify that where results of DNA analysis are required for a brief, “directions will be given such as to ensure no undue delays occur, particularly where the defendant is in custody.” They recommend the brief of evidence be served within six weeks of a suspect’s first appearance in court. 1000 However, in its 2004 Annual Review, the Local Court again identified the provision of DNA analysis results as a factor contributing to delays in finalising committal proceedings. 1001 DAL has advised it is unable to meet the recommended turnaround time of six weeks in all cases: There are a large number of cases where this period is impossible to meet because of the delay that occurred between the time of the offence and the date of receipt of the case at [DAL]. Other cases are simply too large for analysis to be completed in the suggested time. 1002 10.7.4. The backlog When DNA profiling started being used on a large scale, NSW Police trained its staff to conduct forensic procedures on eligible people and to collect forensic evidence from crime scenes. Police and scene of crime officers could be brought up to speed in a matter of months. By contrast, it takes years of training to become a forensic biologist. When the Act commenced, the laboratory had difficulty recruiting enough qualified staff, and could not meet the demand for DNA samples being submitted for analysis. Samples waiting to be processed quickly accumulated, and a backlog formed. Since then, the use of DNA profiling in the investigation and prosecution of crime has continued to increase. More and more forensic evidence is being sent to DAL each year. Since 2000, the number of cases being submitted to DAL for analysis has increased more than eightfold: Figure 12: Number of cases received at DAL by financial year. 10,000 9,000 9,113 8,000 7,375 7,000 No. of cases 6,000 5,000 4,000 5,248 3,000 2,638 2,000 1,000 1,046 0 1999/2000 2000/2001 2001/2002 2002/2003 2003/2004 Financial year ending June Source: DAL Draft business case, January 2005. Number of cases refers to the number of cases received by DAL in the 12 months ending June. 206 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
Further, more items are being submitted in each case. Before the Act commenced, FSG estimated that only one item would be submitted for each offence; and for serious crimes, such as murder, about five items would be submitted. However, DAL has advised that an average of 22 items are submitted in relation to a murder case, and that investigating police frequently request more than one item to be examined in relation to less serious, high volume offences, particularly where they suspect more than one offender was involved, or a profile could not be obtained from the first item examined. The number of items submitted in relation to each case has also increased as DNA technology has advanced. Where police submit exhibits with only trace amounts of DNA, this may require multiple testing to obtain a usable profile. There are now more items being submitted which require retesting and interpretation of complex results. Another factor contributing to the increased number of items submitted for analysis is that NSW Police has little control over which exhibits individual police officers or scene of crime officers are submitting for analysis. This leads to DAL receiving some unnecessary casework. 1003 Staff shortages at DAL also contributed to the backlog developing. When staff members leave DAL, they may not be replaced, which reduces its capacity. If staff members are replaced, training new staff members takes time, while the backlog continues to grow. When staff numbers were down in 2004, DAL was only working on urgent cases where the evidence was needed for court proceedings, and all other cases had to wait. 1004 10.7.5. What is in the backlog We understand that the term “backlog” includes all the cases DAL has not finalised, rather than a distinct set of matters which DAL has consciously decided should be allocated backlog status. In August 2004, there were over 7,000 cases in DAL’s backlog. We note that each case in the backlog may include any number of items. At that time, analysis of about half the cases in the backlog had been started. 1005 Most of the cases in the backlog are less serious, high volume offences, such as break, enter and steal (2,633 cases), stolen motor vehicle (1,188), steal from vehicle (279) and malicious damage (169). However, there are also a significant number of serious offences, including murder and manslaughter (116), attempted murder (42), sexual assault (504), robbery (903), assault (219) and home invasion (40). Figure 13: What is in the backlog. 3000 Cases started Cases not started 2500 Number of cases 2000 1500 1000 500 0 Break, enter and steal Stolen vehicle Steal from vehicle Malicious damage Driving offences Murder and manslaughter Attempted murder Sexual assault Robbery Assault Home invasion Offence type Source: DAL attachment to agenda for DNA Advisory Committee meeting 6 August 2004. This does not show the total number of cases in the backlog, only certain offence types. NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 207
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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
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conducting forensic procedures (tak
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Section 57 of the Act provides that
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8.5.7. Recording a forensic procedu
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j. The testing officer asks the sus
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Case Study 52 Police took a hair sa
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Recommendation 38 When police offic
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Recommendation 40 NSW Police retain
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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 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
Page 234 and 235: ‘Depends on seriousness of offenc
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
Page 270 and 271: We realise this is a sensitive issu
Page 272 and 273: 1130 Legislative Assembly Hansard,
Page 274 and 275: Case Study 84 An unknown offender b
Page 276 and 277: In making this decision, the court
Page 278 and 279: evidence. Police would still, of co
Page 280 and 281: If two samples match, it is possibl
Page 282 and 283: Similar issues were considered in R
Page 284 and 285: 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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