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

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large batch of serious indictable offender profiles to the national DNA database. There are currently no arrangements in place for regular transfer of profiles to the national database. NSW Police anticipates that should the database become operative at a national level, it would transfer the profiles from the suspects index, volunteer (unlimited purposes) index and crime scenes index, as well as the new profiles from the convicted offender index, to the national database. NSW Police has advised that it is not clear whether profiles from the volunteers (limited purposes) index would be transferred. Our strong view is that profiles obtained from volunteers for limited purpose should not be transferred. NSW Police in its submission to this review argued strongly that the Act should be amended to allow for the exchange of all legally obtained DNA profiles between New South Wales and other states and territories. NSW Police also suggested that mutual recognition legislation could be extended to facilitate the sharing of forensic information with certain overseas jurisdictions. DAL has also expressed frustration at the lack of interstate enforcement arrangements, arguing that the models proposed so far are too restrictive. 1067 Recommendation 80 The Attorney General and NSW Police take all necessary steps to permit the sharing of appropriate unlimited purpose volunteer, suspect and serious indictable offender DNA profiles via the National Criminal Investigation DNA Database (NCIDD). NSW Police supports this recommendation. 1068 The Attorney General’s Department advised that rolling out the national DNA database is a very high priority. 1069 Endnotes 902 Chief Magistrate’s Circular #433. 903 “Magistrate Slams Cops”, The Illawarra Mercury, 10 February 2004; “Rape Victim’s long wait for DNA tests”, The Daily Telegraph, 27 May 2004; “DNA wait leaves victims in limbo –- ‘disgrace’ as raped mum suffers”, The Sun-Herald, 30 May 2004; and “Long-term trends in trial court delay in NSW”; NSW Bureau of Crime Statistics and Research media release issued 30 September 2004. 904 DAL response to Ombudsman investigation notice, 24 February 2005. This includes profiles taken from 421 volunteers after Part 8 of the Act commenced and 410 prior to Part 8 commencing. 905 DAL, Draft Business Case, January 2005. 906 DAL, Draft Business Case, January 2005. 907 Minutes of the DNA Advisory Committee, 3 February 2006. 908 During the review period we received one complaint involving a delay of 19 days for transportation of a suspect sample from the police station to DAL. The matter went before the court and no adverse findings were made. The complaint is discussed in more detail in chapter 15 as complaint number 3. 909 For some procedures, the date the procedure was recorded on COPS was not the same as the date the procedure was actually conducted. For this reason, we used hardcopy records, such as consent forms, to establish the date the procedure was conducted. Where no hardcopy records were available, we included the date as indicated by COPS. 910 Crimes (Forensic Procedures) Act 2000 s 27(3). 911 This is also discussed as complaint number 8 in chapter 15. 912 DAL comments on Ombudsman statement of provisional findings, 17 October 2005. 913 52 from suspects and eight from volunteers, according to information obtained through Ombudsman review of COPS records. 914 4,619 from suspects and 421 from volunteers: DAL response to Ombudsman investigation notice, 24 February 2005. 915 NSW Police response to Ombudsman draft report, 2 June 2006. 916 DAL response to Ombudsman investigation notice, 24 February 2005. 917 Telephone advice from DAL, 3 March 2005. 918 Crimes (Forensic Procedures) Act 2000 s 91(2). 919 NSW Police response to Ombudsman draft report, 2 June 2006. 218 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
920 Attorney General’s Department response to Ombudsman draft report, 5 May 2006. 921 DAL response to Ombudsman investigation notice, 24 February 2005. 922 NSW Police response to Ombudsman draft report, 2 June 2006. 923 NSW Health response to Ombudsman draft report, 7 June 2006. 924 For example, see R v White [2005] NSWSC 60. 925 Telephone advice from DAL, 3 March 2005. 926 Excerpt from the Forensic Biology Procedures Manual, provided by DAL 24 February 2005. 927 FSG presentation to DAL, attached to agenda for DNA Advisory Committee meeting 6 August 2004. 928 “Changes to forensic exhibit submission procedures,” Police Weekly, Volume 17 Number 9 (28 March 2005). 929 Discussion at meeting with representatives of FSG and DAL, 24 October 2005. 930 NSW Health response to Ombudsman draft report, 7 June 2006. 931 Crimes (Forensic Procedures) Act 2000 s 93. 932 DAL response to Ombudsman investigation notice, 24 February 2005. 933 Report of Independent Review of Part 1D of the Crimes Act 1914 (Cth) p. 54 to 55. 934 Letter from NSW Police Forensic Services Group, 8 November 2005. 935 NSW Police response to Ombudsman draft report, 2 June 2006 and NSW Health response to Ombudsman draft report, 7 June 2006. 936 Attorney General’s Department response to Ombudsman draft report, 5 May 2006. 937 Crimes (Forensic Procedures) Act 2000 s 93. 938 Crimes (Forensic Procedures) Act 2000 s 93. 939 NSW Police Forensic Procedures Information Sheet Volunteer, Version 2003/1. 940 DAL comments on Ombudsman statement of provisional findings, 17 October 2005. 941 Telephone advice from DAL, 3 March 2005; and meeting at DAL, 5 October 2005. 942 Letter from NSW Police Forensic Services Group, 8 November 2005. 943 NSW Police response to Ombudsman draft report, 2 June 2006. 944 NSW Health response to Ombudsman draft report, 7 June 2006. 945 Crimes (Forensic Procedures) Act 2000 s 92 and 109. 946 NSW Health, Health Records And Information Manual For Community Health Facilities, page 228, October 1991 located at www.health.nsw.gov.au accessed on 25 August 2005. 947 For example, see R v McIntyre [2001] NSWSC 311 (11 April 2001). 948 Information on NSW Guthrie cards access policy available at www.lawlink.nsw.gov.au accessed on 4 October 2005. 949 Crimes (Forensic Procedures) Act 2000 s 12. 950 Except for those few which had been rejected: DAL response to Ombudsman investigation notice, 24 February 2005. 951 Information obtained through Ombudsman review of COPS records. 952 Information obtained through Ombudsman review of COPS records. 953 Information obtained through Ombudsman review of COPS records. 954 Information obtained through Ombudsman review of COPS records. 955 Information obtained through Ombudsman review of COPS records. 956 Information obtained through Ombudsman review of COPS records. 957 Telephone advice from DAL, 3 March 2005. 958 DAL comments on Ombudsman statement of provisional findings, 17 October 2005. 959 Telephone advice from DAL, 3 March 2005. 960 Discussion at meeting with DAL, 5 October 2005. 961 DAL, Draft Business Case, January 2005. 962 Based on the estimates that during the review period, DAL made 3,170 warm links and 480 eliminations: DAL response to Ombudsman investigation notice, 24 February 2005 and Draft Business Case, January 2005. 963 Crimes (Forensic Procedures) Act 2000 s 3, 12(a) and 20(c). 964 Discussion at meeting with representatives from NSW Police and DAL, 24 October 2005. NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 219
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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
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Generally, police provided adequate
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Recommendation 45 NSW Police ensure
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8.10.3. Photographs Section 59 of t
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Recommendation 48 The Crimes (Foren
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746 Since the Act came into force,
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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
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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
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Page 240 and 241: turnaround times (in particular, wh
Page 242 and 243: In New South Wales, police or the D
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Page 246 and 247: • representatives from human righ
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
Page 286 and 287: These results must be interpreted w
Page 288 and 289: 1179 Letter from DPP, 24 March 2005
Page 290 and 291: Chapter 14. Destruction of forensic
Page 292 and 293: 14.2.2. Identifying DNA profiles wh
Page 294 and 295: Recommendation 94 When DAL receives
Page 296 and 297: 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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