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

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1050 FSG presentation to DAL, attached to agenda for DNA Advisory Committee meeting 6 August 2004. 1051 DAL comments on Ombudsman statement of provisional findings, 17 October 2005. 1052 The Law Reform Commission of Ireland, The Establishment of a DNA Database (LRC 78-2005) (November 2005) p. 70, available from http://www.lawreform.ie/publications/reports.htm accessed on 3 February 2006 1053 Victorian Parliament Law Reform Committee, Forensic Sampling and DNA Databases in Criminal Investigations, Government Printer, Melbourne 2004, p. 368. 1054 Victorian Parliament Law Reform Committee, Forensic Sampling and DNA Databases in Criminal Investigations, Government Printer, Melbourne 2004, p. 361-369. 1055 NSW Standing Committee on Law and Justice, Review of the Crimes (Forensic Procedures) Act 2000 (2002) 1056 Public Accounts Committee Inquiry into Court waiting times, Report June 2002 p. 23 to 24. 1057 NSW Health response to Ombudsman draft report, 7 June 2006, Attorney General’s Department response to Ombudsman draft report, 5 May 2006 and NSW Police response to Ombudsman draft report, 2 June 2006. 1058 Letter from the Hon Carl Scully MP, Minister for Police and Minister for Utilities, 2 June 2006. 1059 NSW Health response to Ombudsman draft report, 7 June 2006. 1060 NSW Police response to Ombudsman draft report, 2 June 2006. 1061 Crimes (Forensic Procedures) Act 2000 s 96 and 97. 1062 The corresponding laws prescribed by the regulations are the Crimes (Forensic Procedures) Act 2000 (ACT); Part 1D of the Crimes Act 1914 (Cth); Division 7 of Part VII of the Police Administration Act (NT); Part 4 of Chapter 8 of the Police Powers and Responsibilities Act 2000 (Qld); the Criminal Law (Forensic Procedures) Act 1998 (SA); the Forensic Procedures Act 2000 (Tas); Subdivision (30A) of Division 1 of Part 3 of the Crimes Act 1958 (Vic); section 236 of the Criminal Code (WA) as in force before its amendment and the Criminal Investigation (Identifying People) Act 2002 (WA). 1063 See “Qld negotiating more DNA data swaps”, ABC News Online, 6 July 2005 located at www.abc.net.au, accessed on 7 July 2005; Selina Mitchell “States break DNA roadblock”, The Australian, 21 June 2005 located at www.australianit.news.com.au, accessed on 23 June 2005; and Tim Clarke, “DNA Database holds 130,000 profiles” located at www.news.com.au, accessed on 23 June 2005. 1064 “Qld negotiating more DNA data swaps”, ABC News Online, 6 July 2005 located at www.abc.net.au, accessed on 7 July 2005. 1065 CrimTrac website, http://www.crimtrac.gov.au/aboutus.htm accessed 27 June 2005. 1066 CrimTrac website, http://www.crimtrac.gov.au/dna.htm accessed 27 June 2005. 1067 Dr John West, DAL response to investigation notice received 28 February 2005. 1068 NSW Police response to Ombudsman draft report, 2 June 2006. 1069 Attorney General’s Department response to Ombudsman draft report, 5 May 2006. 222 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
Chapter 11. Accuracy of DNA records DAL is responsible for the creation and day to day maintenance of the DNA database, including uploading profiles onto the database, deleting profiles and generating links through the comparison of new profiles with those already on the database. NSW Police does not have access to the DNA database. It submits DNA samples to DAL and receives advice from DAL as to any links. However, NSW Police does keep records of forensic procedures on its computer system, and relies on these records when taking action in relation to advice from DAL that DNA links have been made. This chapter discusses the accuracy of DNA records on the DNA database and the NSW Police computer system, and the implications of inaccurate information being retained on these systems. 11.1. Accuracy of information on the DNA database 11.1.1. Identification of samples We have previously described our audit of forensic procedures (see 10.1.1). We provided DAL with a list of 180 forensic procedures conducted by police, including records of the station where the procedure was conducted, the type of procedure, the DNA sample bag number and barcode. 1070 We asked DAL for details such as the person’s name and status (i.e. suspect, volunteer, convicted offender or victim), to see whether the records held by NSW Police and by DAL were consistent. Some of these procedures DAL was unable to identify because the sample had been destroyed or because the procedure was of a type other than a buccal swab or hair sample. However, there were 13 procedures conducted which DAL could not identify, although the information available from police suggests that they should have been received at DAL. We provided DAL with additional details for these procedures, including name of the person who provided the sample, the person’s Central Names Index (CNI) number, the date of the procedure and the FS number (where known). We asked DAL to provided advice as to whether it had in fact received these samples, and if so, the date of receipt, and whether the records DAL has of the person’s name, type of procedure, sample bag number and barcode are the same as those held by police. Of the 13 procedures, DAL identified five of these with the additional information. The remaining eight still could not be identified. DAL explained that it was possible that some of these samples may have been deleted and without the correct barcode from NSW Police they would be unable to detect this. 11.1.2. Discrepancies between records held by NSW Police and DAL 11.1.2.1. Bag numbers and barcodes On reviewing DAL’s first response, we identified some discrepancies between the information held by NSW Police and the information provided in DAL’s response: • For two procedures, we found that the sample bag number, name and/or type of procedure provided by DAL differed from the information provided by police. • For 15 procedures, the bag number DAL provided was different from the bag number provided by police - in seven of these it appeared that the DAL records were correct and the police records were wrong. - in four, it appeared the police records were correct and the DAL records were wrong. - the remaining four we were unable to determine from the information available which of the records were correct. We asked for advice as to why the DAL and police records may be different. We also asked DAL why there may be inaccuracies in its records of sample bag numbers and the consequence, if any, of this. DAL advised that: The only valid identifier is the sample barcode and possibly the person’s name. Our experience is that other details such as bag barcode from the Police system are not as reliable for identifying samples... Bag barcodes are more prone to transcription problems and we would not identify a sample that way without checking other details such as the name. 1071 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 223
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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
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Sometimes it’s not clear whether
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This recommendation is supported by
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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
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 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
Page 298 and 299: Recommendation 98 Section 87 of the
Page 300 and 301: 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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