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

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We realise this is a sensitive issue, and one which requires appropriate protections, full consultations, detailed information to police and ongoing monitoring. However, given the strong considerations in favour of such a database, we recommend it be further considered. Recommendation 90 Consideration be given to establishing a DNA elimination database for all police officers, forensic officers and scene of crime officers in NSW. NSW Health strongly supports this recommendation. 1144 NSW Police supports the recommendation too. 1145 However, the Minister for Police commented that “there are significant financial, legislative and industrial implications associated with this recommendation that should be considered.” The Minister’s position is that officers should be able to provide samples for an elimination database on a voluntary basis, but participation should not be compulsory. 1146 12.4.3. Supplier elimination databases The United Kingdom also established a manufacturers elimination database to assist in identifying contamination of equipment used by law enforcement agencies in DNA sampling, after two high profile murder investigations were erroneously linked. It turned out that the profile common to both cases came from a person who worked for the company which supplied the DNA swab tubes, not from the crime scenes in question. 1147 The equipment included in the testing kits currently used by NSW Police has components from both the United Kingdom and the United States. 1148 It may be possible that police in these areas already have arrangements in place for staff at manufacturers to supply profiles. If this is the case, manufacturers may already be able to supply elimination databases for their staff. We are not aware of this being a problem in New South Wales. However, this issue may be one the DNA Advisory Committee may want to consider. Recommendation 91 The DNA Advisory Committee consider consulting with the manufacturers of the equipment used for taking DNA samples about the risk of contamination. NSW Police supports this recommendation. 1149 However, NSW Health commented that it could see little benefit in the DNA Advisory Committee undertaking this role. It advised that DAL scientists discuss these matters with manufacturers informally as well as at conferences and special interest groups facilitated by SMANSFL (Senior Managers Australia & New Zealand Forensic Laboratories). NSW Health suggested that DAL could brief the DNA Advisory Committee on the matter. 1150 Endnotes 1091 The Hon Michael Kirby, “DNA Evidence: Proceed with Care”, based on an address to a seminar at the University of Technology, Sydney, 16 March 2000. Available from the High Court website: http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_dna.htm accessed 23 May 2005. 1092 Mark Findlay, Independent review of the Crimes (Forensic Procedures) Act 2000 (April 2003) at p. 6 to 8. 1093 R v MSK and MAK, unreported, Supreme Court 070201/03 and 070002/03, transcript 25 November 2003 at pages 126 and 163. 1094 Confidential survey responses. 1095 The Hon Michael Kirby, “DNA Evidence: Proceed with Care”, based on an address to a seminar at the University of Technology, Sydney, 16 March 2000. Available from the High Court website: http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_dna.htm accessed 23 May 2005. 240 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
1096 Justice Wood, “Forensic Sciences from the Judicial Perspective”, address to the 16th Symposium on Forensic Sciences, May 2002, available from the Supreme Court website: www.lawlink.nsw.gov.au, accessed 22 November 2005. 1097 ABC, Catalyst, “DNA Doubt,” aired 16 September 2004. Transcript available at www.abc.net.au, accessed 6 December 2005. 1098 Peter Gill & Amanda Kirkham, “Development of a simulation model to assess the impact of contamination in casework using STRs”, Journal of Forensic Science, May 2004 Volume 49 Number 3 available at www.astm.org accessed on 16 August 2005. 1099 E O’Dwyer, “Barnes cleared of Allen murder”, Illawarra Mercury, 29 May 2004. 1100 Peter Gill, “Application of Low Copy Number DNA Profiling”, Croatian Medical Journal 42(3):229-232 (2001). 1101 Information obtained through Ombudsman review of COPS records. 1102 Information obtained through Ombudsman review of COPS records. 1103 Information obtained through Ombudsman review of COPS records. 1104 Information obtained through Ombudsman review of COPS records. 1105 Information obtained through Ombudsman review of COPS records. 1106 Confidential LAC survey response 1107 Information supplied by DAL on 28 February 2005. 1108 NSW Police response to Ombudsman draft report, 2 June 2006. 1109 During the review period we received one complaint regarding the packaging of crime scene exhibits and possible tampering. This is discussed in chapter 15 as complaint number . 1110 Some jurisdictions have developed best practice guides on DNA sampling, which include information on how to minimise contamination risks. For example, the United Kingdom Association of Chief Police Officers published “Guidelines for the Avoidance of Contamination in the Recovery, Packaging and Submission of Material for DNA Analysis” in its DNA Good Practice Manual: see www.forensic.gov.uk/forensic_t/inside/news/docs/DNA_Good.pdf, accessed 21 November 2005. Interpol published a Handbook on DNA Data Exchange and Practice in 2001, which includes quality assurance information for collecting and managing samples: see http://www.interpol.int/Public/Forensic/dna/HandbookPublic.pdf, accessed 17 February 2006. See also Justice Wood, “Forensic Sciences from the Judicial Perspective”, address to the 16th Symposium on Forensic Sciences, May 2002, available from the Supreme Court website: www.lawlink.nsw.gov.au accessed 22 November 2005. 1111 NSW Police College advice on Constable Education Program, received 29 November 2005. 1112 NSW Police Detective Training Unit advice on Specialist Courses, email dated 13 December 2005. 1113 Control or reference samples are defined in the SOPs as material of similar composition to a suspect sample collected from a scene or item. The purpose of a control sample is to allow an analyst to separate the original material from “introduced substances” resulting from the crime incident. 1114 FSG presentation to DAL, attached to agenda for DNA Advisory Committee meeting 6 August 2004. 1115 Minutes of meeting between NSW Police Forensic Services Group and DAL, 27 April 2004. 1116 Minutes of the DNA Advisory Committee, 13 October 2004. 1117 FSG presentation to DAL, attached to agenda for DNA Advisory Committee meeting 6 August 2004. 1118 DAL comments on Ombudsman statement of provisional findings, 17 October 2005. 1119 NSW Police response to Ombudsman draft report, 2 June 2006. 1120 NSW Police response to Ombudsman draft report, 2 June 2006. 1121 NSW Health response to Ombudsman draft report, 7 June 2006. 1122 For an example of quality assurance guidelines, see the FBI’s “Standards for Forensic DNA Testing Laboratories”, located at http://www.fbi.gov/hq/lab/codis/qualassur.htm, accessed 29 July 2005. 1123 J Goodman-Delahunty and B Newell, “One in how many trillion DNA evidence and the juror”, Australasian Science Magazine, August 2004, p. 14 to 17. 1124 Sydney Morning Herald, “Beyond reasonable doubt”, 22 April 2000 http://cjpa.freeswervers.com/smh.htm accessed 20 July 2005. 1125 New Zealand Environmental Science and Research Limited website, http://www.esr.cri.nz 1126 DNAResource.com Report dated 24 June 2005. 1127 National Association of Testing Authorities Australia, Report on Reassessment: ICPMR, 30 July 2004. 1128 Minutes of meeting between NSW Police Forensic Services Group and DAL, 1 June 2004. 1129 DAL comments on Ombudsman statement of provisional findings, 17 October 2005. NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 241
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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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test container and the man’s t-sh
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considerations. Alternatively, the
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police appear to have treated victi
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We also note that children under th
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888 Confidential LAC survey respons
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the initial agreement between NSW P
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10.3. Receipt of DNA samples DNA sa
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Table 04: Person samples rejected b
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10.3.6. Samples unconnected to a ca
Page 220 and 221: 10.4.1. Suspect-suspect matching Su
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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
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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 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
Page 302 and 303: 1255 Based on DAL’s advice in its
Page 304 and 305: • a complaint about the incorrect
Page 306 and 307: The Ombudsman found that the police
Page 308 and 309: • The man was not cautioned prior
Page 310 and 311: 15.3.5. Failure to maintain proper
Page 312 and 313: • the supervising sergeant did no
Page 314 and 315: Case Study 91 In 2004, a lorry driv
Page 316 and 317: 16.2. Possible problems with DNA Be
Page 318 and 319: 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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