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

Chapter 13. Criminal proceedings
using DNA evidence
The Findlay review of the Act, conducted on behalf of the Attorney General, concentrated on the use of DNA
evidence in criminal trials. The purpose of that review was to determine whether the policy objectives of the Act
remained valid, and whether the terms of the Act were appropriate for securing those objectives. 1151 The review team
interviewed public prosecutors, defence advocates and judges as well as observing trials. The report discussed
the main difficulties associated with the use of DNA evidence in criminal proceedings, and made a number of
recommendations relating to best practice trial process.
The purpose of our review is to scrutinise the exercise of functions conferred on police officers under the Act. 1152
For this reason, many of the issues relating to the use of DNA in criminal proceedings is outside the scope of our
review. However, it is necessary for us to examine certain aspects relating to the way DNA and other types of forensic
evidence are used in criminal proceedings, to determine whether police officers are using their powers to conduct
forensic procedures effectively. For this reason, we have reviewed the relevance and weight of DNA evidence in court
proceedings; questions of admissibility, particularly where police have failed to comply with the Act; and the outcome
of proceedings for matters where forensic procedures were conducted. We also touch on the main grounds for
challenging DNA evidence.
13.1. Relevance and weight of DNA evidence
Because DNA profiling is highly discriminating, it is a powerful tool in the investigation and prosecution of crime.
However, a ‘match’ is not always incriminating – all that it establishes is that there is a link between a crime scene and
a suspect. Further inquiries and additional evidence are required to establish how the link came about. The person
may have visited the place, and left DNA there, possibly long before the crime was committed. It is also possible
that a person’s DNA may have been transferred to the scene without the person having physically been there, either
deliberately or unintentionally. The following case studies show how there can be a legitimate reason for a suspect’s
DNA or fingerprints being at the crime scene.
Case Study 82
An unknown offender stole and damaged a car. Police sent a pair of latex gloves found in the car for analysis.
The laboratory advised that DNA found in the gloves matched the profile of a suspect. Police made further
inquiries with the owner of the car, who advised that the suspect was a friend of his, that the gloves were in the
car before it was stolen, and that he and the suspect regularly wore latex gloves for their work. Police did not
take any further action against the suspect. 1153
Case Study 83
Police investigating a break and enter identified a suspect through fingerprints left on some broken glass.
The suspect worked as a glazier, and produced records to show that he had gone to the premises to repair the
broken window, before the crime scene had been examined by police. He told police it was likely he removed
the broken glass from the frame to fix the window, and police took no further action against him. 1154
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 243