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

Case Study 87
An unknown offender broke into an office and stole a number of laptop computers. A cigarette butt found in the
foyer of the office was sent to the laboratory for analysis. A suspect was identified through DNA left on the butt.
Police established that the office had been clean at the time of the offence, that the suspect smoked the same
brand of cigarettes as the butt found at the scene, and that the suspect had a number of previous convictions
for stealing laptops. Police charged the suspect, who was subsequently convicted. 1159
The Findlay review commented that the compelling nature of DNA gave it a “special relevance” in cases based on
circumstantial evidence. In practice, DNA is used “to shore up otherwise fragile prosecutions,” 1160 and only “slight
corroboration” may be needed to secure a conviction. The review found that DNA evidence was the centrepiece of
the prosecution case in matters which would not otherwise have been prosecuted. 1161 It also found that while many
judges emphasised that DNA evidence is just one component of a circumstantial case, many jurors considered DNA
evidence to be “significantly persuasive.” 1162
It appears that in many cases DNA evidence which links the offender to the crime scene is led, even though it
does not assist in determining whether the accused committed the offence. For example, in the case R v Styman
and Tauber (2002) the accused was charged after an elderly woman died, after being robbed and left in her home,
bound and gagged. A witness gave evidence that she took two shirts from the accused’s wardrobe, and gave them
to police. The shirts were examined and evidence was led that the accused’s DNA was found on them. There was
considerable time spent cross examining expert witnesses about the DNA evidence. In summing up, the judge said to
the jury:
What do we have We have a mixture of DNA found on the collar of one of them, DNA which matches [the
suspect], and you are asked to conclude he contributed. Well, surprise surprise. A shirt comes out of his
wardrobe and it has got his DNA on it. Does that take the Crown case anywhere at all I would have thought
not, but we have this argument about the DNA. You make of it what you will... but really, you wonder what the
argument is. 1163
13.2. Effect of delays in DNA analysis on court proceedings
We discussed the effect of lengthy delays in obtaining DNA analysis on police investigations and court proceedings
at 10.7.2 and 10.7.3. Police officers expressed concern about suspects and victims of crime forgetting about the
incident, suspects committing further offences while the evidence sits at the laboratory, and courts not allowing
adjournments because of delays in obtaining analysis results. Magistrates expressed concern about delays being
unfair to the accused, particularly when the accused is in custody. We did not find any evidence to suggest that police
are holding back from using DNA because of the length of time it takes to obtain analysis results. Rather, police factor
delays into their investigation management, and where possible pursue matters without relying on DNA evidence.
13.3. Admissibility of evidence obtained under the Act
Forensic evidence which has been improperly obtained, or unlawfully retained, will generally be inadmissible in court
proceedings.
13.3.1. Forensic material which has been improperly obtained
Section 82 of the Act provides that evidence obtained through a forensic procedure or as a result of or in connection
with the carrying out of a forensic procedure is inadmissible where there has been any breach or failure to comply
with any provision of the Act relating to the carrying out of the procedure, unless
• the person consents to its admissibility
• the court is of the opinion that the desirability of admitting the evidence outweighs the undesirability of
admitting the evidence, or
• the breach or failure arose out of a mistake but reasonable belief as to the age of a child.
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 245