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

In making this decision, the court must consider factors including:
• the probative value of the evidence
• the reasons for failing to comply with the Act
• the gravity of the breach and whether it deprived the suspect of significant protection
• whether the failure to comply was intentional or reckless
• the nature of the offence concerned and subject matter of the proceedings, and
• whether admitting the evidence would seriously undermine the protection given to suspects under the Act.
Importantly, the Act specifies that the probative value of the evidence does not by itself justify its admission. If the
evidence is admitted, the judge must inform the jury of the breach or failure to comply with the Act, and give a
warning as the judge considers appropriate.
To examine this issue, we monitored reported cases, and also asked the DPP whether it was aware of any matters
where the defendant has challenged the admissibility of DNA evidence because of the way a forensic procedure was
conducted. The DPP advised that it does not keep specific records on this issue, but was able to provide anecdotal
information from unreported cases or unreported aspects of reported cases. None of the magistrates who responded
to our survey had heard of any proceedings where the defendant challenged the admissibility of DNA evidence
because of the way a forensic procedure was conducted.
One case where DNA evidence was excluded because police did not comply with the Act when conducting the
forensic procedure involved an accused who was charged with aggravated sexual assault on his 14 year old
stepdaughter. The prosecution led evidence that semen from the accused was found on the victim’s nightie. The
defence objected to the DNA evidence being admitted, on the basis that police had not complied with the Act when
taking a DNA sample from the accused by buccal swab. When the police officer asked if the accused consented to
a buccal swab, he asked, “What are my rights in relation to that” The police officer advised that under the Act police
could take a DNA sample by force, but that the buccal swab was the easiest option. The accused responded, “OK,
well if the law states that I must give a sample, well then I have no objection.” Contrary to section 13(1)(j) and 13(6)
of the Act, the police officer did not inform the accused of the consequences of refusing to provide the buccal swab
– that if he did not consent, there was a procedure which must be followed before a sample can be taken against the
suspect’s will. Specifically, the officer would have to obtain an order from a senior police officer or a magistrate before
the accused could be required to provide the sample. At trial, the police officer gave evidence that the accused had
not objected to the forensic procedure. The judge commented:
In my mind to not object does not mean that one consents… Those provisions of s 13(6) are clearly designed to
provide a protection to a suspect who is in custody… The effect of that provision means that where an individual
does not consent, the police cannot simply move in immediately and use force to extract some sample from
him or her. First, an order has to be obtained from either a senior police officer or a magistrate. In other words,
from somebody who is independent from the inquiry. Further, the legislation stipulates matters that an individual
charged with making such a decision is required to take into account before making the order that they are
empowered under the Act to make. 1164
The judge accepted that the officer’s failure to mention the need to obtain an order before proceeding was a genuine
oversight on the officer’s part. However, he described it as “a blatant breach of the legislation,” which “deprived the
accused of a protection that the legislature gave him if he chose not to consent by having an independent person
decide whether a sample should be obtained or not.” The judge found that the police officer misled the accused by
failing to provide that information, describing the breach as “a very grave matter” which the court was not prepared
to sanction. Accordingly, the judge decided not to admit the DNA evidence. The accused was ultimately convicted on
the basis of other evidence.
As discussed at 6.1, many suspects and volunteers clearly do not understand the information provided when
deciding whether to consent to a forensic procedure. The Police Association has expressed concern about the effect
this may have on admissibility of forensic evidence:
Police can only wonder how this lack of understanding of what has been read to the suspect or volunteer will
affect the evidence gained through the forensic procedure if a legal practitioner decides one day to press the
issue. 1165
We reiterate our earlier recommendation 10, that a plain English version of the information be developed as a matter
of urgency. We also stress that any additional explanation police officers provide, to clarify the information sheet,
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000