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

should be electronically recorded along with the request for consent, to ensure there is a record of the explanation
given, should the matter be raised at court.
Some police officers have informed us they are reluctant to conduct forensic procedures in case they do something
wrong, which could lead to the evidence being excluded and the accused being acquitted. As one officer asked,
“Who wants to shoulder this responsibility if you took the DNA for the inner west rapist or a serial killer” 1166 We
appreciate these concerns, given the complexity of the Act and the inexperience of most police officers in conducting
forensic procedures. We also note that through our monitoring activities, we found many instances where police
officers failed to comply with the Act, or where we could not determine compliance because the relevant activity was
not electronically recorded. We also found that officers who conducted forensic procedures routinely demonstrated
a much better understanding of their legislative obligations than officers who had been accredited but had never
conducted a procedure, or had done so only rarely.
From our observations of forensic procedures conducted during the review period, we agree there is a significant risk
of DNA or other forensic evidence being excluded, unless compliance with the Act improves in future. For this reason,
we reiterate our recommendations 3(a) and 3(b), that police commands have a designated forensic procedures
officer to monitor the way forensic procedures are conducted in the command, and consider developing specialist
forensic procedures teams, instead of expecting all police officers to be able to conduct forensic procedures.
We also note that, in determining whether evidence obtained from a forensic procedure should be admitted, courts
will consider the reasons for the breach, including whether it was intentional or reckless; the gravity of the breach; and
whether it deprived the suspect of significant protection. The court will also consider the nature of the offence and the
probative value of the evidence. This balancing exercise means it is still open to the court to admit evidence obtained
through a forensic procedure, if the officer has acted in good faith and the breach has not deprived the person
providing the sample of a significant protection.
13.3.2. Failure to share the sample
The Act requires that if enough forensic material is taken from a suspect, police must make part of the material
available to the suspect for independent analysis. The analysis results must also be made available. The material and
analysis results must be sent to the suspect within 90 days. 1167 We are aware of several cases where DNA evidence
was excluded because police failed to comply with these provisions.
In R v Ali (2002), the accused was charged with armed robbery. The prosecution led evidence that he had held up
a TAB, stabbed the owner while he was opening the safe, and then left in a stolen car with several hundred dollars
in cash. Police took a DNA sample from the accused for comparison with clothing and other items he allegedly
discarded during the police chase following the robbery. The judge found that, in taking the sample, police breached
the requirement to share the forensic material with the suspect, and provide it within 90 days. After weighing up the
desirability of admitting the evidence with the undesirability of admitting evidence which was obtained in breach of the
Act, the judge decided not to admit the evidence. The judge commented:
There is no doubt that the DNA evidence has high probative value. However, the probative value of the evidence
is not the test. It is but one of the factors to be weighed in considering the desirability of the evidence…
[Further], the more highly probative the evidence is the more the protections and safeguards provided by the
Act should be applied. In my view the protection not afforded to the accused under the Act is for him to have the
opportunity to have the DNA material independently tested and if necessary challenge the Crown expert. 1168
The judge concluded that the Crown’s failure to make the forensic material available seriously undermined the
protection afforded the accused, and accordingly decided not to admit the evidence. The accused was however
convicted on other evidence.
In R v Roumi (2003), the court also held the DNA evidence was inadmissible because police failed to comply with
sections 58 and 60 of the Act, which require police to share forensic material with the suspect and ensure the analysis
results are available to the suspect. The DNA evidence was not, however, critical to the prosecution case. 1169
An argument along these lines failed, however, in R v Sharwood (2003). In that case, the defence objected to the DNA
evidence, on the basis that police failed to comply with the requirement that they share the forensic material with the
suspect. The judge reasoned that it would be easy for the accused to obtain a further sample of his own saliva should
he wish to have his DNA profile independently determined, and admitted the evidence. 1170
We discussed the section 58 sharing requirement at 8.10 (see also recommendation 48(a)), that in line with the
Sharwood decision, it should not apply where police are taking a suspect’s DNA sample. The implementation of our
recommendation would mean that failure to share the sample would no longer be grounds for excluding the DNA
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 247