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

evidence. Police would still, of course, be required to share where possible, forensic material other than a person’s
own DNA, such as material obtained through nail scrapings or hand swabs.
13.3.3. Covert DNA sampling
As discussed at 9.2.1, admissibility of DNA evidence has been challenged on the basis the suspect’s sample was
obtained covertly, instead of through the regime provided for by the Act. Most recently, in R v White (2005), the court
held that the DNA profile obtained from a discarded cigarette butt was not evidence to which section 82 of the Act
applies, so the challenge failed. 1171 However, the court went on to consider whether, if section 82 did apply to forensic
material obtained covertly, the evidence would be admissible. The court found that the evidence was highly probative,
and accepted that police did not comply with the Act because there was insufficient evidence available at that time to
identify the accused as a suspect. The court concluded that the desirability of admitting the evidence outweighed the
undesirability of not admitting it.
Section 82 sets out the factors a court must consider in determining whether improperly obtained forensic evidence
should be admissible. Many of these factors would be relevant to evidence which has been obtained covertly,
including the reasons for failing to comply with the Act, whether it was intentional, and whether admitting the evidence
would seriously undermine the protection given to suspects under the Act. These factors suggest that evidence which
has been obtained covertly, in defiance of the Act, would not be admissible. Significantly, though, this balancing
exercise need not be undertaken in relation to samples obtained through covert means – section 82 applies only
where “a forensic procedure has been carried out on a person,” and police have failed to comply with the Act.
Despite this significant limitation, the White decision indicates that the courts may nevertheless consider the
reasons why police have obtained a covert DNA sample rather than taking a sample through a forensic procedure,
in determining admissibility. As discussed at 9.2.4 and in recommendation 53, we feel that NSW Police should be
recording information about the collection of covert samples and reporting on this in its annual report. We also
recommended that Parliament should consider regulating the collection of covert samples, see recommendation 54.
13.3.4. Forensic material which has been unlawfully retained
Section 83 of the Act provides that any evidence obtained through a forensic procedure, including the results of any
forensic analysis, are not admissible in criminal proceedings, if the Act requires that the material be destroyed. Unlike
section 82, there is no discretion to admit the evidence if the desirability of admitting it outweighs the undesirability of
admitting it. Evidence which has been unlawfully retained is admissible only if adduced by the defence; it cannot be
adduced by the prosecution.
As discussed in chapter 14, we found abundant evidence that forensic material is being retained in circumstances
where the law requires that it be destroyed. We note that this evidence would not be admissible in criminal
proceedings. Section 83(1)(d) also suggests that any other evidence made or obtained as a result of or in connection
with the carrying out of the forensic procedure (including preventing a further DNA sample) would not be admissible.
13.4. Challenges to DNA evidence
DNA analysis has been accepted by the courts for many years as a valid scientific technique for identifying the source
of biological material. Nonetheless, DNA evidence is still open to challenge. The main types of challenges now relate
to: the interpretation of analysis results; the way the statistical evidence was calculated; the way the evidence is
presented to the jury; and continuity of the evidence and the possibility of contamination.
13.4.1. Challenges to the science
The validity of DNA profiling was rigorously tested in the courts when it first began to be used in the investigation and
prosecution of crime. Ten years ago, in R v Pantoja (1996), the defence expert gave evidence that he tested DNA
from the crime scene and the accused, with significantly different results than those adduced by the prosecution. On
appeal, the court considered whether the conflict in expert testimony was enough to raise a reasonable doubt about
the accused’s guilt. The court concluded it could not, referring to the many criticisms of the defence expert’s evidence
at trial, including his excessive caution in interpreting DNA analysis results. The appeal was allowed on another
ground, that the prosecution had failed to lead evidence supporting the statistical validity of the databases used.
There were further challenges to the DNA evidence at the retrial, but the accused was ultimately convicted. 1172
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000