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

Where the defence wishes to challenge evidence relating to the way samples were handled in the laboratory, the
prosecution must ensure that all the people involved in the analysis are available to give evidence. In R v Sing (2002),
the accused was convicted of aggravated sexual assault. At trial, the prosecution adduced evidence that the DNA
profile derived from vaginal swabs taken from the victim after the assault matched the accused’s DNA profile.
Two forensic biologists from DAL gave evidence about the tests done on the evidence under their supervision,
and about their interpretation of the analysis results. On appeal, the defence argued that the evidence should be
excluded on the basis that it was hearsay – neither of the biologists carried out the actual testing, and the laboratory
staff who did were not called. The court concluded that DNA test results could not be proved merely through
evidence of the standard procedures and instructions given, and that the prosecution’s failure to call all the necessary
witnesses deprived the appellant of the opportunity to test the evidence. The conviction was quashed and a new trial
ordered. Before this case, there was no practice that all laboratory staff involved in the DNA analysis be called. 1215
DAL was obviously concerned about the implications of the Sing decision. As discussed at length in this report, the
laboratory does not have enough staff or resources to meet the demand for DNA analysis, and requiring more staff to
attend court would put further strain on the laboratory.
Usually, however, DNA evidence is adduced by tendering a certificate of expert evidence, pursuant to section 177
of the Evidence Act 1995. The prosecution must give the defence notice that it proposes to tender the certificate as
evidence of the opinion, and must serve a copy of the notice of the defence at least three weeks before the hearing.
The defence must give written notice to the prosecution if it requires the expert to give evidence in person. The court
may order the defence to pay costs if it requires the expert to give evidence in person without reasonable cause.
13.5. Outcomes of criminal proceedings involving forensic evidence
We sought to assess how often DNA analysis results in a suspect being prosecuted for an offence, and how often
prosecutions result in conviction. However, neither DAL nor NSW Police keep comprehensive records relating to
criminal proceedings involving DNA links.
Minutes from DNA Advisory Committee meetings indicate that in August 2004, DNA analysis has resulted in 1,800
arrests and over 1,000 convictions. 1216 It is not clear how this figure was reached, given that court results stemming
from cold links do not appear to be systematically recorded, and warm links do not appear to be centrally recorded at
all. We note that at that time, police had taken over 6,000 DNA samples from suspects. 1217
13.5.1. Types of offences
NSW Police only keeps records of charges and convictions in relation to cold links. That is, where a person who has
not previously been identified as a suspect is linked to a crime scene. This is a very limited way of measuring how
effectively police are using their forensic procedure powers, as it does not include matters where police took a DNA
sample from a person they have already identified as a suspect.
We set out the number of charges and convictions stemming from cold links for the final two years of the review
period in table 3. The table shows that there have been many more convictions for less serious types of offences, like
break, enter and steal (over 1,500 convictions), than for more serious types of offences, like murder (one conviction)
and sexual assault (20 convictions). This would be expected, given that the less serious types of offences are
committed much more frequently. Further, police are more likely to devote time and resources to the investigation of
serious offences, and identify a suspect directly, rather than through a cold link some time later.
Table 3 also shows that in all categories of crime, the number of convictions is significantly less than the number of
identifications. For example, there were 15 links for murder, but only one conviction; there were 200 links for armed
robbery, but only 32 convictions; and there were 55 links for aggravated robbery, but only three convictions. This
trend is also apparent for less serious offences. For example, there were almost 3,000 links for break, enter and
steal offences, but only 1,500 convictions; and there were over 500 links for stolen motor vehicles but only 200 or so
convictions. 1218 There are a number of factors which contribute to this. First, not all links result in prosecution. Police
may decide not to pursue a matter, either because there is insufficient evidence or because of the nature of the
offence and the length of time which has passed. Second, the number of convictions will lag behind the number of
links, because criminal proceedings, particularly for serious offences, may take a long time to finalise. For this reason,
the gap between the number of convictions and the number of links may narrow over time.
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000