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

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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. 254 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
13.5.2. Results of Ombudsman audit The NSW Police records discussed above only relate to cold links, and so do not provide any information about how often, when police take a DNA sample, the suspect is convicted of the offence in relation to which the sample was taken. For this reason there is no accurate way of measuring how often DNA analysis leads to convictions. We were able to get an idea of how often suspects are convicted after forensic procedures have been conducted by reviewing the court outcomes of the 180 forensic procedures included in our audits of local area commands and DAL. We found that, of the 165 forensic procedures conducted on suspects: 1219 • 17 suspects were not charged for the offence • 16 suspects were prosecuted, but were not convicted (this includes one who was found not guilty because of mental illness) • 26 suspects were prosecuted and at the time of writing, the proceedings were ongoing, and • 100 suspects were convicted, although 3 of these were overturned on appeal. Outcomes for forensic procedures included in Ombudsman audit 165 Forensic Procedures Not Charged 17 Charged 148 DPP decided not to proceed 5 Suspect prosecuted 143 Not convicted 16 Convicted 100 Proceedings ongoing 26 Drug programme referral 1 Overturned on appeal 3 Conviction stands 97 Total: 165 (does not include 5 procedures on victims, 8 on volunteers or 2 on suspects where there was no result recorded). NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 255
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DNA sampling and other forensic pro
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October 2006 The Honourable Bob Deb
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October 2006 Commissioner Ken Moron
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Contents Executive summary ........
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Chapter 17. Conclusion ............
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to children, incapable persons and
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The distinction between suspects an
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inadmissible, the suspect is acquit
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• establishing ‘best practice
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12 13 14 15 16 17 18 19 20 Recommen
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Recommendation Paragraph number 29
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46 47 48 49 50 51 52 53 54 55 Recom
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68 69 70 71 72 73 74 75 76 77 78 Re
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89 Recommendation Staff in all labo
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xx NSW Ombudsman DNA sampling and o
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Part 7 of the Crimes (Forensic Proc
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means that a significant number of
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The aim of the audit was to observe
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We followed up 180 of the 371 foren
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Chapter 2. Key provisions of the Ac
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(ii) the breasts of a female or a t
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scraping or lifting by tape from th
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• Some people have the right to h
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Chapter 3. DNA sampling in Australi
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• Security issues. There are conc
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3.3.2. Australian Capital Territory
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3.3.6. Queensland Forensic procedur
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analysis must be relevant to the of
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The FSS is still the largest forens
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The Garda Commissioner (the Irish e
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of operation, 50 per cent of states
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86 For example, NSW Legislative Ass
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150 Police Powers and Responsibilit
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226 DNA Identification Act 1998 (Ca
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Chapter 4. Implementation of the Ac
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Separate training courses are run f
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4.2.1. How easy is it for police of
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Given the widespread reluctance to
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Recommendation 03 NSW Police ensure
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NSW Police has long term plans to r
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The Audit Group has advised that it
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the carrying out of these forensic
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322 Crimes (Forensic Procedures) Ac
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We asked NSW Police why there is su
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Table 2 shows the rate at which for
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Figure 5 shows that, of the forensi
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For procedures conducted on child s
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These figures show that the number
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cent result in a warm link and 13 p
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355 40 out of 450 child suspects: C
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In our 2004 report on the DNA sampl
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6.1.3. Does it matter whether the p
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The distinction between suspects an
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He is not here yet. [The form then
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Recommendation 15 Police consider i
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393 Ombudsman audit of local area c
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Chapter 7. Authority to conduct a f
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Case Study 10 An unknown offender b
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In any event, not all people of int
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intellectual functioning, someone e
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Case Study 15 An elderly woman was
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Even where there is direct evidence
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interest in upholding the physical
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of consent; and secondly, it sugges
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7.3. Suspects: proceeding by order
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second because the orders we were a
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The Police Association of NSW reque
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Case Study 28 A homeless man died a
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grounds to believe the suspect comm
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concern that, in any Act where no s
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forensic procedures by consent, pol
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Case Study 37 Several young men sto
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7.4.11. Appealing against court ord
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Case Study 43 A 25 year old woman w
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involved in the investigation of th
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use a DNA profile from a volunteer
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Several targeted screens have been
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Recommendation 29 The Minister regu
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128 482 Intellectual Disability Rig
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569 Law Enforcement (Powers and Res
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657 Crimes (Forensic Procedures) Ac
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Chapter 8. Conducting a forensic pr
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The availability of persons is some
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Some metropolitan commands suggeste
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conducting forensic procedures (tak
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Section 57 of the Act provides that
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8.5.7. Recording a forensic procedu
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j. The testing officer asks the sus
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Case Study 52 Police took a hair sa
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Recommendation 38 When police offic
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Recommendation 40 NSW Police retain
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It is unclear whether this directiv
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Generally, police provided adequate
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Recommendation 45 NSW Police ensure
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8.10.3. Photographs Section 59 of t
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Recommendation 48 The Crimes (Foren
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746 Since the Act came into force,
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823 NSW Police response to Ombudsma
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Sometimes it’s not clear whether
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This recommendation is supported by
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test container and the man’s t-sh
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considerations. Alternatively, the
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police appear to have treated victi
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We also note that children under th
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888 Confidential LAC survey respons
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the initial agreement between NSW P
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10.3. Receipt of DNA samples DNA sa
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Table 04: Person samples rejected b
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10.3.6. Samples unconnected to a ca
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10.4.1. Suspect-suspect matching Su
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Recommendation 64 DAL deletes all p
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Case Study 68 Four young people lef
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profiles put on the database, but c
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NSW Health supports recommendation
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10.6.5.2. Volunteers For each of th
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10.6.8. DNA analysis in relation to
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Page 240 and 241: turnaround times (in particular, wh
Page 242 and 243: In New South Wales, police or the D
Page 244 and 245: The funding will be used to create
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Page 248 and 249: large batch of serious indictable o
Page 250 and 251: 965 Discussion at meeting with DAL,
Page 252 and 253: 1050 FSG presentation to DAL, attac
Page 254 and 255: DAL confirmed that its records were
Page 256 and 257: Recommendation 81 An audit process
Page 258 and 259: Case Study 75 An unknown offender b
Page 260 and 261: Endnotes 1070 Where police records
Page 262 and 263: Case Study 76 A man was arrested an
Page 264 and 265: it has been there, whether it has d
Page 266 and 267: Case Study 77 Police investigating
Page 268 and 269: Recommendation 89 Staff in all labo
Page 270 and 271: We realise this is a sensitive issu
Page 272 and 273: 1130 Legislative Assembly Hansard,
Page 274 and 275: Case Study 84 An unknown offender b
Page 276 and 277: In making this decision, the court
Page 278 and 279: evidence. Police would still, of co
Page 280 and 281: If two samples match, it is possibl
Page 282 and 283: Similar issues were considered in R
Page 286 and 287: These results must be interpreted w
Page 288 and 289: 1179 Letter from DPP, 24 March 2005
Page 290 and 291: Chapter 14. Destruction of forensic
Page 292 and 293: 14.2.2. Identifying DNA profiles wh
Page 294 and 295: Recommendation 94 When DAL receives
Page 296 and 297: Recommendation 96 DAL delete all pr
Page 298 and 299: Recommendation 98 Section 87 of the
Page 300 and 301: 14.3. Retaining genetic material fr
Page 302 and 303: 1255 Based on DAL’s advice in its
Page 304 and 305: • a complaint about the incorrect
Page 306 and 307: The Ombudsman found that the police
Page 308 and 309: • The man was not cautioned prior
Page 310 and 311: 15.3.5. Failure to maintain proper
Page 312 and 313: • the supervising sergeant did no
Page 314 and 315: Case Study 91 In 2004, a lorry driv
Page 316 and 317: 16.2. Possible problems with DNA Be
Page 318 and 319: 1319 Letter from Homicide Squad dat
Page 320 and 321: Appendix. Implementation of recomme
Page 322 and 323: at staff development days. In addit
Page 324 and 325: Term Definition / explanation Conta
Page 326 and 327: Term Definition / explanation Incap
Page 328 and 329: Term Definition / explanation Victi
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