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

These results must be interpreted with caution, as the suspects included in our audit may have been charged with
more than one count or more than one offence. Police records of criminal proceedings did not always indicate
whether the conviction related to the offence for which the forensic procedure was conducted, or another offence. For
this reason, some of the suspects recorded as having been convicted may in fact have been convicted of a related
offence, and not of the offence for which the forensic procedure was conducted. That said, the results do show that
a majority of the suspects included in the audit sample – almost 60 per cent – were convicted of an offence. About a
quarter were not convicted of any offence. The rest of the matters were still before the courts.
It was not possible to measure the impact DNA or other forensic evidence had on the outcome of each case.
However, comparing the DNA analysis results with the court outcomes shows that DNA analysis results are not
determinative – warm links do not always lead to conviction, and exclusions do not always result in acquittal. At least
three suspects were acquitted despite warm links to crime scene evidence; and at least 12 were convicted although
they were not implicated by the DNA analysis. We were unable to identify the impact analysis results had on the
likelihood of convictions because, as discussed at 10.6.5, DAL was unable to provide analysis results for a significant
number of matters included in the audit sample.
13.5.3. Effect on plea
In most cases involving DNA evidence, it is not challenged. Some police officers we surveyed suggested that DNA
evidence linking a suspect to a crime scene often results in the person pleading guilty to the offence (or, if the person
pleads not guilty, the DNA component of the prosecution case is not challenged). 1220
We asked the DPP whether it is aware of matters where the defendant has changed his or her plea from not guilty to
guilty as a result of the DNA evidence being adduced. The DPP advised that it had no particular information about this
issue, commenting that while DNA evidence is no doubt a factor in influencing a guilty plea, the DPP is rarely advised
of the reasons for a plea or a change of plea. 1221
13.6. Sentencing
13.6.1. Consenting to a forensic procedure
Complying with a request by police to undergo a forensic procedure does not, of itself, entitle a convicted offender
to a discounted sentence. However, it is a factor which may be taken into account when considering the degree of
assistance the accused has given police.
In R v Newman (2004), the accused pleaded guilty to three break, enter and steal offences, and was sentenced to
almost five years imprisonment. This included a 12.5 per cent discount for the guilty plea. In interview the accused
told police he had no memory of having committed the offences, being drug affected at the time, but he pleaded
guilty on the basis of the DNA analysis results. The accused appealed against his sentence on the basis that the court
had not given sufficient weight to his guilty plea. The court observed that the extent of the discount is a matter for the
discretion of the sentencing judge, although it generally depends on first, the time at which the plea is entered during
proceedings; and second, the complexity of the issues and the amount of evidence which has to be adduced to
prove the elements of the offence. The appeal failed as the court was not persuaded that the trial judged erred in the
discount given. 1222
In R v Fernando (2004), the accused pleaded guilty to an act of indecency, and was sentenced to nine and a half
years imprisonment. The trial judge did not quantify the discount she gave him for pleading guilty, but stated that the
sentence did take into account his cooperation with police. The accused appealed against the sentence, arguing
that the trial judge placed no significance on the fact the accused provided a DNA sample by consent. On appeal
the court acknowledged that it was not certain that, had the accused refused to provide the sample by consent, an
order would have been made compelling him to provide the sample. However, it concluded that there was no error
because the trial judge failed to provide a specific discount for providing the sample – it was sufficient that she took
into account the accused’s cooperation with police in general. 1223
In R v Hoskins (2004), the accused pleaded guilty to malicious wounding, after stabbing another inmate. He was
sentenced to six years imprisonment, which allowed for a 25 per cent discount for pleading guilty and a 15 per
cent discount for his assistance to the authorities, in making admissions and providing a DNA sample by consent.
The Crown appealed against the sentence, on the basis that the trial judge had erred in allowing the discount for
assistance to the authorities on top of the general discount for pleading guilty. The court accepted that this was an
error, and the accused’s sentence was increased. 1224
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000