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

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1179 Letter from DPP, 24 March 2005. 1180 R v MSK and MAK, unreported, Supreme Court 070201/03 and 070002/03. The appeal case was reported at [2004] NSWCCA 308, but the DNA evidence was not raised on appeal. 1181 R v Fricker, unreported, Distict Court 03/51/0165 and advice from DPP 24 March 2005. 1182 R v Styman and Tauber, unreported, Supreme Court 02/91/0020 and advice from DPP, 24 March 2005. 1183 R v Styman and Tauber, unreported, Supreme Court 02/91/0020, transcript 4 December 2002 at p. 130. 1184 Known as Hardy-Weinberg equilibrium. See D Balding, Weight-of-evidence for Forensic DNA Profiles (2005) p. 69. 1185 R v Wakefield [2004] NSWCCA 288 at paragraph 36 (Smart AJ). 1186 R v Yates, Parry, Hyland, Powick [2002] NSWCCA 520 at paragraph 65 (Wood CJ at CL, Hulme and Buddin JJ). 1187 D Balding, Weight-of-evidence for Forensic DNA Profiles (2005) p. 32. 1188 Applied Biosystem, Product Bulletin Human Identification located at http://docs.appliedbiosystems.com/pebiodocs/00112873.pdf, accessed on 7 December 2005. 1189 United Kingdom Forensic Science Service, The National DNA Database Annual Report 2002-03, p. 5 and the “Current DNA techniques” page of the New Zealand Environmental Science and Research Limited website http://www.esr.cri.nz/competencies/forensicscience/ dna/currenttechniques.htm accessed on 7 December 2005. 1190 Mark Findlay, Independent review of the Crimes (Forensic Procedures) Act 2000 (April 2003) at 6-7-2. 1191 See R v Bropho [2004] WADC 182. 1192 The DNA evidence was challenged again at the retrial, but the accused was ultimately convicted. See R v Pantoja (1996) 88 A Crim R 554 and R v Pantoja [1998] NSWSC 656. 1193 R v To [2002] NSWCCA 247. The relevance of ethnic background was also discussed in R v Pantoja (1996) 88 A Crim R 554. 1194 R v Bropho [2004] WADC 182. 1195 R v Lisoff [1999] NSWCCA 364 at paragraph 55 and 64. 1196 R v GK [2001] NSWCCA 413 at paragraph 96. 1197 R v GK [2001] NSWCCA 413 at paragraphs 30 and 39. 1198 R v Galli [2001] NSWCCA 504. 1199 R v Yates, Parry, Hyland, Powick [2002] NSWCCA 520. 1200 R v Wakefield 2004] NSWCCA 288. 1201 See R v Milat (unreported) NSWSC, No. 70114 of 1994: Statistical Validity of Databases, 22 April 1996 (Hunt CJ at CL) and R v Galli [2001] NSWCCA 504. 1202 R v Styman and Tauber, unreported, Supreme Court 02/91/0020, transcript 4 December 2002, p. 130. 1203 D Balding, Weight-of-evidence for Forensic DNA Profiles (2005) p. 146. 1204 See R v GK [2001] NSWCCA 413 at paragraphs 33, 34 and 59. 1205 See R v Galli [2001] NSWCCA 504 at paragraphs 79 to 97. 1206 R v Keir [2002] NSWCCA 30. 1207 R v Yates, Parry, Hyland, Powick [2002] NSWCCA 520 at paragraph 156. 1208 R v Wakefield [2004] NSWCCA 288. 1209 “Falconio defence questions DNA ‘evidence’”, Sydney Morning Herald, 25 November 2005. 1210 “Forensic experts at odds over evidence”, Sydney Morning Herald, 2 December 2005. 1211 DNAResource Report dated 10 June 2005. 1212 Confidential survey response. 1213 Confidential survey response. 1214 Confidential LAC survey response. 1215 R v Sing [2002] NSWCCA 20 at paragraph 38. See also R v Ryan {2002] VSCA 176. 1216 Minutes of the DNA Advisory Committee, 6 August 2004. 1217 COPS download data provided by FPIT on 15 July 2005. 1218 Information supplied by FPIT on 22 June 2005. 1219 Eight procedures were conducted on volunteers and the remaining five were conducted on victims, and were initially included in our audit sample because police records indicated they were volunteers. 258 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
1220 Minutes of the DNA Advisory Committee, 24 March 2003 and confidential survey responses. 1221 Letter from DPP, 24 March 2005. 1222 R v Newman [2004] NSWCCA 113. 1223 R v Fernando [2004] NSWCCA 147. 1224 R v Hoskins [2004] NSWCCA 236. 1225 R v Henry [2004] NSWCCA 306. NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 259
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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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‘Depends on seriousness of offenc
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admits being there then what is the
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Page 240 and 241: turnaround times (in particular, wh
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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 284 and 285: Where the defence wishes to challen
Page 286 and 287: These results must be interpreted w
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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