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

Chapter 14. Destruction of forensic
material
Part 10 of the Act sets out the circumstances in which material obtained through forensic procedures must be
destroyed. The destruction requirements apply to “forensic material,” which includes DNA samples, fingerprints,
photographs, casts or impressions and other types of samples taken from a person’s body. 1226 This chapter outlines
the destruction requirements for material taken from suspects and volunteers, and discusses the adequacy of the
mechanisms currently in place to ensure the destruction requirements are met.
14.1. Responsibility for destruction of forensic material
Both NSW Police and DAL play a part in destroying DNA samples – NSW Police identifies which samples need to
be destroyed, and DAL carries out the actual destruction. Under the Deed of Agreement, FPIT agreed to provide
DAL with destruction requests at least two days prior to the stipulated destruction date. DAL agreed to destroy DNA
samples and identifying information only with the express permission of FPIT, and agreed to provide FPIT with a
destruction certificate within two days of destroying a sample.
NSW Police and DAL have both pointed out that, under the Deed of Agreement, NSW Police makes the decision
about whether to destroy forensic material, although the material itself is stored at DAL. 1227 We note that regardless of
the Deed of Agreement, NSW Police and DAL still have to comply with their legislative obligations. This is complicated
by the fact that the Act does not specify who the “responsible person” is, so the functions and responsibilities of the
responsible person are shared between the Commissioner of Police and Chief Executive Officers of Western Sydney
Area Health Service and DAL.
DAL has requested that this issue be clarified by the working group run by the Criminal Law Review Division of
the Attorney General’s Department, which was formed in response to the Findlay review of the Act. As we noted
previously at 4.4, in our view, there should be no question as to who is the ‘responsible person’. This should be made
very clear in relevant legislation and administrative arrangements. We have recommended that this occur as a matter
of priority (see recommendation 9).
14.2. Destroying forensic DNA material
The Act provides that a person destroys forensic material, the analysis results or other information obtained through
the forensic procedure (including information on the DNA database) if the person “destroys any means of identifying
the forensic material or information with the person from whom it was taken or to whom it relates.” 1228 Identifying
information means any information that could be used to discover the identity of the person who provided the sample,
or to get information about an identifiable person. 1229 In this way, the Act requires de-identification of information and
material obtained through forensic procedures, rather than physical destruction of the actual biological material.
At no point does the Act specify that forensic material itself needs to be destroyed. 1230
14.2.1. When should forensic DNA material be destroyed
14.2.1.1. Volunteers
The Act does not specifically provide for the destruction of forensic material taken from volunteers. However, it does
provide that any identifying information (that is, information which could be used to discover the identity of the person
who provided the DNA sample) relating to a volunteer must be removed from the database as soon as practicable
after the agreed retention period ends. 1231 Rather than specify a period for which information about volunteers can
be retained, the Act provides that it can be retained for such period as the volunteer and the Commissioner of Police
agree. 1232 As happens with DNA samples taken from suspects, DAL only destroys volunteer samples with the express
permission of FPIT.
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000