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

14.2.2. Identifying DNA profiles which need to be destroyed
FPIT monitors the progress of investigations and court proceedings involving DNA evidence. FPIT notifies DAL
whenever a person is acquitted, charges are dropped, or evidence of the forensic procedure is ruled inadmissible,
and instructs DAL to destroy the relevant forensic material. FPIT also notifies DAL where a conviction is recorded, and
instructs DAL to convert the status of the person who provided the sample from suspect to “offender” on the DNA
database.
NSW Police has advised that FPIT “from time to time” downloads lists of forensic procedures conducted on suspects
where after 12 months there has been no action taken either to destroy the sample or convert the suspect’s profile to
a convicted offender profile. In each case, FPIT makes inquiries with investigating police to find out the status of the
investigation, whether proceedings against the person have been commenced, whether an order has been sought
authorising retention of the material or whether a warrant has been issued for the suspect’s apprehension. In addition,
there is a police liaison person at DAL who checks with investigators whether items on hand at DAL still require
investigation.
14.2.2.1. Problems identifying samples due for destruction
FPIT has advised that monitoring court proceedings to identify forensic material which has to be destroyed is labour
intensive and very time consuming. We understand that FPIT does not begin to follow up forensic procedures where
no action has been taken until after the first 12 months has passed. It may then take some time to ascertain the
status of the matter from the investigating police officer. For this reason, it is not uncommon for forensic material to be
retained for some time after the required destruction date has passed.
Further, FPIT has indicated that it has considerable difficulty obtaining court results. Local court results are received
electronically, but these are not always accurate. Results from the higher courts are not available electronically,
although it is anticipated that this will be possible when the new computer system (CourtLink) is implemented.
FPIT also has difficulty identifying cases where, although the person has been convicted, the DNA profile has to
be destroyed because the evidence was ruled inadmissible. 1242 We understand the court registry would not keep
a record of this, and that FPIT would not be informed that the material had to be destroyed, unless the DPP or
investigating police officer advised FPIT that the evidence had been ruled inadmissible and needed to be destroyed.
The Attorney General’s Department’s CourtLink project confirmed that once CourtLink becomes operational the
criminal records section of NSW Police will receive automated destruction notices in relation to fingerprint records
taken from child suspects following acquittals. 1243 It may be possible for NSW Police to negotiate with the Attorney
General’s Department for similar electronic notifications to be issued for forensic material in circumstances where the
evidence was inadmissible, an interim order was disallowed or the suspect was acquitted.
Another problem with identifying samples due for destruction is that for many forensic procedures, the date the
procedure was recorded on COPS is not the same as the date the procedure was actually conducted, as indicated
on the hardcopy records of the procedure. We found during our audits of local area commands that in some cases,
this was because the information was entered onto COPS at a later date. This was usually within a few days of
the procedure being conducted. However, there were other cases where the COPS record appears to have been
updated, and the date has changed. For example, for some procedures the date on COPS actually reflected the date
the analysis report was received from DAL. In one procedure, the date on COPS had changed from 1 July 2002 to
12 November 2002, over four months later. 1244 Considering how long DNA analysis may take, there could be a large
discrepancy between the date indicated by COPS and the date the procedure was actually carried out.
This means that although the Act envisages that the clock starts ticking on the day the DNA sample is taken, FPIT will
not be alerted to the retention period having expired if the records on COPS are wrong, and the forensic material will
be retained unlawfully.
Improving COPS records of forensic procedures is vital to ensuring the destruction requirements of the Act are met,
and for this reason we reiterate our recommendations 1,5 and 7, that NSW Police review its record keeping system
to ensure that accurate records of all forensic procedures are kept on COPS, and take into account problems with
recording forensic procedures in its mainframe replacement program. In addition, COPS should include fields for the
date destruction is due, and the date the sample is either destroyed, or converted to a convicted offender profile.
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000