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

Recommendation 94
When DAL receives a destruction request, it deletes the DNA profile from the database, as well as destroying
the forensic material and identifying information.
NSW Health advised that it is possible to delete the DNA profile when it receives a destruction request from NSW
Police. It is currently pursuing the matter with NSW Police, as the recommendation requires changes to be made to
the memorandum of understanding in place between DAL and NSW Police. 1251
14.2.4. Keeping records of profiles which have been destroyed
When the Act first came into force, DAL was destroying all records relating to samples which had to be destroyed.
We were unable to audit DAL properly, as it had no way of identifying how many or which DNA samples had been
destroyed. DAL reviewed this practice during our monitoring of the DNA sampling of serious indictable offenders, and
since September 2001 has kept a record of the barcode and destruction date of the samples it has destroyed. We
understand DAL discussed this issue with the DNA Advisory Committee before deciding that these records should be
retained. 1252
It is arguable that in the interests of privacy, every record relating to a person’s DNA sample should be destroyed
when the sample itself and identifying information has to be destroyed. However, there is a strong public interest in
ensuring DAL is accountable, and can verify which DNA samples it has received and which it has destroyed. In our
view, this outweighs the public interest in destroying every record that a person has ever provided a DNA sample,
and ensures DAL complies with it obligations under the State Records Act 1998 to keep full and accurate records of
its activities. 1253 Further, even where DAL destroys a sample, NSW Police retains records of the forensic procedure,
including the COPS record, consent form, exhibit book entry and video.
14.2.5. How many DNA samples have been destroyed
14.2.5.1. Volunteers
During the review period, NSW Police requested that DAL destroy only five DNA samples taken from volunteers. 1254
This means that less than 1 per cent of DNA samples provided by volunteers during the review period have been
destroyed. 1255 The vast majority of volunteer profiles remain on the database, with their identifying information,
although they are not matched against any of the indexes.
Our audit of DAL included seven DNA samples which DAL recorded as having been taken from volunteers. 1256
None of these had been destroyed. This would be expected, given that NSW Police only instructs DAL to destroy
profiles on written request from the person who provided the sample, which happens very rarely.
14.2.5.2. Suspects
During the review period, NSW Police identified 1,060 samples which had to be destroyed, which is approximately 12
per cent of the DNA samples provided by suspects during the review period. 1257 The proportion of samples which will
ultimately be destroyed will be higher than this, given that in many cases court proceedings were ongoing at the end
of the review period.
14.2.6. Results of Ombudsman audit
DAL advised that of the 180 forensic procedures we included in our audit, 67 DNA profiles were still on the database
as suspects. 1258 We reviewed these and found that for 47 procedures, more than a year had elapsed since the
procedure had been conducted. This included 12 procedures where over two years had elapsed, and two procedures
where over three years had elapsed. The longest time any of the suspect samples had been kept was 3 years, and 9
months. 1259
We then sought advice from NSW Police as to why each of these 47 procedures had been retained for over a year.
The Act only permits suspect samples to be retained beyond 12 months where proceedings have commenced
against the person, a warrant has been issued for the person’s apprehension, or police or the DPP have obtained an
extension from a magistrate. NSW Police advised that: 1260
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000