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

The Act currently allows investigating authorities to retain a suspect’s DNA sample and profile for 12 months to
conduct forensic analysis. This period seeks to strike a balance between fairness to suspects and the needs of
investigators. Retaining a suspect’s DNA beyond this period because of administrative efficiency is not warranted,
in the absence of special reasons for doing so. This is especially so where a suspect has been ordered to provide
a DNA sample against his or her will. This review supports the need for better processes which will streamline NSW
Police’s role. Still, no strong case has been made for the amendments requested by NSW Police.
Recommendation 97
DAL’s case management system be developed so that any cases where a destruction date is approaching,
and the relevant crime scene evidence has not been examined, are flagged for prioritised examination.
NSW Police supports this recommendation. 1269 NSW Health indicated it supports the recommendation in principle,
and is currently examining how best to implement it. 1270
14.2.10. Destruction where a suspect’s conviction is overturned on appeal
Section 87 of the Act requires forensic material taken from a convicted offender to be destroyed if the offender’s
conviction is quashed. However, its application is quite limited. First, it only applies to forensic material taken by order
of a court or senior police officer. In our 2004 report, we recommended that section 87 be amended so that forensic
material obtained from offenders by consent also had to be destroyed, if the offender’s conviction is quashed. 1271
Second, section 87 applies only to forensic material obtained from serious indictable offenders, under Part 7 of the
Act. It does not apply to forensic material taken from suspects, which is taken under Parts 2 to 6 of the Act.
It appears that while the Act requires forensic material to be destroyed where the suspect is acquitted, no conviction
is recorded, or proceedings are discontinued, there is no requirement to destroy forensic material where the suspect’s
conviction is quashed on appeal. 1272 The Act allows for DNA profiles “from suspects who have been convicted of
prescribed offences” to be retained on the offenders index, but it does not specify what happens if the person’s
conviction is quashed.
We understand it is NSW Police policy to destroy forensic material obtained from successful appellants who provided
DNA samples as suspects, but only where NSW Police receives a request from the appellant or his or her legal
representative. FPIT does not monitor appeals, other than appeals by serious indictable offenders, who provided DNA
samples under Part 7. FPIT advised that of the 712 appeals finalised in 2004, 225 were upheld, but it could not advise
how many of these involved forensic material taken from the appellant as a suspect.
We can see no reason why the Act should distinguish between suspects who are acquitted at first instance, and those
whose conviction is set aside on appeal. For this reason, we are of the view that section 87 should be amended to
cover forensic procedures carried out on suspects whose conviction is quashed on appeal. We also recommend
that NSW Police implement a reliable system for monitoring appeals where forensic material was obtained from the
appellant as a suspect, to ensure that any forensic material which should be destroyed is identified.
In our draft report, we made a provisional recommendation, that the Act be amended to require that forensic
material taken from a suspect be destroyed as soon as practicable if the suspect is convicted and the conviction
is subsequently quashed. NSW Police indicated that it supports this recommendation. 1273 The Attorney General’s
Department did not comment on the policy underpinning the recommendation but commented:
The wording of the Recommendation may need to be reconsidered. It would impede the administration of
justice if all forensic material had to be destroyed merely because a conviction was quashed, where a retrial or
rehearing was subsequently held or ordered. Such a requirement would mandate the destruction of evidence
relevant to an impending trial. The Court of Criminal Appeal regularly orders that a conviction is to be quashed
and a retrial held. Also, it is unclear from the terms of the proposed Recommendation whether an application for
annulment of conviction in the Local Court granted under Part 2 of the Crimes (Local Courts Appeal and Review)
Act 2001 is to be treated as the ‘quashing’ of a conviction. 1274
We agree that forensic material should not be destroyed where there is a reasonable prospect of a retrial or rehearing.
We also clarify that forensic material should be destroyed for convictions which are set aside, whether they are
quashed or annulled.
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 267