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

Recommendation 100
The Attorney General implement a system to ensure that magistrates notify the responsible person of any
extension given under section 88, as required by the Crimes (Forensic Procedures) Act 2000.
NSW Police supports this recommendation. 1280 The Attorney General’s Department advised it will endeavour to use
CourtLink, or other appropriate means, to ensure magistrates comply with their obligation to notify the responsible
person of extensions. It also commented that:
The obligation to ensure destruction of samples under the Act generally falls upon police officers and there
appear to be few additional policy considerations raised by applications for extension of the 12 month
destruction period. Therefore, consideration might be given to amending section 88(8) of the Act to require that
the applicant under section 88(5), not the Magistrate, has the obligation to inform the person in charge of the
DNA database of any extension granted. 1281
14.2.12. Retention orders
Section 81 of the Act provides that police or the DPP may apply for an order that forensic material taken from a
volunteer be retained after the volunteer withdraws consent to its retention. These orders are available only in very
limited circumstances – where police are investigating a serious offence, and material reasonably believed to be from
the offender has been found at the crime scene, on the victim, on the volunteer, or on an object or person reasonably
believed to have been associated with the commission of the offence. There must be reasonable grounds to believe
that information obtained from analysis of the forensic material is likely to produce evidence of probative value, and
retention of the forensic material taken from the volunteer must be justified in all the circumstances. The order may
specify the period for which the forensic material may be retained.
Section 81 as currently drafted is very confusing. The legislative heading reads, “Retention of forensic material by
order of a magistrate after parent or guardian of child or incapable person withdraws consent.” However, there is
no reference in the section to the withdrawal of consent by a parent or guardian, it simply refers to “a volunteer
who withdraws consent.” While the heading suggests that the retention orders are available only where a parent or
guardian withdraws consent, the text of section 81 could apply to any volunteer who withdraws consent, including, for
example, an adult volunteer who has subsequently become a suspect, who wishes his or her forensic material to be
destroyed. We also note that section 80 provides specifically for circumstances where a parent or guardian refuses or
withdraws consent.
Under the Interpretation Act 1987, the heading of a provision does not form part of the Act, but it may be considered
to help determine the meaning of the provision if the provision is ambiguous, or if the ordinary meaning conveyed
by the text of the provision leads to a manifestly absurd or unreasonable result. 1282 In this case, the text of section 81
is neither ambiguous nor absurd – it simply does not accord with the heading of the provision. In addition, it makes
sense that section 81 does apply to all volunteers, and on one reading the heading appears to be a drafting error.
We are not aware of any applications for retention orders under section 81, and cannot comment any further on the
issue. However, we expect it would be difficult for all involved – applicants, volunteers and magistrates – to determine
whether the provision applies to all volunteers who withdraw consent, or only to volunteers whose parent or guardian
has withdrawn consent. We recommend this be clarified.
Recommendation 101
That section 81 of the Crimes (Forensic Procedures) Act 2000 be clarified to make clear its application to
volunteers including whether it only applies to volunteers whose parent or guardian has withdrawn consent.
The Attorney General’s Department commented that the recommendation appears sensible, as the policy behind
section 81 as currently drafted is not clear. 1283 NSW Police also supports the recommendation. 1284
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 269