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

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xx NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
Chapter 1. Background 1.1. Introduction The Crimes (Forensic Procedures) Act 2000 (the Act) created new police powers to carry out forensic procedures, such as taking DNA from a person’s saliva, hair or blood. Other forensic procedures include external examinations of a person’s body, taking photographs of tattoos or scars, taking fingernail scrapings, swabbing a person’s hands, or taking a dental impression. The Act sets out the circumstances in which police can conduct forensic procedures. It also sets out how forensic material from those procedures may be used, and when that material must be destroyed. It also provides for a DNA database system to be established, so that DNA profiles from certain people can be matched against DNA obtained from unsolved crime scenes. The Act also outlines the rules for participation by NSW in the National Criminal Identification DNA Database. The Act commenced on 1 January 2001, but Part 8, which deals with volunteers, did not commence until 1 June 2003. 1.2. Review mechanisms The Act provides for three different review mechanisms: • Inquiry by the Standing Committee on Law and Justice. The NSW Parliamentary Standing Committee on Law and Justice was required to undertake an inquiry into the operation of the Act, and report to Parliament as soon as possible after 18 months from the Act’s assent. 2 It reported its findings in February 2002. 3 The inquiry focused on the “reliability and effectiveness of DNA evidence, and the legal and social implications of its use in criminal investigations.” 4 • Review by the Attorney General. The Attorney General was required to review the Act to determine whether its policy objectives remain valid, and whether the terms of the Act remain appropriate to securing those objectives. The review was to be undertaken as soon as possible after 18 months from the date of assent, and the Attorney General was required to report to Parliament on the outcome of the review within the following 12 months. 5 The Criminal Law Review Division of the NSW Attorney General’s Department invited Professor Mark Findlay, Deputy Director of the Institute of Criminology, University of Sydney, to conduct the required review on behalf of the Attorney General. The Findlay report was finalised in April 2003. • Monitoring of the operation of the Act by the Ombudsman. The Act initially required the Ombudsman to keep under scrutiny the exercise of functions conferred on police officers under the Act for two years from the date of assent – that is from 5 July 2000. As Part 8 of the legislation did not commence until 1 June 2003, the review period was extended, requiring the Ombudsman to scrutinise functions conferred on police for 18 months following the commencement of Part 8. 6 The Ombudsman is required to prepare a report of the work and activities under this section, as soon as practicable after the expiration of the review period. The report is provided to the Attorney General, Minister for Police and Commissioner for Police. The Attorney General must provide a copy of this report to Parliament as soon as practicable after receipt. 1.3. Structure of our review The Act enables police to conduct forensic procedures on three different categories of people – convicted offenders, suspects and volunteers. Because the mass testing of inmates and detainees was largely conducted in the first two years of the Act’s operation, and raises considerably different issues from conducting forensic procedures on people suspected of having committed an offence and people who volunteer to undergo a procedure, we conducted our review in two stages. The first stage of our review focused exclusively on the DNA sampling of people serving a sentence of imprisonment for an offence carrying a maximum penalty of five years imprisonment or more. 7 Since the Act commenced, NSW Police has attempted to obtain DNA samples from all people who fall within this category, which amounts to approximately 75 per cent of the NSW correctional centre population. We reported to the Attorney General on this aspect of our review in August 2004, in our report, The Forensic DNA Sampling of Serious Indictable Offenders under NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 1
Page 2 and 3: DNA sampling and other forensic pro
Page 4 and 5: October 2006 The Honourable Bob Deb
Page 6 and 7: October 2006 Commissioner Ken Moron
Page 8 and 9: Contents Executive summary ........
Page 10 and 11: Chapter 17. Conclusion ............
Page 12 and 13: to children, incapable persons and
Page 14 and 15: The distinction between suspects an
Page 16 and 17: inadmissible, the suspect is acquit
Page 18 and 19: • establishing ‘best practice
Page 20 and 21: 12 13 14 15 16 17 18 19 20 Recommen
Page 22 and 23: Recommendation Paragraph number 29
Page 24 and 25: 46 47 48 49 50 51 52 53 54 55 Recom
Page 26 and 27: 68 69 70 71 72 73 74 75 76 77 78 Re
Page 28 and 29: 89 Recommendation Staff in all labo
Page 32 and 33: Part 7 of the Crimes (Forensic Proc
Page 34 and 35: means that a significant number of
Page 36 and 37: The aim of the audit was to observe
Page 38 and 39: We followed up 180 of the 371 foren
Page 40 and 41: Chapter 2. Key provisions of the Ac
Page 42 and 43: (ii) the breasts of a female or a t
Page 44 and 45: scraping or lifting by tape from th
Page 46 and 47: • Some people have the right to h
Page 48 and 49: Chapter 3. DNA sampling in Australi
Page 50 and 51: • Security issues. There are conc
Page 52 and 53: 3.3.2. Australian Capital Territory
Page 54 and 55: 3.3.6. Queensland Forensic procedur
Page 56 and 57: analysis must be relevant to the of
Page 58 and 59: The FSS is still the largest forens
Page 60 and 61: The Garda Commissioner (the Irish e
Page 62 and 63: of operation, 50 per cent of states
Page 64 and 65: 86 For example, NSW Legislative Ass
Page 66 and 67: 150 Police Powers and Responsibilit
Page 68 and 69: 226 DNA Identification Act 1998 (Ca
Page 70 and 71: Chapter 4. Implementation of the Ac
Page 72 and 73: Separate training courses are run f
Page 74 and 75: 4.2.1. How easy is it for police of
Page 76 and 77: Given the widespread reluctance to
Page 78 and 79: Recommendation 03 NSW Police ensure
Page 80 and 81:
NSW Police has long term plans to r
Page 82 and 83:
The Audit Group has advised that it
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the carrying out of these forensic
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322 Crimes (Forensic Procedures) Ac
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We asked NSW Police why there is su
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Table 2 shows the rate at which for
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Figure 5 shows that, of the forensi
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For procedures conducted on child s
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These figures show that the number
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cent result in a warm link and 13 p
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355 40 out of 450 child suspects: C
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In our 2004 report on the DNA sampl
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6.1.3. Does it matter whether the p
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The distinction between suspects an
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He is not here yet. [The form then
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Recommendation 15 Police consider i
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393 Ombudsman audit of local area c
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Chapter 7. Authority to conduct a f
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Case Study 10 An unknown offender b
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In any event, not all people of int
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intellectual functioning, someone e
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Case Study 15 An elderly woman was
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Even where there is direct evidence
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interest in upholding the physical
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of consent; and secondly, it sugges
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7.3. Suspects: proceeding by order
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second because the orders we were a
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The Police Association of NSW reque
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Case Study 28 A homeless man died a
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grounds to believe the suspect comm
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concern that, in any Act where no s
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forensic procedures by consent, pol
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Case Study 37 Several young men sto
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7.4.11. Appealing against court ord
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Case Study 43 A 25 year old woman w
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involved in the investigation of th
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use a DNA profile from a volunteer
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Several targeted screens have been
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Recommendation 29 The Minister regu
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128 482 Intellectual Disability Rig
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569 Law Enforcement (Powers and Res
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657 Crimes (Forensic Procedures) Ac
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Chapter 8. Conducting a forensic pr
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The availability of persons is some
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Some metropolitan commands suggeste
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conducting forensic procedures (tak
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Section 57 of the Act provides that
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8.5.7. Recording a forensic procedu
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j. The testing officer asks the sus
Page 178 and 179:
Case Study 52 Police took a hair sa
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Recommendation 38 When police offic
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Recommendation 40 NSW Police retain
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It is unclear whether this directiv
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Generally, police provided adequate
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Recommendation 45 NSW Police ensure
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8.10.3. Photographs Section 59 of t
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Recommendation 48 The Crimes (Foren
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746 Since the Act came into force,
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823 NSW Police response to Ombudsma
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Sometimes it’s not clear whether
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This recommendation is supported by
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test container and the man’s t-sh
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considerations. Alternatively, the
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police appear to have treated victi
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We also note that children under th
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888 Confidential LAC survey respons
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the initial agreement between NSW P
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10.3. Receipt of DNA samples DNA sa
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Table 04: Person samples rejected b
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10.3.6. Samples unconnected to a ca
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10.4.1. Suspect-suspect matching Su
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Recommendation 64 DAL deletes all p
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Case Study 68 Four young people lef
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profiles put on the database, but c
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NSW Health supports recommendation
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10.6.5.2. Volunteers For each of th
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10.6.8. DNA analysis in relation to
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‘Depends on seriousness of offenc
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admits being there then what is the
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Figure 13 indicates there are a lar
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turnaround times (in particular, wh
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In New South Wales, police or the D
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The funding will be used to create
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• representatives from human righ
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large batch of serious indictable o
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965 Discussion at meeting with DAL,
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1050 FSG presentation to DAL, attac
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DAL confirmed that its records were
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Recommendation 81 An audit process
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Page 260 and 261:
Endnotes 1070 Where police records
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Case Study 76 A man was arrested an
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it has been there, whether it has d
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Case Study 77 Police investigating
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Recommendation 89 Staff in all labo
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We realise this is a sensitive issu
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1130 Legislative Assembly Hansard,
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In making this decision, the court
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evidence. Police would still, of co
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If two samples match, it is possibl
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Similar issues were considered in R
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Where the defence wishes to challen
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These results must be interpreted w
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1179 Letter from DPP, 24 March 2005
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Chapter 14. Destruction of forensic
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14.2.2. Identifying DNA profiles wh
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Recommendation 94 When DAL receives
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Recommendation 96 DAL delete all pr
Page 298 and 299:
Recommendation 98 Section 87 of the
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14.3. Retaining genetic material fr
Page 302 and 303:
1255 Based on DAL’s advice in its
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• a complaint about the incorrect
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The Ombudsman found that the police
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• The man was not cautioned prior
Page 310 and 311:
15.3.5. Failure to maintain proper
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• the supervising sergeant did no
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Case Study 91 In 2004, a lorry driv
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16.2. Possible problems with DNA Be
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1319 Letter from Homicide Squad dat
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Appendix. Implementation of recomme
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at staff development days. In addit
Page 324 and 325:
Term Definition / explanation Conta
Page 326 and 327:
Term Definition / explanation Incap
Page 328 and 329:
Term Definition / explanation Victi
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