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

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1255 Based on DAL’s advice in its response to Ombudsman investigation notice, 24 February 2005, that during the review period it loaded 831 DNA profiles from suspects onto the DNA database. 1256 Our audit included 14 samples which police records indicated were volunteers, but of these DAL had 8 recorded as volunteers, 5 as victims and 1 could not be identified. 1257 Based on advice received from NSW Police 22 June 2005 and DAL’s advice in its response to Ombudsman investigation notice, 24 February 2005, that during the review period it loaded 8,699 DNA profiles from suspects onto the DNA database. 1258 The others had been destroyed, converted into convicted offender profiles, were not DNA samples from suspects or could not be identified by DAL. 1259 We measured the 12 months from the date DAL provided the information about the sample status, 24 February 2005. 1260 Email from FPIT, 12 August 2005. 1261 Email from FPIT, 12 August 2005. 1262 Advice from DAL, 11 November 2005. 1263 NSW Police response to Ombudsman draft report, 2 June 2006. 1264 NSW Health response to Ombudsman draft report, 7 June 2006. 1265 Crimes (Forensic Procedures) Act 2000 s 83. 1266 Crimes (Forensic Procedures) Act 2000 s 94(1). 1267 Crimes (Forensic Procedures) Act 2000 s 12. 1268 NSW Police submission, dated 16 February 2005. 1269 NSW Police response to Ombudsman draft report, 2 June 2006. 1270 NSW Health response to Ombudsman draft report, 7 June 2006. 1271 NSW Ombudsman, “The Forensic DNA Sampling of Serious Indictable Offenders under Part 7 of the Crimes (Forensic Procedures) Act 2000” (August 2004), Recommendations 20 and 25. 1272 Crimes (Forensic Procedures) Act 2000 s 88(4). 1273 NSW Police response to Ombudsman draft report, 2 June 2006. 1274 Attorney General’s Department response to Ombudsman draft report, 5 May 2006. 1275 Crimes (Forensic Procedures Act) 2000 s 88(5) to (8). 1276 Letter from DPP, 24 March 2005. 1277 Advice from Assist Manager, Court Statistics Unit, NSW Attorney General’s Department on 25 August 2005. 1278 Crimes (Forensic Procedures) Act 2000 s 88(8). 1279 Advice from Project Manager, eServices and Interfaces for the CourtLink Project, on 18 August 2005. 1280 NSW Police response to Ombudsman draft report, 2 June 2006. 1281 Attorney General’s Department response to Ombudsman draft report, 5 May 2006. 1282 Interpretation Act 1987 s 34 and 35. 1283 Attorney General’s Department response to Ombudsman draft report, 5 May 2006. 1284 NSW Police response to Ombudsman draft report, 2 June 2006. 1285 DAL comments on Ombudsman statement of provisional findings, 17 October 2005. 1286 Discussion at meeting, 5 October 2005. 1287 Letter from NSW Police Forensic Services Group, 8 November 2005. 1288 NSW Police response to Ombudsman draft report, 2 June 2006. 1289 Crimes (Forensic Procedures) Act 2000 s 3(1). 1290 Crimes (Forensic Procedures) Act 2000 s 87A. 1291 Written advice from Criminal Identification Specialist Brach, NSW Police dated 16 August 2005 1292 NSW Police response to Ombudsman draft report, 2 June 2006. 272 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
Chapter 15. Complaint and misconduct issues This chapter discusses the complaints and inquiries we received about forensic procedures during the review period. 15.1. Inquiries During the review period, we received 78 telephone inquiries relating to forensic procedures conducted on suspects and volunteers. Of these, 22 were general inquiries seeking information about the operation of the Act. Others raised specific issues relating to the functioning of the Act, including: • 5 inquiries raising objections to having to provide a DNA sample • 12 inquiries about the way DNA samples were taken, including one about the force used to take the sample, and one about police threatening to use force • 10 inquiries about delays, including three about the length of time it took police to collect a DNA sample or exhibit for analysis, and seven about the length of time taken to obtain DNA analysis results • 4 inquiries about the failure to take DNA samples, including three made by victims and one by a suspect • 3 inquiries about the use of DNA evidence in court, including one about a DNA expert giving evidence that the DNA analysis was inconclusive, and two about being convicted on DNA evidence • 2 inquiries in which an inmate suspected of a further offence disputed being at large when the offence was committed • 1 inquiry about police keeping photographs of a suspect taken without proper authority • 3 inquiries about police failing to destroy DNA samples, and • 16 inquiries about police failing to return exhibits taken for DNA analysis. Telephone inquiries are generally resolved by providing information or advice to the person making the inquiry. We note that a significant number of inquiries related to police failing to return exhibits taken for DNA analysis, in particular shoes and other clothes. It is important that police inform suspects of whether items taken for DNA analysis will ever be returned, and if so when this is likely to be. This is especially important given the length of time it may take for exhibits to be examined by DAL, as discussed earlier in this report. 15.2. Complaints NSW Police is the primary oversight agency for complaints about police conduct. The Ombudsman is notified of serious complaints, determines whether they are investigated, and reviews the police investigation and any action taken to address any specific issues that arise. Moreover, the Ombudsman can make recommendations, directly undertake investigations into police conduct or help to resolve and conciliate complaints about police officers. The Ombudsman receives complaints both from members of the public as well as complaints from police officers. We identified 23 written complaints relating to forensic procedures conducted on suspects and volunteers made since the Act commenced: • 8 complaints about the way DNA samples were taken, including one about police using unreasonable force to take the sample • 3 complaints alleging that police had lost or destroyed exhibits or DNA samples • 2 complaints by suspects about police failing to take a DNA sample • 2 complaints about wrongful convictions (one because police misread a DNA analysis report; and one because police erroneously merged the records of two people) • 2 about police failing to return exhibits taken for DNA analysis • 2 complaints alleging tampering with DNA evidence NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 273
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DNA sampling and other forensic pro
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October 2006 The Honourable Bob Deb
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October 2006 Commissioner Ken Moron
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Contents Executive summary ........
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Chapter 17. Conclusion ............
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to children, incapable persons and
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The distinction between suspects an
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inadmissible, the suspect is acquit
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• establishing ‘best practice
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12 13 14 15 16 17 18 19 20 Recommen
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Recommendation Paragraph number 29
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46 47 48 49 50 51 52 53 54 55 Recom
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68 69 70 71 72 73 74 75 76 77 78 Re
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89 Recommendation Staff in all labo
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xx NSW Ombudsman DNA sampling and o
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Part 7 of the Crimes (Forensic Proc
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means that a significant number of
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The aim of the audit was to observe
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We followed up 180 of the 371 foren
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Chapter 2. Key provisions of the Ac
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(ii) the breasts of a female or a t
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scraping or lifting by tape from th
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• Some people have the right to h
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Chapter 3. DNA sampling in Australi
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• Security issues. There are conc
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3.3.2. Australian Capital Territory
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3.3.6. Queensland Forensic procedur
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analysis must be relevant to the of
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The FSS is still the largest forens
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The Garda Commissioner (the Irish e
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of operation, 50 per cent of states
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86 For example, NSW Legislative Ass
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150 Police Powers and Responsibilit
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226 DNA Identification Act 1998 (Ca
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Chapter 4. Implementation of the Ac
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Separate training courses are run f
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4.2.1. How easy is it for police of
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Given the widespread reluctance to
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Recommendation 03 NSW Police ensure
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NSW Police has long term plans to r
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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
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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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Page 254 and 255: DAL confirmed that its records were
Page 256 and 257: Recommendation 81 An audit process
Page 258 and 259: Case Study 75 An unknown offender b
Page 260 and 261: Endnotes 1070 Where police records
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Page 264 and 265: it has been there, whether it has d
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Page 270 and 271: We realise this is a sensitive issu
Page 272 and 273: 1130 Legislative Assembly Hansard,
Page 274 and 275: Case Study 84 An unknown offender b
Page 276 and 277: In making this decision, the court
Page 278 and 279: evidence. Police would still, of co
Page 280 and 281: If two samples match, it is possibl
Page 282 and 283: Similar issues were considered in R
Page 284 and 285: Where the defence wishes to challen
Page 286 and 287: These results must be interpreted w
Page 288 and 289: 1179 Letter from DPP, 24 March 2005
Page 290 and 291: Chapter 14. Destruction of forensic
Page 292 and 293: 14.2.2. Identifying DNA profiles wh
Page 294 and 295: Recommendation 94 When DAL receives
Page 296 and 297: Recommendation 96 DAL delete all pr
Page 298 and 299: Recommendation 98 Section 87 of the
Page 300 and 301: 14.3. Retaining genetic material fr
Page 304 and 305: • a complaint about the incorrect
Page 306 and 307: The Ombudsman found that the police
Page 308 and 309: • The man was not cautioned prior
Page 310 and 311: 15.3.5. Failure to maintain proper
Page 312 and 313: • the supervising sergeant did no
Page 314 and 315: Case Study 91 In 2004, a lorry driv
Page 316 and 317: 16.2. Possible problems with DNA Be
Page 318 and 319: 1319 Letter from Homicide Squad dat
Page 320 and 321: Appendix. Implementation of recomme
Page 322 and 323: 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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