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

In some cases, the conduct of police had quite serious consequences, including forensic procedures being
conducted without proper authority or with unnecessary force. In at least two cases, the police conduct resulted in
wrongful convictions.
15.3.1. Wrongful conviction after police misread DNA analysis report
Complaint 01
In October 2001, police charged a man with a number of break, enter and steal offences based on fingerprint
evidence. They also took a DNA suspect sample to establish any further offences committed by the man.
The DNA report from DAL stated on the first page “a preliminary or ‘screening’ test for blood was positive
on the swab.” The second page of the report stated that the DNA recovered from the swab could not have
originated from the accused.
However, when police officer A read the report, he appears to have only read the first page of the report. He
interpreted the first page to mean that the accused was positively matched with the crime scene, when it was
actually confirming that the substance found was blood.
Officer A then updated COPS to reflect that the suspect had been positively linked to the crime scene, and
recorded that the suspect “has been identified by DNA.”
In August 2002, police officer B received notification from FPIT that the sample had been matched to several
other crime scenes via ‘cold links.’ Officer B checked on COPS and found the man was wanted for the offence
in which he had been incorrectly identified via DNA sampling.
The man was subsequently charged with a number of break, enter and steal offences, including the
outstanding incident which DAL had advised was not linked to the suspect. At the time of charging, the
suspect made the comment “I honestly don’t remember that one, if I left my blood there then I must have done
it.” However, he pleaded guilty to all charges and received a suspended sentence, based on his participation
in the Drug Court Program.
In early November 2002, police officer A received a DNA notification from FPIT that the DNA obtained from the
first crime scene had been linked to another suspect. On receiving this advice, police officer A immediately
organised for the conviction to be removed from the convicted man’s criminal history. He prepared a report
for the local area commander and senior prosecutor explaining his error, and identifying himself as the person
who had misread the report. However, when the man appeared before the Drug Court in February 2003 due to
a breach of the Drug Court program, it appears no steps were taken to raise this. The man was subsequently
sentenced to five years and six months imprisonment, due to the breach.
In July 2003, NSW Police made an application for annulment of the conviction and sentence. In August
2003 the matter was annulled and the charge relating to the break and enter was withdrawn on the grounds
that there was a ‘misreading of the DNA report.’ However, as the man’s overall sentence was unaltered, he
remained in custody.
NSW Police investigated the matter after the man made a complaint to the Ombudsman. The police
investigator identified another officer (officer C) as the one who was responsible for misreading the DNA
analysis report and advised the man of the outcome. The man told the Ombudsman that he thought the police
investigator had identified the wrong officer as being responsible for the error, as officer A had told him that he
was responsible while charging him with other offences.
The Ombudsman spoke to the detective who was reviewing the original investigation and he agreed to
interview officer A. Prior to the interview, the Detective found the report submitted by officer A requesting that
the man’s conviction be annulled on the basis that he had misread the DNA analysis report. It appeared that
officer A’s report was available to the original investigating officer, but was overlooked.
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 275