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

the victim. DAL obtained the victim’s DNA profile and it was found to be the same as the DNA profile derived
from the shoe swabs.
In April 2004, the first accused pleaded ‘guilty’ to the offence of assault occasioning actual bodily harm. The
second man was found guilty by the court.
The prosecutor made a complaint about the matter, pointing out that the prosecution may have failed without
the DNA evidence, given that there were no independent witnesses willing to give evidence.
NSW Police investigated the matter. The officer was interviewed about her failure to pursue the DNA analysis
results, and admitted that she “completely forgot about it.” The officer was given advice and guidance about
the need to follow up forensic analysis results, and the need to ensure all investigations are conducted
appropriately. Other officers at the command were reminded of the need to follow up evidence, and the
command also organised a prosecutor to give a training lecture on the issue.
15.3.4. Poor knowledge of legislative obligations or failure to follow SOPs
The following complaints show how police officers with a poor knowledge of the Act or SOPs have failed to comply
with their legislative obligations.
Complaint 04
A man was in custody after being arrested for breaching an AVO. While in custody, police interviewed him in
relation to an unrelated armed robbery, and asked him to provide a DNA sample. The man consented and
provided the sample.
The man subsequently made a complaint to the Ombudsman about the way he was treated by police.
We referred the complaint to NSW Police for investigation.
The police investigation covered a number of issues, including the fact that money taken from the man
remained unaccounted for, police interviewed the suspect while he was intoxicated, and records relating to an
exhibit appeared to have been altered. The investigator made adverse findings about the failure to record and
account for the money taken from the suspect.
We were concerned about a number of issues raised by the complaint, which had not been addressed in the
police investigation. In particular:
• Police took the man’s DNA sample when he appeared to be intoxicated, which suggested he was not
capable of consenting to the procedure. The investigator did not take into account the notes made on
the man’s custody record which indicated he “was under the influence of something, quietened down
after a while and went to sleep” and that he appeared “irrational”.
• Police threatened the man that if he did not consent to providing a DNA sample they would take it
by force.
• Police misled the man by telling him his DNA profile would only be used in relation to the armed robbery
matter, when it would in fact be placed on the ‘suspects’ index of the DNA database, and would be
matched against all the DNA samples from unsolved crime scenes on the database. Section 13(k) of
the Act requires police to tell suspects that forensic material taken during the procedure would be used
to derive a DNA profile, which may be placed on the DNA database. Police are also required to explain
the rules that apply to the disclosure and use of the person’s DNA profile and identifying information.
There was no record of police having provided the suspect with this information.
• Police did not allow sufficient time for the man to read the information sheet about the proposed
procedure.
• The man did not give informed consent to the procedure as he was not provided with the correct
information or given enough time to read the information he was given.
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 277