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

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16.2. Possible problems with DNA Below are some potential problems with the use of DNA evidence in the investigation and prosecution of crime. 16.2.1. Adventitious or secondary transfer Unlike deliberate contamination, adventitious (or secondary) transfer describes the transmission of forensic material from a person who may not be associated with a crime, to the victim or crime scene, through ordinary interactions like talking, sneezing or shedding hair. We discussed adventitious transfer in more detail above, at 12.1.2, and described a case where the defendant argued that his DNA was found on the deceased’s bra as a result of secondary transfer and not because he was involved in the offence. As the sensitivity of DNA analysis continues to increase, it becomes more important to consider the possibility of adventitious transfer. 16.2.2. Framed by DNA In September 2004, an episode of Catalyst on the ABC looked at the possibility of DNA being planted at a crime scene. The story involved a blood stain left at a hypothetical crime scene. This was covered with a spray made from another person’s DNA. The DNA analysis results yielded the profile of the second person, rather than the original contributor. The program explained that the spray could be made by creating copies of DNA, and so could be made from a very small DNA sample, such as a single hair, saliva left on a glass, or a cigarette butt. This would require scientific knowledge but could be done in a home kitchen. 1322 We are not aware of any matters where it has been alleged that this has occurred. 16.2.3. Managing public expectations Many people’s understanding of forensic investigation and the use of DNA is influenced by television shows such as CSI, Cold Case, Silent Witness and Forensic Investigators. Television shows can highlight the benefits of forensic science, but tend to create unrealistic expectations, in particular about the length of time forensic analysis takes. They may also suggest that forensic evidence is infallible, and that if there is a DNA link, the suspect must be guilty. In the United States, there have been reports of juries being asked whether they watch CSI. 1323 In Australia, too, police and others involved in the criminal justice system have felt the impact of television shows about forensic investigations. In our survey of the 80 local area commands in New South Wales, we asked whether people have greater expectations of police investigations, as forensic technology advances. 74 commands said yes, and made comments such as the following: “Yes. DNA is portrayed in the media as THE piece of evidence required to straight away prove conviction. This is promoted by the high number of television programs and movies where DNA is referred to in this way. I believe the general public do not have an understanding of the complexities of an investigation, requirements of the Evidence Act and the decisions made by the courts. I believe that there have, and will be great advances in DNA which the police must adopt in the future.” 1324 “Media attention has definitely increased the public expectation of results. There is limited understanding on the relationship with DNA evidence and a successful prosecution of a matter, by both the public and some police. It should also be considered that new and emerging technologies often have substantial cost, and it may not be practical to apply some new technologies to all investigations.” 1325 “Yes, TV shows depict a perception, which is widely accepted within the community, that DNA technology is put into a computer and the result is back in a very short period of time. The questions are asked of many investigators ‘Why does it take so long to get the results back On TV it comes back quick why can’t you.’ Very frustrating.” 1326 “Yes the Media in particular believe that DNA is the absolute proof of a person’s involvement in a crime. They also are heavily influenced by TV shows such as CSI which tend to provide false impressions that DNA testing can be completed in very short time frames. This translates into not being able to comprehend the delays often encountered by investigators from the time samples are collected to the time the results are received.” 1327 286 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
“If they do, then they watch too much TV. Public need to know that not every police station has analysts to analyse samples. They must be informed that they are sent away and there is at least a 6 to 9 month waiting list.” 1328 “Yes. The reality is the analysis takes time (months). The perception of the public gained through TV is Police have all DNA profiles & analysis is done at the office with instant results. The majority of testing is time consuming unless there is significant political or media pressure for a quick result. This is typified in the Bulldogs / Coffs Harbour sexual assault investigation. I would suggest under normal circumstances a sexual assault investigation waiting for DNA would take months to complete. That examination was expedited to satisfy the enormous public, media interest. That investigation & the results are an exception to the general rule.” 1329 Other commands agreed that expectations are greater, but argued they were not unreasonable: “Yes, I suppose we all do. The public has a right to expect police to investigate a crime using all available technologies and methods to bring about a timely completion to any investigation.” 1330 “Yes and rightly so. The public demand that the police have the resources and funding to be able to conduct these procedures and would be surprised to know the reality of the situation.” 1331 Endnotes 1297 United Kingdom Forensic Science Service fact sheet, “DNA Low Copy Number”, December 2005. 1298 United Kingdom Forensic Science Service press release, “New UK DNA technique helps to trap Falconio’s Australian killer”, 13 December 2005. 1299 United Kingdom Forensic Science Service fact sheet, “Familial Searching”, February 2005. 1300 United Kingdom Forensic Science Service fact sheet, “Familial Searching”, February 2005. 1301 “Killer caught by relative’s DNA”, BBC News 19 April 2004 available at http://newsvote.bbc.co.uk accessed 18 May 2004, and Surrey Police Media Release “First successful prosecution after use of pioneering DNA technique” http://www.surrey.police.uk accessed 17 January 2005. See also Matthew Falloon, “DNA traps brick thrower who killed lorry driver”, 20 April 2004 located at http://www.guardian.co.uk accessed 17 January 2005. 1302 United Kingdom Forensic Science Service fact sheet, “Familial Searching”, February 2005. 1303 For further information, see the United Kingdom Forensic Science Service website, www.forensic.gov.uk. 1304 United Kingdom Forensic Science Service fact sheet, “Commonplace characteristics”, September 2002. 1305 United Kingdom Forensic Science Service fact sheet, “Commonplace characteristics”, September 2002. 1306 “Rapist DNA gives Police vital clue”, The Daily Mail (UK), 27 April 2004; “DNA breakthrough in hunt for Britain’s worst sex offender”, The Independent (UK), 28 April 2004; “50 Black Policemen were happy to give DNA to help identify a rapist”, The Daily Mail (UK), 19 May 2004; “Breakthrough in rapist hunt”, Evening Standard (UK), 8 July 2004; “Black Police undergo DNA tests to trace rapist”, Evening Standard (UK), 27 July 2004 and “British detectives visit Caribbean countries on trail of London serial rapist”, Comtex News 2 December 2004 located at http://www.comtexnews.net accessed 3 December 2004. 1307 United Kingdom Forensic Science Service fact sheet, “Commonplace characteristics”, September 2002. 1308 DNAPrint genomics Inc. Media release “DNAPrint Announces the release of RETINOME for the Forensic Market: Eye Color Prediction from Crime Scene DNA”, 17 August 2004 available at http://www.dnaprint.com accessed 17 January 2005. 1309 Department of Education, Science and Training International Science Linkages Competitive Grants - Round Seven 2004-05 Announcement located at https://sciencegrants.dest.gov.au/ISL/Pages/Doc.aspxname=CGR7.htm accessed 20 July 2005. 1310 Confidential LAC survey response. 1311 Confidential LAC survey response. 1312 Confidential LAC survey response. 1313 Confidential LAC survey response. 1314 Confidential LAC survey response. 1315 Confidential LAC survey response. 1316 Confidential LAC survey response. 1317 Confidential LAC survey response. 1318 Confidential LAC survey response. NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 287
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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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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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Case Study 75 An unknown offender b
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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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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
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Page 298 and 299: Recommendation 98 Section 87 of the
Page 300 and 301: 14.3. Retaining genetic material fr
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Page 306 and 307: The Ombudsman found that the police
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Page 310 and 311: 15.3.5. Failure to maintain proper
Page 312 and 313: • the supervising sergeant did no
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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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