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

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Chapter 2. Key provisions of the Act The Act facilitates the collection of DNA samples and other forensic material by police, and safeguards the rights and interests of people who police wish to undergo forensic procedures. Below we have provided a synopsis of the Act in what we hope is a simple format. The Act is complex and we have summarised relevant portions where appropriate. Corresponding sections have been endnoted for appropriate reference. In addition, relevant provisions are explained in greater detail in relevant parts of the report. 2.1. What is a forensic procedure A forensic procedure is a way to obtain evidence that relates to the investigation and prosecution of a crime. A forensic procedure cannot be conducted for the sole purpose of establishing the identity of the person who provides the sample. 25 For example, police could take a DNA sample from a suspect to compare to DNA found at a crime scene. However, police could not take a DNA sample from a person purely to establish that person’s identity. The Act authorises three different categories of forensic procedures – buccal swabs, non-intimate forensic procedures and intimate forensic procedures. 2.1.1. Buccal swabs A buccal swab is taken to obtain a sample of a person’s DNA. It is the most common type of forensic procedure. A buccal swab is completely painless, and is self-administered. The person providing the sample gently scrapes the inside of his or her mouth with a foam tipped plastic swab, which looks a bit like a cotton bud. The person hands the foam swab to a police officer, who then presses it onto specially treated paper, to transfer saliva and cheek cells from the swab onto the paper. The paper is sealed in a small envelope, identified with a barcode and put with the relevant documentation into a tamper-evident bag. The swab is then given back to the person who has provided the sample. Police send the tamper-evident bag to the DNA laboratory for analysis. This process has changed since we completed our first report on serious indictable offenders. The change has come about as police comply with the requirement to share the sample with the person supplying the forensic material. 26 We discuss this requirement further in section 8.10 of this report. 2.1.2. Non-intimate forensic procedures Section 3 of the Act authorises the following non-intimate forensic procedures: (a) an external examination of a part of the body other than: (i) the genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female, that requires touching of the body or removal of clothing, (b) the taking of a sample of hair other than pubic hair, (c) the taking of a sample from a nail or under a nail, (d) the taking of a sample by swab or washing from any external part of the body other than: (i) the genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female, (e) the taking of a sample by vacuum suction, by scraping or by lifting by tape from any external part of the body other than: (i) the genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female, 10 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
(f) the taking of a hand print, finger print, foot print or toe print, (g) the taking of a photograph of a part of the body other than: (i) the genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female, (h) the taking of an impression or cast of a wound from a part of the body other than: (i) the genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female, (i) the taking of physical measurements (whether or not involving marking) for biomechanical analysis of an external part of the body other than: (i) the genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female. 27 The hair samples described at (b) above require the police officer taking the sample to only take as much hair as is necessary for analysis of the sample to be carried out. The strands of hair can be taken from the head, arms or legs and are to be extracted using the least painful technique known and available. 28 Police officers in New South Wales have been taught to use the ‘lever arch method’, where the officer grasps a few hairs between the thumb and forefinger, and pulls the hairs out in a rolling motion. The roots of the hair must be included, and the sample should contain at least six plucked hairs. 29 This is the second most common type of DNA forensic procedure conducted by NSW Police. 2.1.3. Intimate forensic procedures Section 3 of the Act authorises the following “intimate forensic procedures”: (a) an external examination of: (i) the genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female, (b) the taking of a sample of blood, (c) the taking of a sample of saliva (otherwise than by buccal swab), (d) the taking of a sample of pubic hair, (e) the taking of a sample by swab or washing from: (i) the external genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female, (f) the taking of a sample by vacuum suction, by scraping or by lifting by tape from: (i) the external genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female, (g) the taking of a dental impression, (h) the taking of a photograph of: (i) the genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female, (i) the taking of an impression or cast of a wound from: (i) the genital or anal area or the buttocks, or NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 11
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 30 and 31: xx NSW Ombudsman DNA sampling and o
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 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
Page 84 and 85: the carrying out of these forensic
Page 86 and 87: 322 Crimes (Forensic Procedures) Ac
Page 88 and 89: 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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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
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Recommendation 98 Section 87 of the
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14.3. Retaining genetic material fr
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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
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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
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Term Definition / explanation Conta
Page 326 and 327:
Term Definition / explanation Incap
Page 328 and 329:
Term Definition / explanation Victi
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Crimes (Forensic Procedures) Act 2000 - NSW Ombudsman - NSW ...

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