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

If the volunteer is a capable adult, police can only conduct a forensic procedure with the person’s informed consent.
If the person does not consent, or withdraws consent before or during the forensic procedure, the procedure cannot
proceed. 41
If the volunteer is a child or incapable person, a forensic procedure can be carried out either with:
• the informed consent of the person’s parent or guardian, or
• by order of a magistrate. 42
A magistrate may order a forensic procedure if:
• the consent of the parent or guardian cannot reasonably be obtained
• the magistrate is satisfied the child or incapable person, or the parent or guardian, is a suspect and the
forensic procedure is likely to produce evidence tending to confirm or disprove that he or she committed an
offence, or
• the parent or guardian consents but subsequently withdraws the consent. 43
However, the procedure cannot proceed if the child or incapable person objects to or resists the carrying out of the
procedure. 44
A person may volunteer to give police a DNA sample because there is good reason for the person’s DNA to be at
a crime scene, but the person is not a suspect. This may include, for example, a witness to a crime, or a person
who normally resides at the place where a crime has been committed. It would also include the consensual sexual
partner of a person who has been sexually assaulted by somebody else. In these cases the volunteer’s DNA can be
compared against any forensic material found at the crime scene, which may enable the laboratory to create a DNA
profile of the offender.
In a different context, a person may volunteer a DNA sample as part of a mass screening, where police ask all
members of a certain group to provide a sample (for example, all men of a certain age who live in a particular town).
Police may conduct a mass screening in the hope that the offender will volunteer a sample along with everybody else
in the group, or alternatively that by eliminating a large number of people from the investigation, police can focus
inquiries on any people who do not volunteer a sample.
2.2.4. Victims of crime and other “excluded volunteers”
The Act does not apply to forensic procedures carried out on people who are “excluded volunteers”. 45 This includes
victims of offences against the person (under Part 3 of the Crimes Act 1900) and victims of robbery offences (under
Subdivision 2 of Division 1 of Part 4 of the Crimes Act). For example, police may wish to photograph a victim’s injuries,
to use as evidence in criminal proceedings. Victims may also be sampled for biological material, for example victims
of sexual assault may be asked to undergo a genital swab.
Also excluded from the Act are people who volunteer their fingerprints or handprints for elimination purposes in
relation to a property offence (under Part 4 of the Crimes Act). For example, police may wish to obtain prints from a
person whose house has been broken into, for the purpose of elimination.
NSW Police has developed its own policies for carrying out forensic procedures on victims of crime and other
‘excluded volunteers’. We note that the NSW Police policies for conducting forensic procedures on victims of offences
against the person largely mirror the legislative requirements in relation to volunteers.
Because ‘excluded volunteers’ are not covered by the Act, the way police conduct forensic procedures in these
circumstances is beyond the scope of this review.
2.3. Who can conduct a forensic procedure
Depending on the type of procedure, a forensic procedure can be conducted by an appropriately qualified police
officer, medical practitioner, nurse, dentist, dental technician or other appropriately qualified person. 46 Buccal swabs
are self-administered under the supervision of an appropriately qualified police officer or person. 47
A suspect is entitled to have a medical practitioner of the suspect’s choice present while any of the following
procedures is carried out: an external examination of the person’s genital area, anal area, buttocks or breasts; the
taking of blood; the taking of a sample of pubic hair; the taking of a sample by swab or washing, vacuum suction,
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 13