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

Chapter 3. DNA sampling in Australia
and overseas
This chapter takes a brief look at the history of forensic procedures in New South Wales. It then compares our forensic
procedure regime with those in other Australian and overseas jurisdictions.
3.1. History of forensic procedures in New South Wales
Since 1924, police officers in New South Wales have had the power to search, photograph, fingerprint or ask a
medical practitioner to examine a person in custody who has been charged with an offence. 78
The power to conduct a medical examination has been interpreted quite narrowly. In Fernando v Commissioner of
Police, the court found that it permits “no more than an external examination by sight or touch.” 79 Specifically, it did
not authorise police to take a blood sample from an accused without consent.
After the Fernando decision, the NSW Parliament amended the Crimes Act to provide for medical practitioners to take
blood, hair or saliva samples from people in custody who have been charged with an offence. 80 This was intended to
be an interim measure until new legislation dealing with this issue was drafted.
In 1999, police officers were given the power to require a driver who refuses to submit to a sobriety assessment, or
who police reasonably believe is under the influence of a drug, to provide a blood and urine sample (whether or not
the person consents to them being taken) in accordance with the directions of a medical practitioner. 81 In addition,
medical practitioners and nurses are under a duty to take blood samples from drivers and certain others involved in
road accidents. 82
In 2000, Parliament passed the Crimes (Forensic Procedures) Act, creating specific police powers to carry out forensic
procedures on suspects, volunteers and certain convicted offenders. It also specified how material from those
procedures may be used, and when that material (or information derived from that material) must be destroyed.
3.1.1. Objectives of the new Act
In his second reading speech, the Hon Paul Whelan MP, then Police Minister, described the forensic procedures
bill as “a comprehensive regime regulating the taking and use of forensic material for the purposes of criminal
investigation.” 83 He stated:
It will enable law enforcement agencies to identify or exclude suspects by comparing forensic material taken
from them with material found at crime scenes. It will link seemingly unrelated crimes by comparing DNA profiles
found at different crime scenes. This legislation has the potential to assist victims of crime in New South Wales
by encouraging guilty pleas and hence avoiding often traumatic and lengthy court proceedings...this bill will
reform policing as we know it in New South Wales. DNA is the fingerprint of the twenty-first century. It will allow
police to work smarter using forensically driven intelligence to solve crime. 84
He also noted that DNA testing and other forensic procedures may be used to eliminate an innocent person from
suspicion.
The second reading speech also stressed that DNA testing, while useful, would not replace more traditional forms of
police investigation:
It is important to note that DNA will be only one tool in the police officer’s kit. They will still need to assemble a
brief of evidence against the offender; DNA alone will not convict! 85
Other members of Parliament hailed the Act as “probably the most important legislation to come before the House
this session.” 86 Many were impressed by the impact the DNA database in the United Kingdom has had on clear-up
rates of crimes. 87
A further objective of the legislation is to deter offenders by increasing the likelihood of apprehension, which is
accepted by many as more effective than increasing penalties:
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000