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

The deterrent to an increased volume of serious crime is not so much heavier sentences as the impression in
the minds of those who are persisting in a course of serious crime that detection is likely and punishment will be
certain. 88
Since the Act came into operation, the courts have emphasised that it seeks to strike a balance between preserving a
citizen’s right not to assist law enforcement authorities, and the public interest in the administration of justice:
The Forensic Procedures Act conferred new and unprecedented powers upon, inter alia, magistrates that would
have the result of compelling persons suspected of criminal offences (including those against whom charges
have not been laid) to cooperate in the investigation of the crime(s) of which they are suspected, and to provide,
from their own bodies, evidence which may be used against them (and which, of course, may also be used to
exonerate them). The Parliament was, in my view, seeking to maintain a delicate balance between preserving
the traditional rights of citizens and individuals, including those suspected of crime, to decline to participate in
investigations or to cooperate with investigating authorities, and the overall interests of the community and of
justice in facilitating the investigation of crime, and the administration of justice, in securing the conviction of the
guilty and the non-prosecution or acquittal of the not guilty. The Act was a specific response to scientific and
technological developments, but in the context of valued traditional civil liberties. 89
3.1.2. The need for safeguards
Some people argue that DNA sampling by law enforcement authorities is the modern equivalent of fingerprinting
– and as such should be conducted routinely on arrest. However, others argue that it raises significantly different
issues than taking a person’s fingerprints. 90
During Parliamentary debates, many members of Parliament expressed concerns about the Act. Some were
concerned about the breadth of the legislation, in particular the large number of suspects and volunteers who would
be subjected to DNA sampling. 91 Others had qualms about DNA sampling being conducted by NSW Police, and the
potential for bias or corruption by police officers, who are responsible for the investigation of crime. 92 Some argued
that where a person does not consent to a forensic procedure, only a court (rather than a senior police officer) should
be able to authorise police to go ahead and conduct the procedure against the person’s will. 93
Since the Act came into force, concerns have been expressed about the operation of the Act and related issues by
legal practitioners, academics, members of Parliament and the media. Concerns have been raised about: 94
• The invasiveness of DNA sampling. A DNA sample can be taken quite painlessly, and with minimal
inconvenience to the subject. However, some DNA sampling can be quite invasive (such as a blood or
hair sample), as it allows the State to interfere with the liberty and bodily integrity of the individual (in some
circumstances against the person’s will and with the use of reasonable force).
• Protection of genetic information. Apart from being regarded as a unique identifier, DNA has the capacity
to deny or reveal familial relationships, and can be used to predict whether a person is likely to have certain
diseases. DNA also contains information about a person’s appearance, such as hair colour, eye colour and
height. It may be possible in the future to derive highly personal information from a very small amount of
biological material – a spot of blood, a single hair – and there are fears that DNA samples may end up being
used for purposes other than those for which they were taken. 95 For example, there is some concern about
genetic information being disclosed to employers or insurers.
• Contamination risks. DNA evidence can be extremely persuasive. However, there is a risk of contamination
at each of the various stages between the commission of the offence and prosecutors presenting the evidence
in court. For example, biological material could be left at crime scenes, deliberately or unintentionally, by
other criminals or by law enforcement officials. Police could inadvertently contaminate crime scene evidence,
by allowing exhibits to come into contact with each other. Staff at the forensic laboratory could inadvertently
contaminate evidence by allowing an exhibit from one crime scene to come into contact with an exhibit from
another. Any of these incidents could result in a person other than the true offender being implicated in the
offence being investigated.
• Perceived lack of independence of forensic service providers. While the DNA laboratory is separate from
law enforcement authorities, and should not have an interest in the outcome of prosecutions, the fact that it
is run by the State and provides the vast bulk of its DNA analysis services to NSW Police raises the question
of whether the alliance between police and the laboratory could influence the interpretation of DNA analysis
results. A related concern is that where DNA evidence is adduced in criminal proceedings, defendants have
limited opportunities to have the evidence against them independently analysed.
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 19