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

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October 2006 Commissioner Ken Moroney NSW Police Level 14, 201 Elizabeth Street Sydney NSW 2000 Level 24 580 George Street Sydney NSW 2000 Phone 02 9286 1000 Fax 02 9283 2911 Tollfree 1800 451 524 TTY 02 9264 8050 Web www.ombo.nsw.gov.au Dear Mr Moroney Under section 121 of the Crimes (Forensic Procedures) Act 2000 I have been required to keep under scrutiny the exercise of powers conferred on police officers to conduct forensic procedures. I am pleased to provide you with my report, which details the activities undertaken, and my findings and recommendations that are a result of the review. I note that you were provided with a draft of the report. Where appropriate your comments have been incorporated into the final report. I draw your attention to section 121(6) of the Act which requires the Attorney General to lay a copy of this report before both Houses of Parliament as soon as practicable. Yours sincerely Bruce Barbour Ombudsman
Foreword The Crimes (Forensic Procedures) Act 2000 clarified and expanded the power of police officers to take DNA samples and conduct other types of forensic procedures. The Act required my office to keep under scrutiny the exercise of these powers for the first four years of their use. We have previously reported on the DNA sampling of people convicted of a serious indictable offence. This second report deals with DNA sampling and other forensic procedures conducted on suspects and volunteers. The focus of our review is on whether police officers and others involved in forensic procedures are complying with their legislative obligations, and are discharging their functions fairly and effectively. We found that the implementation of the Crimes (Forensic Procedures) Act has provided police with further tools for use in the investigation and prosecution of criminal offences. This has generally been achieved with due regard to the rights and interests of people police wish to undergo forensic procedures. However, we did identify a number of legislative and procedural issues for consideration by Parliament and relevant agencies, and other key issues that should be kept under scrutiny into the future. We also found that the long term position on the provision of DNA analysis services in New South Wales is unclear. As the demand for DNA analysis services continues to increase, there is a significant risk that without a clear and well planned way forward, the objects of the Act may not be met effectively. I trust the research and observations in this report will make a positive contribution to this debate. Bruce Barbour Ombudsman
Page 2 and 3: DNA sampling and other forensic pro
Page 4 and 5: October 2006 The Honourable Bob Deb
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 40 and 41: Chapter 2. Key provisions of the Ac
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
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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
Page 70 and 71:
Chapter 4. Implementation of the Ac
Page 72 and 73:
Separate training courses are run f
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4.2.1. How easy is it for police of
Page 76 and 77:
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
Page 120 and 121:
intellectual functioning, someone e
Page 122 and 123:
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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Page 260 and 261:
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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