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

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86 For example, NSW Legislative Assembly Hansard, 7 June 2000, Mr M Richardson MP, p. 6736. 87 For example, NSW Legislative Council Hansard, 21 June 2000, the Hon M J Gallacher MLC, p. 7275. 88 Griffith v R (1977) 137 CLR 293 at 327 (Jacobs J). 89 Orban v Bayliss [2004] NSWSC 428 at paragraph 30 (Simpson J). 90 For example, see Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia (March 2003) at paragraph 39.12; Law Reform Commission of Ireland, “Consultation Paper on the Establishment of a DNA Database” (March 2004) at 46; and the United Kingdom Human Genetics Commission, “Inside Information: Balancing Interests in the use of Personal Genetic Data” (May 2002). 91 For example, NSW Legislative Assembly Hansard, 7 June 2000, Mr M Richardson MP, p. 6738. 92 NSW Legislative Council Hansard, 28 June 2000, the Hon R S L Jones MLC, p. 7658. 93 NSW Legislative Council Hansard, 28 June 2000, Ms L Rhiannon MLC, p. 7662. 94 See, for example, Commonwealth of Australia, “Report of Independent Review of Part 1D of the Crimes Act 1914 – Forensic Procedures”, March 2003, chapter 3; the Hon Michael Kirby, “DNA Evidence: Proceed with Care”, based on an address to a seminar at the University of Technology, Sydney, 16 March 2000; Andrew Haesler, Public Defender, “DNA – An Overview of Testing and the Crimes (Forensic Procedures) Act 2000” (June 2003); Ben Saul, “Genetic Policing: Forensic DNA Testing in New South Wales”, 13(1) Current Issues in Criminal Justice at page 74 (July 2001); Evidence by former Privacy Commissioner Chris Puplick before the Standing Committee on Law and Justice Inquiry into the Operation of the Crimes (Forensic Procedures) Act 2000, 8 August 2001; Dr Jeremy Gans, “Submission to the Independent Review of Part 1D (Forensic Procedures) of the Crimes Act 1914 (Cth), available at www.ag.gov.au accessed 3 February 2006 and Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia (March 2003). 95 GeneWatch UK, “The Police National DNA Database: Human rights and privacy”, Briefing Number 31 June 2005, p. 5. Accessible at http://www.genewatch.org/Publications/Briefs/Brief31.pdf 96 See M Findlay and J Grix, “Challenging Forensic Evidence” 14 Current Issues in Criminal Justice 269 and A Haesler SC, “DNA for Defence Lawyers” (May 2005) on the website of the Public Defenders Office, http://www.lawlink.nsw.gov.au/lawlink/pdo/ll_pdo.nsf/pages/ PDO_index accessed 16 August 2005. 97 R v Daley [2001] NSWSC 1211 (14 September 2001) at paragraph 62 (Simpson J). 98 Andrew Haesler, Public Defender, “DNA – An Overview of Testing and the Crimes (Forensic Procedures) Act 2000” (June 2003). 99 NSW Law Reform Commission, The Right to Silence, Report 95 (2000) at 2.2. 100 Petty v The Queen (1991) 173 CLR 95 at 128 to 129 (Gaudron J). See also John Nicholson, “The ‘Right’ to Silence – Only Half a Right” (2000), available from the website of the Public Defenders Office, http://www.lawlink.nsw.gov.au/lawlink/pdo/ll_pdo.nsf/pages/PDO_index accessed at 17 September 2004. 101 There are other examples of the general right to silence being modified by statute: see NSW Law Reform Commission, The Right to Silence, Report 95 (2000) at 2.24. 102 For example, see Dr Jeremy Gans, “Submission to the Independent Review of Part 1D (Forensic Procedures) of the Crimes Act 1914 (Cth), available at www.ag.gov.au accessed 3 February 2006. Although this submission discusses the Commonwealth legislation, it is largely the same as the New South Wales Act. 103 The Act required the Attorney General to review its policy objectives: see Crimes (Forensic Procedures) Act 2000 s 122. 104 Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General (MCCOC), Model Forensic Procedures Bill and the Proposed National DNA Database, May 1999, preface at 11. 105 The National Model Criminal Code Officers Committee, which consists of an officer from each Australian jurisdiction with expertise in criminal law and criminal justice matters. The National Model Criminal Code Officers Committee (or MCCOC) is a sub-committee of the Standing Committee of Attorneys-General. 106 Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Forensic Procedures Bill – DNA Database Provisions – Explanatory Notes, February 2000. 107 Standing Committee on Law and Justice, Report No. 18: Review of the Crimes (Forensic Procedures) Act 2000, February 2002; Australian Law Reform Commission and the National Health and Medical Research Council (ALRC/NHMRC), Discussion Paper 66: Protection of Human Genetic Information, August 2002. 108 “WA, Qld pool DNA profiles”, Sydney Morning Herald, 22 June 2005. 109 NSW Ombudsman, The Forensic DNA sampling of Serious Indictable Offenders under Part 7 of the Crimes (Forensic Procedures) Act 2000, August 2004. 110 Although in South Australia the terms “intimate”, “intrusive” and “non-intrusive” are used: Criminal Law (Forensic Procedures) Act 1998 (SA) s 3. 34 NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000
111 Commonwealth of Australia, Report of Independent Review of Part 1D of the Crimes Act 1914 – Forensic Procedures, March 2003 at paragraph 5.24. For a list of government forensic service providers in Australia, see the National Institute of Forensic Science Australia website, http://www.nifs.com.au. Accessed 25 May 2005. 112 Crimes (Forensic Procedures) Act 2000 s 12(g) and 20(e). 113 Crimes Act 1914 (Cth) s 23WI and 23WO. 114 See Crimes (Forensic Procedures) Act 2000 s 25(g) and Crimes Act 1914 (Cth) s 23WT. 115 See Crimes (Forensic Procedures) Act 2000 s 12(d) and Crimes Act 1914 (Cth) s 23WI(1)(b) and 23WA. 116 See Crimes (Forensic Procedures) Act 2000 s 6 and Crimes Act 1914 (Cth) s 23WCA. 117 See Crimes Act 1914 (Cth) s 23WA and Crimes (Forensic Procedures) Act 2000 s 3. 118 See Commonwealth of Australia, “Report of Independent Review of Part 1D of the Crimes Act 1914 – Forensic Procedures”, March 2003. 119 Crimes (Forensic Procedures) Act 2000 (ACT) s 7. 120 These include the seriousness of the offences, the circumstances surrounding its commission, the degree of the suspect’s alleged participation, personal characteristics of the suspect (including age, health, cultural background), whether evidence of the suspect’s involvement in the offence can be gained in a less intrusive way, any reasons given for refusing consent (if applicable) and any other relevant matters: Crimes (Forensic Procedures) Act 2000 (ACT) s 23 and 29. 121 Crimes (Forensic Procedures) Act 2000 (ACT) s 34. 122 Crimes Act 1958 (Vic) s 464Z(3A), as amended by the Crimes (DNA Database) Act 2002 (Vic). 123 Crimes Act 1958 (Vic) s 464ZGG to 464ZGO, as amended by the Crimes (DNA Database) Act 2002 (Vic). 124 Crimes Act 1958 (Vic) s 464SA, as amended by the Crimes (Amendment) Act 2004 (Vic). 125 Crimes Act 1958 (Vic) s 464. 126 See Criminal Law (Forensic Procedures) (Miscellaneous) Amendment Act 2002 (SA), which commenced in April 2003. 127 Criminal Law (Forensic Procedures) Act 1998 (SA) Parts 2B and 5A. 128 Criminal Law (Forensic Procedures) Act 1998 (SA) s 3. Prior to 2002, buccal swabs were categorised as “intrusive forensic procedures”. 129 Criminal Law (Forensic Procedures) Act 1998 (SA) s 13. 130 See Crimes (Forensic Procedures) Act 2000 s 3 and Criminal Law (Forensic Procedures) Act 1998 (SA) s 3. 131 Criminal Law (Forensic Procedures) Act 1998 (SA) Part 2A. 132 Criminal Law (Forensic Procedures) Act 1998 (SA) Part 2B. 133 Criminal Law (Forensic Procedures) Act 1998 (SA) Part 3 and Part 3A. 134 Criminal Law (Forensic Procedures) Act 1998 (SA) s 44. 135 Criminal Law (Forensic Procedures) Act 1998 (SA) s 46E. 136 Criminal Law (Forensic Procedures) Act 1998 (SA) s 26. 137 Criminal Investigation (Identifying People) Act 2002 (WA) s 3, 11 and 61. 138 Crimes (Forensic Procedures) Act 2000 s 3. This means the Act only applies to samples taken for forensic purposes, and not to samples taken purely to establish the identity of a person. Further, the Act does not limit other laws relating to the taking of identification evidence: Crimes (Forensic Procedures) Act 2000 s 114. 139 See Criminal Investigation (Identifying People) Act 2002 (WA) Parts 4 to 7. 140 See Criminal Investigation (Identifying People) Act 2002 (WA) s 3, 31 and 42. 141 Criminal Investigation (Identifying People) Act 2002 (WA) s 49. 142 Criminal Investigation (Identifying People) Act 2002 (WA) s 40(2), 42 and 44. 143 Criminal Investigation (Identifying People) Act 2002 (WA) s 26, 28 and 31. 144 Criminal Investigation (Identifying People) Act 2002 (WA) s 22 and 64. 145 Criminal Investigation (Identifying People) Act 2002 (WA) s 8. 146 Criminal Investigation (Identifying People) Act 2002 (WA) s 64 to 67 and 69. 147 See Police Powers and Responsibilities Act 2000 (Qld) s 284 and 288 and Crimes Act 1914 (Cth) s 23WI and 23WO. 148 Police Powers and Responsibilities Act 2000 (Qld) s 308 and 309. 149 Police Powers and Responsibilities Act 2000 (Qld) s 305. NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 35
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DNA sampling and other forensic pro
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October 2006 The Honourable Bob Deb
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October 2006 Commissioner Ken Moron
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Contents Executive summary ........
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Chapter 17. Conclusion ............
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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
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 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
Page 90 and 91: Table 2 shows the rate at which for
Page 92 and 93: Figure 5 shows that, of the forensi
Page 94 and 95: For procedures conducted on child s
Page 96 and 97: These figures show that the number
Page 98 and 99: cent result in a warm link and 13 p
Page 100 and 101: 355 40 out of 450 child suspects: C
Page 102 and 103: In our 2004 report on the DNA sampl
Page 104 and 105: 6.1.3. Does it matter whether the p
Page 106 and 107: The distinction between suspects an
Page 108 and 109: He is not here yet. [The form then
Page 110 and 111: Recommendation 15 Police consider i
Page 112 and 113: 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
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Term Definition / explanation Incap
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Term Definition / explanation Victi
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