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Report Details


Committee Name:

Legislation Committee (1989 - 2001)

House:

Legislative Council
Report Type:Report

Title:

Forensic Procedures and DNA Profiling: The Committee's Investigations in Western Australia, Victoria, South Australia, the United Kingdom, Germany and the United States of America
Report No:48
No of Pages:373
Physical Location:Legislative Council Committee Office

Presentation Date:

10/19/1999
Related Report(s):Report No 46 - Forensic Procedures and DNA Profiling (10 Dec 1998)


Click here to view the report



Due to conflicts in technology in the production of this document, there are pagination discrepancies from the original.
Hide details for Executive Summary and RecommendationsExecutive Summary and Recommendations


Chapter 1

Executive Summary, Observations and Recommendations


Executive Summary

          The use of forensic procedures, in particular DNA (deoxyribonucleic acid) testing, profiling and evidence has now entered the mainstream of the criminal justice system. In addition it has been used extensively over a long period of time in respect of paternity testing. Today it is hard to pick up a daily paper and not find an article reporting the use of DNA testing in a civil or criminal case. Indeed it has been stated that the use of DNA in the fight against crime is the most significant advance in forensic science since the advent of fingerprinting some 90 years ago.

          The United Kingdom, Germany and the United States of America have been investigating the use of, or using, forensic procedures and DNA profiling techniques for many years albeit with differing degrees of funding and political will.
          By comparison, the use of such procedures in Australia is relatively new. Recent Commonwealth initiatives include the development of a Model Bill for forensic procedures and a proposed national DNA database. The Commonwealth Government, in cooperation with the States and Territories, also is establishing a national DNA law enforcement database as part of the Commonwealth CrimTrac initiative.
          In Western Australia forensic samples were taken by police in reliance on section 236 of the Criminal Codeas it was then drafted. In taking samples, the police service had considered that an "examination" of a person in custody included the taking of forensic samples, such as blood, from the person. In 1996, subsequent restrictive judicial interpretation of section 236 cast doubt on the use of the provision to collect certain types of body samples.
          In its 42nd Report the Committee considered amendments proposed by theCriminal Law Amendment Bill (No. 1) 1998 (Western Australia) ("CLA Bill") to the Criminal Code (Western Australia). The CLA Bill sought to clarify the legality of the taking of forensic samples from persons lawfully held in custody. However, the CLA Bill did not deal with the more complex issues such as the establishment of a DNA database, storage of DNA samples and DNA profiles and the uses which can be made of DNA information and whether samples should be taken from a suspect who has not been charged.
          The amendments sought by the CLA Bill were regarded by the Attorney General, Hon Peter Foss MLC, and the then Commissioner of Police, Mr Robert Falconer, as an interim measure only. Indeed Mr Falconer further stated that the amendments "[go] nowhere near far enough. That is the point. The member is right when he refers to exciting possibilities. However, we can draw the parallel from the British experience and the way in which they have approached it, which was courageous in political terms. However, because it has produced the results it has, the early criticism has completely dissipated. The British police have the authority to obtain the material when they have reasonable grounds for suspicion. This legislation [the CLA Bill] applies after arrest; the police must have focused on the person and obtained sufficient evidence to effect an arrest. That evidence should be considerable; it should not be a stab in the dark. The person is arrested and the sample is then taken. If that sample is applicable only to that specific offence, that is different from what we need to do and what we do with fingerprints. Once we take a person's fingerprints, albeit after charging, if they are convicted of an offence, that information goes into a convicted persons' fingerprint database. We want a convicted persons' DNA national database.
      Hon DERRICK TOMLINSON: Therefore, this Bill is totally inadequate.
      Mr FALCONER: It is useless, without being too unchristian."

      These issues and the Commonwealth developments have focused attention on procedures for DNA collection, profiling and use and heightened the imminent need for Western Australia to address the matter.
          The Committee was informed by not only the Minister for Police and the Attorney General, but also the former Commissioner of Police in giving evidence to the Committee, that in or about the middle of 1999 they hoped a Bill would be introduced into the Western Australian Parliament in which the DNA forensic procedures and a DNA database would be made available as yet another tool to assist the police in investigating crime.
          Accordingly, in its 42nd Report the Committee recommended that, in the interests of the efficient and more effective resolution of crime, a broader examination of forensic procedures and DNA profiling was warranted, including its effect on civil liberties and responsibilities.

          In August 1998, the Attorney General moved and the House agreed that the Committee conduct a further inquiry into matters raised by the Committee’s inquiry into the CLA Bill. Following prorogation of Parliament on 6 August 1999, the House re-referred the matter to the Committee for inquiry on 12 August 1999. The Committee’s inquiries intrastate, interstate and overseas has enabled the Committee to define areas of concern, consider many viewpoints, make observations and formulate recommendations.
          This Report is very much a preliminary rather than a definitive study. Almost every topic addressed could benefit from further investigation. However, during the course of the Committee’s inquiries it became clear that some issues must be addressed at the outset. For convenience, the issues and the Committee’s observations and recommendations are extracted at the end of this Chapter.
          Apart from contributing to the drafting of a Bill on forensic procedures and DNA profiling, the Committee hopes that the Report will stimulate further research and discussion.
          The Committee takes this opportunity to acknowledge and thank the Hon John Cowdell MLC for his participation in the Committee’s inquiry into the issues raised by the CLA Bill from the time of the CLA Bill’s referral in March 1998 to his resignation as a member of the Committee on 23 December 1998.
          The Committee also takes this opportunity to express its appreciation for the time and invaluable assistance which those persons and organisations mentioned in Appendix 2 and 3 afforded to the Committee during its investigations. The Committee also acknowledges the services of Hansard in the transcription of evidence and information gathered by the Committee. Without their assistance the extent of the Committee’s inquiries would not have been possible.
          Lastly the Committee wishes to express its appreciation to the Advisory/Research Officer, Ms Mia Betjeman for her outstanding commitment and dedication in the preparation of this Report, ably assisted by the Committee Clerk, Ms Connie Fierro.

Observations and Recommendations
          The Committee has discussed each of the following issues at the relevant section of the report. They are extracted here for convenience. For ease of reference the Committee has noted the most pertinent paragraph or chapter of the Report which relates to each observation or recommendation.
          The minority report of Hon Giz Watson MLC is attached as Appendix 14.


How effective is a DNA database?

1. The Committee considers that the Western Australian public is entitled to expect that criminals are identified, apprehended and brought before the courts as expeditiously as possible. It is in this context that the Committee recognises the increasingly important role of forensic science in criminal investigation and public safety. Equally it recognises that suitable safeguards must be in place to protect individual rights and civil liberties. (Paragraph 4.1)

2. The Committee finds that a DNA database is an effective tool for resolving criminal investigations and eliminating persons from inquiry. The Committee notes that a DNA database may prevent recidivism by acting as a deterrent to criminals.
(Chapter 4, Chapter 7 paragraph 7.1.)

Should there be a DNA database?

3. Many jurisdictions have enacted, or are in the process of enacting, detailed legislation containing provisions relating to DNA databases and the collection, analysis, storage, use and destruction of both forensic samples and DNA profiles.
      (Chapters 5 and 6 and Chapter 7 paragraph 7.3)

4. The Committee considers that the evidence is of such a positive nature that, with the appropriate safeguards to balance personal liberty with the public interest in the resolution of crime, DNA profiling and the establishment of a DNA database is desirable.
      (Refer paragraph 4.30)

5. In implementing a DNA database, Western Australia must seek to promote two potentially conflicting policy goals:
    a.to maximise the usefulness of a DNA database as a tool available to state agencies in carrying out their duties, principally the investigation of criminal activity; and
    b. to protect the civil liberties and right to privacy of members of the public, with respect to the establishment, maintenance and use of the DNA database.
      (Paragraph 7.4)

6. The Committee recommends that there be established, in Western Australia, a DNA database that can be utilised for criminal investigation purposes and for missing persons.
      (Chapter 7)

How wide, or “broad based” should the database be?

7. The Committee has commented on the type of offence and the type of offenders on whom forensic procedures can be conducted at paragraphs 25 to 31 and 47 to 54 of the Observations and Recommendations.
      (Chapter 7)

If the database is broad based - is there a need to agree on sampling criteria to balance database capacity and analytical resources?

8. The Committee notes that the United Kingdom has broad sampling powers in relation to “recordable offences”. As a result the Committee notes that to ensure that the analytical infrastructure can support the possible sampling range, police and forensic scientists in the United Kingdom have developed administrative “sampling criteria” which prioritise categories of offences to balance database capacity and analytical resources.
      (Paragraphs 7.10 - 7.13)

What measures need to be implemented to ensure the security of the database?

9. The Committee recommends that the security of any DNA database should be protected by clear legislative provisions relating to access to, use and destruction of information on a DNA database. Further the Committee recommends that there be heavy penalties for the misuse of any information on a DNA database. These matters are addressed in more detail in paragraphs 111 to 122 of the Observations and Recommendations.

How should the database be structured - should there be one central national database; or a national network of State databases?

10. The Committee is of the view that the choice will depend upon many factors, including:
        a. compatibility of the State’s database with any proposed by the federal government; and regardless of whether or not there is compatibility;
        b. the resources which may be required for the ongoing use of a separate State database capable of exchanging information between States.
      (Paragraphs 7.31 - 7.45)

11. The Committee recommends that a State DNA database be established and that it be integrated with a national database.
      (Paragraphs 7.31 - 7.45)

12. The Committee observes that Mr Ben Gunn, Chief Constable, Cambridgeshire Constabulary, United Kingdom, emphasises benefits of a national approach. Mr Gunn noted the fact that any DNA database requires a major investment on behalf of both users (police) and providers (forensic laboratories). Mr Gunn considered that a national database:
      a. provides critical mass, to ensure economies of scale can provide acceptable analytical unit costs, and training and educational costs;
      b. affords wider technical and scientific support which enhances the integrity of the database;
      c. warrants the appointment of a custodian to ensure the operational and scientific integrity of the database; and
      d. ensures consistency of approach.
      If Western Australia were to establish a State database all of these issues would need to be addressed.
      (Paragraph 7.33, 7.40 and 7.41)

13. Another issue which may support the establishment and/or maintenance of a separate State database is the fact that each Australian State has its own criminal legislation - what may not be an offence in one State for which forensic procedures can be conducted may be so in another State. For example, the 1999 Model Bill proposes, in part, that the national database only contain profiles from convicted serious offenders, that is, those convicted of an offence which is punishable by a maximum penalty of 5 or more years. Western Australia may wish to include offenders punishable by any term of imprisonment, that is, an “indictable offence”, as is recommended by the majority of the Committee in paragraphs 27, 52 and 61 of the Observations and Recommendations.
      (Paragraph 7.45)

For the purposes of the calculation of match probability, should subdatabases be maintained for each of the major races in Western Australia?

14. The Committee observes that in other jurisdictions, separate databases are maintained to provide appropriate statistical databases. The Committee considers that the issue of subdatabases is a scientific question and involves the calculation of population frequencies. Accordingly the Committee does not make a recommendation on this issue.
      (Paragraphs 7.46 - 7.48)

15. However local information suggested to the Committee that such databases may not be necessary for the purpose of identification of an individual in Australia, given the size of the country's population. The Committee understands that increases in technology may render the compilation of subdatabases unnecessary.
      (Paragraph 10.14)

What effect does quality control, accreditation, training and education have on a database?

16. The necessity for the training of police officers and scene of crime officers, the development of standard and internationally compatible scientific techniques, and the accreditation of forensic laboratories and forensic scientists have all been canvassed in paragraphs 90 to 94 of the Observations and Recommendations.

17. The Committee emphasises the importance of quality control, accreditation, training and education to maintain database integrity.

What procedures should be regarded as intimate forensic procedures?

18. The Committee recommends that an “intimate forensic procedure” means:
      a. an external examination of the genital or anal area, the buttocks, or in the case of a female, the breasts;

      b. the taking of a sample of blood;

      c. the taking of a sample of pubic hair;

      d. the taking of a sample by swab or washing from the external genital or anal area, the buttocks, or in the case of a female, the breasts;

      e. the taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks, or in the case of a female, the breasts;

      f. the taking of a dental impression; or

      g. the taking of a photograph of, or an impression or cast of a wound from the genital or anal area, the buttocks, or in the case of a female, the breasts.
      (For a discussion of the position in other jurisdictions studied by the Committee refer to Chapters 5 and 6.)

What procedures should be regarded as non-intimate forensic procedures?

19. The Committee recommends that a “non intimate forensic procedure” means:
      a. an examination of a part of the body other than the genital or anal area, buttocks, or in the case of a female, the breasts, that requires touching of the body or removal of clothing;

      b. the taking of a sample of hair other than pubic hair;

      c. the taking of a sample from a nail or under a nail;

      d. the taking of a sample by swab or washing from any external part of the body other than the genital or anal area, the buttocks, or in the case of a female, the breasts;

      e. the taking of a sample by vacuum suction, by scraping or by lifting by tape part of the body other than the genital or anal area, the buttocks, or in the case of a female, the breasts;

      f. the taking of a handprint, fingerprint, footprint or toe print; or

      g. the taking of a photograph of, or an impression or cast of a wound from a part of the body other than the genital or anal area, the buttocks, or in the case of a female, the breasts.
      (For a discussion of the position in other jurisdictions studied by the Committee refer to Chapters 5 and 6.)

Is the taking of a sample by buccal swab an intimate or non-intimate forensic procedure?

20. The Committee is evenly divided on the issue as to whether the taking of a sample by buccal swab, is an “intimate forensic procedure” or a “non-intimate forensic procedure” and is unable to make a recommendation to the House.
      Whilst some members consider that the taking of a sample by buccal swab, may be “invasive” or “intrusive”, they do not consider that it is intimate. Other members consider that it is an intimate procedure that requires more stringent checks and balances.
      The Committee is of the view that the matter is essentially one of policy and is an issue that is best determined by the House.
      (Paragraphs 8.8 - 8.28)

What safeguards should attach to certain forensic procedures?

21. The Committee is of the view that certain forensic procedures should be carried out by a person or persons of the same sex as the person being subjected to the forensic procedure.
      (For a discussion of the position in other jurisdictions studied by the Committee refer to Chapter 5 and 6.)

22. The Committee recommends that, if practicable, an intimate forensic procedure (other than the taking of a sample of blood or a dental impression and the taking of a sample by buccal swab, regardless of whether it is categorised as an intimate or a non-intimate forensic procedure) is to be carried out by a person of the same sex as the person being subjected to the forensic procedure.
      (For a discussion of the position in other jurisdictions studied by the Committee refer to Chapters 5 and 6.)

23. The Committee recommends that, if practicable, a non-intimate forensic procedure for which the person undergoing the forensic procedure is required to remove clothing other than his or her overcoat, coat, jacket, gloves, socks, shoes and hat is to be carried out by a person of the same sex as the person being subjected to the forensic procedure.
      (For a discussion of the position in other jurisdictions studied by the Committee refer to Chapters 5 and 6.)

24. The Committee recommends that, if practicable, a person who assists in carrying out a forensic procedure covered by paragraphs 22 or 23 of the Observations and Recommendations is to be a person of the same sex as the suspect.
      (For a discussion of the position in other jurisdictions studied by the Committee refer to Chapters 5 and 6.)

What type of offences should result in body samples being taken for DNA analysis? What threshold should apply for the conduct of other forensic procedures?

25. The Committee is of the view that forensic procedures are likely to be used in relation to offences against the person. The vast majority of offences of that nature carry maximum penalties of 12 months or more imprisonment.
      (Paragraphs 8.29 - 8.37 and 8.43 - 8.47)

26. The Committee notes the findings of a Commonwealth Senate Standing Committee for the Scrutiny of Bills: Ninth Report of 1997: Crimes Amendment (Forensic Procedures) Bill 1997, 18 June 1997. The Senate committee noted that none of the reports which has investigated the feasibility of, and justification for, forensic procedures has recommended restricting the availability of procedures to offences punishable by five years or more. The reports have all settled on indictable offences as being an appropriate threshold test. The higher threshold would exclude forensic procedures from being used for many offences for which it is most applicable. The Committee notes that many offences against the person are punishable by less than 5 years imprisonment.
      (Paragraph 8.47)

27. Subject to paragraphs 28 and 29 of the Observations and Recommendations, the majority of the Committee is of the view that forensic procedures should be available in respect of offences which are punishable by any term of imprisonment. The majority of the Committee recommends that forensic procedures be available in respect of any indictable offence.
      (Paragraphs 8.29 - 8.47)

28. The Committee believes that proposed legislation should be consistent with existing legislation. In this respect the Committee notes that fingerprints currently may be taken where a “person is in lawful custody for any offence punishable on indictment or summary conviction”: section 50AA Criminal Code (Western Australia).
      (Paragraph 8.33)

29. The Committee recommends that fingerprints may be taken where a person is in lawful custody for any offence punishable on indictment or summary conviction. (Paragraph 8.33)

30. The Committee notes that legislation in the United Kingdom grants broad sampling powers in relation to “recordable offences”. As a result the Committee notes that to ensure that the analytical infrastructure can support the possible sampling range, police and forensic scientists in the United Kingdom have developed administrative “sampling criteria” which prioritise categories of offences to balance database capacity and analytical resources. (Refer to paragraph 8 of the Observations and Recommendations)

31. The Committee further notes that under the Criminal Code (Western Australia) indictable offences, subject to certain conditions, may be tried summarily. However in contrast to most other Australian jurisdictions, in Western Australia a person convicted of an indictable offence after a summary hearing is deemed to be convicted of a simple (non-indictable) offence. Accordingly if Western Australian legislation regarding forensic procedures refers to an “indictable offence” as the threshold upon which forensic procedures may be conducted, the distinction between “summary” and “indictable” offences may unintentionally limit the circumstances in which a person can be required to undergo a forensic procedure.
      The Committee notes that the above concern may be irrelevant where a forensic procedure may be conducted on a person "suspected" of an indictable offence. However an indictable offence which will be tried summarily may affect the nature of the charge placed against a person, or may affect the ability to conduct forensic procedures on convicted persons. The Committee has not considered this issue in detail but it notes that any proposed legislation defining the categories of offences for which a forensic procedure can be conducted, if distinguishing between summary and indictable offences, should, if necessary, contain provisions specifying that forensic procedures can be conducted with respect to indictable offences tried summarily. The Committee notes that this may require amendments to existing legislation including the Criminal Code (Western Australia).
      (Paragraphs 8.38 - 8.42)

What, if any, restrictions should apply to use of a sample obtained from a suspect?
- Should use of that sample be limited to investigation of the offence for which the sample was taken (“limited search”); or
- may use be made of the sample to screen against a database in respect of investigation of the offence for which the sample was taken and other offences which the suspect may have committed (“speculative search”).

32. The Committee recommends that information obtained from a forensic procedure conducted on a person who has been arrested and charged, or who has been convicted of an indictable offence, should be able to be used to conduct a speculative search.
      (Paragraphs 8.48 - 8.63)

33. The Committee is divided on the use of information obtained from a forensic procedure conducted on a person who is under suspicion of having committed an indictable offence but who has not yet been arrested or charged with an indictable offence. Accordingly the Committee is unable to make a recommendation.
      Some members consider that the information obtained from a forensic procedure should only be used to conduct a limited search. One of the views advanced in support of this position was that if the suspect was arrested subsequently and charged with an indictable offence then the information obtained from a forensic procedure could, at that time, be used to conduct a speculative search. Other members considered that the information obtained from a forensic procedure should be able to be used immediately to conduct a speculative search.
      (Paragraphs 8.48 - 8.63)

Should there be informed consent to the conduct of a forensic procedure and if so, what elements should it contain?

34. Subject to the provisions regarding children and incapable persons addressed in paragraphs 67 to 72 of the Observations and Recommendations, the Committee recommends that the legislation provide that a person may consent to a forensic procedure after the following has occurred:
        a. the forensic procedure and the purpose for which it is being carried out is explained to the person;

        b. the person is told that the procedure could produce evidence to be used in court;

        c. the person is told that information obtained from a forensic procedure and information as to the identity of the person may be placed on a database; and

        d. in the case of a person under suspicion of having committed an indictable offence, and a person who has been charged with an indictable offence, the person is informed of:

              (i) the offence for which he or she is being investigated; and

              (ii) what powers could be invoked to compel him or her to comply.
        (Paragraphs 8.67 - 8.74)

    35. The majority of the Committee recommends that legislation not require that a person be given the opportunity to communicate or attempt to communicate, with a legal practitioner.
        (Paragraphs 8.67 - 8.74)

    36. The Committee recommends that consent be recorded by obtaining:
        a. a written consent; or

        b. an electronically recorded consent.
        (Paragraphs 8.67 - 8.74)

    37. There is no provision for informed consent in the Criminal Code (Western Australia). The Committee notes that, as the Criminal Code (Western Australia) is not restricted to DNA sampling techniques, and a separate piece of legislation may be enacted for all forensic procedures, informed consent should apply to all forensic procedures even if informed consent is not currently required.
        (Paragraph 8.72)

    When can consent to the conduct of a forensic procedure be withdrawn?

    38. The Committee is of the view that a distinction needs to be drawn between two categories of persons who could be considered to be “volunteers”. For the purposes of these Observations and Recommendations the Committee distinguishes between:
        a. those persons who would fall within the categories identified in paragraph 47 of the Observations and Recommendations (“cooperative suspects”); and

        b. those persons who do not fall within the categories identified in paragraph 47 of the Observations and Recommendations (“non-suspect volunteers”).

    39. The Committee recommends that a non-suspect volunteer, who has consented to the conduct of a forensic procedure, can withdraw his or her consent at any time. (Paragraphs 8.75 - 8.78)

    40. The Committee recommends that a cooperative suspect, who has consented to the conduct of a forensic procedure, can withdraw his or her consent before the commencement of the forensic procedure.
        (Paragraphs 8.75 - 8.78)

    41. In respect of paragraph 40 of the Observations and Recommendations, the Committee notes that:
        a. there may be difficulties in fixing the point at which a forensic procedure can be said to have “commenced”. For example, in the case of the taking of a blood sample by venepuncture - is it the application of the tourniquet, the swabbing of the skin, the piercing of the skin or the drawing of the blood? and

        b. the point at which a forensic procedure can be said to have “commenced” will differ between forensic procedures.
        (Paragraphs 8.75 - 8.78)

    42. In view of the matters referred to in paragraph 41 of the Observations and Recommendations, the Committee is of the view that it is necessary to objectively fix the point at which forensic procedures can be said to have “commenced”, after which time cooperative suspects may not withdraw their consent. The Committee recommends that persons authorised to conduct the forensic procedures again ask cooperative suspects being subjected to the forensic procedure whether they consent. Once that question has been asked and consent has been given again, the forensic procedure is deemed to have commenced and consent may not thereafter be withdrawn.
        (Paragraphs 8.75 - 8.78)

    What should happen when consent to the conduct of a forensic procedure is withdrawn?

    43. In the event that a person, who is under suspicion for having committed an indictable offence but who is yet to be charged, withdraws his or her consent before the commencement of the forensic procedure, the Committee notes that the police should be able to apply to a magistrate for an order for a compulsory forensic procedure (refer to paragraph 50 of the Observations and Recommendations).

    44. In the event that a person who has been charged with an indictable offence withdraws his or her consent before the commencement of the forensic procedure, the Committee notes that the police can use reasonable force to conduct a forensic procedure (refer to paragraphs 51 and 86 of the Observations and Recommendations).

    45. In the event that a person who has been convicted of an indictable offence withdraws his or her consent before the commencement of the forensic procedure, the Committee notes that the police can use reasonable force to conduct a forensic procedure (refer to paragraphs 52, 62 and 86 of the Observations and Recommendations).

    46. The Committee recommends that in the event that a non-suspect volunteer (as defined in paragraph 38 of the Observations and Recommendations), withdraws his or her consent then:
        a. if consent is withdrawn after a forensic procedure has commenced but before it is completed, then the person conducting the forensic procedure must immediately cease conducting the forensic procedure; and

        b. subject to paragraphs 117, 118, 120 and 121 of the Observations and Recommendations, all material and information obtained through the conduct of the forensic procedure on a non-suspect volunteer (including any information placed on a DNA database) should be destroyed as soon as practicable.

    In what circumstances should police be empowered to conduct a forensic procedure without consent (“compulsory forensic procedure”)?

    47. The majority of the Committee recommends that compulsory forensic procedures be able to be conducted on:
        a. a person under suspicion of having committed an indictable offence;

        b. a person who has been charged with an indictable offence; and

        c. a person who has been convicted of an indictable offence.
        (Paragraphs 8.79 - 8.101)

    48. The Committee recommends that a person is “under suspicion” if the police officer by or on whose instruction a forensic procedure is to be carried out on the person, suspects that person, on reasonable grounds, of having committed an indictable offence.

    49. The Committee is of the view that a legislative difference needs to be drawn in respect of the circumstances in which a forensic procedure may be conducted in each of the categories referred to above.
        (Paragraphs 8.79 - 8.101)

    50. In respect of a person under suspicion of having committed an indictable offence but who is yet to be charged, the majority of the Committee recommends that a compulsory forensic procedure, regardless of whether the forensic procedure is an intimate or non-intimate forensic procedure, may be conducted under authority of a magistrate or a justice of the peace, where such forensic procedure is likely to afford evidence for the offence for which the person is under suspicion. (Paragraphs 8.79 - 8.101)

    51. In respect of a person who has been charged with an indictable offence, the Committee recommends that a police officer may require the person to undergo a compulsory forensic procedure, regardless as to whether the forensic procedure is an intimate or non-intimate forensic procedure, where such forensic procedure is likely to afford evidence for the offence for which the person has been charged. (Paragraphs 8.79 - 8.101)

    52. In respect of a person who has been convicted of an indictable offence, the majority of the Committee recommends that he or she may be required by the police to undergo a compulsory forensic procedure.
        (Paragraphs 8.79 - 8.101)

    53. Since its 42nd Report on the Criminal Law Amendment Bill (No 1) 1998, the Committee has become aware that there may be an issue surrounding at what time a person can be said to be “in custody upon a charge of committing an offence”, as that phrase is used in section 236 of the Criminal Code (Western Australia). The Committee notes that the interpretation of “charge” is to be read in light of the legislative instrument in which it is contained. However the Committee considers that the fact that a person is “in custody upon a charge” necessarily requires that a person “has been charged”, and fixing that time is not without debate.
        (Paragraphs 8.83 - 8.86)

    54. Regardless of whether or not section 236 of the Criminal Code(Western Australia) is amended, if the event or “trigger” upon which a person may be subject to a forensic procedure using reasonable force requires that a person is “in custody upon a charge of committing an offence”, then the issues referred to in paragraphs 8.83 - 8.86 of the Report should be considered and clearly defined. In the event that a forensic procedure is conducted prior to the time at which it is clear that the subject is “in custody upon a charge of committing an offence” the use of any material obtained from the forensic procedure may run the risk of later being held to be inadmissible as having been illegally or improperly obtained. Accordingly the Committee recommends that the time at which a person is charged needs to be clarified in legislation.
        (Paragraphs 8.83 - 8.86)

    Should provision be made for volunteers to be placed on the database?

    55. The Committee notes that a person may be asked by the police to undergo a forensic procedure or may, for their own reason, wish to undergo a forensic procedure. For example a person in the latter category may wish to volunteer to undergo a forensic procedure to exonerate themselves from a particular offence or to exonerate themselves from types of offences for which they may have previously been convicted and released.
        (Paragraphs 8.102 - 8.109)

    56. The Committee recommends that forensic procedures be able to be conducted on a volunteer with his or her consent. The Committee has addressed the issue of consent at paragraphs 34 to 46 of the Observations and Recommendations.

    What safeguards should apply to volunteers?

    57. The Committee has addressed the issue of withdrawal of consent at paragraphs 38 - 46 of the Observations and Recommendations.

    Should there be an ability to apply for the retention of a body sample if consent is withdrawn?

    58. In the event that a “non-suspect volunteer” (as defined in paragraph 38 of the Observations and Recommendations) withdraws his or her consent to a forensic procedure after a sample has been obtained, the police may apply to the court for an order that the forensic material and any forensic information obtained as a result of the forensic procedure be retained if, subsequent to conduct of the forensic procedure, the non-suspect has become a person to whom paragraph 47 of the Observations and Recommendations apply.

    59. In view of the Committee’s comments at paragraphs 40 - 42 of the Observations and Recommendations in relation to “cooperative suspects” (as defined in paragraph 38 of the Observations and Recommendations) there is no need for an ability for a police officer to apply for a court order to retain any forensic material or any forensic information obtained as a result of the forensic procedure.

    Should there be a power to take samples from convicted offenders (Post Conviction Testing)?

    60. The majority of the Committee recommends that the power for police to conduct a forensic procedure on a person who has been convicted of an indictable offence is to apply to persons who:
        a. are currently in prison or other place of detention;

        b. are on parole or serving a suspended sentence; and

        c. are in prison or in mental hospitals who have been found unfit to plead,

        and who have been found guilty of an indictable offence whether before or after the commencement of legislation enabling the conduct of a forensic procedure upon that person.
        (Paragraphs 8 114 - 8.148)

    If so, what offences should enable Post Conviction Testing?
    61. As noted at paragraphs 27, 47, 52 and 60 of the Observations and Recommendations, the majority of the Committee recommends that there should be a power for police to conduct a forensic procedure on a person who has been convicted of an indictable offence.
        (Paragraphs 8 114 - 8.148)

    In respect of Post Conviction Testing, should there be a right of objection to a forensic procedure and/or a requirement for a court application on a case by case basis?

    62. The Committee recommends that the power to conduct a forensic procedure on a convicted offender should not be subject to a right of objection by the person who is required to undergo a forensic procedure, nor should the legislation require that any application be made to the court for an order that the person undergo a forensic procedure. Accordingly the Committee recommends that it be a legislative requirement that convicted offenders undergo a forensic procedure to provide a DNA profile.
        (Paragraphs 8.118 and 8.121)

    Should there be a power to re-sample and, if so, in what circumstances can it occur?

    63. Subject to paragraph 64 of the Observations and Recommendations, the Committee recommends that there should be power for the police to re-sample if the sample obtained from the conduct of a forensic procedure was not suitable for analysis or, though suitable, proved insufficient.
        (Paragraphs 8.146 and 8.147)

    64. The majority of the Committee recommends that if a person does not consent to a re-sampling then:
        a. in the case of a person who is under suspicion for having committed an indictable offence but who is yet to be charged, the police will need to reapply to a magistrate or a justice of the peace for an order for a compulsory forensic procedure; and

        b. in the case of a person who has been charged with or convicted of an indictable offence, the police can use reasonable force to conduct another forensic procedure.
        (Paragraphs 8.146 and 8.147)

    What State agency should be responsible for Post Conviction Testing?

    65. The Committee recommends that the Ministry of Justice should be responsible for conducting forensic procedures on persons who have been convicted of an indictable offence.
        (Paragraph 8.141)

    How should the development of exoneration through Post Conviction Testing, as illustrated by the Innocence Project in New York State, be addressed?

    66. The Committee makes no finding on the issue of exoneration through Post Conviction Testing as each case must be considered on its own facts. The Committee merely notes this as an issue which the Western Australia criminal justice system may, in the future, have to consider. However it also may have implications on access rights to samples and database information. This is addressed in Chapter 12 of the Report.
        (Paragraphs 8.149 - 8.152)

    Should the legislation recognise the special position of children and incapable persons and, if so, how?
    Should there be a minimum age at which a DNA sample can be taken without consent, or other restrictions relating to samples from juveniles?

    67. The Committee recommends that the legislation should recognise the special position of two categories of people who are incapable of giving informed consent: children (being a person under 18) and “incapable persons”.
        (Paragraphs 8.153 - 8.163)

    68. The Committee recommends that an “incapable person” include an adult who:
        a. is not capable of understanding the general nature and effect of, and purposes of carrying out, a forensic procedure; or

        b. is not capable of indicating whether or not he or she consents or does not consent to a forensic procedure being carried out.
        (Paragraphs 8.153 - 8.163)

    69. Accordingly in the above categories, the Committee recommends that consent cannot be given by that person and:
        a. in the case of a person who is under suspicion of having committed an indictable offence or who has been charged with an indictable offence, an order from a magistrate or a justice of the peace is required; or

        b. in the case of a volunteer, the informed consent of the parent or guardian is required or, if there is no parent or guardian then an order from a magistrate or a justice of the peace is required, to conduct a forensic procedure.
        (Paragraphs 8.153 - 8.163)

    70. The majority of the Committee recommends that the principles espoused by the Young Offenders Act 1994 (Western Australia), in particular the requirement to notify a “responsible adult” of certain dealings with a young person be extended to the conduct of forensic procedures involving a young person.
        (Paragraphs 8.159 - 8.163)

    71. The majority of the Committee recommends that police officers must notify the relevant “responsible person” prior to proceeding with any forensic procedure on a young person. The Committee recommends that similar provisions should apply in respect of incapable persons.
        (Paragraphs 8.159 - 8.163)

    72. The Committee notes that:
        a. a young person as defined in the Young Offenders Act 1994 (Western Australia) is a person under the age of 18 years and this reflects the definition of “children” referred to in paragraph 67 of the Observations and Recommendations;

        b. the definition of “body sample” in the Young Offenders Act 1994 (Western Australia) may need to be amended to be consistent with legislation regarding forensic procedures involving body samples; and

        c. the provisions in the Young Offenders Regulations 1995 relating to the labelling of blood or urine samples and the requirement that a body sample of blood be taken by a medical practitioner may need to be amended to be consistent with legislation regarding forensic procedures.
        (Paragraph 8.163)

    In what circumstances should there be judicial oversight of the compulsory taking of samples?

    73. The Committee has addressed this issue in paragraphs 49 and 50 of the Observations and Recommendations.
        (Paragraph 8.164 - 8.165 and 8.171 - 8.186)

    In what circumstances should a police officer be empowered to authorise the compulsory taking of samples?

    74. The Committee has addressed this issue in paragraphs 49, 51 and 52 of the Observations and Recommendations.
        (Paragraphs 8.164 - 8.165 and 8.166 - 8.170)

    Should there be provision for interim orders?
        Who should be empowered to grant interim orders - police officers, justices of the peace, or magistrates?
        Should the suspect be represented at hearings of an application for an order to undergo a compulsory forensic procedure?
        What rights should a suspect have at any hearing?

    75. It appears to the Committee that, in the event that the legislation requires an application to be made to a magistrate or a justice of the peace for an order to conduct a forensic procedure, then the ability to seek an order by electronic means may be one method of alleviating some of the difficulties experienced by remote areas of Western Australia. The Committee notes that “interim orders”, as they are discussed in the report, can be made by electronic means but they still require final determination.
        (Paragraphs 8.187 - 8.192)

    76. The Committee recommends that where it is not practicable for a police officer to physically appear before a magistrate or a justice of the peace to obtain an order to conduct a forensic procedure, an application and an order for a compulsory forensic procedure can be made by electronic means.
        (Paragraphs 8.187 - 8.192)

    77. The Committee recommends that once an order has been obtained in the circumstances set out in paragraph 76 of the Observations and Recommendations, it does not require sanction by an application and a corresponding order at a final hearing. The Committee emphasises that it is the only order required.
        (Paragraphs 8.187 - 8.192)

    78. The majority of the Committee recommends that legislation not require that a person under suspicion of having committed an indictable offence be present or have legal representation at a hearing, to cross examine witnesses or to make a submission to the magistrate or justice of the peace.
        (Paragraphs 8.187 - 8.192)

    Who should collect samples?
    In what circumstances should police officers be empowered to collect samples?
    Should there be different restrictions applying to different types of samples, such as a blood sample and a buccal swab?

    79. The Committee considers that there is a need to clearly legislate in relation to the categories of persons authorised to conduct different types of forensic procedures. (Paragraphs 8.197 - 8.209)

    80. The Committee recommends that intimate and non-intimate forensic procedures may be conducted by a medical practitioner, a nurse or an “authorised person”. (Paragraphs 8.197 - 8.209)

    81. The Committee repeats its recommendation at paragraphs 21 - 24 of the Observations and Recommendations regarding the sex of the person conducting a relevant forensic procedure.
      82. In making the recommendations at paragraphs 80 and 81 of the Observations and Recommendations, the Committee refers to paragraph 20 of the Observations and Recommendations where it is stated that the Committee is divided as to whether the taking of a sample by buccal swab is to be considered an intimate or non-intimate forensic procedure. Regardless of the ultimate classification, the majority of the Committee are of the view that an “authorised person” for the conduct of a forensic procedure involving the taking of a sample by buccal swab, should include a police officer who has been trained in the relevant procedure.
          (Paragraphs 8.197 - 8.209)

      83. The Committee is of the view that an “authorised person” for the conduct of a forensic procedure involving the taking of blood should include a phlebotomist or a medical technician who has been trained in the relevant procedure.
          (Paragraphs 8.197 - 8.209)

      84. The Committee recommends that:
          a. a “medical practitioner” should include, in relation to a forensic procedure involving the mouth or the teeth or an impression left by the mouth or teeth, a registered dentist; and

          b. an “authorised person” is one authorised by the Commissioner of Police.
          (Paragraphs 8.197 - 8.209)

      At the time a sample is physically taken, what safeguards are necessary to protect the well-being of: the person whose sample is taken; the medical officer taking the sample; and police officers assisting the medical officer?

      85. The Committee recommends that no civil or criminal liability is incurred by any person who carries out, or helps to carry out, a forensic procedure in respect of anything done by that person in carrying out or helping to carry out the forensic procedure if the person believed on reasonable grounds that:
          a. informed consent had been given to the carrying out of the forensic procedure;

          b. in the case of a person under suspicion of having committed an indictable offence, the carrying out of the forensic procedure without informed consent had been duly authorised by a magistrate or a justice of the peace; or

          c. in the case of a person who has been charged with or convicted of an indictable offence, the carrying out of the forensic procedure without informed consent employed reasonable force, if necessary,

          and the thing was done in good faith and the doing of it was reasonable in all the circumstances.
          (Paragraphs 8.197 - 8.209)

      Should reasonable force be used to obtain samples?
      If so, in what circumstances may it be used?

      86. The Committee recommends that a person authorised to conduct a forensic procedure or a person assisting such person may use reasonable force. In the case of a person who is under suspicion as having committed an indictable offence but who has not been charged with an indictable offence, reasonable force may only be used after an order to conduct a forensic procedure has been obtained from a magistrate or a justice of the peace.
          (Paragraphs 8.210 - 8.217)

      How should the legislation address the ethical concerns of medical practitioners and concerns expressed by other groups about the use of force in conducting forensic procedures?

      87. The Committee notes that ethical concerns have been expressed by medical practitioners and concerns have been expressed by other groups such as prison staff, about the use of force in the conduct of medical procedures.
          (Paragraphs 8.218 - 8. 220)

      88. The Committee recommends that the legislation expressly provide that no person be required to carry out or assist in the carrying out of a forensic procedure. (Paragraphs 8.218 - 8. 219)

      89. In so far as conducting forensic procedures on convicted offenders is concerned, the Committee recommends that administrative arrangements should be managed so that the forensic procedure is conducted by an outside, independent medical practitioner, nurse or authorised person. If necessary they should also be assisted by someone independent of the prison.
          (Paragraph 8.220)

      What procedures should apply at the time a sample is taken to ensure integrity in the sampling and evidence collection processes? For example: what safeguards are needed to ensure the integrity of analysis of samples and prevent tampering or contamination?

      90. To ensure integrity of a sample obtained though a forensic procedure, it was repeatedly emphasised to the Committee that the development of standard operation practices, training and education is essential.
          (Paragraphs 8.224 - 8.331)

      91. The Committee recommends that guidelines for sampling at the scene of the crime, conducting a forensic procedure on a person and the preservation and expedition of biological evidence by trained personnel be developed to ensure the chain of evidence and to guarantee the integrity of any sample.
          (Paragraphs 8.224 - 8.331)

      92. The Committee recommends that all recruits and currently serving police officers be requested to undergo a forensic procedure to provide a DNA profile for exclusionary purposes.
          (Paragraph 8.230)
      93. The Committee notes that there may need to be provision for police officers to apply for identifying data to be destroyed after they leave the police service.
          (Paragraph 8.231)

      94. The Committee notes that the above issues are procedural and should be addressed in an administrative manner through the development of Codes of Practice and standard operating procedures.

      What measures should be taken to ensure that, should any changes be made to the legislation regarding the collection of DNA forensic material, they are not in complete variance with other forensic procedures such as procedures for taking fingerprints?

      95. Although the Committee has focussed its inquiries on samples obtained for DNA profiling, its comments are equally applicable for samples taken for other forensic procedures.
          (Paragraphs 8.232 - 8.235)

      96. The Committee has not addressed all of the issues that may be raised by paragraph 95 of the Observations and Recommendations. However, the Committee recognises the importance of forensic odontology in criminal law enforcement. When in South Australia the Committee was provided with submissions which highlight some of the difficulties in drafting comprehensive legislation covering all types of forensic procedures. The Committee recommends that the government have regard to such submissions when drafting legislation for this State.
          (Paragraph 8.233)

      Are there any other observations?

      97. The practical implementation of the reporting requirements of the Victorian legislation has created major difficulties. Sections 464ZD and 464ZF(11) of the Crimes Act 1958 (Victoria) require that police provide a copy of a “forensic report” to everyone on whom a forensic procedure has been conducted. While the police have been acknowledging blood has been provided, it is open to interpretation whether this satisfies the requirement of the relevant Act, as it only states that blood was taken from a particular prisoner on a particular date. The Victorian legislation did not define “forensic report” and some have queried whether this should also have included results of screening against the database.
          (Paragraph 8.133)

      Is there a need to retain the actual crime scene or suspect sample after the DNA profile has been extracted and the information recorded?
      How should samples be stored?

      98. Subject to paragraphs 117 to 122 of the Observations and Recommendations, the Committee recommends that all body samples and crime scene samples and any information obtained from those samples should be:
          a. securely stored by the laboratory which conducted the relevant analysis, and not the police; and

          b. stored separately from any information that may identify the person to whom the body sample relates.
          (Paragraphs 9.1 - 9.12)

      99. The Committee offers no judgment on the adequacy or otherwise of different methods of packaging and storage save to note that:
          a. the method of sampling has major scientific and financial implications;

          b. the method of storage has major scientific and financial implications; and

          c. the constant change in technology demonstrates the need for the users (generally police) and the providers (scientists) to consult extensively with each other to determine how best to practically implement any legislation.
          (Paragraphs 9.1 - 9.12)

      What is a standard set of loci?

      100. In view of the diverse scientific opinions, the Committee does not make any recommendations on what may be an appropriate set of loci, apart from the need for a common set of loci for interstate and international integration and a sufficient number for accurate identification. It appears that for the purposes of DNA profiling of the Australian population the 9 loci plus the sex determinator may be sufficient.
          (Paragraphs 10.12 - 10.14)

      Should our legislation specifically restrict any DNA analysis to the non coding parts of DNA?

      101. The majority of the Committee recommends that any DNA analysis not be restricted to the non-coding parts of DNA.
          (Paragraphs 10.15 - 10.18)

      Should Parliament legislate accreditation or licensing requirements for laboratories involved in forensic DNA typing? If so, how?

      102. The Committee believes that clear and mandatory quality assurance and quality control standards should be established as being essential to the integrity of sample analysis and DNA profiling, and that such standards should be met by each laboratory in which DNA forensic testing is to be conducted.
          (Paragraphs 10.19 - 10.27)

      103. The development of scientific accreditation standards is not a task for which this Committee is equipped. The Committee notes that the National Institute for Forensic Science is already addressing the issue of national scientific accreditation. (Paragraphs 10.19 - 10.27)

      104. The Committee further notes that many laboratories will already operate under standard scientific protocols and that the Committee is not in a position to question the adequacy or otherwise of such protocols. Accordingly the Committee makes no comment on the content of the various standards.
          (Paragraphs 10.19 - 10.27)

      105. However the Committee notes that if accreditation standards affect evidentiary samples and go wider than the scientific process, it may be useful for wider consultation to occur. The Committee notes that, in line with the position in the State of New York, this may involve the development of a multidisciplinary committee. Such a committee would be an expert consultative committee including representatives of the judiciary, legal professions and appropriate professional bodies such as the State forensic laboratory. The committee could be established to determine minimum standards and a program of accreditation, recommendations regarding DNA lab accreditation and DNA forensic science accreditation and legislative regulation.
          (Paragraphs 10.19 - 10.27)

      Should the functions relating to storage and analysis of samples be separated from the functions of the police service or other agency seeking to use samples? If so, how?

      106. In the Committee’s view it is preferable to separate the functions of police investigation and forensic DNA analysis. Both functions should be financially and operationally independent.
          (Paragraphs 10.28 - 10.51)

      107. The Committee recognises that collocation of the three disciplines (police forensic services, the forensic chemistry laboratory and the PathCentre WA DNA Testing Unit) may result in economies of scale and improve appropriate police exchange of information and knowledge as well as maintain necessary independence. (Paragraphs 10.28 - 10.51)

      108. In the event that DNA analytical facilities are to be collocated with other police facilities, the Committee recommends that, to ensure functional autonomy and operational independence, forensic services should be funded independently of the police service.
          (Paragraphs 10.28 - 10.51)

      Who should be responsible for regulatory oversight of the DNA database? Should the roles of database custodian and manager:
        - be fulfilled by the law enforcement authorities; or
        - be separate from law enforcement authorities and fulfilled by either:
          • the State’s forensic laboratory; or
          • an independent agency?

      109. The Committee recommends that regulatory oversight of and the roles of database manager and custodian of any Western Australian DNA database be separate to law enforcement authorities and be fulfilled by a functionally autonomous public agency.
          (Chapter 11)

      110. The Committee is attracted to the organisational model of the United Kingdom database whereby the role of the manager and custodian of the database (including all identifying information) is kept separate from the police service and is fulfilled by the Forensic Science Service. The United Kingdom police retain ownership of the data and can enter into arrangements regarding its use. The Committee recommends that consideration be given to structuring the ownership and operation of any Western Australian database in a similar manner.
          (Chapter 11)

      What access should be granted to suspects, convicted offenders and third parties in relation to body samples and crime scene samples?
      In what circumstances should there be access to and disclosure of information on a DNA database?
      What sanctions should there be for misuse of any information?

      111. The Committee recommends that there should be legislative specification of the purposes for which forensic samples and information obtained through forensic procedures can be used and disclosed to others. The Committee recommends that permissible disclosure take place only in the event of one or more of the following situations:
          a. where the information is publicly known, and it is necessary for the investigation of a criminal offence;

          b. where it is necessary for the purposes of determining whether to commence criminal proceedings or civil proceedings (in the light of the way the procedure was carried out);

          c. where it is necessary for forensic comparison in the course of a criminal investigation by a police officer;

          d. where an arrangement with the Commonwealth or another State or Territory requires such disclosure;

          e. where the person to whom the information relates has consented to such disclosure; and

          f. where a complaint has been made to the Privacy Commissioner.
          (Chapter 12)

      112. The Committee notes that a suspect (or convicted offender) will be able to provide body samples to an independent expert. However to enable independent analysis of crime scene samples, the suspect’s scientist (or convicted offender’s scientist) will need access to crime scene evidence. The Committee is of the view that the safeguard of independent analysis is a valuable one which provides the suspect (or convicted offender) with a reasonable opportunity to verify or contest the prosecution's evidence. (Chapter 12)

      113. In any case where there is a sufficient “crime scene sample”, the Committee recommends that, if it is technically feasible, a portion of the material sufficient for independent analysis is to be protected and preserved in accordances with proper storage procedures, so that it can be made available to a defendant in criminal proceedings so as to permit independent analysis on behalf of the defendant, by an accredited forensic laboratory of the defendant’s choice.
          (Chapter 12)

      114. The Committee notes that in Western Australia, there is no legislation similar to the Data Protection Act 1984 (United Kingdom). The Committee suggests that consideration be given to drafting appropriate legislation to give protection to privileged information which can be collected as a result of forensic procedures.
          (Paragraph 12.30)

      115. The Committee recommends that there be heavy penalties for misuse of both forensic material and information obtained from a forensic procedure, including database information.
          (Chapter 12)

      What measures should be adopted to allow the use of interstate forensic material and access to interstate databases?

      116. The Committee is of the view that in the interests of effective crime detection in Western Australia the use of any information should be as wide as possible. The Committee has already commented on permissible uses of the information at paragraph 111 of the Observations and Recommendations.

      Should body samples and/or information derived from a forensic procedure (including database profiles) obtained from body samples be destroyed and if so when?
      Should destruction of a body sample and/or information derived from a forensic procedure (including database profiles) obtained from a body sample be:
      - automatic if a suspect is acquitted; or
      - at the request of the suspect?

      117. The Committee recommends that body samples from a person and information derived from a forensic procedure (including profiles) should be destroyed as soon as practicable:
          a. where that person is cleared of the offence, or the charge which has been laid does not proceed to trial or hearing within 2 years of the sample being taken;

          b. where that person is not prosecuted for the offence within 2 years of the sample being taken;

          c. where that person is no longer suspected of having committed the offence; or

          d. where the courts rule that the evidence derived from a forensic procedure is inadmissible,
          and that person has applied in writing for the destruction of that material.
          (Chapter 13)

      118. The Committee recommends that the legislation should:
          a. provide for the issue of a certificate of destruction upon request;

          b. provide for the police or the Director of Public Prosecutions to make application to the court to extend any period referred to above (117);

          c. provide for the creation of a summary offence punishable on conviction by imprisonment (1 year maximum) or a fine, where a person knowingly fails to destroy, or uses or causes or permits to be used, a sample or related material or information, or information derived from such samples or related materials which were required to be destroyed; and

          d. provide for destruction in respect of volunteers who have withdrawn their consent.
          (Chapter 13)

      Should crime scene samples and/or information derived from a crime scene sample (including profiles) be destroyed and if so, when?

      119. The Committee recommends that all crime scene samples and information derived from a crime scene sample (including profiles) should be retained indefinately.
          (Chapter 13)

      What should the extent of any destruction be, that is, identifying data only or the whole sample and the profile?

      120. The Committee recommends that DNA data derived from body samples be able to be used in a statistical database to make comparisons between the pool of local DNA data and specific individual DNA and crime scene profiles for the purposes of calculating probabilities.
          (Chapter 13)
      121. The Committee recommends that “destruction” occurs:
          a. in the case of a body sample obtained from a forensic procedure, when that sample is totally destroyed; and
          b. in the case of any information obtained from a forensic procedure (including DNA profiles), when any means of identifying the information derived from a forensic procedure (including DNA profiles) with the person from whom it is taken is destroyed. This will enable the use of any data in an anonymous form in a statistical database.
          (Chapter 13)

      Any other observations regarding destruction requirements?

      122. The Committee notes that some samples of body fluid, tissue or hair obtained from a person may not be the body fluid, tissue or hair of that person but of a third party. If a sample is taken, and the person is excluded from investigation, normally the sample should be destroyed. However, that sample may indicate that the third party was involved and in turn, link the third party to the crime scene. Accordingly it may provide important evidence which should not be destroyed. Victorian commentators suggested that the legislation be drafted so that, if following analysis, it is shown that the material is not the body fluid, tissue or hair of the person from whom it was sampled, then it does not need to be destroyed. Otherwise the legislation would require the destruction of evidence.
          (Paragraph 5.26)

      What level of funding is required to establish and maintain a DNA database in its initial stages, and from where should funding be sourced?
      How should DNA casework and the database be funded?
      Should there be centralised scientific analysis?
      Should samples be analysed at a State or federal facility?
      How should the legislation be implemented?

      123. The Committee recommends that all samples will need to be processed to the stage of having DNA profiles ready for input into the database, at State and Territory level.
          (Chapter 14)

      124. It is outside the Committee’s mandate to make recommendations which may amount to an appropriation, however the Committee is of the view that:
          a. any funding assessment requires an honest appraisal of costs analysis;

          b. whilst there may be immediate advantages, the Committee notes that it may take up to four years from the inception of the database to obtain the full benefits of a DNA database. The Committee emphasises that the Western Australian community’s expectation of results must be long term;

          c. all samples will need to be processed to the stage of having DNA profiles ready for input into the database, at State and Territory level;

          d. State forensic laboratories need to be adequately funded to accommodate the increase in number of samples requiring analysis; and

          e. funding will be required to educate and train law enforcement authorities and scientific providers.
          (Chapter 14)

      125. In the interests of national integration and comparability the Committee is supportive of the stance which the United States of America federal government has taken in:
          a. supplying scientific training and database software, together with database installation, database training and user support, free of charge to any American state and local law enforcement laboratories performing DNA analysis; and

          b. establishing a federal grant program to assist state and local crime laboratories in developing or improving forensic DNA testing capabilities.
          (Chapter 14)

      126. The Committee considers that it is undesirable if the “purchase of services” is equated by the public as the “purchase of prosecution”. The Committee notes that in the United Kingdom a deliberate decision was made to provide funding directly from the United Kingdom Treasury rather than the police department. Whilst the police service in the United Kingdom ultimately support the analytical services through the “fee for service” arrangement with forensic service providers, the police “pay” for a service and do not “fund” a service. The Committee considers that this distinction is very important and that the same separation is appropriate for Western Australia. (Paragraph 14.29)

      127. The Committee considers that the funding model adopted by the United Kingdom is an attractive model that should be considered by Western Australia. Although prompted by privatisation initiatives, the United Kingdom funding arrangement recognises the reality that the main user of forensic services are the police whilst acknowledging the risks and negative perceptions if funding is provided directly by the police. The Committee refers to its recommendations at paragraphs 109 and 110 of the Observations and Recommendations.
          (Paragraph 14.30)

      Should the regulatory regime for forensic procedures be set out in the Criminal Code (Western Australia), Police Act 1892 (Western Australia) or separate legislation?
      If the regulatory regime is to be set out in a dedicated piece of legislation what effect will this have on existing legislation?

      128. The Committee recommends that:
          a. provisions relating to all forensic procedures and DNA profiling be enacted in separate dedicated legislation; and

          b. the provisions of the 1999 Model Bill be closely scrutinised by Western Australia when drafting new legislation.
          (Paragraphs 15.2 - 15.7)

      What level of consultation is necessary for the development and implementation of legislation?

      129. The Committee recommends that the Western Australian government consult widely when drafting any forensic procedures legislation for the State. Consultation should include, as a minimum, users (for example, the police), providers (for example, scientific analytical services) and members of the legal profession and judiciary.
          (Paragraphs 15.8 - 15.10)

      Should there be a provision for review?

      130. The Committee recommends that any legislation dealing with forensic procedures and DNA profiling contain a provision for review after five years of operation.

      Should adverse inferences be drawn from evidence of refusal to undergo a forensic procedure and if so, in what circumstances?

      131. The Committee recommends that:
          a. subject to paragraphs 131b and 131c, evidence of a person’s refusal or failure to consent or withdrawal of consent to a forensic procedure should not be admissible in proceedings against the person. This would encompass volunteers sampled under mass screenings;

          b. where a justice of the peace or magistrate has authorised the carrying out of a forensic procedure on a suspect, then evidence that the suspect has refused to comply or has obstructed, resisted or hindered the carrying out of the forensic procedure should be admissible in any proceedings against the suspect; and

          c. where a person has been charged with an offence and has been requested by the police to undergo a forensic procedure then, evidence that the suspect has refused to comply or has obstructed, resisted or hindered the carrying out of the forensic procedure should be admissible in any proceedings against the suspect.
          (Paragraphs 16.18 - 16.27)

      Should evidence be admissible where there has been failure to comply with legal requirements, and if so under what circumstances?

      132. The Committee recommends that:
          a. subject to paragraph 132b, where there has been a breach of, or failure to comply with any of the legislative provisions regarding a forensic procedure or the recording or use of information on a DNA database, then the forensic material, any results of the forensic analysis and any evidence obtained as a result of or in connection with the carrying out of the forensic procedure should not be admissible in any proceedings against the person on whom the procedure was conducted unless:

          - the person on whom the forensic procedure was conducted consents; or

          - the court is satisfied on the balance of probabilities of certain matters that justify the admission of the evidence into proceedings despite the failure to comply with the legislative provisions. Such matters would include the probative value of the evidence, the reasons for failure to comply, the gravity of the failure to comply and whether the failure was intentional or deliberate; and
          b. if the forensic material was required to be destroyed then the forensic material, any results of the forensic analysis and any evidence obtained as a result of or in connection with the carrying out of the forensic procedure is not admissible in any proceedings against the person on whom the procedure was conducted.
          (Paragraphs 16.28 - 16.34)

      What measures should be put into place regarding the reliability of the database?

      133. This issue is outside the scope of the Committee’s current inquiry. The Committee makes some observations in Chapter 16.
          (Paragraphs 16.35 - 16.38)

      If the primary evidence (the crime scene sample) is not available, whether through loss, destruction or deterioration, should the secondary evidence (the DNA profile) be admissible in evidence, and if so what weight should it carry?

      134. This issue is outside the scope of the Committee’s current inquiry. The Committee makes some observations in Chapter 16.
          (Paragraphs 16.39 - 16.41)

      What mechanisms should be in place regarding access by the defence to the forensic material and database information for independent verification?

      135. The Committee has addressed this issue in Chapter 12 and in paragraphs 111 - 115 of the Observations and Recommendations.
          (Paragraphs 16.42 - 16.42)

      What other procedural safeguards may be required when presenting DNA evidence in criminal proceedings? For example: pre-trial discovery, the availability of legal aid and the availability of experts; the role of education in the use of DNA as evidence.

      136. These issues are outside the scope of the Committee’s current inquiry. The Committee makes some observations in Chapter 16.
          (Paragraphs 16.44 - 16.62)