45.4 A person might seek to access the original crime scene sample for analysis to overturn his or her conviction where:
- the person was convicted before DNA technology became available;
- more sophisticated DNA technology subsequently has become available;
- the prosecution omitted to test and analyse, or to introduce as DNA evidence at trial, a sample found at the crime scene for the purpose of the trial; or
- the defence failed to question the nature, quality, probity or presentation of the DNA evidence at trial.
Gaining access to crime scene samples
45.5 Part 1D of the Crimes Act 1914 (Cth) (Crimes Act) does not regulate the collection, use or destruction of forensic material found at a crime scene. Police administrative procedures and the National Association of Testing Authorities, Australia (NATA) accreditation requirements outline procedures for the collection and chain of custody of crime scene material, and the analysis and storage of those samples.
45.6 DNA samples are currently stored long term. However, where the offence took place prior to the development of DNA technology, there can be no guarantee that the crime scene exhibit (which might include a bodily sample) has been retained. Generally, prisoners can apply to the Office of the Director of Public Prosecutions in the relevant jurisdiction, or to the relevant police service, for access to a crime scene exhibit or sample.
45.7 Crime scene exhibits are usually the responsibility of the police officer in charge of the investigation. In New South Wales, the Inquiry has been advised that samples are kept in a number of different areas. Sample ‘slides’ are generally kept by NSW Health. Other exhibits may be held in various locations within the New South Wales Police Service including: local area commands; State Crime Command; Taskforces; Forensic Science Group; Sydney Police Centre, Exhibits or Property Section; or Records and Information Process Services.
45.8 If an initial request for access to a crime scene sample is unsuccessful, a prisoner could seek access to the sample through a court order. Where the prisoner has lodged an appeal against conviction, the court may order production of the crime scene sample in relation to those proceedings. Where the prisoner has exhausted all avenues of appeal, he or she may be able to rely on some form of administrative law proceedings to obtain a court order for the production of the sample. However, in some circumstances—for example where the sample was collected before the introduction of DNA technology, or through error—the crime scene sample may not have been preserved.
NSW Innocence Panel
45.9 The New South Wales Police Minister has established an administrative body, known as the NSW Innocence Panel, to facilitate DNA analysis for persons who have been convicted of crimes and believe that DNA evidence may help to establish their innocence. Panel members include: a retired District Court judge; the NSW Privacy Commissioner; a Public Defender; an academic specialist in criminal law; and representatives of the Director of Public Prosecutions, the New South Wales Police Commissioner, the Director-General of the Ministry of Police, NSW Health, the NSW Legal Aid Commission and the Victims’ Advisory Board.
45.10 Access to the Panel is initially limited to persons convicted of serious offences, such as murder, manslaughter and serious sexual assault, and where a person is subject to the Serious Offenders Review Council. In special circumstances, the Panel may accept applications from persons convicted of other offences.
45.11 Under the Panel’s procedures, the applicant must specify the items that could assist in establishing his or her innocence. If an application is approved, the Panel asks the New South Wales Police (and NSW Health, if relevant) to conduct a search for the crime scene sample or exhibit. If the item is found, it is forwarded to the Division of Analytical Laboratories for analysis (or to another laboratory where the applicant has queried initial test results). The Panel then forwards the results to the applicant, suggesting that he or she seek legal advice about how to pursue judicial review of the conviction.
Issues and problems
45.12 Access to DNA analysis for the purpose of ‘establishing innocence’ depends on the long-term storage of crime scene samples in appropriate conditions. One commentator has noted that in the United States:
In seventy-five percent of cases taken by the Innocence Project, where it had already determined that a DNA test would demonstrate innocence if it were favorable to the inmate, the evidence had been lost or destroyed. In two-thirds of the cases in which the evidence was found and DNA testing conducted, the results have exonerated the inmate.
45.13 The Crimes Act does not prescribe a minimum period for retaining crime scene samples. In some cases, a person might seek access to a crime scene sample many years, or decades, after the offence occurred. In the interests of justice, it is important to ensure that crime scene samples are retained for a sufficient period, and in appropriate conditions, to ensure they are available for persons seeking to rely on the samples to establish their innocence.
Submissions and consultations
45.14 DP 66 proposed that forensic procedures legislation shouldrequire the permanent retention of forensic material found at crime scenes to ensure the preservation of crime scene material for post-conviction analysis.
45.15 A number of submissions supported the proposal, however several suggested that permanent retention might not be necessary or practicable. The Institute of Actuaries of Australia submitted:
IAAust supports the need to retain forensic materials from crime scenes for a period long enough to cover any conceivable need for post-conviction analysis … In practice, a fixed retention period, such as fifty or a hundred years, might suffice.
45.16 The Victoria Police raised concerns about the resource implications of the proposal:
Permanent retention also raises issues with the storage, security and preservation of forensic material which incurs substantial cost to the community and law enforcement agencies. It is considered impractical that a requirement to retain forensic material should be indefinite.
The need to retain exhibits for post conviction analysis should be evaluated in view of the availability of physical evidence for re-testing, the role of that physical evidence in the case against the accused, the probative value of re-testing and defence used at trial. The protection of an accused’s access to post trial analysis could be adequately addressed by policy, legislative or regulatory criteria to specify or limit which exhibits are retained.
45.17 The Queensland Government also opposed the proposal on the basis that permanent retention of this forensic material would have significant resource implications.
45.18 In a consultation, the NSW Innocence Panel expressed concerns about the practical implementation of the proposal. It was noted that as DNA technology develops it is becoming increasingly possible to obtain DNA samples from crime scenes and exhibits, for example in the form of trace DNA collected from items the offender has touched. This raises policy questions regarding the types of offences from which crime scene samples should be collected, the types of exhibits and samples that should be subject to long term or indefinite retention, and the practicability of retaining these items.
45.19 The New South Wales Police Service made a similar point in its submission:
The retention of all items collected from a crime scene poses problems in relation to storage. In the past in New South Wales, items were generally photographed and, after being analysed, were destroyed although policies in this regard were determined locally. All exhibits relating to sexual assaults and serious indictable offences are currently being retained pending a determination of the requirements of the Innocence Panel. As soon as these requirements have been established and endorsed, a service-wide policy in relation to the retention/destruction of exhibits will be prepared. If all items were to be retained, however, a central repository would need to be considered.
The retention of forensic material retrieved from crime scenes or from items collected at crime scenes would certainly have its advantages in some instances in view of the rapid technological scientific advances that are occurring. However, there would need to be some criteria established in relation [to] what was worthy of being retained and, once again, such a policy would pose problems in relation to storage.
45.20 NATA also commented that:
If the intention is to store items of evidence found at crime scenes, then the proposal for permanent retention would pose an enormous burden on either laboratories or police services to store vast numbers of evidence items securely and at appropriate temperatures.
If the intention is to store only swabs and subsamples (ie portions cut out of larger items) or DNA extracts, then storage space and conditions would be less of an issue.
Laboratories do not always test every item submitted for a given case. In some cases, a determination is made as to which items are most likely to give an interpretable DNA profile(s) and only those items are tested. In these cases, provision would need to be made for the permanent storage of the items not tested.
45.21 The Law Institute of Victoria suggested that material found at a crime scene could be destroyed upon ‘closure’ of an investigation, which should take account of both the potential for appeal and the interests of victim’s interests in the early destruction of samples relating to the investigation.
45.22 Several other submissions expressed privacy concerns about the implications of the proposal for victims and third parties whose samples are recovered from crime scenes. The Office of the Victorian Privacy Commissioner commented:
Extreme care needs to be exercised where a claim of wrongful conviction involves a request for a DNA sample from a victim or third party associated with the victim. Unreasonable and intrusive collection should be avoided to prevent re-traumatisation and to ensure the privacy of victims and their families. In cases where the possibility of exonerating a wrongfully convicted person outweighs the privacy interest of the victim, DNA collection should proceed only with judicial authority and by the use of the least intrusive method.
45.23 Dr Gregor Urbas also raised privacy and ethical concerns in relation to victims and their relatives.
Where the forensic material sought to be tested or re-tested as part of a post-conviction review originates from victims or victims’ relatives, there are serious ethical difficulties in turning such material over without the consent of those involved, or more problematic still, in requiring such persons to provide fresh DNA samples for testing … it is difficult to see how a full inquiry could proceed without the willing co-operation of the victim’s family, or failing that, the extension of coercive powers in regard to forensic procedures significantly beyond current limits.
45.24 Privacy NSW suggested an alternative approach: to remove the identifying links to samples that were not found to identify suspects or offenders, with the option of relinking them in the event of a subsequent innocence hearing.
45.25 Finally, the New South Wales Council for Civil Liberties suggested the need for a system to protect the integrity of crime scene samples.
We are told that in some cases forensic police are asked to collect DNA from a number of different and varying crime scenes in the same day and that the information, once collected, is sent to laboratories for analysis in bulk. The capacity for mix‑up under such a system is great.
45.26 The submissions generally supported the Inquiry’s proposal, but concerns were expressed about the potential resource implications of permanent retention of samples. The Inquiry has sought to address these concerns in two ways. First, it may not be necessary to retain samples obtained from the scene of minor offences on a long term basis. As most applications for post-conviction review would be limited to persons convicted of serious offences—for which they have been sentenced to imprisonment—the Inquiry considers it would be reasonable to require that only samples relating to serious crimes should be retained.
45.27 Second, the Inquiry recognises that the permanent retention of crime scene samples may be impractical. Instead, it would be sufficient for the Commonwealth to identify a retention period long enough to ensure that any person convicted of a criminal offence would have access to the crime scene sample throughout the maximum period of imprisonment for the offence and for some period afterward.
45.28 The Inquiry also heard concerns about the genetic privacy of victims and third parties whose belongings or DNA samples are considered crime scene samples. For example, the NSW Innocence Panel suggested an example of an alleged sexual assault in a car. The Panel asked whether the police should be required to retain the entire car—as the alleged crime scene—on a long term basis, or whether it would be sufficient to inspect sections of the car only for DNA samples before returning it to its owner. If the latter, they asked which surfaces the police should be required to inspect in order to ensure that all relevant samples are obtained.
45.29 In practice, decisions about which exhibits would be inspected for samples would be made with reference to all the evidence available in the investigation, and the nature and course of the proceedings. For example, where the victim alleges the assault took place in the back seat of the car there may be no need to inspect the car boot or other surfaces for samples. Alternatively, where the defendant admits that sexual intercourse took place, but alleges that it was consensual, DNA evidence may have no relevance as to guilt or innocence.
45.30 To maximise the possibility of identifying and retaining all relevant crime scene samples with minimal privacy implications for victims and third parties, the Inquiry suggests that police services should develop guidelines regarding the appropriate collection and retention of crime scene samples and exhibits in so far as they might contain DNA samples relevant to the offence.
45.31 TheInquiry recommends that the Crimes Act should be amended to require the long-term retention of forensic material found at the scene of serious crimes to facilitate post-conviction analysis.
Recommendation 45–1 TheCommonwealth should amend the Crimes Act 1914 (Cth) to require the long-term retention of forensic material found at the scene of serious crimes to facilitate post-conviction analysis.
 NSW Innocence Panel, Correspondence, 3 February 2003.
 Innocence Panel, The Innocence Panel, Brochure (2002), NSW Government. The Panel was established in October 2001, and began to distribute application forms and brochures to correctional centres and other organisations in October 2002.
 NSW Innocence Panel, Correspondence, 3 February 2003.
 D De Foore, ‘Postconviction DNA Testing: A Cry for Justice from the Wrongly Convicted’ (2002) 13(2) Texas Technical Law Review 491, 526.
 Australian Law Reform Commission and Australian Health Ethics Committee, Protection of Human Genetic Information, DP 66 (2002), ALRC, Sydney, Proposal 36–10.
 Centre for Genetics Education, Submission G232, 18 December 2002; Human Genetics Society of Australasia, Submission G267, 20 December 2002; Institute of Actuaries of Australia, Submission G224, 29 November 2002; Office of the Privacy Commissioner (NSW), Submission G257, 20 December 2002; Victoria Police, Submission G203, 29 November 2002; Office of the Victorian Privacy Commissioner, Submission G266, 20 December 2002; National Legal Aid, Submission G314, 19 February 2003; Office of the Federal Privacy Commissioner, Submission G294, 6 January 2003; Association of Genetic Support of Australasia, Submission G284, 25 December 2002.
 Institute of Actuaries of Australia, Submission G224, 29 November 2002.
 Victoria Police, Submission G203, 29 November 2002.
 Queensland Government, Submission G274, 18 December 2002.
 NSW Innocence Panel, Consultation, Sydney, 24 January 2003.
 NSW Police Service, Submission G306, 22 January 2003.
 National Association of Testing Authorities Australia, Submission G273, 18 December 2002.
 Law Institute of Victoria, Submission G275, 19 December 2002.
 Office of the Victorian Privacy Commissioner, Submission G266, 20 December 2002.
 G Urbas, Submission G131, 19 March 2002.
 Office of the Privacy Commissioner (NSW), Submission G257, 20 December 2002.
 New South Wales Council for Civil Liberties, Submission G312, 10 February 2003.
 The Crimes Act defines a ‘serious offence’ as a Commonwealth offence punishably by a maximum penalty of imprisonment for life or five or more years: Crimes Act 1914 (Cth) s 23WA(1).