Northern Territory Second Reading Speeches

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CRIMINAL CODE AMENDMENT BILL (NO 2) 1998

Bills presented and read a first time.

Mr REED (Police, Fire and Emergency Services): Madam Speaker, I move that the bills be now read a second time.

The purpose of these bills is to amend certain provisions of the Police Administration Act, the Juvenile Justice Act, the Prisons Act and the Criminal Code relating to forensic procedures (both intimate and non-intimate), the retention of samples and information, the maintenance of databases, access to databases and the exchange of information.

Over the past 20 years, enormous scientific endeavour has been applied to investigations into the structure of the deoxyribonucleic acid (DNA) molecule and how the genetic code contained in it affects all living organisms. This has given rise to the science of molecular biology, which is now applied to many areas of science including medicine, virology, anthropology and horticulture. It has also been successful applied to forensic science.
By analysing the trace amounts of DNA found at crime scenes and comparing them with samples taken from victims, offenders and suspects, criminal investigations have become significantly more focused. This has been achieved by excluding innocent people and identifying offenders in a similar fashion to that achieved through the application of fingerprinting.

These amendments will allow the Northern Territory police to more fully utilise this technology. Currently, pursuant to provisions in the Criminal Code and the Police Administration Act, police have the power to arrange for persons in custody on a charge to be medically examined and for forensic specimens to be obtained from adults and juveniles in certain circumstances. These bills provide for forensic procedures to be conducted on adult and juvenile offenders, suspects, prisoners and volunteers in certain circumstances. The procedures will also include obtaining examples for the purposes of DNA profiling.

The bills provide for some forensic specimens to be retained. The bills also provide for the maintenance of a database of information obtained from forensic procedures and the ability for police to exchange and access information from the database under strict operational guidelines.

Police ministers at the Australasian Police Ministers’ Council meeting in June 1998 supported the need for a national criminal investigation DNA database (NCIDD) and resolved to promulgate the necessary legislation or legislative amendments in the Commonwealth and in each state and territory by 30 June 1999. The Northern Territory is moving to introduce legislative amendments now.

The Northern Territory police have operated a DNA database for statistical and intelligence purposes since 1992. However, the effectiveness of the database has been restricted. I have no doubt that this has resulted in a number of serious offenders remaining outstanding and/or unidentified.

A comprehensive DNA database has the potential to recognise that a repeat, or what is commonly referred to as a serial, offender is at large. Members of this House may recall a series of sexual assaults that occurred in the Nightcliff area a number of years ago. That offender, who became known as ‘Mr Stinky’ or ‘the Nightcliff rapist’, has never been apprehended. However, if the offender in these crimes had supplied a DNA sample previously, either as a suspect or an offender in lesser or other crimes - for example, an unlawful entry and stealing - then his identity may very well have been determined after the first sexual assault.

The DNA profiles will be retained on a secured database held by the Northern Territory police forensic services section. When the national database, the NCIDD, is established some of the information held on the Territory DNA database will be provided to the national database.

I have been assured by the Commissioner of Police that all the necessary quality assurance and quality control safeguards in sample security, continuity and analysis are currently operating within the forensic services section and these conform to national and international standards. Furthermore, information obtained from forensic procedures, including DNA analysis, is restricted to authorised technical and scientific personnel in the forensic services section. The information cannot be accessed through the Northern Territory police computer information network.

Offenders who commit serious crime and whose DNA specimens are found at crime scenes will in future no longer be able to evade detection just by crossing a state or territory border. As with the national automotive fingerprint information system (NAFIS) all police jurisdictions and authorities will have access to information that can identify serious offenders. As mentioned previously, the amendments provide for the retention of samples and information. This will extend to fingerprints and photographs.

Under current legislation all samples, fingerprints and photographs obtained from a person pursuant to the provisions for conducting a medical examination must be destroyed in certain circumstances, they being when proceedings are not instituted for an offence within a 12-month period, where the court does not convict, or where the court does not record a conviction against the person. The proposed amendments provide for the commissioner to retain a sample - which includes fingerprints and photographs - for the period he thinks fit, and for the information obtained from analysis of the sample to be recorded in the databases maintained under the legislation.

In the case of samples obtained from volunteers, as opposed to offenders and suspects, the information obtained from any procedure will only be admissible as evidence in any proceedings if the person has committed an offence punishable by a term of imprisonment of 14 years or more. Some of the offences that carry a term of imprisonment of 14 years or more include sexual assault involving a female under the age of 14 years and an adult offender, dangerous act when intoxicated, murder, grievous harm and attempting to injure by explosive substance. Members of the House would agree that in circumstances such as these police should have the ability to commence proceedings against offenders whom they detect through information held on either DNA or fingerprint databases.

The DNA database is not just about identifying offenders. Perhaps more importantly, DNA databases have been used to exclude innocent persons from an investigation. Over the last 4 years, approximately 200 suspects have been excluded from police investigations using information from the Northern Territory DNA database. Additionally, approximately 100 offenders have been identified and the identity of others has been confirmed through the database. In many cases, no other evidence was available.

An additional advantage of the database is in the linking of crime. Over the past 2 years, approximately 50 unsolved crimes have been linked to approximately 20 offenders whose identity, as yet, is unknown. In many instances, the eventual identification of a single offender will result in the solution of a number of crimes.

The United Kingdom experience over the past 5 years illustrates that targeting minor or ‘volume’ crime can result in a subsequent and significant decrease in major crime. This is because a high proportion of ‘volume’ crime is committed by young offenders and a significant number progress to more serious crime. Breaking into that cycle of crime in the early stages may prevent a young offender from progressing to more serious crime. Evidence of this can be seen from the application of the DNA database in the UK, which holds over 350 000 records. The UK database is now responsible for the identification of over 300 offenders every week, and 30% of these are cases where there is no other information available.

Reports from the UK indicate that the detection rates for unlawful entries on homes have risen from 27% to 39% over the past 12 months using the database and that about 5000 crime scenes have been linked. Law enforcement in the UK using the DNA database as an investigative tool has assisted in reducing the crime rate in each of the last 17 months.

Furthermore, in the UK 70% of cases involving DNA evidence result in guilty pleas and subsequent reduction in court time and associated costs. These are the sorts of results that this government wants for the Northern Territory - for the community to be safe, and feel safe and secure in their homes, and we want criminals apprehended and dealt with appropriately by the criminal justice systems.

To demonstrate the value of DNA testing as an investigative tool to honourable members, I provide some contemporary examples of how DNA has been used an investigative tool and as a tool to exclude a person from an investigation.

These 3 examples are cases where outstanding major crimes have been solved through the use of DNA technology.

The first, a New Zealand rapist was recently sentenced to at least 22 years for attacks on 20 women between 1987 and 1996 after DNA tests linked the crimes and him to victims. That story appeared in the Sunday Territorian of 6 July 1998. Secondly, in the early 1980s a young woman was killed in Adelaide. About 50 blood samples were taken from people who had been at a party with the deceased prior to her death. Several of the blood groupings obtained from the samples were consistent with blood found at the scene, which was not from the deceased. However, the limitations of 1980s technology meant that this evidence was not conclusive and although police had suspects, no person was charged at the time. Retesting of the blood samples 13 years later with 1990s DNA technology identified the offender and he subsequently pleaded guilty to the killing. The third case was a celebrated UK case where a man confessed to a murder but was subsequently excluded from the investigation by DNA evidence. A mass screen of 250 consenting males failed to match the DNA evidentiary sample. The offender had arranged for another person to take his place in the mass screening and this information was later conveyed to police. The offender was later sampled and matched to the evidentiary sample and was subsequently convicted.

Without DNA technology the police cannot necessarily focus on the person who actually committed the crime and innocent people could be subjected to unnecessary and intrusive investigation by police. The application of DNA technology in criminal investigations eliminates, in many instances, unnecessary and intrusive investigative situations and focuses investigations on offenders. This has obvious social and economic benefits.

When the Northern Territory police arrange for forensic specimens to be obtained they use the powers provided by the Police Administration Act. As mentioned previously the Criminal Code also provides powers to have medical examinations conducted however, the relevant section of the Criminal Code is not used by the police. This bill proposes that section 29 of the Northern Territory Criminal Code is repealed.

The bills also provide for specimens for the purposes of DNA testing to be taken from persons reasonably suspected of having committed a crime punishable by a term of imprisonment.
Safeguards are being put in place. Sampling will not be carried out randomly. In relation to intimate procedures, and where a person is in lawful custody on a charge of an offence, the investigating police must still have reasonable grounds to believe that the procedure may provide evidence relating to an offence punishable by a term of imprisonment.

Furthermore, the person must consent in writing to having the intimate procedure carried out, or if there is no consent then police must obtain the written approval of a magistrate prior to having the procedure carried out.

The person in custody is also entitled to have a doctor or dentist of their own choice conduct the procedure where possible, and must provide with a copy of the report. If the person refuses to comply police will have the power to assist the doctor or dentist, and use reasonable force where necessary.

In relation to suspects, the Police Administration Act Amendment Bill provides the police may only carry out a non-intimate procedure on a person who is reasonably suspected of having committed a crime, or who is lawful custody on a charge, if a police officer of the rank of superintendent or above has approved the procedure.

Non-intimate procedures include obtaining a DNA sample by way of a buccal, or cheek cell, swab and also finger prints, photographs and other samples. Under the proposed amendment to the legislation a person, after being provided with a sterile swab and container, may provide their own cheek cell sample. This procedure is non-intrusive and is relatively easy to perform.

Similar provisions exist for juvenile offenders and suspects. The current safeguards for juveniles provided by the Juvenile Justice Act continues and police may only interview juveniles in certain circumstances. Before police can interview a juvenile for most offences they are required to have either a parent, guardian, relative or friend, or other acceptable person present. These requirements will still apply.

In relation to forensic procedures involving juveniles, under the provisions of the Juvenile Justice Amendment Bill, intimate procedures may only be conducted:

As with adults, juveniles will be able to nominate the doctor or dentist of their choice to conduct the procedure.

The bill also continues the current power for police to carry out an identifying non-intimate procedure in certain circumstances. An identifying non-intimate procedure means the taking of prints or photographs. As is the case under the current legislation the procedure may be carried out if the juvenile appears to be 14 years or older, or if under 14 years of age, the approval of a magistrate has been obtained. Police may also carry out other non-intimate procedures, for example, obtaining a buccal swab from juveniles who are in custody on a charge of an offence punishable by imprisonment, or who are reasonably suspected of having committed a crime, or who have been summoned to appear in respect of proceedings of an offence:

The Juvenile Justice Amendment Bill also provides for juveniles detained in detention centres for a crime to provide a sample by a buccal swab for analysis by police. The Prisons Correctional Services Act Amendment Bill provides that prisoners under a sentence of a term of imprisonment must provide the sample by buccal swab when directed to do so. If the prisoner refuses to self sample then reasonable force may be used to obtain the sample. The officer in charge of the prison must then deliver the sample to the Commissioner of Police.

And why would police wish to obtain DNA samples from prisoners you may ask? I refer honourable members to a recent headline from the Herald Sun:

This might be an extreme example, but a good one to demonstrate the benefits of sampling prisoners. I have no doubt that a number of unsolved crimes, ranging from unlawful entries on houses through to the most horrific offences against the person, may be solved and the offenders brought to justice.

In summing up, the proposed amendments will allow for the more effective use of DNA technology in the investigation and prosecution of crime in the Northern Territory by:

I commend the bill to honourable members.

Debate adjourned.

 

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