R v Farrell

In the matter of R v Farrell, the respondent, who is also the applicant, contested the admissibility of DNA evidence obtained from a sample taken while he was in custody. The dispute was heard in the Supreme Court of New South Wales. The primary concern was whether the subsequent request for consent to the forensic procedure was justified, considering the police had already informed the applicant that his solicitor under the Custody Notification Scheme did not consent to the procedure. Additionally, the court considered whether the request for consent to the forensic procedure was made to a vulnerable person and whether the evidence obtained was in contravention of the Crimes (Forensic Procedure) Act 2000 (NSW). The court was required to determine if the evidence should be excluded because it was obtained in a manner that undermined the legislative safeguards designed to protect the rights of individuals in custody.

The court examined the concept of informed consent and whether the applicant's consent was express and voluntary, given the circumstances. The court also considered whether the presence of an interview friend, a safeguard under the legislative scheme, was waived by the applicant. The court found that the request for consent to the forensic procedure was made to a vulnerable person and that the evidence was obtained in contravention of the Crimes (Forensic Procedure) Act 2000 (NSW). The court concluded that the desirability of admitting the evidence did not outweigh the undesirability of admitting the evidence obtained in breach of the legislative safeguards.

The court held that the DNA evidence relating to the sample taken from the applicant while in custody on 22 November 2023 is excluded. This decision underscores the importance of adhering to legislative safeguards designed to protect individuals in custody and the significance of obtaining informed consent in compliance with the law.