Networked Knowledge - Prosecutions Reports

Supplementary Report of the Auditor-General South Australia

[This version of the report has been edited by Dr Robert N Moles
Underlining where it occurs is for editorial emphasis]

Prosecutions homepage
DNA homepage
Australian Prosecutor Patrick Power homepage
Article: Australian law on miscarriages of justice
Article: UK law on miscarriages of justice
Article: USA law on miscarriages of justice

Matters Arising from the Further Audit Examination of the Administration of the Criminal Law (Forensic Procedures) Act 1998 and Other Matters
Audit Comments On Further Audit Examination Of The Administration Of The Criminal Law (Forensic Procedures) Act 1998

See also the report of the Auditor-General commenting on the DPP's remarks

Introduction

In November 2005, I presented to Parliament a Supplementary Report for the year ended 30 June 2005 titled Government Management and the Security Associated with Personal and Sensitive Information (2005 Supplementary Report). A significant audit finding in that Report was that there had not been strict compliance in the destruction and removal of DNA information from the SACREDD system of Government. The SACREDD system is used primarily for the searching and matching of nominated DNA profiles as determined by the Criminal Law (Forensic Procedures) Act 1998.

The DNA information contained on the SACREDD system is used for the investigation of criminal offences and, therefore, is important in the administration of the criminal justice system in South Australia. Non-compliance with the legislative requirements of the Criminal Law (Forensic Procedures) Act 1998, for the collection, recording, matching, and destruction of DNA information, has the potential consequence that DNA evidence may not be admissible for the effective prosecution of criminal offences.

Since the tabling in the Parliament of the 2005 Supplementary Report, I have further examined some matters regarding the management of DNA by the South Australia Police (SAPOL) and the Director of Public Prosecutions (DPP) in the investigation and conduct of certain criminal prosecutions.

During that further examination, issues were raised regarding Audit authority to enquire into these matters and the Audit authority to access information and documentation that would allow Audit to form an opinion regarding government agency compliance with the requirements of the Criminal Law (Forensic Procedures) Act 1998, ie, the lawfulness of the conduct of government processes. [1]

Government Announcement of Proposed Amendments

Whilst the Government has announced that there will be amendments made to address the particular issues that arose in the matter of R v Dean, [2] the underlying principle of compliance by all Executive Government agencies with express statutory requirements is the matter of importance that arises in this context. This is particularly significant when the agencies involved are the very ones responsible for law enforcement.

The Audit Mandate

The audit mandate states that the Auditor-General provide an opinion regarding the adequacy of the controls and the propriety and lawfulness of public authority financial transactions. Further, the Auditor-General is required to bring to the attention of the Government and the Parliament matters that in his opinion are important. The comment herein relates to both control inadequacies and matters that, in my opinion, are important to bring to the attention of the Government and the Parliament. [3]

The DPP and the Commissioner of Police have raised queries concerning the right of audit access to certain information requested under the Public Finance and Audit Act 1987. The Office of the Director of Public Prosecutions (ODPP) [4] and SAPOL are public authorities and are, by law, subject to audit by the Auditor-General. It is entirely proper for the Commissioner and the DPP to seek clarification of the audit mandate under the Public Finance and Audit Act 1987.

The Audit authority to request access to the relevant information in the matters referred to hereunder has been confirmed by the advice of the Solicitor-General in relation to the DPP and the Crown Solicitor’s Office in relation to the Commissioner of Police.

This matter does, however, raise wider issues of importance for the Parliament regarding the discharge of its constitutional responsibilities. To provide a context, and to assist the Parliament in examining this matter, in my opinion, it is also necessary that there be a re-statement of the underlying principles associated with the discharge by the Auditor-General of the audit mandate under the Public Finance and Audit Act 1987. The discussion of these principles is to be found under the topic heading ‘Consequences of a Limitation on Audit Scope’ hereunder in this Report. The following sets out some relevant considerations and certain particulars regarding the further examination of this matter.

Some Relevant Considerations

The law and order policies of government, in my opinion, give rise to a number of matters that raise issues of public interest importance. Both international and domestic developments have necessitated policy responses by government at all levels resulting in substantial changes in the criminal law and other legislation with, in some cases, serious penal consequences for those members of the community whose conduct is contrary to law.

These changed arrangements in the law provide for wide powers to be vested in government officials. In my opinion, for the reasons discussed in this section of this Report, the controls and other checks and balances that exist under current administrative arrangements may not be adequate to provide reasonable assurance that in some important matters associated with law and order, that the exercise of governmental powers at all relevant times comply with the high standards that must inform official conduct and actions.

A Principle of Fundamental Importance

It is important in matters of this type to be reminded of the comments by Mr Justice Brandeis in Olmstead v United States (1928) 277 US 438.

“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teachers the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means – to declare that the Government may commit crimes in order to secure the conviction of a private criminal – would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.”

The Statement of Legislative Intent

In the matter that is the subject of this audit examination, it is of particular significance to note the legislative intention as stated in the Second Reading Speech of the responsible Minister at the time of the introduction of the Criminal Law (Forensic Procedures) Act 1998 (House of Assembly Hansard 26 February 1998 at page 574).

Law enforcement authorities were critical of the strict rule of inadmissibility that is contained in the Model Provisions. The approach taken there and in the Bill is, however, consistent with current law. It requires the prosecution to satisfy the court that, despite the fact that the standards set down by Parliament have been broken, the evidence should still be admitted. It is also provided that the probative value of the evidence is not by itself sufficient to warrant admission. The reason for this is that the Bill deals with real evidence and the temptation to break the rules in order to get the vital piece of hard evidence must be high. In reality, it is no defence to breaking the law to say that the evidence actually obtained proves guilt – the end does not justify the means. [5]

It is to be noted that the failure to comply with the provisions of the Criminal Law (Forensic Procedures) Act 1998 regarding the matter of the removal of a DNA profile from the DNA database may constitute a criminal offence with a maximum penalty of $10,000 or imprisonment for two years. [6] In enacting these provisions the legislature clearly intended compliance by all persons including those persons involved with law enforcement responsibilities.

The integrity of the administration of the criminal justice system is of fundamental importance. This is an Executive Government responsibility. As such, all aspects of the processes involved must be capable of effective review and audit. Further, there must also be, in my opinion, appropriate mechanisms to ensure the accountability of those persons who are responsible for the relevant administrative arrangements.

The Audit Objective Concerning the Adequacy of Controls Re DNA Management, Processes, Etc

Audit Request to the Commissioner of Police

The audit objective associated with the request to the Commissioner of Police was to obtain audit assurance that no person had been convicted (and possibly imprisoned) on the basis of DNA evidence that should have been destroyed under the Criminal Law (Forensic Procedures) Act 1998 without that matter having been drawn to notice, and having been the subject of judicial determination as to its admissibility. [7]

It was important to understand whether DNA evidence had been presented at a trial where an accused person had pleaded ‘not guilty’. If this was the case, there is the possibility of adverse financial and other consequences for government. As I am now informed the person concerned pleaded ‘guilty’. [8] This does not, however, affect the basis for the commentary in this Report which has as its focus the need for compliance with mandated legal requirements by public authorities.

This was a matter of particular importance having regard to the judgment of Her Honour Judge Shaw in the matter of R v Dean (2006) SACD 54. [9] Judge Shaw made a number of observations that indicated that there is a need for SAPOL to take remedial action to ensure proper compliance with the Criminal Law (Forensic Procedures) Act 1998. The comments that were made by Judge Shaw were made several months after the tabling of the 2005 Supplementary Report in which these matters were initially raised as being of concern.

It was following Judge Shaw’s judgment in this case that the Commissioner indicated at the time when questions were raised as to whether there were any other cases similar to that of Dean that ‘one possible case has turned up’. [10] In a letter to the Auditor-General dated 29 August 2006, the Commissioner of Police advised as follows:

“As you are aware, there are complicated legal requirements associated with the DNA legislation and I will need to obtain advice from the Crown Solicitor’s Office on whether your request is within your legislative charter and whether I can release the information you seek under the forensic procedures legislation. I appreciate that you refer to advice you have received from the CSO, but this is somewhat inconsistent with advice we have previously received from the CSO. In addition, I will need to consult with the DPP.”

The Commissioner was concerned about the strict confidentiality obligations in section 47 of the Criminal Law (Forensic Procedures) Act 1998, given that there are criminal sanctions for the unauthorised release of DNA related information that relates to the identity of a person. [11] Subsequent to obtaining advice from the Crown Solicitor, the Commissioner in a letter to the Auditor-General dated 25 September 2006 released the non-identifying information sought by this Department which was within SAPOL’s knowledge and control.

Further, on 5 October 2006 the Commissioner advised that the DPP indicated on 26 September 2006 he had made an assessment of the circumstances in the relevant case. As a result, SAPOL has destroyed the forensic material in question and removed the relevant profiles from the DNA database. However, the correspondence received from the DPP does not enable SAPOL to specifically answer the Auditor-General’s outstanding questions.

Audit Request to the Director of Public Prosecutions

The DPP has provided certain information to an audit request regarding the ‘control processes’ that are adopted within his Office concerning the assessment of the admissibility of DNA evidence obtained from the Police. The Solicitor-General has confirmed the Audit authority to request information from the DPP with respect to this matter. Following the receipt of the Solicitor-General’s advice, in a letter dated 18 August 2006, the DPP responded to the audit request and provided certain information. Having regard to that information and further information provided to-date by the DPP, including his letters of 6 October 2006 and 7 November 2006, further Audit clarification may be necessary.

The Present Position in Summary

The present position can be summarised in the following terms. The ‘one possible case that turned up’ referred to above, concerned offences committed at four separate premises. [12] In 2005, DNA material found at the premises was compared to profiles contained in the SACREDD system. A match was indicated with a profile in the system that had been obtained in 2003. That 2003 profile had been obtained as part of the investigation of offences for which charges did not proceed. [13] Under section 44C(1)(b)(ii)(B) of the Criminal Law (Forensic Procedures) Act 1998, that material should have been destroyed as soon as practicable after the proceedings were discontinued, which in this case was 18 December 2003.

After the comparison of DNA found at the premises where the offences were committed was compared and matched to a profile on the SACREDD system, the person identified by the profile was arrested. The Senior Prosecutor for this matter stated that: [14]
“The only evidence which could demonstrate a link between [the offender] and the premises where the offences were said to have taken place was evidence of matching DNA profiles.”

The arrest occurred in March 2005. DNA was then taken from the suspect under the authority of section 15(1)(c) of the Criminal Law (Forensic Procedures) Act 1998. In the material provided to me by the DPP and SAPOL, no other reason for arresting the suspect has been advanced other than the DNA match. I therefore conclude that, had the DNA profile been destroyed in 2003 as required, there would be no basis on which to arrest the suspect.

That being the case, it is arguable that SAPOL were not authorised under section 15(1)(c) of the Criminal Law (Forensic Procedures) Act 1998 to take the further DNA sample. Notwithstanding these facts, the DPP has argued that the arrest and the subsequent taking of a DNA sample were prima facie lawful as the arresting officer had reasonable cause to suspect that the person concerned had committed a number of offences. [15] This argument is at odds with the statement made by the Senior Prosecutor in his letter to the suspect’s solicitor. [16]

Where a DNA sample has been taken without proper authority that evidence is not admissible against the person providing the sample unless the person does not object to its admission or the court is satisfied that the evidence should be admitted in the interests of the proper administration of justice despite the contravention. [17] In the case of forensic material that should have been destroyed, evidence obtained from that forensic material is inadmissible without qualification. [18] As the 2003 material should have been destroyed that evidence would not be admissible under the Criminal Law (Forensic Procedures) Act 1998. However, it would be a matter for the court to decide, in accordance with the matters listed in section 45(2) of the Criminal Law (Forensic Procedures) Act 1998, whether the 2005 forensic material could be admitted into evidence.

In the case in question, the suspect pleaded guilty to the offences and so no evidence was tendered. The effect of a guilty plea is an admission to all elements of the offence. [19] The circumstances in which a guilty plea could be set aside have been summarised in this paragraph from Meissner v The Queen. [20]
“It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud. (footnotes omitted)”

The Need for Caution in Use of DNA Evidence

Whilst, understandably there can be no sympathy for a person who is guilty, the need for caution in the use of DNA evidence without confirmation that all relevant safeguards with respect to the use of such evidence have been met is obvious. This matter is of importance simply to emphasise the necessity for adherence to mandated legal requirements and the assurance that adequate procedural controls have been satisfied. [21]

The DPP, on 28 September 2006, informed the solicitor who represented the suspect in relation to his guilty plea of the fact that the DNA evidence should have been destroyed prior to the suspect’s arrest.

Further Audit Analysis of Issues Involved

Introduction

As noted above, one of the key Audit findings contained in the 2005 Supplementary Report was that there was not strict compliance in the destruction and removal of DNA information from the SACREDD system. [22] I concluded that:
“The significance of the DNA database requires that the computer and related record keeping processes are undertaken in a manner that guarantees the integrity of DNA profile information, its recording, its confidentiality, and timely removal where required by legislation.”

Removal of Information from the SACREDD System

Section 46C(1) of the Criminal Law (Forensic Procedures) Act 1998 requires the Commissioner of Police to ensure that a DNA profile derived from forensic material obtained under the Act is not retained on the SACREDD system beyond the time the destruction of the material is required under the Act. A person who intentionally or recklessly causes information to be retained on the database system in contravention of section 46C is guilty of an offence with a maximum penalty of $10 000 or imprisonment for two years. [23]

The Requirement to Dispose of Forensic Material

Division 4 of Part 4A of the Criminal Law (Forensic Procedures) Act 1998 deals with the destruction of forensic material. [24] A distinction is made between:
forensic material obtained from a person voluntarily (referred to as a category 2 (volunteers) procedure); [25]
forensic material obtained from a person who is suspected of committing a crime (referred to as a category 3 (suspects) procedure); [26]
forensic material obtained from an offender (referred to as a category 4 (offenders) procedure). [27]

Section 44B deals with the destruction of forensic material obtained by carrying out a category 2 (volunteers) procedure. Section 44C deals with the destruction of forensic material obtained by carrying out a category 3 (suspects) procedure. Section 44D deals with the destruction of forensic material obtained by carrying out a category 4 (offenders) procedure.

Section 44C requires destruction of forensic material if a matter is discontinued, unless there are other proceedings pending.

Section 45 states that non-compliance with the Criminal Law (Forensic Procedures) Act 1998 in relation to forensic material or a DNA profile derived from forensic material has the effect that the evidence obtained from the forensic material is not admissible in evidence [28] against the person on whom the procedure was carried out unless:
(d) the person does not object to the admission of the evidence; or
(e) the court is satisfied that the evidence should be admitted in the interests of the proper administration of justice despite the contravention.

The District Court’s Decision in R v Dean

In R v Dean, [29] the accused was arrested on 26 July 2004 and was charged with the offence of aggravated robbery allegedly committed at a supermarket in March 2004. The arrest came about as a result of a match between the accused’s DNA profile on the SACREDD system and the DNA profile obtained from material allegedly located at the crime scene. The accused’s DNA profile was placed on the SACREDD system as a result of his arrest in December 2003 for charges of assaulting a family member, which were discontinued in April 2004. Despite those proceedings being discontinued, the accused’s forensic material was not destroyed. There were other proceedings of a summary nature pending against the defendant at the time that charges of assaulting a family member were discontinued. However, his DNA profile was not removed from the SACREDD system until December 2005.

Judge Shaw of the District Court ruled that the accused’s arrest was unlawful because police had contravened sections 44C and 46C of the Criminal Law (Forensic Procedures) Act 1998. Her Honour found that upon the finalisation of the charges of assaulting a family member, the forensic material obtained upon the accused’s arrest for those offences, ought to have been destroyed.

Her Honour also described what she saw as systemic failures on the part of SAPOL to comply with the requirements of the Criminal Law (Forensic Procedures) Act 1998.

The decision in R v Dean attracted significant media comment. [30] In an article appearing in The Advertiser on 29 May 2006, Police Commissioner Hyde is reported to have strongly rejected Judge Shaw’s findings, saying that SAPOL had always done their utmost to comply with the DNA legislation. [31]

Correspondence with the Commissioner of Police

On 1 June 2006, I wrote to the Commissioner of Police regarding the follow up audit of the matters previously reported in the 2005 Supplementary Report. I asked the Commissioner to supply me with copies of the legal advice to which the Police Commissioner referred when commenting on the Dean decision in the media.

The Police Commissioner replied to my letter on 28 June 2006. He stated that there was no specific advice provided on the handling of the DNA disputed in the case of R v Dean. Rather, the advice relied upon was derived from an opinion from the Crown Solicitor’s Office dated 22 October 2003. SAPOL have advised me that the Crown Solicitor’s Office opinion of 22 October 2003 was the basis upon which a process was established within the DNA Management Section. Reliance was placed by the SAPOL on the definitions provided on the basis that statutory terms within the same provisions are presumed to be interpreted consistently.

In the advice to me dated 16 August 2006 the Commissioner of Police stated:
“SAPOL’s practices were, at that time, based upon the definition of “proceedings” provided in the Crown Solicitor’s opinion.”

Judge Shaw held that ‘proceedings’ in section 44C referred only to proceedings for offences of a nature that would have permitted the conduct of a forensic procedure under the Criminal Law (Forensic Procedures) Act 1998.  

Correspondence with the Director of Public Prosecutions

On 9 August 2006, I wrote to the DPP seeking information on the procedural control tasks that are implemented within his Office in order to ensure that DNA evidence presented in court proceedings meets the statutory requirements of the Criminal Law (Forensic Procedures) Act 1998.

The DPP replied by letter dated 18 August 2006, in which he noted:

“The responsibility for the DNA database sits with the Commissioner of Police. I do not see it as my role to oversee the exercise of the Commissioner’s powers. Indeed, it is highly desirable that the investigation process and the prosecution process remain separate. This represents a proper check and balance in the criminal justice system. There will be times, of course, when I will have input in the investigation process of individual matters. There will also be times in relation to more general matters when I will use my powers under section 11(1) of the Director of Public Prosecutions Act, 1991. In the main, however, I operate on the basis that the investigation of any particular crime is a matter for the police and I start with the presumption that the evidence has been obtained lawfully.”

It is acknowledged that, as a general rule, in the absence of an express legislative prohibition, the presumption that evidence has been lawfully obtained is a reasonable approach. In my opinion, the ODPP should rigorously scrutinise the admissibility of evidence of this type presented to it by SAPOL, before deciding whether or not to prosecute the accused. It is my understanding that, in the Dean case, the DPP was aware of the circumstances and considered that this was a matter for legal argument and determination by the Court in exercising its discretionary powers in such matters.

Consequences Of A Limitation On Audit Scope

Where there is a limitation on the audit scope, there is, in my opinion, in the absence of any other compensating arrangements to inform the Parliament, a consequential limitation imposed on the Parliament in discharging its constitutional responsibilities. [32]

In Horne v Barber (1920) 27 CLR 494, Isaacs J, at page 500 stated as follows:
“One of the duties [of a member of Parliament] is that of watching on behalf of the general community the conduct of the Executive, of criticizing it, and, if necessary, of calling it to account in the constitutional way by censure from his place in Parliament. … That is the whole essence of responsible government, which is the keystone of our political system, and is the main constitutional safeguard the community possesses.”

In the absence of an express statutory provision that exempts a public authority from the audit provisions of the Public Finance and Audit Act 1987, that agency is, by law, subject to audit by the Auditor-General. It is important to note the following proposition that has long been recognised:
“Without audit, no accountability; without accountability no control; and if there is no control where is the seat of power?" [33] The answer to that rhetorical question is that no Executive Agency is the ultimate power unto itself. [34] In the matter of the exercise of governmental prerogative and statutory authority, accountability must ultimately be to the Parliament.

Former Solicitor-General’s Comment on Role of Auditor-General

The former Solicitor-General, Mr Bradley Selway QC, in his book ‘The Constitution of South Australia’ included the following specific comment on the role of the Auditor-General. [35]
“The Auditor-General holds a statutory public office under the Crown. The Auditor-General is independent of both the executive and the parliament. It may be doubted whether the Auditor-General is an employee of the executive. The Auditor-General has security of tenure and can be removed from office only on the address of both Houses of Parliament.”
“The Auditor-General exercises a number of functions given by statute.
The basic function of the Auditor-General is to audit the public accounts with a view to making reports to the executive and to the parliament on the result of such audits. The Auditor-General protects the executive from inappropriate or fraudulent behaviour in respect of the public accounts. The Auditor-General reports to parliament on whether the executive is properly acting within the law respecting public finances and informs the parliament of any inappropriate or fraudulent behaviour he or she has identified.”
“The role of the Auditor-General in the proper functioning of the executive is often not fully appreciated. As part of the independent audit role, it is the function of the Auditor-General to identify ultra vires acts and inappropriate practices and to bring these to the attention of relevant authorities including, where the Auditor-General thinks it appropriate, the parliament.”
“In order to perform these functions the Auditor-General has extensive powers to interview persons and to call for records. (footnotes omitted)”

Royal Commission Comment on Role of Auditor-General

The ‘Western Australian Report of the Royal Commission into Commercial Activities of Government and Other Matters’ (WA Inc Royal Commission Report) stated as follows: [36]
“3.10.1 The office of the Auditor-General provides a critical link in the accountability chain between the public sector, the Parliament and the community. It alone subjects the practical conduct and operations of the public sector as a whole to regular, independent investigation and review. This function must be fully guaranteed and its discharge facilitated. The Auditor-General is the Parliament’s principal informant on the performance of the administrative system.”

“3.10.5 … Although in the end only a reporting agency to Parliament, it [the Auditor-General’s function] can properly be described as the public’s first check and best window on the conduct of government.”

“3.10.6 No activity of government fails to involve some use or commitment of public resources. No activity of government, can in consequence, be allowed to be removed from the Auditor-General’s scrutiny. … What we wish to emphasise is that for so long as an agency owns, or uses, or risks, public property in its operations, there can be no acceptable reason for its not being subject to the full scrutiny of the Auditor-General. [37]

The Conduct of an Audit

No Auditor-General on becoming seized of a matter of audit consequence, can, in my opinion, consistent with his / her obligations to the Parliament, fail to take all necessary steps to obtain a level of audit assurance that is appropriate in the particular circumstances.

In an earlier report [38] I advised the Parliament as follows:
“It is not open to an Auditor-General to accept with uncritical passivity the assertions of government agencies regarding financial and / or other representations on matters that are within the audit mandate. It is also to be emphasised that audit will not allow inadequate explanations to deflect it from gaining a thorough and detailed understanding of issues that may be the subject of audit inquiry. To do so would be to not only fail to meet established professional standards, but also the expectations of Parliament and the community regarding the role of the Auditor-General.”

Where an Auditor-General is not provided with unrestricted access to all information that is relevant to the performance of the audit responsibilities, the Parliament can have no independent assurance regarding the conduct of the Executive Government. [39] Under normal arrangements there is a co-operative approach adopted by both auditor and auditee. This is consistent with the fact that the Auditor-General and the auditee are both acting in the public interest.

Recommendation on the Matter of Authorised Person under Section 47 of the Criminal Law (Forensic Procedures) Act 1998

In my opinion, any potential for a limit on audit investigations should, for the reasons discussed herein, be drawn to the attention of the Government and the Parliament. [40]

To address the circumstances that have arisen in this matter, it may be appropriate to expressly include the Auditor-General as a person, who, together with the Ombudsman and the Police Complaints Authority, is authorised pursuant to sections 46D and 47 of the Criminal Law (Forensic Procedures) Act 1998.

Concluding Comments

I noted in the 2005 Supplementary Report, that within Government there are certain agencies whose operations are required to comply with specific statutory arrangements, and that it is important that these agencies comply with those arrangements. [41]

SAPOL, for example, is required to comply with the requirements of the Criminal Law (Forensic Procedures) Act 1998 in relation to the disposal of forensic material and the removal of DNA information from the SACREDD system. The decision in R v Dean highlighted that at that time there was a systemic failure on the part of the Police to comply with these legislative requirements ‘based upon the interpretation of “proceedings” in section 44C of the Criminal Law (Forensic Procedures) Act 1998 which had been adopted at the relevant time’. I had previously identified such non-compliance in the 2005 Supplementary Report and observed that remedial action was being taken.

In my opinion, this matter highlights the importance of the audit process in ensuring transparency and accountability in public administration in South Australia , particularly as this State has no body or organisation equivalent to New South Wales’ Independent Commission Against Corruption (ICAC) [42] or Queensland’s Crime and Misconduct Commission (CMC). [43] One of the primary purposes of these bodies is ‘to continuously improve the integrity of, and to reduce the incidence of misconduct in, the public sector’. [44]

In the absence of a body or organisation such as ICAC in this State, Audit, as illustrated by this issue of non-compliance with the statutory requirements of the Criminal Law (Forensic Procedures) Act 1998, can continue to usefully fulfil the important role of identifying systemic issues within this State’s public sector. The identification and resolution of systemic issues within the public sector leads inevitably to an improvement in the accountability, transparency and integrity of the public sector. This, in turn, will ultimately increase confidence in public administration.

In this regard, I note that the Report of the WA Inc Royal Commission expressed its opinion regarding the role of the Auditor-General as follows:
“The Auditor General is no mere scrutineer of the financial affairs of the departments and agencies of government, notwithstanding the importance of this responsibility. The Auditor General's role must now be accepted as multi-purposed. … In auditing the accounts of an agency, the Auditor General is expected to address not merely the financial integrity of the agency's activities but also such matters as the agency's compliance with the law and the legislation and directions under which it acts and the controls it has to secure that compliance; the probity of official conduct in its financial affairs; the appropriateness of performance indicators; and, of no little importance, given our inquiries, the adequacy of the records on which its management is based and carried into effect. As well, the Auditor General has an expanding and more far reaching responsibility, one which relates directly to protecting the public purse.” [45]

Resolution Of Disputes Between Crown Agencies

This commentary with respect to disputes between Crown agencies has been included in this Report having regard to issues that have arisen concerning the audit mandate in relation to matters associated with SAPOL and the ODPP. In a letter to the Auditor-General, dated 25 August 2006, the DPP stated as follows:
“While you continue to hold the view that you may intrude into areas that are properly, in my view, matters for me and in the absence of any agreement between us, it seems inevitable that a resort to the courts will be necessary. It is essential that the limits of our respective statutory powers be properly and clearly defined. [46]

In matters giving rise to a dispute between statutory officers within the Executive Government it is important to note that there is a Cabinet Directive regarding the resolution of such matters. [47] It is also to be noted that the Treasurer’s Instructions under the Public Finance and Audit Act 1987 would require the involvement of the Crown Solicitor in decisions involving legal proceedings. [48]

In summary terms, the Cabinet Directive of 20 August 1990 provides that where agencies that are subject to Ministerial direction are in disagreement regarding a matter of legal authority, the matter is to be referred by the responsible Ministers to the Attorney-General. It would be anticipated that the Attorney-General would arrange for an opinion to be prepared that would be regarded as conclusive as between the agencies concerned. [49]

It is to be noted that whilst the Office of Auditor-General is not subject to Ministerial direction, it would only be in highly unusual circumstances that a different approach would be adopted by the Auditor-General. [50] In essence, as Auditor-General, I would regard the opinion of the Law Officers of the Crown (ie, the Attorney-General and Solicitor-General), where the underlying facts are not in contention, as authoritative of my legal powers and functions under the Public Finance and Audit Act 1987.

Top of Page