Crimes (Forensic Procedures) Act 2000 - NSW Ombudsman - NSW ...

Chapter 6. Legal advice and
information provided
This chapter examines whether people undergoing forensic procedures have adequate access to legal advice,
and are properly informed about the proposed procedure, before deciding whether to consent or not.
6.1. Providing information about forensic procedures
Before asking for consent to conduct a forensic procedure, police must provide certain information.
Suspects must be informed of the purpose for which the procedure is required, the offence to which it relates,
the way it will be carried out, that it may produce evidence against the suspect, that consent may be refused,
the consequences of refusing consent, and that information obtained from DNA analysis may be put on the
DNA database. 375
Volunteers must be informed of the way the proposed procedure will be carried out, that the volunteer is under no
obligation to undergo the procedure, that consent may be withdrawn at any time, that it may produce evidence
that may be used in court, that information obtained from DNA analysis may be put on the DNA database, and that
information put on the database may be retained for such period as the Commissioner of Police and volunteer agree,
and then must be removed from the system. Volunteers must also be informed that the DNA database has two
indexes relevant to volunteers, a “volunteers (limited purposes)” index and a “volunteers (unlimited purposes)” index,
and that the volunteer may consent to the procedure on the condition that the information obtained will only be placed
on one of the specified indexes, or will not be placed on either index. 376
6.1.1. How are police officers providing information about forensic procedures
NSW Police has developed information sheets, which are designed so that officers can largely meet their legislative
obligations simply by reading through the information. Some of the information, however, depends on the
circumstances. Separate information sheets have been developed for suspects and for volunteers.
For each of the 146 videos we watched during our video audit, we recorded how the information was provided.
In most cases (132 procedures, or 90 per cent), it was provided orally. In about a third of procedures (49 procedures,
or 34 per cent) the information was provided in writing as well. In some cases the information was not provided in
writing but the officer told the person that he or she would be given a copy of the information sheet before leaving
the police station. There was only one procedure where the information was provided in writing but not orally. In the
remaining cases (13 procedures, or 9 per cent) we were unable to determine whether or how the information was
provided, as the provision of information was not recorded on video.
The Act requires the information to be given “personally or in writing”, it does not require both. 377 We note that it is
police policy to read the information to the suspect or volunteer before asking for consent, and then provide a copy
of the information sheet after the procedure has been completed. 378
In our video audit, we found people appeared more likely to understand the information when police provided a copy
of the information sheet and took the person through it, by reading it aloud and stopping to ask whether the person
understood everything. In our view, providing the information in writing before asking for consent is preferable to
providing it after the procedure has been conducted. The better the person’s understanding, the more likely they are
to make an informed decision about whether to consent or not, and the less likely the evidence will be challenged in
court on the basis that consent was not informed.
6.1.2. Concerns about the way forensic procedures are explained
In its 2002 report, the Legislative Council Standing Committee on Law and Justice found that the information provided
to people undergoing forensic procedures “is convoluted and confusing, and there is a great deal of doubt whether
it is understood by the majority of test subjects.” It commented that this could result in a court questioning whether a
person’s consent was valid, and recommended that a plain English version of the information be drafted. 379
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 71