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

Extradition Act 1988. 398 Officers we interviewed expressed concern that the length and complexity of the information
did not help suspects and volunteers to make an informed decision about whether to consent to the procedure or not:
A more concise and simpler information sheet is required. The current sheet can actually confuse suspects,
rather than inform them. It should in simple terms advise them how the DNA will be taken and what it will be
used for. Also, that apart from possibly proving or disproving their involvement in that particular alleged offence,
the DNA will also be placed on a database and used to compare with unsolved crime scene samples. 399
The NSW Police Legislative Changes Working Group has also expressed concern about the information sheet being
too long and unnecessarily complex, arguing that the information provided could be simplified without compromising
the person’s ability to make an informed decision about participating in the procedure. 400
For each video we watched during our audit of local area commands, we assessed whether or not the person
undergoing the procedure appeared to understand the essence of the information provided.
For 73 per cent of the procedures we watched, the suspect or volunteer appeared to understand the information.
They appeared most likely to understand the information when police began with a simple explanation or overview,
then provided a copy of the information sheet, and took the suspect through the information by reading it aloud and
stopping to ask whether they understood. It also helped if the testing officer gave a short introduction explaining who
was present, their respective roles, what the procedure involved and why it was needed.
For 12 per cent of the procedures we watched, it was not possible to assess the person’s understanding of the
information, for example where the person was placid throughout the procedure, spoke only when asked, and only
answered “yes” or “no” to questions.
In the remaining 15 per cent of procedures, there was clear evidence the person did not understand the information,
as the person specifically stated that he or she did not understand the information, or asked questions or made
comments which suggested he or she did not understand. In these circumstances, police usually explained the
information again. However, given the complexity of the information it was not always possible to break it down into
simpler ideas.
Some of the consent forms we reviewed also indicated the person undergoing the procedure did not understand
the information. For example, one person who was asked whether the information had been provided, responded,
“Yeah but I don’t know what the hell you just said.” Another stated, “Didn’t understand it but yeah I was given that
information.” 401
Some police officers we interviewed expressed concern that despite providing all the information required under the
Act, the length and complexity of the information sheet means that the essential points are lost on the person being
asked for consent. There are ways to address this. For example, some officers gave the person being tested a brief
explanation or overview before going into the detail. It is also a good idea to tell the person what is involved before
reading through the information sheet in its entirety. For example, in one video we watched, the testing officer told a
suspect, “This is the information sheet, it’s very long winded but I’ve got to read it to you, so bear with me.” In another
video, the testing officer said, “I’m going to read quite a bit of information to you. While we’re going, if you don’t
understand any of it, stop me, and I’ll explain it to you.” This is good practice and should be encouraged.
One officer told us that he usually says to a suspect before the video recording commences, “There’s all this
legal stuff we have to tell you”, and answers any questions the suspect may have before turning the video on and
reading out the information sheet. This is not good practice as the person could argue in court that he or she did
not understand the information. It would be better both for police and the person being tested for the provision of
information and any response to be recorded in its entirety, to ensure the requirements under section 15 of the Act are
met. 402
It is clear from our monitoring activities that simplifying the information provided to suspects and volunteers would be
enormously beneficial, both for police officers and for people undergoing forensic procedures. For this reason, we
reiterate our initial recommendation that the Attorney General develop a plain English version of the information that is
required to be provided under the Act. This should be in a form that can be provided to the suspect or volunteer. We
later recommend this be provided prior to the procedure, for the person (and their legal advisor, if any,) to go through
together.
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 73