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

6.1.6. Providing information to incapable persons
As with children and young people, forensic procedures on incapable persons can only be conducted by order of
a court and there is no legislative requirement that the incapable person be provided with information about the
proposed procedure. The Anti-Discrimination Board in its submission stated:
The provision of comprehensive information in a format suited to the person is critical to the issue of informed
consent to testing. This is likely to be particularly an issue for people with a disability…. 417
Incapable persons should be provided with the same crucial information about the procedure that we have discussed
above for children and young people. The Intellectual Disability Rights Service also raised the issue of plain language
information in their submission and offered assistance in the development of appropriate material. 418
Recommendation 14
The Crimes (Forensic Procedures) Act 2000 be amended to require police to provide information about forensic
procedures to incapable persons, and develop plain English versions of this information suitable to persons
with an intellectual disability in consultation with the Intellectual Disability Rights Service.
NSW Police and the Attorney General’s Department both support this recommendation. 419 NSW Police notes this
should be the responsibility of the Attorney General’s Department.
6.2. Access to legal advice
Before asking a suspect to consent to a forensic procedure, police must give the suspect reasonable opportunity to
communicate with a legal practitioner of the suspect’s choice. 420 Before asking a volunteer to consent to a forensic
procedure, police must inform the volunteer that he or she may consult a legal practitioner of choice before deciding
whether or not to consent to the procedure. 421
6.2.1. How often do police give reasonable opportunity to obtain legal advice
During our audit of local area commands we examined consent forms to see how often suspects and volunteers are
given reasonable opportunity to communicate with a legal practitioner. Police records indicate that in most cases, but
not all, officers are complying with this requirement.
The consent form designed by NSW Police asks whether the person has been given an opportunity to communicate,
or attempt to communicate, with a legal practitioner of choice, and then provides a space for police to write down
the person’s reply. Of the 211 consent forms we viewed, 159 indicated the person had been given the opportunity to
communicate with a legal practitioner. For example:
Yes I have been given this option.
Yes I had the choice.
Yeah I could of.
Yeah I guess so.
Some indicated that the question on the consent form prompted police to check whether the person had been given
the opportunity to obtain legal advice. For example:
No. Would you like to Nup.
No. Do you wish to do so No.
No, but I haven’t asked. Were you given the opportunity to contact legal advice Not really. Q. Do you want legal
advice A. For this procedure, No.
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 77