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

– the consent form or the order – will be kept in the new register, and that this should address the problems we
encountered (or anyone else would encounter) in trying to access records of consent. The forensic procedures
register is discussed in detail at 4.2.8.3.
7.2.3. When can police ask a suspect to consent to a forensic procedure
Before asking a suspect to consent to a forensic procedure, police must be satisfied that: 469
• the person is in fact a suspect
• the suspect is a capable adult
• there are reasonable grounds to believe that the forensic procedure might produce evidence tending to
confirm or disprove that the suspect committed an offence, and
• the request for consent is justified in all the circumstances.
We scrutinised the way police officers use their powers to conduct forensic procedures to check whether these criteria
are being satisfied. We found that generally, they are. However, it appears that some police officers may have, on
occasion, asked for consent in circumstances where they should not have.
7.2.3.1. That the person is a suspect
As discussed above, there is some confusion about the distinction between suspects and volunteers and, in
some circumstances, whether a person is a suspect or volunteer will depend on whether the evidence supports
a reasonable suspicion that the person committed an offence. We found that police sometimes conduct forensic
procedures on people who appear to be suspects as though they were volunteers. 470
7.2.3.2. That the person is an adult
Before asking a suspect to consent to a forensic procedure, police must be satisfied that the person “is not a
child.” 471 Evidence obtained through a forensic procedure is still admissible if police officers breach the Act because
of a mistaken but reasonable belief as to the age of a child. 472 We are not aware of any problems police may have had
in identifying whether a person is a child for the purpose of the Act.
7.2.3.3. That the person is a capable adult
Before requesting a suspect consent to a forensic procedure, a police officer must also be satisfied that the person is
not an incapable person. An “incapable person” is an adult who is incapable of understanding the general nature and
effect of a forensic procedure, or is incapable of indicating whether he or she consents to a forensic procedure being
carried out. An incapable person cannot be asked to consent to a forensic procedure; police must apply for a court
order. 473
It is the responsibility of police to identify whether a person is incapable for the purposes of the Act. Police officers
may refer to the following legislation and policies to help determine whether a person may be incapable:
• Part 9 of the Law Enforcement (Powers and Responsibilities) Act (formerly Part 10A of the Crimes Act) deals
with detention after arrest for the purpose of investigation. It contains a number of safeguards for certain
“vulnerable persons,” including people with impaired intellectual functioning. “Impaired intellectual functioning”
is defined as the total or partial loss of a person’s mental functions, a disorder resulting in learning difficulties
or a disorder, illness or disease that affects a person’s thought processes, perceptions of reality, emotions or
judgement, or that results in disturbed behaviour. 474
• Schedule 2 of the Law Enforcement (Powers and Responsibilities) Regulation 2005 (formerly the Crimes
(Detention After Arrest) Regulation 1998) sets out a number of factors police officers should consider to
help determine whether a detained person has impaired intellectual functioning – whether the detained
person appears to have difficulty understanding questions and instructions, to respond inappropriately or
inconsistently to questions, to have a short attention span, to receive a disability support pension, to reside
at a group home or institution, or be employed at a sheltered workshop, to be undertaking education, or to
have been educated at a special school or in special education classes at a mainstream school, or to have an
inability to understand a caution. 475
• The NSW Police Code of Practice for Custody, Rights, Investigation, Management and Evidence provides
further guidance for officers dealing with people with impaired intellectual functioning. It adopts the same
definition and indicators as the Law Enforcement (Powers and Responsibilities) Regulation, but includes a
number of additional factors – whether the person identifies himself or herself as someone with impaired
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 89