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

intellectual functioning, someone else (carer, family member or friend) tells the police officer the person is
or may be someone with impaired intellectual functioning, the person exhibits inappropriate social distance,
such as being overly friendly and anxious to please, the person acts much younger than their age group, the
person is dressed inappropriately for the season or occasion, the person has difficulty reading and writing, the
person has difficulty identifying money values or calculating change, the person has difficulty finding his or her
telephone number in a directory, or the person displays problems with memory or concentration. 476
• The NSW Police Guidelines for Police when Interviewing People with Impaired Intellectual Functioning aims to
facilitate communication between police and people with an intellectual disability, mental illness, acquired brain
injury or learning difficulty, whether the person being interviewed is a victim, suspect or witness. 477
In our report on the first part of this review, which dealt with the DNA sampling of convicted offenders, we noted that
the identification of incapable persons is a difficult issue. Our research strongly suggested that some incapable
persons who had been sampled as convicted offenders had not been identified as being incapable, and accordingly
were not afforded the protections specified under the Act. 478
We have found similar problems through our scrutiny of forensic procedures conducted on suspects and volunteers.
Some stakeholders pointed out that different factors may affect a person’s capacity:
A person’s capacity to make decisions may be impaired by a range of conditions including a mental illness,
intellectual disability, dementia, brain injury or stroke. Capacity may also be impaired if the person cannot
effectively communicate because of a disability, illness, injury or accident. 479
And further, that a person’s capacity may depend on the way the information is explained and the degree of support
provided:
It is not unusual for a person with an intellectual disability to agree to a certain course of action because the
person wants to please the figure seen to be in authority. To what extent consent given in those circumstances
could be said to be truly voluntary is open to question. [By contrast] other people with an intellectual disability
are capable of making decisions if information is communicated in a way that is appropriate to their abilities and
usual methods of understanding. 480
The Anti-Discrimination Board argued that police should be flexible in how they provide information, and should take
all reasonable steps to provide information and support that is appropriate to the ability of the person being asked for
consent. 481
The Intellectual Disability Rights Service stressed, however, that a person with an intellectual disability may be able to
understand the nature of a forensic procedure, without necessarily understanding its effect. 482 We note that the Act
defines an incapable person as one “who is incapable of understanding the general nature and effect of a forensic
procedure.” 483 This includes a person who cannot appreciate the implications and consequences of undergoing the
procedure, for example that evidence obtained through the procedure may link the person to a particular crime, or
that the person’s DNA profile may be put on a database and used in speculative searching against evidence from
other crime scenes. If a person is unable to understand this, the person is incapable for the purposes of the Act.
Some of the submissions we received raised concerns about how police identify and support people who are
incapable for the purposes of the Act. 484 The Intellectual Disability Rights Service explained:
Real difficulties arise when police are required to pick up whether a person has an intellectual disability...
These difficulties arise largely because of:
• A lack of knowledge and understanding about intellectual disability on the part of police.
• The fact that many people with an intellectual disability appear to understand what is being said and can
effectively hide their disability because they generally do not wish to be identified as having a disability.
• The adoption by police of inappropriate means of assessing... capacity. The practice of reading out
the information and concluding with the question, ‘Do you understand that’ will be of very limited utility
where people with an intellectual disability are concerned. Many people with an intellectual disability will
agree and say ‘yes’ they understand, when in fact they do not. This can be exacerbated by a tendency to
want to please authority figures, such as police officers. 485
The Anti-Discrimination Board made the similar comment, that:
The identification of suspects and volunteers who may be in need of a greater degree of assistance can be
subjective, relying on the ability of custodial officers to recognise when assistance may be required despite the
lack of any request. 486
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000