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

The Anti-Discrimination Board expressed concern that people with disabilities which affect capacity are “particularly
vulnerable” and suggested police officers should be given greater assistance to help determine whether a person
may be incapable for the purposes of the Act. 487
We note that many police officers told us they regularly conduct forensic procedures on suspects who appeared not
to understand the information provided by police, although they generally attributed this to the length and complexity
of the information rather than the capacity of the suspect. We discussed our concerns about the way forensic
procedures are explained to suspects and volunteers above, at 6.1.2.
Through our monitoring activities, we found that police officers have made very few applications for orders authorising
forensic procedures to be conducted on incapable persons. None of the magistrates who responded to our survey
had dealt with an application involving an incapable person. In our audit of police local area commands, there were
no records of any such applications, and none of the police officers we interviewed could recall ever having made
one. In our survey of local area commands, almost every command advised either that it had never obtained a court
order in relation to an incapable person, or did not know whether it had. One command advised it had obtained four
orders, and another that it had obtained one. No further information about the circumstances surrounding these
applications could be obtained.
The very small number of applications for orders made in relation to incapable people, in conjunction with comments
by police that they regularly conduct forensic procedures on people who do not understand the information provided,
suggests that police may not in fact be identifying people as being incapable.
The Intellectual Disability Rights Service gave several examples of police either failing to identify a person as
incapable for the purposes of the Act, or otherwise treating the person inappropriately.
In January 2005 a client with an intellectual disability was arrested and taken to a police station. Police told her
that she would have to agree to a buccal swab or three police officers would hold her down and sit on her and
use force to pull out 10 hairs. This left the client shaking and crying. A solicitor from our service indicated to
police that our client did not have capacity to understand the enormity of the decision and that she was not in a
position to consent to the procedure. Police asked the solicitor to put this view in writing, which he did. Police
said that the custody sergeant could order that the procedure occur by force. The IDRS solicitor was then called
away to assist another client but requested that police do nothing until a witness was present from our Criminal
Justice Support Network... Police did not ultimately proceed with the taking of hairs. Police made an application
to court but there is no outcome as yet. 488
Another incident involved a suspect charged with a serious assault matter, who had an acquired brain injury and a
mental illness:
Police requested that he provide a sample by buccal swab. The support worker assisted the suspect to obtain
telephone legal advice. The police officer proceeded to read out word for word the required (s 13) information.
He/she said that the suspect would probably not understand but that he/she would read out the information
anyway. The support person then proceeded to explain the s 13 information in a way that the suspect could
understand. 489
The Intellectual Disability Rights Service commented that the police officer had a poor understanding of how to
communicate effectively with a person with an intellectual disability, and that if the support person had not been
present to explain the information in a more appropriate way, the suspect may have consented to the procedure
without understanding its nature or effect. 490
Through our monitoring activities, we also came across instances where it appears that the person being asked to
consent to a forensic procedure may have been incapable.
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 91