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

Case Study 15
An elderly woman was holding her purse while waiting for the bus. A young man asked her for money and
when she declined, grabbed her purse. A struggle ensured, during which the man indicated a number of burns
on his arm, which he said he had done himself, and threatened to do the same to the woman if she did not let
go of her purse. She eventually let go, and the man ran off. Several bystanders chased the man and held him
on the ground until police arrived. Police arrested the man and recorded that while in custody, he continually
cried, punched himself in the head, and at times became aggressive. Police decided not to interview the man
on account of “his rather odd behaviour.” However, they did ask him to consent to a forensic procedure, which
he did. Police then took a number of photographs of the man. 491
We note with concern that in these instances police conducted forensic procedures by consent, when it appears from
the circumstances described that it may have been necessary to seek a court order before proceeding.
The legislation and policies referred to above should assist officers in identifying and dealing with incapable people.
However, neither the Act nor the NSW Police SOPs for forensic procedures provide any information to assist officers in
determining whether a person is incapable for the purposes of the Act. The Act sets out a test, but not a procedure for
identifying whether a person is capable of giving informed consent.
Recommendation 17
The forensic procedure SOPs include guidelines on identifying and communicating with incapable people.
These guidelines should be established in consultation with the Guardianship Tribunal and disability advocates
and should cover the information and factors to be considered in assessing a suspect or volunteer’s capacity.
Recommendation 18
NSW Police provide further training and guidance to police officers on the practical and legal considerations in
dealing with ‘incapable persons’ under the Crimes (Forensic Procedures) Act 2000.
NSW Police does not support recommendation 17 on the basis that “any such progression should be considered in a
general nature from an organisational viewpoint.” 492 However, it supports recommendation 18, and has advised it will
“examine current training material with a view to improving aspects relating to incapable persons”. 493
7.2.3.4. That the forensic procedure might produce evidence confirming or disproving the suspect
committed an offence
Before asking a suspect to consent to a forensic procedure, police must be satisfied that there are reasonable
grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the
suspect committed an offence, another offence arising out of the same circumstances, or another offence in respect
of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have
probative value. 494
If the relevant offence is an indictable offence, police may request consent to any type of forensic procedure. If the
relevant offence is a summary offence, for example offensive conduct or language, possession of a knife in a public
place or defacing walls with graffiti, 495 police may only request consent to a non-intimate forensic procedure. 496 This
means that police can only request a DNA sample if there are reasonable grounds to believe that it might produce
evidence tending to confirm or disprove that the suspect committed an indictable offence. An indictable offence can
include property, drug, personal violence, fraud and arson offences, 497 and can be dealt with by the District Court
before a judge and jury. Some indictable offences can be dealt with in the Local Court by a magistrate unless either
the accused person or prosecuting authority elects to have the matter heard in the District Court.
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000