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

8.2. Access to interview friends, independent witnesses and interpreters
8.2.1. Interview friends
The Act gives certain suspects the right to have an ‘interview friend’ present. An interview friend is essentially a
support person and advocate for the suspect. An interview friend includes persons such as a parent, guardian, legal
representative, or other person acceptable to the suspect. 716 Where the Act provides that a suspect must be informed
about a matter and an interview friend is present, the interview friend must also be informed. Interview friends may
also make requests or objections on the suspect’s behalf. 717
The Act provides for interview friends in the following circumstances:
• Children and incapable persons can only undergo a forensic procedure by order of a court, and must have
an interview friend present at the hearing (or for interim orders only when this is reasonably practicable). The
forensic procedure must generally (i.e. if reasonably practicable) be carried out in the presence of the interview
friend or a legal practitioner. 718
• Aboriginal and Torres Strait Islander suspects must have an interview friend present when police ask
the suspect to consent to a forensic procedure. If police apply for a court order, the suspect must have an
interview friend present at the hearing. The forensic procedure must generally (i.e. if reasonably practicable)
be carried out in the presence of the interview friend or a legal practitioner. Aboriginal and Torres Strait Islander
suspects may waive their right to have an interview friend present. 719
The court may exclude an interview friend if the interview friend unreasonably interferes or obstructs the hearing of the
application. An interview friend (other than a legal representative) may also be excluded from the request for consent
or the place where the forensic procedure is to be carried out if:
(a) the interview friend unreasonably interferes with or obstructs the carrying out of the procedure, or
(b) the investigating police officer forms a belief based on reasonable grounds that the presence of the interview
friend could be prejudicial to the investigation of an offence because the interview friend may be a cooffender
of the suspect or may be involved in some other way, with the suspect, in the commission of
the offence. 720
If an interview friend (other than a legal representative) is excluded under either of these provisions, the suspect
or volunteer may choose another person as their interview friend. In the case of a child or incapable person, if the
suspect or volunteer does not choose another interview friend, the police officer conducting the procedure “may
arrange for any person who may act as an interview friend to be present”. 721 A similar provision applies if the suspect
or volunteer is an adult Aboriginal or Torres Strait Islander, and does not waive their right to have an interview friend
present. The interview friend can be a relative, legal practitioner or other person chosen by the suspect or volunteer. 722
8.2.1.1. Compliance with the Act
There are two ways in which an interview friend is obtained for a suspect or volunteer entitled to one. Firstly, the
person may identify the person (such as a parent). Secondly, local area commands may have a list of persons able
to assist. Some of the commands we audited indicated they did not arrange for interview friends, on the basis that
these persons may appear partial. Others indicated they did arrange for interview friends, and kept lists of names and
contact details for people who could be used. One command had good relations with a local resident who was in
the Salvation Army, who could be contacted at any time. Another command kept a list of Aboriginal elders with whom
police have built relations with over time to refer to if they needed. Another command, which had a reasonably high
Aboriginal population, said it was used to organising support people for Aboriginal suspects and that arranging for an
interview friend for a forensic procedure was just as straightforward: “We do it every day.”
Some officers said the main problem with interview friends is that it may take some time for an interview friend to
attend. We acknowledge that waiting for an interview friend may cause delays, but note that this will be ‘time out’
under section 3 of the Act. Further, if police liaise with local community members and service providers, and keep a
list of contact details of people who can act as interview friends or independent persons, this may reduce any such
delays and also the time the suspect spends in custody.
We also examined this issue in our survey of local area commands where responses indicated that 16 commands
had problems arranging appropriate interview friends. These problems mainly related to the person chosen being
unsuitable. For example:
NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 135