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

The availability of persons is sometimes a problem. This can be due to a variety of reasons, such as; the day
and hour, willingness to participate, unsuitable persons selected by the subject, travel arrangements, etc. This
LAC now uses a volunteer group, Criminal Justice Support, which offers a 24/7 service. 723
The location of “acceptable” support people is an issue in the LAC. When dealing with the Aboriginal community
it has been identified that there is a resistance to assist (or be seen to assist) Police by some groups (specific
families and associates). I believe this is not a local issue, however endemic to throughout the state. 724
Problems locating interview friends willing to attend or persons who are not intoxicated. 725
Despite these difficulties, no commands were aware of any instances where interview friends had been excluded.
A total of 60 commands reported having no problems complying with the interview friends provisions, and the
remaining four commands were unable to comment on this issue. 726
To ensure that interview friends are available to all entitled suspects and volunteers, we suggest that every command
maintain a list of appropriate people to use as interview friends. This networking process might also assist local
service providers in understanding their role as an interview friend or independent person.
We note that some commands do not arrange for interview friends, on the basis that this would appear partial. In
our view, a person should be able to choose his or her own interview friend, but if the person has difficulty finding an
appropriate interview friend, police should, so far as is reasonably practical, attempt to find the person an interview
friend.
8.2.1.2. Lists of interview friends for Aboriginal and Torres Strait Islander suspects
Section 116 of the Act requires the Attorney General to establish and keep up to date lists of people in different
parts of New South Wales who are suitable and willing to act as interview friends for Aboriginal and Torres Strait
Islander suspects who are under arrest. The Attorney General must consult relevant Aboriginal legal aid organisations
about this. 727
We discussed the problems the Attorney General’s Department has had in complying with this requirement in our
report on the DNA sampling of serious indictable offenders. We noted that the Attorney General’s Department wrote
to all Aboriginal Legal Services in February 2002, seeking nominations for people to be included on the required list.
However, no nominations were received. In June 2002, the Coalition of Aboriginal Legal Services advised the Attorney
General’s Department that nominations would only be provided if the Act were amended to prevent interview friends
being called as witnesses for the prosecution. We noted that neither of the previous reviews of the Act had made such
a recommendation. 728
We also noted that as forensic procedures are generally video recorded, the need to call interview friends as
witnesses for the prosecution from incidents occurring during a forensic procedure would be quite limited. However,
the fact remained that section 116 was essentially inoperable. For this reason we recommended that the Attorney
General consider whether the Act should be amended to prevent an interview friend being called as a witness to the
prosecution for matters directly relating to forensic procedures. 729
As part of our consultation progress for this phase of our review, we wrote to the organisations which are prescribed
as Aboriginal legal aid organisations for the purpose of the Act, but did not receive any comments about this issue. 730
Through our monitoring activities, we found that commands which maintained lists of suitable people were best
able to comply with the provisions of the Act relating to interview friends. We are not aware of any instances where
interview friends have been called as witnesses for the prosecution and are not aware of any instances where people
asked to act as interview friends were concerned about this either.
Given this, in our view local area commands should maintain lists of names and contact details of people who are
suitable and willing to act as interview friends for the purposes of the Act.
8.2.2. Independent witnesses
Where police wish to conduct a forensic procedure on a volunteer, the volunteer’s consent must be obtained in the
presence of an independent person. 731 The volunteer’s consent is not effective unless it is in writing, signed, and
witnessed by an independent person. An independent person is a person other than a police officer or other person
involved in the investigation. 732
We found that these requirements are not always being met.
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NSW Ombudsman
DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000