New South Wales Consolidated Acts

CRIMES (FORENSIC PROCEDURES) ACT 2000 - SECT 10

10 Informed consent to forensic procedures--Aboriginal persons and Torres Strait Islanders

(1) This section applies where--

(a) a police officer intends to ask a suspect to consent to a forensic procedure, and

(b) the suspect identifies as an Aboriginal person or Torres Strait Islander.

(2) A suspect gives informed consent to a forensic procedure if the suspect consents after a police officer--

(a) asks the suspect to consent to the forensic procedure under section 11, and

(b) gives the suspect a written statement setting out--

(i) the information that the suspect must be given under section 13 (1) (a), (e), (f), (g), (h), (i), (j) and (k), and

(ii) the nature of the information that the suspect must be given under section 13 (1) (b), (c) and (d) (but not the specific information that the suspect is to be given under these paragraphs in relation to the particular forensic procedure), and

(c) informs the suspect about the forensic procedure in accordance with section 13, and

(d) complies with the rest of this section.

(3) The police officer must not ask the suspect to consent to the forensic procedure unless--

(a) an interview friend is present, or

(b) the suspect has expressly and voluntarily waived his or her right to have an interview friend present.

Note : Section 106 relates to proving a waiver under paragraph (b).

(4) Before asking the suspect to consent to a forensic procedure, the police officer must--

(a) inform the suspect that a representative of an Aboriginal legal aid organisation will be notified that the suspect is to be asked to consent to a forensic procedure, and

(b) notify such a representative accordingly.

(5) The police officer is not required to comply with subsection (4) if he or she is aware that the suspect--

(a) has arranged for a legal representative to be present, or

(b) has expressly and voluntarily waived his or her right to have a legal representative present,

while the suspect is being asked to consent to the forensic procedure.

(6) After asking a suspect covered by subsection (3) (b) to consent to a forensic procedure, the police officer must give the suspect a reasonable opportunity to communicate, or attempt to communicate, with an Australian legal practitioner of the suspect's choice and, subject to subsection (8), to do so in private.

(7) After asking a suspect not covered by subsection (3) (b) to consent to a forensic procedure, the police officer must allow the suspect to communicate with the interview friend (if any), and with the suspect's legal representative (if any), and, subject to subsection (8), to do so in private.

(8) If a suspect covered by subsection (6) or (7) is under arrest, the police officer need not allow the suspect to communicate, or attempt to communicate, with the Australian legal practitioner, or the suspect's interview friend or legal representative, in private if the police officer suspects on reasonable grounds that the suspect might attempt to destroy or contaminate any evidence that might be obtained by carrying out the forensic procedure.

(9) An interview friend (other than a legal representative) of the suspect may be excluded from the presence of the police officer and the suspect if--

(a) the interview friend unreasonably interferes with or obstructs the police officer in asking the suspect to consent to the forensic procedure, or in informing the suspect as required by section 13, or

(b) the 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 co-offender of the suspect or may be involved in some other way, with the suspect, in the commission of the offence.

(10) If an interview friend is excluded under subsection (9), a suspect may choose another person to act as his or her interview friend. If the suspect does not waive his or her right to have an interview friend present and does not choose another person as an interview friend, the police officer may arrange for any person who may act as an interview friend under section 4 to be present as an interview friend.