Crimes Act 1914
Act No. 12 of 1914 as amended
Volume 2 includes: Table of Contents
Sections 23WM–91
Schedule
Table of Acts
Act Notes
Table of Amendments
End Notes
Table A
Contents
Part ID—Forensic procedures 1
Division 4—Non‑intimate forensic procedures on suspect by order of senior constable 1
23WM....... Non‑intimate forensic procedure may be carried out by order of senior constable 1
23WN........ Circumstances in which senior constable may order non‑intimate forensic procedures 2
23WO........ Matters to be considered by senior constable before ordering forensic procedure 2
23WP......... Record of senior constable’s order................................................. 3
Division 5—Forensic procedures on suspect by order of a magistrate 4
Subdivision A—General 4
23WQ........ Forensic procedure may be carried out by order of magistrate...... 4
23WR........ Circumstances in which magistrate may order forensic procedure 4
Subdivision B—Final orders 4
23WS......... Final order for carrying out of forensic procedure......................... 4
23WT........ Matters to be considered by magistrate before ordering forensic procedure 5
23WU........ Application for order..................................................................... 6
23WV........ Securing the presence of suspect at hearing—suspect in custody. 6
23WW....... Securing the presence of suspect at hearing—suspect not in custody 7
23WX........ Procedure at hearing of application for order................................. 8
23WY........ Making of order............................................................................. 9
Subdivision C—Interim orders 9
23XA......... Interim order for carrying out of a forensic procedure................... 9
23XB......... Application for interim order....................................................... 10
23XC......... Procedure at hearing of application for interim order.................. 11
23XD......... Making of interim order............................................................... 11
23XE......... Records of application and interim order..................................... 12
23XF......... Suspect may be prevented from destroying or contaminating evidence 13
23XG......... Results of forensic procedure carried out under interim order..... 13
Subdivision D—Time limits for forensic procedures ordered by magistrates 14
23XGA...... Application.................................................................................. 14
23XGB...... Time for carrying out forensic procedure—suspect not in custody 14
23XGC...... Arrest of suspect not in custody................................................. 15
23XGD...... Time for carrying out forensic procedure—suspect in custody.. 15
Subdivision E—Reports of proceedings under Division 17
23XH......... Restrictions on publication.......................................................... 17
Division 6—Carrying out forensic procedures on suspects 18
Subdivision A—General provisions 18
23XI.......... General rules for carrying out forensic procedures...................... 18
23XIA....... No questioning during forensic procedure................................... 18
23XIB........ Suspect must be cautioned before forensic procedure starts....... 18
23XJ.......... Use of force in carrying out forensic procedures......................... 19
23XK......... Forensic procedures not to be carried out in cruel, inhuman or degrading manner 19
23XL......... Taking of hair samples................................................................. 19
Subdivision B—Persons involved in forensic procedures 19
23XM........ Persons who may carry out forensic procedures......................... 19
Subdivision C—Further provisions about who may carry out forensic procedures 23
23XN......... Certain forensic procedures generally to be carried out by person of same sex as suspect 23
23XO......... Person may get help to carry out forensic procedures................ 24
Subdivision D—Presence of other people while forensic procedure is carried out 25
23XP......... Medical practitioner or dentist of suspect’s choice may be present for intimate forensic procedures 25
23XQ......... Presence of interview friend or legal representative—children and incapable persons 25
23XR......... Presence of interview friend or legal representative—Aboriginal persons and Torres Strait Islanders 26
23XS.......... Presence of constables................................................................. 26
Subdivision E—Recording of forensic procedure 27
23XT......... Recording of forensic procedure.................................................. 27
Subdivision F—Procedure after forensic procedure is carried out 28
23XU......... Samples—sufficient material to share.......................................... 28
23XUA...... Samples—insufficient material to share....................................... 28
23XV......... Photographs................................................................................. 29
23XW........ Results of analysis....................................................................... 29
23XWA..... Preventing the carrying out of forensic procedure....................... 29
Division 6A—Carrying out of certain forensic procedures after conviction of serious and prescribed offenders 30
23XWB..... Forensic procedures to which Division applies........................... 30
23XWC..... Non‑intimate forensic procedures authorised to be carried out on offenders 30
23XWD..... Intimate forensic procedures authorised to be carried out on serious offenders 31
23XWE...... Application of Division 6............................................................ 31
23XWF...... Scope of authorisation................................................................. 31
23XWG..... Informed consent to forensic procedures..................................... 32
23XWH..... Constable may request offender to consent to forensic procedure 32
23XWI....... Matters to be considered by constable before requesting consent to forensic procedure 32
23XWJ...... Matters that offender must be informed of before giving consent 33
23XWK..... Circumstances in which constable may order non‑intimate forensic procedure 34
23XWL...... Matters to be considered by constable........................................ 34
23XWM.... Recording of giving of information and consent........................... 35
23XWN..... Record of constable’s order......................................................... 35
23XWO..... Judge or magistrate order for carrying out forensic procedure on offender 35
23XWP...... Carrying out forensic procedure following conviction................. 37
Division 6B—Carrying out of forensic procedures on volunteers and certain other persons 38
23XWQ..... Carrying out of forensic procedures on volunteers...................... 38
23XWR..... Informed consent of volunteer or parent or guardian of volunteer 39
23XWS...... Recording of giving of information and consent........................... 40
23XWT..... Withdrawal of consent................................................................. 40
23XWU..... Circumstances in which magistrate may order the carrying out of forensic procedure on a child or incapable person..................................................................................................... 41
23XWV..... Retention of forensic material by order of a magistrate after volunteer, parent or guardian of child or incapable person withdraws consent........................................................... 43
Division 7—Admissibility of evidence 44
Subdivision A—Forensic evidence 44
23XX......... Inadmissibility of evidence from improper forensic procedures etc. 44
23XY......... Inadmissibility of evidence where forensic material required to be destroyed 46
Subdivision B—Other evidence 46
23XZ......... Admissibility of evidence relating to consent to forensic procedure 46
23YA......... Admissibility of evidence relating to carrying out of forensic procedure 46
23YB......... Obstructing the carrying out of forensic procedure..................... 47
Division 8—Destruction of forensic material 48
23YC......... Destruction of forensic material where interim order disallowed 48
23YD......... Destruction of forensic material after 12 months........................ 48
23YDAA... Destruction of forensic material taken from offender after conviction quashed 50
23YDAB... Destruction of forensic material where related evidence is inadmissible 50
Division 8A—DNA database system 51
23YDAC... Definitions................................................................................... 51
23YDAD... Supply of forensic material for purposes of DNA database....... 53
23YDAE.... Use of information on DNA database system............................. 54
23YDAF.... Permissible matching of DNA profiles........................................ 55
23YDAG... Recording, retention and removal of identifying information on DNA database system 56
Division 9—General provisions relating to operation of this Part 59
23YDA...... Interpreters.................................................................................. 59
23YE.......... Powers etc. of legal representatives and interview friends.......... 59
23YF.......... Obligation of investigating constables relating to tape recordings 60
23YG......... Material required to be made available to suspect, offender or volunteer 61
23YH......... No charge to be made for giving material etc. to suspects, offenders and volunteers 62
23YI........... Proof of belief or suspicion.......................................................... 62
23YJ.......... Proof of impracticability.............................................................. 62
23YJA....... Proof that time should be disregarded.......................................... 62
23YK......... Proof of voluntary waiver of certain rights.................................. 62
23YL.......... Liability for forensic procedures.................................................. 63
23YM........ Experts not obliged to carry out forensic procedures.................. 63
23YN......... Retention of electronic recordings................................................ 63
23YO......... Disclosure of information............................................................ 64
23YP.......... Taking, retention and use of forensic material............................. 65
23YQ......... Commissioner may delegate functions and powers..................... 66
Division 10—Operation of this Part and effect on other laws 67
23YQA...... Part does not apply to persons under 10.................................... 67
23YR......... Relationship with Part IAA......................................................... 67
23YS.......... Relationship with Part IC............................................................ 67
23YU......... Application of other laws............................................................ 67
Division 11—Interjurisdictional enforcement 69
23YUA...... Definitions................................................................................... 69
23YUB...... Registration of orders................................................................... 69
23YUC...... Carrying out of registered orders................................................. 70
23YUD...... Database information................................................................... 70
Division 11A—Operation of this Part in relation to certain incidents 72
23YUE....... Definitions................................................................................... 72
23YUF....... Application of this Division........................................................ 72
23YUG...... Use of information on DNA database system............................. 73
23YUH...... Permissible matching of DNA profiles........................................ 74
23YUI........ Disclosure of information............................................................ 74
23YUJ....... This Division does not restrict operation of this Part................. 75
23YUK...... Review of operation of this Division........................................... 75
Division 12—Review of operation of Part 76
23YV......... Review of operation of Part......................................................... 76
Part II—Offences against the Government 78
24AA......... Treachery..................................................................................... 78
24AB......... Sabotage....................................................................................... 79
24AC......... Institution of prosecutions.......................................................... 80
24A............ Definition of seditious intention.................................................. 81
24B............ Definition of seditious enterprise................................................ 81
24C............ Seditious enterprises.................................................................... 82
24D............ Seditious words............................................................................ 82
24E............ Punishment of offences................................................................ 82
24F............ Certain acts done in good faith not unlawful............................... 82
25............... Inciting mutiny............................................................................. 84
26............... Assisting prisoners of war to escape........................................... 84
27............... Unlawful drilling.......................................................................... 84
28............... Interfering with political liberty................................................... 85
29............... Destroying or damaging Commonwealth property..................... 85
Part IIA—Protection of the Constitution and of public and other services 86
30A............ Unlawful associations.................................................................. 86
30AA......... Application for declaration as to unlawful association................ 87
30AB......... Attorney‑General may require information................................. 88
30B............ Officers of unlawful associations................................................. 88
30C............ Advocating or inciting to crime.................................................... 89
30D............ Giving or soliciting contributions for unlawful associations........ 89
30E............ Books etc. issued by unlawful association not transmissible by post 89
30F............ Prohibition of sale of books etc. issued by unlawful association 90
30FA......... Imprints on publications.............................................................. 90
30FC.......... Owner etc. of building permitting meeting of unlawful association 91
30FD......... Disqualification from voting of member of unlawful association 91
30G............ Forfeiture of property held by an unlawful association.............. 91
30H............ Proof of membership of an association........................................ 91
30J............. Industrial disturbances, lock‑outs and strikes.............................. 92
30K............ Obstructing or hindering the performance of services................. 93
30R............ Books etc. taken to have been issued by associations................. 94
Part III—Offences relating to the administration of justice 95
31............... Interpretation............................................................................... 95
34............... Judge or magistrate acting oppressively or when interested........ 95
35............... Giving false testimony................................................................. 96
36............... Fabricating evidence..................................................................... 96
36A............ Intimidation of witnesses etc....................................................... 96
37............... Corruption of witnesses.............................................................. 97
38............... Deceiving witnesses..................................................................... 97
39............... Destroying evidence..................................................................... 98
40............... Preventing witnesses from attending Court................................. 98
41............... Conspiracy to bring false accusation........................................... 98
42............... Conspiracy to defeat justice........................................................ 99
43............... Attempting to pervert justice.................................................... 100
44............... Compounding offences.............................................................. 101
45............... Inserting advertisements without authority of Court................ 101
46............... Aiding prisoner to escape.......................................................... 102
47............... Escaping..................................................................................... 103
47A............ Rescuing a prisoner from custody etc........................................ 103
47B............ Person unlawfully at large.......................................................... 104
47C............ Permitting escape....................................................................... 104
48............... Harbouring etc. an escapee......................................................... 105
48A............ Sentence ceases to run while escaped prisoner at large.............. 105
49............... Removing property under seizure............................................. 106
Part IIIA—Child sex tourism 107
Division 1—Preliminary 107
50AA......... General....................................................................................... 107
50AB......... Meaning of act of indecency....................................................... 108
50AC......... Meaning of sexual intercourse................................................... 108
50AD......... Who can be prosecuted for an offence committed overseas...... 109
Division 2—Sexual offences against children overseas 110
50BA......... Sexual intercourse with child under 16....................................... 110
50BB......... Inducing child under 16 to engage in sexual intercourse............. 110
50BC......... Sexual conduct involving child under 16.................................... 110
50BD......... Inducing child under 16 to be involved in sexual conduct.......... 111
Division 3—Defences 113
50CA......... Defence based on belief about age.............................................. 113
50CB......... Defence based on valid and genuine marriage............................. 113
50CC......... Defence must be proved on balance of probabilities................. 113
50CD......... Jury may consider reasonableness of alleged belief................... 113
Division 4—Offences of benefiting from, or encouraging, offences against this Part 114
50DA......... Benefiting from offence against this Part................................... 114
50DB......... Encouraging offence against this Part......................................... 114
Division 5—Video link evidence 116
50EA......... When court may take evidence by video link............................ 116
50EB.......... Motion of parties....................................................................... 116
50EC.......... Technical requirements for video link........................................ 116
50ED......... Application of laws about witnesses......................................... 117
50EE.......... Administration of oaths and affirmations.................................. 117
50EF.......... Expenses.................................................................................... 117
50EG......... Other laws about foreign evidence not affected......................... 117
Division 6—Other rules about conduct of trials 118
50FA......... Certain material taken to be evidence of age.............................. 118
50FB.......... Alternative verdicts.................................................................... 118
50FC.......... Double jeopardy........................................................................ 119
50FD......... Sentencing.................................................................................. 119
Division 7—Saving of other laws 120
50GA......... Saving of other laws................................................................... 120
Part IV—Piracy 121
51............... Interpretation............................................................................. 121
52............... Piracy......................................................................................... 122
53............... Operating a pirate‑controlled ship or aircraft............................ 122
54............... Seizure of pirate ships and aircraft etc....................................... 123
55............... Written consent of Attorney‑General required.......................... 124
56............... Evidence of certain matters........................................................ 124
Part VI—Offences by and against public officers 125
70............... Disclosure of information by Commonwealth officers.............. 125
Part VII—Official secrets and unlawful soundings 126
77............... Interpretation............................................................................. 126
79............... Official secrets........................................................................... 127
80............... Prohibited places........................................................................ 131
83............... Unlawful soundings................................................................... 132
85............... Institution of prosecution.......................................................... 133
85B............ Hearing in camera etc................................................................. 133
85D............ Forfeiture of articles etc............................................................. 134
Part VIIA—Offences relating to postal services 135
85E............ Interpretation—definitions........................................................ 135
85F............ Interpretation—expressions used in Australian Postal Corporation Act 136
85G............ Forgery of postage stamps etc................................................... 136
85H............ Special paper for postage stamps.............................................. 137
85N............ Wrongful delivery of postal article etc....................................... 138
85Q............ Forgery of postal messages etc.................................................. 138
85R............ Wrongful delivery of postal messages....................................... 138
85T............ Sending false postal messages.................................................... 139
85U............ Obstructing carriage of articles by post..................................... 139
85V............ Interference with property of Australia Post............................ 139
85W........... Causing narcotic substances to be carried by post.................... 140
85Z............ Articles carried by post to be taken to be Australia Post’s property 140
85ZA......... Postage stamps to be valuable securities etc.............................. 140
Part VIIC—Pardons, quashed convictions and spent convictions 141
Division 1—Interpretation and application of Part 141
85ZL.......... Interpretation of Part................................................................. 141
85ZM........ Meaning of conviction and spent conviction.............................. 145
85ZN......... Meaning of quash...................................................................... 146
85ZP.......... Application of Part.................................................................... 146
85ZQ......... Part binds the Crown................................................................. 146
Division 2—Pardons for persons wrongly convicted, and quashed convictions 147
85ZR......... Pardons for persons wrongly convicted.................................... 147
85ZS.......... Effect of pardons for persons wrongly convicted..................... 147
85ZT......... Quashed convictions.................................................................. 148
85ZU......... Effect of quashed convictions.................................................... 149
Division 3—Spent convictions 150
85ZV......... Spent convictions....................................................................... 150
85ZW........ Effect of right of non‑disclosure................................................ 151
Division 4—Convictions of further offences 152
85ZX......... Convictions of further Commonwealth or Territory offences... 152
85ZY......... Convictions of further State or foreign offences........................ 152
Division 5—Complaints to Privacy Commissioner 154
85ZZ......... Privacy Commissioner’s functions............................................ 154
85ZZA...... Complaints to the Privacy Commissioner................................. 155
85ZZB....... Identity of respondent to complaint.......................................... 155
85ZZC....... Investigation of complaints........................................................ 155
85ZZD...... Determinations of Privacy Commissioner................................. 156
85ZZE....... Payment of compensation or expenses...................................... 157
85ZZF....... Enforcement of determination or recommendation.................... 158
85ZZG...... Application of Privacy Act....................................................... 158
Division 6—Exclusions 159
85ZZH...... Exclusions.................................................................................. 159
85ZZJ........ Further exclusions—law enforcement agencies.......................... 160
85ZZK...... Fair reporting: pardons and quashed convictions...................... 161
Part VIII—Miscellaneous 162
87............... False certificates......................................................................... 162
89............... Trespassing on Commonwealth land......................................... 162
89A............ Discharging firearms on or over Commonwealth land............... 163
90............... Trespass by cattle or live stock................................................. 164
90A............ Destroying etc. posters etc. relating to Commonwealth loans.. 164
90B............ False statements in documents filed etc. under laws of a Territory 164
91............... Regulations................................................................................. 164
Schedule—Form of explanation under section 23V 165
Notes 167
(1) A person is authorised to carry out a non‑intimate forensic procedure on a suspect by order of a senior constable under section 23WN. The person is authorised to carry out the procedure in accordance with Division 6 and not otherwise.
(2) This Division does not authorise the carrying out of a forensic procedure on a suspect who is:
(a) a child; or
(b) an incapable person.
(3) This Division does not authorise keeping a suspect in custody, in order to carry out a forensic procedure, after the expiration of the investigation period provided for by Part IC.
Note: If it is necessary to keep a suspect in custody after the expiration of the Part IC investigation period in order to carry out a forensic procedure, an order of a magistrate under Division 5 will have to be obtained to authorise this.
(4) Nothing in this Part or Part IC prevents the carrying out of a forensic procedure, in accordance with a constable’s order under section 23WN, during the investigation period provided for by Part IC. However, neither carrying out the forensic procedure, nor any delays associated with carrying out the forensic procedure, operate to extend the investigation period provided for by Part IC.
Note: By contrast, the carrying out of a forensic procedure in accordance with a magistrate’s order under Division 5, and associated delays, may delay the expiration of the investigation period provided for by Part IC.
A senior constable may order the carrying out of a non‑intimate forensic procedure on a suspect who is in custody if:
(a) the suspect has been asked under Division 3 to consent to the carrying out of the forensic procedure; and
(b) the suspect has not consented; and
(c) the senior constable is satisfied as required by section 23WO.
(1) The senior constable must be satisfied on the balance of probabilities that:
(a) the suspect is in the lawful custody of a constable; and
(b) there are reasonable grounds to believe that the suspect committed a relevant offence; and
(c) there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and
(d) the carrying out of the forensic procedure without consent is justified in all the circumstances.
(2) In determining whether the carrying out of the forensic procedure without consent is justified in all the circumstances, the senior constable must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.
(3) In balancing those interests, the senior constable must have regard to the following matters:
(a) the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;
(b) the degree of the suspect’s alleged participation in the commission of the relevant offence;
(c) the age, physical and mental health, cultural background and (where appropriate) religious beliefs of the suspect, to the extent that they are known to the senior constable or can reasonably be discovered by the senior constable (by asking the suspect or otherwise);
(d) if the senior constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander—the suspect’s customary beliefs (if any), to the extent that they are known to the senior constable or can reasonably be discovered by the senior constable (by asking the suspect or otherwise);
(e) whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence;
(f) if the suspect gives any reasons for refusing to consent—the reasons;
(g) any other matter considered relevant to balancing those interests.
(1) The senior constable must, at the time of, or as soon as practicable after, make an order under section 23WN, make a record of:
(a) the order made; and
(b) the date and time when the order was made; and
(c) the reasons for making it;
and must sign the record.
(2) The senior constable must ensure that a copy of the record is made available to the suspect as soon as practicable after the record is made.
A person is authorised to carry out a forensic procedure on a suspect by order of a magistrate under section 23WS or 23XA. The person is authorised to carry out the procedure in accordance with Division 6 and not otherwise.
A magistrate may, under section 23WS or 23XA, order the carrying out of a forensic procedure on a suspect if:
(a) the suspect is not in custody and has not consented to the forensic procedure; or
(b) the suspect is in custody and has not consented to the forensic procedure; or
(c) under section 23WE, the suspect cannot consent to the forensic procedure.
A magistrate may order the carrying out of a forensic procedure on a suspect if:
(a) section 23WR applies; and
(b) the magistrate is satisfied as required by section 23WT.
(1) The magistrate must be satisfied on the balance of probabilities that:
(a) the person on whom the procedure is proposed to be carried out is a suspect; and
(b) on the evidence before him or her, there are reasonable grounds to believe that the suspect committed a relevant offence; and
(c) there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and
(d) the carrying out of the forensic procedure is justified in all the circumstances.
(2) In determining whether the carrying out of the forensic procedure is justified in all the circumstances, the magistrate must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.
(3) In balancing those interests, the magistrate must have regard to the following matters:
(a) the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;
(b) the degree of the suspect’s alleged participation in the commission of the relevant offence;
(c) the age, physical and mental health, cultural background and (where appropriate) religious beliefs of the suspect, to the extent that they are known to the magistrate or can reasonably be discovered by the magistrate (by asking the suspect or otherwise);
(d) if the magistrate believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander—the suspect’s customary beliefs (if any), to the extent that they are known to the magistrate or can reasonably be discovered by the magistrate (by asking the suspect or otherwise);
(e) if the suspect is a child or an incapable person—the welfare of the suspect;
(f) whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence;
(g) if the suspect gives any reasons for refusing to consent—the reasons;
(h) if the suspect is in custody:
(i) the period for which the suspect has already been detained; and
(ii) the reasons for any delay in proposing the carrying out of the forensic procedure;
(i) any other matter considered relevant to balancing those interests.
(1) An authorised applicant (but no other person) may apply to a magistrate for an order under section 23WS authorising him or her to arrange the carrying out of a forensic procedure on a suspect.
(2) An application for an order must:
(a) be made in writing; and
(b) be supported by evidence on oath or by affidavit dealing with the matters referred to in paragraphs 23WT(1)(a), (b), (c) and (d); and
(c) specify the type of forensic procedure sought to be carried out; and
(d) be made in the presence of the suspect (subject to any contrary order made by the magistrate).
(1) If the suspect is in the custody of another constable or is otherwise detained under a law of the Commonwealth, a State or a Territory (original custody), the magistrate may, on the application of a constable, issue a warrant directing the person holding the suspect in original custody to deliver the suspect into the custody of the constable (temporary custody) for the hearing of an application for an order under this Division.
(2) The constable given temporary custody must return the suspect to the place of original custody:
(a) if the application for the order is refused—without delay; or
(b) if the order is made—without delay at the end of the period for which the suspect may be detained in custody under section 23XGD.
(1) If the suspect is not in custody, the magistrate may, on the application of a constable:
(a) issue a summons for the appearance of the suspect at the hearing of the application; or
(b) issue a warrant for the arrest of the suspect for the purpose of bringing the suspect before the magistrate for the hearing of the application.
(2) An application for a summons under subsection (1) must be:
(a) made by information on oath; and
(b) accompanied by an affidavit dealing with matters referred to in paragraphs (3)(a) and (b).
(3) The magistrate may issue a summons only if satisfied:
(a) that the issue of the summons is necessary to ensure the appearance of the suspect at the hearing of the application; or
(b) that the issue of the summons is otherwise justified.
(4) An application for a warrant under subsection (1) must be:
(a) made by information on oath; and
(b) accompanied by an affidavit dealing with matters referred to in paragraphs (5)(a), (b) and (c).
(5) The magistrate may issue a warrant only if satisfied:
(a) that the arrest is necessary to ensure the appearance of the suspect at the hearing of the application, and that the issue of a summons would not ensure that appearance; or
(b) that the suspect might destroy evidence that might be obtained by carrying out the forensic procedure; or
(c) that the issue of the warrant is otherwise justified.
(1) An order may only be made in the presence of the suspect concerned, subject to any contrary order made by the magistrate.
(2) A suspect who is:
(a) a child; or
(b) an incapable person;
must be represented by an interview friend and may also be represented by a legal practitioner.
(3) If the applicant believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander not covered by subsection (2), the suspect must be represented by an interview friend and may also be represented by a legal practitioner.
(4) Subsection (3) does not apply if the applicant believes on reasonable grounds that, having regard to the suspect’s level of education and understanding, the suspect is not at a disadvantage in relation to the hearing by comparison with members of the Australian community generally.
(5) Any other suspect (including a suspect covered by subsection (4)) may be represented by a legal practitioner.
(6) The suspect or his or her representative:
(a) may call or cross‑examine the applicant for the order; and
(b) may, with the leave of the magistrate, call or cross‑examine any other witnesses; and
(c) may address the magistrate.
(6A) A magistrate must not give leave under paragraph (6)(b) unless the magistrate is of the opinion that there are substantial reasons why, in the interests of justice, the witness should be called or cross‑examined.
(7) In spite of subsection (2) or (3), the suspect’s interview friend may be excluded from the hearing if the interview friend unreasonably interferes with or obstructs the hearing of the application.
(1) If a magistrate makes an order for the carrying out of a forensic procedure, the magistrate must:
(a) give reasons for making the order; and
(b) ensure that a written record of the order is kept; and
(c) order the suspect to attend for the carrying out of the forensic procedure; and
(d) inform the suspect that reasonable force may be used to ensure that he or she complies with the order for the carrying out of the forensic procedure.
(2) The magistrate may give directions as to the time, place and manner in which the procedure is to be carried out.
(1) A magistrate may make an interim order authorising the carrying out of a forensic procedure on a suspect that must be carried out without delay if:
(a) section 23WR applies; and
(b) the magistrate is satisfied that the probative value of evidence obtained as a result of the forensic procedure concerned is likely to be lost or destroyed if there is delay in carrying out the procedure; and
(c) the magistrate is satisfied that there is sufficient evidence to indicate that a magistrate is reasonably likely to be satisfied of the existence of the matters referred to in subsection 23WT(1) when the application is finally determined.
(2) An interim order operates as provided by this Subdivision until a magistrate, at a hearing held under Subdivision B, confirms the interim order or disallows the interim order.
Note: Subsection 23XD(2) requires that an interim order specify the intended date, time and place of the later hearing.
(3) Subdivision B applies in relation to an order confirming the interim order in the same way it applies in relation to an order under section 23WS, and an order confirming the interim order is taken to be an order under section 23WS.
(1) An authorised applicant may, without bringing a suspect before a magistrate and without obtaining an order under section 23WS, make an application seeking an interim order authorising the carrying out of a forensic procedure on a suspect that must be carried out without delay.
(2) An application for an interim order must:
(a) be supported by evidence on oath or by affidavit dealing with the matters referred to in paragraphs 23XA(1)(a), (b) and (c); and
(b) specify the type of forensic procedure sought to be carried out.
(3) An application for an interim order may be made in person or, if that is not practicable, by telephone, radio, telex, facsimile or other means of transmission.
(4) The suspect must be in the presence of the authorised applicant when the application is made.
(5) If the suspect is:
(a) a child; or
(b) an incapable person;
an interview friend or legal representative of the suspect must also be in the presence of the authorised applicant.
(6) If the applicant believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander not covered by subsection (5), an interview friend or legal representative of the suspect must also be in the presence of the authorised applicant.
(7) Subsection (6) does not apply if the applicant believes on reasonable grounds that, having regard to the suspect’s level of education and understanding, the suspect is not at a disadvantage in relation to the application by comparison with members of the Australian community generally.
(8) If the suspect is not covered by subsection (5) or (6), the suspect’s legal representative (if any) must also be in the presence of the authorised applicant.
(9) In spite of subsection (5) or (6), the suspect’s interview friend may be excluded from the presence of the authorised applicant if the interview friend unreasonably interferes with or obstructs the making of the application.
(1) If the application is made in person, or by telephone or radio or other form of oral communication, the magistrate must ensure that:
(a) the suspect; and
(b) the suspect’s legal representative, if any; and
(c) the suspect’s interview friend, if any;
are given an opportunity to speak to the magistrate.
(2) If the application is made by telex, facsimile or other form of written communication, the magistrate must ensure that:
(a) the suspect; and
(b) the suspect’s legal representative, if any; and
(c) the suspect’s interview friend, if any;
are given an opportunity to make a written submission to accompany the application, or to speak to the magistrate by telephone, radio or other form of oral communication.
(1) A magistrate who makes an interim order must inform the applicant for the order personally, or by telephone, radio, telex, facsimile or other means of transmission:
(a) that the order has been made; and
(b) of the terms of the order, including the matters mentioned in subsection (2); and
(c) of any orders made or directions given under subsection (3) in relation to the order.
(2) An interim order must specify the date, time and place at which a further hearing on the application will take place and the application will be finally determined.
(3) A magistrate may make such orders and give such directions in relation to an interim order as the magistrate may make or give in relation to an order under section 23WS.
(1) The applicant for an interim order must, at the time of, or as soon as practicable after, applying for the interim order, make a record (the applicant’s record) of:
(a) the application; and
(b) the grounds for seeking the order; and
(c) the order made; and
(d) the date and time when the order was made; and
(e) the magistrate’s name;
and sign the record.
(2) The applicant must send a copy of the applicant’s record to the magistrate as soon as practicable after it is made.
(3) The magistrate must, at the time of, or as soon as practicable after, making an interim order, make a record (the magistrate’s record) of:
(a) the application; and
(b) the grounds for seeking the order; and
(c) the order made; and
(d) the date and time when the order was made; and
(e) the reasons for making it;
and sign the record.
(4) The magistrate must send a copy of the magistrate’s record to the applicant as soon as practicable after the record is made.
(5) The applicant must ensure that a copy of the magistrate’s record and a copy of the applicant’s record are made available to the suspect as soon as practicable after the applicant receives the magistrate’s record.
(6) If the applicant’s record does not, in all material respects, accord with the magistrate’s record, the order is taken to have had no effect.
(1) A constable may, while waiting for the application seeking an interim order to be determined, use reasonable force to prevent the suspect destroying or contaminating any evidence that might be obtained by carrying out the forensic procedure if the order is made.
(2) Nothing in this section authorises any person to carry out a forensic procedure before an interim order is made.
(1) A sample taken under an interim order must not be analysed unless:
(a) the sample is likely to perish before a final order is made; or
(b) a final order is made.
(2) A person who conducts an analysis in the circumstances set out in paragraph (1)(a) must not intentionally disclose the results of the analysis to any person:
(a) during the period before a final order is made; or
(b) if the interim order is disallowed.
Penalty for a contravention of subsection (2): Imprisonment for 12 months.
This Subdivision applies where a magistrate orders the carrying out of a forensic procedure on a suspect under this Part.
(1) If a suspect who is not in custody presents himself or herself to the investigating constable to undergo the procedure ordered by the magistrate, the procedure must be carried out as quickly as reasonably possible but in any case within the following period:
(a) if the suspect is a child or an incapable person, or the investigating constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander—2 hours after the suspect so presents himself or herself;
(b) in any other case—4 hours after the suspect so presents himself or herself.
(2) In working out any period of time for the purposes of subsection (1), the following times are to be disregarded:
(a) the time (if any) that is reasonably required to convey the suspect from the place where the suspect presents himself or herself to the investigating constable to the nearest premises where facilities for carrying out the procedure in accordance with this Part are available to the investigating constable;
(b) any time during which carrying out the procedure is suspended or delayed to allow the suspect, or someone else on the suspect’s behalf, to communicate with a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person as provided by this Part;
(c) any time during which carrying out the procedure is suspended or delayed to allow such a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person to arrive at the place where the procedure is to be carried out;
(d) any time during which carrying out the procedure is suspended or delayed to allow the suspect to receive medical attention;
(e) any time during which carrying out the procedure is suspended or delayed because of the suspect’s intoxication;
(f) any reasonable time during which carrying out the procedure is suspended or delayed to allow the suspect to rest or recuperate;
(g) any time during which carrying out the procedure is suspended or delayed at the request of the suspect.
(1) If the suspect is not in custody, the magistrate may, on the application of a constable, issue a warrant for the arrest of the suspect for the purpose of carrying out the forensic procedure.
(2) An application for a warrant must be:
(a) made by information on oath; and
(b) accompanied by an affidavit dealing with matters referred to in paragraphs (3)(a) and (b).
(3) The magistrate may issue a warrant only if satisfied:
(a) that the arrest is necessary to ensure that the forensic procedure can be carried out; or
(b) that the issue of the warrant is otherwise justified.
(4) A magistrate must not issue a warrant for the arrest of a suspect for the purpose of carrying out a forensic procedure if a warrant has previously been issued (by any magistrate) for the arrest of the suspect for the purpose of carrying out that forensic procedure.
(1) If the suspect is in custody (whether or not as the result of the issue of a warrant under section 23XGC), he or she may be detained in custody for such period (the detention period) as is reasonably necessary to carry out the forensic procedure but in any case for no longer than a period starting when:
(a) the magistrate orders the carrying out of the procedure; or
(b) the suspect is arrested pursuant to a warrant under section 23XGC;
whichever is later, and ending:
(c) if the suspect is a child or an incapable person, or the investigating constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander—2 hours later; or
(d) in any other case—4 hours later.
(2) In working out any period of time for the purposes of subsection (1), the following times are to be disregarded:
(a) the time (if any) that is reasonably required to convey the suspect from the place where the suspect is when the detention period starts to the nearest premises where facilities for carrying out the procedure in accordance with this Part are available to the investigating constable;
(b) any time during which carrying out the procedure is suspended or delayed to allow the suspect, or someone else on the suspect’s behalf, to communicate with a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person as provided by this Part;
(c) any time during which carrying out the procedure is suspended or delayed to allow such a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person to arrive at the place where the procedure is to be carried out;
(d) any time during which carrying out the procedure is suspended or delayed to allow the suspect to receive medical attention;
(e) any time during which carrying out the procedure is suspended or delayed because of the suspect’s intoxication;
(f) any reasonable time during which carrying out the procedure is suspended or delayed to allow the suspect to rest or recuperate;
(g) any time during which the suspect is being questioned under Part IC;
(h) any time that is to be disregarded under subsection 23C(7) or 23CA(8).
A person must not intentionally, in any report of a proceeding under this Division, publish:
(a) the name of the suspect; or
(b) any information likely to enable the identification of the suspect;
unless the suspect has been charged with a relevant offence or the magistrate, by order, has authorised such publication.
Penalty: Imprisonment for 12 months.
A forensic procedure:
(a) must be carried out in circumstances affording reasonable privacy to the suspect; and
(b) except as permitted (expressly or impliedly) by other provisions of this Part, must not be carried out in the presence or view of a person who is of the opposite sex to the suspect; and
(c) must not be carried out in the presence or view of a person whose presence is not necessary for the purposes of the forensic procedure or required or permitted by another provision of this Part; and
(d) must not involve the removal of more clothing than is necessary for the carrying out of the procedure; and
(e) must not involve more visual inspection than is necessary for the carrying out of the procedure.
A forensic procedure must not be carried out while the suspect is being questioned as defined in subsection 23B(6). If questioning has not been completed before the forensic procedure is to be carried out, it must be suspended while the forensic procedure is carried out.
Before anyone starts to carry out a forensic procedure on a suspect, a constable must caution the suspect that he or she does not have to say anything while the procedure is carried out but that anything the person does say may be used in evidence.
(1) Subject to subsection (2) and section 23XK, a person authorised to carry out a forensic procedure on a person, or a constable, may use reasonable force:
(a) to enable a forensic procedure to be carried out; or
(b) to prevent loss, destruction or contamination of any sample.
(2) All forensic procedures are to be carried out in a manner consistent with appropriate medical or other relevant professional standards.
For the purpose of this Part, the carrying out of a forensic procedure is not of itself taken to be cruel, inhuman or degrading. However, nothing in this Part authorises the carrying out of a forensic procedure in a cruel, inhuman or degrading manner.
A person is authorised to take a sample of hair of a suspect by removing the root of the hair only if:
(a) the person takes only so much hair as the person believes is necessary for analysis of the sample, or other examination of the hair, to be carried out for the purpose of investigating the offence; and
(b) each strand of hair is taken individually using the least painful technique known and available to the person.
(1) The table following subsection (4) shows, for each forensic procedure, the persons who may carry out the procedure under this Part. A person not specified in the second column of the table is not authorised to carry out a forensic procedure under this Part except as mentioned in section 23XO.
(2) The third column of the table following subsection (4) shows, for each forensic procedure, whether the suspect is entitled to request that a medical practitioner or dentist of the suspect’s choice is present while the forensic procedure is carried out.
Note: Section 23XP makes detailed provision for the presence of a medical practitioner or dentist of the suspect’s choice while a forensic procedure is carried out.
(3) A person is authorised to carry out a particular forensic procedure if he or she is an appropriately qualified person in relation to the procedure even if the person also satisfies another description specified in the following table that is not specified in relation to the particular forensic procedure.
Example: A constable who is an appropriately qualified person to take samples of blood may take such samples even though the table does not expressly list constables as persons who may take samples of blood.
(4) This section does not prevent a suspect from taking a sample of saliva, or a sample by buccal swab, from himself or herself under the supervision of an appropriately qualified person.
|
Who may carry out forensic procedures | |||
|
|
|
|
Is suspect entitled to request presence of medical practitioner or dentist of suspect’s choice? |
|
1 |
external examination of the genital or anal area, the buttocks or, in the case of a female, the breasts |
medical practitioner nurse appropriately qualified person |
yes (medical practitioner) |
|
2 |
the taking of a sample of blood |
medical practitioner nurse appropriately qualified person |
yes (medical practitioner) |
|
3 |
the taking of a sample of saliva, or a sample by buccal swab |
medical practitioner dentist dental technician nurse appropriately qualified person |
yes (dentist or medical practitioner) |
|
4 |
the taking of a sample of pubic hair |
medical practitioner nurse appropriately qualified person |
yes (medical practitioner) |
|
5 |
the taking of a sample by swab or washing from the external genital or anal area, the buttocks or, in the case of a female, the breasts |
medical practitioner nurse appropriately qualified person |
yes (medical practitioner) |
|
6 |
the taking of a sample by vacuum suction, scraping or lifting by tape from the external genital or anal area, the buttocks or, in the case of a female, the breasts |
medical practitioner nurse appropriately qualified person |
yes (medical practitioner) |
|
7 |
the taking of a dental impression |
medical practitioner dentist dental technician |
yes (dentist or medical practitioner) |
|
8 |
the taking of a photograph or a video recording of, or an impression or cast of a wound from, the genital or anal area, the buttocks or, in the case of a female, the breasts |
appropriately qualified person |
yes (medical practitioner) |
|
9 |
external examination of a part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts, that requires touching of the body or removal of clothing |
medical practitioner nurse appropriately qualified person |
no |
|
10 |
the taking of a sample of hair other than pubic hair |
medical practitioner nurse constable appropriately qualified person |
no |
|
11 |
the taking of a sample from a nail or from under a nail |
medical practitioner nurse constable appropriately qualified person |
no |
|
12 |
the taking of a sample by swab or washing from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts |
medical practitioner nurse appropriately qualified person |
no |
|
13 |
the taking of a sample by vacuum suction, scraping or lifting by tape from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts |
medical practitioner nurse appropriately qualified person |
no |
|
14 |
the taking of a hand print, finger print, foot print or toe print |
appropriately qualified person |
no |
|
15 |
the taking of a photograph or a video recording of, or an impression or cast of a wound from, an external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts |
appropriately qualified person |
no |
Note: Appropriately qualified (as used in the expression “appropriately qualified person”) is defined in section 23WA.
(1) If practicable, an intimate forensic procedure (other than the taking of a sample of blood, a sample of saliva, a buccal swab or a dental impression) is to be carried out:
(a) if the suspect is an adult—by a person of the same sex as the suspect; or
(b) if the suspect is a child—by a person of the sex chosen by the suspect or, if the suspect does not wish to make such a choice, by a person of the same sex as the suspect.
(2) If practicable, a non‑intimate forensic procedure for which the suspect is required to remove clothing other than his or her overcoat, coat, jacket, gloves, socks, shoes and hat is to be carried out:
(a) if the suspect is an adult—by a person of the same sex as the suspect; or
(b) if the suspect is a child—by a person of the sex chosen by the suspect or, if the suspect does not wish to make such a choice, by a person of the same sex as the suspect.
(3) If practicable, a person asked under section 23XO to help carry out a forensic procedure covered by subsection (1) or (2):
(a) is to be:
(i) if the suspect is an adult—a person of the same sex as the suspect; or
(ii) if the suspect is a child—a person of the sex chosen by the suspect or, if the suspect does not wish to make such a choice, by a person of the same sex as the suspect; and
(b) is to be a person who is not inappropriate to help carry out the forensic procedure.
(1) A person who is authorised to carry out a forensic procedure under the table in section 23XM is authorised to ask another person to help him or her to carry out the procedure, and the other person is authorised to give that help.
(2) A person who is asked to help carry out a forensic procedure need not be a person mentioned in the table in section 23XM.
(3) A person who is asked to help carry out a forensic procedure may use reasonable force to enable the forensic procedure to be carried out.
(1) A suspect is entitled to request a medical practitioner or dentist (the expert) of his or her choice as shown in the table in section 23XM to be present while a forensic procedure (other than a non‑intimate forensic procedure) is carried out.
Note: Section 23YE provides that the request may be made by the suspect’s legal representative or interview friend.
(2) The expert chosen is to be present at the forensic procedure unless he or she:
(a) is unable, or does not wish, to attend; or
(b) cannot be contacted;
within a reasonable time or, if relevant, within the time in which the person responsible for the effective carrying out of the forensic procedure considers the forensic procedure should be carried out if it is to be effective in affording evidence of the relevant offence.
(1) This section applies if the suspect is:
(a) a child; or
(b) an incapable person.
(2) Either an interview friend or a legal representative (if he or she is not the interview friend) of the suspect must be present while the forensic procedure is carried out. Both an interview friend and a legal representative may be present.
(3) An interview friend (other than a legal representative) of the suspect may be excluded from the place where the forensic procedure is being carried out if the interview friend unreasonably interferes with or obstructs the carrying out of the procedure.
(1) This section applies if the investigating constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander not covered by section 23XQ.
(2) Either an interview friend or a legal representative (if he or she is not the interview friend) of the suspect must be present while the forensic procedure is carried out. Both an interview friend and a legal representative may be present.
(3) Subsection (2) does not apply if:
(a) the investigating constable believes on reasonable grounds that, having regard to the suspect’s level of education and understanding, the suspect is not at a disadvantage in respect of the carrying out of the forensic procedure by comparison with members of the Australian community generally; or
(b) the suspect expressly and voluntarily waives his or her right to have an interview friend present.
Note: Section 23YK relates to proving a waiver under subsection (3).
(4) An interview friend (other than a legal representative) of the suspect may be excluded from the place where the forensic procedure is being carried out if the interview friend unreasonably interferes with or obstructs the carrying out of the procedure.
(1) The number of constables that may be present during the carrying out of a forensic procedure must not exceed that which is reasonably necessary to ensure that the procedure is carried out effectively and in accordance with this Part.
(2) Where the presence of a constable (other than a constable who is carrying out or helping to carry out the procedure) is reasonably necessary to ensure that a forensic procedure is carried out effectively and in accordance with this Part, the constable is:
(a) if the suspect is a child—to be of the same sex as the suspect; or
(b) in any other case—to be of the same sex as the suspect unless it is not practicable for such a constable to attend within a reasonable time.
Note: Section 23XN provides that, if practicable, most forensic procedures are to be carried out by persons of the same sex as the suspect.
(3) This section does not apply to the following forensic procedures:
(a) the taking of hand prints, finger prints, foot prints or toe prints;
(b) any non‑intimate forensic procedure that may be carried out without requiring the suspect to remove any clothing except his or her overcoat, coat, jacket, gloves, socks, shoes and hat.
(1) The carrying out of a forensic procedure (other than the taking of a hand print, finger print, foot print or toe print) must be video recorded unless:
(a) the suspect objects to the video recording; or
(b) the video recording is not practicable.
(2) Before the forensic procedure is carried out, the suspect must be informed:
(a) of the reasons for video recording the carrying out of the forensic procedure, including the protection that the video recording provides for the suspect; and
(b) that the suspect may object to the video recording.
(3) In spite of section 23YE, an interview friend of an Aboriginal person or a Torres Strait Islander not covered by section 23XQ has no right to object to the video recording of the forensic procedure.
Note: Section 23YE gives interview friends and legal representatives general powers to act on behalf of suspects. Section 23XQ applies to children and incapable persons, including children or incapable persons who are Aboriginal persons or Torres Strait Islanders, but does not apply to other Aboriginal persons or Torres Strait Islanders.
(4) If the carrying out of the forensic procedure is not to be video recorded, the forensic procedure must be carried out in the presence of an independent person (not a constable).
(1) This section applies to a sample taken from a suspect under this Part if there is sufficient material to be analysed both in the investigation of the offence and on behalf of the suspect.
(2) The investigating constable must ensure that:
(a) a part of the material sufficient for analysis is made available to the suspect as soon as practicable after the procedure has been carried out; and
(b) that reasonable care is taken to ensure that the suspect’s part of the material is protected and preserved until the suspect receives it; and
(c) that reasonable assistance is given to the suspect to ensure that the material is protected and preserved until it can be analysed.
Note: Division 9 contains provisions about making material available to the suspect.
(1) This section applies to a sample taken from a suspect under this Part if:
(a) there is not sufficient material to be analysed both in the investigation of the offence and on behalf of the suspect; and
(b) the material does not need to be analysed immediately after the sample is taken.
(2) The suspect is entitled to request that a person of his or her choice be present while the material is analysed in the investigation of the offence.
Note: Section 23YE provides that the request may be made by the suspect’s legal representative or interview friend.
(3) The person chosen is to be present at the analysis of the material unless he or she:
(a) is unable, or does not wish, to attend; or
(b) cannot be contacted;
within a reasonable time or, if relevant, within the time in which the person responsible for analysing the material considers the analysis should be carried out if it is to provide valid results.
Where a forensic procedure involves the taking of a photograph of a part of a suspect’s body, the investigating constable must ensure that a copy of the photograph is made available to the suspect.
Note: Division 9 contains provisions about making copies of material available to the suspect.
If material from a sample taken from a suspect is analysed in the investigation of the offence, the investigating constable must ensure that a copy of the results of the analysis is made available to the suspect.
Note: Division 9 contains provisions about making copies of material available to the suspect.
A person is guilty of an offence if the person obstructs, hinders or resists a person carrying out a forensic procedure in accordance with this Part.
Penalty: Imprisonment for 2 years.
Intimate forensic procedures to which Division applies
(1) This Division applies to the following intimate forensic procedures:
(a) the taking of a sample of blood;
(b) the taking of a buccal swab.
Non‑intimate forensic procedures to which Division applies
(2) This Division applies to the following non‑intimate forensic procedures:
(a) the taking of samples of hair other than pubic hair;
(b) the taking of fingerprints.
Application of Division
(3) A person is authorised by this section to carry out a forensic procedure under this Division on a serious offender or a prescribed offender whether convicted of the serious or prescribed offence concerned before or after the commencement of this section.
(1) A person is authorised to carry out a non‑intimate forensic procedure to which this Division applies on a person (other than a child or an incapable person) who is a serious offender:
(a) with the informed consent of the serious offender; or
(b) by order of a constable under section 23XWK.
(2) A person is authorised to take the fingerprints of a prescribed offender (other than a child or an incapable person):
(a) with the informed consent of the prescribed offender; or
(b) by order of a constable under section 23XWK.
(3) A person is authorised to carry out a non‑intimate forensic procedure to which this Division applies on a child or an incapable person who is a serious offender, or to take the fingerprints of a child or incapable person who is a prescribed offender, by order of a magistrate under section 23XWO.
A person is authorised to carry out an intimate forensic procedure to which this Division applies on a person (other than a child or incapable person) who is a serious offender:
(a) with the informed consent of the serious offender; or
(b) by order of a magistrate under section 23XWO.
(1) Division 6 applies to the carrying out under this Division of a forensic procedure on an offender as if the references to the suspect in Division 6 were references to the offender.
(2) A person is authorised by section 23XWC or 23XWD to carry out a forensic procedure under this Division in accordance with Division 6 as applied by this section and not otherwise.
(1) A person is not authorised to carry out a forensic procedure under this Division on a serious offender or a prescribed offender if the serious offender or prescribed offender is a suspect or a volunteer.
(2) A forensic procedure may be carried out on a serious offender or prescribed offender who is a suspect only if authorised by and in accordance with Divisions 2 to 5.
(3) A forensic procedure may be carried out on a serious offender or prescribed offender who is a volunteer only if authorised by and in accordance with Division 6B.
(1) An offender gives informed consent to a forensic procedure if the offender consents after a constable:
(a) requests the offender to consent to the forensic procedure under section 23XWH; and
(b) informs the offender about the forensic procedure in accordance with section 23XWJ; and
(c) gives the offender the opportunity to communicate, or attempt to communicate, with a legal practitioner of the offender’s choice.
(2) The constable must allow the offender to communicate, or attempt to communicate, with the legal practitioner in private unless the constable suspects on reasonable grounds that the offender might attempt to destroy or contaminate any evidence that might be obtained by carrying out the forensic procedure.
Note: Section 23YI states that the burden lies on the prosecution to prove on the balance of probabilities that a constable had a suspicion on reasonable grounds.
A constable may request:
(a) a serious offender (other than a child or an incapable person) to consent to an intimate or non‑intimate forensic procedure to which this Division applies being carried out on the serious offender; or
(b) a prescribed offender (other than a child or an incapable person) to consent to the taking of the offender’s fingerprints.
Before a request is made under section 23XWH, the constable must be satisfied on the balance of probabilities that:
(a) in the case of a person on whom the procedure is proposed to be carried out who is not serving a sentence of imprisonment in a prison or other place of detention—that the person is an offender; and
(b) the request for consent to carry out the forensic procedure is justified in all the circumstances.
(1) The constable must inform the offender of the following:
(a) the purpose for which the forensic procedure is required;
(b) if the constable wants the forensic procedure carried out in relation to an offence—the offence concerned;
(c) the way in which the forensic procedure is to be carried out;
(d) that the forensic procedure may produce evidence against the offender that might be used in a court of law;
(e) that the forensic procedure will be carried out by a person who may carry out the procedure under Division 6 as applied by section 23XWE;
Note: See section 23XM.
(f) if the forensic procedure is the taking of a sample of blood, that the offender may request that:
(i) if the offender is serving a sentence of imprisonment in a prison or other place of detention—the prison medical officer be present while the blood is taken; or
(ii) if the offender is not serving a sentence of imprisonment—a medical practitioner of the offender’s choice be present while the blood is taken;
(g) that the offender may refuse consent to the carrying out of the forensic procedure;
(h) the consequences of not consenting, as specified in subsection (2) or (3) (whichever is applicable);
(i) the effect of section 23XZ (if applicable);
(j) that information obtained from analysis of forensic material obtained may be placed on the DNA database system and used for the purposes of a criminal investigation or for any other purpose for which the DNA database system may be used under Division 8A.
Effect of failure to consent to non‑intimate forensic procedure
(2) The constable must inform a serious offender requested to undergo a non‑intimate forensic procedure to which this Division applies or a prescribed offender requested to consent to the taking of his or her fingerprints that, if the offender does not consent, a constable may order the carrying out of the forensic procedure under section 23XWK if the constable has taken into account the matters set out in section 23XWL.
Effect of failure to consent to intimate forensic procedure
(3) The constable must inform a serious offender requested to undergo an intimate forensic procedure to which this Division applies that, if the serious offender does not consent, an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure.
A constable may order the carrying out of a non‑intimate forensic procedure to which this Division applies on a serious offender or the taking of the fingerprints of a prescribed offender other than a child or an incapable person if:
(a) the offender has been asked under section 23XWH to consent to the carrying out of the forensic procedure; and
(b) the offender has not consented; and
(c) the constable has taken into account the matters set out in section 23XWL.
In determining whether to make an order under section 23XWK, the constable is to take into account:
(a) whether this Part would authorise the forensic procedure to be carried out in the absence of the order; and
(b) the seriousness of the circumstances surrounding the offence committed by the offender; and
(c) whether the carrying out of the forensic procedure could assist law enforcement, whether Federal or otherwise; and
(d) whether the carrying out of the forensic procedure without consent is justified in all the circumstances.
(1) The constable must, if practicable, ensure that the giving of the information about the proposed forensic procedure and the offender’s responses (if any) are tape recorded.
(2) If tape recording the giving of the information and the offender’s responses (if any) is not practicable, the constable must ensure that:
(a) a written record of the giving of the information and the offender’s responses (if any) is made; and
(b) a copy of the record is made available to the serious offender.
Note: Division 9 contains provisions about making copies of material (including tapes) available to the serious offender.
(1) The constable must, at the time of, or as soon as practicable after, making an order under section 23XWK, make a record of:
(a) the order; and
(b) the date and time when the order was made; and
(c) the reasons for making it, and sign the record.
(2) The constable must ensure that a copy of the record is made available to the offender as soon as practicable after the record is made.
(1) An authorised applicant may apply to any judge or magistrate for an order directing a serious offender to consent to an intimate forensic procedure to which this Division applies being carried out on the serious offender.
(2) An authorised applicant may apply to any judge or magistrate for an order for the carrying out of a non‑intimate forensic procedure to which this Division applies on a child or an incapable person who is a serious offender.
(3) An application under subsection (1) or (2) must be accompanied by an affidavit by the authorised applicant dealing with the matters referred to in subsection (7).
(4) An authorised applicant may apply to any judge or magistrate for an order for the taking of the fingerprints under this Division of a child or an incapable person who is a prescribed offender.
(5) An authorised applicant may make an application under this section to the judge or magistrate that is sentencing an offender or to any other judge or magistrate at a later time.
(6) A judge or magistrate may order the carrying out of a forensic procedure under this Division if satisfied that the carrying out of the forensic procedure is justified in all the circumstances.
(7) In determining whether to make an order under this section, a judge or magistrate is to take into account:
(a) whether this Part would authorise the forensic procedure to be carried out in the absence of the order; and
(b) the seriousness of the circumstances surrounding the commission of the offence by the offender; and
(c) whether the carrying out of the forensic procedure could assist law enforcement, whether Federal or otherwise; and
(d) whether the carrying out of the forensic procedure is justified in all the circumstances.
(8) An order under this section takes effect immediately. However, the person who conducts any analysis of forensic material obtained as a result of carrying out the forensic procedure on an offender must not disclose the results of the analysis:
(a) until the expiration of any appeal period or after the final determination of any appeal in relation to the offence concerned, whichever is the later; or
(b) if the conviction is quashed.
(1) If:
(a) an offender is in prison or another place of detention; and
(b) a judge or magistrate orders the offender to permit a forensic procedure to be carried out under this Division;
the judge or magistrate may order that a constable and a Division 6 person be permitted to attend on the offender in the prison or place of detention to allow the forensic procedure to be carried out.
(2) In subsection (1), Division 6 person means a person who, under Division 6 as applied by section 23XWE, may carry out the forensic procedure.
(3) If a judge or magistrate orders an offender who is not in a prison or another place of detention to permit a forensic procedure to be carried out, the judge or magistrate may order the offender to attend at a police station (or other place specified by the judge or magistrate) within a period specified by the judge or magistrate to allow the forensic procedure to be carried out.
(4) An offender ordered to permit the carrying out of a forensic procedure is guilty of an offence if the offender, without reasonable excuse, refuses or fails to permit the forensic procedure to be carried out.
Penalty: Imprisonment for 12 months.
Note: A defendant bears the evidential burden in relation to the exception of reasonable excuse—see subsection 13.3(3) of the Criminal Code.
(1) In this Part:
volunteer means a person:
(a) who volunteers to a constable to undergo a forensic procedure; or
(b) in the case of a child or incapable person—whose parent or guardian volunteers on the child or incapable person’s behalf to a constable that the child or incapable person undergo a forensic procedure.
(2) A person is authorised to carry out a forensic procedure:
(a) on a volunteer other than a child or an incapable person—with the informed consent of the volunteer given in accordance with section 23XWR; or
(b) on a volunteer who is a child or an incapable person:
(i) with the informed consent of the parent or guardian of the volunteer given in accordance with section 23XWR or by order of a magistrate under section 23XWU; and
(ii) after the person has informed the child or incapable person that, even though consent has been given or an order made, if he or she objects to or resists the carrying out of the forensic procedure it will not be carried out.
(3) This section only authorises a person to carry out a forensic procedure if the procedure is necessary, or incidental to, the carrying out of an AFP function.
(4) This section does not authorise a person to carry out a forensic procedure on a child or an incapable person who objects to or resists the carrying out of the forensic procedure.
(5) Division 6 applies to the carrying out of a forensic procedure under this Division as if the references to a suspect in that Division were references to a volunteer referred to in this section. A person is authorised by this section to carry out a forensic procedure on a volunteer in accordance with Division 6 as so applied and not otherwise.
(1) A volunteer, or parent or guardian of a volunteer, gives informed consent in accordance with this section if the volunteer, parent or guardian consents in the presence of an independent person (not being a constable) after a constable informs the volunteer, parent or guardian of the following matters:
(a) the way in which the forensic procedure is to be carried out;
(b) that the volunteer is under no obligation to undergo the forensic procedure;
(c) that the forensic procedure may produce evidence that might be used in a court of law;
(d) to the extent that they are relevant, the matters specified in subsection (2);
(e) that the volunteer, parent or guardian may consult a legal practitioner of the volunteer’s, parent’s or guardian’s choice before deciding whether or not to consent to the forensic procedure;
(f) that the volunteer, parent or guardian may at any time withdraw consent to:
(i) the volunteer undergoing the forensic procedure; or
(ii) retention of the forensic material taken; or
(iii) retention of information obtained from the analysis of that material.
(2) The constable must inform the volunteer, or parent or guardian of the volunteer, of the following:
(a) that information obtained from analysis of forensic material taken from a person under this Division, and as to the identity of the person, may be placed on the DNA database system;
(b) that the volunteer has a choice as to whether the information is stored on the volunteers (limited purposes) index or the volunteers (unlimited purposes) index of that system;
(ba) if the information is placed on the volunteers (limited purposes) index—the purpose for which the information is placed on the index and that the information may only be used for that purpose;
(c) if the information is placed on the volunteers (unlimited purposes) index—that the information may be used for the purposes of a criminal investigation or any other purpose for which the DNA database system may be used under Division 8A;
(d) that information placed on the DNA database system will be retained for such period as the Commissioner and the volunteer (or, in the case of a volunteer who is a child or an incapable person, a parent or guardian of the volunteer) agree and must then be removed from the system;
(e) any other matters prescribed by the regulations.
(1) The constable must, if practicable, ensure that the giving of the information about the proposed forensic procedure and the volunteer’s or volunteer’s parent’s or guardian’s responses (if any) are tape recorded.
(2) If tape recording the giving of information and the volunteer’s, parent’s or guardian’s responses (if any) is not practicable, the constable must ensure that:
(a) a written record of the giving of the information and the volunteer’s, parent’s or guardian’s responses (if any) is made; and
(b) a copy of the record is made available to the volunteer, parent or guardian.
(1) If a volunteer, or parent or guardian of the volunteer, expressly withdraws consent to the carrying out of a forensic procedure under this Division (or if the withdrawal of such consent can reasonably be inferred from the volunteer’s, parent’s or guardian’s conduct) before or during the carrying out of the forensic procedure:
(a) the forensic procedure is to be treated from the time of the withdrawal as a forensic procedure for which consent has been refused; and
(b) the forensic procedure is not to proceed except (in the case of a child or incapable person) by order of a magistrate under section 23XWU.
(2) If:
(a) a forensic procedure is carried out on a volunteer under this Division; and
(b) after the procedure is carried out, the volunteer, or the parent or guardian of the volunteer, expressly withdraws consent to retention of the forensic material taken or of information obtained from the analysis of that material;
then, subject to any order made under section 23XWV, the forensic material and any information obtained from analysis of the material is to be destroyed as soon as practicable after the consent is withdrawn.
(3) A constable may request, but cannot require, a parent or guardian who withdraws consent to the carrying out of a forensic procedure under this Division to confirm the withdrawal of consent in writing.
(1) A magistrate may order the carrying out of a forensic procedure on a child or incapable person if:
(a) the consent of the parent or guardian of the child or incapable person to the carrying out of the forensic procedure cannot reasonably be obtained from a parent or guardian of the child or incapable person; or
(b) the parent or guardian of the child or incapable person refuses consent to the carrying out of the forensic procedure and the magistrate is satisfied that there are reasonable grounds to believe:
(i) that the parent or guardian is a suspect; and
(ii) that the forensic procedure is likely to produce evidence tending to confirm or disprove that he or she committed an offence; or
(c) the parent or guardian of the child or incapable person consented to the carrying out of the forensic procedure, but subsequently withdraws that consent.
(2) In determining whether to make an order under this section, the magistrate is to take into account the following:
(a) whether this Part would authorise the carrying out of the forensic procedure apart from this section;
(b) if the forensic procedure is being carried out for the purposes of the investigation of a particular offence—the seriousness of the circumstances surrounding the commission of the offence;
(c) the best interests of the child or incapable person;
(d) so far as they can be ascertained, any wishes of the child or incapable person with respect to whether the forensic procedure should be carried out;
Note: A forensic procedure cannot be carried out on a child or an incapable person who objects to or resists the carrying out of the procedure even if the magistrate makes an order. See subparagraph 23XWQ(2)(b)(ii) and subsection 23XWQ(3).
(e) except in the circumstances referred to in paragraph (1)(b), any wishes expressed by the parent or guardian of the child or incapable person with respect to whether the forensic procedure should be carried out;
(f) whether the carrying out of the forensic procedure is justified in all the circumstances.
(3) An order under this section may:
(a) require the forensic procedure to be carried out at a time, or place, or in a manner, specified in the order; or
(b) specify the period for which forensic material obtained from carrying out the procedure may be retained.
(1) An authorised applicant may apply to a magistrate for an order under subsection (2).
(2) A magistrate may order that forensic material taken or information obtained from carrying out a forensic procedure on a volunteer who withdraws consent, or parent or guardian of a volunteer who withdraws consent, as the case may be, to the retention of the material be retained if the magistrate is satisfied that:
(a) during an investigation into the commission of a serious offence, material reasonably believed to be from the body of a person who committed the offence had been found:
(i) at the scene of the offence; or
(ii) on the victim of the offence or anything reasonably believed to have been worn or carried by the victim when the offence was committed; or
(iii) on the volunteer or anything reasonably believed to have been worn or carried by the volunteer at the scene of the offence or when the offence was committed; or
(iv) on an object or person reasonably believed to have been associated with the commission of the offence; and
(b) there are reasonable grounds to believe that information obtained from analysis of the forensic material taken from the volunteer is likely to produce evidence of probative value in relation to the serious offence being investigated; and
(c) the retention of the forensic material taken from the volunteer is justified in all the circumstances.
(3) The order may specify the period for which the forensic material taken or information obtained from carrying out the procedure may be retained.
(1) This section applies where:
(a) a forensic procedure has been carried out on a person; and
(b) there has been a breach of, or failure to comply with:
(i) any provision of this Part in relation to a forensic procedure carried out on the person (including, but not limited to, any breach or failure to comply with a provision requiring things to be done at any time before or after the forensic procedure is carried out); or
(ii) any provision of Division 8A with respect to recording or use of information on the DNA database system.
(2) This section does not apply where:
(a) a provision of this Part required forensic material to be destroyed; and
(b) the forensic material has not been destroyed.
Note: Section 23XY applies where this Part requires forensic material to have been destroyed.
(3) This section applies to:
(a) evidence of forensic material, or evidence consisting of forensic material, taken from the person by the forensic procedure; and
(b) evidence of any results of the analysis of the forensic material; and
(c) any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure.
(4) Where this section applies, evidence described in subsection (3) is not admissible in any proceedings against the person in a court unless:
(a) the person does not object to the admission of the evidence; or
(b) the court is satisfied on the balance of probabilities of matters that, in the court’s opinion, justify the admission of the evidence in the proceedings in spite of the failure to comply with the provisions of this Part.
(5) The matters that may be considered by the court for the purposes of paragraph (4)(b) are the following:
(a) the probative value of the evidence, including whether equivalent evidence or evidence of equivalent probative value could have been obtained by other means;
(b) the reasons given for the failure to comply with the provisions of this Part;
(c) the gravity of the failure to comply with the provisions of this Part, and whether the failure deprived the person of a significant protection under this Part;
(d) whether the failure to comply with the provisions of this Part was intentional or reckless;
(e) the nature of the provision of this Part that was not complied with;
(f) the nature of the offence concerned and the subject matter of the proceedings;
(g) whether admitting the evidence would seriously undermine the protection given to persons by this Part;
(h) any other matters the court considers to be relevant.
(6) The probative value of the evidence does not by itself justify the admission of the evidence.
(7) If a judge permits evidence to be given before a jury under subsection (4), the judge must:
(a) inform the jury of the breach of, or failure to comply with, a provision of this Part; and
(b) give the jury such warning about the evidence as the judge thinks appropriate in the circumstances.
(1) If a provision of this Part requires forensic material taken from a person by a forensic procedure to be destroyed, subsection (2) applies to:
(a) evidence of the forensic material; and
(b) if the material has not been destroyed—evidence consisting of the forensic material; and
(c) any results of the analysis of the forensic material; and
(d) any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure.
(2) The results of the analysis, and the other evidence, are not admissible if adduced by the prosecution in any proceedings against the person, but may be admissible if adduced in such proceedings by the person.
Evidence of a person’s refusal or failure to consent, or withdrawal of consent, to a forensic procedure is not admissible in proceedings against the person except to establish or rebut an allegation that a constable or another person investigating the commission of the offence concerned acted contrary to law in carrying out that investigation.
In spite of subsection 23XX(4), evidence of how a forensic procedure was carried out is admissible in proceedings against the person in a court:
(a) to establish or rebut an allegation that unreasonable force was used to enable the procedure to be carried out; or
(b) to determine the admissibility of a confession or admission or other evidence adverse to the person where the person alleges that the evidence was induced or obtained by the use of unreasonable force; or
(c) to establish or rebut an allegation that the forensic procedure was not carried out in accordance with Division 6.
(1) This section applies where a constable or magistrate has ordered the carrying out of a forensic procedure on a suspect under this Part.
(2) Subject to subsections (3) and (4), evidence that the suspect:
(a) refused to comply with any reasonable direction in connection with the carrying out of the forensic procedure; or
(b) obstructed, resisted, hindered, used violence against, threatened or intimidated a person in connection with the carrying out of the forensic procedure;
is admissible in any proceedings against the suspect in respect of a relevant offence.
(3) Evidence described in subsection (2) is not admissible if the forensic procedure was in fact carried out satisfactorily.
(4) Evidence described in subsection (2) is not admissible unless it is established that the suspect:
(a) had been informed by a constable as described in subsection 23WA(4); or
(b) otherwise knew;
that the fact of refusing to comply with the direction, or obstructing, resisting, hindering, using violence against, threatening or intimidating the person, in connection with the carrying out of the forensic procedure might be used in evidence against the suspect.
(5) The court or jury may draw such inferences from the evidence described in subsection (2) as appear to the court or jury to be proper in the circumstances, having regard to any evidence given by or on behalf of the suspect.
(1) If an interim order for the carrying out of a forensic procedure made under section 23XA is disallowed after the forensic procedure is carried out, the investigating constable must ensure that:
(a) all forensic material obtained as a result of the carrying out of the procedure is destroyed as soon as practicable after the disallowance; and
(b) a copy of the results of any analysis of the forensic material are made available to the suspect.
Note: Division 9 contains provisions about making copies of material available to the suspect.
(2) If an order for the carrying out of a forensic procedure made under section 23XWU or for the retention of forensic material under section 23XWV specifies a period for which forensic material obtained as a result of the carrying out of the procedure may be retained, the forensic material is to be destroyed as soon as practicable after the end of the period.
(1) This section applies where forensic material has been taken from a suspect by a forensic procedure carried out under this Part (except Divisions 6A and 6B).
(2) If:
(a) a period of 12 months has elapsed since the forensic material was taken; and
(b) proceedings in respect of a relevant offence have not been instituted against the suspect, or have been discontinued;
the forensic material must be destroyed as soon as practicable unless a warrant for apprehension of the suspect has been issued.
(3) If:
(a) the suspect is found to have committed a relevant offence but no conviction is recorded; or
(b) the suspect is acquitted of such an offence and:
(i) no appeal is lodged against the acquittal; or
&n