Part ID
-
Forensic procedures
History
Part ID (heading) substituted by No 41 of 2003, s 3 and Sch 3 item 40, effective 3 June 2003. For saving provision, see note under s 23C(7). The heading formerly read:
Part 1D
-
Forensic procedures
Simplified outline of operation of Part
This Part provides for forensic procedures to be carried out on:
•
suspects in relation to indictable offences (Divisions
3
,
4
and
5
); and
•
offenders in relation to prescribed and serious offences (Division
6A
); and
•
volunteers (Division
6B
).
If the carrying out of a forensic procedure is authorised under this Part, it must be carried out in accordance with rules and procedures set out in Division
6
.
If a forensic procedure covered by this Part is carried out without proper authority under this Part, evidence obtained through the procedure may be inadmissible in proceedings against the suspect (Division
7
).
However, certain rules are modified or do not apply if the forensic procedure is carried out in response to a request by a foreign country or an international tribunal, or a request by a foreign law enforcement agency (Division
9A
).
This Part also:
•
contains offences in relation to the Commonwealth DNA database system and the National Criminal Investigation DNA Database (
NCIDD
) (Division
8A
); and
•
provides for the whole or a part of the Commonwealth DNA database system to be integrated with the whole or a part of one ore more State/Territory DNA database systems to form part of NCIDD (Division
8A
); and
•
provides for the exchange of information in the Commonwealth DNA database system or a State/Territory DNA database system and the protection of the information that is exchanged (Division
11
); and
•
provides for the destruction of forensic material (Division
8
).
History
Simplified outline amended by No 34 of 2018, s 3 and Sch 1 item 101, by substituting
"
or an international tribunal,
"
for
"
(as contemplated by the Mutual Assistance in Criminal Matters Act 1987)
"
, effective 22 November 2018. For application provision, see note under the definition of
"
authorising provision
"
in s
23WA(1)
.
Simplified outline amended by No 7 of 2012, s 3 and Sch 3 item 70, by inserting the para relating to Div 9A, effective 20 September 2012.
Simplified outline amended by No 130 of 2006, s 3 and Sch 1 item 1, by substituting all the words from and including
"
This Part also
"
, effective 5 November 2006. No 130 of 2006, s 3 and Sch 1 item 52 contains the following transitional provision:
Transitional
52
For the purposes of the application of Part ID of the
Crimes Act 1914
after 5 November 2006, a reference to the Commonwealth DNA database system is taken, in relation to a thing that happened before 5 November 2006, to include a reference to the DNA database system (within the meaning of that Act as in force immediately before 5 November 2006).
The words formerly read:
This Part also provides for:
•
the establishing of a DNA database system (Division
8A
); and
•
offences in relation to the DNA database system (Division
8A
); and
•
the protection of information stored in the DNA database system (Division
11
); and
•
the destruction of forensic material (Division
8A
).
Simplified Outline substituted by No 22 of 2001, s 3 and Sch 1 item 4, effective 6 October 2001. The Simplified Outline formerly read:
Simplified outline of operation of Part
This Part provides for forensic procedures to be carried out on people who are suspects in relation to indictable offences.
In different circumstances, forensic procedures may be carried out on suspects:
•
with the informed consent of the suspect; or
•
by order of a senior constable; or
•
by order of a magistrate.
If the carrying out of a forensic procedure is authorised under this Part, it must be carried out in accordance with rules and procedures set out in Division
6
.
If a forensic procedure covered by this Part is carried out without proper authority under this Part, evidence obtained through the procedure may be inadmissible in proceedings against the suspect (Division
7
).
If a forensic procedure authorised by this Part is not carried out as required by this Part (in particular Division
6
), evidence obtained through the procedure may be inadmissible in proceedings against the suspect (Division
7
).
Division
11
provides for the taking of blood samples from people convicted of serious offences.
Division 3
-
Forensic procedures on suspect by consent
History
Div 3 heading substituted by No 22 of 2001, s 3 and Sch 1 item 38, effective 6 October 2001. The heading formerly read:
Division 3
-
Forensic procedures by consent
SECTION 23WI
Matters to be considered by constable before requesting consent to forensic procedure
(1)
The constable 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)
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
(c)
the request for consent to the forensic procedure is justified in all the circumstances; and
(d)
the person on whom the forensic procedure is proposed to be carried out is not a child or an incapable person.
History
S 23WI(1) amended by No 22 of 2001, s 3 and Sch 1 item 39, by inserting para (d), effective 6 October 2001.
(2)
In determining whether a request is justified in all the circumstances, the constable must:
(a)
if the forensic procedure has been requested by a foreign law enforcement agency
-
balance the public interest in Australia providing and receiving international assistance in criminal matters against the public interest in upholding the physical integrity of the suspect; and
(b)
in any other case
-
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.
History
S 23WI(2) substituted by No 7 of 2012, s 3 and Sch 3 item 78, effective 20 September 2012. S 23WI(2) formerly read:
(2)
In determining whether a request is justified in all the circumstances, the 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 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 health and mental health of the suspect, to the extent that they are known to the constable or can reasonably be discovered by the constable (by asking the suspect or otherwise);
(d)
(Repealed by No 171 of 2006)
(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)
any other matter considered relevant to balancing those interests.
History
S 23WI(3) amended by No 171 of 2006, s 3 and Sch 1 items 5C and 5D, by substituting
"
age, physical health and mental health
"
for
"
age, physical and mental health, cultural background and (where appropriate) religious beliefs
"
in para (c) and repealing para (d), effective 13 December 2006, but not applicable in relation to offences committed before that date. Para (d) formerly read:
(d)
if the 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 constable or can reasonably be discovered by the constable (by asking the suspect or otherwise);
(4)
Without limiting the matters that the constable may take into account in considering, for the purposes of paragraph (3)(e), the intrusiveness of the forensic procedure, the constable must (where appropriate) take into account the religious beliefs of the suspect.
History
S 23WI(4) inserted by No 171 of 2006, s 3 and Sch 1 item 5E, effective 13 December 2006, but not applicable in relation to offences committed before that date.
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