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 6A
-
Carrying out of certain forensic procedures after conviction of serious and prescribed offenders
History
Div 6A inserted by No 22 of 2001, s 3 and Sch 1 item 56, effective 6 October 2001.
SECTION 23XWO
Judge or magistrate order for carrying out forensic procedure on offender
(1)
An authorised applicant may apply to any judge or magistrate for an order for the carrying out of an intimate forensic procedure, or a non-intimate forensic procedure, to which this Division applies on a serious offender (other than a child or an incapable person).
History
S 23XWO(1) amended by No 24 of 2012, s 3 and Sch 1 item 42, by substituting
"
for the carrying out of an intimate forensic procedure, or a non-intimate forensic procedure, to which this Division applies on a serious offender (other than a child or an incapable person)
"
for
"
directing a serious offender to consent to an intimate forensic procedure to which this Division applies being carried out on the serious offender
"
, applicable in relation to applications made under section 23XWO of the
Crimes Act 1914
on or after 5 April 2012.
(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)
(Repealed by No 24 of 2012)
(d)
whether the carrying out of the forensic procedure is justified in all the circumstances.
History
S 23XWO(7) amended by No 24 of 2012, s 3 and Sch 1 item 43, by repealing para (c), applicable in relation to orders made on or after 5 April 2012. Para (c) formerly read:
(c)
whether the carrying out of the forensic procedure could assist law enforcement, whether Federal or otherwise; and
(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.
History
S 23XWO inserted by No 22 of 2001, s 3 and Sch 1 item 56, effective 6 October 2001.
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