CRIMES ACT 1914

Part ID - 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 ).
  • Division 1 - Explanation of expressions used  

    SECTION 23WA   Definitions  

    (1)  


    In this Part:

    Aboriginal legal aid organisation
    (Repealed by No 75 of 2018)

    Aboriginal legal assistance organisation
    has the same meaning as in Part IC .

    accredited laboratory
    means:


    (a) a forensic laboratory accredited by the National Association of Testing Authorities, Australia; or


    (b) a forensic laboratory that is of a kind prescribed by the regulations for the purposes of this paragraph.

    adult
    means a person of or above 18 years of age.

    AFP function
    means a function of the Australian Federal Police set out in section 8 of the Australian Federal Police Act 1979 .

    appropriately qualified
    , in relation to carrying out a forensic procedure, means:


    (a) having suitable professional qualifications or experience to carry out the forensic procedure; or


    (b) qualified under the regulations to carry out the forensic procedure.

    authorised applicant
    for an order for the carrying out of a forensic procedure means:


    (a) if the procedure will be carried out on a suspect - the constable in charge of a police station or the investigating constable in relation to a relevant offence; or


    (b) if the procedure will be carried out on an offender - the constable in charge of a police station, the investigating constable in relation to a relevant offence or the Director of Public Prosecutions.

    authorising provision
    , in relation to a request by a foreign country or international tribunal, means whichever of the following provisions that refers to the request:


    (a) section 28B of the Mutual Assistance in Criminal Matters Act 1987 ;


    (b) section 76A of the International Criminal Court Act 2002 ;


    (c) section 32B of the International War Crimes Tribunals Act 1995 .

    child
    means a person who is at least 10 years of age but under 18 years of age.

    Commissioner
    means the Commissioner of the Australian Federal Police and includes a constable or AFP appointee (within the meaning of the Australian Federal Police Act 1979 ) to whom the Commissioner has delegated the functions and powers conferred or imposed on the Commissioner under this Act.

    Note:

    See section 23YQ for the Commissioner ' s power to delegate.

    Commonwealth DNA database system
    is defined in section 23YDAC .

    corresponding law
    is defined in section 23YUA .

    crime within the jurisdiction of the ICC
    has the same meaning as in the International Criminal Court Act 2002 .

    destroy
    is defined in subsection (5).

    DNA database system
    (Repealed by No 130 of 2006)

    exercise a function
    includes perform a duty.

    foreign law enforcement agency
    means:


    (a) a police force (however described) of a foreign country; or


    (b) any other authority or person responsible for the enforcement of the laws of the foreign country; or


    (c) any other authority or person responsible to the ICC for investigating or prosecuting a crime within the jurisdiction of the ICC; or


    (d) any other authority or person responsible to a War Crimes Tribunal for investigating or prosecuting a War Crimes Tribunal offence.

    foreign serious offence
    means:


    (a) a foreign serious offence (within the meaning of the Mutual Assistance in Criminal Matters Act 1987 ); or


    (b) a crime within the jurisdiction of the ICC; or


    (c) a War Crimes Tribunal offence.

    forensic evidence
    means one or more of the following:


    (a) evidence of forensic material, or evidence consisting of forensic material, taken from a suspect or a volunteer by a forensic procedure;


    (b) evidence of any results of the analysis of the forensic material;


    (c) any other evidence obtained as a result of or in connection with the carrying out of the forensic procedure.

    forensic material
    means:


    (a) samples; or


    (b) hand prints, finger prints, foot prints or toe prints; or


    (c) photographs or video recordings; or


    (d) casts or impressions;

    taken from or of a person ' s body by a forensic procedure.

    forensic procedure
    means:


    (a) an intimate forensic procedure; or


    (b) a non-intimate forensic procedure;

    but does not include any intrusion into a person ' s body cavities except the mouth or the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken.

    function
    includes a power, authority or duty.

    ICC
    has the same meaning as in the International Criminal Court Act 2002 .

    incapable person
    means an adult who:


    (a) is incapable of understanding the general nature and effect of, and purposes of carrying out, a forensic procedure; or


    (b) is incapable of indicating whether he or she consents or does not consent to a forensic procedure being carried out.

    in custody
    is explained in subsection (2).

    indictable offence
    means:


    (a) an indictable offence against a law of the Commonwealth; or


    (b) a State offence that has a federal aspect and that is an indictable offence against the law of that State.

    inform
    is explained in subsection (4).

    informed consent
    is explained in sections 23WF , 23WG , 23XWG and 23XWR .

    international tribunal
    means:


    (a) the ICC; or


    (b) a War Crimes Tribunal.

    interview friend
    is explained in section 23WB .

    intimate forensic procedure
    means the following forensic procedures:


    (a) an external examination of the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;


    (b) the taking of a sample of blood (other than by a finger prick);


    (c) (Repealed by No 24 of 2012)


    (d) the taking of a sample of pubic hair;


    (e) 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 or a transgender person who identifies as a female, the breasts;


    (f) the taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;


    (g) the taking of a dental impression;


    (h) the taking of a photograph or 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 or a transgender person who identifies as a female, the breasts.

    investigating constable
    means:


    (a) in the case of a request by a foreign country, an international tribunal or a foreign law enforcement agency - the constable in charge of coordinating the response to the request; and


    (b) in any other case - the constable in charge of the investigation of the commission of an offence in relation to which a forensic procedure is carried out or proposed to be carried out.

    judge
    means a State or Territory judge.

    legal representative of a suspect
    means a legal practitioner acting for the suspect.

    member of the opposite sex of a person
    is defined in subsection (7).

    member of the same sex as a person
    is defined in subsection (7).

    National Criminal Investigation DNA Database
    or NCIDD is defined in section 23YDAC .

    non-intimate forensic procedure
    means the following forensic procedures:


    (a) an examination of a part of the body other than the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts, that requires touching of the body or removal of clothing;


    (aa) the taking of a sample of blood by a finger prick;


    (ab) the taking of a sample of saliva, or a sample by buccal swab;


    (b) the taking of a sample of hair other than pubic hair;


    (c) the taking of a sample from a nail or under a nail;


    (d) 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 or a transgender person who identifies as a female, the breasts;


    (e) the taking of a sample by vacuum suction, by scraping or by 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 or a transgender person who identifies as a female, the breasts;


    (f) the taking of a hand print, finger print, foot print or toe print;


    (g) the taking of a photograph or video recording of, or an impression or cast of a wound from, a part of the body other than the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts.

    offence
    does not include an offence against a law of a Territory other than the Australian Capital Territory.

    Note:

    Subsection 3(1) provides that Territory does not include the Northern Territory.

    offender
    means:


    (a) a serious offender; or


    (b) a prescribed offender.

    order
    means:


    (a) in relation to a suspect - an order of a magistrate under section 23WS or interim order of a magistrate under section 23XA ; or


    (b) in relation to an offender - an order of a judge or magistrate under section 23XWO ; or


    (c) in relation to a volunteer - an order of a magistrate under section 23XWU .

    parent
    (Repealed by No 144 of 2008)

    participating jurisdiction
    is defined in section 23YUA .

    police station
    includes:


    (a) a police station of a State or Territory; and


    (b) a building occupied by the Australian Federal Police.

    prescribed offence
    means an offence under a law of the Commonwealth, or a State offence that has a federal aspect, punishable by a maximum penalty of imprisonment for life or 2 or more years.

    prescribed offender
    means a person who is under sentence for a prescribed offence.

    Note:

    For the meaning of under sentence , see subsection (8).

    prison medical officer
    means, in relation to a prison or other place of detention, a person appointed or acting as medical officer for the prison or other place of detention.

    recognised transgender person
    means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 of New South Wales, or under the corresponding provisions of a law of another Australian jurisdiction.

    relevant offence
    means:


    (a) in relation to a person who is a suspect:


    (i) the indictable offence in relation to which the person is a suspect; or

    (ii) any other indictable offence arising out of the same circumstances; or

    (iii) any other indictable offence in respect of which the evidence likely to be obtained as a result of a proposed forensic procedure carried out on the suspect is likely to have probative value; or


    (b) in relation to an offender - the offence for which the offender was convicted and to which an application for an order authorising a forensic procedure relates.

    request
    , by a foreign country, international tribunal or foreign law enforcement agency, means:


    (a) in the case of a foreign country - a request, referred to in section 28B of the Mutual Assistance in Criminal Matters Act 1987 , by the country; or


    (b) in the case of an international tribunal:


    (i) a request referred to in section 76A of the International Criminal Court Act 2002 , if the tribunal is the ICC; or

    (ii) a request referred to in section 32B of the International War Crimes Tribunals Act 1995 , if the tribunal is a War Crimes Tribunal; or


    (c) in the case of a foreign law enforcement agency - a request, to which Subdivision B of Division 9A applies, by the agency.

    responsible person
    , in relation to the Commonwealth DNA database system, means the person responsible for the care, control and management of the system.

    sample
    has a meaning affected by subsection (3).

    senior constable
    (Repealed by No 24 of 2012)

    senior police officer
    means a constable of the rank of sergeant or higher.

    serious offence
    means an offence under a law of the Commonwealth, or a State offence that has a federal aspect, punishable by a maximum penalty of imprisonment for life or 5 or more years.

    serious offender
    means a person who is under sentence for a serious offence.

    Note:

    For the meaning of under sentence , see subsection (8).

    suspect
    , in relation to an indictable offence, means:


    (a) a person whom a constable suspects on reasonable grounds has committed the indictable offence; or


    (b) a person charged with the indictable offence; or


    (c) a person who has been summonsed to appear before a court in relation to the indictable offence; or


    (d) a person for whom a forensic procedure has been requested by a foreign country, international tribunal or a foreign law enforcement agency because that country, tribunal or agency has:


    (i) started investigating whether the person has committed an indictable offence; or

    (ii) started proceedings against the person for an indictable offence.

    tape recording
    means audio recording, video recording or recording by other electronic means.

    transgender person
    is defined in subsection (6).

    volunteer
    is defined in section 23XWQ .

    War Crimes Tribunal
    has the same meaning as Tribunal in the International War Crimes Tribunals Act 1995 .

    War Crimes Tribunal offence
    has the same meaning as Tribunal offence in the International War Crimes Tribunals Act 1995 .

    (2)  
    In this Part, a person is in custody if he or she is in the lawful custody of a constable.

    (3)  
    In this Part, a sample taken from a person includes a sample taken from the person that consists of matter from another person ' s body.

    (4)  
    In this Part, a person informs another person of a matter if the person informs the other person of the matter, through an interpreter if necessary, in a language (including sign language or braille) in which the other person is able to communicate with reasonable fluency.

    (5)   Destroy forensic material or information.  

    For the purposes of this Part, a person destroys forensic material taken from another person by a forensic procedure, the results of the analysis of the material or other information gained from it if the person destroys any means of identifying the forensic material or information with the person from whom it was taken or to whom it relates.

    (6)   Transgender persons.  

    In this Part, a reference to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person:


    (a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex; or


    (b) who has identified as a member of the opposite sex by living as a member of the opposite sex; or


    (c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex;

    and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.

    (7)  


    In this Part (other than subsection (6)), a reference:


    (a) to a member of the opposite sex of a person means, if the person is a transgender person, a member of the opposite sex to the sex with which the transgender person identifies; and


    (b) to a member of the same sex as a person means, if the person is a transgender person, a member of the same sex as the sex with which the transgender person identifies.

    (8)  


    For the purposes of the definitions of prescribed offender and serious offender , a person is under sentence in relation to a prescribed offence or a serious offence if the person:


    (a) is serving a sentence in a prison (including a gaol, lock-up or other place of detention); or


    (b) is serving a sentence of a kind, or subject to an order of a kind, provided for in subsection 20AB(1) as a sentence or order that may be passed or made by a court, under that section, in respect of a person convicted of an offence against the law of the Commonwealth; or


    (c) is released under a parole order made under subsection 19AL(1) or (2) ; or


    (d) is released on a licence granted under section 19AP ; or


    (e) being a child or young person, is serving a sentence of a kind, or subject to an order of a kind, provided for in subsection 20C as a sentence or order that, under that section, may be imposed on the child or young person who in a State or Territory is convicted of an offence against the law of the Commonwealth; or


    (f) is subject to an order made under Division 9 of Part IB; or


    (g) is convicted and conditionally released as provided for in subsection 20(1) , either:


    (i) in the case of paragraph 20(1)(a) - without sentence being passed; or

    (ii) in the case of paragraph 20(1)(b) - after sentence has been passed.
    Requests by a foreign country, international tribunal or foreign law enforcement agency

    (9)  


    The provisions of this Part apply in relation to a forensic procedure carried out because of a request by a foreign country, international tribunal or foreign law enforcement agency, as if a reference to an indictable offence were a reference to a foreign serious offence.



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