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 5
-
Forensic procedures on suspect by order of a magistrate
History
Div 5 heading substituted by No 22 of 2001, s 3
and Sch 1 item 43, effective 6 October 2001. The heading formerly read:
Division 5
-
Forensic
procedures by order of a magistrate
Subdivision B
-
Final orders
SECTION 23WX
Procedure at hearing of application for order
(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.
History
S 23WX(6) and (6A) substituted for s 23WX(6) by No 22 of 2001, s 3 and
Sch 1 item 45, effective 6 October 2001. S 23WX(6) formerly read:
(6)
The
suspect or his or her representative:
(a)
may
call or cross-examine any witnesses; and
(b)
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.
History
S 23WX(6) ad (6A) substituted for s 23WX(6) by No 22 of 2001, s 3 and
Sch 1 item 45, effective 6 October 2001.
(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.
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