Crimes Act 1914
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View history notePart 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:
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:
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.
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
This section applies where:
(a) a constable intends to ask a suspect to consent to a forensic procedure; and
(b) the constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander.
(2)
A suspect not covered by section 23WE gives informed consent to a forensic procedure if the suspect consents after a constable:
(a) asks the suspect to consent to the forensic procedure under section 23WH ; and
(b) informs the suspect, in accordance with the regulations and section 23WJ , of the matters mentioned in that section; and
(c) complies with the rest of this section.
S 23WG(2) amended by No 24 of 2012, s 3 and Sch 1 item 77, by substituting para (b), applicable in relation to the giving of informed consent on or after 4 October 2012. Para (b) formerly read:
(b) informs the suspect about the forensic procedure in accordance with section 23WJ ; and
(3)
The constable must not ask the suspect to consent to the forensic procedure unless:
(a) an interview friend is present; or
(b) the suspect has expressly and voluntarily waived his or her right to have an interview friend present; or
(c) the constable is a senior police officer and he or she 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 request to consent by comparison with members of the Australian community generally.
Note:
Section 23YK relates to proving a waiver under paragraph (3)(b) of this section.
S 23WG(3) amended by No 24 of 2012, s 3 and Sch 1 item 10, by substituting " senior police officer " for " senior constable " in para (c), effective 5 April 2012.
(4)
Before asking the suspect to consent to a forensic procedure, the constable must:
(a) inform the suspect that a representative of an Aboriginal legal assistance organisation will be notified that the suspect is to be asked to consent to a forensic procedure; and
(b) notify such a representative that the suspect is to be asked to consent to a forensic procedure.
S 23WG(4) amended by No 75 of 2018, s 3 and Sch 2 item 15, by substituting para (a) and (b), effective 25 August 2018. Para (a) and (b) formerly read:
(a) inform the suspect that a representative of an Aboriginal legal aid organisation will be notified that the suspect is to be asked to consent to a forensic procedure; and
(b) notify such a representative accordingly.
(5)
The constable is not required to comply with subsection (4) if:
(a) he or she is aware that the suspect has arranged for a legal practitioner to be present while the suspect is asked to consent to the forensic procedure; or
(b) paragraph (3)(b) or (c) applies.
(6)
After asking a suspect covered by paragraph (3)(b) or (c) to consent to a forensic procedure, the constable must give the suspect a reasonable opportunity to communicate, or attempt to communicate, with a legal practitioner of the suspect's choice and, subject to subsection (8), to do so in private.
(7)
After asking a suspect not covered by paragraph (3)(b) or (c) to consent to a forensic procedure, the constable must allow the suspect to communicate with the interview friend (if any), and with the suspect's legal representative (if any), and, subject to subsection (8), to do so in private.
(8)
If a suspect covered by subsection (6) or (7) is in custody, the constable need not allow the suspect to communicate, or attempt to communicate, with a legal practitioner, or the suspect's interview friend or legal representative, in private if the constable suspects on reasonable grounds that the suspect might attempt to destroy or contaminate any evidence that might be obtained by carrying out the forensic procedure.
(9)
An interview friend (other than a legal representative) of the suspect may be excluded from the presence of the constable and the suspect if the interview friend unreasonably interferes with or obstructs the constable in asking the suspect to consent to the forensic procedure, or in informing the suspect as required by section 23WJ .
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