Crimes Act 1914

Part ID - Forensic procedures  

Division 3 - Forensic procedures on suspect by consent  

SECTION 23WG   Informed consent to forensic procedures - Aboriginal persons and Torres Strait Islanders  

(1)    
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.

(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.

(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.

(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 .