Crimes Act 1914
Part ID
-
Forensic procedures
•
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
).
•
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 5
-
Forensic procedures on suspect by order of a magistrate
Subdivision B
-
Final orders
SECTION 23WT
Matters to be considered by magistrate before ordering forensic procedure
(1)
The magistrate must be satisfied on the balance of probabilities that:
(a) the person on whom the procedure is proposed to be carried out is a suspect; and
(b) on the evidence before him or her, there are reasonable grounds to believe that the suspect committed a relevant offence; and
(c) there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and
(ca) if the forensic procedure has been requested by a foreign country or an international tribunal - a constable has been authorised by the Attorney-General, under the authorising provision relating to the request, to apply for an order under this Part; and
(d) the carrying out of the forensic procedure is justified in all the circumstances.
(2)
In determining whether the carrying out of the forensic procedure is justified in all the circumstances, the magistrate must:
(a) if the forensic procedure has been requested by a foreign country or an international tribunal - balance the public interest in Australia providing and receiving international assistance in criminal matters against the public interest in upholding the physical integrity of the suspect; and
(b) in any other case - balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.
(3)
In balancing those interests, the magistrate must have regard to the following matters:
(a) the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;
(b) the degree of the suspect ' s alleged participation in the commission of the relevant offence;
(c) the age, physical health and mental health of the suspect, to the extent that they are known to the magistrate or can reasonably be discovered by the magistrate (by asking the suspect or otherwise);
(d) (Repealed by No 171 of 2006)
(e) if the suspect is a child or an incapable person - the welfare of the suspect;
(f) whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence;
(g) if the suspect gives any reasons for refusing to consent - the reasons;
(h) if the suspect is in custody:
(i) any other matter considered relevant to balancing those interests.
(4)
Without limiting the matters that the magistrate may take into account in considering, for the purposes of paragraph (3)(f), the intrusiveness of the forensic procedure, the magistrate must (where appropriate) take into account the religious beliefs of the suspect.
View history note
Hide history noteSimplified 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:
The magistrate must be satisfied on the balance of probabilities that:
(a) the person on whom the procedure is proposed to be carried out is a suspect; and
(b) on the evidence before him or her, there are reasonable grounds to believe that the suspect committed a relevant offence; and
(c) there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and
(ca) if the forensic procedure has been requested by a foreign country or an international tribunal - a constable has been authorised by the Attorney-General, under the authorising provision relating to the request, to apply for an order under this Part; and
(d) the carrying out of the forensic procedure is justified in all the circumstances.
(2)
In determining whether the carrying out of the forensic procedure is justified in all the circumstances, the magistrate must:
(a) if the forensic procedure has been requested by a foreign country or an international tribunal - balance the public interest in Australia providing and receiving international assistance in criminal matters against the public interest in upholding the physical integrity of the suspect; and
(b) in any other case - balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.
(3)
In balancing those interests, the magistrate must have regard to the following matters:
(a) the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;
(b) the degree of the suspect ' s alleged participation in the commission of the relevant offence;
(c) the age, physical health and mental health of the suspect, to the extent that they are known to the magistrate or can reasonably be discovered by the magistrate (by asking the suspect or otherwise);
(d) (Repealed by No 171 of 2006)
(e) if the suspect is a child or an incapable person - the welfare of the suspect;
(f) whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence;
(g) if the suspect gives any reasons for refusing to consent - the reasons;
(h) if the suspect is in custody:
(i) the period for which the suspect has already been detained; and
(ii) the reasons for any delay in proposing the carrying out of the forensic procedure;
(i) any other matter considered relevant to balancing those interests.
(4)
Without limiting the matters that the magistrate may take into account in considering, for the purposes of paragraph (3)(f), the intrusiveness of the forensic procedure, the magistrate must (where appropriate) take into account the religious beliefs of the suspect.
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