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Crimes Act 1914

Part ID - Forensic procedures  

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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 ).

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    Division 6B - Carrying out of forensic procedures on volunteers and certain other persons  

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    SECTION 23XWV   Retention of forensic material by order of a magistrate after volunteer, parent or guardian of child or incapable person withdraws consent  

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    (1)    
    An authorised applicant may apply to a magistrate for an order under subsection (2).

    (2)    

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    Subject to subsection (2A), a magistrate may order that forensic material taken or information obtained from carrying out a forensic procedure on a volunteer who withdraws consent, or parent or guardian of a volunteer who withdraws consent, as the case may be, to the retention of the material be retained if the magistrate is satisfied that:


    (a) during an investigation into the commission of a serious offence, material reasonably believed to be from the body of a person who committed the offence had been found:


    (i) at the scene of the offence; or

    (ii) on the victim of the offence or anything reasonably believed to have been worn or carried by the victim when the offence was committed; or

    (iii) on the volunteer or anything reasonably believed to have been worn or carried by the volunteer at the scene of the offence or when the offence was committed; or

    (iv) on an object or person reasonably believed to have been associated with the commission of the offence; and


    (b) there are reasonable grounds to believe that information obtained from analysis of the forensic material taken from the volunteer is likely to produce evidence of probative value in relation to the serious offence being investigated; and


    (c) the retention of the forensic material taken from the volunteer is justified in all the circumstances.

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    (2A)    

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    Despite subsection (2), a magistrate may not make an order if:


    (a) the volunteer was asked to undergo a forensic procedure because of a request by a foreign law enforcement agency; and


    (b) the forensic evidence has already been provided to the foreign law enforcement agency.

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    (3)    
    The order may specify the period for which the forensic material taken or information obtained from carrying out the procedure may be retained.

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