Crimes Legislation Amendment (Powers and Offences) Act 2012 (24 of 2012)

Schedule 1   Forensic procedures

Part 1   Amendments commencing on day after Royal Assent

Crimes Act 1914

44   After section 23XWO

Insert:

23XWOA Securing the presence of offender at hearing - offender in custody

(1) If:

(a) an application is made under section 23XWO to a judge or magistrate for an order under that section for the carrying out of a forensic procedure on an offender; and

(b) the offender is in custody or is otherwise detained under a law of the Commonwealth, a State or a Territory ( original custody );

the judge or magistrate may, on the application of a constable, issue a warrant directing the person holding the offender to deliver the offender into the custody ( temporary custody ) of the constable for the hearing of the application.

(2) If the judge or magistrate refuses to make the order under section 23XWO, the constable given temporary custody of the offender must return the offender to the place of original custody without delay.

(3) If the judge or magistrate makes the order under section 23XWO, the judge or magistrate may:

(a) order the constable given temporary custody of the offender:

(i) to convey the offender to the nearest premises where facilities for carrying out the procedure in accordance with this Part are available to that constable; and

(ii) to return the offender to the place of original custody without delay after the procedure is carried out; or

(b) order the constable given temporary custody of the offender to return the offender to the place of original custody without delay.

23XWOB Securing the presence of offender at hearing - offender not in custody

(1) If:

(a) an application is made under section 23XWO to a judge or magistrate for an order for the carrying out of a forensic procedure on an offender; and

(b) the offender is neither in custody nor detained under a law of the Commonwealth, a State or a Territory;

the judge or magistrate may, on the application of a constable:

(c) issue a summons for the appearance of the offender at the hearing of the application; or

(d) issue a warrant for the arrest of the offender for the purpose of bringing the offender before the judge or magistrate for the hearing of the application.

(2) An application for a summons under subsection (1) must be:

(a) made by information on oath or affirmation; and

(b) accompanied by an affidavit dealing with matters referred to in paragraphs (3)(a) and (b).

(3) The judge or magistrate may issue a summons only if satisfied:

(a) that the issue of the summons is necessary to ensure the appearance of the offender at the hearing of the application made under section 23XWO; or

(b) that the issue of the summons is otherwise justified.

(4) An application for a warrant under subsection (1) must be:

(a) made by information on oath or affirmation; and

(b) accompanied by an affidavit dealing with matters referred to in paragraphs (5)(a), (b) and (c).

(5) The judge or magistrate may issue a warrant only if satisfied:

(a) that the arrest is necessary to ensure the appearance of the offender at the hearing of the application made under section 23XWO, and that the issue of a summons would not ensure that appearance; or

(b) that the offender might destroy evidence that might be obtained by carrying out the forensic procedure; or

(c) that the issue of the warrant is otherwise justified.