Part ID
-
Forensic procedures
History
Part 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:
•
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
).
History
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.
Division 6A
-
Carrying out of certain forensic procedures after conviction of serious and prescribed offenders
History
Div 6A inserted by No 22 of 2001, s 3 and Sch 1 item 56, effective 6 October 2001.
SECTION 23XWP
Carrying out forensic procedure following conviction
(1)
If:
(a)
an offender is in prison or another place of detention; and
(b)
a judge or magistrate orders the carrying out of a forensic procedure under this Division on the offender;
the judge or magistrate may order that a constable and a Division 6 person be permitted to attend on the offender in the prison or place of detention to allow the forensic procedure to be carried out.
History
S 23XWP(1) amended by No 24 of 2012, s 3 and Sch 1 item 45, by substituting
"
carrying out of a forensic procedure under this Division on the offender
"
for
"
offender to permit a forensic procedure to be carried out under this Division
"
in para (b), applicable in relation to orders made on or after 5 April 2012.
(2)
In subsection (1),
Division 6 person
means a person who, under Division
6
as applied by section
23XWE
, may carry out the forensic procedure.
(3)
If a judge or magistrate orders the carrying out of a forensic procedure under this Division on an offender who is not in a prison or another place of detention, the judge or magistrate may order the offender to attend at a police station (or other place specified by the judge or magistrate) within a period specified by the judge or magistrate to allow the forensic procedure to be carried out.
History
S 23XWP(3) amended by No 24 of 2012, s 3 and Sch 1 item 46, by substituting
"
the carrying out of a forensic procedure under this Division on an offender who is not in a prison or another place of detention
"
for
"
an offender who is not in a prison or another place of detention to permit a forensic procedure to be carried out
"
, applicable in relation to orders made on or after 5 April 2012.
(4)
If a judge or magistrate orders the carrying out of a forensic procedure under this Division on an offender, the offender commits an offence if the offender, without reasonable excuse, refuses or fails to permit the forensic procedure to be carried out.
Penalty: Imprisonment for 12 months.
Note:
A defendant bears the evidential burden in relation to the exception of reasonable excuse
-
see subsection
13.3(3)
of the
Criminal Code
.
History
S 23XWP(4) amended by No 4 of 2016, s 3 and Sch 4 items 1 and 75, by substituting
"
commits
"
for
"
is guilty of
"
, effective 10 March 2016.
S 23XWP(4) amended by No 24 of 2012, s 3 and Sch 1 item 47, by substituting
"
If a judge or magistrate orders the carrying out of a forensic procedure under this Division on an offender, the offender
"
for
"
An offender ordered to permit the carrying out of a forensic procedure
"
, applicable in relation to orders made on or after 5 April 2012.
History
S 23XWP inserted by No 22 of 2001, s 3 and Sch 1 item 56, effective 6 October 2001.
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