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 23XWJ
Matters that offender must be informed of before giving consent
(1)
The constable must inform the offender of the following:
(a)
the purpose for which the forensic procedure is required;
(b)
if the constable wants the forensic procedure carried out in relation to an offence
-
the offence concerned;
(c)
the way in which the forensic procedure is to be carried out;
(d)
that the forensic procedure may produce evidence against the offender that might be used in a court of law;
(e)
that the forensic procedure will be carried out by a person who may carry out the procedure under Division
6
as applied by section
23XWE
;
Note:
See section
23XM
.
(f)
if the forensic procedure is the taking of a sample of blood, that the offender may request that:
(i)
if the offender is serving a sentence of imprisonment in a prison or other place of detention
-
the prison medical officer be present while the blood is taken; or
(ii)
if the offender is not serving a sentence of imprisonment
-
a medical practitioner of the offender's choice be present while the blood is taken;
(g)
that the offender may refuse consent to the carrying out of the forensic procedure;
(h)
the consequences of not consenting, as specified in subsection (2) or (3) (whichever is applicable);
(i)
the effect of section
23XZ
(if applicable);
(j)
that information obtained from analysis of forensic material obtained may be placed on the Commonwealth DNA database system and used for the purposes of a criminal investigation or for any other purpose for which the Commonwealth DNA database system may be used under Division
8A
.
History
S 23XWJ(1) amended by No 130 of 2006, s 3 and Sch 1 item 8, by substituting
"
Commonwealth DNA database system
"
for
"
DNA database system
"
(wherever occurring), 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).
(2)
Effect of failure to consent to non-intimate forensic procedure.
The constable must inform a serious offender requested to undergo a non-intimate forensic procedure to which this Division applies or a prescribed offender requested to consent to the taking of his or her fingerprints that, if the offender does not consent, a constable may order the carrying out of the forensic procedure under section
23XWK
if the constable has taken into account the matters set out in section
23XWL
.
(3)
Effect of failure to consent to intimate forensic procedure.
The constable must inform a serious offender requested to undergo an intimate forensic procedure to which this Division applies that, if the serious offender does not consent, an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure.
History
S 23XWJ inserted by No 22 of 2001, s 3 and Sch 1 item 56, effective 6 October 2001.
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