Crimes Act 1914

Part ID - Forensic procedures  

Division 3 - Forensic procedures on suspect by consent  

SECTION 23WJ   Matters that suspect must be informed of before giving consent  

(1)    
The constable must inform the suspect of the following matters:

(a) that the giving of information under this section, and the giving of consent (if any) by the suspect, is being or will be recorded by audio tape, videotape or other electronic means, or in writing, and that the suspect has a right to a copy of that record in a form provided by section 23YF ;

(b) the purpose for which the forensic procedure is required;

(c) the offence in relation to which the constable wants the forensic procedure carried out;

(d) the way in which the forensic procedure is to be carried out;

(e) that the forensic procedure may produce evidence against the suspect that might be used in a court of law;

(f) that the forensic procedure will be carried out by an appropriately qualified person;

(g) if relevant, the matters specified in subsection (2);

(h) if the constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander - that the suspect ' s interview friend may be present while the forensic procedure is carried out;

(i) that the suspect may refuse to consent to the carrying out of the forensic procedure;

(ia) the effect of section 23XZ ;

(ib) if the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency (other than an agency responsible to an international tribunal) - the following:

(i) the name of the foreign law enforcement agency that has made the request;

(ii) that forensic evidence resulting from the forensic procedure will be provided to the foreign law enforcement agency;

(iii) that the forensic evidence may be used in proceedings against the suspect in the foreign country;

(iv) that the retention of the forensic evidence will be governed by the laws of the foreign country;

(v) that the retention of the forensic evidence will be subject to undertakings given by the foreign law enforcement agency;

(vi) the content of those undertakings;

(ic) if the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency responsible to an international tribunal - the following:

(i) the name of the international tribunal for which the request was made;

(ii) that forensic evidence resulting from the forensic procedure will be provided to the agency;

(iii) that the forensic evidence may be used in proceedings against the suspect in the international tribunal;

(iv) that the retention of the forensic evidence will be governed by the rules of the international tribunal;

(v) that the retention of the forensic evidence will be subject to undertakings given by the agency;

(vi) the content of those undertakings;

(j) the consequences of not consenting, as specified in subsection (3), (4) or (5) (whichever is applicable);

(k) that information obtained from analysis of forensic material obtained may be placed on the Commonwealth DNA database system and the rules that will apply to its disclosure and use under this Part.

(2)   Suspect ' s right to have medical practitioner or dentist present during intimate forensic procedures.  

The constable must inform the suspect that the suspect may ask that a medical practitioner or dentist (depending on the kind of forensic procedure) of his or her choice be present while the forensic procedure is carried out (unless the forensic procedure is a non-intimate forensic procedure).

(3)   Failure to consent to non-intimate forensic procedure - suspect in custody.  

If the suspect is in custody and the forensic procedure is a non-intimate forensic procedure, the constable must inform the suspect that, if the suspect does not consent:

(a) a senior police officer may order the carrying out of the forensic procedure under Division 4 if he or she is satisfied of the matters referred to in subsection 23WO(1) ; or

(b) an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure.

(4)   Failure to consent to intimate forensic procedure - suspect in custody.  

If the suspect is in custody and the forensic procedure is an intimate forensic procedure, the constable must inform the suspect that, if the suspect does not consent, an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure.

Exception - requests by foreign law enforcement agency

(4A)    

Subsections (3) and (4) do not apply if the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency.

(5)   Failure to consent to forensic procedure - suspect not in custody.  

If the suspect is not in custody and is not being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency, the constable must inform the suspect that, if the suspect does not consent, an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure.

Failure to consent to forensic procedure - procedure requested by foreign law enforcement agency

(6)    

The constable must inform the suspect (whether or not the suspect is in custody) that if:

(a) the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency; and

(b) the suspect does not consent;

the Attorney-General may be requested to authorise (under an authorising provision) an authorised applicant to apply to a magistrate for an order for the carrying out of the forensic procedure.