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 6
-
Carrying out forensic procedures on suspects
History
Div 6 heading substituted by No 22 of 2001, s 3
and Sch 1 item 46, effective 6 October 2001. The heading formerly read:
Division 6
-
Carrying
out forensic procedures
Subdivision F
-
Procedure after forensic procedure is carried
out
SECTION 23XUA
Samples
-
insufficient material to share
(1)
This section applies to a sample taken from a suspect under this Part if:
(a)
there is not sufficient material to be analysed both in the investigation of the offence and on behalf of the suspect; and
(b)
the material does not need to be analysed immediately after the sample is taken.
(2)
The suspect is entitled to request the investigating constable that a person (the
attendee
) of the suspect
'
s choice be present while the material is analysed in the investigation of the offence.
Note:
Section
23YE
provides that the request may be made by the suspect's legal representative or interview friend.
History
S 23XUA(2) amended by No 24 of 2012, s 3 and Sch 1 item 28, by substituting
"
request the investigating constable that a person (the
attendee
) of the suspect
'
s
"
for
"
request that a person of his or her
"
, applicable in relation to samples taken under Part
ID
of the
Crimes Act 1914
on or after 5 April 2012.
(2A)
The investigating constable must then inform the suspect that the attendee may be directed by the person (the
analyst
) responsible for analysing the material to leave the premises at which the analysis is being conducted if the attendee does not comply with instructions given by the analyst in relation to the analysis of the material.
History
S 23XUA(2A) inserted by No 24 of 2012, s 3 and Sch 1 item 29, applicable in relation to samples taken under Part
ID
of the
Crimes Act 1914
on or after 5 April 2012.
(3)
Subject to this section, the attendee is to be present at the analysis of the material unless he or she:
(a)
is unable, or does not wish, to attend; or
(b)
cannot be contacted;
within a reasonable time or, if relevant, within the time in which the analyst considers the analysis should be carried out if it is to provide valid results.
History
S 23XUA(3) amended by No 24 of 2012, s 3 and Sch 1 items 30 and 31, by substituting
"
Subject to this section, the attendee
"
for
"
The person chosen
"
and
"
analyst
"
for
"
person responsible for analysing the material
"
, applicable in relation to samples taken under Part
ID
of the
Crimes Act 1914
on or after 5 April 2012.
(4)
The analyst may give instructions to the attendee relating to the analysis of the material.
History
S 23XUA(4) inserted by No 24 of 2012, s 3 and Sch 1 item 32, applicable in relation to samples taken under Part
ID
of the
Crimes Act 1914
on or after 5 April 2012.
(5)
The analyst may give a direction to the attendee to leave the premises at which the analysis is being conducted if the attendee fails to comply with such an instruction.
History
S 23XUA(5) inserted by No 24 of 2012, s 3 and Sch 1 item 32, applicable in relation to samples taken under Part
ID
of the
Crimes Act 1914
on or after 5 April 2012.
(6)
If the analyst gives such a direction, the analyst must inform the attendee that a failure to comply with the direction is an offence against subsection (7). A failure to comply with this subsection does not affect the validity of the direction.
History
S 23XUA(6) inserted by No 24 of 2012, s 3 and Sch 1 item 32, applicable in relation to samples taken under Part
ID
of the
Crimes Act 1914
on or after 5 April 2012.
(7)
The attendee commits an offence if:
(a)
the attendee is given a direction under subsection (5); and
(b)
the attendee fails to comply with the direction.
Penalty: 30 penalty units.
History
S 23XUA(7) inserted by No 24 of 2012, s 3 and Sch 1 item 32, applicable in relation to samples taken under Part
ID
of the
Crimes Act 1914
on or after 5 April 2012.
(8)
An offence against subsection (7) is an offence of strict liability.
Note:
For strict liability, see section
6.1
of the
Criminal Code
.
History
S 23XUA(8) inserted by No 24 of 2012, s 3 and Sch 1 item 32, applicable in relation to samples taken under Part
ID
of the
Crimes Act 1914
on or after 5 April 2012.
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