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 8
-
Destruction of forensic material
SECTION 23YD
Destruction of forensic material after 12 months
(1)
This section applies where forensic material has been taken from a suspect by a forensic procedure carried out under this Part (except section Divisions
6A
and
6B
).
History
S 23YD(1) amended by No 22 of 2001, s 3 and Sch 1 item 61, by substituting ``Divisions 6A and 6B'' for ``section 23YQ'', effective 6 October 2001.
(2)
If:
(a)
a period of 12 months has elapsed since the forensic material was taken; and
(b)
proceedings in respect of a relevant offence have not been instituted against the suspect, or have been discontinued;
the forensic material must be destroyed as soon as practicable unless a warrant for apprehension of the suspect has been issued.
History
S 23YD(2) amended by No 22 of 2001, s 3 and Sch 1 item 62, by inserting ``unless a warrant for apprehension of the suspect has been issued'' at the end, effective 6 October 2001.
(3)
If:
(a)
the suspect is found to have committed a relevant offence but no conviction is recorded; or
(b)
the suspect is acquitted of such an offence and:
(i)
no appeal is lodged against the acquittal; or
(ii)
an appeal is lodged against the acquittal and the acquittal is confirmed or the appeal is withdrawn;
the forensic material must be destroyed as soon as practicable unless an investigation into, or a proceeding against the suspect for, another relevant offence is pending.
(4)
If a warrant for the apprehension of the suspect is issued during the period of 12 months after forensic material is taken, the forensic material must be destroyed as soon as practicable after:
(a)
the warrant lapses; or
(b)
a period of 12 months elapses after the suspect is apprehended.
History
S 23YD(4), (5), (6), (7) and (8) substituted for s 23YD(4) by No 22 of 2001, s 3 and Sch 1 item 63, effective 6 October 2001.S 23YD(4) formerly read:
(4)
A magistrate may, on application by a constable or the Director of Public Prosecutions, extend the period of 12 months referred to in subsection (2), or that period as previously extended under this subsection in relation to particular forensic material, if the magistrate is satisfied that there are special reasons for doing so.
Note:
Division
10
contains provisions restricting the use of information obtained as a result of the carrying out of a forensic procedure.
(5)
A magistrate may, on application by a constable or the Director of Public Prosecutions, extend for a period not exceeding 12 months the period for which forensic material may be retained under this section, if the magistrate is satisfied there are special reasons for doing so.
History
S 23YD(4), (5), (6), (7) and (8) substituted for s 23YD(4) by No 22 of 2001, s 3 and Sch 1 item 63, effective 6 October 2001.
(6)
A magistrate to whom an application is made under subsection (5) is not to extend the period unless:
(a)
the person from whom the forensic material was taken has been notified by the applicant for the extension that the application has been made; and
(b)
the person or his or her legal representative or interview friend (if any) has been given the opportunity to speak to or make a submission to the magistrate concerning the extension.
History
S 23YD(4), (5), (6), (7) and (8) substituted for s 23YD(4) by No 22 of 2001, s 3 and Sch 1 item 63, effective 6 October 2001.
(7)
An extension in relation to particular forensic material may be given on more than one occasion.
History
S 23YD(4), (5), (6), (7) and (8) substituted for s 23YD(4) by No 22 of 2001, s 3 and Sch 1 item 63, effective 6 October 2001.
(8)
The magistrate is to ensure that the responsible person in relation to the Commonwealth DNA database system is notified of any extension given under this section.
History
S 23YD(8) amended by No 130 of 2006, s 3 and Sch 1 item 11, by substituting
"
Commonwealth DNA database system
"
for
"
DNA database system
"
, 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).
S 23YD(4), (5), (6), (7) and (8) substituted for s 23YD(4) by No 22 of 2001, s 3 and Sch 1 item 63, effective 6 October 2001.
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