(6) If the applicant’s record does not, in all material respects, accord with the magistrate’s record, the order is taken to have had no effect.
23XF Suspect may be prevented from destroying or contaminating evidence
(1) A constable may, while waiting for the application seeking an interim order to be determined, use reasonable force to prevent the suspect destroying or contaminating any evidence that might be obtained by carrying out the forensic procedure if the order is made.
(2) Nothing in this section authorises any person to carry out a forensic procedure before an interim order is made.
23XG Results of forensic procedure carried out under interim order
(1) A sample taken under an interim order must not be analysed unless:
(a) the sample is likely to perish before a final order is made; or
(b) a final order is made.
(2) A person who conducts an analysis in the circumstances set out in paragraph (1)(a) must not intentionally disclose the results of the analysis to any person:
(a) during the period before a final order is made; or
(b) if the interim order is disallowed.
Penalty for a contravention of subsection (2): Imprisonment for 12 months.
Subdivision D—Time limits for forensic procedures ordered by magistrates
23XGA Application
This Subdivision applies where a magistrate orders the carrying out of a forensic procedure on a suspect under this Part.
23XGB Time for carrying out forensic procedure—suspect not in custody
(1) If a suspect who is not in custody presents himself or herself to the investigating constable to undergo the procedure ordered by the magistrate, the procedure must be carried out as quickly as reasonably possible but in any case within the following period:
(a) if the suspect is a child or an incapable person, or the investigating constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander—2 hours after the suspect so presents himself or herself;
(b) in any other case—4 hours after the suspect so presents himself or herself.
(2) In working out any period of time for the purposes of subsection (1), the following times are to be disregarded:
(a) the time (if any) that is reasonably required to convey the suspect from the place where the suspect presents himself or herself to the investigating constable to the nearest premises where facilities for carrying out the procedure in accordance with this Part are available to the investigating constable;
(b) any time during which carrying out the procedure is suspended or delayed to allow the suspect, or someone else on the suspect’s behalf, to communicate with a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person as provided by this Part;
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(c) any time during which carrying out the procedure is suspended or delayed to allow such a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person to arrive at the place where the procedure is to be carried out;
(d) any time during which carrying out the procedure is suspended or delayed to allow the suspect to receive medical attention;
(e) any time during which carrying out the procedure is suspended or delayed because of the suspect’s intoxication;
(f) any reasonable time during which carrying out the procedure is suspended or delayed to allow the suspect to rest or recuperate;
(g) any time during which carrying out the procedure is suspended or delayed at the request of the suspect.
23XGC Arrest of suspect not in custody
(1) If the suspect is not in custody, the magistrate may, on the application of a constable, issue a warrant for the arrest of the suspect for the purpose of carrying out the forensic procedure.
(2) An application for a warrant must be:
(a) made by information on oath; and
(b) accompanied by an affidavit dealing with matters referred to in paragraphs (3)(a) and (b).
(3) The magistrate may issue a warrant only if satisfied:
(a) that the arrest is necessary to ensure that the forensic procedure can be carried out; or
(b) that the issue of the warrant is otherwise justified.
(4) A magistrate must not issue a warrant for the arrest of a suspect for the purpose of carrying out a forensic procedure if a warrant has previously been issued (by any magistrate) for the arrest of the suspect for the purpose of carrying out that forensic procedure.
23XGD Time for carrying out forensic procedure—suspect in custody
(1) If the suspect is in custody (whether or not as the result of the issue of a warrant under section 23XGC), he or she may be detained in custody for such period (the detention period) as is reasonably necessary to carry out the forensic procedure but in any case for no longer than a period starting when:
(a) the magistrate orders the carrying out of the procedure; or
(b) the suspect is arrested pursuant to a warrant under section 23XGC;
whichever is later, and ending:
(c) if the suspect is a child or an incapable person, or the investigating constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander—2 hours later; or
(d) in any other case—4 hours later.
(2) In working out any period of time for the purposes of subsection (1), the following times are to be disregarded:
(a) the time (if any) that is reasonably required to convey the suspect from the place where the suspect is when the detention period starts to the nearest premises where facilities for carrying out the procedure in accordance with this Part are available to the investigating constable;
(b) any time during which carrying out the procedure is suspended or delayed to allow the suspect, or someone else on the suspect’s behalf, to communicate with a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person as provided by this Part;
(c) any time during which carrying out the procedure is suspended or delayed to allow such a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person to arrive at the place where the procedure is to be carried out;
(d) any time during which carrying out the procedure is suspended or delayed to allow the suspect to receive medical attention;
(e) any time during which carrying out the procedure is suspended or delayed because of the suspect’s intoxication;
(f) any reasonable time during which carrying out the procedure is suspended or delayed to allow the suspect to rest or recuperate;
(g) any time during which the suspect is being questioned under Part IC;
(h) any time that is to be disregarded under subsection 23C(7) or 23DB(9).
Subdivision E—Reports of proceedings under Division
23XH Restrictions on publication
A person must not intentionally, in any report of a proceeding under this Division, publish:
(a) the name of the suspect; or
(b) any information likely to enable the identification of the suspect;
unless the suspect has been charged with a relevant offence or the magistrate, by order, has authorised such publication.
Penalty: Imprisonment for 12 months.
Division 6—Carrying out forensic procedures on suspects
Subdivision A—General provisions
23XI General rules for carrying out forensic procedures
A forensic procedure:
(a) must be carried out in circumstances affording reasonable privacy to the suspect; and
(b) except as permitted (expressly or impliedly) by other provisions of this Part, must not be carried out in the presence or view of a person who is of the opposite sex to the suspect; and
(c) must not be carried out in the presence or view of a person whose presence is not necessary for the purposes of the forensic procedure or required or permitted by another provision of this Part; and
(d) must not involve the removal of more clothing than is necessary for the carrying out of the procedure; and
(e) must not involve more visual inspection than is necessary for the carrying out of the procedure.
23XIA No questioning during forensic procedure
A forensic procedure must not be carried out while the suspect is being questioned as defined in subsection 23B(6). If questioning has not been completed before the forensic procedure is to be carried out, it must be suspended while the forensic procedure is carried out.
23XIB Suspect must be cautioned before forensic procedure starts
Before anyone starts to carry out a forensic procedure on a suspect, a constable must caution the suspect that he or she does not have to say anything while the procedure is carried out but that anything the person does say may be used in evidence.
23XJ Use of force in carrying out forensic procedures
(1) Subject to subsection (2) and section 23XK, a person authorised to carry out a forensic procedure on a person, or a constable, may use reasonable force:
(a) to enable a forensic procedure to be carried out; or
(b) to prevent loss, destruction or contamination of any sample.
(2) All forensic procedures are to be carried out in a manner consistent with appropriate medical or other relevant professional standards.
23XK Forensic procedures not to be carried out in cruel, inhuman or degrading manner
For the purpose of this Part, the carrying out of a forensic procedure is not of itself taken to be cruel, inhuman or degrading. However, nothing in this Part authorises the carrying out of a forensic procedure in a cruel, inhuman or degrading manner.
23XL Taking of hair samples
A person is authorised to take a sample of hair of a suspect by removing the root of the hair only if:
(a) the person takes only so much hair as the person believes is necessary for analysis of the sample, or other examination of the hair, to be carried out for the purpose of investigating the offence; and
(b) the sample is taken using the least painful technique known and available to the person.
Subdivision B—Persons involved in forensic procedures
23XM Persons who may carry out forensic procedures
(1) The table following subsection (4) shows, for each forensic procedure, the persons who may carry out the procedure under this Part. A person not specified in the second column of the table is not authorised to carry out a forensic procedure under this Part except as mentioned in section 23XO.
(2) The third column of the table following subsection (4) shows, for each forensic procedure, whether the suspect is entitled to request that a medical practitioner or dentist of the suspect’s choice is present while the forensic procedure is carried out.
Note: Section 23XP makes detailed provision for the presence of a medical practitioner or dentist of the suspect’s choice while a forensic procedure is carried out.
(3) A person is authorised to carry out a particular forensic procedure if he or she is an appropriately qualified person in relation to the procedure even if the person also satisfies another description specified in the following table that is not specified in relation to the particular forensic procedure.
Example: A constable who is an appropriately qualified person to take samples of blood may take such samples even though the table does not expressly list constables as persons who may take samples of blood.
(4) This section does not prevent a suspect from taking a sample of saliva, or a sample by buccal swab, from himself or herself under the supervision of an appropriately qualified person.
Who may carry out forensic procedures
Forensic procedure Persons who may carry out forensic procedure Is suspect entitled to request presence of medical practitioner or dentist of suspect’s choice?
1 external examination of the genital or anal area, the buttocks or, in the case of a female, the breasts medical practitionernurseappropriately qualified person yes (medical practitioner)
2 the taking of a sample of blood (other than by a finger prick) medical practitionernurseappropriately qualified person yes (medical practitioner)
4 the taking of a sample of pubic hair medical practitionernurseappropriately qualified person yes (medical practitioner)
5 the taking of a sample by swab or washing from the external genital or anal area, the buttocks or, in the case of a female, the breasts medical practitionernurseappropriately qualified person yes (medical practitioner)
6 the taking of a sample by vacuum suction, scraping or lifting by tape from the external genital or anal area, the buttocks or, in the case of a female, the breasts medical practitionernurseappropriately qualified person yes (medical practitioner)
7 the taking of a dental impression medical practitionerdentistdental technician yes (dentist or medical practitioner)
8 the taking of a photograph or a video recording of, or an impression or cast of a wound from, the genital or anal area, the buttocks or, in the case of a female, the breasts appropriately qualified person yes (medical practitioner)
9 external examination of a part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts, that requires touching of the body or removal of clothing medical practitionernurseappropriately qualified person no
9A the taking of a sample of blood by a finger prick medical practitionernurseconstableappropriately qualified person no
9B the taking of a sample of saliva, or a sample by buccal swab medical practitionerdentistdental techniciannurseconstableappropriately qualified person no
10 the taking of a sample of hair other than pubic hair medical practitionernurseconstableappropriately qualified person no
11 the taking of a sample from a nail or from under a nail medical practitionernurseconstableappropriately qualified person no
12 the taking of a sample by swab or washing from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts medical practitionernurseappropriately qualified person no
13 the taking of a sample by vacuum suction, scraping or lifting by tape from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts medical practitionernurseappropriately qualified person no
14 the taking of a hand print, finger print, foot print or toe print appropriately qualified person no
15 the taking of a photograph or a video recording of, or an impression or cast of a wound from, an external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts appropriately qualified person no
Note: Appropriately qualified (as used in the expression “appropriately qualified person”) is defined in section 23WA.
Subdivision C—Further provisions about who may carry out forensic procedures
23XN Certain forensic procedures generally to be carried out by person of same sex as suspect
(1) If practicable, an intimate forensic procedure (other than the taking of a sample of blood or a dental impression) is to be carried out:
(a) if the suspect is an adult—by a person of the same sex as the suspect; or
(b) if the suspect is a child—by a person of the sex chosen by the suspect or, if the suspect does not wish to make such a choice, by a person of the same sex as the suspect.
(2) If practicable, a non‑intimate forensic procedure for which the suspect is required to remove clothing other than his or her overcoat, coat, jacket, gloves, socks, shoes and hat is to be carried out:
(a) if the suspect is an adult—by a person of the same sex as the suspect; or
(b) if the suspect is a child—by a person of the sex chosen by the suspect or, if the suspect does not wish to make such a choice, by a person of the same sex as the suspect.
(3) If practicable, a person asked under section 23XO to help carry out a forensic procedure covered by subsection (1) or (2):
(a) is to be:
(i) if the suspect is an adult—a person of the same sex as the suspect; or
(ii) if the suspect is a child—a person of the sex chosen by the suspect or, if the suspect does not wish to make such a choice, by a person of the same sex as the suspect; and
(b) is to be a person who is not inappropriate to help carry out the forensic procedure.
23XO Person may get help to carry out forensic procedures
(1) A person who is authorised to carry out a forensic procedure under the table in section 23XM is authorised to ask another person to help him or her to carry out the procedure, and the other person is authorised to give that help.
(2) A person who is asked to help carry out a forensic procedure need not be a person mentioned in the table in section 23XM.
(3) A person who is asked to help carry out a forensic procedure may use reasonable force to enable the forensic procedure to be carried out.
Subdivision D—Presence of other people while forensic procedure is carried out
23XP Medical practitioner or dentist of suspect’s choice may be present for intimate forensic procedures
(1) A suspect is entitled to request a medical practitioner or dentist (the expert) of his or her choice as shown in the table in section 23XM to be present while a forensic procedure (other than a non‑intimate forensic procedure) is carried out.
Note: Section 23YE provides that the request may be made by the suspect’s legal representative or interview friend.
(2) The expert chosen is to be present at the forensic procedure 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 person responsible for the effective carrying out of the forensic procedure considers the forensic procedure should be carried out if it is to be effective in affording evidence of the relevant offence.
23XQ Presence of interview friend or legal representative—children and incapable persons