(2) Either an interview friend or a legal representative (if he or she is not the interview friend) of the suspect must be present while the forensic procedure is carried out. Both an interview friend and a legal representative may be present.
(3) An interview friend (other than a legal representative) of the suspect may be excluded from the place where the forensic procedure is being carried out if the interview friend unreasonably interferes with or obstructs the carrying out of the procedure.
23XR Presence of interview friend or legal representative—Aboriginal persons and Torres Strait Islanders
(1) This section applies if the investigating constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander not covered by section 23XQ.
(2) Either an interview friend or a legal representative (if he or she is not the interview friend) of the suspect must be present while the forensic procedure is carried out. Both an interview friend and a legal representative may be present.
(3) Subsection (2) does not apply if:
(a) the investigating constable believes on reasonable grounds that, having regard to the suspect’s level of education and understanding, the suspect is not at a disadvantage in respect of the carrying out of the forensic procedure by comparison with members of the Australian community generally; or
(b) the suspect expressly and voluntarily waives his or her right to have an interview friend present.
Note: Section 23YK relates to proving a waiver under subsection (3).
(4) An interview friend (other than a legal representative) of the suspect may be excluded from the place where the forensic procedure is being carried out if the interview friend unreasonably interferes with or obstructs the carrying out of the procedure.
23XS Presence of constables
(1) The number of constables that may be present during the carrying out of a forensic procedure must not exceed that which is reasonably necessary to ensure that the procedure is carried out effectively and in accordance with this Part.
(2) Where the presence of a constable (other than a constable who is carrying out or helping to carry out the procedure) is reasonably necessary to ensure that a forensic procedure is carried out effectively and in accordance with this Part, the constable is:
(a) if the suspect is a child—to be of the same sex as the suspect; or
(b) in any other case—to be of the same sex as the suspect unless it is not practicable for such a constable to attend within a reasonable time.
Note: Section 23XN provides that, if practicable, most forensic procedures are to be carried out by persons of the same sex as the suspect.
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(3) This section does not apply to the following forensic procedures:
(a) the taking of hand prints, finger prints, foot prints or toe prints;
(b) any non‑intimate forensic procedure that may be carried out without requiring the suspect to remove any clothing except his or her overcoat, coat, jacket, gloves, socks, shoes and hat.
23XSA Presence of prison officers
If:
(a) a particular suspect is being detained in prison; and
(b) a forensic procedure is to be carried out on the suspect (whether or not the forensic procedure is to be carried out in prison);
one or more prison officers may be present while the forensic procedure is carried out.
Subdivision E—Recording of forensic procedure
23XT Recording of forensic procedure
(1) The carrying out of a forensic procedure (other than the taking of a hand print, finger print, foot print or toe print) must be video recorded unless:
(a) the suspect objects to the video recording; or
(b) the video recording is not practicable.
(2) Before the forensic procedure is carried out, the suspect must be informed:
(a) of the reasons for video recording the carrying out of the forensic procedure, including the protection that the video recording provides for the suspect; and
(b) that the suspect may object to the video recording.
(3) In spite of section 23YE, an interview friend of an Aboriginal person or a Torres Strait Islander not covered by section 23XQ has no right to object to the video recording of the forensic procedure.
Note: Section 23YE gives interview friends and legal representatives general powers to act on behalf of suspects. Section 23XQ applies to children and incapable persons, including children or incapable persons who are Aboriginal persons or Torres Strait Islanders, but does not apply to other Aboriginal persons or Torres Strait Islanders.
(4) If the carrying out of the forensic procedure is not to be video recorded, the forensic procedure must be carried out in the presence of an independent person (not a constable).
Subdivision F—Procedure after forensic procedure is carried out
23XU Samples—sufficient material to share
(1) This section applies if:
(a) a sample is taken from a suspect under this Part; and
(b) the suspect requests the investigating constable that the sample be shared; and
(c) there is sufficient material to be analysed both in the investigation of the offence and on behalf of the suspect.
(2) The investigating constable must invite the suspect to nominate an accredited laboratory to which a part of the material sufficient for analysis will be provided on behalf of the suspect.
(3) If the suspect nominates an accredited laboratory, the investigating constable must ensure that:
(a) a part of the material sufficient for analysis is provided to that laboratory, on behalf of the suspect, within the period of 28 days beginning on the day of the nomination; and
(b) reasonable care is taken to ensure that the suspect’s part of the material is protected and preserved until it is provided to that laboratory.
Note: Division 9 contains provisions about making material available to the suspect.
(4) The suspect must bear the costs in relation to any analysis of that part of the material provided to that laboratory.
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.
(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.
(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.
(4) The analyst may give instructions to the attendee relating to the analysis of the material.
(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.
(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.
(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.
(8) An offence against subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
23XV Photographs
Where a forensic procedure involves the taking of a photograph of a part of a suspect’s body, the investigating constable must ensure that a copy of the photograph is made available to the suspect.
Note: Division 9 contains provisions about making copies of material available to the suspect.
23XW Results of analysis
If:
(a) material from a sample taken from a suspect is analysed in the investigation of the offence; and
(b) before or after the analysis, the suspect has requested the investigating constable that a copy of the results of any analysis be provided to the suspect;
then the investigating constable must ensure that, within 14 days of the analysis or of the request (whichever is the later):
(c) a copy of the results of the analysis is provided to the suspect; and
(d) if the DNA profile derived from that material has been matched, as part of the investigation of the offence, under section 23YDAF with a DNA profile placed on the crime scene index in relation to the offence—the suspect is informed in writing of that match.
23XWA Preventing the carrying out of forensic procedure
A person commits an offence if the person obstructs, hinders or resists a person carrying out a forensic procedure in accordance with this Part.
Penalty: Imprisonment for 2 years.
Division 6A—Carrying out of certain forensic procedures after conviction of serious and prescribed offenders
23XWB Forensic procedures to which Division applies
Intimate forensic procedure to which Division applies
(1) This Division applies to an intimate forensic procedure that is the taking of a sample of blood (other than by a finger prick).
Non‑intimate forensic procedures to which Division applies
(2) This Division applies to the following non‑intimate forensic procedures:
(a) the taking of samples of hair other than pubic hair;
(b) the taking of fingerprints;
(c) the taking of a sample of blood by a finger prick;
(d) the taking of a sample of saliva, or a sample by buccal swab.
Application of Division
(3) A person is authorised by this section to carry out a forensic procedure under this Division on a serious offender or a prescribed offender whether convicted of the serious or prescribed offence concerned before or after the commencement of this section.
23XWC Non‑intimate forensic procedures authorised to be carried out on offenders
(1) A person is authorised to carry out a non‑intimate forensic procedure to which this Division applies on a person (other than a child or an incapable person) who is a serious offender:
(a) with the informed consent of the serious offender; or
(b) by order of a constable under section 23XWK; or
(c) by order of a judge or magistrate under section 23XWO.
(2) A person is authorised to take the fingerprints of a prescribed offender (other than a child or an incapable person):
(a) with the informed consent of the prescribed offender; or
(b) by order of a constable under section 23XWK.
(3) A person is authorised to carry out a non‑intimate forensic procedure to which this Division applies on a child or an incapable person who is a serious offender, or to take the fingerprints of a child or incapable person who is a prescribed offender, by order of a judge or magistrate under section 23XWO.
23XWD Intimate forensic procedures authorised to be carried out on serious offenders
A person is authorised to carry out an intimate forensic procedure to which this Division applies on a person (other than a child or incapable person) who is a serious offender:
(a) with the informed consent of the serious offender; or
(b) by order of a judge or magistrate under section 23XWO.
23XWE Application of Division 6
(1) Division 6 applies in relation to the carrying out under this Division of a forensic procedure on an offender. For this purpose:
(a) references in Division 6 to the suspect are taken to be references to the offender; and
(b) references in Subdivision F of Division 6 to the investigating constable are taken to be references to the Commissioner.
Note: By applying Division 6, sections 23XJ (about use of force in carrying out forensic procedures) and 23XK (about forensic procedures not being carried out in a cruel, inhuman or degrading manner) apply to the carrying out of a forensic procedure under this Division.
(2) A person is authorised by section 23XWC or 23XWD to carry out a forensic procedure under this Division in accordance with Division 6 as applied by this section and not otherwise.
23XWF Scope of authorisation
(1) A person is not authorised to carry out a forensic procedure under this Division on a serious offender or a prescribed offender if the serious offender or prescribed offender is a suspect or a volunteer.
(2) A forensic procedure may be carried out on a serious offender or prescribed offender who is a suspect only if authorised by and in accordance with Divisions 2 to 5.
(3) A forensic procedure may be carried out on a serious offender or prescribed offender who is a volunteer only if authorised by and in accordance with Division 6B.
23XWG Informed consent to forensic procedures
(1) An offender gives informed consent to a forensic procedure if the offender consents after a constable:
(a) requests the offender to consent to the forensic procedure under section 23XWH; and
(b) informs the offender, in accordance with the regulations and section 23XWJ, of the matters mentioned in that section; and
(c) gives the offender the opportunity to communicate, or attempt to communicate, with a legal practitioner of the offender’s choice.
(2) The constable must allow the offender to communicate, or attempt to communicate, with the legal practitioner in private unless the constable suspects on reasonable grounds that the offender might attempt to destroy or contaminate any evidence that might be obtained by carrying out the forensic procedure.
Note: Section 23YI states that the burden lies on the prosecution to prove on the balance of probabilities that a constable had a suspicion on reasonable grounds.
23XWH Constable may request offender to consent to forensic procedure
A constable may request:
(a) a serious offender (other than a child or an incapable person) to consent to an intimate or non‑intimate forensic procedure to which this Division applies being carried out on the serious offender; or
(b) a prescribed offender (other than a child or an incapable person) to consent to the taking of the offender’s fingerprints.
23XWI Matters to be considered by constable before requesting consent to forensic procedure
Before a request is made under section 23XWH, the constable must be satisfied on the balance of probabilities that:
(a) in the case of a person on whom the procedure is proposed to be carried out who is not serving a sentence of imprisonment in a prison or other place of detention—that the person is an offender; and
(b) the request for consent to carry out the forensic procedure is justified in all the circumstances.
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.
Effect of failure to consent to non‑intimate forensic procedure
(2) 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.
Effect of failure to consent to intimate forensic procedure
(3) 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.
23XWK Circumstances in which constable may order non‑intimate forensic procedure
A constable may order the carrying out of a non‑intimate forensic procedure to which this Division applies on a serious offender or the taking of the fingerprints of a prescribed offender other than a child or an incapable person if: