23XWU Circumstances in which magistrate may order the carrying out of forensic procedure on a child or incapable person
(1) A magistrate may order the carrying out of a forensic procedure on a child or incapable person if:
(a) the consent of the parent or guardian of the child or incapable person to the carrying out of the forensic procedure cannot reasonably be obtained from a parent or guardian of the child or incapable person; or
(b) the parent or guardian of the child or incapable person refuses consent to the carrying out of the forensic procedure and the magistrate is satisfied that there are reasonable grounds to believe:
(i) that the parent or guardian is a suspect; and
(ii) that the forensic procedure is likely to produce evidence tending to confirm or disprove that he or she committed an offence; or
(c) the parent or guardian of the child or incapable person consented to the carrying out of the forensic procedure, but subsequently withdraws that consent; or
(d) in the case of a forensic procedure requested by a foreign country or an international tribunal—a constable has been authorised by the Attorney‑General, under the authorising provision relating to the request, to apply for an order under this Part.
(1A) However, a magistrate is not authorised to order the carrying out of a forensic procedure on a child or incapable person if the procedure has been requested by a foreign law enforcement agency.
(2) In determining whether to make an order under this section, the magistrate is to take into account the following:
(a) whether this Part would authorise the carrying out of the forensic procedure apart from this section;
(b) if the forensic procedure is being carried out for the purposes of the investigation of a particular offence—the seriousness of the circumstances surrounding the commission of the offence;
(c) the best interests of the child or incapable person;
(d) so far as they can be ascertained, any wishes of the child or incapable person with respect to whether the forensic procedure should be carried out;
Note: A forensic procedure cannot be carried out on a child or an incapable person who objects to or resists the carrying out of the procedure even if the magistrate makes an order. See subparagraph 23XWQ(2)(b)(ii) and subsection 23XWQ(3).
(e) except in the circumstances referred to in paragraph (1)(b), any wishes expressed by the parent or guardian of the child or incapable person with respect to whether the forensic procedure should be carried out;
(f) whether the carrying out of the forensic procedure is justified in all the circumstances.
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(a) require the forensic procedure to be carried out at a time, or place, or in a manner, specified in the order; or
(b) specify the period for which forensic material obtained from carrying out the procedure may be retained.
23XWV Retention of forensic material by order of a magistrate after volunteer, parent or guardian of child or incapable person withdraws consent
(1) An authorised applicant may apply to a magistrate for an order under subsection (2).
(2) Subject to subsection (2A), a magistrate may order that forensic material taken or information obtained from carrying out a forensic procedure on a volunteer who withdraws consent, or parent or guardian of a volunteer who withdraws consent, as the case may be, to the retention of the material be retained if the magistrate is satisfied that:
(a) during an investigation into the commission of a serious offence, material reasonably believed to be from the body of a person who committed the offence had been found:
(i) at the scene of the offence; or
(ii) on the victim of the offence or anything reasonably believed to have been worn or carried by the victim when the offence was committed; or
(iii) on the volunteer or anything reasonably believed to have been worn or carried by the volunteer at the scene of the offence or when the offence was committed; or
(iv) on an object or person reasonably believed to have been associated with the commission of the offence; and
(b) there are reasonable grounds to believe that information obtained from analysis of the forensic material taken from the volunteer is likely to produce evidence of probative value in relation to the serious offence being investigated; and
(c) the retention of the forensic material taken from the volunteer is justified in all the circumstances.
(2A) Despite subsection (2), a magistrate may not make an order if:
(a) the volunteer was asked to undergo a forensic procedure because of a request by a foreign law enforcement agency; and
(b) the forensic evidence has already been provided to the foreign law enforcement agency.
(3) The order may specify the period for which the forensic material taken or information obtained from carrying out the procedure may be retained.
Division 7—Admissibility of evidence
Subdivision A—Forensic evidence
23XX Inadmissibility of evidence from improper forensic procedures etc.
(1) This section applies where:
(a) a forensic procedure has been carried out on a person; and
(b) there has been a breach of, or failure to comply with:
(i) any provision of this Part in relation to a forensic procedure carried out on the person (including, but not limited to, any breach or failure to comply with a provision requiring things to be done at any time before or after the forensic procedure is carried out); or
(ii) any provision of Division 8A with respect to recording or use of information on the Commonwealth DNA database system.
(2) This section does not apply where:
(a) a provision of this Part required forensic material to be destroyed; and
(b) the forensic material has not been destroyed.
Note: Section 23XY applies where this Part requires forensic material to have been destroyed.
(3) This section applies to:
(a) evidence of forensic material, or evidence consisting of forensic material, taken from the person by the forensic procedure; and
(b) evidence of any results of the analysis of the forensic material; and
(c) any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure.
(4) Where this section applies, evidence described in subsection (3) is not admissible in any proceedings against the person in a court unless:
(a) the person does not object to the admission of the evidence; or
(b) the court is satisfied on the balance of probabilities of matters that, in the court’s opinion, justify the admission of the evidence in the proceedings in spite of the failure to comply with the provisions of this Part.
(5) The matters that may be considered by the court for the purposes of paragraph (4)(b) are the following:
(a) the probative value of the evidence, including whether equivalent evidence or evidence of equivalent probative value could have been obtained by other means;
(b) the reasons given for the failure to comply with the provisions of this Part;
(c) the gravity of the failure to comply with the provisions of this Part, and whether the failure deprived the person of a significant protection under this Part;
(d) whether the failure to comply with the provisions of this Part was intentional or reckless;
(e) the nature of the provision of this Part that was not complied with;
(f) the nature of the offence concerned and the subject matter of the proceedings;
(g) whether admitting the evidence would seriously undermine the protection given to persons by this Part;
(h) any other matters the court considers to be relevant.
(6) The probative value of the evidence does not by itself justify the admission of the evidence.
(7) If a judge permits evidence to be given before a jury under subsection (4), the judge must:
(a) inform the jury of the breach of, or failure to comply with, a provision of this Part; and
(b) give the jury such warning about the evidence as the judge thinks appropriate in the circumstances.
23XY Inadmissibility of evidence where forensic material required to be destroyed
(1) If a provision of this Part requires forensic material taken from a person by a forensic procedure to be destroyed, subsection (2) applies to:
(a) evidence of the forensic material; and
(b) if the material has not been destroyed—evidence consisting of the forensic material; and
(c) any results of the analysis of the forensic material; and
(d) any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure.
(2) The results of the analysis, and the other evidence, are not admissible if adduced by the prosecution in any proceedings against the person, but may be admissible if adduced in such proceedings by the person.
Subdivision B—Other evidence
23XZ Admissibility of evidence relating to consent to forensic procedure
Evidence of a person’s refusal or failure to consent, or withdrawal of consent, to a forensic procedure is not admissible in proceedings against the person except to establish or rebut an allegation that a constable or another person investigating the commission of the offence concerned acted contrary to law in carrying out that investigation.
23YA Admissibility of evidence relating to carrying out of forensic procedure
In spite of subsection 23XX(4), evidence of how a forensic procedure was carried out is admissible in proceedings against the person in a court:
(a) to establish or rebut an allegation that unreasonable force was used to enable the procedure to be carried out; or
(b) to determine the admissibility of a confession or admission or other evidence adverse to the person where the person alleges that the evidence was induced or obtained by the use of unreasonable force; or
(c) to establish or rebut an allegation that the forensic procedure was not carried out in accordance with Division 6.
23YB Obstructing the carrying out of forensic procedure
(1) This section applies where a constable or magistrate has ordered the carrying out of a forensic procedure on a suspect under this Part.
(2) Subject to subsections (3) and (4), evidence that the suspect:
(a) refused to comply with any reasonable direction in connection with the carrying out of the forensic procedure; or
(b) obstructed, resisted, hindered, used violence against, threatened or intimidated a person in connection with the carrying out of the forensic procedure;
is admissible in any proceedings against the suspect in respect of a relevant offence.
(3) Evidence described in subsection (2) is not admissible if the forensic procedure was in fact carried out satisfactorily.
(4) Evidence described in subsection (2) is not admissible unless it is established that the suspect:
(a) had been informed by a constable as described in subsection 23WA(4); or
(b) otherwise knew;
that the fact of refusing to comply with the direction, or obstructing, resisting, hindering, using violence against, threatening or intimidating the person, in connection with the carrying out of the forensic procedure might be used in evidence against the suspect.
(5) The court or jury may draw such inferences from the evidence described in subsection (2) as appear to the court or jury to be proper in the circumstances, having regard to any evidence given by or on behalf of the suspect.
Subdivision C—Application
23YBA Division does not apply to a proceeding in a foreign country or an international tribunal
To avoid doubt, this Division does not apply in relation to a proceeding in a foreign country or international tribunal in which forensic evidence is provided in response to a request by:
(a) a foreign country; or
(b) an international tribunal; or
(c) a foreign law enforcement agency.
Division 8—Destruction of forensic material
23YBB Application
This Division does not apply to forensic evidence provided in response to a request by a foreign country, an international tribunal or a foreign law enforcement agency.
23YC Destruction of forensic material where interim order disallowed
(1) If an interim order for the carrying out of a forensic procedure made under section 23XA is disallowed after the forensic procedure is carried out, the investigating constable must ensure that:
(a) all forensic material obtained as a result of the carrying out of the procedure is destroyed as soon as practicable after the disallowance; and
(b) a copy of the results of any analysis of the forensic material are made available to the suspect.
Note: Division 9 contains provisions about making copies of material available to the suspect.
(2) If an order for the carrying out of a forensic procedure made under section 23XWU or for the retention of forensic material under section 23XWV specifies a period for which forensic material obtained as a result of the carrying out of the procedure may be retained, the forensic material is to be destroyed as soon as practicable after the end of the period.
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 Divisions 6A and 6B).
(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.
(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.
(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.
(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.
(7) An extension in relation to particular forensic material may be given on more than one occasion.
(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.
23YDAA Destruction of forensic material taken from offender after conviction quashed
The constable who obtained an authority under section 23XWG, 23XWK or 23XWO for the carrying out of a forensic procedure on an offender whose conviction is quashed after the making of the order must ensure that any forensic material obtained as a result of the carrying out of the procedure is destroyed as soon as practicable after the conviction is quashed.
23YDAB Destruction of forensic material where related evidence is inadmissible
If a magistrate finds that evidence described in subsection 23XX(3) relating to a forensic procedure is inadmissible under section 23XX, the Commissioner must, as soon as practicable, ensure that any forensic material taken from the person by that forensic procedure is destroyed.
Division 8A—Commonwealth and State/Territory DNA database systems
23YDAC Definitions
(1) In this Part:
Commonwealth agency means:
(a) the Commonwealth; or
(b) an authority of the Commonwealth.
Commonwealth DNA database system means a database (whether in computerised or other form and however described) that is managed by the Commonwealth and that contains:
(a) the following indexes of DNA profiles (in so far as they relate to material taken or obtained by a Commonwealth agency and, in relation to a crime scene index, in so far as it also relates to material taken or obtained by a foreign law enforcement agency (within the meaning of the Australian Crime Commission Act 2002)):
(i) a crime scene index;
(ii) a missing persons index;
(iii) an unknown deceased persons index;
(iv) a serious offenders index;
(v) a volunteers (unlimited purposes) index;
(vi) a volunteers (limited purposes) index;
(vii) a suspects index;
and, if the material is forensic material, information that may be used to identify the person from whose forensic material each DNA profile was derived; and
(b) a statistical index (in so far as it relates to forensic material taken in accordance with this Part); and
(c) any other index prescribed by the regulations for the purposes of this definition.
crime scene index means an index of DNA profiles derived from forensic material found:
(a) at any place (whether within or outside Australia) where an offence (whether a prescribed offence or an offence under the law of a participating jurisdiction) was, or is reasonably suspected of having been, committed; or
(aa) at any place outside Australia where an offence under the law of a foreign country was, or is reasonably suspected of having been, committed; or