(1) Evidence in respect of fingerprints taken from a person is inadmissible as part of the prosecution case in proceedings against that person for an offence if—
(a) the requirements of sections 464K to 464N have not been complied with; or
(b) the fingerprints or any record, copy or photograph of them should have been but have not been destroyed as required by section 464O or 464P.
(2) A court may admit evidence in respect of fingerprints otherwise inadmissible by reason of subsection (1)(a) if—
(a) the prosecution satisfies the court on the balance of probabilities that the circumstances are exceptional and justify the reception of the evidence; or
(b) the accused consents to the reception of the evidence.
(3) For the purposes of subsection (2)(a), the probative value of the fingerprints is not to be regarded as an exceptional circumstance.
Heading preceding s. 464R inserted by No. 16/2002 s. 4(b), amended by No. 3/2019 s. 53.
Forensic procedures and DNA profile samples
S. 464R inserted by No. 38/1988 s. 4,
amended by Nos 56/1989 s. 286(Sch. 2 item 7.15), 57/1989 s. 5(1)(h), 49/1991 s. 119(1)
(Sch. 2 item 70), substituted by No. 129/1993 s. 7.
464R Forensic procedure on adult
S. 464R(1) amended by No. 37/2014 s. 10(Sch. item 36.26).
(1) A police officer may request a suspect to undergo a forensic procedure only if there are reasonable grounds to believe that the procedure would tend to confirm or disprove the involvement of the suspect in the commission of an indictable offence and the suspect—
(a) is suspected on reasonable grounds of having committed the indictable offence; or
(b) has been charged with the indictable offence; or
(c) has been summonsed to answer to a charge for the indictable offence.
(2) A forensic procedure may be conducted on a suspect if—
(a) the suspect gives his or her informed consent; or
S. 464R(2)(b) amended by No. 41/2004 s. 10(a).
(b) the Magistrates' Court makes an order under section 464T(3) or 464V(5); or
S. 464R(2)(c) inserted by No. 41/2004 s. 10(b).
(c) a senior police officer gives an authorisation under section 464SA.
S. 464S inserted by No. 84/1989 s. 5, amended by No. 84/1989 s. 7(a)(b), substituted by No. 129/1993 s. 7.
464S Informed consent[[32]](#endnote-33)
S. 464S(1) amended by No. 37/2014 s. 10(Sch. item 36.26).
(1) A person gives informed consent to a request to undergo a forensic procedure if he or she consents to the request after a police officer informs the person in language likely to be understood by the person—
(a) of the purpose for which the procedure is required; and
(b) of the nature of the procedure sought to be conducted; and
S. 464S(1)(c) amended by Nos 81/1997
s. 19(1), 13/2010 s. 51(Sch. item 17.4).
(c) that the person may request that the procedure be conducted by or in the presence of a medical practitioner or nurse or midwife of his or her choice or, where the procedure is the taking of a dental impression, a dentist of his or her choice; and
(d) of the offence which the person is suspected of having committed or with which the person has been charged or for which the person has been summonsed to answer to a charge; and
(e) that the procedure could produce evidence to be used in a court; and
S. 464S(1)(ea) inserted by No. 16/2002 s. 6.
(ea) that information obtained from analysis of forensic material obtained by the procedure will be placed on a DNA database and may be used for the purpose of a criminal investigation or any other purpose for which the DNA database may be used under this Subdivision or under a corresponding law of a participating jurisdiction; and
(f) that the person may refuse to undergo the procedure; and
S. 464S(1)(g) amended by No. 41/2004 s. 11(a).
(g) where the sample or examination sought may be obtained by a compulsory procedure and the person refuses to undergo the procedure, that an application may be made to the Magistrates' Court for an order authorising the conduct of the procedure; and
S. 464S(1)(h) inserted by No. 41/2004 s. 11(b).
(h) where the sample or examination sought may be obtained by a non-intimate compulsory procedure within the meaning of section 464SA and the person refuses to consent to the procedure, that a senior police officer may authorise the conduct of the procedure.
S. 464S(2) amended by No. 37/2014 s. 10(Sch. item 36.26).
(2) A police officer who informs a person of the matters in subsection (1)—
S. 464S(2)(a) amended by No. 27/2006 s. 17(18)(a).
(a) must record the giving of the information and the person's responses, if any, by audio recording or audiovisual recording or in writing signed by the person; and
(b) must give or send by registered post to the person or his or her legal practitioner, without charge—
S. 464S(2)(b)(i) amended by No. 27/2006 s. 17(18)(b).
(i) if the giving of the information and the responses are recorded by audio recording or audiovisual recording, a copy of the recording as soon as practicable, but not more than 7 days after the information is given, and, if a transcript of the recording is prepared, a copy of the transcript as soon as practicable; and
(ii) if the giving of the information and the responses are recorded in writing signed by the person, a copy of the record forthwith.
S. 464S(3) amended by No. 48/2006 s. 42(Sch. item 9.3), substituted by No. 3/2019 s. 54.
(3) A person is taken as having refused consent if—
(a) the person is—
(i) held in a prison, police gaol or youth justice centre; or
(ii) a prisoner in a prison or a person detained in a police gaol who is transferred from the prison or police gaol to a facility or an institution referred to in section 56AB(1) of the Corrections Act 1986; and
(b) within 24 hours after the giving of the information referred to in subsection (1) the person refuses or fails to consent to the request to undergo a forensic procedure.
S. 464SA inserted by No. 41/2004 s. 12.
464SA Senior police officer may authorise non-intimate compulsory procedure for certain adults
(1) In this section and section 464SB, non-intimate compulsory procedure means the taking of a non‑intimate sample or the conduct of a physical examination of a non-intimate part of the body.
(2) A senior police officer who is not involved in investigating the offence for which the compulsory procedure is required may authorise the conduct of a non-intimate compulsory procedure on a person if the senior police officer is satisfied that—
(a) the person is a relevant suspect who is—
(i) under lawful arrest by warrant; or
(ii) under lawful arrest under section 458 or 459 or a provision of any other Act; or
(iii) in the custody of an investigating official in accordance with an order of the Magistrates' Court under section 464B(5) and, at the time of the application for that order, the person was held in a prison or police gaol; and
S. 464SA(2)(b) amended by No. 72/2004 s. 29.
(b) the person is not under the age of 18 years; and
(c) the person is not incapable of giving informed consent by reason of mental impairment; and
(d) the person has refused to give consent to a request under section 464R(1); and
(e) there are reasonable grounds to believe that the person has committed the offence in respect of which the authorisation is sought; and
(f) the requirements of section 464T(3)(c), (d), (e) and (f) are met; and
(g) in all the circumstances, the giving of the authorisation is justified.
(3) A senior police officer must not give an authorisation for a compulsory procedure on a person if—
(a) an application to a court for an order under this Subdivision in respect of that person has been made in relation to the same matter and on the same grounds but has been refused; or
(b) a previous application for an authorisation under this section in respect of that person has been considered in relation to the same matter and on the same grounds but has not been given.
(4) An authorisation given in contravention of subsection (3) is void.
(5) Nothing in subsection (3) prevents a later application for an order under this Subdivision or an authorisation under this section on different or further grounds.
S. 464SA(6) amended by No. 37/2014 s. 10(Sch. item 36.26).
(6) An authorisation under this section may only be given to a police officer.
S. 464SB inserted by No. 41/2004 s. 12.
464SB Making or refusing authorisation
(1) Before a senior police officer gives or refuses to give an authorisation under section 464SA, the senior police officer must allow the suspect or the suspect's legal practitioner, if any, a reasonable opportunity, if practicable in person, to inform the senior police officer whether there is any reason why the non-intimate compulsory procedure should not be conducted.
(2) An authorisation under section 464SA must be made in writing signed by the senior police officer giving it and include—
(a) the date and time when the authorisation is given; and
(b) the grounds for giving the authorisation; and
(c) the type of sample or examination authorised.
S. 464SB(3) amended by No. 37/2014 s. 10(Sch. item 36.26).
(3) The senior police officer must give, or cause another police officer to give, to the suspect a copy of the authorisation as soon as practicable after the authorisation is made and, in any event, before the conduct of the compulsory procedure.
S. 464SB(4) amended by No. 37/2014 s. 10(Sch. item 36.26).
(4) Before the compulsory procedure is conducted, a police officer must inform the suspect orally and in person of the following—
(a) that an authorisation under section 464SA has been given; and
(b) the matters referred to in subsection (2)(a), (b) and (c); and
S. 464SB(4)(c) amended by No. 37/2014 s. 10(Sch. item 36.26).
(c) that a police officer may use reasonable force to enable the compulsory procedure to be conducted; and
(d) if the authorisation is to take a sample of hair, that the suspect may elect to provide instead a scraping taken by the suspect from his or her mouth, if it is considered appropriate to do so.
(5) The person who gives the information required to be given by subsection (4) must—
S. 464SB(5)(a) amended by No. 27/2006 s. 17(19)(a).
(a) record, or cause to be recorded, the giving of that information by audio recording or audiovisual recording; and
S. 464SB(5)(b) amended by No. 27/2006 s. 17(19)(b).
(b) give or send by registered post, or cause to be given or sent by registered post, to the suspect or his or her legal practitioner, without charge, a copy of the recording as soon as practicable, but not more than 7 days after the conduct of the compulsory procedure.
(6) If a senior police officer refuses to give an authorisation under section 464SA in respect of a suspect, the senior police officer must—
S. 464SB(6)(a) amended by No. 37/2014 s. 10(Sch. item 36.26).
(a) inform, or cause another police officer to inform, the suspect orally of the decision as soon as practicable after the refusal; and
(b) give written notice of the decision to the suspect within 7 days after the refusal.
S. 464SB(7) amended by No. 37/2014 s. 10(Sch. item 36.26).
(7) A failure of the senior police officer or a police officer to comply with this section does not invalidate any authorisation made by the senior police officer but constitutes non-compliance for the purposes of section 464ZE(1)(a).
S. 464SC inserted by No. 3/2019 s. 55.
464SC DNA profile sample from DNA person
(1) A police officer may request a DNA person who is an adult to give a DNA profile sample only if the police officer is satisfied that the taking of the sample is justified in all of the circumstances, and the DNA person—
(a) is suspected on reasonable grounds of having committed the indictable offence; or
(b) has been charged with the indictable offence; or
(c) has been summonsed to answer to a charge for the indictable offence.
(2) A police officer may request a DNA person who is a child to give a DNA profile sample only if the police officer is satisfied that the taking of the sample is justified in all of the circumstances, and the DNA person—
(a) is believed on reasonable grounds of having committed the DNA sample offence; or
(b) has been charged with the DNA sample offence; or
(c) has been summonsed to answer to a charge for the DNA sample offence.
(3) A DNA profile sample may be taken from—
(a) a DNA person who is an adult if—
(i) the adult gives informed consent; or
(ii) a senior police officer gives an authorisation under section 464SE; or
(b) a DNA person who is a child if—
(i) the child and a parent or guardian of the child give informed consent; or
(ii) a senior police officer gives an authorisation under section 464SE.
S. 464SD inserted by No. 3/2019 s. 55.
464SD Informed consent—DNA person and their parent or guardian
parent or guardian means a parent or guardian of a DNA person who is a child.
(2) A DNA person or a parent or guardian gives informed consent to a request for the DNA person to give a DNA profile sample if the DNA person or the parent or guardian consents to the request after a police officer informs the DNA person or the parent or guardian in language likely to be understood by the DNA person or the parent or guardian—
(a) of the purpose for which the sample is required; and
(b) of the nature of the procedure sought to be conducted to take the sample; and
(c) for a DNA person who is an adult, of the indictable offence which the person is suspected of having committed or with which the person has been charged or for which the person has been summonsed to answer to a charge; and
(d) for a DNA person who is a child, of the DNA sample offence which the child is believed on reasonable grounds of having committed or with which the child has been charged or for which the child has been summonsed to answer to a charge; and
(e) for a DNA person who is a child, that for the child to give informed consent both the child and the child's parent or guardian must consent to the taking of the sample; and
(f) that the taking of the sample could produce evidence to be used in a court; and
(g) that information obtained from analysis of forensic material obtained by the taking of the sample will be placed on a DNA database and may be used for the purpose of a criminal investigation or any other purpose for which the DNA database may be used under this Subdivision or under a corresponding law of a participating jurisdiction; and
(h) that if a sample is taken from the DNA person and—
(i) the person has not been charged with an indictable offence or a DNA sample offence (as the case requires) at the end of 12 months after the taking of the sample; or
(ii) the person has been so charged but the charge is not proceeded with or the DNA person is not found guilty of the offence whether on appeal or otherwise before the end of that period—
the sample taken will be destroyed; and
(i) that the DNA person or the parent or guardian may refuse to consent to the taking of the sample; and
(j) that if the DNA person or the parent or guardian refuses to consent to the taking of the sample, that a senior police officer may authorise the taking of the sample.
(3) A police officer who informs a DNA person or a parent or guardian of the matters in subsection (2)—
(a) must record the giving of the information and the person's responses, if any, by audio recording or audiovisual recording or in writing signed by the person; and
(b) must give or send by registered post to the person or the person's legal practitioner or the parent or guardian of the child if the child's legal practitioner is not known, without charge—
(i) if the giving of the information and the responses are recorded by audio recording or audiovisual recording, a copy of the recording as soon as practicable, but not more than 7 days after the information is given, and, if a transcript of the recording is prepared, a copy of the transcript as soon as practicable; and
(ii) if the giving of the information and the responses are recorded in writing signed by the person, a copy of the record as soon as practicable.
(4) A DNA person is taken as having refused consent if—
(a) the DNA person is—
(i) held in a prison, police gaol or youth justice centre; or
(ii) a prisoner in a prison or a person detained in a police gaol who is transferred from the prison or police gaol to a facility or an institution referred to in section 56AB(1) of the Corrections Act 1986; and
(b) within 24 hours after the giving of the information referred to in subsection (2) the DNA person fails to consent to the request to take the sample.
(5) A parent or guardian is taken as having refused consent if the parent or guardian is not capable of giving informed consent by reason of mental impairment.
S. 464SE inserted by No. 3/2019 s. 55.
464SE Senior police officer may authorise the taking of a DNA profile sample from DNA person
(1) A senior police officer who is not involved in investigating the offence for which the taking of a sample is required may authorise the taking of a DNA profile sample from a DNA person if the senior police officer is satisfied that—
(a) the person is a DNA person who is—
(i) under lawful arrest by warrant; or
(ii) under lawful arrest under section 458 or 459 or a provision of any other Act;
or
(iii) in the custody of an investigating official in accordance with an order of the Magistrates' Court or the Children's Court (as the case requires) under section 464B(5) and, at the time of the application for that order, the person was held in a prison or police gaol; and
(b) the person is not incapable of giving informed consent by reason of mental impairment; and
(c) for a DNA person who is an adult, the person has refused to give consent to a request under section 464SC(1); and
(d) for a DNA person who is a child, both the child and the child's parent or guardian have refused to give consent to a request under section 464SC(2); and
(e) for a DNA person who is an adult, there are reasonable grounds to believe the person has committed the indictable offence in respect of which the authorisation is sought; and
(f) for a DNA person who is a child, the person is believed on reasonable grounds of having committed the DNA sample offence in respect of which the authorisation is sought; and
(g) the taking of the sample without the consent of the person is justified in all of the circumstances.
(2) A senior police officer must not give an authorisation for the taking of a DNA profile sample from a DNA person if—
(a) an application to a court for an order under section 464T, 464U or 464V in respect of that person has been made in relation to the same matter and on the same grounds but has been refused; or
(b) a previous application for an authorisation under this section in respect of that person has been considered in relation to the same matter and on the same grounds but has not been given.
(3) An authorisation given in contravention of subsection (2) is void.
(4) Nothing in subsection (2) prevents a later application for an order under section 464T, 464U or 464V or an authorisation under this section on different or further grounds.
(5) An authorisation under this section must be given to a police officer.
S. 464SF inserted by No. 3/2019 s. 55.
464SF Making or refusing authorisation—DNA profile sample
(1) Before a senior police officer gives or refuses to give an authorisation under section 464SE, the senior police officer must allow a reasonable opportunity, if practicable in person, for the following persons to inform the senior police officer whether there is any reason why the DNA profile sample should not be taken—
(a) the DNA person;
(b) the parent or guardian of the DNA person if the DNA person is a child;
(c) the DNA person's legal practitioner, if any.
(2) An authorisation under section 464SE must be given in writing, be signed by the senior police officer giving it and include—
(a) the date and time when the authorisation is given; and
(b) the grounds for giving the authorisation.
The Electronic Transactions (Victoria) Act 2000 applies to enable an authorisation to be given electronically, including facsimile transmission and email, in accordance with that Act.
(3) The senior police officer must give, or cause another police officer to give, to the DNA person a copy of the authorisation as soon as practicable after the authorisation is made and, in any event, before the taking of the DNA profile sample.
(4) Before the DNA profile sample is taken, a police officer must inform the DNA person orally and in person of the following—
(a) that an authorisation under section 464SE has been given;
(b) the matters referred to in subsection (2)(a) and (b);
(c) that a police officer may use reasonable force to enable the DNA profile sample to be taken.
(5) The person who gives the information required to be given by subsection (4) must—
(a) record, or cause to be recorded, the giving of that information by audio recording or audiovisual recording; and
(b) give or send by registered post, or cause to be given or sent by registered post without charge, a copy of the recording as soon as practicable, but not more than 7 days after the taking of the DNA profile sample to—
(i) the DNA person or their legal practitioner; or
(ii) the parent or guardian of a DNA person who is a child if the child's legal practitioner is not known.
(6) If a senior police officer refuses to give an authorisation under section 464SE in respect of a DNA person, the senior police officer must—
(a) inform, or cause another police officer to inform, the DNA person orally of the decision as soon as practicable after the refusal; and
(b) give written notice of the decision to the DNA person within 7 days after the refusal and to the parent or guardian of a DNA person who is a child.
(7) A failure of the senior police officer or a police officer to comply with this section does not invalidate any authorisation made by the senior police officer but constitutes non-compliance for the purposes of section 464ZE(1)(a).
S. 464T inserted by No. 84/1989 s. 5, amended by No. 84/1989 s. 7(c), substituted by No. 129/1993 s. 7.