38Procedure at hearing of application for order

38 Procedure at hearing of application for order (1) This section applies if an authorised applicant has applied under section 35 for an order authorising the carrying out of a forensic procedure on a suspect. (2) The suspect must be present at the hearing of the application unless— (a) the suspect is remanded or otherwise detained in lawful custody in a State and it is not practicable for the suspect to be present by audio link or audiovisual link; or Note 1 State includes the Northern Territory (see Legislation Act, dict, pt 1). Note 2 The Evidence (Miscellaneous Provisions) Act 1991, ch 3 applies in audiovisual link or audio link from a State. See also the Magistrates Court Act 1930, s 311 (Appearance by audiovisual or audio links etc).

(b) the application (and any summons issued under section 37 (1) (a)) has been served on the suspect and the suspect is not present. (3) If the suspect is a child, incapable person or Aboriginal or Torres Strait Islander person, the suspect must be represented by an interview friend and may also be represented by a lawyer. (4) Any other suspect may be represented by a lawyer. (5) The suspect or his or her representative— (a) may cross-examine the applicant for the order; and (b) may, with the leave of the magistrate, call or cross-examine any other witnesses; and (c) may address the magistrate. (6) A magistrate may give leave under subsection (5) (b) only if the magistrate is of the opinion that there are substantial reasons why, in the interests of justice, the witness should be called or cross-examined. audio link means a system of 2-way communication linking different places so that a person speaking at any of them can be heard at the other places. audiovisual link means a system of 2-way communication linking different places so that a person at any of them can be seen and heard at the other places.