85Inadmissibility of evidence from improper forensic

85 Inadmissibility of evidence from improper forensic procedures etc (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 Act in relation to a forensic procedure carried out on the person (including, but not limited to, any breach of, 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 part 2.11 (ACT DNA database) in relation to recording or use of information on the DNA database system. (2) This section does not apply if— (a) this Act or a court order requires forensic material to be destroyed; and (b) the forensic material has not been destroyed. Note Section 86 applies if this Act or a court order requires forensic material to be destroyed. (3) This section applies to the following evidence: (a) evidence of forensic material, or evidence consisting of forensic material, taken from the person by the forensic procedure; (b) evidence of any results of the analysis of the forensic material; (c) any evidence obtained because of or in connection with the carrying out of the forensic procedure. (4) If this section applies, evidence mentioned in subsection (3) is admissible in any proceeding against the person in a court only if— (a) the person does not object to the admission of the evidence; or (b) the court is satisfied on the balance of probabilities that the evidence should be admitted in the proceeding despite the breach of, or failure to comply with, the provisions of this Act. (5) The matters that the court may take into consideration in deciding whether evidence should be admitted 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 breach of, or failure to comply with, the provisions of this Act; (c) the gravity of the breach of, or failure to comply with, the provisions of this Act; (d) whether the breach or failure to comply was intentional or reckless; (e) the nature of the provision of this Act that was breached or not complied with; (f) the nature of the offence concerned and the subject matter of the proceeding; (g) any other matters the court considers relevant. (6) The probative value of the evidence does not by itself justify the admission of the evidence. Other evidence Division 2.9.2