Part 5 Forensic procedures on suspects by order of Magistrate or other authorised officer
22 Forensic procedure may be carried out by order of Magistrate or other authorised officer
A person is authorised to carry out a forensic procedure on a suspect by order of a Magistrate under section 24 or 27, or by order of an authorised officer under section 32. The person is authorised to carry out the procedure in accordance with Part 6 and not otherwise.
23 Circumstances in which Magistrate or other authorised officer may order forensic procedure
An order may be made by a Magistrate under section 24, or by an authorised officer under section 32, for the carrying out of a forensic procedure on a suspect if:(a) the suspect is not under arrest and has not consented to the forensic procedure, or(b) the suspect is under arrest and has not consented to the forensic procedure, or(c) the suspect is a child or an incapable person.
24 Final order for carrying out forensic procedure
(1) A Magistrate may order the carrying out of a forensic procedure if satisfied on the balance of probabilities:(a) that the circumstances referred to in subsection (2) or (3) exist, and(b) that the carrying out of such a procedure is justified in all the circumstances.(2) In the case of an intimate forensic procedure:(a) there must be reasonable grounds to believe that the suspect has committed a prescribed offence, and(b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a).(3) In the case of a non-intimate forensic procedure:(a) there must be reasonable grounds to believe that the suspect has committed an offence, and(b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a).(4) In determining whether or not the carrying out of the forensic procedure is justified in all the circumstances, the Magistrate must balance the public interest in obtaining evidence as to whether or not the suspect committed the alleged offence against the public interest in upholding the suspect’s physical integrity, having regard to the following:(a) the gravity of the alleged offence,(b) the seriousness of the circumstances in which the offence is alleged to have been committed,(c) the degree to which the suspect is alleged to have participated in the commission of the offence,(d) the age, cultural background and physical and mental health of the suspect, to the extent to which they are known,(e) in the case of a suspect who is a child or an incapable person, the best interests of the child or person,(f) such other practicable ways of obtaining evidence as to whether or not the suspect committed the alleged offence as are less intrusive,(g) such reasons as the suspect may have given for refusing to consent to the carrying out of the forensic procedure concerned,(h) in the case of a suspect who is in custody, the period for which the suspect has been in custody and the reasons for any delay in the making of an application for an order under this section,(i) such other matters as the Magistrate considers relevant to the balancing of those interests.
(1) An authorised applicant (but no other person) may apply to a Magistrate for an order under section 24 authorising him or her to arrange the carrying out of a forensic procedure on a suspect.(2) An application for an order must:(a) be made in writing, and(b) be supported by evidence on oath, or by affidavit, in relation to the matters as to which the Magistrate must be satisfied, as referred to in section 24 (1), and(c) specify the type of forensic procedure sought to be carried out, and(d) be made in the presence of the suspect (subject to any contrary order made by the Magistrate).(3) If a Magistrate refuses an application for an order authorising the carrying out of a forensic procedure on a suspect, the authorised applicant (or any other person aware of the application) may not make a further application to carry out the same forensic procedure on the suspect unless he or she provides additional information that justifies the making of the further application.
27 Application and order for repeated forensic procedure
(1) An authorised applicant (but no other person) may apply to a Magistrate for an order under this section authorising him or her to arrange the carrying out for a second or subsequent time of a forensic procedure on a suspect on whom a forensic procedure has already been carried out by order of a Magistrate under section 24.(2) The application for the order must:(a) be made in writing, and(b) specify the type of forensic procedure carried out and the grounds for authorising it to be carried out a second or subsequent time, and(c) be supported by evidence on oath or by affidavit.(3) A Magistrate may order the carrying out for a second or subsequent time of a forensic procedure on a suspect under this section if the Magistrate is satisfied that:(a) the forensic procedure or procedures already carried out on the suspect was authorised by an order under section 24 and was carried out in accordance with Part 6, and(b) the forensic material obtained as a result of the carrying out of that forensic procedure or those forensic procedures is insufficient for analysis, has been contaminated, has been lost or is for any other reason not available for analysis, and(c) the carrying out of the forensic procedure for a second or subsequent time is justified in all the circumstances.
28 Securing the presence of suspect at hearing—suspect under arrest
(1) If the suspect has been arrested by a police officer (original arrest), the Magistrate may, on the application of another police officer, issue a warrant directing the person holding the suspect under original arrest to deliver the suspect into the custody of the other police officer (temporary custody) for the hearing of an application for an order under this Part.(2) The police officer given temporary custody must return the suspect to the place of original arrest:(a) if the application for the order is refused—without delay, or(b) if the order is made—without delay at the end of the period for which the suspect may be detained under arrest under section 42.
29 Securing the presence of suspect at hearing—suspect not under arrest
(1) If the suspect is not under arrest, the Magistrate may, on the application of a police officer:(a) issue a summons for the appearance of the suspect at the hearing of the application, or(b) issue a warrant for the arrest of the suspect for the purpose of bringing the suspect before the Magistrate for the hearing of the application.(2) An application for a summons under subsection (1) must be:(a) made by information on oath, and(b) accompanied by an affidavit dealing with the matters referred to in subsection (3).(3) The Magistrate may issue a summons only if satisfied:(a) that the issue of the summons is necessary to ensure the appearance of the suspect at the hearing of the application, or(b) that the issue of the summons is otherwise justified.(4) An application for a warrant under subsection (1) must be:(a) made by information on oath, and(b) accompanied by an affidavit dealing with the matters referred to in subsection (5).(5) The Magistrate may issue a warrant only if satisfied:(a) that the arrest is necessary to ensure the appearance of the suspect at the hearing of the application, and that the issue of a summons would not ensure that appearance, or(b) that the suspect might destroy evidence that might be obtained by carrying out the forensic procedure, or(c) that the issue of the warrant is otherwise justified.
30 Procedure at hearing of application for order
(1) An order may only be made in the presence of the suspect concerned, subject to any contrary order made by the Magistrate.(2) A suspect who is a child or an incapable person, or who identifies as an Aboriginal person or Torres Strait Islander:(a) must have an interview friend present, and(b) may be represented by a legal representative.(3) Subsection (2) (a) does not apply to a suspect who identifies as an Aboriginal person or Torres Strait Islander if the suspect expressly and voluntarily waives his or her right to have an interview friend present.(4) At the beginning of any hearing in relation to proceedings on an application for an order under this Division, the suspect must be asked whether he or she identifies as an Aboriginal person or Torres Strait Islander.(5) Any other suspect (including a suspect covered by subsection (2)) may be represented by an Australian legal practitioner.(6) 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 witness, and(c) may address the Magistrate.(7) A Magistrate must not give leave under subsection (6) (b) unless 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.(8) Despite subsection (2), the suspect’s interview friend may be excluded from the hearing if the interview friend unreasonably interferes with or obstructs the hearing of the application.
(1) If a Magistrate makes an order for the carrying out of a forensic procedure, the Magistrate must:(a) specify the forensic procedure authorised to be carried out, and(b) give reasons for making the order, and(c) ensure that a written record of the order is kept, and(d) order the suspect to attend for the carrying out of the forensic procedure, and(e) inform the suspect that reasonable force may be used to ensure that he or she complies with the order for the carrying out of the forensic procedure.(2) The Magistrate may give directions as to the time and place at which the procedure is to be carried out.
32 Interim order for carrying out of a forensic procedure
(1) An authorised officer may make an interim order authorising the carrying out of a forensic procedure on a suspect that must be carried out without delay if:(a) section 23 applies, and(b) the authorised officer is satisfied that the probative value of evidence obtained as a result of the forensic procedure concerned is likely to be lost or destroyed if there is delay in carrying out the procedure, and(c) the authorised officer is satisfied that there is sufficient evidence to indicate that a Magistrate is reasonably likely to be satisfied, as referred to in section 24 (1), when the application is finally determined.(2) An interim order may authorise the carrying out of an intimate forensic procedure on a suspect only if the person is a suspect in relation to a prescribed offence.(3) An interim order operates as provided by this Division until a Magistrate, at a hearing held under Division 2, confirms the interim order or disallows the interim order, whether or not the suspect consents to the carrying out of the forensic procedure after the interim order is made but before it is confirmed or disallowed.Note. Section 35 (2) requires that an interim order specify the intended date, time and place of the later hearing.(4) Division 2 applies in relation to an order confirming the interim order in the same way it applies in relation to an order under section 24. Accordingly, a Magistrate may make an order confirming the interim order only if the Magistrate is satisfied as referred to in section 24 (1). An order confirming the interim order is taken to be an order under section 24.
33 Application for interim order
(1) An authorised applicant (but no other person) may, without bringing a suspect before an authorised officer and without obtaining an order under section 24, make an application seeking an interim order authorising the carrying out of a forensic procedure on a suspect that must be carried out without delay.(2) An application seeking an interim order authorising the carrying out of an intimate forensic procedure on a suspect may be made only if the person is a suspect in relation to a prescribed offence.(3) An application for an interim order must:(a) if it is made in person—be supported by evidence on oath or by affidavit dealing with the matters referred to in section 32 (1), and(b) specify the type of forensic procedure sought to be carried out.(4) An application for an interim order must be made:(a) in person, or(b) if it is not practicable to make the application in person and there are facsimile facilities readily available—by facsimile, or(c) if it is not practicable to make the application in person and there are no facsimile facilities readily available—by telephone, radio, telex, email or other means of communication.(4A) An authorised officer must not issue an interim order on an application made by facsimile, telephone, radio, telex, email or other means of written communication unless the authorised officer is satisfied that the interim order is required urgently and that it is not practicable for the application to be made in person.(5) If the suspect (being a child or an incapable person, or being a person who identifies as an Aboriginal person or Torres Strait Islander) is in the presence of the authorised applicant when an application for an interim order is made:(a) the suspect’s interview friend, or(b) the suspect’s legal representative,must also be present if reasonably practicable.(6) At the beginning of any hearing in relation to proceedings on an application for an order under this Division, the suspect (if present) must be asked whether he or she identifies as an Aboriginal person or Torres Strait Islander.(7) If a suspect who is in the presence of the authorised applicant when an application for an interim order is made is not covered by subsection (5), the suspect’s legal representative (if any) must also (if reasonably practicable) be in the presence of the authorised applicant.(8) Despite subsection (5), the suspect’s interview friend may be excluded from the presence of the authorised applicant if the interview friend unreasonably interferes with or obstructs the making of the application.(9) If an application is not made in person, the application must be supported by evidence on oath or by affidavit dealing with the matters referred to in section 32 (1) as soon as practicable after the making of the application and before any interim order made as a result of the application is confirmed or disallowed.
34 Procedure at hearing of application for interim order
(1) If the application is made in person, or by telephone or radio or other form of oral communication, the authorised officer must ensure that:(a) the suspect or the suspect’s legal representative, if any, and(b) the suspect’s interview friend, if any,are given an opportunity to speak to the authorised officer.(2) If the application is made by telex, facsimile or other form of written communication, the authorised officer must ensure that:(a) the suspect or the suspect’s legal representative, if any, and(b) the suspect’s interview friend, if any,are given an opportunity to make a written submission to accompany the application, or to speak to the authorised officer by telephone, radio or other form of oral communication.(3) Despite subsections (1) and (2), the suspect’s interview friend may be excluded from the presence of the authorised officer if the interview friend unreasonably interferes with or obstructs the hearing of the application.
(1) An authorised officer who makes an interim order must inform the applicant for the order personally, or by telephone, radio, telex, facsimile or other means of transmission:(a) that the order has been made, and(b) of the terms of the order, including the matters mentioned in subsection (2), and(c) of any orders made or directions given under subsection (3) in relation to the order.(2) An interim order must specify the date, time and place at which a further hearing on the application will take place and the application will be finally determined.(3) An authorised officer may make such orders and give such directions in relation to an interim order as a Magistrate may make or give in relation to an order under section 24.
36 Records of application and interim order
(1A) This section applies when an application for an interim order is made in person, by facsimile, by email or by other electronic means of written communication.(1) The applicant for an interim order must, at the time of applying for the interim order, make a record (the applicant’s record) of:(a) the application, and(b) the grounds for seeking the order,(c)–(e) (Repealed)and sign the record.(2) The applicant must send a copy of the applicant’s record to the authorised officer as soon as practicable after it is made.(3) The authorised officer must, at the time of, or as soon as practicable after, making an interim order, make a record (the authorised officer’s record) of:(a), (b) (Repealed)(c) the order made, and(d) the date and time when the order was made, and(e) the reasons for making it,and sign the record.(4) The authorised officer must send a copy of the authorised officer’s record to the applicant as soon as practicable after the record is made.(5) The applicant must ensure that a copy of the authorised officer’s record and a copy of the applicant’s record are made available to the suspect as soon as practicable after the applicant receives the authorised officer’s record.(6) If the applicant’s record does not, in all material respects, accord with the authorised officer’s record, the order is taken to have had no effect.
36A Records of application and interim order (where application not made in person or reduced to writing)
(1) This section applies when an application for an interim order is not made in person, by facsimile, by email or by other electronic means of written communication.(2) The authorised officer must, at the time of, or as soon as practicable after, making an interim order, make a record (the authorised officer’s record) of:(a) the order made, and(b) the date and time when the order was made, and(c) the reasons for making it,and sign the record.(3) The applicant for an interim order must, as soon as practicable after an order is made, make a record (the applicant’s record) of:(a) the order made, and(b) the date and time when the order was made, and(c) the authorised officer’s name,and sign the record.(4) The authorised officer must send a copy of the authorised officer’s record to the applicant as soon as practicable after the record is made.(5) The applicant must ensure that a copy of the authorised officer’s record and a copy of the applicant’s record are made available to the suspect as soon as practicable after the applicant receives the authorised officer’s record.(6) If the applicant’s record does not, in all material respects, accord with the authorised officer’s record, the order is taken to have no effect.
37 Suspect may be prevented from destroying or contaminating evidence
(1) A police officer may, while waiting for the application seeking an interim order to be determined, use reasonable force to prevent the suspect destroying or contaminating any evidence that might be obtained by carrying out the forensic procedure if the order is made.(2) Nothing in this section authorises any person to carry out a forensic procedure before an interim order is made.
38 Results of forensic procedure carried out under interim order
(1) A sample taken under an interim order must not be analysed unless:(a) the sample is likely to perish before a final order is made, or(b) a final order is made.(2) A person who conducts an analysis in the circumstances set out in subsection (1) (a) must not intentionally or recklessly disclose the results of the analysis to any person other than the suspect:(a) during the period before a final order is made, or(b) if the interim order is disallowed.Maximum penalty (subsection (2)): imprisonment for 12 months.
Division 4 Time limits for forensic procedures ordered by Magistrate or other authorised officer
This Division applies where a Magistrate or other authorised officer orders the carrying out of a forensic procedure on a suspect under this Act.
40 Time for carrying out forensic procedure—suspect not under arrest
(1) If a suspect who is not under arrest presents himself or herself to the investigating police officer concerned to undergo the procedure after it is ordered by the Magistrate or other authorised officer, the procedure must be carried out as quickly as reasonably possible but in any case within 2 hours after the suspect so presents himself or herself.(2) In working out any period of time for the purposes of subsection (1), any time out is to be disregarded.
41 Arrest of suspect not under arrest
(1) If the suspect is not under arrest, the Magistrate or other authorised officer may, on the application of a police officer, issue a warrant for the arrest of the suspect for the purpose of carrying out the forensic procedure.(2) An application for a warrant must be:(a) made by information on oath, and(b) accompanied by an affidavit dealing with the matters referred to in subsection (3) (a) and (b).(3) The Magistrate or other authorised officer may issue a warrant only if satisfied:(a) that the arrest is necessary to ensure that the forensic procedure can be carried out, or(b) that the issue of the warrant is otherwise justified.(4) A Magistrate or other authorised officer must not issue a warrant for the arrest of a suspect for the purpose of carrying out a forensic procedure if a warrant has previously been issued (by any Magistrate or other authorised officer) for the arrest of the suspect for the purpose of carrying out that forensic procedure.
42 Time for carrying out forensic procedure—suspect under arrest
(1) If the suspect is under arrest (whether or not as the result of the issue of a warrant under section 41), he or she may be detained under arrest for such period as is reasonably necessary to carry out the forensic procedure but in any case for no longer than 2 hours after the end of the investigation period permitted under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 starting when:(a) the Magistrate or other authorised officer orders the carrying out of the procedure, or(b) the suspect is arrested pursuant to a warrant under section 41.(2) In working out any period of time for the purposes of subsection (1), any time out is to be disregarded.
Division 5 Reports of proceedings under Act
43 Restrictions on publication
(1) A person must not intentionally or recklessly, in any report of a proceeding under this Act, publish:(a) the name of the suspect on whom a forensic procedure is carried out or proposed to be carried out in relation to an offence, or(b) any information likely to enable the identification of the suspect,unless the suspect has been charged with the offence or the Magistrate, by order, has authorised such publication.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(2) This section does not make it an offence to publish the name of a suspect or any information likely to enable the identification of a suspect if the publication is solely for the purposes of the internal management of the NSW Police Force.
Division 6 False or misleading information in applications
43A False or misleading information in applications
(1) A person must not, in or in connection with an application for an order under this Part, give information to a Magistrate or authorised officer that the person knows to be false or misleading in a material particular.Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.
(2) This section applies to an application made by telephone or other means as well as to one made in person.(3) This section applies whether or not the information given is also verified on oath or by affidavit.