Division 2 Final orders

24   Final order for carrying out of forensic procedure

A Magistrate may order the carrying out of a forensic procedure on a suspect if:

(a)  section 23 applies, and

(b)  the Magistrate is satisfied as required by section 25.

25   Matters to be considered by Magistrate before ordering forensic procedure

The Magistrate must be satisfied that:

(a)  the person on whom the procedure is proposed to be carried out is a suspect, and

(b)  if the forensic procedure concerned is an intimate forensic procedure, on the evidence before the Magistrate there are reasonable grounds to believe that the suspect committed:

(i)  a prescribed offence, or

(ii)  another prescribed offence arising out of the same circumstances as that offence, or

(iii)  another prescribed offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and

Note. A prescribed offence is defined in section 3 as an indictable offence or any other offence prescribed by the regulations.

(c)  if the forensic procedure concerned is a non-intimate forensic procedure other than the taking of a sample of hair other than pubic hair, on the evidence before the Magistrate, there are reasonable grounds to believe that the suspect committed:

(i)  an indictable or a summary offence, or

(ii)  another indictable or summary offence arising out of the same circumstances as that offence, or

(iii)  another indictable or summary offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and

(d)  if the forensic procedure concerned is the taking of a sample of hair other than pubic hair, on the evidence before the Magistrate, there are reasonable grounds to believe that the suspect committed:

(i)  a prescribed offence, or

(ii)  another prescribed offence arising out of the same circumstances as that offence, or

(iii)  another prescribed offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and

(e)  if the forensic procedure concerned is the taking of a sample by buccal swab, on the evidence before the Magistrate, there are reasonable grounds to believe that the suspect committed:

(i)  a prescribed offence, or

(ii)  another prescribed offence arising out of the same circumstances as that offence, or

(iii)  another prescribed offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and

(f)  there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the relevant offence, and

(g)  the carrying out of the forensic procedure is justified in all the circumstances.

26   Application for order

(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 dealing with the matters referred to in section 25 (a) and, if relevant, section 25 (b), (c), (d) and (e), 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 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 time, and

(c)  be supported by evidence on oath or by affidavit.

(3)  A Magistrate may order the carrying out for a second time of a forensic procedure on a suspect under this section if the Magistrate is satisfied that:

(a)  the forensic procedure 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 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 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)  a child, or

(b)  an incapable person,

      must have an interview friend and may also be represented by an Australian legal practitioner.

(3)  If the authorised applicant believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander not covered by subsection (2), the suspect:

(a)  must have an interview friend, and

(b)  may also be represented by an Australian legal practitioner.

(4)  Subsection (3) (a) does not apply if the suspect expressly and voluntarily waives his or her right to have an interview friend present.

(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 subsections (2) and (3), 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.

31   Making of order

(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.