Division 4 Presence of other people while forensic procedure is carried out

53   Medical practitioner or dentist of suspect’s choice may be present for some forensic procedures

(1)  A suspect is entitled to request a medical practitioner or dentist (the expert) of his or her choice, as shown in the Table to section 50, to be present while:

(a)  an intimate forensic procedure, or

(b)  a non-intimate forensic procedure that involves the taking of an impression or cast of a wound from a part of the suspect’s body,

      is being carried out.

Note. Section 99 provides that the request may be made by the suspect’s legal representative or interview friend.

(2)  The expert chosen is to be present at the forensic procedure unless he or she:

(a)  is unable, or does not wish, to attend, or

(b)  cannot be contacted,

      within a reasonable time or, if relevant, within the time in which the person responsible for the effective carrying out of the forensic procedure considers the forensic procedure should be carried out if it is to be effective in affording evidence of the relevant offence.

54   Presence of interview friend or legal representative—children and incapable persons

(1)  This section applies if the suspect is:

(a)  a child, or

(b)  an incapable person.

(2)  Either an interview friend or a legal representative (if he or she is not the interview friend) of the suspect must, if reasonably practicable, be present while the forensic procedure is carried out. Both an interview friend and a legal representative may be present.

(3)  An interview friend (other than a legal representative) of the suspect may be excluded from the place where the forensic procedure is being carried out if:

(a)  the interview friend unreasonably interferes with or obstructs the carrying out of the procedure, or

(b)  the investigating police officer forms a belief based on reasonable grounds that the presence of the interview friend could be prejudicial to the investigation of an offence because the interview friend may be a co-offender of the suspect or may be involved in some other way, with the suspect, in the commission of the offence.

(4)  If an interview friend is excluded under subsection (3), a suspect may choose another person to act as his or her interview friend. If the suspect does not choose another person as an interview friend, the police officer may arrange for any person who may act as an interview friend under section 4 to be present as an interview friend.

55   Presence of interview friend or legal representative—Aboriginal persons and Torres Strait Islanders

(1)  This section applies if the suspect (not being a child or an incapable person) identifies as an Aboriginal person or Torres Strait Islander.

(1A)  For the purpose of determining whether this section applies to a suspect, the investigating police officer must ask the suspect if the suspect identifies as an Aboriginal person or Torres Strait Islander.

(2)  Either an interview friend or a legal representative (if he or she is not the interview friend) of the suspect must, if reasonably practicable, be present while the forensic procedure is carried out. Both an interview friend and a legal representative may be present.

(3)  Subsection (2) does not apply if the suspect expressly and voluntarily waives his or her right to have an interview friend present. If a suspect so waives his or her right to have an interview friend present, a legal representative of the suspect may still be present.

Note. Section 106 relates to proving a waiver.

(4)  An interview friend (other than a legal representative) of the suspect may be excluded from the place where the forensic procedure is being carried out if:

(a)  the interview friend unreasonably interferes with or obstructs the carrying out of the procedure, or

(b)  the investigating police officer forms a belief based on reasonable grounds that the presence of the interview friend could be prejudicial to the investigation of an offence because the interview friend may be a co-offender of the suspect or may be involved in some other way, with the suspect, in the commission of the offence.

(5)  If an interview friend is excluded under subsection (4), a suspect may choose another person to act as his or her interview friend. If the suspect does not waive his or her right to have an interview friend present and does not choose another person as an interview friend, the police officer may arrange for any person who may act as an interview friend under section 4 to be present as an interview friend.

56   Presence of police officers

(1)  The number of police officers who may be present during the carrying out of a forensic procedure must not exceed that which is reasonably necessary to ensure that the procedure is carried out effectively and in accordance with this Act.

(2)  Where the presence of a police officer (other than a police officer who is carrying out or helping to carry out the procedure) is reasonably necessary to ensure that a forensic procedure is carried out effectively and in accordance with this Act, the police officer is, if reasonably practicable:

(a)  if the suspect is a child—to be a person of the sex chosen by the suspect or, if the suspect does not wish to make such a choice, a person of the same sex as the suspect, or

(b)  in any other case—to be of the same sex as the suspect unless it is not practicable for such a police officer to attend within a reasonable time.

Note. Section 51 provides that, if practicable, most forensic procedures are to be carried out by persons of the same sex as the suspect.

(3)  This section does not apply to the following forensic procedures:

(a)  the taking of hand prints, finger prints, foot prints or toe prints,

(b)  any non-intimate forensic procedure that may be carried out without requiring the suspect to remove any clothing other than his or her overcoat, coat, jacket, gloves, socks, shoes, scarf or hat.