Crimes (Forensic Procedures) Act 2000 (NSW)

Crimes (Forensic Procedures) Act 2000 No 59 An Act to make provision with respect to the powers to carry out forensic procedures on certain persons and to make provision with respect to a DNA database system; to make a related amendment to the Justices Act 1902 and consequential amendments to the Crimes Act 1900; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Crimes (Forensic Procedures) Act 2000. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation, except as provided by subsection (2). (2) Section 121 commences on the date of assent. 3 Interpretation (1) Definitions In this Act— Aboriginal legal aid organisation means an organisation that provides legal assistance to Aboriginal persons or Torres Strait Islanders, being an organisation prescribed by the regulations for the purposes of this definition. adult means a person of or above 18 years of age. appropriately qualified, in relation to a person carrying out a forensic procedure—see section 4A. authorised applicant for an order for the carrying out of a forensic procedure on a suspect means— (a) the police officer in charge of a police station, or (b) a custody manager within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002, or (c) an investigating police officer in relation to an offence, or (d) the Director of Public Prosecutions. authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002. child means a person who is at least 10 years of age but under 18 years of age. correctional centre medical officer, in relation to a correctional centre or other place of detention, means any person appointed or acting as medical officer for the correctional centre or other place of detention. corresponding law is defined in section 95. crime scene index is defined in section 90. destroy is explained in subsection (5). DNA database system is defined in section 90. excluded volunteer is defined in section 76A. exercise a function includes perform a duty. forensic material means— (a) samples, or (b) hand prints, finger prints, foot prints or toe prints, or (c) photographs, or (d) casts or impressions, taken from or of a person's body. forensic procedure means— (a) an intimate forensic procedure, or (b) a non-intimate forensic procedure, (c) (Repealed) but does not include— (d) any intrusion into a person's body cavities except the mouth, or (e) the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken. Note— Paragraph (e) makes it clear that the Act only applies to samples taken for forensic purposes and not to samples taken purely to establish the identity of a person. function includes a power, authority or duty. incapable person means an adult who— (a) is incapable of understanding the general nature and effect of a forensic procedure, or (b) is incapable of indicating whether he or she consents or does not consent to a forensic procedure being carried out. inform is explained in subsection (4). informed consent in relation to— (a) a suspect—is defined in section 9, and (b) a serious indictable offender—is defined in section 67, and (b1) an untested former offender—is defined in section 75F, and (b2) an untested registrable person—is defined in section 75V, and (c) a volunteer or parent or guardian of a volunteer—is defined in section 77. interview friend is explained in section 4. intimate forensic procedure means any of the following— (a) an external examination of a person's private parts, (b) the carrying out on a person of an other-administered buccal swab, (c) the taking from a person of a sample of the person's blood, (d) the taking from a person of a sample of the person's pubic hair, (e) the taking from a person of a sample of any matter, by swab or washing, from the person's private parts, (f) the taking from a person of a sample of any matter, by vacuum suction, scraping or lifting by tape, from the person's private parts, (g) the taking from a person of a dental impression, (h) the taking of a photograph of the person's private parts, (i) the taking from a person of an impression or cast of a wound from the person's private parts. investigating police officer means any police officer involved in the investigation of the commission of an offence in relation to which a forensic procedure is carried out or proposed to be carried out. legal representative of a suspect means an Australian legal practitioner acting for the suspect. missing persons index is defined in section 90. non-intimate forensic procedure means any of the following— (a) an external examination of a part of a person's body, other than the person's private parts, that requires touching of the body or removal of clothing, (b) the carrying out on a person of a self-administered buccal swab, (c) the taking from a person of a sample of the person's hair, other than pubic hair, (d) the taking from a person of a sample (such as a nail clipping) of the person's nails or of matter from under the person's nails, (e) the taking from a person of a sample of any matter, by swab or washing, from any external part of the person's body, other than the person's private parts, (f) the taking from a person of a sample of any matter, by vacuum suction, scraping or lifting by tape, from any external part of the person's body, other than the person's private parts, (g) the taking from a person of the person's hand print, finger print, foot print or toe print, (h) the taking of a photograph of a part of a person's body, other than the person's private parts, (i) the taking from a person of an impression or cast of a wound from a part of the person's body, other than the person's private parts, (j) the taking of measurement of a person's body or any part of a person's body (other than the person's private parts) whether or not involving the marking of the person's body. offender means— (a) a serious indictable offender, or (b) a prescribed offender. offenders index is defined in section 90. other-administered buccal swab means a buccal swab carried out by someone other than the person on whom it is carried out. parent of a child means a person who has parental responsibility for the child. parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children. participating jurisdiction is defined in section 95. place of detention, in relation to a person the subject of an intensive correction order that is subject to a home detention condition under the Crimes (Sentencing Procedure) Act 1999, means the place at which the person resides pursuant to the order. Note— A home detention order is taken to be an intensive correction order that is subject to a home detention condition. See Part 29 of Schedule 2 to that Act. police station includes— (a) a police station of a State or Territory, and (b) a building that is occupied by members of the NSW Police Force and that is nominated by the Commissioner of Police for the purposes of this paragraph, and (c) a building occupied by the Australian Federal Police. prescribed offence means— (a) an indictable offence, or (b) any other offence under a law of the State prescribed by the regulations for the purposes of this paragraph. prescribed offender means a person who is convicted of a prescribed offence. private parts means a person's genital area, anal area or buttocks, and, in the case of a female or transgender person who identifies as a female, includes the person's breasts. recognised transgender person means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 or under the corresponding provisions of a law of another Australian jurisdiction. recording includes audio recording and video recording. responsible person, in relation to the DNA database system, means the person declared by the regulations to be the person responsible for the care, control and management of the system. sample has a meaning affected by subsection (3). self-administered buccal swab means a buccal swab carried out by the person on whom it is carried out. senior police officer means a police officer of or above the rank of sergeant. serious indictable offence means— (a) an indictable offence under a law of the State or of a participating jurisdiction that is punishable by imprisonment for life or a maximum penalty of 5 or more years imprisonment, or (b) an indictable offence under a law of the State that is punishable by a maximum penalty of less than 5 years imprisonment, being an offence the elements constituting which (disregarding territorial considerations) are the same as an offence under a law of a participating jurisdiction that is punishable by a maximum of 5 or more years imprisonment. serious indictable offender means a person who has been convicted of a serious indictable offence. suspect means the following— (a) a person whom a police officer suspects on reasonable grounds has committed an offence, (b) a person charged with an offence, (c) a person who has been summoned to appear before a court in relation to an offence alleged to have been committed by the person. (d) (Repealed) time out means— (a) the time (if any) that is reasonably required to convey a suspect from the place where the suspect presents himself or herself to an investigating police officer to the nearest premises where facilities for carrying out a forensic procedure in accordance with this Act are available to the investigating police officer, (b) any time that is reasonably spent waiting for an investigating police officer or appropriately qualified person who is to carry out the forensic procedure to arrive at the place where the procedure is to be carried out, (c) any time that is reasonably spent waiting for facilities or equipment that are needed to carry out the procedure to become available, (d) any time during which carrying out the procedure is suspended or delayed to allow the suspect, or someone else on the suspect's behalf, to communicate with an Australian legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person as provided by this Act, (e) any time during which carrying out the procedure is suspended or delayed to allow such an Australian legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person to arrive at the place where the procedure is to be carried out, (f) any time during which carrying out the procedure is suspended or delayed to allow the suspect to consult with an Australian legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person at the place where the procedure is to be carried out as provided by this Act, (g) any time during which carrying out the procedure is suspended or delayed to allow the suspect to receive medical attention, (h) any time during which carrying out the procedure is suspended or delayed to allow the suspect to recover from the effects of intoxication due to alcohol or another drug (or both), (i) any time during which carrying out the procedure is suspended or delayed to allow the suspect to rest or receive refreshments or to give the suspect access to toilet and other facilities, (j) any time during which carrying out the procedure is suspended or delayed at the request of the suspect, (k) any time that is reasonably spent waiting for a senior police officer or a Magistrate or other authorised officer to make an order as provided by this Act. transgender person is defined in subsection (6). untested former offender is defined in section 75A. untested registrable person is defined in section 75P. volunteer is defined in section 76. volunteers (limited purposes) index is defined in section 90. volunteers (unlimited purposes) index is defined in section 90. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) (Repealed) (3) Taking samples For the purposes of this Act, a sample taken from a person includes a sample taken from the person that consists of matter from another person's body. (4) Informs For the purposes of this Act, a person informs another person of a matter if the person informs the other person of the matter, through an interpreter if necessary, in a language (including sign language or braille) in which the other person is able to communicate with reasonable fluency. (5) Destroy forensic material For the purposes of this Act, a person who is required to destroy forensic material is required not only to destroy the material but also to ensure that any information that relates any DNA profile derived from that material to a person whose DNA it describes is removed from the DNA database system. (6) Transgender persons In this Act, a reference to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person— (a) who identifies as a member of the opposite sex, by living, or seeking to live, as a member of the opposite sex, or (b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or (c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex, and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person. (7) In this Act (other than subsection (6)), a reference— (a) to a member of the opposite sex of a person means, if the person is a transgender person, a member of the opposite sex to the sex with which the transgender person identifies, and (b) to a member of the same sex as a person means, if the person is a transgender person, a member of the same sex as the sex with which the transgender person identifies. (8) Notes included in the text of this Act do not form part of this Act. 4 Interview friends (1) This section lists the people who may act as an interview friend of a suspect or serious indictable offender for the purposes of a provision of this Act referring to an interview friend. Different people may act as interview friends of a suspect or offender for the purposes of different provisions of this Act. (2) If the suspect or serious indictable offender is a child or an incapable person, the following people may act as interview friends— (a) a parent or guardian, or other person, chosen by, or acceptable to, the suspect or offender, (b) a legal representative of the suspect or offender, (c) if the suspect or offender identifies as an Aboriginal person or a Torres Strait Islander and none of the previously mentioned persons is available—a representative of an Aboriginal legal aid organisation or a person whose name is on the relevant list maintained under section 116 (1) who is chosen by, or acceptable to, the suspect or offender, (d) if none of the previously mentioned persons is available—a person who is not a police officer or in any way involved in the investigation of an offence in relation to which a forensic procedure is proposed to be carried out, or is carried out, on the suspect or offender. (3) Where the suspect or serious indictable offender identifies as an Aboriginal person or Torres Strait Islander, and is not covered by subsection (2), the following people may act as interview friends— (a) a relative or other person chosen by the suspect or offender, (b) an Australian legal practitioner acting for the suspect or offender, (c) if none of the previously mentioned persons is available—a representative of an Aboriginal legal aid organisation, or a person whose name is included in the relevant list maintained under section 116 (1). (4) A suspect or serious indictable offender who has a legal representative may also have an interview friend who is not the suspect's or offender's legal representative. 4A Appropriately qualified persons (1) A person is appropriately qualified to carry out a forensic procedure if— (a) the person has suitable professional qualifications or experience to carry out the forensic procedure, or (b) the Commissioner of Police authorises the person in writing to carry out the forensic procedure, or (c) the person is qualified under the regulations to carry out the forensic procedure. (2) An authorisation under subsection (1)(b) may be given in relation to— (a) a specified procedure or class of procedures, or (b) a specified person or class of persons. Part 2 Authority and time limits for forensic procedures on suspects: summary of rules 5 How forensic procedures may be authorised in different circumstances The following table shows the circumstances in which a forensic procedure may be carried out on a suspect, and shows the provisions that authorise the carrying out of the procedure. Authority for forensic procedures Suspect's status Intimate forensic procedure Non-intimate forensic procedure 1 With informed consent under Part 3 With informed consent under Part 3 Adult not under arrest By order of a Magistrate or an authorised officer under Part 5 By order of a Magistrate or an authorised officer under Part 5 2 With informed consent under Part 3 With informed consent under Part 3 Adult under arrest By order of a Magistrate or an authorised officer under Part 5 By order of a senior police officer under Part 4 3 By order of a Magistrate or an authorised officer under Part 5 By order of a Magistrate or an authorised officer under Part 5 Incapable person (whether or not under arrest) 4 By order of a Magistrate or an authorised officer under Part 5 By order of a Magistrate or an authorised officer under Part 5 Child at least 10 but under 18 (whether or not under arrest) 6 Time limits for carrying out forensic procedures The following table sets out in general terms the time limits that apply to the carrying out of a forensic procedure on a suspect depending on the status of the suspect and the source of the authority to carry out the procedure. Time limits for forensic procedures Suspect's status Procedure with suspect's consent (Part 3) Procedure by order of a senior police officer (Part 4) Procedure by order of a Magistrate or an authorised officer (Part 5) 1 Not applicable Not applicable Procedure must be carried out within 2 hours after suspect presents to investigating police officer, disregarding "time out" (see section 40) Child or an incapable person, not under arrest 2 Procedure must be carried out within 2 hours after suspect presents to investigating police officer, disregarding "time out" (see section 16) Not applicable Procedure must be carried out within 2 hours after suspect presents to investigating police officer, disregarding "time out" (see section 40) Suspect, including person identifying as Aboriginal person or Torres Strait Islander (not a child or an incapable person), not under arrest 3 Not applicable Not applicable Procedure must be carried out not later than 2 hours after the end of the investigation period permitted under section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002, disregarding "time out" (see Division 4 of Part 5) Child or an incapable person, under arrest 4 Suspect may be detained in accordance with Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002, for 2 hours after the end of the investigation period permitted under section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002, disregarding "time out" (see section 7 (3) and (4)) Suspect may be detained in accordance with Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002, for 2 hours after the end of the investigation period permitted under section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002, disregarding "time out" (see section 17 (3) and (4)) Procedure must be carried out not later than 2 hours after the end of the investigation period permitted under section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002, disregarding "time out" Suspect, including person identifying as Aboriginal person or Torres Strait Islander (not a child or an incapable person), under arrest Part 3 Forensic procedures on suspect by consent 7 Forensic procedure may be carried out with informed consent of suspect (1) A person is authorised to carry out a forensic procedure on a suspect with the informed consent of the suspect. The person is authorised to carry out the procedure in accordance with Part 6 and not otherwise. (2) This Part does not authorise the carrying out of a forensic procedure on a suspect who is— (a) a child, or (b) an incapable person. (3) This Part does not authorise keeping a suspect under arrest, in order to carry out a forensic procedure, for more than 2 hours after the expiration of the investigation period provided for by section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002. (4) In working out any period of time for the purposes of subsection (3), any time out is to be disregarded. (5) Nothing in this Act or Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 prevents the carrying out of a forensic procedure, with the informed consent of the suspect, during the investigation period provided for by section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002. However, neither carrying out the forensic procedure, nor any delays associated with carrying out the forensic procedure, operates to extend the investigation period provided for by section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002. 8 Police officer to ask whether suspect identifies as Aboriginal person or Torres Strait Islander Before asking a suspect to consent to a forensic procedure under this Part, a police officer must ask the suspect whether the suspect identifies as an Aboriginal person or Torres Strait Islander. 9 Informed consent to forensic procedures—general (1) This section applies where— (a) a police officer intends to ask a suspect to consent to a forensic procedure, and (b) the suspect does not identify as an Aboriginal person or Torres Strait Islander. (2) A suspect gives informed consent to a forensic procedure if the suspect consents after a police officer— (a) asks the suspect to consent to the forensic procedure under section 11, and (b) personally or in writing, gives the suspect— (i) the information that the suspect must be given under section 13 (1) (a), (e), (f), (g), (i), (j) and (k), and (ii) a description of the nature of the information that the suspect must be given under section 13 (1) (b), (c) and (d) (but not the specific information that the suspect is to be given under these paragraphs in relation to the particular forensic procedure), and (c) informs the suspect about the forensic procedure in accordance with section 13, and (d) gives the suspect a reasonable opportunity to communicate, or attempt to communicate, with an Australian legal practitioner of the suspect's choice and, subject to subsection (3), to do so in private. (3) If the suspect is under arrest, the police officer need not allow the suspect to communicate, or attempt to communicate, with the Australian legal practitioner in private if the police officer suspects on reasonable grounds that the suspect might attempt to destroy or contaminate any evidence that might be obtained by carrying out the forensic procedure. 10 Informed consent to forensic procedures—Aboriginal persons and Torres Strait Islanders (1) This section applies where— (a) a police officer intends to ask a suspect to consent to a forensic procedure, and (b) the suspect identifies as an Aboriginal person or Torres Strait Islander. (2) A suspect gives informed consent to a forensic procedure if the suspect consents after a police officer— (a) asks the suspect to consent to the forensic procedure under section 11, and (b) gives the suspect a written statement setting out— (i) the information that the suspect must be given under section 13 (1) (a), (e), (f), (g), (h), (i), (j) and (k), and (ii) the nature of the information that the suspect must be given under section 13 (1) (b), (c) and (d) (but not the specific information that the suspect is to be given under these paragraphs in relation to the particular forensic procedure), and (c) informs the suspect about the forensic procedure in accordance with section 13, and (d) complies with the rest of this section. (3) The police officer must not ask the suspect to consent to the forensic procedure unless— (a) an interview friend is present, or (b) the suspect has expressly and voluntarily waived his or her right to have an interview friend present. Note— Section 106 relates to proving a waiver under paragraph (b). (4) Before asking the suspect to consent to a forensic procedure, the police officer must— (a) inform the suspect that a representative of an Aboriginal legal aid organisation will be notified that the suspect is to be asked to consent to a forensic procedure, and (b) notify such a representative accordingly. (5) The police officer is not required to comply with subsection (4) if he or she is aware that the suspect— (a) has arranged for a legal representative to be present, or (b) has expressly and voluntarily waived his or her right to have a legal representative present, while the suspect is being asked to consent to the forensic procedure. (6) After asking a suspect covered by subsection (3) (b) to consent to a forensic procedure, the police officer must give the suspect a reasonable opportunity to communicate, or attempt to communicate, with an Australian legal practitioner of the suspect's choice and, subject to subsection (8), to do so in private. (7) After asking a suspect not covered by subsection (3) (b) to consent to a forensic procedure, the police officer must allow the suspect to communicate with the interview friend (if any), and with the suspect's legal representative (if any), and, subject to subsection (8), to do so in private. (8) If a suspect covered by subsection (6) or (7) is under arrest, the police officer need not allow the suspect to communicate, or attempt to communicate, with the Australian legal practitioner, or the suspect's interview friend or legal representative, in private if the police officer suspects on reasonable grounds that the suspect might attempt to destroy or contaminate any evidence that might be obtained by carrying out the forensic procedure. (9) An interview friend (other than a legal representative) of the suspect may be excluded from the presence of the police officer and the suspect if— (a) the interview friend unreasonably interferes with or obstructs the police officer in asking the suspect to consent to the forensic procedure, or in informing the suspect as required by section 13, or (b) the 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