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CRIMES ACT 1914 - SECT 23WI

Matters to be considered by constable before requesting consent to forensic procedure

             (1)  The constable must be satisfied on the balance of probabilities that:

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

                     (b)  there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and

                     (c)  the request for consent to the forensic procedure is justified in all the circumstances; and

                     (d)  the person on whom the forensic procedure is proposed to be carried out is not a child or an incapable person.

             (2)  In determining whether a request is justified in all the circumstances, the constable must:

                     (a)  if the forensic procedure has been requested by a foreign law enforcement agency--balance the public interest in Australia providing and receiving international assistance in criminal matters against the public interest in upholding the physical integrity of the suspect; and

                     (b)  in any other case--balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.

             (3)  In balancing those interests, the constable must have regard to the following matters:

                     (a)  the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;

                     (b)  the degree of the suspect's alleged participation in the commission of the relevant offence;

                     (c)  the age, physical health and mental health of the suspect, to the extent that they are known to the constable or can reasonably be discovered by the constable (by asking the suspect or otherwise);

                     (e)  whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence;

                      (f)  any other matter considered relevant to balancing those interests.

             (4)  Without limiting the matters that the constable may take into account in considering, for the purposes of paragraph (3)(e), the intrusiveness of the forensic procedure, the constable must (where appropriate) take into account the religious beliefs of the suspect.



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