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CRIMES ACT 1958 - SECT 464T

Court may order compulsory procedure

S. 464T(1) amended by No. 37/2014 s. 10(Sch. item 36.27(a)(ii)).

    (1)     If—

        (a)     a person refuses to undergo a forensic procedure after being requested to do so or is incapable of giving informed consent by reason of mental impairment; and

        (b)     the sample or examination sought may be obtained by a compulsory procedure; and

        (c)     the person is a relevant suspect [35] ; and

S. 464T(1)(d) amended by No. 37/2014 s. 10(Sch. item 36.27 (a)(i)).

        (d)     a police officer believes on reasonable grounds that the person has committed the offence in respect of which the procedure was requested—

the police officer may apply to the Magistrates' Court for an order directing the person to undergo the compulsory procedure.

    (2)     An application under subsection (1)—

S. 464T(2)(a) amended by No. 6/2018 s. 68(Sch. 2 item 35.3).

        (a)     must be in writing supported by evidence on oath or by affirmation or by affidavit; and

        (b)     if the person is a detained or protected person, must state that fact and identify the place where the person is held or resides; and

        (c)     must specify the type of compulsory procedure sought to be conducted.

    (3)     The Court may make an order directing a person to undergo a compulsory procedure if the Court is satisfied on the balance of probabilities that—

        (a)     the person is a relevant suspect; and

        (b)     there are reasonable grounds to believe that the person has committed the offence in respect of which the application is made; and

S. 464T(3)(c) amended by No. 81/1997
s. 17(1).

        (c)     in the case of an application for a sample other than one referred to in paragraph (d), any of the following applies—

              (i)     material reasonably believed to be from the body of a person who committed the offence has been found—

    (A)     at the scene of the offence; or

    (B)     on the victim of the offence or on anything reasonably believed to have been worn or carried by the victim when the offence was committed; or

    (C)     on an object or person reasonably believed to have been associated with the commission of the offence; or

              (ii)     there are reasonable grounds to believe that, because of the nature of the offence or injuries inflicted during the commission of the offence, material from the body or clothing of the victim is present—

    (A)     on the person who committed the offence or on anything reasonably believed to have been worn or carried by that person when the offence was committed; or

S. 464T(3)(c) (ii)(B) amended by No. 81/1997
s. 17(2).

    (B)     on an object reasonably believed to have been associated with the commission of the offence; or

S. 464T(3) (c)(iii)
inserted by No. 81/1997
s. 17(3).

              (iii)     the victim of the offence has not been found, and there are reasonable grounds to believe that material reasonably believed to be from the body of the victim is present on a person suspected of having committed the offence; or

S. 464T(3) (c)(iv)
inserted by No. 81/1997
s. 17(3).

              (iv)     the offence in respect of which the application is made is an offence against a provision of Subdivision (8A), (8B) or (8C) of Division 1 of Part I and there are reasonable grounds to believe that the conduct of the procedure on the person may be relevant in determining the paternity of a child that has been conceived allegedly as a result of the offence; and

        (d)     in the case of an application to take a sample or washing from the skin to determine the presence of gunshot residue, a firearm was discharged during the commission of the offence; and

        (e)     in the case of an application to conduct a physical examination, the person who committed the offence had distinguishing marks or injuries, whether acquired during the commission of the offence or otherwise; and

        (f)     there are reasonable grounds to believe that the conduct of the procedure on the person may tend to confirm or disprove his or her involvement in the commission of the offence; and

        (g)     the person has refused to give consent to a request under section 464R(1) or the person is incapable of giving informed consent by reason of mental impairment; and

        (h)     in all the circumstances, the making of the order is justified.

    (4)     Except on an application made in accordance with section 464V or 464W, the Magistrates' Court must not make an order directing a person to undergo a compulsory procedure unless the person is present.

    (5)     A relevant suspect in respect of whom an application is made—

        (a)     is not a party to the application; and

        (b)     may not call or cross-examine any witnesses; and

        (c)     may not address the Court, other than in respect of any matter referred to in subsection (3)(a) to (h).

S. 464T(6) amended by No. 35/1996
s. 453(Sch. 1 item 16.17).

    (6)     In exercising the right of address under subsection (5)(c), a relevant suspect may be represented by a legal practitioner.

    (7)     If the Magistrates' Court makes an order under subsection (3), it must—

        (a)     give reasons for its decision; and

        (b)     state the evidence on which it is satisfied of the matters referred to in subsection (3); and

        (c)     cause a note of the reasons to be entered in the records of the Court; and

S. 464T(7)(d) amended by No. 37/2014 s. 10(Sch. item 36.27(b)).

        (d)     inform the person ordered to undergo a compulsory procedure that a police officer may use reasonable force to enable the procedure to be conducted.

    (8)     A failure of the Court to comply with subsection (7) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464ZE(1)(a).

S. 464T(9) amended by No. 37/2014 s. 10(Sch. item 36.27(b)).

    (9)     If—

S. 464T(9)(a) amended by No. 37/2014 s. 10(Sch. item 36.27(b)).

        (a)     a police officer proposes to make an application to the Magistrates' Court under subsection (1) in respect of a person; and

        (b)     the person is a detained or protected person—

the Court may, on the application of a police officer, issue a warrant directing the officer-in-charge of the place where the person is held to deliver the person into the custody of the applicant or another police officer for the purpose—

        (c)     of attending the hearing of the application under subsection (1); and

        (d)     if that application is granted, of conducting the procedure on the person.

S. 464T(10) amended by No. 37/2014 s. 10(Sch. item 36.27(b)).

    (10)     A police officer into whose custody the person is delivered under a warrant issued under subsection (9) must return the person to the officer-in-charge of the place where the person was held—

        (a)     forthwith after the hearing of the application under subsection (1); or

        (b)     if the application is granted, within such period after the hearing of the application as reasonably permits the conduct of the procedure on the person.

S. 464U inserted by No. 84/1989 s. 5,
amended by Nos 84/1989 s. 7(d)–(h) (i)(ii), 23/1991 s. 6(2)(3), substituted by No. 129/1993 s. 7.



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