Crimes Amendment (Forensic Procedures) Bill 2010
Introduction Print
EXPLANATORY MEMORANDUM
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BILL LA INTRODUCTION 5/10/2010
General
The purpose of this Bill is to amend the Crimes Act 1958 to simplify procedures for obtaining and processing DNA samples and to introduce a framework for independent oversight of forensic sampling powers.
Clause Notes
Clause 1 sets out the purposes of the Bill which are—
· to permit police to obtain a DNA sample in relation to all indictable offences;
· to amend the procedures for obtaining and retaining DNA samples;
· to provide for the oversight by the Special Investigations Monitor of the operation of those provisions in the Crimes Act 1958 relating to forensic procedures.
Clause 2 provides for commencement of the Bill.
The Bill comes into operation on a day or days to be proclaimed. If a provision does not come into operation before 1 April 2011 it comes into operation on that day.
Clause 3 amends the definition of crime scene index, substitutes the definition of relevant suspect and inserts a definition of Special Investigations Monitor in section 464(2) of the Crimes Act 1958.
The amendment to the definition of crime scene index reflects the new threshold provided for in amendments to section 464T(3)(c) in clause 6 of the Bill and section 464U(7)(c) in clause 7 of the Bill.
The Bill amends the definition of relevant suspect to refer to anyone over 18 years old who is suspected of having committed an indictable offence or has been charged with an indictable offence. This differs from the previous definition which provided that a relevant suspect was anyone over 18 years old who was suspected or having committed, or had been charged with, specified indictable offences only.
The Bill defines the Special Investigations Monitor as the Special Investigations Monitor appointed under the Major Crime (Special Investigations Monitor) Act 2004.
Clause 4 amends section 464R(1) of the Crimes Act 1958 to lower the threshold for allowing a member of the police force to request a suspect to undergo a forensic procedure.
The Crimes Act 1958 provides that the police must have reasonable grounds to "believe" that the procedure would tend to confirm or disprove the involvement of the suspect in the commission of an indictable offence. Clause 4 amends this to provide that the police must have reasonable grounds to "suspect" that the procedure would tend to confirm or disprove the involvement of the suspect in the commission of an indictable offence.
The other requirements of 464R(1) remain unchanged. That is, the suspect must also—
· be suspected on reasonable grounds of having committed the indictable offence; or
· have been charged with the indictable offence; or
· have been summonsed to answer to a charge for the indictable offence.
Clause 5 amends section 464SA(2)(e) of the Crimes Act 1958 to lower the threshold for allowing a senior police officer to authorise certain compulsory procedures.
Section 464SA of the Crimes Act 1958 provides that a senior police officer can authorise the conduct of a non-intimate compulsory procedure on a person if the senior police officer is satisfied, amongst other things, that there are reasonable grounds to "believe" that the person committed the offence in respect of which the authorisation is sought. Clause 5 amends this to provide that the senior police officer must be satisfied that there are reasonable grounds to "suspect" that the person committed the offence in respect of which the authorisation is sought.
The other requirements of section 464SA(2) remain unchanged.
Clause 6 amends section 464T of the Crimes Act 1958 which sets out when the Magistrates' Court may order that a compulsory procedure be conducted on a suspect.
Clause 6 amends section 464T(1)(d) to lower the threshold for a member of the police force who wishes to apply to the Court for a compulsory procedure order. Section 464T(1) provides that one requirement for making an application to the Magistrates' Court for an order directing a person to undergo a compulsory procedure is that the member making the application "believes" on reasonable grounds that the person has committed the offence in respect of which the procedure is requested. Clause 6 amends this to provide that the member must "suspect" on reasonable grounds that the person committed the offence.
The other requirements of section 464T(1) remain unchanged.
Clause 6 also amends section 464T(3) to lower the threshold for the Magistrates' Court to make a compulsory procedure order. Section 464T(3) provides that the Court can make an order directing a person to undergo a compulsory procedure if, among the other prerequisites listed in section 464T(3), there are reasonable grounds to "believe" that the person committed the offence in respect of which the application is made and that the procedure would tend to confirm or disprove the person's involvement in the offence. Clause 6 amends this to provide that the Court is required to be satisfied that there are reasonable grounds to "suspect" that the person committed the offence and that the procedure would tend to confirm or disprove the person's involvement in the offence.
Clause 6 also amends section 464T(3)(c) to require "suspicion" instead of "belief" in relation to the forensic relevance of the evidentiary material.
Clause 7 amends subsection 464U(7) of the Crimes Act 1958 which sets out when the Children's Court can make an order directing a child aged 10 years or over but under 18 years to undergo a compulsory procedure.
Section 464U(7) provides that the Children's Court can make an order directing a child to undergo a compulsory procedure if the Court is satisfied, among the prerequisites listed in section 464U(7), that there are reasonable grounds to "believe" that the child committed the offence in respect of which the application is made and that the procedure would tend to confirm or disprove the child's involvement in the offence. Clause 7 amends section 464U(7) so that the Court is required to be satisfied that there are reasonable grounds to "suspect" that the child committed the offence and that the procedure would tend to confirm or disprove the child's involvement in the offence.
Clause 7 also amends section 464U(7)(c) to require "suspicion" instead of "belief" in relation to the forensic relevance of the evidentiary material.
Clause 8 amends section 464V of the Crimes Act 1958 which concerns interim orders for compulsory procedures.
Clause 8 amends section 464V(2) to lower the threshold for a member of the police force to apply to the Magistrates' Court for an interim order directing a person to undergo a compulsory procedure. Under section 464V(2) the member must "believe" on reasonable grounds that the sample or evidence sought to be obtained by the compulsory procedure is likely to be lost if the procedure is delayed until the final determination of the application. Clause 8 amends this to require the member to "suspect" on reasonable grounds that the sample or evidence is likely to be lost if the procedure is delayed.
Clause 8 also amends section 464V(4) to make a similar change in relation to interim orders applied for by telephone.
Clause 9 amends section 464Z of the Crimes Act 1958 which sets out the procedure for physically taking forensic samples.
Section 464Z(7A)(a) provides that a person can take only so much hair as the person "believes" is necessary for analysis of the sample. Clause 9 amends this to provide that the person can take only so much hair as they "suspect" is necessary for that purpose. This change ensures consistency in terminology in relation to relevant states of mind.
Clause 10 amends section 464ZC(1) and (2) of the Crimes Act 1958 which set out the procedure for sharing the physical evidential material found at the scene of an offence with a person from whom a sample has been taken, so that that person can conduct their own analysis.
Clause 11 amends section 464ZF of the Crimes Act 1958 which provides for the conduct of a forensic procedure following a finding of guilt.
Under section 464ZF, the police can apply for an order directing a person who has been found guilty of a "forensic sample offence" to undergo a forensic procedure. Clause 11 amends section 464ZF to allow an application to be made, and an order granted, for a forensic procedure following a finding of guilt in relation to any indictable offence, not just "forensic sample offences".
The definition of forensic sample offence has been preserved but modified in section 464ZF in order to enable police to continue to make applications under section 464ZF(3) for forensic procedure orders in relation to offenders in custody.
Clause 12 amends section 464ZFAAA of the Crimes Act 1958 which provides for the conduct of a forensic procedure on a person who is found not guilty because of mental impairment.
The police can apply for an order directing a person who has been found not guilty because of mental impairment of a "forensic sample offence" to undergo a forensic procedure. Clause 12 amends this to allow an application to be made, and an order granted, for a forensic procedure following a finding of not guilty because of mental impairment in relation to any indictable offence.
Clause 13 amends section 464ZFE of the Crimes Act 1958 to require the Chief Commissioner of Police to give a copy of each report to the Special Investigations Monitor at the same time as it is submitted to the Attorney-General.
Clause 14 amends section 464ZG(5) of the Crimes Act 1958 to enable a court to extend to any specified length of time the retention period of a forensic sample obtained from a person who has not been charged with a relevant offence within 12 months after the taking of the sample, or who has been charged but that charge has not been not proceeded with. The extended time frame is particularly important in relation to absconders as it is not known when they will next be amenable to justice.
Clause 15 amends section 464ZGF of the Crimes Act 1958 which concerns applications to retain a forensic sample given by a volunteer when the person who volunteered it withdraws their consent.
This clause amends section 464ZGF(1)(a), (1)(b) and (2)(a) to require "suspicion" instead of "belief" in relation to the forensic relevance of the evidentiary material.
Clause 16 inserts new sections 464ZHA and 464ZHB into the Crimes Act 1958. These sections provide for monitoring and oversight of the forensic procedure powers in the Crimes Act 1958 by the Special Investigations Monitor.
A model of oversight with similar powers to those involved with surveillance devices under the Surveillance Devices Act 1999 is proposed. This audit role will improve compliance with the legislation and, in turn, the reliability of DNA evidence.
Clause 17 inserts new section 617 into the Crimes Act 1958 which sets out the transitional provisions for the amendment of the Crimes Act 1958 by the Bill.
The forensic procedure amendments concerning suspects will apply to forensic procedure applications made on or after commencement, irrespective of when the offence is alleged to have been committed. This means that the new destruction requirements will apply to all samples from the date of commencement, irrespective of whether the sample was collected before or after commencement.
A different transitional scheme applies for the forensic procedure amendments which relate to offenders. This is because the sampling will occur after a finding of guilty or not guilty because of mental impairment. Therefore forensic procedure amendments relating to offenders apply to anyone found guilty or not guilty because of mental impairment on or after commencement.
Section 617(4) will preserve the operation of section 464ZF as in force before commencement in relation to an application under section 464ZF made on or after commencement in relation to a finding of guilt before commencement. That scheme will apply to offenders found guilty of a Schedule 8 offence before commencement of this Bill. This permits an application to be made where a person is found guilty before the commencement day and the application is made after the commencement day, provided it is within the time limits for an application.
Section 617(6) makes similar provision in relation to findings of not guilty because of mental impairment.
Clause 18 provides that this amending Act is repealed on 1 April 2012.
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