Crimes Amendment (Investigation Powers) Bill 2013

Crimes Amendment (Investigation Powers) Bill 2013

Introduction Print

EXPLANATORY MEMORANDUM

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BILL LA INTRODUCTION 14/10/2013

Clause Notes

Clause 1sets out the purposes of the Bill. The Bill amends the Crimes Act 1958 in relation to—

when forensic procedures may be conducted;

questioning suspects already held for another matter;

destruction requirements for forensic samples;

retention after conviction of forensic samples and related material taken from an adult suspect;

use of samples given voluntarily by police and personnel of the Victorian Institute of Forensic Medicine for elimination purposes.

The Bill also makes consequential amendments to—

the Corrections Act 1986 in relation to questioning suspects already held for another matter; and

thePolice Regulation Act 1958in relation to voluntary DNA samples provided forelimination purposes.

Clause 2provides for the commencement of the Bill.

Subclause (1) provides that the Act comes into operation on a day or days to be proclaimed.

Subclause (2) provides a default commencement date of 1 July 2014.

Clause 3Paragraph (a) amends the definition of relevant suspect in section464(2) of the Crimes Act 1958 toexpand the range of offences for which police can take a DNA sample to all indictable offences.

Paragraph (b) inserts a new definition of destruction into section464(2) of the Crimes Act 1958 to clarify the requirements for the destruction of forensic samples. Under the new definition, destruction means—

the physical destruction of the forensic sample;
the removal of the DNA profile derived from the forensic sample from any DNA database on which matching occurs;
the destruction of the DNA profile in any form that can readily be recombined with information that identifies the person from whom the sample was taken or who gave the sample.

The definition excludes a DNA profile held on an electronic system used for forensic analysis by the Victoria Police Forensic Services Department from the destruction requirement in paragraph (c) of the definition. This exclusion covers equipment where it is technologically difficult to destroy data.

Clause 4Subclause (1) amends section 464B(1)(b) of the Crimes Act 1958. Section 464Bprovides for the questioning of a person already held in prison, or certain other facilities, for another matter. InWallace v Debs(Wallace v Debs & Anor [2009] VSC355), the Supreme Court held that the power to question and investigate in section 464B does not have extraterritorial operation, that is, it does not allow a Victorian prisoner to be questioned in relation to a NSW offence.

The amendment to section 464B(1)(b) provides that the person must be reasonably suspected of having committed an offence either in Victoria or elsewhere. This clarifies that section 464B has extraterritorial operation and is not limited to offences committed in Victoria.

Subclause (2)(a) amends the definition of child to reflect the new procedure of informed consent to questioning (see subclause (3)).

Subclause (2)(b) inserts definitions of investigating official and offence in relation to offences committed outside Victoria to make it clear that interstate and federal police may also apply under the provision. This further clarifies that section 464B has extraterritorial operation.

Subclause (2)(b) also inserts a note that explains that Part IC of theCrimes Act 1914 of the Commonwealth applies if the investigating official is a member of the Australian Federal Police. Part IC contains safeguards that Australian Federal Police members must comply with when questioning a person who is under arrest for aCommonwealth offence or who is a "protected suspect".

Subclause (3) inserts new section 464B(11) to (15) into the Crimes Act 1958. New section 464B(11) provides that people suspected of committing an offence other than the offence for which they are being held can give informed consent to being questioned without a court order.

New section 464B(11) clarifies that the new provision does not apply to children or people who are incapable of giving informed consent by reason of mental impairment. This recognises the vulnerability of these suspects.

Anote at the end of new section 464B(11) explains that section41 of the Corrections Act 1986 may continue to be used in relation to other forms of questioning by police to which this section does not apply (e.g. where a prisoner is thought to have witnessed an offence).

New section 464B(12) prohibits the removal of a person from the place where they are being held for the purpose of questioning after informed consent.

New section 464B(13) sets out how informed consent is given. Itcontains a number of matters that a person must be informed about before they can give informed consent. New section 464B(14) makes it clear that the person has the right to exercise the rights described in new section 464B(13) before deciding whether or not to consent to questioning.

New section 464B(15) states that an audiovisual recording must be made of the investigating official giving this information, any questioning of the person, and any responses by the person. Thisis consistent with other informed consent provisions in the Crimes Act 1958.

Clause 5Subclause (1) amends section 464C(1)(b) of the Crimes Act 1958 toprovidethat it is sufficient if the investigating official indicates that the person may speak to a lawyer rather than a legal practitioner if they are being questioned in regard to the offence for which they are in custody. The term "lawyer" is more commonly understood in the community than "legal practitioner". This provision makes clear that police do not need to use the technical description of legal practitioner.

Subclause (2) amends section 464C(3) of the Crimes Act 1958 to provide that the right to communicate with a friend, relative and legal practitioner applies to questioning under new section 464B(11) when a person gives informed consent to be questioned, in addition to questioning in accordance with an order made under section 464B(5). It also provides that Part IC of the Crimes Act 1914 of the Commonwealth will apply in the case of federal police.

Clause 6amends section 464D(2) of the Crimes Act 1958to provide that the right to an interpreter applies to questioning under new section 464B(11) when a person gives informed consent to be questioned. It qualifies that right by providing that Part IC of the Crimes Act 1914 of the Commonwealth will apply in the case of questioning by federal police.

Clause 7inserts new section 464F(2A) into the Crimes Act 1958to provide that the right of a foreign national to communicate with a consular official applies to questioning under new section 464B(11) when a person gives informed consent to be questioned and to questioning in accordance with an order made under section 464B(5). It qualifies that right by providing that Part IC of the Crimes Act 1914 of the Commonwealth will apply in the case of questioning by federal police.

Clause 8amends section 464G(2) of the Crimes Act 1958to include the requirement in new section 464B(15) that an audiovisual recording be made of certain information.

Clause 9amends section 464ZF(1) of the Crimes Act 1958to expand forensic sample offences from offences specified in Schedule 8 to the Crimes Act 1958 to all indictable offences. This change means that if a person is found guilty of committing any indictable offence then police may apply to the court for an order directing the person to undergo a forensic procedure.

Asthe definition of forensic sample offence has been amended several times since 1997, this amendment provides that the relevant meaning of forensic sample offence is the one that was in force at the time in question, for example, when the person was found guilty in court. This avoids any retroactive operation following the expansion of the definition of forensic sample offence.

Clause 10amends section 464ZFAAA(1) of the Crimes Act 1958to expand forensic sample offences from offences specified in Schedule 8 to the Crimes Act 1958 to all indictable offences. This change means that if, following the commencement of this provision, a person is found not guilty because of mental impairment of committing any indictable offence (other than an offence heard and determined summarily) then police may apply to the court for an order directing the person to undergo a forensic procedure.

As the definition of forensic sample offence has been amended several times, this amendment provides that the relevant meaning of forensic sample offence is the one that was in force at the time in question, for example, when the person was found not guilty because of mental impairment. This avoids any retroactive operation following the expansion of the definition of forensic sample offence.

Clause 11inserts a new section 464ZFB(1AA) into the Crimes Act 1958to allow that forensic samples and any related material taken from an adult suspect who is subsequently found guilty or not guilty by reason of mental impairment of a forensic sample offence may be retained indefinitely. This will not require a court order. Theforensic sample offence must be the same as or connected with the offence that the person was suspected of committing, which formed the basis for taking the sample from the person as a suspect.

New section 464ZFB(1AB) provides that subsection (1AA) does not apply if on appeal—

a findingof guilt or conviction is set aside; or

a verdict of not guilty because of mental impairment is set aside.

Clause 11 amends section 464ZFB(1) and (1A) of the Crimes Act 1958 to provide that a court order for the retention of forensic samples and related material will be required in relation to children.

Clause 12amends section 464ZFC of the Crimes Act 1958, which sets out the Chief Commissioner of Police's obligations to destroy forensic samples and related information to accord with the new retention regime introduced by clause 11 of the Bill.

The amendment provides that the Chief Commissioner of Police must destroy the relevant material obtained from an adult if a finding of guilt, or not guilty because of mental impairment, against a person from whom a sample was taken when they were a suspect is subsequently set aside.

Section 464ZFC already provides that the Chief Commissioner of Police must destroy the relevant material if it was taken from a child suspect,even if the child issubsequently found guilty or not guilty because of mental impairment, unless a court has made an order allowing retention of the material.

Clause 13amends section 464ZG(1) of the Crimes Act 1958 to provide that the definition of relevant offence refers to indictable offences.

Clause 14amends section 464ZGB(3)(e) of the Crimes Act 1958 to provide that it is sufficient if the investigating official indicates that the person may speak to a lawyer rather than a legal practitioner under the informed consent provisions for volunteers giving samples. The term "lawyer" is more commonly understood in the community than "legal practitioner". Thisprovision makes clear that police do not need to use the technical description of legal practitioner.

Clause 15introduces new sections 464ZGFA and 464ZGFB into the Crimes Act 1958. These new sections create a legislative regime for Victoria Police and the Victorian Institute of Forensic Medicine ("VIFM") to obtain and use voluntary DNA samples for elimination purposes. This is intended to minimise the effect of potential DNA contamination in criminal investigations or DNA testing conducted by VIFM, for example where a member of police personnel leaves their own DNA at a crime scene while carrying out an investigation.

Section 464ZGFA provides that members of police personnel, VIFM staff or visitors to VIFM or the Victoria Police Forensic Services Department may voluntarily give a DNA sample to Victoria Police or VIFM in order to eliminate that person as a possible source of DNA in an investigation, or other testing conducted by VIFM in the performance of its objects and functions. Information derived from these samples may only be compared with other information held by Victoria Police or VIFM for that purpose. This new section formalises and regulates the voluntary schemes that have operated at both Victoria Police and VIFM.

Section 464ZGFA(5) provides that evidence of the sample given under the new provisions is inadmissible in certain proceedings, including criminal and civil proceedings.

Section 464ZGFA(8) makes it an offence to knowingly use or disseminate DNA samples that have beengiven under these provisions, and information derived from those samples, other than for the reasons permitted in the new section.

New section 464ZGFB regulates the storage and destruction of elimination samples, to further protect against inappropriate use and retention. Under section 464ZGFB(3) DNA profiles derived from the samples must be stored on a stand-alone database that is not connected to any other database on which matching of DNA profiles occurs.

Section 464ZGFB(4) provides that a DNA sample and any DNA profile derived from the sample must be destroyed when requested by the person who gave the relevant sample or, in the case of members of police personnel, the Director of the Institute or an employee of the Institute, 12 months have elapsed since the person ceased employment.

Under section 464ZGFB(5), these storage and destruction provisions also apply to elimination samples provided before commencement of the Bill by persons to whom the new legislative scheme applies.

Section 464ZGFB(6) makes it an offence to fail to destroy the elimination samples and derived information, as required under the new section, or to use such samples and information.

Clause 16amends section 464ZL of the Crimes Act 1958 to validate any questioning orders made under section 464B(5) of the Crimes Act 1958, before the commencement of this Bill, that may have been made in respect of an offence committed outside Victoria against a law of the Commonwealth or another State or a Territory.

As discussed in relation to clause 4, in Wallace v Debs the Supreme Court of Victoria held that the power to question and investigate in section 464B does not have extraterritorial operation. Validating any orders made under section 464B(5) in relation to an offence committed outside Victoria against a law of the Commonwealth or another State or a Territory will ensure the legality of any relevant criminal investigations. New section 464ZL(8) provides that the validation will not affect the rights of the parties in Wallace v Debs.

Clause 17inserts new section 620 into the Crimes Act 1958 which sets out transitional provisions for the Bill.

Clauses 4, 5(2), 6, 7 and 8 of this Bill apply to questioning for or investigation of any offence that occurs on or after the commencement of those clauses, irrespective of when the offence under investigation is alleged to have been committed.

Clauses 11 and 12 of this Bill apply to persons found guilty, or not guilty because of mental impairment, on or after the commencement of those clauses, irrespective of when the offence is alleged to have been committed.

Clause 18amends Schedule 8 to the Crimes Act 1958. Police may apply to a court to take a DNA sample from a person convicted, or found not guilty because of mental impairment, of a "forensic sample offence" which is defined as an offence listed in Schedule 8. Clause 18 removes the current indictable offences listed in Schedule 8. This is because these offences will be covered by the amended definition of forensic sample offence under clauses 9 and 10 of this Bill. The remaining items in Schedule 8 are repealed offences that shall remain included in the definition of forensic sample offence. This means that, where a person has been convicted, or found not guilty because of mental impairment, of one of these subsequently repealed offences, an application to take a DNA sample can still be made (if the application is made within the statutory time period).

Clause 19amends section 41 of the Corrections Act 1986. That section regulates visits by members of the police force to prisoners. Itdoes not apply to questioning under section 464B(5) of the Crimes Act 1958. Clause 19 extends this exclusion to questioning under the new section 464B(11) of the Crimes Act 1958(inserted by clause 4 of this Bill).

Clause 20makes a consequential amendment to the Police Regulation Act 1958by inserting new Division 4B in Part IV of that Act. Newsection 85I confirms that the Chief Commissioner of Police may request a voluntary sample for elimination purposes in accordance with the new section 464ZGFA of the Crimes Act 1958sections inserted by clause 15 of this Bill.

New section 85J requires the Chief Commissioner of Police to comply with new sections 464ZGFA and 464ZGFB if a member of police personnel volunteers to give an elimination sample.

Clause 21provides for the automatic repeal of this Act on 1 July 2015. Therepeal of this Act does not affect in any way the operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).