Crimes Act 1914

This section applies to a sample taken from a suspect under this Part if:

there is not sufficient material to be analysed both in the investigation of the offence and on behalf of the suspect; and

the material does not need to be analysed immediately after the sample is taken.

The suspect is entitled to request the investigating constable that a person (the attendee) of the suspect’s choice be present while the material is analysed in the investigation of the offence.

Section 23YE provides that the request may be made by the suspect’s legal representative or interview friend.

The investigating constable must then inform the suspect that the attendee may be directed by the person (the analyst) responsible for analysing the material to leave the premises at which the analysis is being conducted if the attendee does not comply with instructions given by the analyst in relation to the analysis of the material.

Subject to this section, the attendee is to be present at the analysis of the material unless he or she:

is unable, or does not wish, to attend; or

cannot be contacted;

The analyst may give instructions to the attendee relating to the analysis of the material.

The analyst may give a direction to the attendee to leave the premises at which the analysis is being conducted if the attendee fails to comply with such an instruction.

If the analyst gives such a direction, the analyst must inform the attendee that a failure to comply with the direction is an offence against subsection (7). A failure to comply with this subsection does not affect the validity of the direction.

The attendee commits an offence if:

the attendee is given a direction under subsection (5); and

the attendee fails to comply with the direction.

An offence against subsection (7) is an offence of strict liability.

For strict liability, see section 6.1 of the Criminal Code.