Crimes Act 1914

An offender gives informed consent to a forensic procedure if the offender consents after a constable:

requests the offender to consent to the forensic procedure under section 23XWH; and

informs the offender, in accordance with the regulations and section 23XWJ, of the matters mentioned in that section; and

gives the offender the opportunity to communicate, or attempt to communicate, with a legal practitioner of the offender’s choice.

The constable must allow the offender to communicate, or attempt to communicate, with the legal practitioner in private unless the constable suspects on reasonable grounds that the offender might attempt to destroy or contaminate any evidence that might be obtained by carrying out the forensic procedure.

Section 23YI states that the burden lies on the prosecution to prove on the balance of probabilities that a constable had a suspicion on reasonable grounds.