Crimes Act 1958

If—

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

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

the person is a relevant suspect^[33]; and

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

An application under subsection (1)—

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

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

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

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—

the person is a relevant suspect; and

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

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

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

at the scene of the offence; or

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

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

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—

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

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

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

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

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

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

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

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

in all the circumstances, the making of the order is justified.

Except as provided for by section 464V(5A), the Magistrates' Court must not make an order directing a person to undergo a compulsory procedure unless the person is present in court or appearing by audio visual link.

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

is not a party to the application; and

may not call or cross-examine any witnesses; and

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

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

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

give reasons for its decision; and

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

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

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

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).

If—

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

the person is a detained or protected person—

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

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

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—

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

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.

If—

the Magistrates' Court grants an application under subsection (1) in respect of a detained or protected person; and

that person appears by audio visual link at the hearing of the application—

A police officer into whose custody the person is delivered under a warrant issued under subsection (11) must return the person to the officer in charge of the place where the person was held within such period after the person was delivered into the police officer's custody as reasonably permits the conduct of the procedure on the person.