Forensic procedure on child
464U Forensic procedure on child
S. 464U inserted by No. 84/1989 s. 5, amended by Nos 84/1989 s. 7(d)–(h) (i)(ii), 23/1991 s. 6(2)(3), substituted by No. 129/1993 s. 7.
S. 464U(1) amended by No. 37/2014 s. 10(Sch. item 36.28), substituted by No. 32/2024 s. 807(1).
A police officer must not do any of the following in respect of a child who was under 12 years of age at the time that the child is alleged to have done any act or made any omission which would constitute an offence if the child had been of the age of criminal responsibility—
request the child to undergo a forensic procedure;
conduct a forensic procedure on the child;
request any other person to conduct a compulsory procedure on the child.
Note
It is conclusively presumed that a child who is under 12 years of age cannot commit an offence—see section 10 of the Youth Justice Act 2024.
S. 464U(2) amended by Nos 72/2004 s. 30(1), 37/2014 s. 10(Sch. item 36.28), 32/2024 s. 807(2).
A police officer must not request a child who is 12 years of age or over but under 18 years of age and who—
is suspected of having committed; or
has been charged with; or
has been summonsed to answer to a charge for—
an offence, whether indictable or summary, to undergo a forensic procedure or request that a compulsory procedure be conducted on the child unless the Children's Court has made an order under subsection (7) or section 464V(5).
S. 464U(3) amended by No. 37/2014 s. 10(Sch. item 36.28).
A police officer may apply to the Children's Court for an order under subsection (7) if the child—
S. 464U(3)(a) amended by Nos 81/1997 s. 18, 61/2001 s. 16(1)(b)(i), 16/2002 s. 17(2), 35/2002 s. 28(Sch. item 3.2).
is suspected on reasonable grounds of having committed or attempted to commit an indictable offence against the person at common law or an indictable offence under Division 1 of Part I or under section 75, 75A, 76, 77, 197 (in circumstances where the offence is charged as arson), 197A, 249, 250, 251, 317, 317A or 318 or under section 71, 71AA, 72 or 72A of the Drugs, Poisons and Controlled Substances Act 1981 or under section 71, 72(1)(ab) or 72(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001; or
S. 464U(3)(b) amended by Nos 81/1997 s. 18, 61/2001 s. 16(1)(b)(ii), 16/2002 s. 17(2), 35/2002 s. 28(Sch. item 3.2).
has been charged with an indictable offence against the person at common law or an indictable offence under Division 1 of Part I or under section 75, 75A, 76, 77, 197 (in circumstances where the offence is charged as arson), 197A, 249, 250, 251, 317, 317A or 318 or under section 71, 71AA, 72 or 72A of the Drugs, Poisons and Controlled Substances Act 1981 or under section 71, 72(1)(ab) or 72(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001.
An application under subsection (3)—
S. 464U(4)(a) amended by No. 6/2018 s. 68(Sch. 2 item 35.3).
must be in writing supported by evidence on oath or by affirmation or by affidavit; and
if the child is a detained or protected person, must state that fact and identify the place where the child is held or resides; and
must specify the type of compulsory procedure sought to be conducted.
Notice of an application under subsection (3) must be served on[34]—
a parent or guardian of the child; and
if the child is not in custody within the meaning of this Subdivision, the child.
The court may dispense with the requirement of subsection (5)(a) if satisfied that it is impracticable for the applicant to comply.
S. 464U(7) amended by Nos 72/2004 s. 30(2), 32/2024 s. 807(3).
The Children's Court may make an order directing a child who is 12 years of age or over but under 18 years of age to undergo a compulsory procedure if satisfied on the balance of probabilities that—
the child is a person referred to in subsection (3)(a) or (b); and
there are reasonable grounds to believe that the child 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), either—
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; 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
S. 464U(7)(f) amended by No. 32/2024 s. 807(4).
there are reasonable grounds to believe that the conduct of the procedure on the child may tend to confirm or disprove the child's involvement in the commission of the offence; and
in all the circumstances, the making of the order is justified.
In considering whether the making of the order is justified, the court must take into account amongst other things—
the seriousness of the circumstances surrounding the commission of the offence; and
the alleged degree of participation by the child in the commission of the offence; and
the age of the child.
If the Children's Court makes an order under subsection (7), it must—
give reasons for its decision; and
state the evidence on which it is satisfied of the matters referred to in subsection (7); and
cause a note of the reasons to be entered in the records of the court; and
S. 464U(9)(d) amended by No. 37/2014 s. 10(Sch. item 36.28).
inform the child 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 (9) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464ZE(1)(a).
S. 46U(11) substituted by No. 55/2025 s. 13(1).
Except as provided for by section 464V(5A), the Children's Court must not make an order under subsection (7) unless—
the child is present in court; or
the court directs that the child is permitted to appear by audio visual link and the child does so appear.
A child 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 (7)(a) to (g) or subsection (8).
S. 464U(13) amended by No. 35/1996 s. 453(Sch. 1 item 16.17).
In exercising the right of address under subsection (12)(c), a child may be represented by a legal practitioner or, with the leave of the court, a parent or guardian of the child.
S. 46U(14) amended by No. 55/2025 s. 13(2).
The provisions of section 464T(9), (10), (11) and (12) apply as if—
a reference to an application to the Magistrates' Court under subsection (1) of that section were a reference to an application to the Children's Court under subsection (3) of this section; and
a reference to the person were a reference to the child; and
a reference to the Magistrates' Court were a reference to the Children's Court.
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