Criminal investigations of acquitted accused that need authorised officer’s authority
46C Criminal investigations of acquitted accused that need authorised officer’s authority
In this section —
investigate, an offence, includes to exercise any power under the common law, a written law or a law of the Commonwealth for the purposes of obtaining evidence as to the commission of the offence;
law enforcement officer means —
a police officer; or
a person, other than a police officer, appointed under a written law to an office on which the common law, a written law or a law of the Commonwealth confers powers to investigate offences;
relevant offence means a serious offence, or an AOJ offence, a charge of which may be subject to —
a defence under The Criminal Code section 17 on the ground that the accused has been acquitted as described in that section, other than on account of mental impairment; or
a requirement at law to permanently stay it because it would be an abuse of process.
A law enforcement officer, whether with or without an acquitted accused’s consent, must not investigate or authorise another person to investigate whether the acquitted accused may have committed a relevant offence unless —
under subsection (4), an authorised officer, in writing, has authorised the investigation; or
the law enforcement officer believes on reasonable grounds —
the investigation needs to be done urgently in order to prevent it from being substantially and irrevocably prejudiced; and
it is not reasonably practicable in the circumstances to obtain an authorised officer’s authorisation before doing the investigation.
If a law enforcement officer acts under subsection (2)(b) —
the officer, as soon as it is practicable to do so, must inform an authorised officer of —
the grounds for acting under that provision; and
the action taken;
and
the investigation of the relevant offence must not continue unless, under subsection (4), an authorised officer, in writing, has authorised the investigation.
An authorised officer must not authorise the investigation of a relevant offence unless —
the officer is satisfied a charge of the offence would not be subject to —
a defence under The Criminal Code section 17 on the ground that the accused has been acquitted as described in that section, other than on account of mental impairment; or
a requirement at law to permanently stay it because it would be an abuse of process;
or
the officer is satisfied —
there is, or the investigation is likely to obtain, evidence to justify making an application under this Part for leave to charge the acquitted accused with the relevant offence; and
it is in the public interest to investigate the relevant offence.
[Section 46C inserted: No. 9 of 2012 s. 4; amended: No. 10 of 2023 s. 313.]
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