Australian Capital Territory Current Acts

CRIMES (FORENSIC PROCEDURES) ACT 2000 - SECT 34

    (1)     The magistrate must be satisfied on the balance of probabilities that—

        (a)     the person on whom the forensic procedure is proposed to be carried out is a suspect; and

        (b)     if the forensic procedure is a procedure other than the taking of a handprint, fingerprint, footprint or toeprint—the offence for which the person is a suspect is a serious offence and, on the evidence before the magistrate, there are reasonable grounds to believe that the suspect committed—

              (i)     that offence; or

              (ii)     another serious offence arising out of the same circumstances as that offence; or

              (iii)     another serious offence for which the evidence likely to be obtained because of carrying out the procedure on the suspect is likely to have probative value; and

        (c)     if the forensic procedure is the taking of a handprint, fingerprint, footprint or toeprint—the offence for which the person is a suspect is an offence other than an offence that may be dealt with by way of infringement notice and, on the evidence before the magistrate, there are reasonable grounds to believe that the suspect committed—

              (i)     that offence; or

              (ii)     another offence (other than an offence that may be dealt with by way of infringement notice) arising out of the same circumstances as that offence; or

              (iii)     another offence (other than an offence that may be dealt with by way of infringement notice) for which the handprints, fingerprints, footprints or toeprints are likely to have probative value; and

        (d)     the carrying out of the forensic procedure is justified in all the circumstances.

    (2)     In deciding whether the carrying out of the forensic procedure is justified in all the circumstances, the magistrate must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.

    (3)     In balancing those interests, the magistrate must have regard to the following matters:

        (a)     the seriousness of the circumstances surrounding the commission of the offence and the gravity of the offence;

        (b)     the degree of the suspect's alleged participation in the commission of the offence;

        (c)     the age, physical and mental health and cultural background of the suspect, to the extent that they are known to the magistrate;

        (d)     if the suspect is a child or incapable person—the best interests of the suspect;

        (e)     whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the offence;

        (f)     if the suspect gives any reasons for refusing to consent—the reasons;

        (g)     if the suspect is in custody and the investigation period when the suspect may lawfully be held has not expired—

              (i)     the period for which the suspect has already been detained; and

              (ii)     the reasons for any delay in proposing the carrying out of the forensic procedure;

        (h)     any other matter considered relevant to balancing those interests.