Australian Capital Territory Numbered Regulations

COURT PROCEDURES AMENDMENT RULES 2012 (NO 2) (NO 43 OF 2012) - REG 39

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Part 4.4     Forensic proceedings

Division 4.4.1     Forensic proceedings—preliminary

4800     Definitions—pt 4.4

In this part:

"forensic proceeding" means a proceeding in relation to an application to carry out a forensic procedure under the Act

.

"the Act "means the Crimes (Forensic Procedures) Act 2000

.

4801     Forensic proceedings—application of applied civil rules

    (1)     The applied civil rules apply to a forensic proceeding as if—

        (a)     a reference to a proceeding were a reference to a forensic proceeding; and

        (b)     a reference to an active party were a reference to each party to the proceeding; and

        (c)     any other necessary changes were made.

    (2)     In this rule:

"applied civil rules "means division 2.12.1 (Expert evidence generally).

4802     Forensic proceedings—application of applied criminal rules

    (1)     The applied criminal rules apply to a forensic proceeding as if—

        (a)     a reference to a criminal proceeding were a reference to a forensic proceeding; and

        (b)     a reference to an accused person were a reference to—

              (i)     for division 4.4.2—a suspect; or

              (ii)     for division 4.4.3—a serious offender.

    (2)     In this rule:

"applied criminal rules "means the following:

              •     division 4.1.2 (Criminal proceedings—service)

              •     rule 4053 (Criminal proceedings—inspection of registry files)

              •     division 4.3.2 (Supreme Court criminal proceedings—representation).

Division 4.4.2     Forensic proceedings under the Act, pt 2.5

4803     Application—div 4.4.2

This division applies to a forensic proceeding under the Act

, part 2.5 (Forensic procedures on suspect by order of magistrate).

4804     Forensic proceedings—filing of application

An application to carry out a forensic procedure must be filed in the Magistrates Court.

Note     Under the Act

, pt 2.5, an authorised applicant may apply to a magistrate for—

        (a)     an order authorising the carrying out of a forensic procedure on a suspect (see the Act

, s 35); or

        (b)     an interim order authorising the immediate carrying out of a forensic procedure on a suspect (see the Act

, s 42).

4805     Forensic proceedings—personal service

A sealed copy of the application must be served personally on the suspect at least 7 days before the return date for the application.

Note     Return date , for an application, is defined in the dictionary.

Division 4.4.3     Forensic proceedings under the Act, pt 2.7

4806     Application—div 4.4.3

This division applies to a forensic proceeding under the Act

, part 2.7 (Carrying out of certain forensic procedures after conviction of serious offenders).

4807     Forensic proceedings—application and service

    (1)     If an application to carry out a forensic procedure on a serious offender is made to the court that is sentencing the offender—

        (a)     notice of the application must be given to the offender at least 7 days before the sentencing; and

        (b)     the application must be made orally at the sentencing.

    (2)     If an application to carry out a forensic procedure on a serious offender is made to a court after the sentencing of the offender—

        (a)     the application must be filed with the court; and

        (b)     a sealed copy of the application must be served personally on the offender at least 7 days before the return date for the application.

Note 1     Return date , for an application, is defined in the dictionary.

Note 2     Under the Act

, pt 2.7, a police officer may apply to any court for an order for the carrying out of an intimate or non-intimate forensic procedure for a serious offender in certain circumstances (see the Act

, s 77 (1) and (2)). The application may be made to the court that is sentencing the serious offender or to any other court at a later time (see the Act

, s 77 (3)).

Division 4.4.4     Forensic proceedings—general

4808     Forensic proceedings—application not served in time

    (1)     This rule applies if—

        (a)     either—

              (i)     an application under rule 4804 is served on a suspect; or

              (ii)     an application under rule 4807 is served on a serious offender; but

        (b)     the application is not served at least 7 days before the return date for the application.

Note     Return date , for an application, is defined in the dictionary.

    (2)     The court may only hear and decide the application on the return date if the court considers it just to hear and decide the application on that date and—

        (a)     the court is satisfied that the suspect or serious offender will suffer no significant prejudice if it hears and decides the application on the return date; or

        (b)     the suspect or serious offender agrees to the court hearing and deciding the application on the return date.

4809     Forensic proceedings—filing and service of supporting affidavit

    (1)     For an application under rule 4804 or rule 4807, the supporting affidavit must be filed in the court and a stamped copy then served with the application.

    (2)     However, the court may give leave for an affidavit not served as required by subrule (1) to be relied on at the hearing.

Note     Pt 6.2 (Applications in proceedings) applies to an application for leave.

4810     Forensic proceedings—costs

    (1)     This rule applies if an application under this part is unsuccessful.

    (2)     The court may order that the applicant pay the suspect's or serious offender's costs if there are special or exceptional circumstances that justify the order.