New South Wales Consolidated Acts

CRIMES (FORENSIC PROCEDURES) ACT 2000 - SECT 82

82 Inadmissibility of evidence from improper forensic procedures

(1) This section applies where--

(a) a forensic procedure has been carried out on a person, and

(b) there has been any breach of, or failure to comply with--

(i) any provision of this Act in relation to a forensic procedure carried out on a person (including, but not limited to, any breach of or failure to comply with a provision requiring things to be done at any time before or after the forensic procedure is carried out), or

(ii) any provision of Part 11 with respect to recording or use of information on the DNA database system.

(2) This section does not apply if--

(a) a provision of this Act required forensic material to be destroyed, and

(b) the forensic material has not been destroyed.

Note : Section 83 applies where this Act requires forensic material to have been destroyed.

(3) This section applies--

(a) to evidence of forensic material, or evidence consisting of forensic material, taken from a person by a forensic procedure, and

(b) to evidence of any results of the analysis of the forensic material, and

(c) to any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure.

(4) If this section applies, evidence described in subsection (3) is not admissible in any proceedings against the person in a court unless--

(a) the person does not object to the admission of the evidence, or

(b) in the opinion of the court the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was not obtained in compliance with the provisions of this Act, or

(c) in the opinion of the court, the breach of, or failure to comply with, the provisions of this Act arose out of mistaken but reasonable belief as to the age of a child.

(5) The matters that may be considered by the court for the purposes of subsection (4) (b) are the following--

(a) the probative value of the evidence,

(b) the reasons given for the failure to comply with the provision of this Act,

(c) the gravity of the failure to comply with the provisions of this Act, and whether the failure deprived the person of a significant protection under this Act,

(d) whether the failure to comply with the provision of this Act was intentional or reckless,

(e) the nature of the provision of this Act that was not complied with,

(f) the nature of the offence concerned and the subject matter of the proceedings,

(g) whether admitting the evidence would seriously undermine the protection given to suspects by this Act,

(h) whether the breach of or failure to comply with the provision of this Act was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights,

(i) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the breach or failure to comply,

(j) the difficulty (if any) of obtaining the evidence without contravention of an Australian law,

(k) any other matters the court considers to be relevant.

(6) The probative value of the evidence does not by itself justify the admission of the evidence.

(7) If a judge permits evidence to be given before a jury under subsection (4), the judge must--

(a) inform the jury of the breach of, or failure to comply with, a provision of this Act, and

(b) give the jury such warning about the evidence as the judge thinks appropriate in the circumstances.