Victorian Current Acts Victorian Current ActsS. 464ZE(1) amended by Nos
81/1997
s. 24(1)(a), 16/2002 s. 9, 3/2019 s. 60(2)(a).
(1) Subject to subsection (4) and section 464ZGO, evidence obtained as a result of a DNA profile sample taken from a person or a forensic procedure conducted on a person, or from a sample voluntarily given by a person in accordance with sections 464ZGB to 464ZGD, is inadmissible as part of the prosecution case in proceedings against that person for any offence if—
S. 464ZE(1)(a) amended by No.
81/1997
s. 24(1)(b).
(a) the requirements of sections 464R to 464ZA, sections 464ZF to 464ZFB, sections 464ZGB to 464ZGD or section 464ZGF (as the case may be) have not been complied with; or
S. 464ZE (1)(ab) inserted by No.
80/1998
s. 3(b), amended by No. 3/2019 s. 60(2)(b).
(ab) a copy of a forensic report relating to the taking of the sample or the procedure required by section 464ZD to be given or sent by registered post to a person had not been given or sent to that person before the end of the period of 7 days after its receipt by the prosecution; or
S. 464ZE(1)(b) amended by No. 3/2019 s. 60(2)(c).
(b) the taking of the sample or the procedure was not conducted in accordance with the prescribed standards, if any; or
(c) any sample taken was not analysed—
(i) in accordance with the prescribed standards, if any; or
(ii) if the regulations so require, by an analyst authorised under section 464ZB; or
S. 464ZE(1)(d) amended by Nos
81/1997
s. 24(1)(c), 27/2006 s. 8, 3/2019 s. 60(2)(d)(ii).
(d) any sample taken and any information which may identify the person contained in—
S. 464ZE(1)(d)(i) amended by No. 3/2019 s. 60(2)(d)(i).
(i) any record of or report relating to the taking of the sample or the forensic procedure; or
(ii) any copy of such a record or report—
should have been but has not been destroyed as required by section 464ZF, 464ZFAAA, 464ZFAC, 464ZFC, 464ZG, 464ZGA or 464ZGE; or
(e) the evidence was obtained as a result of a procedure conducted in accordance with an interim order which subsequently is not confirmed under section 464V(7).
S. 464ZE(2) amended by Nos
81/1997
s. 24(2)(a), 80/1998 s. 3(c), 3/2019 s. 60(2)(e).
(2) A court may admit evidence obtained as a result of the taking of a DNA profile sample or a forensic procedure, or from a sample voluntarily given by a person in accordance with sections 464ZGB to 464ZGD, otherwise inadmissible by reason of subsection (1)(a) or (1)(ab) if—
S. 464ZE(2)(a) amended by No.
81/1997
s. 24(2)(b).
(a) the prosecution satisfies the court on the balance of probabilities that the circumstances justify the reception of the evidence; or
(b) the accused consents to the reception of the evidence.
S. 464ZE(2A) inserted by No.
81/1997
s. 24(3), amended by No.
80/1998
s. 3(c).
(2A) In determining whether the circumstances justify the reception of evidence otherwise inadmissible by reason of subsection (1)(a) or (1)(ab), the court may have regard to the following—
(a) the probative value of the evidence, including whether equivalent evidence or evidence of equivalent probative value could have been obtained by other means;
S. 464ZE (2A)(b) amended by No.
80/1998
s. 3(c).
(b) the reasons given for the failure to comply with a provision referred to in subsection (1)(a) or (1)(ab);
(c) the gravity of that failure and whether it deprived the person of a significant protection under this Subdivision;
(d) whether that failure was intentional or reckless;
(e) the nature of the requirement that was not complied with;
(f) the nature of the offence alleged against the person and the subject-matter of the proceedings;
(g) whether the reception of the evidence would seriously undermine the protection given to persons under this Subdivision;
(h) any other matters the court considers relevant.
S. 464ZE(3) substituted by No.
81/1997
s. 24(3).
(3) The probative value of the evidence does not by itself justify the reception of the evidence.
S. 464ZE(4) amended by Nos 27/2006 s. 17(29), 3/2019 s. 60(2)(f).
(4) If the taking of a DNA profile sample or the conduct of a forensic procedure is recorded by audiovisual recording, the recording is inadmissible as evidence except—
S. 464ZE(4)(a) amended by No. 3/2019 s. 60(2)(g).
(a) to establish or rebut an allegation that unreasonable force was used to enable the sample to be taken or the procedure to be conducted; or
(b) to determine the admissibility of a confession or admission or other evidence adverse to the accused where the accused alleges that the evidence was induced or obtained by the use of unreasonable force.
S. 464ZE(5) amended by No. 3/2019 s. 60(2)(h).
(5) If evidence obtained as a result of a DNA profile sample taken from a person or a forensic procedure conducted on a person would be admissible in proceedings against that person for an offence, that evidence is admissible in proceedings against that person for a relevant offence within the meaning of section 464ZG.
(6) Evidence obtained as a result of a physical examination conducted in good faith on a person for the purposes of medical or dental treatment is admissible in proceedings against that person for an offence.
S. 464ZF inserted by No. 84/1989 s. 5, substituted by Nos 129/1993
s. 7,
81/1997
s. 25.