Victorian Current Acts Victorian Current Acts(1) In this section—
S. 464ZF(1) def. of
child amended by No. 72/2004 s. 31(1).
"child" means a child aged 10 years or more but under 18 years;
S. 464ZF(1) def. of forensic sample offence amended by No. 72/2013 s. 9(1).
"forensic sample offence" means any indictable offence or any offence specified in Schedule 8.
S. 464ZF(2) amended by Nos 14/2006 s. 13(1)(a), 37/2014 s. 10(Sch. item 36.34).
(2) If at any time on or after the commencement of section 25 of the Crimes (Amendment) Act 1997 a court finds a person guilty of—
S. 464ZF(2)(a) amended by No. 72/2013 s. 9(2).
(a) a forensic sample offence (within the meaning of that term as then in force); or
(b) an offence of conspiracy to commit, incitement to commit or attempting to commit a forensic sample offence—
a police officer, at any time following that finding but not later than 6 months after the final determination of an appeal against conviction or sentence or the expiration of any appeal period (whichever is the later), may apply to the court for an order directing the person to undergo a forensic procedure for the taking of a sample from any part of the body and the court may make an order accordingly.
S. 464ZF(2AA) inserted by No. 35/2002 s. 28(Sch. item 3.3), amended by No. 14/2006 s. 13(1)(b).
(2AA) If the finding of guilt referred to in subsection (2)—
(a) occurs between 1 January 2002 and the commencement of item 3.4 in the Schedule to the Criminal Justice Legislation (Miscellaneous Amendments) Act 2002 ; and
(b) is in respect of an offence referred to in item 29, 30 or 31 of Schedule 8—
an application under subsection (2) may be made not later than 12 months after the final determination of an appeal against conviction or sentence or the expiration of any appeal period (whichever is the later).
S. 464ZF(2A) inserted by No. 16/2002 s. 10.
(2A) An order under subsection (2) in respect of a person who is not a detained or protected person must include a direction that the person attend—
(a) at a place; and
(b) within a period, commencing after the expiry of the period referred to in subsection (6) during which the order must not be executed—
specified in the order to undergo the forensic procedure.
S. 464ZF(3) amended by No. 37/2014 s. 10(Sch. item 36.34).
(3) If—
S. 464ZF(3)(a) amended by No. 72/2013 s. 9(3).
(a) at any time before the commencement of section 25 of the Crimes (Amendment) Act 1997 , a person has been found guilty by a court of a forensic sample offence (within the meaning of that term as then in force); and
S. 464ZF(3)(b) amended by Nos 48/2006 s. 42(Sch. item 9.3), 26/2014 s. 455(Sch. item 7.4).
(b) at any time on or after that commencement, that person is serving a term of imprisonment or a period of detention in a prison, police gaol or youth justice centre or as a security patient in a designated mental health service for any offence, whether or not a forensic sample offence—
a police officer may apply to the Magistrates' Court or the Children's Court (as the case may be) for an order directing the person to undergo a forensic procedure for the taking of a sample from any part of the body and the court may make an order accordingly.
S. 464ZF(4) amended by No. 37/2014 s. 10(Sch. item 36.34).
(4) In any application to a court under subsection (2) or (3), the police officer must specify the type of sample (whether intimate or non-intimate) sought to be taken in the forensic procedure.
S. 464ZF(5) substituted by No. 41/2004 s. 16, amended by No. 72/2004 s. 31(2).
(5) If, on or after the commencement of the Crimes (Amendment) Act 2004 , an application under subsection (2) or (3) is made in respect of a person aged 18 years or more—
(a) the application may be made without notice to any person; and
(b) the person is not a party to the application; and
(c) the person may not call or cross-examine any witnesses; and
(d) the person may not address the court, other than in response to inquiries made by the court under subsection (8)(c).
S. 464ZF(5A) inserted by No. 41/2004 s. 16.
(5A) If, on or after the commencement of the Crimes (Amendment) Act 2004 , an application under subsection (2) or (3) is made in respect of a child—
(a) notice of the application must be served on the child and a parent or guardian of the child; and
(b) the child is not a party to the application; and
(c) the child may not call or cross-examine any witnesses; and
(d) the child may not address the court, other than in respect of any matter referred to in subsection (8)(a) or (b) or in response to inquiries made by the court under subsection (8)(c).
S. 464ZF(5B) inserted by No. 41/2004 s. 16.
(5B) In exercising the right of address under subsection (5A)(d), a child may be represented by a legal practitioner, or, with the leave of the court, a parent or guardian of the child.
S. 464ZF(6) amended by No. 14/2006 s. 13(1)(c)(i)(ii).
(6) An order made by a court under subsection (2) or (3) before the appeal period in relation to the conviction for the forensic sample offence has expired or an appeal against conviction (if any) has been finally determined (whichever is the later), must not be executed unless—
(a) that appeal period expires; or
S. 464ZF(6)(b) amended by No. 14/2006 s. 13(1)(c)(ii).
(b) an appeal against conviction (if any) is finally determined and the conviction for the forensic sample offence is upheld—
whichever is the later.
S. 464ZF(6A) inserted by No. 14/2006 s. 13(2).
(6A) If leave to appeal against a conviction for a forensic sample offence is sought after the expiry of the appeal period in relation to the conviction, an order made by a court under subsection (2) before leave to appeal is sought, if not executed before that leave is sought, must not be executed unless—
(a) leave to appeal against the conviction is refused; or
(b) leave to appeal against the conviction is granted and the appeal is finally determined and the conviction for the forensic sample offence is upheld.
S. 464ZF(6B) inserted by No. 14/2006 s. 13(2).
(6B) If an order made by a court under subsection (2) has been executed after the expiration of the appeal period in relation to the conviction for the forensic sample offence and leave to appeal against the conviction is granted after the expiry of that period—
S. 464ZF
(6B)(a) amended by No. 37/2014 s. 10(Sch. item
36.34).
(a) any sample and any related material and information taken may be retained by a police officer pending the final determination of the appeal against conviction; and
S. 464ZF
(6B)(b) amended by No. 68/2009 s. 97(Sch. item 40.36).
(b) if, on appeal, the conviction for the forensic sample offence is set aside, the Chief Commissioner of Police must without delay destroy, or cause to be destroyed, any sample taken and any related material and information.
S. 464ZF(7) amended by No. 68/2009 s. 97(Sch. item 40.36).
(7) If on appeal a conviction for the forensic sample offence is set aside, an order made by a court under subsection (2) or (3) ceases to have effect.
(8) A court hearing an application under subsection (2) or (3)—
(a) must take into account the seriousness of the circumstances of the forensic sample offence in determining whether to make the order under subsection (2) or (3); and
(b) must be satisfied that, in all the circumstances, the making of the order is justified; and
S. 464ZF(8)(c) amended by No. 6/2018 s. 68(Sch. 2 item 35.11).
(c) may make such inquiries on oath or by affirmation or otherwise as it considers desirable.
(9) If a court makes an order under subsection (2) or (3), it must—
(a) give reasons for its decision and cause a copy of the order and reasons to be served—
(i) if the order directs a person (other than a child) to undergo the forensic procedure, on the person; or
(ii) if the order directs a child to undergo the forensic procedure, on the child and a parent or guardian of the child; and
S. 464ZF(9)(b) amended by No. 37/2014 s. 10(Sch. item 36.34).
(b) inform the person ordered to undergo the forensic procedure that a police officer may use reasonable force to enable the procedure to be conducted.
(10) A failure of a court to comply with subsection (9) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464ZE(1)(a).
S. 464ZF(11) repealed by No.
80/1998
s. 3(d).
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S. 464ZFAAA inserted by No. 27/2006 s. 9.