Victorian Current Acts Victorian Current Acts(1) In this section—
"DNA offence" means—
(a) an indictable offence or an offence specified in Schedule 8; or
(b) any offence of conspiracy to commit, incitement to commit or attempting to commit an indictable offence or an offence specified in Schedule 8.
(2) A senior police officer may authorise the taking of a DNA profile sample from a person if—
(a) the person—
(i) is found guilty of a DNA offence; or
(ii) is found not guilty of a DNA offence, other than an offence heard and determined summarily, because of mental impairment under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ; and
(b) it is not more than 6 months after—
(i) the final determination of an appeal against the conviction or the verdict of not guilty because of mental impairment (as the case requires); or
(ii) the expiration of any appeal period; and
(c) the person is not under the age of 18 years at the time—
(i) the finding of guilt for the DNA offence is made; or
(ii) the finding of not guilty for the DNA offence because of mental impairment is made; and
(d) the Chief Commissioner of Police does not have a sample from the person that may be retained indefinitely.
(3) An authorisation given for a sample to be taken from a person referred to in subsection (2)(a)(i) before the appeal period in relation to a conviction for the DNA offence has expired or an appeal against the conviction (if any) has been finally determined (whichever is the later), must not be carried out unless—
(a) the appeal period expires; or
(b) an appeal against conviction (if any) is finally determined and the conviction for the DNA offence is upheld.
(4) An authorisation given for a sample to be taken from a person referred to in subsection (2)(a)(ii) before the appeal period in relation to the verdict of not guilty because of mental impairment has expired or an appeal against the verdict (if any) has been finally determined (whichever is the later), must not be carried out unless—
(a) the appeal period expires; or
(b) an appeal against the verdict is dismissed.
(5) If leave to appeal against a verdict of not guilty because of mental impairment in respect of a DNA offence is sought after the expiry of the appeal period in relation to the verdict, an authorisation for a sample to be taken from a person referred to in subsection (2)(a)(ii) before leave to appeal is sought, if not carried out before that leave is sought, must not be carried out unless—
(a) leave to appeal against the verdict is refused; or
(b) leave to appeal against the verdict is granted but the appeal is dismissed.
(6) If leave to appeal against a conviction for a DNA offence is sought after the expiry of the appeal period in relation to the conviction, an authorisation for a sample to be taken from a person referred to in subsection (2)(a)(i) before leave to appeal is sought, if not carried out before that leave is sought, must not be carried out 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 DNA offence is upheld.
(7) If an authorisation for a sample to be taken from a person referred to in subsection (2)(a) has been carried out after the expiry of the appeal period in relation to the conviction for the DNA offence or the verdict of not guilty for the DNA offence because of mental impairment and leave to appeal against the conviction or the verdict (as the case requires) is granted after the expiry of that period—
(a) any sample and any related material and information taken may be retained by a police officer but must not be used for any purpose pending the final determination of the appeal against the conviction or the verdict; and
(b) if, on appeal, the conviction or the verdict 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.
(8) If on appeal a conviction for the DNA offence or the verdict of not guilty for the DNA offence because of mental impairment (as the case requires) is set aside, an authorisation for a sample to be taken from a person in respect of the DNA offence ceases to have effect.
(9) An authorisation given under this section must be in writing signed by the senior police officer giving it.
S. 464ZFAD inserted by No. 3/2019 s. 62.