Victorian Current Acts Victorian Current Acts(1) If a person has given his or her consent in accordance with section 464ZGB, and a sample has been taken, that person may at any time after the sample has been taken, by notice in writing to the Chief Commissioner of Police, withdraw his or her consent to the retention of that sample.
(2) Subject to subsection (5) and section 464ZFD(2), if a person has voluntarily given a sample in accordance with sections 464ZGB to 464ZGD and either—
(a) that person in accordance with subsection (1) has withdrawn his or her consent to the retention of that sample; or
(b) a court has made an order under section 464ZGF for the retention of that sample and any related material and information, and—
(i) the person has not been charged with an indictable offence at the end of the period of 12 months after the order of the court; or
(ii) the person has been so charged but the charge is not proceeded with, or the person is not found guilty of the indictable offence or any other indictable offence for which the sample and any related material and information had probative value, whether on appeal or otherwise, before the end of that period—
the Chief Commissioner of Police, at the time specified in subsection (3), must destroy, or cause to be destroyed, any sample given and any related material and information.
(3) A sample and any related material and information referred to in subsection (2) must be destroyed—
(a) within 28 days after the receipt of the person's notice of withdrawal of consent under subsection (1); or
(b) in a case to which subsection (2)(b)(i) applies, immediately after that period of 12 months; or
(c) in a case to which subsection (2)(b)(ii) applies—
(i) within 1 month after the conclusion of the proceedings and the end of any appeal period; or
(ii) if the proceedings have been adjourned under section 75 of the Sentencing Act 1991 , within 1 month after dismissal under that section.
(4) The Chief Commissioner of Police is not required to comply with the requirements in subsections (2) and (3) to destroy or cause to be destroyed a sample and any related material and information by reason of the person's withdrawal of consent if the Magistrates' Court makes an order under section 464ZGF for the retention of that sample and any related material and information.
(5) If the Magistrates' Court refuses to make an order under section 464ZGF for the retention of a sample and any related material and information, and a person in accordance with subsection (1) has withdrawn his or her consent to the retention of that sample, the Chief Commissioner of Police must immediately destroy, or cause to be immediately destroyed, the sample given and any related material and information.
S. 464ZGE(6) amended by No. 37/2014 s. 10(Sch. item 36.37).
(6) A police officer may, before the end of a period referred to in subsection (3)(b) or (3)(c), apply, without notice to any other person, to the Magistrates' Court for an order extending that period and, if the court makes such an order, the reference to the period in subsection (3)(b) or (3)(c) is a reference to that period as so extended.
(7) If the Magistrates' Court makes an order under subsection (6), it must give reasons for its decision and cause a copy of the order to be served on the person who voluntarily gave the sample.
(8) If a sample or related material and information is destroyed in accordance with this section, the Chief Commissioner of Police must, within 14 days, give notice of the destruction to the person who voluntarily gave the sample.
(9) A person who knowingly—
(a) fails to destroy; or
(b) uses, or causes or permits to be used—
a sample or related material and information required by this section to be destroyed is guilty of a summary offence punishable on conviction by level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum).
(10) A person who at any time uses, or causes or permits to be used, or otherwise disseminates information derived from any sample or related material and information required by this section to be destroyed except in good faith for the purposes of section 464ZFD(2) is guilty of a summary offence punishable on conviction by level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum).
S. 464ZGE(11) amended by No. 37/2014 s. 10(Sch. item 36.37).
(11) This section does not prevent a police officer, in respect of a person who has voluntarily given a sample under sections 464ZGB to 464ZGD—
(a) requesting, under section 464R, the person to undergo a forensic procedure; or
S. 464ZGE (11)(ab) inserted by No.
3/2019
s. 68.
(ab) requesting, under section 464SC, the person to give a DNA profile sample; or
S. 464ZGE (11)(ac) inserted by No.
3/2019
s. 68.
(ac) making an authorisation under section 464SE for the taking of a DNA profile sample from the person; or
(b) making an application under section 464T or 464V for a court order directing the person to undergo a compulsory procedure.
S. 464ZGE(12) repealed by No.
80/1998
s. 3(e).
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S. 464ZGF inserted by No.
81/1997
s. 28.