CHAPTER 7
THE CRIMES AMENDMENT (FORENSIC PROCEDURES) BILL 1997
Introduction
7.1 In Alert Digest No 6 of 1997, the Committee observed that
this bill raised a number of issues about which the Committee intended
to seek further information. That additional information was subsequently
provided by officers of the Attorney-General's Department at a hearing
on 28 May 1997.
7.2 The bill proposed to amend the Crimes Act 1914 to introduce
a new regime for carrying out forensic procedures during the investigation
of Commonwealth offences, and for the storage, use and destruction of
material derived from those procedures. In general terms, the meaning
and practical impact of the bill in relation to a number of matters was
not clear, and it was not possible to determine whether those matters
came within the Committee's terms of reference. The Committee reported
on these matters in its Ninth Report of 1997, and its considerations
are summarised below.
Compulsory testing without warrant
7.3 Part 1D of the bill permitted various intimate forensic procedures
to be carried out on a `suspect', defined to include a person whom a constable
suspects on reasonable grounds has committed an indictable offence. It
appeared to the Committee that the bill might, therefore, enable a number
of personal and intrusive procedures to be carried out compulsorily although
the person concerned had not been arrested.
7.4 The Attorney-General's Department advised that the bill did empower
a magistrate to order a suspect to undergo a forensic procedure before
he or she had been arrested. However, the criteria which had to be met
before an order for compulsory testing was made were essentially the same
as those which applied to arrest (ie, the magistrate must be satisfied,
amongst other things, that there were reasonable grounds to believe that
the suspect had committed an indictable offence). The magistrate must
also be satisfied that the forensic procedure:
- was likely to produce evidence that would tend to confirm or disprove
the suspect's involvement; and
- was justified in all the circumstances.
7.5 The Department pointed out that requiring the arrest of a person
merely for the purpose of obtaining a forensic sample was contrary to
Commonwealth policy. Not requiring an arrest also avoided the personal
stigma associated with arrest. Finally, arrest at the direction of a constable
was seen as a lesser safeguard than a system were an independent judicial
officer could make an order only after holding a hearing at which a suspect
could cross-examine witnesses and address the magistrate.
7.6 This response clarified the situation for the Committee: a suspect
might be required to undergo compulsory testing only when criteria had
been established which would have permitted an arrest under common law
principles.
Authority for forensic procedures
7.7 Given the scheme under which forensic procedures were authorised,
it seemed to the Committee that a person who had not been arrested could
nevertheless be in custody and, therefore, might be ordered to undergo
a non-intimate forensic procedure by a senior constable. The committee
sought advice from the Department on the difference between arrest and
custody.
7.8 In response, the Department stated that `in custody' meant “in
the lawful custody of a constable”. This could be broken down into
two categories: persons under lawful arrest (the vast majority of cases),
and persons in the custody of a constable under some other lawful authority
(eg, voluntary attendance after a magistrate's order for a forensic procedure).
The bill had not used the term `under arrest' for its purposes because
that term was narrower in scope that the term `in custody'. Arguably,
the term `under arrest' would not cover persons arrested, charged and
remanded in custody, or prisoners serving a period of imprisonment, where
those persons were suspects for offences committed before their sentence
for another offence. However, those persons would be covered by the current
wording used in the bill, and so may be ordered by a Magistrate to undergo
a forensic procedure”.
7.9 The Committee concluded that it was clear that “a suspect, although
not formally arrested, may be required, by this bill, to undergo compulsory
testing only when criteria have been established which would have permitted
an arrest in accordance with common law principles”. In these circumstances,
the Committee made no further comment on this matter.
Custody without bail
7.10 The Committee was also concerned at the apparent absence of any
proposal to allow bail for a person taken into custody under the bill.
7.11 In response, the Department stated that, at common law, a person
arrested must be brought to a Magistrate without delay to determine whether
they should be released on bail or remanded in custody. However, section
23C of the Crimes Act 1914 abrogates this rule to some extent and
allows police to delay taking a suspect to a Magistrate for a maximum
period of 4 hours (or 2 hours in the case of vulnerable suspects) for
the purpose of investigating the offence. Therefore, an arrested person
and a person “taken into custody” must be dealt with by a court
within these time limits.
7.12 This information clarified the position and allayed the concerns
of the Committee.
Admissibility of illegally obtained evidence
7.13 The Committee also raised concerns about the ability of the prosecution
to lead evidence of the results of a forensic procedure, even though those
results had been obtained in contravention of the proposed legislation.
7.14 In response, the Department stated that, under proposed section
23XX of the bill, evidence obtained in breach of the requirements of the
bill may be rendered inadmissible unless the court can be satisfied that
its admission is justified in spite of non-compliance. In deciding on
admissibility, the court would consider the reasons for and the gravity
of the breach, whether the breach was deliberate, and the seriousness
of the offence in question.
7.15 This approach was not novel, and the Department noted that the standard
for admissibility under the bill was more onerous than the common law
discretion to admit illegally obtained evidence.
7.16 This response met the concerns of the Committee on this issue. The
admission of evidence gained in contravention of the bill will be subject
to the exercise of judicial discretion, and the Committee has always regarded
the exercise of judicial discretion as a sufficient safeguard against
an undue trespass on personal rights and liberties.
Senate consideration of the bill
7.17 Following extensive examination by the Senate Legal and Constitutional
Legislation Committee, the Bill was debated in the Senate on 2 July 1998
and amended. Amendments were moved by the Australian Democrats requiring
an independent review of the operation of Part 1D of the Act as soon as
possible after the second anniversary of its commencement. These amendments
were agreed to by the Senate. Additional amendments were also moved by
the Australian Democrats seeking to impose limitations on forensic procedures
where a suspect had not been charged. The Senate did not agree to these
amendments. [1]
Footnotes
[1] Senate, Hansard, 2 July 1998, pp
4713-4715.