Crimes Amendment (Investigation Powers) Act 2013

Authorised by the Chief Parliamentary Counsel Authorised Version i Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 TABLE OF PROVISIONS Section Page 1 Purposes 1 2 Commencement 2 3 Definitions 2 4 Questioning or investigation of person already held for another matter 3 5 Right to communicate with friend, relative and legal practitioner 7 6 Right to an interpreter 7 7 Right of foreign national to communicate with consular office 7 8 Recording of information required to be given to person in custody 7 9 Forensic procedure following the commission of forensic sample offence 8 10 Forensic procedure following finding of not guilty because of mental impairment 8 11 Retention of information following finding of guilt etc. 8 12 Destruction of information following finding of guilt etc. 10 13 Destruction of identifying information 10 14 Samples given voluntarily 10 15 New sections 464ZGFA and 464ZGFB inserted 11 464ZGFA Voluntary samples given by police or VIFM personnel 11 464ZGFB Destruction of samples given by police and VIFM personnel and storage of DNA information 13 16 Validation of certain orders 16 17 New section 620 inserted 17 620 Transitional provision—Crimes Amendment (Investigation Powers) Act 2013 17 18 Amendment of Schedule 8 17 19 Consequential amendment of Corrections Act 1986 17 -- 1 of 21 -- Section Page ii Authorised by the Chief Parliamentary Counsel 20 Consequential amendment of Police Regulation Act 1958 18 Division 4B—Voluntary DNA samples for elimination purposes 18 85I Chief Commissioner may request that elimination sample be given 18 85J Chief Commissioner must comply with use and destruction requirements 18 21 Repeal of amending Act 18 ═══════════════ ENDNOTES 19 -- 2 of 21 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Crimes Amendment (Investigation Powers) Act 2013 † No. 72 of 2013 [Assented to 3 December 2013] The Parliament of Victoria enacts: 1 Purposes The purposes of this Act are— (a) to amend the Crimes Act 1958— (i) to expand the range of offences for which forensic procedures may be conducted and forensic samples may be taken to include all indictable offences; and Victoria -- 3 of 21 -- Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 2 Authorised by the Chief Parliamentary Counsel (ii) to amend the process for questioning suspects already held for another matter; and (iii) to clarify the destruction requirements for forensic samples; and (iv) to permit the retention after conviction of forensic samples and related material taken from an adult suspect; and (v) to restrict the use of samples given voluntarily by police and personnel of the Victorian Institute of Forensic Medicine for elimination purposes; and (b) to make consequential amendments to the Corrections Act 1986 and the Police Regulation Act 1958. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 July 2014, it comes into operation on that day. 3 Definitions In section 464(2) of the Crimes Act 1958— (a) for the definition of relevant suspect substitute— "relevant suspect means a person of or above the age of 18 years who— (a) is suspected of having committed or attempted to commit an indictable offence; or (b) has been charged with an indictable offence;"; and s. 2 See: Act No. 6231. Reprint No. 24 as at 1 July 2013 and amending Act Nos 16/2004 and 27/2011. LawToday: www. legislation. vic.gov.au -- 4 of 21 -- Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 3 Authorised by the Chief Parliamentary Counsel (b) insert the following definition— "destruction, in relation to any sample taken or given and any related material and information, means— (a) the physical destruction of the sample; and (b) the removal from any DNA database on which matching occurs of any DNA profile derived from analysis of the sample; and (c) the destruction of the DNA profile in any form that can readily be recombined with information that identifies the person from whom the sample was taken or who gave the sample, except for a DNA profile held on an electronic system used for forensic analysis by the Victoria Police Forensic Services Department;". 4 Questioning or investigation of person already held for another matter (1) In section 464B(1)(b) of the Crimes Act 1958, after "offence)" insert ", whether in Victoria or elsewhere,". (2) In section 464B(10) of the Crimes Act 1958— (a) in the definition of child— (i) after "him or her" insert "or the giving of informed consent by him or her"; and (ii) for "section." substitute "section;"; and s. 4 -- 5 of 21 -- Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 4 Authorised by the Chief Parliamentary Counsel (b) insert the following definitions— "investigating official, in relation to an offence committed outside Victoria, includes a person (other than a person who is engaged in covert investigations under the orders of a superior) who is— (a) a member of— (i) the Australian Federal Police; or (ii) the police force of another State or a Territory; or (b) a person appointed by or under an Act of the Commonwealth or another State or a Territory whose functions or duties include functions or duties in respect of the prevention or investigation of offences; Note Part IC of the Crimes Act 1914 of the Commonwealth applies if the investigating official is a member of the Australian Federal Police. offence includes an offence against a law of the Commonwealth or another State or a Territory.". (3) After section 464B(10) of the Crimes Act 1958 insert— "(11) An investigating official may question a person (other than a child) who is held in a prison or police gaol and is reasonably suspected of having committed an offence (whether in Victoria or elsewhere) other than the offence for which he or she is being held s. 4 -- 6 of 21 -- Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 5 Authorised by the Chief Parliamentary Counsel about his or her involvement (if any) in that offence if— (a) the investigating official is satisfied that the person is not incapable of giving informed consent by reason of mental impairment; and (b) the person gives informed consent in accordance with subsection (13). Note Section 41 of the Corrections Act 1986 provides for visits by the police to prisoners, which may include questioning to which this section does not apply. (12) A person must not be removed from the prison or police gaol in which he or she is being held for the purpose of questioning under subsection (11). Note Questioning or investigations involving removal from prison or police gaol may be authorised by a court order under subsection (5). (13) A person gives informed consent to be questioned if the person consents after an investigating official informs the person, in language likely to be understood by the person, of the following matters— (a) the nature of the offence which the person is suspected of having committed; (b) that the person may refuse to be questioned; (c) that if the person gives consent, he or she does not have to say or do anything but that anything the person does say or do may be given in evidence; s. 4 -- 7 of 21 -- Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 6 Authorised by the Chief Parliamentary Counsel (d) that if the person gives consent, he or she may withdraw that consent at any time before the questioning is completed but anything the person says or does before withdrawal of consent may be given in evidence; (e) that if the person refuses to be questioned, an application may be made to the Magistrates' Court for an order under this section; (f) that if the Magistrates' Court makes an order under this section, the person may be delivered into the custody of the investigating official for the purpose of questioning; (g) the person's rights under sections 464C, 464D and 464F, unless Part IC of the Crimes Act 1914 of the Commonwealth applies. (14) A person may exercise any applicable right under section 464C, 464D or 464F before deciding whether or not to consent to be questioned. (15) An audiovisual recording must be made of— (a) the giving of the information referred to in subsection (13); and (b) any response of the person in custody to the giving of that information; and (c) any questioning of the person that takes place and anything said by the person questioned; and (d) any withdrawal of consent to the questioning.". s. 4 -- 8 of 21 -- Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 7 Authorised by the Chief Parliamentary Counsel 5 Right to communicate with friend, relative and legal practitioner (1) In section 464C(1)(b) of the Crimes Act 1958, after "practitioner" insert "(whether the term legal practitioner or lawyer is used)". (2) In section 464C(3) of the Crimes Act 1958, after "464B(5)" insert "or any questioning conducted by consent under section 464B(11), unless Part IC of the Crimes Act 1914 of the Commonwealth applies". 6 Right to an interpreter In section 464D(2) of the Crimes Act 1958, after "464B(5)" insert "or any questioning conducted by consent under section 464B(11), unless Part IC of the Crimes Act 1914 of the Commonwealth applies". 7 Right of foreign national to communicate with consular office After section 464F(2) of the Crimes Act 1958 insert— "(2A) This section also applies to any questioning or investigation in accordance with an order made under section 464B(5) or any questioning conducted by consent under section 464B(11), unless Part IC of the Crimes Act 1914 of the Commonwealth applies.". 8 Recording of information required to be given to person in custody In section 464G(2) of the Crimes Act 1958, after "464B(5H)" insert "and (15)". s. 5 -- 9 of 21 -- Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 8 Authorised by the Chief Parliamentary Counsel 9 Forensic procedure following the commission of forensic sample offence (1) In section 464ZF(1) of the Crimes Act 1958, in the definition of forensic sample offence, after "means" insert "any indictable offence or". (2) In section 464ZF(2)(a) of the Crimes Act 1958, after "forensic sample offence" insert "(within the meaning of that term as then in force)". (3) In section 464ZF(3)(a) of the Crimes Act 1958, after "forensic sample offence" insert "(within the meaning of that term as then in force)". 10 Forensic procedure following finding of not guilty because of mental impairment (1) In section 464ZFAAA(1) of the Crimes Act 1958, in the definition of forensic sample offence— (a) after "means" insert "any indictable offence or"; and (b) for "Schedule 8" substitute "Schedule 8,". (2) In section 464ZFAAA(2)(a) of the Crimes Act 1958, after "forensic sample offence" insert "(within the meaning of that term as then in force)". 11 Retention of information following finding of guilt etc. (1) Before section 464ZFB(1) of the Crimes Act 1958 insert— "(1AA) If— (a) a forensic procedure is conducted on a person of or above the age of 18 years in accordance with section 464R, 464SA, 464T(3) or 464V(5); and s. 9 -- 10 of 21 -- Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 9 Authorised by the Chief Parliamentary Counsel (b) a court finds the person guilty, or not guilty because of mental impairment, of— (i) the indictable offence in respect of which the forensic procedure was conducted; or (ii) any other indictable offence arising out of the same circumstances; or (iii) any other indictable offence in respect of which evidence obtained as a result of the forensic procedure had probative value— the sample taken and any related material and information may be retained indefinitely. (1AB) Subsection (1AA) does not apply if— (a) on appeal against conviction, the finding of guilt or conviction referred to in subsection (1AA) is set aside; or (b) on appeal against the verdict of not guilty because of mental impairment, the verdict referred to in subsection (1AA) is set aside.". (2) In section 464ZFB(1) of the Crimes Act 1958— (a) for paragraph (a) substitute— "(a) a forensic procedure is conducted on a child in accordance with section 464U(7) or 464V(5); and"; (b) in paragraph (b), for "person" substitute "child"; (c) for "the Magistrates' Court or Children's Court (as the case may be)" substitute "the Children's Court". s. 11 -- 11 of 21 -- Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 10 Authorised by the Chief Parliamentary Counsel (3) In section 464ZFB(1A) of the Crimes Act 1958— (a) for paragraph (a) substitute— "(a) a forensic procedure is conducted on a child in accordance with section 464U(7) or 464V(5); and"; (b) in paragraph (b), for "person" substitute "child". 12 Destruction of information following finding of guilt etc. In section 464ZFC(1) of the Crimes Act 1958— (a) before paragraph (a) insert— "(aa) a finding of guilt, a conviction or a verdict of not guilty because of mental impairment referred to in section 464ZFB(1AA) is set aside on appeal; or"; (b) in paragraph (b), for "464ZFB" substitute "464ZFB(1) or (1A)". 13 Destruction of identifying information In section 464ZG(1)(a), (b) and (c) of the Crimes Act 1958, for "offence" (wherever occurring) substitute "indictable offence". 14 Samples given voluntarily In section 464ZGB(3)(e) of the Crimes Act 1958, after "practitioner" insert "(whether the term legal practitioner or lawyer is used)". s. 12 -- 12 of 21 -- Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 11 Authorised by the Chief Parliamentary Counsel 15 New sections 464ZGFA and 464ZGFB inserted After section 464ZGF of the Crimes Act 1958 insert— "464ZGFA Voluntary samples given by police or VIFM personnel (1) In this section— Institute means the Victorian Institute of Forensic Medicine established under the Victorian Institute of Forensic Medicine Act 1985; relevant agency means— (a) Victoria Police; or (b) the Institute. (2) Any of the following persons may volunteer to give to a relevant agency a sample of material from which a DNA profile may be derived— (a) a member of police personnel within the meaning of the Police Regulation Act 1958; (b) the Director of the Institute or an employee of the Institute (whether employed under the Victorian Institute of Forensic Medicine Act 1985 or the Public Administration Act 2004); (c) a visitor to— (i) any premises at which the Victoria Police Forensic Services Department performs functions; or (ii) any premises at which the Institute performs any of its functions. s. 15 -- 13 of 21 -- Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 12 Authorised by the Chief Parliamentary Counsel (3) A sample may only be given under this section if the relevant agency has provided to the person volunteering to give the sample— (a) a written statement that the sample is to be provided for the purpose of comparing a DNA profile obtained from the sample against any other DNA profile held by the relevant agency to eliminate the person as a possible source of DNA in— (i) the investigation of a crime; or (ii) the investigation of a reportable death within the meaning of the Coroners Act 2008; or (iii) in the case of the Institute, testing conducted by the Institute in the performance of its objects and functions; and (b) a written statement of the requirements of section 464ZGFB(3) and (5). (4) A sample given under this section may be used only for the purpose referred to in subsection (3)(a). (5) Evidence of a sample given by a person under this section and any DNA profile obtained from the sample is inadmissible as evidence against the person, unless the person consents to the admission of the evidence, in— (a) any proceeding, whether civil or criminal; or (b) a proceeding arising out of, or connected with, an investigation under Part IV, IVA or IVB of the Police s. 15 -- 14 of 21 -- Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 13 Authorised by the Chief Parliamentary Counsel Regulation Act 1958 in respect of the person; or (c) a proceeding arising out of, or connected with, a critical incident (within the meaning of section 85A of the Police Regulation Act 1958). (6) In subsection (5) a proceeding includes a coronial inquest or inquiry. (7) A sample given under this section and any DNA profile obtained from the sample may not be released to any person outside the relevant agency unless the person who gave the sample consents to the release. (8) A person must not knowingly use, or cause or permit to be used, or otherwise disseminate information derived from, a sample given under this section, any DNA profile obtained from the sample or any related information, other than in accordance with this section. Penalty: level 8 imprisonment (1 year maximum). (9) An offence against subsection (8) is a summary offence. (10) This section does not affect any other power to require a person referred to in subsection (2) to provide a sample or to undergo a forensic procedure. 464ZGFB Destruction of samples given by police and VIFM personnel and storage of DNA information (1) The Chief Commissioner of Police is responsible for ensuring the destruction under this section of samples and DNA s. 15 -- 15 of 21 -- Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 14 Authorised by the Chief Parliamentary Counsel profiles that are held or managed by Victoria Police. (2) The Director of the Institute is responsible for ensuring the destruction under this section of samples and DNA profiles that are held or managed by the Institute. (3) A DNA profile derived from a sample given under section 464ZGFA must be stored on a database that— (a) is not a DNA database; and (b) is not connected to any other database on which matching of DNA profiles occurs. Notes 1 DNA database is defined in section 464(2). 2 A sample given under section 464ZGFA must not be entered in NCIDD. (4) A DNA sample given under section 464ZGFA and a DNA profile derived from the sample must be destroyed if— (a) in the case of a sample given by the Chief Commissioner of Police, the Chief Commissioner requests the destruction of the sample by notice in writing to the Minister administering the Police Regulation Act 1958; or (b) in the case of a sample given by any other member of police personnel or a visitor to any premises at which the Victoria Police Forensic Services Department performs functions, the member or visitor requests the destruction of the sample by notice in writing to the Chief Commissioner of Police; or s. 15 -- 16 of 21 -- Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 15 Authorised by the Chief Parliamentary Counsel (c) in the case of a sample given by the Director of the Institute, the Director requests the destruction of the sample by notice in writing to the Attorney- General; or (d) in the case of a sample given by an employee of the Institute or a visitor to any premises at which the Institute performs any of its functions, the employee or visitor requests the destruction of the sample by notice in writing to the Director of the Institute; or (e) 12 months have elapsed since the person who gave the sample ceased to be a member of police personnel, the Director of the Institute or an employee of the Institute, as the case may be. (5) Without affecting any other arrangements for destruction of samples, this section also applies, on and from its commencement, to a sample given voluntarily by a person referred to in section 464ZGFA(2) before the commencement of this section. (6) A person must not knowingly— (a) fail to destroy; or (b) use, or cause or permit to be used, or otherwise disseminate information derived from— a sample, or a DNA profile derived from a sample, that is required by this section to be destroyed. Penalty: level 8 imprisonment (1 year maximum). s. 15 -- 17 of 21 -- Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 16 Authorised by the Chief Parliamentary Counsel (7) An offence against subsection (6) is a summary offence.". 16 Validation of certain orders After section 464ZL(5) of the Crimes Act 1958 insert— "(6) If, before the commencement of section 4(1) and (2) of the Crimes Amendment (Investigation Powers) Act 2013, an order is purported to have been made under section 464B(5) in respect of an offence committed outside Victoria against a law of the Commonwealth or another State or a Territory, the order is taken to have, and always to have had, the same force and effect as it would have had if the order had been made after that commencement. (7) Any questioning or investigation conducted pursuant to an order referred to in subsection (6) by a member of the Australian Federal Police or a member of the police force of another State or a Territory before the commencement of section 4(1) and (2) of the Crimes Amendment (Investigation Powers) Act 2013 is taken to have, and always to have had, the same force and effect as it would have had if conducted after that commencement. (8) Subsections (6) and (7) do not affect the rights of the parties in the proceeding known as Detective Jason Wallace v Bandali Debs and the Magistrates' Court of Victoria (No. 10194 of 2008) in the Supreme Court of Victoria.". s. 16 -- 18 of 21 -- Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 17 Authorised by the Chief Parliamentary Counsel 17 New section 620 inserted After section 619 of the Crimes Act 1958 insert— "620 Transitional provision—Crimes Amendment (Investigation Powers) Act 2013 (1) This Act as amended by sections 4, 5(2), 6, 7 and 8 of the Crimes Amendment (Investigation Powers) Act 2013 applies to questioning for or investigation of any offence that occurs on or after the commencement of sections 4, 5(2), 6, 7 and 8 of that Act, irrespective of when the offence under investigation is alleged to have been committed. (2) This Act as amended by sections 11 and 12 of the Crimes Amendment (Investigation Powers) Act 2013 applies to persons found guilty, or not guilty because of mental impairment, on or after the commencement of sections 11 and 12 of that Act, irrespective of when the offence is alleged to have been committed.". 18 Amendment of Schedule 8 In Schedule 8 to the Crimes Act 1958, items 1, 3, 3AA, 3A, 4, 6, 6A, 7, 12, 13, 17, 20, 21, 21A, 21B, 21C, 22, 23, 24, 25, 26, 27 and 28 are repealed. 19 Consequential amendment of Corrections Act 1986 In section 41(6) of the Corrections Act 1986, after "464B(5)" insert ", or any questioning conducted by consent under section 464B(11),". s. 17 -- 19 of 21 -- Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 18 Authorised by the Chief Parliamentary Counsel 20 Consequential amendment of Police Regulation Act 1958 After Division 4A of Part IV of the Police Regulation Act 1958 insert— "Division 4B—Voluntary DNA samples for elimination purposes 85I Chief Commissioner may request that elimination sample be given The Chief Commissioner may request a member of police personnel to volunteer, under section 464ZGFA of the Crimes Act 1958, to give a sample of material from which a DNA profile may be derived. 85J Chief Commissioner must comply with use and destruction requirements If a member of police personnel volunteers, under section 464ZGFA of the Crimes Act 1958, to give a sample of material from which a DNA profile may be derived, the Chief Commissioner must comply with the requirements of sections 464ZGFA and 464ZGFB of that Act.". 21 Repeal of amending Act This Act is repealed on 1 July 2015. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ s. 20 -- 20 of 21 -- Crimes Amendment (Investigation Powers) Act 2013 No. 72 of 2013 19 Authorised by the Chief Parliamentary Counsel ENDNOTES † Minister's second reading speech— Legislative Assembly: 17 October 2013 Legislative Council: 14 November 2013 The long title for the Bill for this Act was "A Bill for an Act to amend the Crimes Act 1958, the Corrections Act 1986 and the Police Regulation Act 1958 and for other purposes." Endnotes -- 21 of 21 --