Crimes (Amendment) Act 2004

Victorian Legislation and Parliamentary Documents i Crimes (Amendment) Act 2004 Act No. 41/2004 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 PART 2—AMENDMENT OF THE CRIMES ACT 1958 3 Division 1—Fingerprints 3 3. Definition inserted 3 4. Taking of fingerprints 3 5. Fingerscanning for identification purposes 3 6. Destruction of records 4 7. Records of juvenile 4 Division 2—Compulsory procedures 4 8. Definition inserted 4 9. Investigation of person already held for another matter 4 10. Forensic procedure on adult 5 11. Informed consent 5 12. New sections 464SA and 464SB inserted 6 464SA. Senior police officer may authorise non-intimate compulsory procedure for certain adults 6 464SB. Making or refusing authorisation 8 13. Procedure for taking samples 10 14. Execution of authorisation 11 15. Forensic reports to be made available 13 16. Forensic procedure following finding of guilt 13 17. Retention of information following finding of guilt 14 18. Report to Attorney-General 14 19. Immunity of medical practitioners etc. 14 20. Supreme Court—limitation of jurisdiction 15 21. Validation 15 -- 1 of 20 -- Victorian Legislation and Parliamentary Documents Section Page ii PART 3—AMENDMENT OF THE METROPOLITAN FIRE BRIGADES ACT 1958 17 22. Deputy President 17 ═══════════════ ENDNOTES 18 -- 2 of 20 -- Victorian Legislation and Parliamentary Documents 1 Crimes (Amendment) Act 2004† [Assented to 16 June 2004] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The purposes of this Act are— (a) to amend the Crimes Act 1958— (i) to provide for the admissibility of certain fingerscans in court proceedings; and Victoria No. 41 of 2004 -- 3 of 20 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Crimes (Amendment) Act 2004 Act No. 41/2004 2 (ii) to provide for non-intimate compulsory procedures to be conducted on the authorisation of a senior police officer; and (iii) to validate certain orders purported to have been made under section 464ZF for the taking of forensic samples from offenders; and (iv) to clarify an offender's right to notice and right to be heard on an application under section 464ZF; and (b) to amend the Metropolitan Fire Brigades Act 1958 to provide for the appointment of a Deputy President of the Metropolitan Fire and Emergency Services Board. 2. Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. __________________ s. 2 -- 4 of 20 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of the Crimes Act 1958 Crimes (Amendment) Act 2004 Act No. 41/2004 3 PART 2—AMENDMENT OF THE CRIMES ACT 1958 Division 1—Fingerprints 3. Definition inserted In section 464(2) of the Crimes Act 1958 insert the following definition— ' "fingerscan" means fingerprints taken by means of a device to obtain a record of the fingerprints; Example Fingerprints may be taken by a scanning device to obtain a digital record of the fingerprints.'. 4. Taking of fingerprints (1) After the heading to section 464N of the Crimes Act 1958 insert— "(1) Fingerprints may be taken by means of a device to obtain a record of the fingerprints (a fingerscan) or by any other means.". (2) In section 464N of the Crimes Act 1958, before "If—" insert "(2)". 5. Fingerscanning for identification purposes (1) Section 464NA(1) of the Crimes Act 1958 is repealed. (2) In section 464NA(6) of the Crimes Act 1958, after "fingerscan" insert "taken under this section". (3) In section 464NA(7) of the Crimes Act 1958, after "fingerscan" insert "taken under this section". See: Act No. 6321. Reprint No. 17 as at 17 June 2003 and amending Act Nos 63/2003, 80/2003, 104/2003 and 105/2003. LawToday: www.dms. dpc.vic. gov.au s. 3 -- 5 of 20 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of the Crimes Act 1958 Crimes (Amendment) Act 2004 Act No. 41/2004 4 6. Destruction of records In section 464O(1) of the Crimes Act 1958, in the definition of "fingerprints", after "464NA" insert "or any other provision of this Subdivision". 7. Records of juvenile In section 464P(1A) of the Crimes Act 1958, after "464NA" insert "or any other provision of this Subdivision". Division 2—Compulsory procedures 8. Definition inserted In section 464(2) of the Crimes Act 1958 insert the following definition— ' "senior police officer" means a member of the police force of or above the rank of senior sergeant;'. 9. Investigation of person already held for another matter (1) In section 464B(5G) of the Crimes Act 1958— (a) in paragraph (b), for "464C(1)." substitute "464C(1); and"; (b) after paragraph (b) insert— "(c) if the person was held in a prison or police gaol at the time of the application, that the making of the order does not prevent a senior police officer from authorising the conduct of a non-intimate compulsory procedure on the person under section 464SA.". s. 6 -- 6 of 20 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of the Crimes Act 1958 Crimes (Amendment) Act 2004 Act No. 41/2004 5 (2) After section 464B(9) of the Crimes Act 1958 insert— "(9A) The making of an order under sub-section (5) does not prevent a senior police officer from giving an authorisation under section 464SA.". 10. Forensic procedure on adult In section 464R(2) of the Crimes Act 1958— (a) in paragraph (b), for "464V(5)." substitute "464V(5); or"; (b) after paragraph (b) insert— "(c) a senior police officer gives an authorisation under section 464SA.". 11. Informed consent In section 464S(1) of the Crimes Act 1958— (a) in paragraph (g), for "procedure." substitute "procedure; and"; (b) after paragraph (g) insert— "(h) where the sample or examination sought may be obtained by a non- intimate compulsory procedure within the meaning of section 464SA and the person refuses to consent to the procedure, that a senior police officer may authorise the conduct of the procedure.". s. 10 -- 7 of 20 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of the Crimes Act 1958 Crimes (Amendment) Act 2004 Act No. 41/2004 6 12. New sections 464SA and 464SB inserted After section 464S of the Crimes Act 1958 insert— '464SA. Senior police officer may authorise non- intimate compulsory procedure for certain adults (1) In this section and section 464SB, "non- intimate compulsory procedure" means the taking of a non-intimate sample or the conduct of a physical examination of a non- intimate part of the body. (2) A senior police officer who is not involved in investigating the offence for which the compulsory procedure is required may authorise the conduct of a non-intimate compulsory procedure on a person if the senior police officer is satisfied that— (a) the person is a relevant suspect who is— (i) under lawful arrest by warrant; or (ii) under lawful arrest under section 458 or 459 or a provision of any other Act; or (iii) in the custody of an investigating official in accordance with an order of the Magistrates' Court under section 464B(5) and, at the time of the application for that order, the person was held in a prison or police gaol; and (b) the person is not under the age of 17 years; and (c) the person is not incapable of giving informed consent by reason of mental impairment; and s. 12 -- 8 of 20 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of the Crimes Act 1958 Crimes (Amendment) Act 2004 Act No. 41/2004 7 (d) the person has refused to give consent to a request under section 464R(1); and (e) there are reasonable grounds to believe that the person has committed the offence in respect of which the authorisation is sought; and (f) the requirements of section 464T(3)(c), (d), (e) and (f) are met; and (g) in all the circumstances, the giving of the authorisation is justified. (3) A senior police officer must not give an authorisation for a compulsory procedure on a person if— (a) an application to a court for an order under this Subdivision in respect of that person has been made in relation to the same matter and on the same grounds but has been refused; or (b) a previous application for an authorisation under this section in respect of that person has been considered in relation to the same matter and on the same grounds but has not been given. (4) An authorisation given in contravention of sub-section (3) is void. (5) Nothing in sub-section (3) prevents a later application for an order under this Subdivision or an authorisation under this section on different or further grounds. (6) An authorisation under this section may only be given to a member of the police force. s. 12 -- 9 of 20 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of the Crimes Act 1958 Crimes (Amendment) Act 2004 Act No. 41/2004 8 464SB. Making or refusing authorisation (1) Before a senior police officer gives or refuses to give an authorisation under section 464SA, the senior police officer must allow the suspect or the suspect's legal practitioner, if any, a reasonable opportunity, if practicable in person, to inform the senior police officer whether there is any reason why the non-intimate compulsory procedure should not be conducted. (2) An authorisation under section 464SA must be made in writing signed by the senior police officer giving it and include— (a) the date and time when the authorisation is given; and (b) the grounds for giving the authorisation; and (c) the type of sample or examination authorised. (3) The senior police officer must give, or cause another member of the police force to give, to the suspect a copy of the authorisation as soon as practicable after the authorisation is made and, in any event, before the conduct of the compulsory procedure. (4) Before the compulsory procedure is conducted, a member of the police force must inform the suspect orally and in person of the following— (a) that an authorisation under section 464SA has been given; and (b) the matters referred to in sub-section (2)(a), (b) and (c); and s. 12 -- 10 of 20 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of the Crimes Act 1958 Crimes (Amendment) Act 2004 Act No. 41/2004 9 (c) that a member of the police force may use reasonable force to enable the compulsory procedure to be conducted; and (d) if the authorisation is to take a sample of hair, that the suspect may elect to provide instead a scraping taken by the suspect from his or her mouth, if it is considered appropriate to do so. (5) The person who gives the information required to be given by sub-section (4) must— (a) record, or cause to be recorded, the giving of that information by tape- recording; and (b) give or send by registered post, or cause to be given or sent by registered post, to the suspect or his or her legal practitioner, without charge, a copy of the tape-recording as soon as practicable, but not more than 7 days after the conduct of the compulsory procedure. (6) If a senior police officer refuses to give an authorisation under section 464SA in respect of a suspect, the senior police officer must— (a) inform, or cause another member of the police force to inform, the suspect orally of the decision as soon as practicable after the refusal; and (b) give written notice of the decision to the suspect within 7 days after the refusal. s. 12 -- 11 of 20 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of the Crimes Act 1958 Crimes (Amendment) Act 2004 Act No. 41/2004 10 (7) A failure of the senior police officer or a member of the police force to comply with this section does not invalidate any authorisation made by the senior police officer but constitutes non-compliance for the purposes of section 464ZE(1)(a).'. 13. Procedure for taking samples (1) After section 464Z(3) of the Crimes Act 1958 insert— "(3AA) Despite sub-section (3), a person from whom a sample of hair, other than pubic hair, is to be taken in accordance with— (a) an authorisation given under section 464SA; or (b) an order made by a court under this Subdivision— may elect to provide instead a scraping taken by the person from his or her mouth if a member of the police force authorised in accordance with sub-section (1A) considers that— (c) a scraping is appropriate in the circumstances; and (d) it is appropriate for the person to take the scraping. (3AB) An election made by a person under sub- section (3AA) must be recorded by tape- recording or in writing signed by the person.". s. 13 -- 12 of 20 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of the Crimes Act 1958 Crimes (Amendment) Act 2004 Act No. 41/2004 11 (2) In section 464Z(3B) of the Crimes Act 1958— (a) after "sub-section" insert "(3AA) or"; (b) in paragraph (a)— (i) before "consent" (where first occuring) insert "election or"; (ii) before "consent" (where secondly occurring) insert "election is made or the"; (c) in paragraph (b), before "consent" insert "election or". (3) In section 464Z(4) of the Crimes Act 1958, after "taken" (where first occurring) insert "(except a scraping from a person's mouth to be taken by that person)". (4) After section 464Z(7) of the Crimes Act 1958 insert— "(7A) For the purposes of this Subdivision, a person is authorised to take a sample of hair by removing the root of the hair only if— (a) the person takes only so much hair as the person believes is necessary for analysis of the sample or other examination of the hair; and (b) strands of hair are taken using the least painful technique known and available to the person.". 14. Execution of authorisation (1) Insert the following heading to section 464ZA of the Crimes Act 1958— "Execution of authorisation or order". s. 14 -- 13 of 20 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of the Crimes Act 1958 Crimes (Amendment) Act 2004 Act No. 41/2004 12 (2) For section 464ZA(1) of the Crimes Act 1958 substitute— "(1) If— (a) a senior police officer gives an authorisation under section 464SA for the conduct of a non-intimate compulsory procedure; or (b) a court makes an order under section 464T(3), 464U(7) or 464V(5) for the conduct of a compulsory procedure; or (c) a court makes an order under section 464ZF for the conduct of a forensic procedure— a member of the police force, with such assistance as he or she considers necessary, may use reasonable force to assist a medical practitioner, nurse, dentist or person authorised under section 464Z to conduct the procedure.". (3) In section 464ZA(5) of the Crimes Act 1958, after "in accordance with" insert "the authorisation of a senior police officer or". (4) In section 464ZA(6) of the Crimes Act 1958— (a) after "After" insert "an authorisation under section 464SA or"; (b) in paragraphs (a) and (b), after "must endorse on the" insert "authorisation or". (5) In section 464ZA(6A) of the Crimes Act 1958, after "copy of the" insert "authorisation or". s. 14 -- 14 of 20 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of the Crimes Act 1958 Crimes (Amendment) Act 2004 Act No. 41/2004 13 (6) In section 464ZA(7) of the Crimes Act 1958— (a) after "in accordance with" insert "an authorisation of a senior police officer or"; (b) after "applicant for the" insert "authorisation or". 15. Forensic reports to be made available In section 464ZD of the Crimes Act 1958, after "464R," insert "464SA,". 16. Forensic procedure following finding of guilt For section 464ZF(5) of the Crimes Act 1958 substitute— "(5) If, on or after the commencement of the Crimes (Amendment) Act 2004, an application under sub-section (2) or (3) is made in respect of a person aged 17 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 sub-section (8)(c). (5A) If, on or after the commencement of the Crimes (Amendment) Act 2004, an application under sub-section (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 s. 15 -- 15 of 20 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of the Crimes Act 1958 Crimes (Amendment) Act 2004 Act No. 41/2004 14 (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 sub-section (8)(a) or (b) or in response to inquiries made by the court under sub-section (8)(c). (5B) In exercising the right of address under sub- section (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.". 17. Retention of information following finding of guilt In section 464ZFB(1)(a) of the Crimes Act 1958, after "464R," insert "464SA,". 18. Report to Attorney-General In section 464ZFE of the Crimes Act 1958— (a) in paragraph (d), for "it." substitute "it; and"; (b) after paragraph (d) insert— "(e) the number of authorisations given under section 464SA within the period to which the report relates; and (f) the number of authorisations refused to be given under section 464SA within the period to which the report relates.". 19. Immunity of medical practitioners etc. For section 464ZH(a) of the Crimes Act 1958 substitute— "(a) was requested to be conducted on another person under this Subdivision in accordance with— s. 17 -- 16 of 20 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of the Crimes Act 1958 Crimes (Amendment) Act 2004 Act No. 41/2004 15 (i) a request of a member of the police force given under section 464R; or (ii) an authorisation given by a senior police officer under section 464SA; or (iii) an order made by a court under this Subdivision; or". 20. Supreme Court—limitation of jurisdiction At the end of section 464ZI of the Crimes Act 1958 insert— "(2) It is the intention of section 464ZH as amended by section 19 of the Crimes (Amendment) Act 2004 to alter or vary section 85 of the Constitution Act 1975.". 21. Validation After section 464ZL(2) of the Crimes Act 1958 insert— "(3) An order purporting to have been made under section 464ZF(2) before the commencement of the Crimes (Amendment) Act 2004 in respect of a person is not invalid only because the person was not given— (a) notice of the application for the order; or (b) an opportunity to be heard on the application. (4) An order purporting to have been made under section 464ZF(3) before the commencement of the Crimes (Amendment) Act 2004 in respect of a person aged 17 years or more is not invalid only because the person was not given— (a) notice of the application for the order; or s. 20 -- 17 of 20 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of the Crimes Act 1958 Crimes (Amendment) Act 2004 Act No. 41/2004 16 (b) an opportunity to be heard on the application. (5) Sub-section (4) does not affect the rights of the parties in the proceeding known as Pavic v. Magistrates' Court of Victoria and Chief Commissioner of Police (No. 1001 of 2002) in the Supreme Court of Victoria.". __________________ s. 21 -- 18 of 20 -- Victorian Legislation and Parliamentary Documents Part 3—Amendment of the Metropolitan Fire Brigades Act 1958 Crimes (Amendment) Act 2004 Act No. 41/2004 17 PART 3—AMENDMENT OF THE METROPOLITAN FIRE BRIGADES ACT 1958 22. Deputy President (1) After section 9(2) of the Metropolitan Fire Brigades Act 1958 insert— "(3) Another of the members is to be appointed as Deputy President of the Board.". (2) For section 18(2) of the Metropolitan Fire Brigades Act 1958 substitute— "(2) The President or, in the absence of the President, the Deputy President must preside at a meeting of the Board at which he or she is present.". (3) In section 18(3) of the Metropolitan Fire Brigades Act 1958, for "the President is not present" substitute "neither the President nor the Deputy President is present". ═══════════════ See: Act No. 6315. Reprint No. 9 as at 3 November 2003 and amending Act No. 50/1989. LawToday: www.dms. dpc.vic. gov.au s. 22 -- 19 of 20 -- Victorian Legislation and Parliamentary Documents Crimes (Amendment) Act 2004 Act No. 41/2004 18 ENDNOTES † Minister's second reading speech— Legislative Assembly: 13 May 2004 Legislative Council: 8 June 2004 The long title for the Bill for this Act was "to amend the Crimes Act 1958 with respect to fingerprinting and forensic procedures, to amend the Metropolitan Fire Brigades Act 1958 to provide for a Deputy President and for other purposes." Constitution Act 1975: Section 85(5) statement: Legislative Assembly: 13 May 2004 Legislative Council: 8 June 2004 Absolute majorities: Legislative Assembly: 3 June 2004 Legislative Council: 9 June 2004 Endnotes -- 20 of 20 --