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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Criminal Investigation Bill 2005
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Interpretation 2
4. "Reasonably suspects", meaning of 6
5. "Thing relevant to an offence", meaning of 6
6. Other written laws, this Act's relationship with 7
7. Common law, this Act's relationship with 7
8. Police officer's powers as an individual not
affected 8
9. Public officers may be authorised to exercise
powers 8
10. Officers' duty to identify themselves 9
11. Delegation by officers 9
12. Warrants and orders, applying for 9
13. Detained people to be taken to be in lawful custody 11
Part 2 -- Ancillary provisions about
exercising powers
14. When powers may be exercised 12
15. Assistance to exercise powers 12
16. Force, use of when exercising powers 13
17. Animals, use of by officers exercising powers 13
18. Roadblocks, use of to stop vehicles 13
19. Stopping vehicles, powers in connection with 15
20. Power to enter includes power to enter some other
places 15
21. Forensic examination of thing relevant to an
offence 16
116--2 page i
Criminal Investigation Bill 2005
Contents
22. Gender of a person, ascertaining 17
23. Consent to search etc., presumption against and
withdrawal of 17
Part 3 -- Citizens' powers
24. Prevention of offences and violence 18
25. Citizen's arrest 19
26. Person in command of vehicle, powers of 20
Part 4 -- Miscellaneous official
powers and duties
27. Suspects and others may be ordered to move on 22
28. Persons accompanying officers to be informed of
rights 23
Part 5 -- Entering and searching
places and vehicles
Division 1 -- General
29. Places with 2 or more occupiers, interpretation 24
30. Entry and search with occupier's consent 24
31. Occupier's rights 24
Division 2 -- Powers without a search warrant
32. Warrant not required 26
33. Public open area, search powers in 26
34. Public place, entry to keep order in 27
35. Place or vehicle, entry of to prevent violence 27
36. Place or vehicle, entry of to attend to dead or
seriously injured person 28
37. Place or vehicle, entry of to investigate serious
event 28
38. Vehicle, searches of to prevent offences etc. 29
39. Vehicle, search of for things relevant to offence 29
40. Place, entry of to establish protected forensic area
for serious offence 30
Division 3 -- Powers with a search warrant
41. Search warrant, application for 31
42. Search warrant, issue of 32
43. Search warrant, effect of 33
44. Search warrant, ancillary powers under 35
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Criminal Investigation Bill 2005
Contents
45. Search warrant, execution of 38
Division 4 -- Protected forensic areas
46. Protected forensic area, establishment of 38
47. Protected forensic area, powers in relation to 39
48. Protected forensic area, continuance of 41
49. Protected forensic area, review of need for 43
Part 6 -- Obtaining business records
50. Interpretation 45
51. Application of this Part 45
52. Order to produce, application for 45
53. Order to produce, issue of 46
54. Order to produce, service of 47
55. Order to produce, effect of 47
56. Produced records, powers in respect of 47
Part 7 -- Gaining access to data
controlled by suspects
57. Interpretation 49
58. Data access order, application for 49
59. Data access order, issue of 50
60. Data access order, service of 51
61. Data access order, effect of 51
Part 8 -- Searching people
Division 1 -- Preliminary
62. Interpretation 52
63. "Basic search", meaning of 52
64. "Strip search", meaning of 52
65. Searches, ancillary powers for 53
66. How searches must be done 53
Division 2 -- General powers to search people
67. Warrant not required 54
68. Searching people for evidence or contraband 54
69. People in public places, search of for security
purposes 55
Division 3 -- How searches must be done
70. Basic search or strip search, rules for doing 57
71. Basic search, additional rules for doing 58
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Criminal Investigation Bill 2005
Contents
72. Strip search, additional rules for doing 58
Part 9 -- Forensic procedures on
people
Division 1 -- Preliminary
73. Interpretation 60
74. Non-intimate forensic procedure, meaning of and
powers for 63
75. Intimate forensic procedure, meaning of and
powers for 64
76. Internal forensic procedure, meaning of and
powers for 65
77. Forensic procedures, purpose of 65
78. How forensic procedures must be done 66
Division 2 -- Forensic procedures on volunteers
79. Interpretation 66
80. Volunteer for a forensic procedure to be informed 66
81. When forensic procedure may be done on
volunteer 68
Division 3 -- Forensic procedures on deceased
people
82. Forensic procedures on deceased people 68
Division 4 -- Forensic procedures on victims
and witnesses
83. Request to adult to undergo forensic procedure 69
84. Request for protected person to undergo forensic
procedure 71
85. Request and giving of information to be recorded 72
86. Forensic procedure, when it may be done 72
87. Consent may be withdrawn 74
88. Officer may apply for FP warrant (involved
person) 74
89. FP warrant (involved person), application for 75
90. FP warrant (involved person), issue and effect of 76
Division 5 -- Forensic procedures on suspects
91. Request to adult to undergo forensic procedure 79
92. Request for protected person to undergo forensic
procedure 80
93. Request and giving of information to be recorded 81
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Criminal Investigation Bill 2005
Contents
94. Forensic procedure, when it may be done 81
95. Consent may be withdrawn 83
96. Application for approval or FP warrant (suspect) 83
97. Non-intimate forensic procedure on adult,
application for approval to do 84
98. Non-intimate search of adult, senior officer may
approve 85
99. FP warrant (suspect), application for 86
100. FP warrant (suspect), issue and effect of 88
Division 6 -- How forensic procedures must be
done
101. General requirements 90
102. Gender of people doing forensic procedures 91
103. Who may do a forensic procedure 92
104. Samples etc., how to be taken 94
Division 7 -- Dealing with things found during
a forensic procedure
105. Things found by chance during a forensic
procedure 95
106. Things found may be seized etc. 95
Division 8 -- Admissibility of certain evidence
107. Evidence of refusal of consent etc. 96
108. Evidence of how procedure was done 96
Part 10 -- Provisions about searches
and forensic procedures on
people
109. Interpretation 97
110. Body searches and forensic procedures may be
repeated 97
111. People not obliged to do searches etc. 97
112. Forensic information, use and destruction of 98
113. Legal protection for people carrying out searches
etc. 98
Part 11 -- Interviewing suspects
114. Interpretation 100
115. Interviews, conduct of 100
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Criminal Investigation Bill 2005
Contents
116. Recorded interview to be made available to the
suspect 101
117. Admission in serious case inadmissible unless
recorded 101
118. Recording admitted as evidence, jury may play 102
119. Recordings of interviews, possession etc. restricted 103
120. Recorded interview, broadcast prohibited 105
121. Recordings, court may give directions as to supply
etc. 105
122. Recordings to be retained by the police and CCC 105
123. Recordings may be played for teaching purposes 106
Part 12 -- Arrest and related matters
Division 1 -- Preliminary
124. Interpretation 107
125. Proceedings by summons etc. not prevented 107
Division 2 -- Arrest without an arrest warrant
126. Arrest warrant not required 108
127. Arrest power for offences 108
Division 3 -- Ancillary powers to making an
arrest
128. Warrant not required 109
129. Occupier's rights if a place is entered 109
130. Powers exercisable on a search under this Division 109
131. Places may be entered and vehicles may be
stopped 109
132. Places and vehicles of certain arrested suspects
may be searched for evidence 110
133. Escapees, additional powers to aid recapture 113
Division 4 -- Searches of people in custody for
security purposes
134. Certain people in custody may be searched 114
Division 5 -- Dealing with arrested people
135. Young Offenders Act 1994 not affected 117
136. Arrested people, rights of 117
137. Arrested suspects, rights of 117
138. Arrested suspects, detention of 119
139. Detention period for arrested suspects 119
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Criminal Investigation Bill 2005
Contents
140. Reasonable period of detention, factors
determining 122
141. Arrested suspects, charging and releasing 124
142. Other arrested people, dealing with 126
Division 6 -- Miscellaneous
143. Possession of warrant at time of arrest not
necessary 127
Part 13 -- Seizing things and related
matters
144. Application 128
145. Things relevant to an offence, grounds for seizing 128
146. Seizing things, ancillary powers 128
147. Records relevant to an offence 129
148. Records, powers to facilitate seizing 130
149. Seized things, list to be supplied on request 131
150. Privileged material, procedure on seizure of 131
151. Criminal and Found Property Disposal Act 2005
applies 133
Part 14 -- Miscellaneous
152. Order by officer, offence to not obey 134
153. Evidence obtained improperly 134
154. Inadmissible evidence, court may allow admission 135
155. Regulations 136
156. Review of Act 136
Defined Terms
page vii
Western Australia
LEGISLATIVE ASSEMBLY
(Proforma amendments)
Criminal Investigation Bill 2005
A Bill for
An Act to provide powers for the investigation of offences and for
related matters.
The Parliament of Western Australia enacts as follows:
page 1
Criminal Investigation Bill 2005
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Criminal Investigation Act 2005.
2. Commencement
5 (1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
3. Interpretation
(1) In this Act, unless the contrary intention appears --
10 "area associated with a dwelling" means --
(a) if the dwelling is one of 2 or more dwellings in one
building, the parts of the building and any area
around the building that the occupiers of the
dwellings use exclusively but in common with each
15 other; or
(b) otherwise, the area around the dwelling that is used
exclusively by the occupier, such as a driveway,
garden or yard;
"arrest warrant" means a warrant issued under another written
20 law for the arrest of a person;
"basic search" of a person, means a search that complies with
section 63;
"disturb" includes to damage, destroy, interfere with and
remove;
25 "DPP" means the Director of Public Prosecutions appointed
under the Director of Public Prosecutions Act 1991;
"dwelling" means a place or a part of a place that is ordinarily
used for human habitation and it does not matter that it is
from time to time uninhabited;
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Criminal Investigation Bill 2005
Preliminary Part 1
s. 3
"forensic examination", in relation to a thing, has a meaning
affected by section 21;
"forensic procedure" has the meaning given to that term by
section 73;
5 "frisk search" a person, means to quickly and methodically run
the hands over the outside of the person's clothing;
"impression" includes a cast;
"lawyer" has the meaning given to "certificated practitioner"
by the Legal Practice Act 2003 section 3;
10 "mobile home" means a vehicle --
(a) that is ordinarily used for human habitation; and
(b) that is permanently or semi-permanently stationary in
a single location;
"occupier" of a place, includes any person who appears to have
15 the control or management of the place;
"offence" means any offence under a written law;
"officer" means a police officer or a public officer or both, as
the case requires;
"official details" --
20 (a) of a police officer -- means the officer's surname
and rank and, if the officer's official details are
required to be stated on a document, the officer's
registered number;
(b) of a public officer -- means the officer's full name
25 and official title;
"photograph" includes a digital image and a moving visual
record;
"place" means any land, building, structure, tent or mobile
home or a part of any land, building, structure, tent or
30 mobile home;
"police officer" means a person appointed under the Police
Act 1892 Part I to be a member of the Police Force of
Western Australia;
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Criminal Investigation Bill 2005
Part 1 Preliminary
s. 3
"prescribed" means prescribed by regulations made under this
Act;
"private parts" of a person, means the person's genital area,
anal area, buttocks and, in the case of --
5 (a) a female; or
(b) a male undergoing a reassignment procedure, as that
term is defined in the Gender Reassignment Act 2000
section 3,
breasts;
10 "protected forensic area" means a protected forensic area
established in accordance with section 46;
"public officer" means a person, other than a police officer,
appointed under a written law to an office that is prescribed
under section 9(1);
15 "public open area" means --
(a) an area that is part of a road open to and used by the
public; or
(b) an area of land --
(i) to which the public has access, whether on
20 payment or not; and
(ii) on which there is no building, structure, tent
or mobile home,
and it does not matter if the area is the whole or a part
of a surveyed lot or of an unsurveyed piece of land,
25 or, if the area is part of such a lot, there is a building,
structure, tent or mobile home on some other part;
Example: under paragraph (b), an area of bush in a national park is a public
open area but a building in the park is not.
"public place" includes --
30 (a) a place to which the public, or any section of the
public, has or is permitted to have access, whether on
payment or not;
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Criminal Investigation Bill 2005
Preliminary Part 1
s. 3
(b) a place to which the public has access with the
express or implied approval of, or without
interference from, the occupier of the place; and
(c) a school, university or other place of education, other
5 than a part of it to which neither students nor the
public usually has access;
"reasonably suspects" has the meaning given by section 4;
"record" means any record of information, irrespective of how
the information is recorded or stored or able to be
10 recovered and includes --
(a) any thing from which images, sounds or writings can
be reproduced, with or without the aid of anything
else; and
(b) any thing on which information is recorded or stored,
15 whether electronically, magnetically, mechanically or
by some other means;
"remote communication" means any way of communicating at
a distance including by telephone, fax, email and radio;
"search warrant" means a search warrant issued under Part 5
20 Division 3;
"senior police officer" means a police officer who is, or is
acting as, an inspector or an officer of a rank more senior
than an inspector;
"statutory penalty" for an offence, means the penalty specified
25 by a written law for the offence;
"strip search" of a person, means a search that complies with
section 64;
"thing relevant to an offence" has the meaning given to that
term by section 5;
30 "vehicle" means --
(a) any thing capable of transporting people or things by
air, road, rail or water, irrespective of whether the
page 5
Criminal Investigation Bill 2005
Part 1 Preliminary
s. 4
thing is permanently or semi-permanently stationary,
other than a mobile home; or
(b) a mobile home that is reasonably suspected not to be
permanently or semi-permanently stationary in a
5 single location,
and it does not matter how the thing or mobile home is
moved or propelled;
"WA Police" means the Police Force of Western Australia
provided for by the Police Act 1892.
10 (2) Examples in this Act are provided to assist understanding and
do not form part of the Act.
4. "Reasonably suspects", meaning of
For the purposes of this Act, a person reasonably suspects
something at a relevant time if he or she personally has grounds
15 at the time for suspecting the thing and those grounds (even if
they are subsequently found to be false or non-existent), when
judged objectively, are reasonable.
5. "Thing relevant to an offence", meaning of
(1) For the purposes of this Act, a thing is a thing relevant to an
20 offence if it is reasonably suspected that --
(a) the thing has been, is being, or is intended to be used for
the purpose of committing an offence;
(b) the thing has been obtained by the commission of an
offence;
25 (c) an offence has been, is being, or may be committed in
respect of the thing;
(d) the thing is or may afford --
(i) evidence relevant to proving the commission of
an offence or who committed an offence; or
30 (ii) evidence that tends to rebut an alibi.
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Criminal Investigation Bill 2005
Preliminary Part 1
s. 6
(2) For the purposes of this Act, a thing relevant to an offence may
be material or non-material, animate (other than human) or
inanimate.
Example: the distance between 2 things or the visibility from a window are
5 non-material things.
6. Other written laws, this Act's relationship with
(1) Unless the contrary intention appears in this Act or another
written law --
(a) this Act does not affect the operation of any other
10 written law; and
(b) the powers conferred by this Act on a person are in
addition to and do not derogate from any powers
conferred on the person by any other written law.
(2) Without limiting subsection (1)(a), this Act does not affect the
15 operation of --
(a) The Criminal Code, particularly Chapter XXVI of it; or
(b) the Coroners Act 1996 section 32.
(3) If a provision in this Act is inconsistent with a provision in
another Act, the provision in the other Act prevails.
20 7. Common law, this Act's relationship with
(1) Subject to this section, a police officer has the powers, duties
and responsibilities that a constable has under the common law.
(2) If this Act confers a power, duty or responsibility on a police
officer that the officer also has by reason of subsection (1), the
25 power must be exercised and the duty or responsibility must be
performed in accordance with this Act.
(3) If there is an inconsistency between a provision of this Act and
a power, duty or responsibility that a police officer has by
reason of subsection (1), the provision of this Act prevails.
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Criminal Investigation Bill 2005
Part 1 Preliminary
s. 8
8. Police officer's powers as an individual not affected
Unless this Act provides otherwise, it does not affect any power
that a police officer may lawfully exercise in common with any
other citizen.
5 9. Public officers may be authorised to exercise powers
(1) For the purposes of this Act and in particular the definition of
"public officer" in section 3(1), another Act or the regulations
made under this Act may prescribe --
(a) an office to which people are appointed under a written
10 law for a public purpose; and
(b) in respect of that office, some or all of the powers in this
Act that a holder of that office may exercise, being
powers that this Act expressly provides may be
exercised by a public officer.
15 (2) A public officer may only exercise a power in this Act in
relation to an offence if --
(a) this Act provides that the power may be exercised by a
public officer;
(b) the office held by the public officer has been prescribed
20 under subsection (1)(a);
(c) the power is one that the officer may exercise by virtue
of regulations made under subsection (1)(b); and
(d) the offence is one that the officer, by virtue of being
such an officer, is authorised to investigate or prosecute.
25 (3) If a public officer, under subsection (2), exercises a power in
this Act, any enactment that protects the officer or the State
from liability for the officer's acts or omissions is to be taken to
operate as if those acts and omissions included the officer's acts
and omissions when exercising the power.
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Criminal Investigation Bill 2005
Preliminary Part 1
s. 10
10. Officers' duty to identify themselves
(1) If this Act requires an officer to identify himself or herself to a
person the officer must --
(a) if the officer is a police officer --
5 (i) give the person the officer's official details; and
(ii) if the officer is not in uniform, show the person
evidence that the officer is a police officer;
(b) if the officer is a public officer --
(i) give the person the officer's official details; and
10 (ii) show the person evidence that the officer is a
public officer.
(2) If an officer cannot comply with subsection (1)(a)(ii) or (b)(ii)
immediately, the officer must comply with it as soon as
practicable.
15 11. Delegation by officers
(1) An officer may delegate the performance of a function of the
officer under this Act, other than this power of delegation, to
another officer.
(2) If an officer delegates the performance of a duty imposed on the
20 officer by this Act to another officer, he or she must ensure that
the other officer performs the duty.
12. Warrants and orders, applying for
(1) In this section --
"judicial officer" means a JP or a magistrate, as the case
25 requires.
(2) A reference in this section to making an application includes a
reference to giving information in support of the application.
(3) This section applies to and in respect of an application to a
judicial officer for a warrant or order if another section of this
30 Act requires the application to be made under this section.
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Criminal Investigation Bill 2005
Part 1 Preliminary
s. 12
(4) The application must be made in person before the judicial
officer unless --
(a) the warrant or order is needed urgently; and
(b) the applicant reasonably suspects that a judicial officer
5 is not available within a reasonable distance of the
applicant,
in which case --
(c) it may be made to a judicial officer by remote
communication; and
10 (d) the judicial officer must not grant it unless satisfied
about the matters in paragraphs (a) and (b).
(5) The application must be made in writing unless --
(a) the application is made by remote communication; and
(b) it is not practicable to send the judicial officer written
15 material,
in which case --
(c) it may be made orally; and
(d) the judicial officer must make a written record of the
application and any information given in support of it.
20 (6) The application must be made on oath unless --
(a) the application is made by remote communication; and
(b) it is not practicable for the judicial officer to administer
an oath to the applicant,
in which case --
25 (c) it may be made in an unsworn form; and
(d) if the judicial officer issues a warrant or order, the
applicant must as soon as practicable send the judicial
officer an affidavit verifying the application and any
information given in support of it.
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Criminal Investigation Bill 2005
Preliminary Part 1
s. 13
(7) If on an application made by remote communication a judicial
officer issues a warrant or order, the judicial officer must, if
practicable, send a copy of the original warrant or order to the
applicant by remote communication, but otherwise --
5 (a) the judicial officer must give the applicant by remote
communication any information that must be set out in
the warrant or order;
(b) the applicant must complete a form of a warrant or order
with the information received and give the judicial
10 officer a copy of the form as soon as practicable after
doing so; and
(c) the judicial officer must attach the copy of the form to
the original warrant or order and any affidavit received
from the applicant and make them available for
15 collection by the applicant.
(8) The copy of the original warrant or order sent, or the form of the
warrant or order completed, as the case may be, under
subsection (7) has the same force and effect as the original
warrant or order.
20 13. Detained people to be taken to be in lawful custody
A person who is detained under this Act when he or she is not
under arrest is to be taken to be in lawful custody.
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Criminal Investigation Bill 2005
Part 2 Ancillary provisions about exercising powers
s. 14
Part 2 -- Ancillary provisions about exercising powers
14. When powers may be exercised
The powers in this Act may be exercised at any time of the day
or night, unless it is expressly provided otherwise.
5 15. Assistance to exercise powers
(1) A person who may exercise a power in this Act may authorise
as many other persons to assist in exercising the power as are
reasonably necessary in the circumstances.
(2) A person so authorised may exercise the power or assist the
10 other to exercise the power, as the case requires.
(3) Whether requested to do so or not, a person may assist another
person to exercise a power in this Act if the person reasonably
suspects that the other person --
(a) is lawfully entitled to exercise the power; and
15 (b) needs assistance for the purpose of doing so.
(4) A person who under this section is authorised by another to
exercise a power, or is assisting another to exercise a power,
must obey any lawful and reasonable directions of the other
person when exercising or assisting to exercise the power.
20 (5) If a person, acting under this section, exercises a power in this
Act having been authorised by another to do so, or assists
another to exercise a power in this Act, any enactment that
protects the person or the State from liability for the person's
acts or omissions is to be taken to operate as if those acts or
25 omissions included the person's acts or omissions when acting
under this section.
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Criminal Investigation Bill 2005
Ancillary provisions about exercising powers Part 2
s. 16
16. Force, use of when exercising powers
(1) When exercising a power in this Act, a person may use any
force against any person or thing that it is reasonably necessary
to use in the circumstances --
5 (a) to exercise the power; and
(b) to overcome any resistance to exercising the power that
is offered, or that the person exercising the power
reasonably suspects will be offered, by any person.
(2) If under subsection (1) a person uses force, the force may be
10 such as causes damage to the property of another person.
(3) Any use of force under subsection (1) against a person is subject
to The Criminal Code Chapter XXVI.
17. Animals, use of by officers exercising powers
(1) An officer who is exercising a power in this Act, or using force
15 under section 16, may use an animal to assist if --
(a) the animal has been trained for the purposes for which it
is used; and
(b) use of the animal is reasonably necessary in the
circumstances.
20 (2) Subject to section 16(2) and (3), an officer who uses an animal
to assist with exercising a power in this Act must take all
reasonable measures to ensure the animal does not injure any
person or damage any property.
18. Roadblocks, use of to stop vehicles
25 (1) In this section --
"road" has the meaning given to that term by the Road Traffic
Act 1974 section 5(1);
"vehicle" has the meaning given to that term by the Road
Traffic Act 1974 section 5(1).
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Part 2 Ancillary provisions about exercising powers
s. 18
(2) If a senior police officer reasonably suspects --
(a) that it is necessary to exercise a power in another section
of this Act to stop a vehicle;
(b) that the vehicle is on a road; and
5 (c) that a roadblock is necessary to facilitate the exercise of
that power,
the officer --
(d) may set up a roadblock on the road for the purpose of
stopping the vehicle; or
10 (e) may authorise another police officer to set up a
roadblock on the road for the purpose of stopping any
vehicle specified in the authorisation.
(3) A senior police officer's authorisation under
subsection (2)(e) --
15 (a) may be applied for and given by remote communication;
(b) must specify the power referred to in subsection (2)(a)
in relation to which the roadblock is necessary and why
it is necessary to exercise it;
(c) must specify whether the authorisation relates to all
20 vehicles or to a specified class of vehicles; and
(d) has effect for 6 hours, or any lesser period specified by
the officer, after it is given, but may be renewed.
(4) A senior police officer who under subsection (2) gives an
authorisation must make a written record of it, the date and time
25 it was given, and the reasons for giving it.
(5) If a police officer who is not a senior police officer reasonably
suspects --
(a) the matters in subsection (2)(a), (b) and (c); and
(b) that the seriousness and urgency of the circumstances
30 warrant doing so without a senior police officer's
authorisation,
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Criminal Investigation Bill 2005
Ancillary provisions about exercising powers Part 2
s. 19
the police officer may set up a roadblock on the road for no
more than 3 hours for the purpose of stopping the vehicle.
(6) A police officer who acts under subsection (5) must notify a
senior police officer as soon as practicable after doing so and
5 request the officer's authorisation for any further use of a
roadblock.
(7) Subject to the terms of any authorisation given under
subsection (2), a police officer who under this section sets up a
roadblock may stop vehicles at the roadblock.
10 19. Stopping vehicles, powers in connection with
(1) If under this Act an officer may stop a vehicle, whether or not at
a roadblock set up under section 18, the officer may use any
means that are reasonably necessary in the circumstances to do
so, including means that hinder or obstruct the passage of other
15 vehicles.
(2) Subsection (1) does not authorise the use of means that are
intended or are likely to cause death or grievous bodily harm to
any person, whether or not in a vehicle.
(3) An officer who under this Act stops a vehicle in order to
20 exercise a power in this Act in respect of the vehicle --
(a) may detain the vehicle for a reasonable period in order
to exercise the power; and
(b) may move the vehicle to a place suitable to exercise the
power.
25 20. Power to enter includes power to enter some other places
(1) This section applies if under this Act an officer may enter a
place, with or without a search warrant.
(2) If the place is one of 2 or more premises in one building, then,
in order to enter the place, the officer may enter, but not search,
30 any part of the building that the occupiers of the premises use
exclusively but in common with each other.
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Criminal Investigation Bill 2005
Part 2 Ancillary provisions about exercising powers
s. 21
(3) If subsection (2) does not apply and the officer reasonably
suspects that in order to enter the place it is necessary to enter
another place, the officer may enter, but not search, the other
place.
5 (4) Section 31 applies to and in respect of the entry of the other
place under subsection (3).
21. Forensic examination of thing relevant to an offence
(1) If under this Act a person may do a forensic examination on a
thing relevant to an offence or a sample of such a thing, the
10 person may do any or all of the following --
(a) examine or operate it;
(b) photograph, measure or otherwise make a record of it;
(c) take an impression of it;
(d) take samples of or from it;
15 (e) do tests on it, or on any sample taken under
paragraph (d), for forensic purposes.
(2) If it is reasonably necessary to do so in order to exercise a
power in subsection (1), the thing may be dismantled, damaged
or destroyed.
20 (3) A power in subsection (1) must not be exercised in relation to a
thing that may contain information that is privileged, as that
term is defined in section 150, until under that section --
(a) a decision is made that the information is not privileged;
or
25 (b) orders have been made to enable the power to be
exercised.
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Criminal Investigation Bill 2005
Ancillary provisions about exercising powers Part 2
s. 22
22. Gender of a person, ascertaining
If it is necessary to ascertain the gender of a person before
exercising a power in this Act on the person and the gender of
the person is uncertain to the officer authorised to exercise the
5 power --
(a) the officer must ask the person to indicate whether a
male or a female should exercise the power on the
person and must act in accordance with the answer; and
(b) in the absence of an answer, the person must be treated
10 as if of the gender that the person outwardly appears to
the officer to be.
23. Consent to search etc., presumption against and withdrawal
of
(1) If a person who is requested under this Act to consent to --
15 (a) a search of a place that he or she occupies;
(b) undergoing a basic search or a strip search; or
(c) undergoing a forensic procedure,
does not reply, or consents but resists the carrying out of the
search or procedure, he or she is to be taken to have not
20 consented.
(2) A person who consents to a search or procedure referred to in
subsection (1) may withdraw his or her consent at any time
before the search or procedure is completed by informing an
officer or person who is doing it.
page 17
Criminal Investigation Bill 2005
Part 3 Citizens' powers
s. 24
Part 3 -- Citizens' powers
24. Prevention of offences and violence
(1) It is lawful for any person (the "citizen") to use any force that is
reasonably necessary in the circumstances to prevent --
5 (a) the continuance of an act being done by a person in his
or her presence --
(i) that involves the use of violence against a
person;
(ii) that the citizen reasonably suspects will cause a
10 person to use violence against another person; or
(iii) that the citizen reasonably suspects will cause a
person to fear violence will be used by a person
against another person;
(b) an act by a person that the citizen reasonably suspects is
15 just about to be done in his or her presence that is
likely --
(i) to involve the use of violence against a person;
(ii) to cause a person to use violence against another
person; or
20 (iii) to cause a person to fear violence will be used by
a person against another person;
(c) any other breach of the peace by a person;
(d) the commission of an offence; or
(e) the doing of any act that the citizen reasonably suspects
25 will be done in the course of committing an offence.
(2) Subsection (1) does not authorise the entry of any place or
vehicle.
(3) If a person reasonably suspects that the unlawful killing of a
person is occurring in a place or vehicle, the person, without a
30 warrant, may enter it in order to prevent the unlawful killing.
page 18
Criminal Investigation Bill 2005
Citizens' powers Part 3
s. 25
25. Citizen's arrest
(1) In this section --
"arrestable offence" means an offence the statutory penalty for
which is or includes imprisonment.
5 (2) Any person may arrest another person (the "suspect") if he or
she reasonably suspects that the suspect has committed or is
committing an arrestable offence.
(3) Any person may arrest another person (the "suspect") who is
doing or about to do an act that the person is entitled to prevent
10 under section 24(1)(a), (b) or (c).
(4) A person is not entitled, by reason only of subsection (2) or (3),
to enter a place or vehicle where the person suspects the suspect
is.
(5) A person who arrests a suspect under subsection (2) or (3) must
15 as soon as practicable --
(a) arrange for a police officer to attend; or
(b) take the suspect and any thing relevant to the offence to
a police officer.
(6) For the purpose of complying with subsection (5), a person may
20 detain the suspect until the police officer attends or until the
suspect is taken to a police officer.
(7) When a police officer attends or the suspect is taken to a police
officer --
(a) the officer may take over the arrest and detention of the
25 suspect if, under section 127 or an arrest warrant, the
officer is authorised to arrest the suspect; but
(b) if the officer does not take over the arrest and detention
of the suspect, the suspect ceases to be under arrest.
page 19
Criminal Investigation Bill 2005
Part 3 Citizens' powers
s. 26
26. Person in command of vehicle, powers of
(1) In this section --
"endangering offence" on a vehicle, means an offence that, if
committed on board the vehicle, may endanger the safety
5 of any person on board the vehicle.
(2) If the person in charge of a vehicle reasonably suspects that a
person who is on or about to board the vehicle (the
"passenger") is carrying a thing that may be used to commit an
endangering offence on the vehicle or to damage the vehicle, the
10 person in charge --
(a) may ask the passenger to consent to a frisk search by or
on behalf of the person in charge; and
(b) if the passenger refuses to consent, may --
(i) if the passenger is on board, remove him or her
15 from the vehicle or, if it not safe to do so,
restrain or confine him or her until it is safe to do
so; or
(ii) if the passenger is about to board, prevent him or
her from boarding.
20 (3) If on a request made under subsection (2)(a) a passenger
consents to a frisk search --
(a) the person doing the search may seize any thing the
person reasonably suspects may be used to commit an
endangering offence on the vehicle or to damage the
25 vehicle; and
(b) if any such thing is seized, it must be kept in safe
custody and returned to the passenger when he or she
leaves the vehicle or given to a police officer.
(4) If it is reasonably necessary to do so in order --
30 (a) to prevent danger to the safety of a vehicle or of any
person on board it; or
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Criminal Investigation Bill 2005
Citizens' powers Part 3
s. 26
(b) to prevent an offence being committed on board a
vehicle,
the person in charge of the vehicle may remove a person who is
on board from the vehicle or, if it not safe to do so, restrain or
5 confine him or her until it is safe to do so.
(5) If the person in charge of a vehicle reasonably suspects that a
person on board (the "suspect") has committed or is
committing an offence on board, he or she may --
(a) arrest the suspect; and
10 (b) detain the suspect until he or she can be taken to a police
officer.
(6) If under subsection (5)(a) the suspect is arrested, section 25(5),
(6) and (7) apply.
page 21
Criminal Investigation Bill 2005
Part 4 Miscellaneous official powers and duties
s. 27
Part 4 -- Miscellaneous official powers and duties
27. Suspects and others may be ordered to move on
(1) A police officer may order a person who is in a public place, or
in a vehicle used for public transport, to leave it, or a part of it
5 specified by the officer, if the officer reasonably suspects that
the person --
(a) is doing an act --
(i) that involves the use of violence against a
person;
10 (ii) that will cause a person to use violence against
another person; or
(iii) that will cause a person to fear violence will be
used by a person against another person;
(b) is just about to do an act that is likely to --
15 (i) involve the use of violence against a person;
(ii) cause a person to use violence against another
person; or
(iii) cause a person to fear violence will be used by a
person against another person;
20 (c) is committing any other breach of the peace;
(d) is hindering, obstructing or preventing any lawful
activity that is being, or is about to be, carried out by
another person;
(e) intends to commit an offence; or
25 (f) has just committed or is committing an offence.
(2) A police officer giving an order under subsection (1) may in
addition do either or both of the following --
(a) order the person to go beyond a reasonable distance
from the place, or the part of the place, set by the
30 officer;
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Criminal Investigation Bill 2005
Miscellaneous official powers and duties Part 4
s. 28
(b) order the person to obey the order or orders for a period
set by the officer; but the period must not be longer than
24 hours.
(3) For the purpose of giving an order under this section to a person
5 whose personal details (as that term is defined in the Criminal
Investigation (Identifying People) Act 2002 section 16) are
unknown to the officer, a police officer may request the person
to give the officer any or all of the person's personal details.
(4) If a request is made under subsection (3), the Criminal
10 Investigation (Identifying People) Act 2002 section 16 applies to
and in relation to the request in the same way as it applies to a
request made under subsection (2) of that section.
(5) Any order given under this section must be in writing in a form
approved by the Commissioner of Police.
15 (6) This section does not prevent a police officer from charging a
person with an offence without having exercised a power in this
section.
28. Persons accompanying officers to be informed of rights
(1) An officer who requests a person who is not in lawful custody
20 to accompany the officer or another officer for the purposes of
assisting in the investigation of an offence must inform the
person and be satisfied that the person understands --
(a) that he or she is not under arrest;
(b) that he or she does not have to accompany the officer
25 concerned; and
(c) that if he or she accompanies the officer concerned, he
or she is free to leave at any time unless he or she is then
under arrest.
(2) Subsection (1) does not apply to or in respect of a person to
30 whom a requirement has been made by a member of the Police
Force under the Road Traffic Act 1974 section 66.
page 23
Criminal Investigation Bill 2005
Part 5 Entering and searching places and vehicles
Division 1 General
s. 29
Part 5 -- Entering and searching places and vehicles
Division 1 -- General
29. Places with 2 or more occupiers, interpretation
If under this Part any information must be given to, or consent
5 may be obtained from, or any thing must be done in respect of,
the occupier of a place, then in a case where a place has 2 or
more occupiers, it is sufficient to give the information to, or
obtain consent from, or do the thing in respect of, any one of the
occupiers.
10 30. Entry and search with occupier's consent
(1) This Part does not prevent an officer, with the informed consent
of the occupier of a place, from exercising without a search
warrant any of the powers that could be exercised under a
search warrant in respect of the place.
15 (2) For the purposes of this Part, an occupier gives informed
consent to an officer if the occupier consents after being
informed by the officer --
(a) of the powers that the officer wants to exercise in
respect of the place;
20 (b) of the reason why the officer wants to exercise those
powers; and
(c) that the occupier can refuse to consent to the officer
doing so.
31. Occupier's rights
25 (1) This section applies to and in respect of the entry of a place
where the entry is to be made under section 20(3), this Part or
Part 12 Division 3.
(2) If the occupier of a place is present when it is proposed to enter
the place, an officer must, before any officer enters the place --
30 (a) identify himself or herself to the occupier;
page 24
Criminal Investigation Bill 2005
Entering and searching places and vehicles Part 5
General Division 1
s. 31
(b) inform the occupier that it is intended to enter the place;
(c) if the place is to be entered under a search warrant, give
the occupier a copy of the warrant;
(d) if the place is to be entered under some other statutory
5 authority, inform the occupier of the reason, and the
statutory authority, for the entry; and
(e) give the occupier an opportunity to give informed
consent to the place being entered,
unless the officer reasonably suspects that to do so will
10 endanger any person, including the officer, or jeopardise the
purpose of the proposed entry or the effectiveness of any search
of the place.
(3) If subsection (2) is not complied with before a place is entered,
then as soon as practicable after the place is entered an officer
15 must --
(a) identify himself or herself to the occupier;
(b) if the entry was under a search warrant, give the
occupier a copy of the warrant; and
(c) if the entry was under some other statutory authority,
20 inform the occupier of the reason, and the statutory
authority, for the entry.
(4) If the occupier of a place is present in the place when it is being
searched, an officer doing the search must not prevent the
occupier, or a person nominated by the occupier, from
25 observing the search, unless --
(a) the officer reasonably suspects that the occupier or
person might be endangered if he or she were to observe
the search;
(b) the occupier or person obstructs the search; or
30 (c) it is impracticable for the occupier or person to observe
the search.
page 25
Criminal Investigation Bill 2005
Part 5 Entering and searching places and vehicles
Division 2 Powers without a search warrant
s. 32
(5) If a place that is entered by one or more officers is unoccupied,
the officer in charge must leave the following in a prominent
position in the place before leaving the place --
(a) a notice stating --
5 (i) the officer's official details; and
(ii) that the place has been entered;
(b) if the entry was under a search warrant, a copy of the
warrant completed in accordance with section 45(2); and
(c) if the entry was under some other statutory authority, the
10 reason, and the statutory authority, for the entry.
(6) The copy of a search warrant given under subsection (2)(c)
or (3)(b) or left under subsection (5)(b) may omit the name of
the judicial officer who issued it.
Division 2 -- Powers without a search warrant
15 32. Warrant not required
The powers in this Division may be exercised without a search
warrant.
33. Public open area, search powers in
(1) If an officer reasonably suspects --
20 (a) that a thing relevant to an offence; or
(b) that a person against whom an offence may have been,
or may be being, committed,
is in a public open area, then, subject to this section, the officer
may exercise in the area any of the powers that could be
25 exercised under a search warrant if it were issued in respect of
the area for the purposes of searching it for the thing or person.
(2) An officer exercising such a power must not damage or destroy
any thing in the public open area, or dig up the ground, or seize
any thing that is attached to the land, without the informed
30 consent of the person who has the control or management of the
area.
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Criminal Investigation Bill 2005
Entering and searching places and vehicles Part 5
Powers without a search warrant Division 2
s. 34
(3) Subsection (2) does not prevent the seizing of any plant that it is
unlawful to possess.
(4) This section does not prevent an officer from applying for a
search warrant for a place that is a public open area.
5 34. Public place, entry to keep order in
A police officer may enter and remain in a public place where
members of the public are present for the purpose of ensuring
that peace and good order are maintained at the place.
35. Place or vehicle, entry of to prevent violence
10 (1) A police officer who reasonably suspects that any of the
following is occurring or is just about to occur in a place or
vehicle may enter the place, or may stop and enter the vehicle,
in order to prevent it --
(a) an act by a person --
15 (i) that involves or is likely to involve the use of
violence against a person;
(ii) that is likely to cause a person to use violence
against another person; or
(iii) that is likely to cause a person to fear violence
20 will be used by a person against another person;
(b) any other breach of the peace by a person;
(c) an act by a person that will or is likely to kill a person or
cause serious injury to a person; or
(d) an act by a person that will or is likely to cause serious
25 and unlawful damage to property.
(2) If a police officer who enters a place or vehicle under
subsection (1) finds a thing relevant to an offence, whether or
not the offence arises out of the circumstances that caused the
officer to enter the place or vehicle, the officer --
30 (a) may, subject to section 145, seize the thing; and
page 27
Criminal Investigation Bill 2005
Part 5 Entering and searching places and vehicles
Division 2 Powers without a search warrant
s. 36
(b) whether or not the officer seizes the thing, may do a
forensic examination on it.
36. Place or vehicle, entry of to attend to dead or seriously
injured person
5 If an officer reasonably suspects that there is in a place or
vehicle a person who has died or who is so ill or injured as to be
likely to die or suffer permanent injury to his or her health
unless the officer enters the place or vehicle, the officer may
enter the place, or stop and enter the vehicle, in order to
10 ascertain the facts and if necessary attend to the person.
37. Place or vehicle, entry of to investigate serious event
(1) In this section --
"serious event" means a fire, an explosion, or the presence of
any article, substance or gas, that is likely to endanger the
15 safety of people or cause serious damage to property.
(2) If a police officer reasonably suspects that there is or has been a
serious event in a place, the officer may enter the place.
(3) If a police officer reasonably suspects that there is or has been a
serious event in a vehicle, the officer may stop and enter the
20 vehicle.
(4) A police officer may only exercise the powers in subsection (2)
or (3) if and for so long as the officer reasonably suspects that it
is necessary to do so as a matter of urgency in order --
(a) to ensure there is no danger to people or property; or
25 (b) to establish whether the serious event is connected to an
offence and to decide, under section 39 or 40 (as the
case requires), whether or not to establish a protected
forensic area at the place.
page 28
Criminal Investigation Bill 2005
Entering and searching places and vehicles Part 5
Powers without a search warrant Division 2
s. 38
38. Vehicle, searches of to prevent offences etc.
If a police officer reasonably suspects that it is necessary to do
so for one or more of these purposes --
(a) to prevent a vehicle from being used --
5 (i) in the commission of an offence;
(ii) to aid or facilitate the commission of an offence;
(iii) to provide the means for an offender to leave the
place of the commission of an offence; or
(iv) by an offender to avoid, or attempt to avoid,
10 being arrested for an offence;
(b) to prevent damage to a vehicle;
(c) to protect the safety of people who may board or be on
board or who may be near a vehicle;
(d) to ensure peace and good order on a vehicle,
15 the officer --
(e) may stop, enter and search or inspect the vehicle; and
(f) may take any reasonably necessary action.
39. Vehicle, search of for things relevant to offence
(1) If an officer reasonably suspects --
20 (a) that a vehicle is carrying a thing relevant to an offence;
(b) that a vehicle is a thing relevant to an offence;
(c) that a vehicle is carrying a person against whom an
offence may have been, or may be being, committed; or
(d) that an offence has been, is being, or is about to be,
25 committed in a vehicle,
the officer --
(e) may stop, enter and search the vehicle;
(f) may, under section 46, establish a protected forensic
area around or in the vehicle;
page 29
Criminal Investigation Bill 2005
Part 5 Entering and searching places and vehicles
Division 2 Powers without a search warrant
s. 40
(g) may, subject to section 145, seize any thing relevant to
the offence; and
(h) may take any action that is reasonably necessary to stop
any offence that is being, or prevent any offence that
5 may be, committed against a person in the vehicle.
(2) If an officer doing a search under this section finds a thing
relevant to an offence other than the offence giving rise to the
search, the officer may, subject to section 145, seize it.
(3) If an officer doing a search under this section finds a thing that
10 may be seized under this section, then whether or not the officer
seizes it, the officer may do a forensic examination on it.
(4) The powers in subsection (1) may be exercised by an officer in
the area associated with a dwelling but only if the officer
reasonably suspects that --
15 (a) the person in charge of the vehicle does not reside in the
dwelling; and
(b) the vehicle is not in that area with the express or implied
permission of a person who does reside in the dwelling.
40. Place, entry of to establish protected forensic area for
20 serious offence
(1) In this section --
"serious offence" means an offence the statutory penalty for
which is or includes imprisonment for 5 years or more or
life.
25 (2) If a police officer reasonably suspects --
(a) that a serious offence has been or is being committed in
a place; or
(b) that there is in a place a thing relevant to a serious
offence,
30 the officer may enter the place and, under section 46, establish a
protected forensic area there.
page 30
Criminal Investigation Bill 2005
Entering and searching places and vehicles Part 5
Powers with a search warrant Division 3
s. 41
(3) A police officer may only exercise the power in subsection (2)
in a public open area if the officer reasonably suspects that it is
necessary to do so --
(a) to prevent a thing relevant to the serious offence that is
5 or may be in the area from being concealed or disturbed
until the area has been properly inspected or examined;
or
(b) to protect the safety of any person who is in or may
enter the area.
10 (4) A police officer may only exercise the power in subsection (2)
in a place that is not a public open area if the officer reasonably
suspects that in the time it would take to get a search warrant --
(a) a thing relevant to the serious offence that is or may be
in the place is likely to be concealed or disturbed; or
15 (b) the safety of a person who is in or may enter the place is
likely to be endangered.
Division 3 -- Powers with a search warrant
41. Search warrant, application for
(1) Only a police officer or a public officer may apply for a search
20 warrant.
(2) An application for a search warrant must be made to a JP in
accordance with section 12.
(3) An application for a search warrant must --
(a) state the applicant's full name and official details;
25 (b) state the offence that is suspected to have been
committed, or that is suspected may be committed, and
in relation to which a search warrant is wanted;
(c) state the grounds on which the applicant suspects that
the offence has been or may be committed;
30 (d) describe the place that it is desired to enter and search;
page 31
Criminal Investigation Bill 2005
Part 5 Entering and searching places and vehicles
Division 3 Powers with a search warrant
s. 42
(e) if it is desired to search the place for a thing relevant to
the offence -- describe the thing or the class of thing;
(f) if it is desired to search the place for a person -- name
or describe the person;
5 (g) state the grounds on which the applicant suspects one or
more of the following --
(i) that the thing or class of thing is a thing relevant
to the offence and that it is in the place;
(ii) that a person against whom an offence may have
10 been, or may be being, committed is in the place;
(h) state, to the best of the applicant's knowledge, whether
an application for a search warrant for the same place
has been made to any other JP within the previous
72 hours and if so whether a warrant was issued or not;
15 and
(i) include any other information that is prescribed.
42. Search warrant, issue of
(1) On an application made under section 41, a JP may issue a
search warrant for a place if satisfied that, in respect of each of
20 the matters in section 41(3) that the applicant suspects, there are
reasonable grounds for the applicant to have that suspicion.
(2) A search warrant must contain this information --
(a) the applicant's full name and official details;
(b) the suspected offence to which it relates;
25 (c) the place that may be entered and searched under the
warrant;
(d) if a thing or class of thing is the object of the search -- a
description of the thing or the class of thing;
(e) if a person is the object of the search -- the name or a
30 description of the person;
(f) the period, not exceeding 30 days, during which it may
be executed;
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Criminal Investigation Bill 2005
Entering and searching places and vehicles Part 5
Powers with a search warrant Division 3
s. 43
(g) the name of the JP who issued it; and
(h) the date and time when it was issued.
(3) A search warrant must be in the prescribed form.
(4) If a JP refuses to issue a search warrant, the JP must record on
5 the application the fact of, the date and time of, and the reasons
for, the refusal.
43. Search warrant, effect of
(1) In this section --
"target place", in relation to a search warrant, means the place
10 described in the warrant that may be entered and searched
under it;
"target thing", in relation to a search warrant, means the thing
or class of thing described in the warrant that is the object
of the search.
15 (2) A search warrant has effect according to its contents and this
section.
(3) A search warrant comes into force when it is issued by a JP.
(4) A search warrant may only be executed after it comes into force
and before the end of the period during which it may be
20 executed, despite subsection (11).
(5) A search warrant may be executed --
(a) if a police officer applied for it, by any police officer;
(b) if a public officer applied for it, by any public officer
whose functions are the same as the applicant's, or by a
25 police officer.
(6) A search warrant must be executed between 6 a.m. and 9 p.m.
unless the officer executing it reasonably suspects that if it were,
the safety of any person, including the officer, may be
endangered or the effectiveness of the proposed search may be
30 jeopardised.
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Part 5 Entering and searching places and vehicles
Division 3 Powers with a search warrant
s. 43
(7) A search warrant authorises entry to the target place for a
reasonable period for the purpose of executing the warrant.
(8) A search warrant authorises the officer executing it to exercise
any or all of these primary powers --
5 (a) to enter the target place;
(b) if it authorises a search for a target thing --
(i) to search the target place for the target thing;
(ii) to do a basic search or a strip search of a person
who is in the target place when the warrant is
10 being executed for the target thing; and
(iii) subject to section 145, to seize the target thing;
(c) if it authorises a search for a person --
(i) to search the target place for the person; and
(ii) to take any action that is reasonably necessary to
15 stop any offence that is being, or prevent any
offence that may be, committed against the
person.
(9) If an officer doing a search under a search warrant finds a thing
which is not a target thing but which is a thing relevant to an
20 offence (including the offence to which the warrant relates), the
officer may, subject to section 145, seize it.
(10) If an officer doing a search under a search warrant finds a target
thing or a thing that may be seized under subsection (9), then
whether or not the officer seizes it, the officer may do a forensic
25 examination on it.
(11) Subject to subsection (4), a search warrant ceases to be in force
when --
(a) if the target thing is found --
(i) the thing is seized; or
30 (ii) a forensic examination on the thing that it is
reasonably necessary to do in the target place is
completed;
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Entering and searching places and vehicles Part 5
Powers with a search warrant Division 3
s. 44
(b) if a thing which is not the target thing but which can be
seized under this Act is found when executing the
warrant --
(i) the thing is seized; or
5 (ii) a forensic examination on the thing that it is
reasonably necessary to do in the target place is
completed;
(c) if the person to be searched for is found -- any offence
that is being or that may be committed against the
10 person is stopped or prevented; or
(d) if the target thing or the person to be searched for is not
found, the search is completed,
whichever happens last.
(12) This section does not prevent the exercise of the powers in
15 Part 8 Division 2 on a person who is in the target place.
44. Search warrant, ancillary powers under
(1) In this section --
"senior officer" means --
(a) in relation to a police officer -- a police officer who
20 is, or is acting as, a sergeant or an officer of a rank
more senior than a sergeant;
(b) in relation to a public officer -- a public officer
prescribed as a senior officer in relation to that
officer;
25 "target place" has the meaning given to it by section 43;
"target thing" has the meaning given to it by section 43.
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Criminal Investigation Bill 2005
Part 5 Entering and searching places and vehicles
Division 3 Powers with a search warrant
s. 44
(2) A search warrant also authorises the officer executing it to
exercise any or all of these ancillary powers --
(a) subject to subsection (3), to enter but not to search a
place near the target place if the officer reasonably
5 suspects it is necessary to do so in order to --
(i) prevent a target thing from being concealed or
disturbed;
(ii) prevent a person from fleeing the target place; or
(iii) protect the safety of any person, including the
10 officer, who is in or near the target place;
(b) to take into and use in the target place any equipment or
facilities that are reasonably necessary in order to
exercise any power under the warrant;
(c) to photograph or otherwise make a record of a target
15 thing that is in the target place;
(d) to make reasonable use of any equipment, facilities or
services in the target place in order to exercise any
power under the warrant and for that purpose --
(i) to operate the equipment or facilities;
20 (ii) to order an occupier of the target place to do
anything that is reasonable and necessary to
facilitate that use;
(e) if the target thing is a record --
(i) to operate any device or equipment in the place
25 that is needed to gain access to, recover, or make
a reproduction of, the record;
(ii) if the officer reasonably suspects that an occupier
of the target place knows how to gain access to
or operate any such device or equipment -- to
30 order the occupier to provide any information or
assistance that is reasonable and necessary to
enable the officer to gain access to, recover, or
make a reproduction of, the record;
page 36
Criminal Investigation Bill 2005
Entering and searching places and vehicles Part 5
Powers with a search warrant Division 3
s. 44
(f) if the officer reasonably suspects it is necessary to do so
in order to prevent --
(i) the target thing from being concealed or
disturbed; or
5 (ii) a person in the place against whom an offence
may have been, or may be being, committed
from being endangered,
to establish a protected forensic area under section 46 in
the target place;
10 (g) if the officer reasonably suspects it is necessary to do so
to protect the safety of any person, including the officer,
who is in the target place when the warrant is being
executed --
(i) to order a person to leave the place or its vicinity;
15 (ii) to order a person not to enter the place or its
vicinity;
(iii) to detain a person who is in the place;
(iv) to do a basic search or a strip search of a person
who is in the place for any weapon or other thing
20 that could endanger a person;
(v) to seize and retain any such thing,
while the warrant is being executed.
(3) The powers in subsection (2)(a) must not be exercised by an
officer unless the officer has written approval to do so from a
25 senior officer who is not involved in the investigation to which
the search warrant relates.
(4) A senior officer who gives such an approval must make a
written record of it and --
(a) the place to be entered;
30 (b) the other officer's grounds for suspecting that it is
necessary to enter the place;
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Criminal Investigation Bill 2005
Part 5 Entering and searching places and vehicles
Division 4 Protected forensic areas
s. 45
(c) the date and time when it was given; and
(d) the reasons for giving it.
(5) A senior officer's approval under this section may be applied
for and given by remote communication.
5 (6) This section does not prevent the exercise of the powers in
Part 8 Division 2 on a person who is in the target place.
45. Search warrant, execution of
(1) The officer in charge of executing a search warrant must
comply with section 31.
10 (2) On completing the execution of a search warrant the officer in
charge of executing it must record the following matters on it --
(a) the officer's official details;
(b) the date and time when the warrant was executed; and
(c) any other matter that is prescribed.
15 (3) Part 13 applies to and in respect of the seizure of any thing
under a search warrant.
Division 4 -- Protected forensic areas
46. Protected forensic area, establishment of
(1) This section applies if another section in this Act authorises an
20 officer to establish a protected forensic area under this section.
(2) In order to establish the protected forensic area, the officer must
take reasonable steps to notify people of the existence and
boundaries of the area.
(3) The area of the protected forensic area must not be greater than
25 is reasonably necessary for the purposes for which it is
established.
(4) The boundaries of the protected forensic area may be altered at
any time.
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Criminal Investigation Bill 2005
Entering and searching places and vehicles Part 5
Protected forensic areas Division 4
s. 47
(5) While a protected forensic area is established, the officer who
established the area, or another officer involved in the
investigation, must remain at the area.
(6) An officer must disestablish the protected forensic area when
5 the purposes for which it was established cease to exist.
(7) More than one protected forensic area may be established in
respect of any one offence or suspected offence or in a place or
vehicle.
47. Protected forensic area, powers in relation to
10 (1) In this section --
"authorised", in relation to a protected forensic area, means
authorised by the officer in charge of the investigation at
the protected forensic area;
"senior officer" means --
15 (a) in relation to a police officer -- a police officer who
is, or is acting as, a sergeant or an officer of a rank
more senior than a sergeant;
(b) in relation to a public officer -- a public officer
prescribed as a senior officer in relation to that
20 officer.
(2) While a protected forensic area is established, an officer at the
area may take reasonable measures, including giving orders --
(a) to prevent a thing relevant to the offence to which the
area relates from being concealed or disturbed;
25 (b) to protect the safety of any person who is in or may
enter the area;
(c) to secure the area against unauthorised disturbance;
(d) to prevent an unauthorised person, animal or vehicle
from disturbing the area;
30 (e) to restrict entry to the area to people, animals, and
vehicles, that are authorised;
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Criminal Investigation Bill 2005
Part 5 Entering and searching places and vehicles
Division 4 Protected forensic areas
s. 47
(f) to remove an unauthorised person, animal or vehicle
from the area;
(g) if the area is established in or around a vehicle, to
prevent the vehicle from being moved.
5 (3) After a protected forensic area is established at a place that is
not a public open area and before --
(a) the occupier of the place gives informed consent to the
establishment of the protected forensic area; or
(b) a search warrant is issued for the place,
10 an officer involved in the investigation of the offence to which
the area relates may, with the prior approval of a senior officer
who is not involved in the investigation, exercise any power in
the area that could be exercised under a search warrant if it had
been issued for the area.
15 (4) A senior officer must not give such an approval for the exercise
of a power unless satisfied that --
(a) a thing relevant to the offence to which the area relates
is likely to be concealed or disturbed; or
(b) the safety of a person who is in the area is likely to be
20 endangered,
if the power is not exercised before --
(c) the occupier of the place gives informed consent to the
establishment of the protected forensic area; or
(d) a search warrant is issued for the place.
25 (5) A senior officer who gives such an approval must make a
written record of it and --
(a) the power to be exercised;
(b) the place where the power is to be exercised;
(c) the date and time when it was given; and
30 (d) the reasons for giving it.
page 40
Criminal Investigation Bill 2005
Entering and searching places and vehicles Part 5
Protected forensic areas Division 4
s. 48
(6) A senior officer's approval under this section may be applied
for and given by remote communication.
(7) An unauthorised person who, without reasonable excuse, enters
a protected forensic area commits an offence.
5 Penalty: a fine of $12 000 and imprisonment for 12 months.
(8) An unauthorised person who, without reasonable excuse,
disturbs any thing in a protected forensic area commits an
offence.
Penalty: a fine of $12 000 and imprisonment for 12 months.
10 48. Protected forensic area, continuance of
(1) If a protected forensic area is established under section 44(2)(f)
under a search warrant, then, subject to any order made under
section 49, it may continue in existence until the warrant ceases
to be in force.
15 (2) If a protected forensic area is established --
(a) in a public open area; and
(b) not under section 44(2)(f) under a search warrant,
then, subject to any order made under section 49, it may
continue in existence until the purposes for which it was
20 established cease to exist.
(3) If --
(a) a protected forensic area is established in a place;
(b) the place is not a public open area;
(c) the protected forensic area is not established under
25 section 44(2)(f) under a search warrant; and
(d) the occupier has given informed consent to the entry and
search of the place and to the establishment of the
protected forensic area,
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Criminal Investigation Bill 2005
Part 5 Entering and searching places and vehicles
Division 4 Protected forensic areas
s. 48
then, subject to any order made under section 49, the protected
forensic area may continue in existence --
(e) until the purposes for which it was established cease to
exist; or
5 (f) until it is disestablished under subsection (4),
whichever happens first.
(4) If --
(a) a protected forensic area is established at a place;
(b) the place is not a public open area;
10 (c) the protected forensic area is not established under
section 44(2)(f) under a search warrant; and
(d) the occupier withdraws consent to the entry and search
of the place and to the establishment of the protected
forensic area,
15 then --
(e) if an application for a search warrant is not made within
6 hours after the withdrawal of consent, the protected
forensic area is to be taken to be disestablished 6 hours
after the withdrawal;
20 (f) if such an application is made within 6 hours after the
withdrawal of consent but is refused, the protected
forensic area is to be taken to be disestablished when the
application is refused,
and evidence of any thing relevant to an offence that is found in
25 the area after the withdrawal is not admissible in proceedings in
a court unless the court decides otherwise under section 154.
(5) If --
(a) a protected forensic area is established at a place;
(b) the place is not a public open area;
30 (c) the protected forensic area is not established under
section 44(2)(f) under a search warrant; and
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Criminal Investigation Bill 2005
Entering and searching places and vehicles Part 5
Protected forensic areas Division 4
s. 49
(d) the occupier does not consent to the entry and search of
the place and to the establishment of the protected
forensic area,
then --
5 (e) if an application for a search warrant is not made within
6 hours after the protected forensic area is established,
the area is to be taken to be disestablished 6 hours after
it is established;
(f) if such an application is made within 6 hours after the
10 protected forensic area is established but is refused, the
area is to be taken to be disestablished when the
application is refused,
and evidence of any thing relevant to an offence that is found in
the area is not admissible in proceedings in a court unless the
15 court decides otherwise under section 154.
(6) Subsections (2) to (5) do not --
(a) prevent an application for or the issue of a search
warrant for a place; or
(b) if a search warrant is issued, affect the operation of
20 section 44(2)(f) and subsection (1).
49. Protected forensic area, review of need for
(1) A person who is aggrieved by the fact that a protected forensic
area is established (the "aggrieved person") may apply to the
Magistrates Court to review the grounds for the continued
25 establishment of the area.
(2) The application must be made in accordance with rules of court.
(3) On an application made under subsection (1) an officer involved
in the investigation of the offence to which the protected
forensic area relates (the "investigating officer") and the
30 aggrieved person are entitled to be heard.
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Criminal Investigation Bill 2005
Part 5 Entering and searching places and vehicles
Division 4 Protected forensic areas
s. 49
(4) On such an application the investigating officer may apply to
the court for an order that information given to the court that is
relevant to the continued establishment of the area not be
disclosed to the aggrieved person.
5 (5) An application under subsection (4) may be made without
notice to the aggrieved person and may be heard and decided in
private and in the absence of the person.
(6) On an application made under subsection (4), the court must not
make an order restricting the disclosure of information unless
10 satisfied the disclosure might prejudice the safety of any person
or the investigation of an offence to which the protected
forensic area relates.
(7) On an application made under subsection (1) the court may
make any orders it thinks fit including --
15 (a) an order as to the period for which the protected forensic
area may continue to be established;
(b) an order to mitigate any inconvenience caused by the
protected forensic area;
(c) if the court is satisfied that the protected forensic area
20 should not continue, an order that it be disestablished.
(8) Proceedings under this section may be conducted by remote
communication.
page 44
Criminal Investigation Bill 2005
Obtaining business records Part 6
s. 50
Part 6 -- Obtaining business records
50. Interpretation
In this Part --
"business" means any business, including a business of a
5 governmental body or instrumentality or of a local
government, or any occupation, trade or calling;
"business record" means a record prepared or used in the
ordinary course of a business for the purpose of recording
any matter relating to the business;
10 "order to produce" means an order issued under section 53.
51. Application of this Part
(1) An order to produce must not be issued under this Part to a
person in relation to a business record that relates or may relate
to an offence that the person is suspected of having committed.
15 (2) This Part does not prevent an officer from applying for a search
warrant in respect of a business record, whether before or after
the issue of an order to produce.
52. Order to produce, application for
(1) Only a police officer or a public officer may apply for an order
20 to produce a business record.
(2) An application for an order to produce must be made to a JP in
accordance with section 12.
(3) An application for an order to produce must --
(a) state the applicant's full name and official details;
25 (b) state the offence that is suspected to have been
committed and in relation to which the order is wanted;
(c) state the grounds on which the applicant suspects that
the offence has been committed;
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Criminal Investigation Bill 2005
Part 6 Obtaining business records
s. 53
(d) state the name of the person to whom the order wanted
will apply;
(e) state that the person is not suspected of having
committed the offence;
5 (f) describe with reasonable particularity the business
record or class of business record that the applicant
wants the person to produce;
(g) state the grounds on which the applicant suspects that
the business record or class of business record is a thing
10 relevant to the offence;
(h) state whether the original or a copy of the business
record or class of business record is required;
(i) state whether a paper, electronic or other version of the
business record or class of business record is required;
15 and
(j) include any other information that is prescribed.
53. Order to produce, issue of
(1) On an application made under section 52, a JP may issue an
order to produce a business record if satisfied that, in respect of
20 each of the matters in section 52(3) that the applicant suspects,
there are reasonable grounds for the applicant to have that
suspicion.
(2) An order to produce must contain this information --
(a) the applicant's full name and official details;
25 (b) the name of the person to whom the order applies;
(c) a reasonably particular description of the business
record or class of business record to be produced by the
person;
(d) an order that the person produce the record or records;
30 (e) whether the original or a copy of the record or records is
required;
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Criminal Investigation Bill 2005
Obtaining business records Part 6
s. 54
(f) whether a paper, electronic or other version of the record
or records is required;
(g) the place where the record or records are to be produced;
(h) the date on or before which the order must be obeyed,
5 which must allow a reasonable period for the person to
obey the order;
(i) the name of the JP who issued it;
(j) the date and time when it was issued.
(3) An order to produce must be in the prescribed form.
10 (4) If a JP refuses to issue an order to produce, the JP must record
on the application the fact of, the date and time of, and the
reasons for, the refusal.
54. Order to produce, service of
(1) An order to produce must be served on the person to whom it
15 applies as soon as practicable after it is issued.
(2) An order to produce may be served by personal service or by
post or, with the consent of the person to be served, by email or
fax.
55. Order to produce, effect of
20 (1) An order to produce has effect according to its contents and this
section.
(2) A person who is served with an order to produce and who,
without reasonable excuse, does not obey it commits an offence.
Penalty: a fine of $12 000 and imprisonment for 12 months.
25 56. Produced records, powers in respect of
(1) An officer to whom a business record is produced under an
order to produce may retain it for a reasonable time in order to
decide whether it is a thing relevant to an offence.
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Criminal Investigation Bill 2005
Part 6 Obtaining business records
s. 56
(2) If a business record produced to an officer under an order to
produce is a thing relevant to an offence, the officer --
(a) may, subject to section 145, seize it; and
(b) whether or not the officer seizes it, may do a forensic
5 examination on it.
(3) Sections 147 and 149 to 151 apply to and in respect of a record
that is seized after being produced under an order to produce.
page 48
Criminal Investigation Bill 2005
Gaining access to data controlled by suspects Part 7
s. 57
Part 7 -- Gaining access to data controlled by suspects
57. Interpretation
In this Part --
"data" includes any record, any computer program, and any
5 part of a computer program, in a digital, electronic or
magnetic form;
"data access order" means an order issued under section 59;
"data storage device" means a thing that contains or is
designed to contain data and it does not matter --
10 (a) if the thing is a fixed or removable part of another
thing;
(b) if the data it contains can be used or retrieved by the
thing itself or not; or
(c) if the thing is separate from, but the data it contains
15 can be used or retrieved by, another thing;
"serious offence" means an offence the statutory penalty for
which is or includes imprisonment for 5 years or more or
life.
58. Data access order, application for
20 (1) Only a police officer or a public officer may apply for a data
access order.
(2) An application for a data access order must be made to a
magistrate in accordance with section 12.
(3) An application for a data access order must --
25 (a) state the applicant's full name and official details;
(b) state the serious offence that is suspected to have been
committed and in relation to which the order is wanted;
(c) state the grounds on which the applicant suspects that
the offence has been committed;
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Criminal Investigation Bill 2005
Part 7 Gaining access to data controlled by suspects
s. 59
(d) describe with reasonable particularity the data storage
device to which the applicant wants access (the "target
device");
(e) explain how the applicant has possession of or access to
5 the target device;
(f) state the grounds on which the applicant suspects that
any data the target device may contain is or may be a
thing relevant to the serious offence;
(g) state the name of the person to whom the order wanted
10 will apply (the "target person");
(h) state the grounds on which the applicant suspects that
the target person has committed the serious offence;
(i) state the grounds on which the applicant suspects that
the target person has knowledge relevant to gaining
15 access to any data the target device may contain; and
(j) include any other information that is prescribed.
59. Data access order, issue of
(1) On an application made under section 58, a magistrate may
issue a data access order if satisfied --
20 (a) that the applicant has lawful possession of or lawful
access to the target device;
(b) that, in respect of each of the matters in section 58(3)
that the applicant suspects, other than paragraph (i),
there are reasonable grounds for the applicant to have
25 that suspicion; and
(c) that the target person has knowledge relevant to gaining
access to any data the target device may contain.
(2) A data access order must contain this information --
(a) the applicant's full name and official details;
30 (b) the name of the person to whom the order applies;
(c) a description of the data storage device to which the
order relates;
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Criminal Investigation Bill 2005
Gaining access to data controlled by suspects Part 7
s. 60
(d) an order that the person provide information or
assistance that is reasonable and necessary to allow the
applicant to do any or all of the following --
(i) to gain access to any data the device may
5 contain;
(ii) to copy any such data to another data storage
device;
(iii) to reproduce any such data on paper;
(e) the date on or before which the order must be obeyed;
10 (f) the name of the magistrate who issued it;
(g) the date and time when it was issued.
(3) A data access order must be in the prescribed form.
(4) If a magistrate refuses to issue a data access order, he or she
must record on the application the fact of, the date and time of,
15 and the reasons for, the refusal.
60. Data access order, service of
A data access order must be served personally on the person to
whom it applies as soon as practicable after it is issued.
61. Data access order, effect of
20 (1) A data access order has effect according to its contents.
(2) A person who is served with a data access order and who,
without reasonable excuse (the onus of proving which is on the
person), does not obey it commits a crime.
Penalty: imprisonment for 5 years.
25 Summary conviction penalty: a fine of $24 000 and
imprisonment for 2 years.
(3) It is not a defence to a charge of an offence under subsection (2)
that information required to be given under the data access order
would or may have incriminated the accused.
page 51
Criminal Investigation Bill 2005
Part 8 Searching people
Division 1 Preliminary
s. 62
Part 8 -- Searching people
Division 1 -- Preliminary
62. Interpretation
A term used in this Part has the meaning given to it by
5 section 73 which applies with any necessary changes.
63. "Basic search", meaning of
(1) A person who is authorised by this Act to do a basic search of a
person may do any or all of the following --
(a) scan the person with an electronic or mechanical device,
10 whether hand held or not, to detect any thing;
(b) remove the person's headwear, gloves, footwear or outer
clothing (such as a coat or jacket), but not his or her
inner clothing or underwear, in order to facilitate a frisk
search;
15 (c) frisk search the person;
(d) search any article removed under paragraph (b).
(2) A person who is authorised by this Act to do a basic search of a
person is not, unless authorised to do so under Part 9, authorised
to also do a forensic procedure on the person being searched.
20 64. "Strip search", meaning of
(1) An officer who is authorised by this Act to do a strip search of a
person may do any or all of the following --
(a) remove any article that the person is wearing including
any article covering his or her private parts;
25 (b) search any article removed under paragraph (a);
(c) search the person's external parts, including his or her
private parts;
(d) search the person's mouth but not any other orifice.
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Criminal Investigation Bill 2005
Searching people Part 8
Preliminary Division 1
s. 65
(2) An officer who is authorised by this Act to do a strip search of a
person is not, unless authorised to do so under Part 9, authorised
to also do a forensic procedure on the person being searched.
65. Searches, ancillary powers for
5 (1) This section operates if a person (the "searcher") is authorised
by this Act to do a basic search or a strip search of a person.
(2) In the case of a basic search or a strip search, the searcher may
do any or all of the following for the purposes of doing the
search --
10 (a) stop and detain the person for a reasonable period;
(b) search any thing being carried by or under the
immediate control of the person;
(c) order the person to remove any thing that might injure
the searcher when doing the search from any article that
15 the person is wearing;
(d) order the person to do anything reasonable to facilitate
the exercise by the searcher of any power in this section,
or in section 63 or 64, as the case requires.
(3) In the case of a basic search, the searcher may also photograph
20 part or all of the search while it is being done.
(4) In the case of a strip search, the searcher may also --
(a) order the person to accompany the searcher to a place
where the search can be done in accordance with
section 72(3);
25 (b) photograph any thing that may be lawfully seized in the
position it is found on the person's body.
66. How searches must be done
A basic search or a strip search that under this Act may be done
on a person must be done in accordance with Division 3.
page 53
Criminal Investigation Bill 2005
Part 8 Searching people
Division 2 General powers to search people
s. 67
Division 2 -- General powers to search people
67. Warrant not required
The powers in this Division may be exercised without a warrant.
68. Searching people for evidence or contraband
5 (1) If a police officer reasonably suspects that a person has in his or
her possession or under his or her control --
(a) any thing relevant to an offence;
(b) any thing that has been stolen or otherwise unlawfully
obtained; or
10 (c) any thing the possession of which by the person at that
time and place is unlawful,
the police officer --
(d) may do a basic search or a strip search of the person;
(e) may, subject to section 145, seize any thing described in
15 paragraph (a), (b) or (c) that the officer finds, whether or
not it is a thing that the officer suspected was in the
possession or under the control of the person; and
(f) whether or not the officer seizes the thing, may do a
forensic examination on it.
20 (2) For the purposes of exercising the powers in subsection (1), the
officer may enter any place where the person to be searched is
reasonably suspected by the officer to be and search it for the
person, but may not enter --
(a) a dwelling; or
25 (b) the area associated with a dwelling, unless the officer
reasonably suspects that the person --
(i) is in that area;
(ii) does not reside in the dwelling; and
page 54
Criminal Investigation Bill 2005
Searching people Part 8
General powers to search people Division 2
s. 69
(iii) does not have the express or implied permission
of a person who does reside in the dwelling to be
in that area.
(3) For the purposes of exercising the powers in subsection (1), the
5 officer may stop and enter a vehicle in which the person to be
searched is reasonably suspected by the officer to be and search
it for the person.
(4) The powers in subsection (3) may be exercised by an officer in
the area associated with a dwelling but only if the officer
10 reasonably suspects that --
(a) the person in charge of the vehicle does not reside in the
dwelling; and
(b) the vehicle is not in that area with the express or implied
permission of a person who does reside in the dwelling.
15 (5) A power in this section to search a place or vehicle is limited to
searching the place or vehicle for the person to be searched.
69. People in public places, search of for security purposes
(1) The powers in this section may be exercised in a public place by
a police officer --
20 (a) if the place is prescribed;
(b) if the place is the subject of a written declaration made
under subsection (2); or
(c) if the officer reasonably suspects that it is necessary to
exercise the powers for the purposes of safeguarding the
25 place or people who are in or may enter the place.
(2) If a senior police officer is of the opinion that it is necessary to
do so to safeguard a particular public place or people who are in
or may enter the place, the officer may declare the place to be
one where the powers in this section may be exercised by a
30 police officer.
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Criminal Investigation Bill 2005
Part 8 Searching people
Division 2 General powers to search people
s. 69
(3) A senior police officer who makes such a declaration must
make a written record of it and --
(a) the public place to which it applies;
(b) the date and time it was made;
5 (c) the period for which it will be in force, which must not
be more than 48 hours; and
(d) the reasons for making it.
(4) If the powers in this section may be exercised in a public place
by a police officer, the officer --
10 (a) having informed a person who is about to enter the place
that entry will be refused unless the person consents --
(i) to undergoing a basic search; and
(ii) if the person is in charge of a vehicle, to a search
of the vehicle,
15 may order the person not to enter the place if the person
does not consent; or
(b) having informed a person who is in the place that he or
she will be ordered to leave the place unless the person
consents --
20 (i) to undergoing a basic search; and
(ii) if the person is in charge of a vehicle, to a search
of the vehicle,
may order the person to leave the place if the person
does not consent.
25 (5) If a person does not obey an order given by a police officer
under subsection (4), the officer may physically enforce the
order.
(6) If a person who is about to enter or is in a public place consents
to undergoing a basic search by a police officer, the officer --
30 (a) may do a basic search for the purpose of searching for
any thing that the officer reasonably suspects does or
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Criminal Investigation Bill 2005
Searching people Part 8
How searches must be done Division 3
s. 70
may endanger the place or people who are in or may
enter it; and
(b) may seize any such thing found.
(7) A thing so seized from a person must be made available to be
5 collected by the person when or as soon as practicable after he
or she leaves the place, unless it may be lawfully seized and
retained under another provision of this Act or under another
written law.
(8) The Criminal and Found Property Disposal Act 2005 applies to
10 and in relation to a thing so seized that is made available to but
not collected by the person.
(9) If a police officer doing a search under this section finds a thing
which is not a thing referred to in subsection (6) but which is a
thing relevant to an offence, the officer --
15 (a) may, subject to section 145, seize it; and
(b) whether or not the officer seizes it, may do a forensic
examination on it.
Division 3 -- How searches must be done
70. Basic search or strip search, rules for doing
20 (1) This section operates if a person (the "searcher") is authorised
by this Act to do a basic search or a strip search of a person.
(2) Before the searcher does a basic search or a strip search of the
person the searcher must, if reasonably practicable --
(a) identify himself or herself to the person;
25 (b) inform the person of the reason for the search;
(c) request the person to consent to the search; and
(d) if the person does not consent to the search or withdraws
his or her consent, inform the person that it is an offence
to obstruct the searcher doing the search.
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Division 3 How searches must be done
s. 71
(3) If a basic search or a strip search is done of a person --
(a) it must be done as quickly as is reasonably practicable;
(b) it must not be any more intrusive than is reasonably
necessary in the circumstances;
5 (c) the searcher, if he or she proposes to remove any article
that the person is wearing, must tell the person why it is
considered necessary to do so;
(d) the person must be allowed to dress as soon as it is
finished;
10 (e) the person must be provided with a reasonably adequate
replacement for any article of clothing or footwear
seized if, due to the seizure, the person is left without
adequate clothing or footwear in the circumstances; and
(f) the person must not be questioned while it is being done
15 about any offence that he or she is suspected of having
committed.
71. Basic search, additional rules for doing
(1) This section is in addition to section 70 and operates if a person
(the "searcher") is authorised by this Act to do a basic search
20 of a person.
(2) The searcher must, if practicable, be a person of the same
gender as the person being searched, unless the searcher is a
doctor or a nurse.
72. Strip search, additional rules for doing
25 (1) This section is in addition to section 70 and operates if a person
(the "searcher") is authorised by this Act to do a strip search of
a person.
(2) Unless the strip search is being done under section 134, it must
not be done unless the searcher reasonably suspects that a strip
30 search is necessary in the circumstances.
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How searches must be done Division 3
s. 72
(3) If the strip search involves removing any article that the person
is wearing or searching the person's private parts --
(a) the searcher must be the same gender as the person
being searched, unless the searcher is a doctor or a
5 nurse;
(b) any person present while it is done must, if practicable,
be of the same gender as the person being searched;
(c) it must be done in circumstances affording reasonable
privacy to the person;
10 (d) it must not involve the removal of more articles being
worn by the person than is reasonably necessary for
doing it;
(e) it must not involve more visual inspection than is
reasonably necessary for doing it;
15 (f) the number of people present while it is done (excluding
a person who is present under paragraph (g), must not be
more than is reasonably necessary to ensure it is done
effectively and to ensure the safety of all present; and
(g) if the person is a protected person, it must, if practicable,
20 be done in the presence of a responsible person or some
other person who can provide the protected person with
support and represent his or her interests.
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Part 9 Forensic procedures on people
Division 1 Preliminary
s. 73
Part 9 -- Forensic procedures on people
Division 1 -- Preliminary
73. Interpretation
In this Part, unless the contrary intention appears --
5 "adult" means a person who has reached 18 years of age and in
respect of whom there are no reasonable grounds to suspect
that he or she is an incapable person;
"child" means a person who is under 18 years of age and in
respect of whom there are no reasonable grounds to suspect
10 that he or she is an incapable person;
"dentist" means an individual who is registered under the
Dental Act 1939;
"doctor" means an individual who is a medical practitioner, as
that term is defined in the Medical Act 1894;
15 "forensic procedure" means --
(a) a non-intimate forensic procedure;
(b) an intimate forensic procedure; or
(c) an internal forensic procedure;
"FP warrant (involved person)" means a warrant issued under
20 section 90;
"FP warrant (suspect)" means a warrant issued under
section 100;
"identifying particular" has the meaning given to that term by
the Criminal Investigation (Identifying People) Act 2002
25 section 11(1);
"incapable person" means a person of any age --
(a) who is unable by reason of a mental disability (which
term includes intellectual disability, a psychiatric
condition, an acquired brain injury and dementia) to
30 understand the general nature and effect of, and the
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Preliminary Division 1
s. 73
reason for and the consequences of undergoing, a
forensic procedure; or
(b) who is unconscious or otherwise unable to
understand a request made or information given
5 under this Act or to communicate whether or not he
or she consents to undergoing a forensic procedure;
"internal forensic procedure" on a person, means a procedure
that complies with section 76(1);
"intimate forensic procedure" on a person, means a procedure
10 that complies with section 75(1);
"involved person" in connection with an offence, means a
person who is not a suspect for the offence but who is
reasonably suspected to have been the victim of or to have
witnessed the commission of the offence;
15 "non-intimate forensic procedure" on a person, means a
procedure that complies with section 74(1);
"nurse" means an individual who is registered under the Nurses
Act 1992 Part 3;
"protected person" means a person who is a child or an
20 incapable person;
"Public Advocate" has the meaning given to that term by the
Guardianship and Administration Act 1990;
"qualified person", in relation to a forensic procedure, means a
person who is qualified under the regulations to do the
25 procedure;
"relevant thing", in relation to a forensic procedure, means a
thing referred to in section 77(1) a search for which, or for
evidence of which, is the purpose of the procedure;
"responsible person", in relation to a child, means --
30 (a) a parent of the child;
(b) a guardian of the child;
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Division 1 Preliminary
s. 73
(c) another person who has responsibility for the
day-to-day care of the child; or
(d) if no person mentioned in another paragraph of this
definition is available -- a person, or a person in a
5 class of persons, prescribed;
"responsible person", in relation to an incapable person,
means --
(a) the spouse or de facto partner of the incapable
person;
10 (b) a parent of the incapable person;
(c) if the incapable person is under 18 years of age -- a
guardian of the incapable person;
(d) if the incapable person has reached 18 years of age --
a guardian of the incapable person appointed under
15 the Guardianship and Administration Act 1990 or the
Public Advocate;
(e) another person who has responsibility for the
day-to-day care of the incapable person; or
(f) if no person mentioned in another paragraph of this
20 definition is available -- a person, or a person in a
class of persons, prescribed;
"suspect" for an offence, means a person who is reasonably
suspected of having committed the offence and it does not
matter whether or not the person --
25 (a) is under arrest for the offence;
(b) has been charged with the offence; or
(c) having been charged with the offence, has been
granted bail.
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Preliminary Division 1
s. 74
74. Non-intimate forensic procedure, meaning of and powers
for
(1) A person who is authorised under this Act to do a non-intimate
forensic procedure on a person may do any or all of the
5 following --
(a) take a swab, or use other means, to detect a relevant
thing on the external parts of the person's body, other
than his or her private parts;
(b) remove a relevant thing attached physically to those
10 external parts;
(c) take a sample of a relevant thing on those external parts;
(d) take an impression of a relevant thing on those external
parts;
(e) take a sample of a relevant thing from under a nail of the
15 person;
(f) remove a relevant thing from, or take a sample of a
relevant thing in, the person's mouth.
(2) A person who is authorised under this Act to do a non-intimate
forensic procedure on a person may in addition do any or all of
20 the following --
(a) remove any article that the person is wearing, other than
any article covering his or her private parts;
(b) search any article removed under paragraph (a);
(c) search the person's external parts, other than his or her
25 external private parts;
(d) search the person's mouth but not any other orifice;
(e) photograph any relevant thing in the position it is found
on the external parts of the person's body, or in the
person's mouth.
30 (3) A power under this Act to do a non-intimate forensic procedure
on a person does not include a power to do an intimate forensic
procedure or an internal forensic procedure on the person.
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Part 9 Forensic procedures on people
Division 1 Preliminary
s. 75
75. Intimate forensic procedure, meaning of and powers for
(1) A person who is authorised under this Act to do an intimate
forensic procedure on a person may do any or all of the
following --
5 (a) take a swab, or use other means, to detect a relevant
thing on the person's external private parts;
(b) remove a relevant thing attached physically to those
external private parts;
(c) take a sample of a relevant thing on those external
10 private parts;
(d) take an impression of a relevant thing on those external
private parts;
(e) take a sample of blood from the person.
(2) A person who is authorised under this Act to do an intimate
15 forensic procedure on a person may in addition do any or all of
the following --
(a) remove any article that the person is wearing, including
any article covering his or her private parts;
(b) search any article removed under paragraph (a);
20 (c) search the person's external parts, including his or her
external private parts;
(d) photograph any relevant thing in the position it is found
on the person's external private parts;
(e) do a non-intimate forensic procedure on the person.
25 (3) A power under this Act to do an intimate forensic procedure on
a person does not include a power to do an internal forensic
procedure on the person.
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Preliminary Division 1
s. 76
76. Internal forensic procedure, meaning of and powers for
(1) A person who is authorised under this Act to do an internal
forensic procedure on a person may do any or all of the
following --
5 (a) search the person's internal parts for a relevant thing
using x-rays, ultrasound or similar means;
(b) search the person's orifices, other than the mouth, for a
relevant thing;
(c) take a swab, or use other means, to detect a relevant
10 thing in those orifices;
(d) remove a relevant thing from, or take a sample of a
relevant thing in, any such orifice.
(2) A person who is authorised under this Act to do an internal
forensic procedure on a person may in addition do any or all of
15 the following --
(a) remove any article that the person is wearing, including
any article covering his or her private parts;
(b) search any article removed under paragraph (a);
(c) search the person's external parts, including his or her
20 external private parts;
(d) photograph any relevant thing in the position it is found
in the person's internal parts or orifices;
(e) do a non-intimate forensic procedure on the person;
(f) do an intimate forensic procedure on the person.
25 77. Forensic procedures, purpose of
(1) Subject to any authorisation given under section 82, a forensic
procedure must not be done under this Part on a person except
for the purpose of searching for a thing or evidence of a thing --
(a) that is relevant to an offence that is reasonably suspected
30 to have been committed; and
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Part 9 Forensic procedures on people
Division 2 Forensic procedures on volunteers
s. 78
(b) the existence or absence of which on or in the body of
the person is relevant to the investigation of the offence.
(2) A forensic procedure must not be done under this Part on a
person for the purpose of obtaining an identifying particular of
5 the person.
(3) If as a result of a forensic procedure done under this Part on a
person a blood sample, buccal swab, or any other thing, that
could be used to obtain an identifying particular of the person is
taken or seized, it must not be used to obtain the identifying
10 particular unless authority to do so exists or is obtained under
the Criminal Investigation (Identifying People) Act 2002.
78. How forensic procedures must be done
A forensic procedure that under this Part may be done on a
person must be done in accordance with Division 6.
15 Division 2 -- Forensic procedures on volunteers
79. Interpretation
In this Division --
"volunteer" means a person who is --
(a) an adult to whom section 80(1)(a) applies;
20 (b) a child to whom section 80(1)(b) or (c) applies; or
(c) an incapable person to whom section 80(1)(c)
applies.
80. Volunteer for a forensic procedure to be informed
(1) If --
25 (a) in the case of a person who is an adult, the person is
willing to undergo a forensic procedure for a purpose
permitted by section 77 and advises an officer
accordingly;
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Forensic procedures on volunteers Division 2
s. 80
(b) in the case of a protected person who is a child who has
reached 10 years of age --
(i) the child is willing to undergo a forensic
procedure for a purpose permitted by section 77;
5 (ii) a responsible person wants the child to undergo
the procedure; and
(iii) both advise an officer accordingly;
(c) in the case of a protected person who is a child under
10 years of age or an incapable person, a responsible
10 person wants the protected person to undergo a forensic
procedure for a purpose permitted by section 77 and
advises an officer accordingly,
the officer must inform each person whose consent is required
under section 81(1) in accordance with subsection (2).
15 (2) The volunteer or the responsible person or both, as the case
requires, must be informed of these matters --
(a) the purpose, permitted by section 77, of the forensic
procedure and what relevant thing is sought;
(b) how the procedure will be carried out;
20 (c) that information derived from the procedure may be
compared with or put in a database;
(d) that the procedure may provide evidence that could be
used in court against the volunteer;
(e) that the volunteer cannot be compelled to undergo the
25 procedure;
(f) that he or she may get legal advice before deciding
whether or not to consent to the procedure;
(g) that, if he or she consents to the procedure, he or she
may withdraw consent at any time before the procedure
30 has been completed; and
(h) any matter prescribed.
(3) The information in subsection (2) may be provided in writing.
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Division 3 Forensic procedures on deceased people
s. 81
(4) Any consent given by a person who has been informed under
subsection (2) must be recorded in writing and signed by the
person in the presence of an officer.
(5) A copy of the person's signed form must be given to the person.
5 81. When forensic procedure may be done on volunteer
(1) A forensic procedure may only be done on a volunteer if
section 80 is complied with and --
(a) in the case of an adult -- he or she consents to
undergoing the forensic procedure;
10 (b) in the case of a protected person who is a child who has
reached 10 years of age --
(i) the child consents to undergoing the forensic
procedure; and
(ii) the responsible person consents to the child
15 undergoing the procedure;
(c) in the case of a protected person who is a child under
10 years of age or an incapable person -- the
responsible person consents to the protected person
undergoing the procedure.
20 (2) If before a forensic procedure is completed on a volunteer --
(a) the volunteer objects to or resists the carrying out of the
procedure; or
(b) any consent required under subsection (1) is withdrawn,
the procedure must not be completed.
25 Division 3 -- Forensic procedures on deceased people
82. Forensic procedures on deceased people
(1) The State Coroner may authorise the doing of forensic
procedures on deceased people, whether or not their deaths are
reportable deaths (as that term is defined in the Coroners
30 Act 1996 section 3), for or in connection with purposes
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Forensic procedures on victims and witnesses Division 4
s. 83
permitted by section 77(1) or any other purpose stated in the
authorisation.
(2) An authorisation given under subsection (1) may apply --
(a) generally to all deceased people or forensic procedures;
5 (b) to a specific class of deceased people or forensic
procedures;
(c) conditionally or unconditionally.
(3) A coroner, on his or her own initiative or on the application of a
person with a proper interest, may --
10 (a) authorise a person to do a forensic procedure on a
deceased person for or in connection with a purpose
permitted by section 77(1) or any other purpose; and
(b) make any orders necessary to enable the procedure to be
done, including orders relating to the temporary custody
15 of the body of the deceased person.
(4) An authorisation given under this section must be in writing.
(5) An authorisation given under this section cannot authorise a
forensic procedure on a deceased person for the purpose of
obtaining an identifying particular of the person.
20 Division 4 -- Forensic procedures on victims and witnesses
83. Request to adult to undergo forensic procedure
(1) In this section --
"involved person" means an involved person who is an adult.
(2) If an officer reasonably suspects --
25 (a) that an offence has been committed; and
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Division 4 Forensic procedures on victims and witnesses
s. 83
(b) that it is necessary to do a forensic procedure for a
purpose permitted by section 77 on an involved person
in connection with the offence,
the officer may request the person to consent to undergoing a
5 non-intimate forensic procedure, an intimate forensic procedure
or an internal forensic procedure, as the case requires.
(3) An officer who requests an involved person to consent to
undergoing a forensic procedure must at the time inform the
person of these matters --
10 (a) the offence that is suspected to have been committed
and to which the procedure relates;
(b) the purpose, permitted by section 77, of the forensic
procedure and what relevant thing is sought;
(c) how the procedure will be done;
15 (d) that information derived from the procedure may be
compared with or put in a database;
(e) that if the person should become a suspect for the
offence, evidence provided by the procedure could be
used in a court against the person;
20 (f) that the person may consent or refuse to consent to the
procedure;
(g) that, if the person consents to the procedure, the person
may withdraw consent at any time before the procedure
has been completed;
25 (h) that if the person does not consent or withdraws
consent --
(i) an application may be made for authority to do
the procedure without the person's consent; and
(ii) if authority is given, the procedure may be done
30 without the person's consent.
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Forensic procedures on victims and witnesses Division 4
s. 84
84. Request for protected person to undergo forensic procedure
(1) In this section --
"involved person" means an involved person who is a
protected person.
5 (2) If an officer reasonably suspects --
(a) that an offence has been committed; and
(b) that it is necessary to do a forensic procedure for a
purpose permitted by section 77 on an involved person
in connection with the offence,
10 the officer may request --
(c) if the involved person is a child who has reached
10 years of age -- both the child and a responsible
person;
(d) if the involved person is a child under 10 years of age or
15 an incapable person -- a responsible person,
to consent to a non-intimate forensic procedure, an intimate
forensic procedure, or an internal forensic procedure, being
done on the involved person, as the case requires.
(3) An officer who makes a request to a person under subsection (2)
20 must at the time inform the person of these matters --
(a) the offence that is suspected to have been committed
and to which the procedure relates;
(b) the purpose, permitted by section 77, of the forensic
procedure and what relevant thing is sought;
25 (c) how the procedure will be done;
(d) that information derived from the procedure may be
compared with or put in a database;
(e) that if the involved person should become a suspect for
the offence, evidence provided by the procedure could
30 be used in a court against the involved person;
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Division 4 Forensic procedures on victims and witnesses
s. 85
(f) that the person may consent or refuse to consent to the
procedure being done on the involved person;
(g) that, if the person consents to the procedure, he or she
may withdraw consent at any time before the procedure
5 has been completed; and
(h) that if the person does not consent or withdraws
consent --
(i) an application may be made for authority to do
the procedure without the person's consent; and
10 (ii) if authority is given, the procedure may be done
without the person's consent.
85. Request and giving of information to be recorded
(1) An officer who makes a request to a person under section 83
or 84 must make a record of the request, of the information
15 given under the section and of the person's responses (if any).
(2) The record must be an audiovisual recording or in writing.
86. Forensic procedure, when it may be done
(1) If under section 83 an involved person who is an adult is
requested to consent to undergoing a forensic procedure and is
20 informed under that section and he or she consents to
undergoing the procedure, then the procedure may be done on
him or her.
(2) If under section 84 a person is requested to consent to a forensic
procedure being done on an involved person who is a protected
25 person and the person is informed under that section, then the
procedure may be done on him or her if --
(a) in the case of a child who has reached 10 years of age --
(i) the child consents to undergoing the forensic
procedure; and
30 (ii) the responsible person consents to the child
undergoing the procedure;
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Forensic procedures on victims and witnesses Division 4
s. 86
(b) in the case of a child under 10 years of age or an
incapable person -- the responsible person consents to
the protected person undergoing the procedure.
(3) If, in the case of an involved person who is an adult --
5 (a) the involved person, having been --
(i) requested under section 83 to consent to
undergoing a forensic procedure; and
(ii) informed under that section,
does not consent or withdraws consent; or
10 (b) for any reason the involved person is not requested
under section 83 to consent to undergoing a forensic
procedure,
the procedure may only be done on the involved person if a
magistrate issues an FP warrant (involved person) that
15 authorises it.
(4) If, in the case of an involved person who is a protected
person --
(a) a person, having been --
(i) requested under section 84 to consent to a
20 forensic procedure being done on the involved
person; and
(ii) informed under that section,
does not consent or withdraws consent; or
(b) for any reason a person is not requested under section 84
25 to consent to a forensic procedure being done on the
involved person,
the procedure may only be done on the involved person if a
magistrate issues an FP warrant (involved person) that
authorises it.
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Division 4 Forensic procedures on victims and witnesses
s. 87
87. Consent may be withdrawn
(1) This section applies to and in respect of an involved person if a
forensic procedure may be done on the involved person under
section 86(1) or (2).
5 (2) An involved person who is an adult and who has consented to
undergoing the forensic procedure may withdraw his or her
consent at any time before the procedure has been completed.
(3) A person who has consented to a forensic procedure being done
on an involved person who is a protected person may withdraw
10 his or her consent at any time before the procedure on the
involved person has been completed.
(4) If consent is withdrawn under this section, section 86(3) or (4)
applies, as the case requires.
88. Officer may apply for FP warrant (involved person)
15 (1) Whether or not a request has been made under section 83 for
consent to do a forensic procedure on an involved person who is
an adult, an officer may apply for an FP warrant (involved
person) to do a forensic procedure on the involved person.
(2) Whether or not a request has been made under section 84 for
20 consent to do a forensic procedure on an involved person who is
a protected person, an officer may apply for an FP warrant
(involved person) to do a forensic procedure on the involved
person.
(3) If an officer reasonably suspects that in the time it will take --
25 (a) to apply for an FP warrant (involved person); and
(b) for the application to be decided,
the relevant thing to be searched for may be disturbed or lost,
the officer may, without a warrant --
(c) arrest the involved person;
30 (d) detain the person for a reasonable time to allow for the
application to be made and decided; and
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Forensic procedures on victims and witnesses Division 4
s. 89
(e) while the person is so detained, take reasonable
measures to prevent the thing or evidence of it from
being disturbed or lost.
89. FP warrant (involved person), application for
5 (1) Only an officer may apply for an FP warrant (involved person).
(2) An application for an FP warrant (involved person) must be
made in accordance with section 12 to a magistrate.
(3) An application for an FP warrant (involved person) must --
(a) state the applicant's full name and official details;
10 (b) name the involved person in respect of whom the
warrant is wanted;
(c) if the involved person is a protected person, state why
the involved person is a protected person;
(d) state the offence in respect of which the involved person
15 is suspected to have been an involved person;
(e) state the grounds on which the applicant suspects that
the person is an involved person in respect of the
offence;
(f) specify for which of the following the warrant is
20 wanted --
(i) a non-intimate forensic procedure;
(ii) an intimate forensic procedure;
(iii) an internal forensic procedure;
(g) if the warrant is wanted for an internal forensic
25 procedure, state what kind of internal forensic procedure
is proposed to be done on the involved person;
(h) state the purpose, permitted by section 77, of the
forensic procedure and describe what thing or evidence
will be sought during the procedure;
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Division 4 Forensic procedures on victims and witnesses
s. 90
(i) state the grounds on which the applicant suspects that
the thing or evidence sought is a relevant thing; and
(j) include any other information that is prescribed.
(4) If an application for an FP warrant (involved person) is made in
5 respect of an involved person in a case where a request has not
been made under section 83 or 84, the application must also
state the applicant's grounds for suspecting any or all of the
following --
(a) that the investigation of the offence concerned would be
10 prejudiced if a request were made under section 83
or 84, as the case requires;
(b) that it is not reasonably practicable to obtain the consent
or consents to do the procedure on the involved person;
(c) in the case of an involved person who is a protected
15 person, that the responsible person or any associate of
the person is a suspect in relation to an offence and the
procedure will afford evidence of whether or not the
responsible person or the associate committed the
offence.
20 (5) If an application for an FP warrant (involved person) relates to
an involved person who is a child, the application must also
state whether the applicant suspects that the child --
(a) is sufficiently mature and capable of understanding the
general nature and effect of, and the reason for and the
25 consequences of, undergoing the procedure; and
(b) is willing to undergo the procedure,
and the grounds for suspecting those matters.
90. FP warrant (involved person), issue and effect of
(1) On an application made under section 89, a magistrate may
30 issue an FP warrant (involved person) if satisfied --
(a) that in respect of each of the matters in section 89(3)
and, if the case requires, section 89(4), on which the
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applicant is required to have a suspicion, there are
reasonable grounds for the applicant to have that
suspicion; and
(b) that the interests of justice justify doing the procedure
5 described in the application.
(2) In deciding whether to make and, if so, the terms of an FP
warrant (involved person), the magistrate must take into account
the seriousness of the offence in respect of which the involved
person is suspected to have been a victim or witness.
10 (3) In deciding whether to make and, if so, the terms of an FP
warrant (involved person) in respect of a protected person, the
magistrate must take into account --
(a) in the case of a child -- the maturity of the child and his
or her capacity to make decisions and whether he or she
15 is willing to undergo the procedure, to the extent that
those matters can be determined by the magistrate; and
(b) the best interests of the protected person.
(4) For the purposes of this section, a magistrate may inform
himself or herself in any way he or she thinks fit.
20 (5) In the case of an application for an FP warrant (involved person)
in respect of an incapable person, the magistrate may, on his or
her own initiative --
(a) give a copy of the application to the Public Advocate;
(b) seek information or submissions from the Public
25 Advocate;
(c) if the warrant is issued, give a copy of it to the Public
Advocate,
and may use remote communication to do so.
(6) An FP warrant (involved person) must contain this
30 information --
(a) the applicant's full name and official details;
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(b) the name of the involved person to whom it relates;
(c) the offence to which it relates;
(d) whether it relates to --
(i) a non-intimate forensic procedure;
5 (ii) an intimate forensic procedure; or
(iii) an internal forensic procedure;
(e) if it relates to an internal forensic procedure, the kind of
internal forensic procedure that is proposed to be done
on the involved person;
10 (f) the relevant thing to be searched for during the forensic
procedure;
(g) the period, not exceeding 14 days, during which it may
be executed;
(h) the name of the magistrate who issued it; and
15 (i) the date and time when it was issued.
(7) An FP warrant (involved person) authorises --
(a) an officer authorised by subsection (8) --
(i) to arrest the involved person to whom it relates;
and
20 (ii) to detain him or her for a reasonable period in
order to do the procedure specified in it;
and
(b) if applicable, the doing of the procedure on the involved
person without the consent or consents referred to in
25 section 86(1) or (2).
(8) The powers in subsection (7)(a) may be exercised by --
(a) if a police officer applied for the warrant, any police
officer;
(b) if a public officer applied for the warrant, the applicant
30 or any public officer who has the same functions as the
applicant, or any police officer.
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(9) An FP warrant (involved person) that relates to an internal
forensic procedure only authorises the kind of internal forensic
procedure specified in the warrant but this subsection does not
affect the operation of section 76(2).
5 Division 5 -- Forensic procedures on suspects
91. Request to adult to undergo forensic procedure
(1) In this section --
"suspect" means a suspect who is an adult.
(2) If an officer reasonably suspects --
10 (a) that an offence has been committed; and
(b) that it is necessary to do a forensic procedure for a
purpose permitted by section 77 on a suspect for the
offence,
the officer may request the suspect to consent to undergoing a
15 non-intimate forensic procedure, an intimate forensic procedure
or an internal forensic procedure, as the case requires.
(3) An officer who requests a suspect to consent to a forensic
procedure must at the time inform the suspect of these
matters --
20 (a) the offence that the suspect is suspected of having
committed and to which the procedure relates;
(b) the purpose, permitted by section 77, of the forensic
procedure and what relevant thing is sought;
(c) how the procedure will be done;
25 (d) that information derived from the procedure may be
compared with or put in a database;
(e) that the procedure may provide evidence that could be
used in a court against the suspect;
(f) that the suspect may consent or refuse to consent to the
30 procedure;
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(g) that if the suspect consents to the procedure, the suspect
may withdraw consent at any time before the procedure
has been completed; and
(h) that if the suspect does not consent --
5 (i) an application may be made for authority to do
the procedure without the suspect's consent; and
(ii) if authority is given, the procedure may be done
without the suspect's consent.
92. Request for protected person to undergo forensic procedure
10 (1) In this section --
"suspect" means a suspect who is a protected person.
(2) If an officer reasonably suspects --
(a) that an offence has been committed; and
(b) that it is necessary to do a forensic procedure for a
15 purpose permitted by section 77 on a suspect for the
offence,
the officer may request --
(c) if the suspect is a child who has reached 10 years of
age -- both the child and a responsible person;
20 (d) if the suspect is a child under 10 years of age or an
incapable person -- a responsible person,
to consent to a non-intimate forensic procedure, an intimate
forensic procedure or an internal forensic procedure, as the case
requires, being done on the suspect.
25 (3) An officer who makes a request under subsection (2) must at the
time inform the person of these matters --
(a) the offence that the suspect is suspected of having
committed and to which the procedure relates;
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(b) the purpose, permitted by section 77, of the forensic
procedure and what relevant thing is sought;
(c) how the procedure will be done;
(d) that information derived from the procedure may be
5 compared with or put in a database;
(e) that the procedure may provide evidence that could be
used in a court against the suspect;
(f) that the person may consent or refuse to consent to the
forensic procedure being done on the suspect;
10 (g) that if the person consents to the procedure, he or she
may withdraw consent at any time before the procedure
has been completed; and
(h) that if the person does not consent or withdraws
consent --
15 (i) an application may be made for authority to do
the procedure without the person's consent; and
(ii) if authority is given, the procedure may be done
without the person's consent.
93. Request and giving of information to be recorded
20 (1) An officer who makes a request to a person under section 91
or 92 must make a record of the request, of the information
given under the section and of the person's responses (if any).
(2) The record must be an audiovisual recording or in writing.
94. Forensic procedure, when it may be done
25 (1) If under section 91 a suspect who is an adult is requested to
consent to undergoing a forensic procedure and is informed
under that section and he or she consents to undergoing the
procedure, then the procedure may be done on him or her.
(2) If under section 92 a person is requested to consent to a forensic
30 procedure being done on a suspect who is a protected person
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and the person is informed under that section, then the
procedure may be done on him or her if --
(a) in the case of a child who has reached 10 years of age --
(i) the child consents to undergoing the forensic
5 procedure; and
(ii) the responsible person consents to the child
undergoing the procedure;
(b) in the case of a child under 10 years of age or an
incapable person -- the responsible person consents to
10 the protected person undergoing the procedure.
(3) If, in the case of a suspect who is an adult --
(a) the suspect, having been --
(i) requested under section 91 to consent to
undergoing a forensic procedure; and
15 (ii) informed under that section,
does not consent or withdraws consent; or
(b) for any reason the suspect is not requested under
section 91 to consent to undergoing a forensic
procedure,
20 the procedure may only be done on the suspect if --
(c) in the case of a non-intimate forensic procedure --
approval for it is given under section 98; or
(d) in the case of an intimate forensic procedure or an
internal forensic procedure -- a JP issues an FP warrant
25 (suspect) that authorises it.
(4) If, in the case of a suspect who is a protected person --
(a) a person, having been --
(i) requested under section 92 to consent to a
forensic procedure being done on the suspect;
30 and
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(ii) informed under that section,
does not consent or withdraws consent; or
(b) for any reason a person is not requested under section 92
to consent to a forensic procedure being done on the
5 suspect,
the procedure may only be done on the suspect if a magistrate
issues an FP warrant (suspect) that authorises it.
95. Consent may be withdrawn
(1) This section applies to and in respect of a suspect if a forensic
10 procedure may be done on the suspect under section 94(1)
or (2).
(2) A suspect who is an adult and who has consented to undergoing
the forensic procedure may withdraw his or her consent at any
time before the procedure has been completed.
15 (3) A person who has consented to a forensic procedure being done
on a suspect who is a protected person may withdraw his or her
consent at any time before the procedure on the suspect has
been completed.
(4) If consent is withdrawn under this section, section 94(3) or (4)
20 applies, as the case requires.
96. Application for approval or FP warrant (suspect)
(1) Whether or not a request has been made under section 91 for
consent to do a forensic procedure on a suspect who is an adult,
an officer may apply --
25 (a) under section 97 for approval to do a non-intimate
forensic procedure on the suspect; or
(b) under section 99 for an FP warrant (suspect) to do an
intimate forensic procedure or an internal forensic
procedure on the suspect.
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(2) Whether or not a request has been made under section 92 for
consent to do a forensic procedure on a suspect who is a
protected person, an officer may apply under section 99 for an
FP warrant (suspect) to do a forensic procedure on the suspect.
5 (3) If a police officer reasonably suspects that in the time it will
take --
(a) to apply under section 97 for approval or to apply under
section 99 for an FP warrant (suspect); and
(b) for the application to be decided,
10 the relevant thing to be searched for may be disturbed or lost,
the officer may, without a warrant --
(c) arrest the suspect;
(d) detain the suspect for a reasonable time to allow for the
application to be made and decided; and
15 (e) while the suspect is so detained, take reasonable
measures to prevent the thing or evidence of it from
being disturbed or lost.
97. Non-intimate forensic procedure on adult, application for
approval to do
20 (1) In this section and section 98 --
"senior officer" means --
(a) if an application is being made under this section by a
police officer -- a police officer who is, or is acting
as, a sergeant or an officer of a rank more senior than
25 a sergeant;
(b) if an application is being made under this section by a
public officer -- a public officer prescribed as a
senior officer in relation to that officer;
"suspect" means a suspect who is an adult.
30 (2) An application for an approval under this section to do a
non-intimate forensic procedure on a suspect must be made to
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another officer who is a senior officer and not involved in the
investigation of the offence to which the proposed procedure
relates.
(3) The approval may be applied for and given by remote
5 communication.
(4) The application must --
(a) if practicable be in writing;
(b) state the applicant's full name and official details;
(c) name the suspect to whom it relates;
10 (d) state the offence that the suspect is suspected of having
committed;
(e) state the grounds for suspecting that the suspect has
committed the offence;
(f) state the purpose, permitted by section 77, of the
15 non-intimate forensic procedure and describe what thing
or evidence will be sought during the procedure;
(g) state the grounds on which the applicant suspects that
the thing or evidence sought is a relevant thing;
(h) if the suspect has not been requested under section 91 to
20 consent to undergoing a forensic procedure, state the
reasons why the request has not been made; and
(i) include any other information that is prescribed.
98. Non-intimate search of adult, senior officer may approve
(1) On an application made under section 97, a senior officer may
25 approve a non-intimate forensic procedure being done on a
suspect without the suspect's consent if satisfied --
(a) that the suspect is an adult;
(b) that --
(i) the suspect has been informed in accordance
30 with section 91; or
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(ii) there are good reasons why the suspect has not
been requested under section 91 to consent to
undergoing a forensic procedure;
(c) that in respect of each of the matters in section 97(4)
5 about which the applicant is required to have a
suspicion, there are reasonable grounds for the applicant
to have that suspicion; and
(d) that the interests of justice justify doing the procedure.
(2) In deciding whether to approve a non-intimate forensic
10 procedure being done on a suspect without the suspect's
consent, a senior officer must take into account the seriousness
of the offence that the suspect is suspected to have committed.
(3) A senior officer who gives such an approval must make a
written record of it and --
15 (a) the suspect to whom it relates;
(b) the non-intimate procedure that is approved;
(c) the date and time when the approval was given; and
(d) the reasons for giving it.
(4) An approval given under this section authorises --
20 (a) a police officer --
(i) to arrest the suspect to whom it relates; and
(ii) to detain him or her for a reasonable period in
order to do the non-intimate forensic procedure
approved;
25 and
(b) the doing of the non-intimate forensic procedure on the
suspect without his or her consent.
99. FP warrant (suspect), application for
(1) Only an officer may apply for an FP warrant (suspect).
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(2) An application for an FP warrant (suspect) must be made in
accordance with section 12 --
(a) to a JP if the application is in respect of an adult;
(b) to a magistrate if the application is in respect of a
5 protected person.
(3) An application for an FP warrant (suspect) must --
(a) state the applicant's full name and official details;
(b) name the suspect in respect of whom the warrant is
wanted;
10 (c) state whether the suspect is a protected person and, if he
or she is, why the suspect is a protected person;
(d) state the offence that the suspect is suspected of having
committed;
(e) state the grounds for suspecting that the suspect has
15 committed the offence;
(f) if the warrant will relate to a suspect who is an adult,
specify for which one of the following the warrant is
wanted --
(i) an intimate forensic procedure;
20 (ii) an internal forensic procedure;
(g) if the warrant will relate to a suspect who is a protected
person, specify for which one of the following the
warrant is wanted --
(i) a non-intimate forensic procedure;
25 (ii) an intimate forensic procedure;
(iii) an internal forensic procedure;
(h) if the warrant is wanted for an internal forensic
procedure, state what kind of internal forensic procedure
is proposed to be done on the suspect;
30 (i) state the purpose, permitted by section 77, of the
forensic procedure and describe what thing or evidence
will be sought during the procedure;
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(j) state the grounds on which the applicant suspects that
the thing or evidence sought is a relevant thing; and
(k) include any other information that is prescribed.
100. FP warrant (suspect), issue and effect of
5 (1) On an application made under section 99, a JP or a magistrate,
as the case requires, may issue an FP warrant (suspect) if
satisfied --
(a) that in respect of each of the matters in section 99(3) on
which the applicant is required to have a suspicion, there
10 are reasonable grounds for the applicant to have that
suspicion; and
(b) that the interests of justice justify doing the procedure
described in the application.
(2) In deciding whether to issue an FP warrant (suspect) a JP or a
15 magistrate, as the case requires, must take into account the
seriousness of the offence that the suspect is suspected to have
committed.
(3) For the purposes of this section, a JP or magistrate may inform
himself or herself in any way he or she thinks fit.
20 (4) In the case of an application for an FP warrant (suspect) in
respect of an incapable person, the magistrate may, on his or her
own initiative --
(a) give a copy of the application to the Public Advocate;
(b) seek information or submissions from the Public
25 Advocate; or
(c) if the warrant is issued, give a copy of it to the Public
Advocate,
and may use remote communication to do so.
(5) An FP warrant (suspect) must contain this information --
30 (a) the applicant's full name and official details;
(b) the name of the suspect to whom it relates;
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(c) the offence to which it relates;
(d) whether it relates to --
(i) a non-intimate forensic procedure;
(ii) an intimate forensic procedure; or
5 (iii) an internal forensic procedure;
(e) if it relates to an internal forensic procedure, the kind of
internal forensic procedure that may be done on the
suspect;
(f) the relevant thing to be searched for during the forensic
10 procedure;
(g) the period, not exceeding 14 days, during which the
warrant may be executed;
(h) the name of the JP or magistrate who issued it;
(i) the date and time when it was issued.
15 (6) An FP warrant (suspect) must be in the prescribed form.
(7) An FP warrant (suspect) authorises --
(a) an officer authorised by subsection (8) --
(i) to arrest the suspect to whom it relates; and
(ii) to detain him or her for a reasonable period in
20 order to do the forensic procedure specified in it;
and
(b) the doing of the forensic procedure on the suspect
without the consent or consents referred to in
section 94(1) or (2).
25 (8) The powers in subsection (7)(a) may be exercised by --
(a) if a police officer applied for the warrant, any police
officer;
(b) if a public officer applied for the warrant, the applicant
or any public officer who has the same functions as the
30 applicant, or any police officer.
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(9) An FP warrant (suspect) that relates to an internal forensic
procedure only authorises the kind of internal forensic
procedure specified in the warrant but this subsection does not
affect the operation of section 76(2).
5 Division 6 -- How forensic procedures must be done
101. General requirements
(1) Before doing a forensic procedure on a person the officer who is
responsible for doing it must --
(a) identify himself or herself to the person;
10 (b) inform the person of how the procedure will be done;
and
(c) if it is being done without the person's consent, tell the
person that it is an offence to obstruct the doing of it.
(2) If a forensic procedure is to be done on a person --
15 (a) it must be done as quickly as is reasonably practicable;
(b) it must not be any more intrusive than is reasonably
necessary in the circumstances;
(c) the person must be allowed to dress as soon as the
procedure is finished;
20 (d) the person must be provided with a reasonably adequate
replacement for any article of clothing or footwear
seized if, due to the seizure, the person is left without
adequate clothing or footwear in the circumstances;
(e) the number of people present while the procedure is
25 done (excluding a person who is present under
subsection (4)) must not be more than is reasonably
necessary to ensure it is done effectively and to ensure
the safety of all present; and
(f) the person must not be questioned while the procedure is
30 being done about any offence that he or she is suspected
of having committed.
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(3) If an intimate forensic procedure or an internal forensic
procedure is to be done on a person --
(a) it must be done in circumstances giving reasonable
privacy to the person; and
5 (b) it must not involve the removal of more clothing than is
necessary for doing it.
(4) If a forensic procedure is to be done on a protected person the
officer who is responsible for doing it must arrange for the
protected person to have near him or her while the procedure is
10 done a responsible person or another person who can provide
him or her with support and represent his or her interests.
(5) If this Part requires a power to be exercised in relation to a
person by a person with specific qualifications, the officer
authorised to exercise the power may authorise a person with
15 those qualifications to exercise the power.
(6) A person so authorised may exercise the power.
102. Gender of people doing forensic procedures
(1) A person who does a non-intimate forensic procedure on a
person may be of either gender.
20 (2) A person who does an intimate forensic procedure or an internal
forensic procedure on a person must be of the same gender as
that person unless the person who does it is --
(a) a dentist, doctor or nurse; or
(b) if the intimate forensic procedure being done on that
25 person is the taking of a sample of that person's
blood -- a qualified person.
(3) A person who is present while an intimate forensic procedure or
an internal forensic procedure is done on another person
(excluding a person who is present under section 101(4)) must,
30 if practicable, be of the same gender as the person on whom the
procedure is done.
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(4) Subsection (3) does not apply if the intimate identifying
procedure is the taking of a sample of the person's blood.
(5) If this Part requires a power to be exercised in relation to a
person by a person of the same gender as the person, the officer
5 authorised to exercise the power may authorise a person of that
gender to exercise the power.
(6) A person so authorised may exercise the power.
103. Who may do a forensic procedure
(1) When a non-intimate forensic procedure is being done on a
10 person, a power in the Table to this subsection may only be
exercised by a person specified opposite the power in the Table.
Table
Power Who may exercise it
1. Removing any article that the Person of either gender
person is wearing, other than any
article covering his or her private
parts
2. Searching any article removed Person of either gender
3. Swabbing or using other means to Doctor, nurse or qualified
detect a relevant thing on the person
external parts of the person's
body, other than his or her private
parts
4. Removing a relevant thing Doctor, nurse or qualified
attached physically to those person
external parts
5. Taking a sample of a relevant Doctor, nurse or qualified
thing on those external parts person
6. Taking an impression of a Qualified person
relevant thing on those external
parts
7. Taking a sample of a relevant Doctor, nurse or qualified
thing from under the nail of the person
person
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Power Who may exercise it
8. Removing a relevant thing from, Dentist, nurse or qualified
or taking a sample of a relevant person
thing in, the person's mouth
(2) When an intimate forensic procedure is being done on a person,
a power in the Table to this subsection may only be exercised
by a person specified opposite the power in the Table.
Table
Power Who may exercise it
1. Removing any article that the Person of the same gender
person is wearing as the person
2. Searching any article removed Person of either gender
3. Swabbing or using other means to Doctor, nurse or qualified
detect a relevant thing on the person
person's external private parts
4. Removing a relevant thing Doctor, nurse or qualified
attached physically to those person
external private parts
5. Taking a sample of a relevant Doctor, nurse or qualified
thing on those external private person
parts
6. Taking an impression of a Qualified person
relevant thing on those external
private parts
7. Taking a sample of blood from Doctor, nurse or qualified
the person person
5 (3) When an internal forensic procedure is being done on a person,
a power in the Table to this subsection may only be exercised
by a person specified opposite the power in the Table.
Table
Power Who may exercise it
1. Removing any article that the Person of the same gender
person is wearing as the person
2. Searching any article removed Person of either gender
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Power Who may exercise it
3. Searching the person's internal Doctor or qualified person
parts for a relevant thing using
x-rays, ultrasound or similar
means
4. Searching the person's orifices, Doctor
other than the mouth, for a
relevant thing
5. Swabbing or using other means to Doctor or qualified person
detect the presence of a relevant
thing in those orifices
6. Removing a relevant thing from, Doctor
or taking a sample of a relevant
thing in, any such orifice
104. Samples etc., how to be taken
(1) If during a forensic procedure done under this Part --
(a) a relevant thing is removed, or a sample of a relevant
thing is taken, from on or in a person's body; or
5 (b) an impression (including a dental impression) is taken of
a relevant thing on or in a person's body,
it must be done by the least painful method that is known or
available to the person doing the procedure.
(2) If --
10 (a) a relevant thing on a person's body is attached to the
person's hair; and
(b) under this Part it is permissible to seize the thing itself
or a sample of it,
then, if practicable, the hair to which the thing is attached must
15 not be uprooted but instead may be cut and taken from the
person together with the thing or a sample of it.
(3) If under this Part it is permissible to search a person's external
parts for a relevant thing the person's hair may be combed for
the thing or a sample of it.
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(4) The regulations may --
(a) prohibit or regulate methods by which samples,
photographs or impressions are taken or procedures are
done under this Part;
5 (b) prescribe the equipment to be used for taking samples,
photographs or impressions or doing procedures under
this Part.
Division 7 -- Dealing with things found during a
forensic procedure
10 105. Things found by chance during a forensic procedure
If in the course of doing a forensic procedure under this Part a
person finds a thing a search for which is not the object of the
procedure but which a police officer reasonably suspects is
relevant to the offence to which the forensic procedure relates or
15 to another offence, the person may remove the thing or take a
sample of it.
106. Things found may be seized etc.
If under this Part a forensic procedure is done on a person
and --
20 (a) the thing, a search for which was the object of the
procedure, is removed, or a sample of it is taken, from
the person; or
(b) under section 105, a thing is removed, or a sample of it
is taken, from the person,
25 then --
(c) the thing or sample may, subject to section 145, be
seized;
(d) whether or not it is seized, a forensic examination may
be done on it.
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Division 8 -- Admissibility of certain evidence
107. Evidence of refusal of consent etc.
(1) Evidence that an adult, or a child who has reached 10 years of
age, refused to or did not or withdrew consent to undergoing a
5 forensic procedure is not admissible in proceedings against the
adult or child except --
(a) in proceedings against him or her for an offence alleged
to have been committed while the procedure was being
done on him or her; or
10 (b) to establish or rebut an allegation that an officer
investigating the commission of an offence acted
contrary to law in doing the investigation.
(2) Evidence that a responsible person refused to or did not or
withdrew consent to a forensic procedure being done on a
15 protected person is not admissible in proceedings against the
responsible person, or the protected person, except --
(a) in proceedings against him or her for an offence alleged
to have been committed while the forensic procedure
was being done on the protected person; or
20 (b) to establish or rebut an allegation that an officer
investigating the commission of an offence acted
contrary to law in doing the investigation.
108. Evidence of how procedure was done
Evidence of how a forensic procedure was done is admissible in
25 proceedings in court against a person --
(a) to establish or rebut an allegation that unreasonable
force was used to do the procedure;
(b) in connection with deciding the admissibility of a
confession or other evidence adverse to the person
30 where the person alleges it was induced or obtained by
the use of unreasonable force;
(c) to establish or rebut an allegation that the procedure was
not done in accordance with this Part.
page 96
Criminal Investigation Bill 2005
Provisions about searches and forensic procedures on people Part 10
s. 109
Part 10 -- Provisions about searches and forensic
procedures on people
109. Interpretation
In this Part --
5 "body search" means a basic search or a strip search.
110. Body searches and forensic procedures may be repeated
(1) In relation to any one investigation, a person may, subject to the
relevant provisions of this Act --
(a) be requested on more than one occasion to undergo a
10 body search or forensic procedure;
(b) be required to undergo more than one body search;
(c) be required to undergo more than one forensic
procedure.
(2) Without limiting subsection (1) a person may, subject to the
15 relevant provisions of this Act, be requested to undergo the
same body search or forensic procedure on more than one
occasion.
111. People not obliged to do searches etc.
Nothing in Part 8 or 9 requires a person --
20 (a) to do or to assist in doing a body search or a forensic
procedure on a person;
(b) to remove a thing from a person's body;
(c) to take a sample of a thing on or in a person's body; or
(d) to take a photograph or impression of any thing on or in
25 a person's body.
page 97
Criminal Investigation Bill 2005
Part 10 Provisions about searches and forensic procedures on people
s. 112
112. Forensic information, use and destruction of
(1) In this section --
"forensic database" has the meaning given to that term by the
Criminal Investigation (Identifying People) Act 2002
5 section 61;
"forensic information" means --
(a) a photograph or other record created while doing a
body search or forensic procedure on a person;
(b) any thing removed from a person as a result of doing
10 a body search or a forensic procedure on the person;
(c) any sample or impression taken while doing a
forensic procedure on a person; or
(d) any information derived from such a thing, sample or
impression.
15 (2) Any forensic information obtained under Part 8 or 9 may be --
(a) compared with information in a forensic database; or
(b) put in a forensic database.
(3) Subject to section 151, any forensic information obtained under
Part 8 or 9 must not be destroyed except with the approval of
20 the Commissioner of Police.
Penalty: a fine of $12 000 and imprisonment for 12 months.
113. Legal protection for people carrying out searches etc.
(1) This section does not apply to a person to whom the Police
Act 1892 section 137 applies.
25 (2) In this section a reference to the doing of anything includes a
reference to an omission to do anything.
(3) An action in tort does not lie against a person for anything that
the person has done, in good faith, in the exercise or purported
exercise of a power in Part 8 or 9.
page 98
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Provisions about searches and forensic procedures on people Part 10
s. 113
(4) The protection given by this section applies even though the
thing done as described in subsection (3) may have been
capable of being done whether or not this Act had been enacted.
page 99
Criminal Investigation Bill 2005
Part 11 Interviewing suspects
s. 114
Part 11 -- Interviewing suspects
114. Interpretation
In this Part --
"CCC" means the Corruption and Crime Commission
5 established under the Corruption and Crime Commission
Act 2003;
"CCC officer" has the meaning given to the term "officer of
the Commission" by the Corruption and Crime
Commission Act 2003 section 3;
10 "interview" means an interview with a suspect by a police
officer or a CCC officer or any part of such an interview;
"ombudsman officer" means --
(a) the Parliamentary Commissioner for Administrative
Investigations appointed under the Parliamentary
15 Commissioner Act 1971;
(b) the Acting Commissioner or the Deputy
Commissioner appointed under that Act; or
(c) an officer appointed under section 9(1) of that Act;
"Parliamentary Inspector" has the meaning given to that term
20 by the Corruption and Crime Commission Act 2003
section 3;
"suspect" means a person suspected of having committed an
offence, whether or not he or she has been charged with the
offence.
25 115. Interviews, conduct of
(1) An interview may be conducted by remote communication.
(2) An interpreter, if needed for an interview, may participate by
remote communication.
page 100
Criminal Investigation Bill 2005
Interviewing suspects Part 11
s. 116
116. Recorded interview to be made available to the suspect
(1) If an audiovisual recording is made of an interview and the
suspect is charged with an offence to which the interview
relates, a copy of the recording must be made available to the
5 suspect or the suspect's lawyer within 14 days after the suspect
is so charged or, if that is not practicable, as soon as practicable
after that period.
(2) No person is entitled to a transcript of an audiovisual recording
of an interview, or any part of such a recording.
10 (3) A court must not order that such a transcript be made unless
satisfied that --
(a) words spoken in the interview cannot be understood
satisfactorily; and
(b) it is practicable to prepare such a transcript.
15 (4) Subsections (2) and (3) do not prevent a person from making a
transcript of an audiovisual recording of an interview and
supplying a copy of it to any person.
117. Admission in serious case inadmissible unless recorded
(1) In this section --
20 "admission" means an admission made by a suspect to a police
officer or a CCC officer, whether the admission is by
spoken words or by acts or otherwise;
"adult" means a person who has reached 18 years of age;
"child" means a person who is under 18 years of age;
25 "reasonable excuse", for the absence of an audiovisual
recording of an admission, includes --
(a) the admission was made when it was not practicable
to make an audiovisual recording of it;
(b) equipment to make an audiovisual recording of the
30 admission could not be obtained while it was
reasonable to detain the suspect;
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Criminal Investigation Bill 2005
Part 11 Interviewing suspects
s. 118
(c) the suspect did not consent to an audiovisual
recording being made of the admission;
(d) the equipment used to make an audiovisual recording
of the admission malfunctioned.
5 (2) This section applies in respect of a suspect who is --
(a) a child charged with an indictable offence, irrespective
of whether, if an adult were charged with it, it could be
dealt with by a court of summary jurisdiction; or
(b) an adult charged with an indictable offence that cannot
10 be dealt with by a court of summary jurisdiction.
(3) On the trial of the suspect for the offence, evidence of any
admission by the suspect is not admissible unless --
(a) the evidence is an audiovisual recording of the
admission; or
15 (b) in the absence of an audiovisual recording of the
admission --
(i) the prosecution proves, on the balance of
probabilities, that there is a reasonable excuse for
the absence; or
20 (ii) the court decides otherwise under section 154.
(4) Subsection (3) does not apply to an admission by a person made
before there were reasonable grounds to suspect that he or she
had committed the offence.
118. Recording admitted as evidence, jury may play
25 If an audiovisual recording of an interview is admitted as
evidence in a trial, the jury is entitled to play the recording
during its deliberations.
page 102
Criminal Investigation Bill 2005
Interviewing suspects Part 11
s. 119
119. Recordings of interviews, possession etc. restricted
(1) In this section --
"authorised person" means any of the following, acting in the
course of duty --
5 (a) a police officer;
(b) a person authorised for the purposes of this Part by
the Commissioner of Police;
(c) the DPP or a person acting under the authority of the
DPP;
10 (d) a lawyer acting for or representing the State;
(e) a CCC officer;
(f) the Parliamentary Inspector;
(g) an ombudsman officer;
(h) a court or a person acting at the direction of a court;
15 (i) a coroner or a person acting at the direction of a
coroner;
(j) a person prescribed to be an authorised person.
(2) A person who is in possession of an audiovisual recording of an
interview commits an offence unless the person --
20 (a) is an authorised person;
(b) is the suspect or the suspect's lawyer;
(c) has possession of the recording in a sealed package as
part of his or her duties as a person engaged by a person
referred to in paragraph (a) or (b) to transport it; or
25 (d) was served with the recording under the Criminal
Procedure Act 2004 section 35, 42, 61 or 95.
(3) A person who plays an audiovisual recording of an interview to
another person commits an offence except when --
(a) the recording is played for purposes connected with the
30 prosecution or defence of, or legal proceedings relating
to, a charge to which the interview relates;
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Criminal Investigation Bill 2005
Part 11 Interviewing suspects
s. 119
(b) the recording is played for purposes connected with
proceedings before a coroner;
(c) the recording is played for purposes connected with
proceedings under the Police Act 1892 to remove a
5 member, as that term is defined in section 33K of that
Act;
(d) the recording is played under a direction of a court; or
(e) the recording is played under section 123.
(4) Subsection (3) does not apply to any of the following when
10 acting in the course of duty --
(a) a police officer;
(b) a CCC officer;
(c) the Parliamentary Inspector;
(d) an ombudsman officer.
15 (5) A person who supplies, or offers to supply, an audiovisual
recording of an interview to another who is not --
(a) an authorised person;
(b) the suspect or the suspect's lawyer;
(c) a person engaged by a person referred to in
20 paragraph (a) or (b) to transport it; or
(d) a person who is required to be served with it under the
Criminal Procedure Act 2004 section 35, 42, 61 or 95,
commits an offence unless the person is acting under a direction
given under section 121.
25 (6) A person, other than an authorised person, who copies any part
of an audiovisual recording of an interview, or who permits
another person to make a copy of any part of such a recording,
commits an offence unless the person is acting under a direction
given under section 121.
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Criminal Investigation Bill 2005
Interviewing suspects Part 11
s. 120
(7) An authorised person who erases an audiovisual recording of an
interview commits an offence, except when the person is acting
under --
(a) a direction given under section 121; or
5 (b) an authorisation given under section 122(3).
(8) A person who commits an offence under this section is liable to
a fine of $5 000.
120. Recorded interview, broadcast prohibited
A person must not broadcast an audiovisual recording of an
10 interview or any part of such a recording unless the broadcast is
made under a direction of a court given under section 121.
Penalty:
(a) for an individual, a fine of $12 000 and imprisonment
for 12 months;
15 (b) for a body corporate, a fine of $100 000.
121. Recordings, court may give directions as to supply etc.
The Supreme Court or, if the accused person is or was
committed to the District Court, the District Court, may give
directions (with or without conditions) as to the supply,
20 copying, editing, erasure, playing, or broadcast of an
audiovisual recording of an interview.
122. Recordings to be retained by the police and CCC
(1) If an audiovisual recording is made of an interview, the
Commissioner of Police or the CCC, as the case requires, must
25 keep the recording or a copy of it in safe custody for at least 5
years.
(2) If the Supreme Court is satisfied there is good cause to keep an
audiovisual recording of an interview for more than 5 years, it
may order the Commissioner of Police or the CCC to keep the
30 recording for an additional period set by the Court.
page 105
Criminal Investigation Bill 2005
Part 11 Interviewing suspects
s. 123
(3) The Commissioner of Police or the CCC, in writing, may
authorise a person to erase audiovisual recordings of interviews
in accordance with this section.
123. Recordings may be played for teaching purposes
5 (1) In this section --
"prescribed person" means --
(a) a police officer or police trainee;
(b) a CCC officer;
(c) a lawyer or a person training to become a lawyer; or
10 (d) a person prescribed for the purposes of this section.
(2) An audiovisual recording of an interview may be played to a
prescribed person for the purposes of instruction if --
(a) the suspect has been convicted of a charge to which the
interview relates;
15 (b) all legal proceedings in relation to the subject matter of
the interview have been concluded; and
(c) all reasonable measures are taken to prevent the
identification of the suspect from the recording when it
is played.
page 106
Criminal Investigation Bill 2005
Arrest and related matters Part 12
Preliminary Division 1
s. 124
Part 12 -- Arrest and related matters
Division 1 -- Preliminary
124. Interpretation
(1) In this Part --
5 "unconditionally", in relation to the release of a person, means
released without being required to enter into, or without
having entered into, a bail undertaking under the Bail
Act 1982.
(2) For the purposes of this Part, a person who is under arrest ceases
10 to be under arrest --
(a) if the person was arrested under an arrest warrant --
when the person is delivered into the custody of the
relevant court;
(b) if the person is arrested under section 127 --
15 (i) when the person is released, whether on bail or
unconditionally; or
(ii) if the person is not released, when the person is
delivered into the custody of a court;
(c) if at the time of being arrested the person was at large
20 having escaped from lawful custody -- when the person
is returned to that lawful custody; or
(d) in any event -- if the person escapes from lawful
custody.
125. Proceedings by summons etc. not prevented
25 This Part does not prevent a person from being charged with an
offence without having been first arrested for it.
page 107
Criminal Investigation Bill 2005
Part 12 Arrest and related matters
Division 2 Arrest without an arrest warrant
s. 126
Division 2 -- Arrest without an arrest warrant
126. Arrest warrant not required
The powers in this Division may be exercised without an arrest
warrant.
5 127. Arrest power for offences
(1) In this section --
"serious offence" means --
(a) an offence the statutory penalty for which is or
includes imprisonment for 5 years or more or life; or
10 (b) an offence prescribed by the regulations.
(2) A police officer or a public officer may arrest a person for a
serious offence if the officer reasonably suspects that the person
has committed, is committing, or is just about to commit, the
offence.
15 (3) A police officer or a public officer may arrest a person for an
offence that is not a serious offence if the officer reasonably
suspects --
(a) that the person has committed, is committing, or is just
about to commit, the offence; and
20 (b) that if the person is not arrested --
(i) it will not be possible, in accordance with law, to
obtain and verify the person's name and other
personal details;
(ii) the person will continue or repeat the offence;
25 (iii) the person will commit another offence;
(iv) the person will endanger another person's safety
or property;
(v) the person will interfere with witnesses or
otherwise obstruct the course of justice;
page 108
Criminal Investigation Bill 2005
Arrest and related matters Part 12
Ancillary powers to making an arrest Division 3
s. 128
(vi) the person will conceal or disturb a thing relevant
to the offence; or
(vii) the person's safety will be endangered.
Division 3 -- Ancillary powers to making an arrest
5 128. Warrant not required
The powers in this Division may be exercised without a warrant.
129. Occupier's rights if a place is entered
Section 31 applies to and in respect of the entry of a place under
this Division.
10 130. Powers exercisable on a search under this Division
An officer who is authorised under this Division to enter and
search a place may, for the purpose of doing so, exercise any of
the ancillary powers in section 44.
131. Places may be entered and vehicles may be stopped
15 (1) In this section --
"arrestable person" means a person who may be arrested --
(a) under a warrant issued under Part 9;
(b) under section 88(3) or 96(3);
(c) under an approval given under section 98;
20 (d) under section 127;
(e) under an arrest warrant;
(f) under a warrant issued under the Criminal
Investigation (Identifying People) Act 2002; or
(g) under the Criminal Investigation (Extra-territorial
25 Offences) Act 1987.
page 109
Criminal Investigation Bill 2005
Part 12 Arrest and related matters
Division 3 Ancillary powers to making an arrest
s. 132
(2) For the purposes of arresting an arrestable person a police
officer or a public officer --
(a) may enter a place where the officer reasonably suspects
the person is and search it for the person; and
5 (b) may stop and enter a vehicle in which the officer
reasonably suspects the person is and search it for the
person.
(3) If the officer reasonably suspects that an arrestable person is in a
building that consists of 2 or more dwellings then the power in
10 subsection (2)(a) is limited to entering and searching --
(a) the parts of the building that the occupiers of the
dwellings use in common with each other; and
(b) any individual dwelling where the police officer
reasonably suspects the person is.
15 (4) The power in this section to search is limited to searching for
the arrestable person.
(5) If an officer doing a search under this section finds a thing
relevant to an offence, the officer --
(a) may, subject to section 145, seize it; and
20 (b) whether or not the officer seizes it, may do a forensic
examination on it.
132. Places and vehicles of certain arrested suspects may be
searched for evidence
(1) In this section --
25 "senior officer" means --
(a) in relation to a police officer -- a police officer who
is, or is acting as, a sergeant or an officer of a rank
more senior than a sergeant;
(b) in relation to a public officer -- a public officer
30 prescribed as a senior officer in relation to that
officer;
page 110
Criminal Investigation Bill 2005
Arrest and related matters Part 12
Ancillary powers to making an arrest Division 3
s. 132
"serious offence" means an offence the statutory penalty for
which is or includes imprisonment for 5 years or more or
life.
(2) If a person is under arrest for a serious offence, a police officer
5 or a public officer --
(a) may enter the place in which the person was when he or
she was arrested or from which the person fled
immediately before being arrested;
(b) may stop and enter any vehicle in which the person was
10 when he or she was arrested or from which the person
fled immediately before being arrested; and
(c) may stop and enter any vehicle that the person controls
or manages, whether or not he or she was arrested in that
vehicle,
15 and search it for --
(d) any thing relevant to the serious offence; or
(e) any person against whom the serious offence was
committed.
(3) If a person is under arrest for a serious offence then, subject to
20 subsection (4), a police officer or a public officer may enter a
place that the person occupies, controls or manages, not being a
place referred to in subsection (2)(a), and search it for --
(a) any thing relevant to the serious offence;
(b) any thing relevant to an offence that is connected with,
25 or of the same character as, the serious offence; or
(c) any person against whom the serious offence, or an
offence that is connected with, or of the same character
as, the serious offence, was committed.
page 111
Criminal Investigation Bill 2005
Part 12 Arrest and related matters
Division 3 Ancillary powers to making an arrest
s. 132
(4) The powers in subsection (3) must not be exercised by an
officer unless --
(a) the officer reasonably suspects that the place contains a
thing or person referred to in subsection (3)(a), (b)
5 or (c); and
(b) the officer has written approval to do so from a senior
officer who is not involved in the investigation of the
serious offence.
(5) A senior officer who gives such an approval must make a
10 written record of it and --
(a) the place to be entered and searched;
(b) the thing suspected to be in the place;
(c) the other officer's grounds for suspecting that the place
contains a thing or person referred to in
15 subsection (3)(a), (b) or (c);
(d) the date and time when it was given; and
(e) the reasons for giving it.
(6) The powers in subsections (2) and (3) cease when the person is
charged with an offence or is released from arrest, whichever
20 happens first.
(7) If an officer doing a search under subsection (2) or (3) finds a
thing relevant to an offence, whether the serious offence or
another offence, the officer --
(a) may, subject to section 145, seize the thing; and
25 (b) whether or not the officer seizes the thing, may do a
forensic examination on it.
(8) A senior officer's approval under this section may be applied
for and given by remote communication.
page 112
Criminal Investigation Bill 2005
Arrest and related matters Part 12
Ancillary powers to making an arrest Division 3
s. 133
133. Escapees, additional powers to aid recapture
(1) In this section --
"escapee" means a person who has escaped from lawful
custody or detention.
5 (2) The powers in this section are in addition to those in
sections 130 to 132.
(3) While an escapee is at large, a police officer may enter and
search any place where the police officer reasonably suspects --
(a) the escapee has been since his or her escape; or
10 (b) the escapee is likely to go while at large.
(4) The power in subsection (3) is limited to searching for --
(a) evidence of the escapee's whereabouts; and
(b) any thing relevant to --
(i) an offence under The Criminal Code section 146
15 committed by the escapee;
(ii) an offence under The Criminal Code section 144,
145, 147, 148 or 149 that is reasonably suspected
has been, is being or may be committed in
relation to the escapee's escape; or
20 (iii) an indictable offence that is reasonably suspected
to have been committed by the escapee while at
large.
(5) If an officer doing a search under this section finds a thing
relevant to an offence, whether or not an offence referred to in
25 subsection (4), the officer --
(a) may, subject to section 145, seize it; and
(b) whether or not the officer seizes it, may do a forensic
examination on it.
page 113
Criminal Investigation Bill 2005
Part 12 Arrest and related matters
Division 4 Searches of people in custody for security purposes
s. 134
Division 4 -- Searches of people in custody for security
purposes
134. Certain people in custody may be searched
(1) In this section --
5 "authorised officer" means --
(a) in relation to a person who is in the custody of a
police officer -- any police officer;
(b) in relation to a person who is in the custody of a
public officer -- any public officer who has the same
10 functions as that public officer;
"security risk item" means any thing --
(a) that could be used to endanger the person in
possession of the thing or any other person;
(b) that could be used to assist a person to escape from
15 lawful custody; or
(c) that could adversely affect the security, good order or
management of a place where a person is being kept
in custody.
(2) A person is in custody for the purposes of this section if --
20 (a) the person is under arrest, whether under this Act or
under another written law, or is otherwise in the lawful
custody of an officer; or
(b) the person, having been required to do so by a member
of the Police Force acting under the Road Traffic
25 Act 1974 section 66, is accompanying such a member to,
or is waiting at, a police station or other place.
(3) A person is not in custody for the purposes of this section if --
(a) the person is in custody because he or she is a child in
the CEO's care, as that term is defined by the Children
30 and Community Services Act 2004 section 30, and not
for any other reason; or
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Criminal Investigation Bill 2005
Arrest and related matters Part 12
Searches of people in custody for security purposes Division 4
s. 134
(b) the person is a person in custody, as that term is defined
by the Court Security and Custodial Services Act 1999
section 3, and under that Act the CEO (as that term is
defined in that Act) is responsible for the person's
5 security, control, safety, care and welfare.
(4) If a person is in custody, an authorised officer may search the
person for a security risk item.
(5) For the purpose of searching a person under subsection (4) an
authorised officer may, as often as is reasonably necessary --
10 (a) subject to Part 8 Division 3, do a basic search or a strip
search of the person;
(b) if authorised to do so under Part 9 Division 5, do an
internal forensic procedure on the person in accordance
with Part 9 Division 6.
15 (6) If an authorised officer, exercising a power in subsection (4) on
a person, finds a thing that the officer reasonably suspects is a
security risk item, then --
(a) if the item is not attached physically to the person -- the
officer may seize it;
20 (b) if the item is attached physically to the person, but not to
his or her private parts, or is in the person's mouth --
the officer may remove it but in doing so must comply
with Part 9 Division 6 as if doing a non-intimate
forensic procedure on the person;
25 (c) if the item is attached physically to the person's private
parts -- the officer must not remove it except by means
of an intimate forensic procedure authorised and
conducted in accordance with Part 9;
(d) if the item is in an orifice (other than the mouth) of the
30 person, the officer must not remove it except by means
of an internal forensic procedure authorised and
conducted in accordance with Part 9.
page 115
Criminal Investigation Bill 2005
Part 12 Arrest and related matters
Division 4 Searches of people in custody for security purposes
s. 134
(7) For the purposes of subsections (5)(b) and (6)(c) and (d), Part 9,
with any necessary changes, applies as if --
(a) a security risk item were a thing that is relevant to an
offence; and
5 (b) searching for and removing a security risk item were a
purpose permitted by section 77.
(8) If an authorised officer, exercising a power in subsection (4) on
a person, finds a thing that is not a security risk item but that is a
thing relevant to an offence, then --
10 (a) if the thing is not attached physically to the person, the
officer may seize it; but
(b) in any other case, the officer must not remove the thing,
or take a sample or impression of it, or take a swab or
use other means to detect it, except by means of a
15 forensic procedure authorised and conducted in
accordance with Part 9.
(9) If under subsection (6) a security risk item is removed, it may be
seized.
(10) If under this section an authorised officer seizes a security risk
20 item from a person, the officer must make it available for
collection by the person when he or she is released from
custody, unless it may be lawfully seized and retained under
another provision of this Act or under another written law.
(11) The Criminal and Found Property Disposal Act 2005 applies to
25 and in relation to a thing so seized that is made available to but
not collected by the person.
(12) If under subsection (8) an authorised officer removes a thing
that is not a security risk item but that is a thing relevant to an
offence from a person, the officer --
30 (a) may, subject to section 145, seize the thing; and
(b) whether or not the officer seizes it, may do a forensic
examination on it.
page 116
Criminal Investigation Bill 2005
Arrest and related matters Part 12
Dealing with arrested people Division 5
s. 135
Division 5 -- Dealing with arrested people
135. Young Offenders Act 1994 not affected
This Division is in addition to and does not affect the operation
of the Young Offenders Act 1994 and in particular section 20
5 and Part 4 of that Act.
136. Arrested people, rights of
(1) In this section --
"officer" means a police officer, a public officer, or any person
who holds an office with power to arrest people.
10 (2) This section applies to a person who has been arrested by an
officer, no matter under what authority or written law.
(3) The arrested person is entitled --
(a) to any necessary medical treatment;
(b) to a reasonable degree of privacy from the mass media;
15 (c) to a reasonable opportunity to communicate or to
attempt to communicate with a relative or friend to
inform that person of his or her whereabouts; and
(d) if he or she is for any reason unable to understand or
communicate in spoken English sufficiently, to be
20 assisted in doing so by an interpreter or other qualified
person.
137. Arrested suspects, rights of
(1) In this section --
"arrested suspect" means a person who is under arrest having
25 been arrested --
(a) under section 127, under an arrest warrant, or under
another written law, on suspicion of having
committed an offence; or
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s. 137
(b)under the Criminal Investigation (Extra-territorial
Offences) Act 1987;
"officer" means a police officer, a public officer, or any person
who holds an office with power to arrest people.
5 (2) In addition to the rights in section 136 an arrested suspect is
entitled --
(a) to be informed of the offence for which he or she has
been arrested and any other offences that he or she is
suspected of having committed;
10 (b) to be cautioned before being interviewed as a suspect;
(c) to a reasonable opportunity to communicate or to
attempt to communicate with a lawyer;
(d) if he or she is for any reason unable to understand or
communicate in spoken English sufficiently, not to be
15 interviewed until the services of an interpreter or other
qualified person are available.
(3) The officer in charge of the investigation must, as soon as
practicable after the arrest of an arrested suspect --
(a) inform the suspect of his or her rights under
20 section 136(3)(c) and subsection (2)(c); and
(b) afford the suspect his or her other rights under
section 136 and subsection (2).
(4) An officer may refuse an arrested suspect his or her right to
communicate or to attempt to communicate with a person if the
25 officer reasonably suspects that the communication would result
in --
(a) an accomplice taking steps to avoid being charged;
(b) evidence being concealed, disturbed or fabricated; or
(c) a person's safety being endangered.
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Dealing with arrested people Division 5
s. 138
138. Arrested suspects, detention of
(1) In this section --
"arrested suspect" means a person who is under arrest having
been arrested under section 127, or under another written
5 law, on suspicion of having committed an offence but who
has not been arrested under an arrest warrant.
(2) A police officer or a public officer may detain an arrested
suspect after the suspect is arrested for the purposes of --
(a) doing a search under section 132 or 134;
10 (b) investigating any offence suspected of having been
committed by the suspect;
(c) interviewing the suspect in relation to any offence that
the suspect is suspected to have committed; and
(d) deciding whether or not to charge the suspect with an
15 offence.
(3) An arrested suspect who is detained under subsection (2) must
be detained in the company of an officer and not in a lock-up or
other place of confinement, unless the circumstances make it
impracticable to do so.
20 (4) The detention of an arrested suspect must be in accordance with
section 139.
(5) The detention of an arrested suspect in contravention of
section 139 is not unlawful if it occurs due to circumstances that
are not reasonably foreseeable.
25 139. Detention period for arrested suspects
(1) In this section --
"arrested suspect" has the meaning given to that term by
section 138;
"senior officer" means --
30 (a) in the case of an arrested suspect who has been
arrested by a police officer -- a police officer who is,
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s. 139
or is acting as, a sergeant or an officer of a rank more
senior than a sergeant;
(b) in the case of an arrested suspect who has been
arrested by a public officer -- another public officer
5 prescribed as a senior officer in relation to that
officer,
who is not involved in the investigation of any offence that
the suspect is suspected of having committed.
(2) For the purposes of this section, the detention of an arrested
10 suspect is justified if the detention --
(a) is for a purpose referred to in section 138(2); and
(b) is for a period that is reasonable having regard to the
factors in section 140.
(3) Subject to subsection (2), the detention of an arrested suspect --
15 (a) must not exceed 6 hours from the arrest of the suspect
unless a further period has been authorised under
subsection (4)(b); and
(b) must not exceed any further period authorised under
subsection (4)(b) unless one or more further periods
20 have been authorised under subsection (6)(b).
(4) At any time during the 6 hours immediately following a
suspect's arrest on suspicion of having committed an offence --
(a) an officer involved in investigating the offence may
apply to a senior officer for an authorisation under
25 paragraph (b); and
(b) on such an application, the senior officer may authorise
the detention of the suspect for a further period of not
more than 6 hours if the officer is satisfied that detention
of the suspect for the further period is justified.
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Dealing with arrested people Division 5
s. 139
(5) If under subsection (4)(b) a senior officer authorises the
detention of an arrested suspect for a further period --
(a) the senior officer must make a written record of the
authorisation and --
5 (i) the name or a description of the arrested suspect
to whom it relates;
(ii) the further period authorised;
(iii) the date and time of the authorisation; and
(iv) the reasons for the authorisation;
10 (b) if practicable the senior officer must give the applicant a
copy of the written record;
(c) the further period commences at the end of the 6 hours
immediately following the suspect's arrest; and
(d) no senior officer can give another authorisation under
15 subsection (4)(b).
(6) At any time during a further period authorised under
subsection (4)(b) or this subsection --
(a) an officer involved in investigating the offence
concerned, with the prior written approval of a senior
20 officer, may apply to a magistrate for an authorisation
under paragraph (b); and
(b) on such an application, a magistrate may authorise the
detention of the suspect for a further period of not more
than 8 hours if the magistrate is satisfied that detention
25 of the suspect for the further period is justified.
(7) If under subsection (6)(b) a magistrate authorises the detention
of an arrested suspect for a further period --
(a) the magistrate must make a written record of the
authorisation and --
30 (i) the name or a description of the arrested suspect
to whom it relates;
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s. 140
(ii) the further period authorised; and
(iii) the date and time of the authorisation;
(b) if practicable the magistrate must give the applicant a
copy of the written record; and
5 (c) the further period commences --
(i) at the end of the further period authorised under
subsection (4)(b); or
(ii) if a further period has previously been authorised
under subsection (6)(b), at the end of that further
10 period.
(8) An application may be made, and an authorisation may be
given, under subsection (6) on more than one occasion.
(9) An application may be made, and an authorisation may be
given, under this section by remote communication.
15 140. Reasonable period of detention, factors determining
The factors to be taken into account under section 139 are --
(a) the number and complexity of the offences to be
investigated;
(b) the time needed by police officers with knowledge of or
20 responsibility for the investigation to travel to attend to
the matters in section 138(2);
(c) the time needed to interview potential witnesses,
whether before, during or after any interview with the
suspect;
25 (d) the time needed to interview any other people who are
suspected of being involved in an offence suspected of
having been committed by the suspect;
(e) the time needed to transport the suspect from the place
where he or she was arrested to a place where
30 appropriate facilities are available to conduct an
interview or any other investigation;
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Dealing with arrested people Division 5
s. 140
(f) the time needed by a police officer to assess relevant
material or to take any other steps to prepare to
interview the suspect;
(g) the time needed to afford the suspect his or her rights in
5 sections 136 and 137;
(h) the time needed to allow the suspect to receive medical
treatment, to rest or to receive refreshment;
(i) the time needed to obtain the use of facilities to make an
audiovisual recording of an interview with the suspect;
10 (j) any delay in making such a recording caused by
technical matters beyond the control of the person
interviewing the suspect;
(k) any period when it is not reasonable to interview or
conduct other investigations with the suspect because
15 the suspect is intoxicated, ill or incapacitated;
(l) the time needed to visit any place connected with the
offence;
(m) the time needed to complete any of the matters, or any
matter reasonably connected with the matters, in
20 section 138(2);
(n) the time needed to complete any identifying procedure
under the Criminal Investigation (Identifying People)
Act 2002 Part 6;
(o) the time needed to complete any search of the suspect
25 under Part 8;
(p) the time needed to complete any forensic procedure on
the suspect under Part 9;
(q) the time needed to complete any test that may be
conducted on the suspect under a written law;
30 (r) the time needed to arrange and conduct an identification
parade;
(s) the time needed to comply with this Act or any other
written law.
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Division 5 Dealing with arrested people
s. 141
141. Arrested suspects, charging and releasing
(1) In this section --
"arrested suspect" has the meaning given to that term by
section 138;
5 "officer" means a police officer, a public officer, or any person
who holds an office with power to arrest people;
"serious offence" means an indictable offence the statutory
penalty for which is or includes imprisonment for 5 years
or more or life.
10 (2) For the purposes of this section, not releasing a suspect
unconditionally is justified if the officer who has custody of the
suspect reasonably suspects that if the suspect were released
unconditionally --
(a) the suspect would --
15 (i) commit another offence;
(ii) continue or repeat the offence for which he or
she is under arrest;
(iii) endanger another person's safety or property;
(iv) interfere with witnesses or otherwise obstruct the
20 course of justice, whether in relation to the
suspect or any other person;
or
(b) the suspect's safety would be endangered.
(3) If it is decided not to charge an arrested suspect with an offence,
25 then whether or not the suspect --
(a) is cautioned in relation to an offence; or
(b) is issued an infringement notice in relation to an offence,
the officer who has custody of the suspect must release the
suspect unconditionally.
30 (4) If it is decided to charge an arrested suspect with a simple
offence, then, subject to subsection (8), the officer who has
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Dealing with arrested people Division 5
s. 141
custody of the suspect must release the suspect unconditionally
unless --
(a) the officer reasonably suspects that the presence of the
suspect when the charge is first dealt with by a court is
5 likely to be necessary for any reason or for sentencing
purposes; or
(b) not releasing the suspect unconditionally is justified
under subsection (2),
in which case the officer may detain the suspect in custody
10 subject to subsection (7).
(5) If it is decided to charge an arrested suspect with an indictable
offence that is not a serious offence, then, subject to
subsection (8), the officer who has custody of the suspect must
release the suspect unconditionally unless --
15 (a) the officer reasonably suspects that if, under the
Criminal Procedure Act 2004, the suspect were served
with a summons in relation to the charge and released
unconditionally the suspect would not obey the
summons; or
20 (b) not releasing the suspect unconditionally is justified
under subsection (2),
in which case the officer may detain the suspect in custody
subject to subsection (7).
(6) If it is decided to charge an arrested suspect with a serious
25 offence, the officer who has custody of the suspect may detain
the suspect in custody subject to subsection (7).
(7) If it is decided to charge an arrested suspect with an offence and
the suspect is not released unconditionally, the officer who has
custody of the suspect --
30 (a) must ensure the suspect is charged as soon as practicable
and is dealt with --
(i) under the Bail Act 1982 section 6; or
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Part 12 Arrest and related matters
Division 5 Dealing with arrested people
s. 142
(ii) under the Mental Health Act 1996 section 196;
and
(b) may detain the suspect in a lock up or other place of
confinement until that happens, subject to
5 subsection (8).
(8) If it is decided to charge an arrested suspect with an offence, the
suspect may be detained in custody before being released
unconditionally, or being dealt with under subsection (7), for a
reasonable period that is to be determined having regard to these
10 factors --
(a) the time needed to complete any identifying procedure
under the Criminal Investigation (Identifying People)
Act 2002 Part 7;
(b) the time needed to complete any forensic procedure on
15 the suspect under Part 9;
(c) if it is decided not to release the suspect unconditionally,
the time needed to comply with --
(i) the Bail Act 1982 and in particular section 6 of
that Act;
20 (ii) the Mental Health Act 1996 section 196; or
(iii) any other written law.
(9) This section does not prevent a police officer from exercising a
power in section 27 in relation to an arrested suspect before
releasing him or her unconditionally.
25 142. Other arrested people, dealing with
(1) A person who is arrested under any process or warrant must be
dealt with according to the process or warrant.
(2) Subsection (1) does not prevent this Part from applying to a
person referred to in that subsection if he or she is reasonably
30 suspected to have committed an offence that is unrelated to the
process or warrant.
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Arrest and related matters Part 12
Miscellaneous Division 6
s. 143
Division 6 -- Miscellaneous
143. Possession of warrant at time of arrest not necessary
(1) If a police officer reasonably suspects that a warrant has been
issued for the arrest or imprisonment of a person, the officer
5 may arrest the person even though the officer does not have the
warrant at the time.
(2) Subsection (1) does not limit the operation of The Criminal
Code section 231.
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Part 13 Seizing things and related matters
s. 144
Part 13 -- Seizing things and related matters
144. Application
This Part applies to and in respect of the seizing under this Act
of a thing that is relevant to an offence.
5 145. Things relevant to an offence, grounds for seizing
If this Act provides that an officer may seize a thing that is
relevant to an offence the officer may do so only if the officer
reasonably suspects one or more of the following --
(a) that the thing is property that has been stolen or
10 otherwise unlawfully obtained;
(b) that the thing may be seized under another written law;
(c) that possession of the thing at that time and place by the
person in possession of it is unlawful;
(d) that the thing may be forfeited to the State or the Crown;
15 (e) that it is necessary to seize the thing for one or more of
the following purposes --
(i) to prevent it from being concealed, disturbed or
lost;
(ii) to preserve its evidentiary value;
20 (iii) to do a forensic examination on it;
(iv) to prevent it from being used in the commission
of another offence.
146. Seizing things, ancillary powers
(1) If it is not practicable or convenient to move a thing that may be
25 seized, an officer may seize the thing by attaching a notice of
seizure in the prescribed form to the thing.
(2) If it is not practicable or convenient to move a thing that has
been seized, an officer may do whatever is reasonably necessary
to secure the thing in the place where it is.
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s. 147
(3) If a power in subsection (1) or (2) is exercised, the officer must,
if practicable, give written notice of the fact that the thing has
been seized to the person in possession of the thing and the
occupier of the place where the thing is.
5 (4) If under subsection (2) a thing is secured in a place without the
consent of the occupier of the place, it may only be secured in
the place for a reasonable period.
(5) An occupier of a place who is aggrieved by the fact that a thing
that has been seized is secured in the place may apply to the
10 Magistrates Court to review the matter.
(6) The application must be made in accordance with rules of court.
(7) On an application made under subsection (5) an officer involved
in the investigation of the offence to which the seized thing
relates (the "investigating officer") and the occupier are
15 entitled to be heard.
(8) On an application made under subsection (5) the court may
make any orders it thinks fit including --
(a) an order as to the period for which the seized thing may
remain in the place;
20 (b) an order to mitigate any inconvenience caused by the
continued presence of the seized thing in the place;
(c) if the court is satisfied that the seized thing should not
remain in the place, an order that it be removed.
(9) Court proceedings under this section may be conducted by
25 remote communication.
147. Records relevant to an offence
(1) If a record may be seized, the officer authorised to seize it may,
if practicable, reproduce the record, whether or not in the same
form, and instead seize the reproduction.
30 Example: a record on a computer could be reproduced by printing it out on
paper or copying it on to a disc and the paper or disc could then be seized.
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s. 148
(2) If a record is seized, the officer authorised to seize it may copy
or take extracts from the record.
(3) If a record is seized and a person --
(a) who appears entitled to possession of the record; and
5 (b) who does not already have a copy of the record,
so requests, the officer in charge of the investigation must --
(c) if it is reasonably practicable to do so, give a copy of the
record to the person as soon as practicable after it is
seized; or
10 (d) unless the officer reasonably suspects that doing so will
jeopardise the evidentiary value of the record, allow the
person to inspect the record and to make and keep a
copy of it,
unless it would be an offence for the person to possess the copy.
15 148. Records, powers to facilitate seizing
(1) If a record may be seized, any device or equipment needed to
gain access to, recover, or reproduce, the information in the
record is to be taken as also being relevant to the offence to
which the record is relevant and, subject to section 145, may
20 also be seized.
(2) For the purpose of seizing a record or exercising a power in
section 147(1) or (2), an officer --
(a) may operate any device or equipment, whether seized
under subsection (1) or not, that is needed to gain access
25 to, recover, or make a reproduction of, the record and
that is possessed by the person from whom the record
may be seized;
(b) if he or she reasonably suspects that --
(i) the person from whom the record may be seized;
30 or
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Seizing things and related matters Part 13
s. 149
(ii) an employee (whether under a contract of service
or a contract for services) of that person,
knows how to gain access to or operate any such device
or equipment -- may order the person or employee to
5 provide any information or assistance that is reasonable
and necessary to enable the officer to seize the record or
exercise the power.
149. Seized things, list to be supplied on request
(1) If an officer seizes any thing --
10 (a) the person who had custody or control of the thing
before it was seized; or
(b) the occupier of the place where it was seized,
may ask the officer for a list of what was seized.
(2) The officer must comply with the request within a reasonable
15 time after it is made.
(3) If it is not reasonably practicable to list all the things seized
because they are too numerous, the list may give a general
description of the things seized that contains as much detail as is
reasonably practicable.
20 (4) This section does not apply in respect of a record if under
section 147 a copy of the record was seized or was given to the
person making the request.
150. Privileged material, procedure on seizure of
(1) In this section --
25 "court" means the Magistrates Court;
"privileged" means privileged because of either or both --
(a) legal professional privilege;
(b) public interest privilege.
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Part 13 Seizing things and related matters
s. 150
(2) If a record is seized or, under an order to produce a business
record issued under section 53, a business record is produced
and --
(a) a person entitled to possession of the record claims that
5 all or some of the information in it is privileged; or
(b) the officer seizing the record or to whom it is produced
reasonably suspects that all or some of the information
in it is privileged,
the record must be dealt with in accordance with this section.
10 (3) The record must be secured in a manner --
(a) that prevents it from being concealed, disturbed or lost;
(b) that preserves its evidentiary value; and
(c) that prevents access to the information in it by any
person who would not be entitled to access to the
15 information if it were privileged.
(4) The officer in charge of the investigation must apply to the court
to decide whether the information is privileged and must deliver
the record into the custody of the court.
(5) The application must be made in accordance with rules of court
20 and must be served on the person entitled to possession of the
record or, if the identity or whereabouts of the person is
unknown, on any person directed by the court to be served.
(6) The application may, if the court thinks fit, be heard in private.
(7) The applicant and any person entitled to possession of the
25 record are entitled to be heard on the application.
(8) For the purpose of deciding the application the court may have
access to all of the information in the record.
(9) If the court decides that all of the information is not privileged,
the court must make the record available to be collected by the
30 applicant.
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s. 151
(10) If the court decides that all of the information is privileged, the
court must make the record available to be collected by the
person from whom it was seized.
(11) If the court decides that some of the information is privileged,
5 the court must make orders to enable the applicant to have
access to the information in the record that is not privileged.
(12) If --
(a) the court decides that all or some of the information is
privileged; and
10 (b) the applicant has applied to be permitted to do a forensic
examination on the record,
the court must make orders that enable the forensic examination
to be done on the record and to ensure that any information in it
that is privileged remains privileged.
15 (13) After making a decision, the court may make any orders it
thinks fit --
(a) as to costs;
(b) as to securing the record, or suspending the operation of
any orders made under this section, until an appeal
20 against the determination is commenced and dealt with.
(14) Proceedings under this section are part of the court's criminal
jurisdiction.
(15) Subject to the Criminal Appeals Act 2004 Part 2, an appeal lies
against a decision made by the court under this section.
25 151. Criminal and Found Property Disposal Act 2005 applies
(1) If under this Act any thing is seized, the Criminal and Found
Property Disposal Act 2005 applies to and in relation to it.
(2) Subsection (1) does not apply to a sample taken or seized under
Part 9.
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Part 14 Miscellaneous
s. 152
Part 14 -- Miscellaneous
152. Order by officer, offence to not obey
(1) A person who, without reasonable excuse, does not comply with
an order given by an officer under this Act commits an offence.
5 Penalty: a fine of $12 000 and imprisonment for 12 months.
(2) It is not a defence to a charge of an offence under subsection (1)
that information required to be given under the order would or
may have incriminated the accused.
153. Evidence obtained improperly
10 (1) In this section --
"authorisation" includes a warrant and an order.
(2) If in the purported exercise of a power conferred by this Act or
by an authorisation issued or purportedly issued under this
Act --
15 (a) a thing relevant to an offence is seized or obtained; and
(b) a requirement of this Act in relation to exercising the
power or issuing the authorisation, including a
requirement that arises before or after the exercise of the
power or the issue of the authorisation, is contravened,
20 any evidence derived from the thing referred to in paragraph (a)
or from the exercise of the power is not admissible in any
criminal proceedings against a person in a court unless --
(c) the person does not object to the admission of the
evidence;
25 (d) the court decides otherwise under section 154; or
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Miscellaneous Part 14
s. 154
(e) if the power exercised was exercised in relation to a
protected person (as that term is defined in section 73),
the court is of the opinion that the contravention arose
out of a mistaken but reasonable belief as to whether the
5 person was a protected person.
154. Inadmissible evidence, court may allow admission
(1) This section applies if under another section a court may make a
decision under this section in relation to evidence that is not
admissible in proceedings in the court.
10 (2) The court may nevertheless decide to admit the evidence if it is
satisfied that the desirability of admitting the evidence
outweighs the undesirability of admitting the evidence.
(3) In making a decision under subsection (2) the court must take
into account --
15 (a) any objection to the evidence being admitted by the
person against whom the evidence may be given;
(b) the seriousness of the offence in respect of which the
evidence is relevant;
(c) the seriousness of any contravention of this Act in
20 obtaining the evidence;
(d) whether any contravention of this Act in obtaining the
evidence --
(i) was intentional or reckless; or
(ii) arose from an honest and reasonable mistake of
25 fact;
(e) the probative value of the evidence;
(f) any other matter the court thinks fit.
(4) The probative value of the evidence does not by itself justify its
admission.
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Part 14 Miscellaneous
s. 155
155. Regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed, or are
necessary or convenient to be prescribed for giving effect to the
5 purposes of this Act.
(2) Without limiting subsection (1) regulations may --
(a) provide for the procedure to be followed in and in
relation to doing a forensic examination on a thing;
(b) adopt, either wholly or in part or with modifications, any
10 code, standard, or rule, that does not by itself have
legislative effect in this State;
(c) create offences with statutory penalties not exceeding
$5 000.
(3) If the regulations adopt a code, standard or rule, it is adopted as
15 in force from time to time unless the regulations specify that a
particular text is adopted.
156. Review of Act
(1) The Minister must carry out a review of the operation and
effectiveness of this Act as soon as practicable after the expiry
20 of 5 years from its commencement.
(2) The Minister must prepare a report based on the review and, as
soon as is practicable after the report is prepared, must cause the
report to be laid before each House of Parliament.
page 136
Criminal Investigation Bill 2005
Miscellaneous Part 14
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
admission.................................................................................................117(1)
adult................................................................................................... 73, 117(1)
aggrieved person ........................................................................................49(1)
area associated with a dwelling.................................................................... 3(1)
arrest warrant .............................................................................................. 3(1)
arrestable offence .......................................................................................25(1)
arrestable person.......................................................................................131(1)
arrested suspect ................................................................137(1), 138(1), 141(1)
authorisation ............................................................................................153(1)
authorised ..................................................................................................47(1)
authorised officer .....................................................................................134(1)
authorised person .....................................................................................119(1)
basic search................................................................................................. 3(1)
Basic search ................................................................................................... 63
body search .................................................................................................. 109
business ......................................................................................................... 50
business record............................................................................................... 50
CCC............................................................................................................. 114
CCC officer.................................................................................................. 114
child................................................................................................... 73, 117(1)
citizen ........................................................................................................24(1)
court ........................................................................................................150(1)
data ................................................................................................................ 57
data access order ............................................................................................ 57
data storage device ......................................................................................... 57
dentist ............................................................................................................ 73
disturb......................................................................................................... 3(1)
doctor............................................................................................................. 73
DPP ............................................................................................................ 3(1)
dwelling...................................................................................................... 3(1)
endangering offence ...................................................................................26(1)
escapee.....................................................................................................133(1)
forensic database ......................................................................................112(1)
forensic examination ................................................................................... 3(1)
forensic information .................................................................................112(1)
forensic procedure ..................................................................................3(1), 73
FP warrant (involved person).......................................................................... 73
FP warrant (suspect)....................................................................................... 73
frisk search.................................................................................................. 3(1)
page 137
Criminal Investigation Bill 2005
Part 14 Miscellaneous
Defined Terms
identifying particular ...................................................................................... 73
impression................................................................................................... 3(1)
incapable person............................................................................................. 73
internal forensic procedure ............................................................................. 73
interview ...................................................................................................... 114
intimate forensic procedure............................................................................. 73
investigating officer........................................................................49(3), 146(7)
involved person ..........................................................................73, 83(1), 84(1)
judicial officer ............................................................................................12(1)
lawyer ......................................................................................................... 3(1)
mobile home ............................................................................................... 3(1)
non-intimate forensic procedure...................................................................... 73
nurse .............................................................................................................. 73
occupier ...................................................................................................... 3(1)
offence ........................................................................................................ 3(1)
officer ..................................................................... 3(1), 136(1), 137(1), 141(1)
official details.............................................................................................. 3(1)
ombudsman officer....................................................................................... 114
order to produce ............................................................................................. 50
Parliamentary Inspector ................................................................................ 114
passenger ...................................................................................................26(2)
photograph .................................................................................................. 3(1)
place ........................................................................................................... 3(1)
place of public entertainment ......................................................................34(1)
police officer ............................................................................................... 3(1)
prescribed.................................................................................................... 3(1)
prescribed person .....................................................................................123(1)
private parts ................................................................................................ 3(1)
privileged.................................................................................................150(1)
protected forensic area................................................................................. 3(1)
protected person ............................................................................................. 73
Public Advocate ............................................................................................. 73
public officer............................................................................................... 3(1)
public open area .......................................................................................... 3(1)
public place................................................................................................. 3(1)
qualified person.............................................................................................. 73
reasonable excuse.....................................................................................117(1)
reasonably suspects ..................................................................................... 3(1)
Reasonably suspects ......................................................................................... 4
record.......................................................................................................... 3(1)
relevant thing ................................................................................................. 73
remote communication ................................................................................ 3(1)
responsible person .......................................................................................... 73
road............................................................................................................18(1)
search warrant ............................................................................................. 3(1)
page 138
Criminal Investigation Bill 2005
Miscellaneous Part 14
Defined Terms
searcher....................................................................... 65(1), 70(1), 71(1), 72(1)
security risk item ......................................................................................134(1)
senior officer ............................................................. 44(1), 47(1), 97(1), 132(1)
senior police officer..................................................................................... 3(1)
serious event ..............................................................................................37(1)
serious offence ................................................. 40(1), 57, 127(1), 132(1), 141(1)
statutory penalty.......................................................................................... 3(1)
strip search.................................................................................................. 3(1)
Strip search .................................................................................................... 64
suspect .......................................25(2), 25(3), 26(5), 73, 91(1), 92(1), 97(1), 114
target device...............................................................................................58(3)
target person...............................................................................................58(3)
target place...................................................................................... 43(1), 44(1)
target thing...................................................................................... 43(1), 44(1)
thing relevant to an offence.......................................................................... 3(1)
Thing relevant to an offence ............................................................................. 5
unconditionally.........................................................................................124(1)
vehicle .............................................................................................. 3(1), 18(1)
volunteer ........................................................................................................ 79
WA Police................................................................................................... 3(1)
page 139
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