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464ZFB Retention of information following finding of guilt etc.

(1AA)If— the sample taken and any related material and information may be retained indefinitely.

(a)a DNA profile sample is taken or a forensic procedure is conducted on a person of or above the age of 18 years in accordance with section 464R, 464SA, 464SC, 464SE, 464T(3) or 464V(5); and

(b)a court finds the person guilty, or not guilty because of mental impairment, of—

(i)the indictable offence in respect of which the DNA profile sample was taken or the forensic procedure was conducted; or

(ii)any other indictable offence arising out of the same circumstances; or

(iii)any other indictable offence in respect of which evidence obtained as a result of the DNA profile sample or the forensic procedure had probative value—

(1AB)Subsection (1AA) does not apply if—

(a)on appeal against conviction, the finding of guilt or conviction referred to in subsection (1AA) is set aside; or

(b)on appeal against the verdict of not guilty because of mental impairment, the verdict referred to in subsection (1AA) is set aside.

(1)If at any time on or after the commencement of section 26 of the Crimes (Amendment) Act 1997— a police officer, at any time after the finding of guilt but not later than 6 months after the final determination of an appeal against conviction or sentence or the expiry of any appeal period in respect of the offence (whichever is the later), may apply to the court referred to in paragraph (b) or to the Children's Court for an order permitting the retention of any sample taken and any related material and information and the court may make an order accordingly.

S. 464ZFB(1) amended by Nos 16/2002 s. 13(1)(a)(b), 14/2006 s. 14(a), 72/2013 s. 11(2)(c), 37/2014 s. 10(Sch. item 36.37).

(a)a DNA profile sample is taken from a DNA person who is a child in accordance with section 464SC or 464SE or a forensic procedure is conducted on a child in accordance with section 464U(7) or 464V(5); and

(b)a court finds the child guilty of—

(i)the offence in respect of which the DNA profile sample was taken or the forensic procedure was conducted; or

(ii)any other offence arising out of the same circumstances; or

(iii)any other offence in respect of which evidence obtained as a result of the DNA profile sample or forensic procedure had probative value—

(1A)If— a police officer, at any time after the verdict of not guilty because of mental impairment, but not later than 6 months after the final determination of an appeal against the verdict or the expiry of any appeal period in respect of the verdict (whichever is the later), may apply to the court referred to in paragraph (b) for an order permitting the retention of any sample taken and any related material and information and the court may make an order accordingly.

S. 464ZFB(1A) inserted by No. 27/2006 s. 11(2), amended by No. 37/2014 s. 10(Sch. item 36.37).

(b)a court finds the child not guilty because of mental impairment of—

(i)the offence in respect of which the DNA profile sample was taken or the forensic procedure was conducted; or

(ii)any other offence arising out of the same circumstances; or

(iii)any other offence in respect of which evidence obtained as a result of the DNA profile sample or forensic procedure had probative value—

(1B)Subsection (1A) does not apply to an offence heard and determined summarily.

S. 464ZFB(1B) inserted by No. 27/2006 s. 11(2), amended by No. 68/2009 s. 97(Sch. item 40.38).

(2)A court hearing an application under subsection (1) or (1A)—

S. 464ZFB(2) amended by No. 27/2006 s. 11(3)(a).

(a)must take into account the seriousness of the circumstances of the offence in determining whether to make the order under subsection (1) or (1A), as the case requires; and

(b)must be satisfied that, in all the circumstances, the making of the order is justified; and

(c)may make such inquiries on oath or by affirmation or otherwise as it considers desirable.

(2A)An order made under subsection (1) before the expiry of the appeal period in respect of the conviction for the offence or the final determination of an appeal against conviction (whichever is the later)—

S. 464ZFB(2A) inserted by No. 16/2002 s. 13(2), amended by No. 14/2006 s. 14(b)(i)(ii).

(a)takes effect on that expiry or final determination; and

(b)has no effect if, on appeal against conviction, the finding of guilt or conviction is set aside.

(2B)An order made under subsection (1A) before the expiry of the appeal period in respect of the verdict of not guilty because of mental impairment or the final determination of an appeal against the verdict (whichever is later)—

S. 464ZFB(2B) inserted by No. 27/2006 s. 11(4).

(a)takes effect on that expiry or final determination; and

(b)has no effect if, on appeal, the verdict of not guilty because of mental impairment is set aside.

(3)If a court makes an order under subsection (1) or (1A), it must give reasons for its decision and cause a copy of the order and reasons to be served on the person on whom the forensic procedure was conducted.

S. 464ZFB(3) amended by No. 27/2006 s. 11(5).

(4)A failure of a court to comply with subsection (3) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464ZE(1)(a).