Forensic Procedure Applications

Question 1

What is section 134 of LEPRA

Answer 1

Testing

Question 2

What is a forensic procedure?

Answer 2

Testing

Question 3

AVO - section 14

Answer 3

Crimes domestic and personal violence act:

13 Stalking or intimidation with intent to cause fear of physical or mental harm

(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.
: Maximum penalty–Imprisonment for 5 years or 50 penalty units, or both.
(2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.
(3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.
(4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.
(5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.

Question 4

Section 14

Answer 4

14 Offence of contravening apprehended violence order

(1) A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence.
: Maximum penalty–Imprisonment for 2 years or 50 penalty units, or both.
(2) A person is not guilty of an offence against subsection (1) unless–
(a) in the case of an apprehended violence order made by a court, the person was served with a copy of the order or was present in court when the order was made, or
(b) in any other case, the person was served with a copy of the apprehended violence order.
(3) A person is not guilty of an offence against subsection (1) if the contravention of the prohibition or restriction concerned–
(a) was necessary in order to attend mediation under section 21, or
(b) was done in compliance with the terms of a property recovery order.
(4) Unless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person.
(5) Subsection (4) does not apply if the person convicted was under 18 years of age at the time of the alleged offence.
(6) Where the court determines not to impose a sentence of imprisonment, it must give its reasons for not doing so.
(7) A person is not guilty of an offence of aiding, abetting, counselling or procuring the commission of an offence against subsection (1) if the person is a protected person under the order concerned.
(8) A police officer is to make a written record of the reasons for–
(a) a decision by the police officer not to initiate criminal proceedings against a person for an alleged contravention of subsection (1) or (9) (whether or not the person is arrested), or
(b) a decision by the police officer not to proceed with criminal proceedings against a person for an alleged contravention of subsection (1) or (9),
if the police officer or another police officer suspects on reasonable grounds that the person has committed an offence against either subsection or if an alleged contravention of either subsection by the person has been reported to the police officer or another police officer.
(9) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.

Question 5

section 7 crimes dpv act

Answer 5

7 Meaning of “intimidation”

(1) For the purposes of this Act,
“intimidation” of a person means–
(a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or
Note : An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email.
(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or
(c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.
(2) For the purpose of determining whether a person’s conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.

Question 6

Section 8

Answer 6

8 Meaning of “stalking”

(1) In this Act,
“stalking” includes the following–
(a) the following of a person about,
(b) the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity,
(c) contacting or otherwise approaching a person using the internet or any other technologically assisted means.
(2) For the purpose of determining whether a person’s conduct amounts to stalking, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.

Question 7

s26 application to court under crimes forensic procedure act

Answer 7

Must be made by an ‘authorised applicant’
In writing, (Local Court Application: see s 45 Local Court Act 2007, Pt 4 Local Court Rules 2009)
supported by evidence on oath or affidavit
Satisfy s24(1) (see previous slide),
Specify the type of procedure sought
No requirement suspect is present for application (can be in absentia)

Question 8

s30 - procedure on hearing

Answer 8

Only made in suspect’s presence OR ex-parte (as of Nov 2013)
Magistrate must ask suspect if ATSI
Mandatory interview friend for child/ incapable person/ Aboriginal/ TSI UNLESS friend unreasonably interferes/ obstructs hearing OR
Aboriginal/ TSI voluntarily waives their right
Suspect may be legally represented

Question 9

further forensic procedure applications under s26(3) where there’s been a previous application

Answer 9

Prior Refused FP: S 26(3) If a Magistrate refuses an application … may not make a further application to carry out the same fp unless he or she provides additional information that justifies the making of the further application.

Question 10

s27 crimes forensic procedure act

Answer 10

previous sample contaminated or tainted and the magistrate can order granting of second application if still Justified IN All the circumstances

Question 11

s41 - arrest of suspect for forensic procedure - crimes FP act

Answer 11

arrest of suspect for forensic procedure:

Need application by police officer by information on oath accompanied by affidavit
Can only issue warrant if satisfied arrest is necessary to carry out f.p. or issue of warrant is otherwise justified
Cannot issue warrant if one has previously been issued re that f.p.

Question 12

UFO - untested former offender

Answer 12

Part 7A of crimes FP act
DNA Back-capture: Prisoners who would have their DNA captured today
-Previously served a sentence of imprisonment for a SIO
Doesn’t include a Control Order S33(1)(g)
75A(3) “in a correctional centre or other place of detention”

-Since been served with a CAN for an Indictable Offence
Can be a past CAN, since finalisedDaley v Brown, Pittman v Brown [2014] NSWSC 144

• DNA profile is not in the offenders index of the DNA Database
  Statement from FIRM/FASS (Feb 2016 amendment)
• Must be “Justified in all the circs” (s75L(2))
  No Section 24(4) equivalent
  See Law Note – Juliet Dimond
  W4 v DSC Ayscough [2016] NSWSC 1106, [52]

Question 13

Untested registrable person

Answer 13

Part 7B of crimes FP act

• Person is a Registrable person under the Child Protection (Offenders Registration) Act 2000
• Person has reporting obligations under that Act
• DNA profile is not on the Offenders Index of the DNA database

emphasise the seriousness of offences against children
importance of identifying and eliminating suspects when new child sexual offences occur
Onus on Prosecution to show JIATC
2RS: “By having the DNA of persons on the register more persons who commit child sex crimes will be identified, they will be identified faster, and they will be more likely to be successfully prosecuted”

Question 14

definition of an authorised officer under LEPRA and FP act

Answer 14

S 3 C(FP)A says “authorised officer” has the same meaning as it has LEPRA.
Section 3 of LEPRA includes authorised officer means:
(a) a Magistrate or a Children’s Magistrate, or
(b) a registrar of the Local Court, or
(c) an employee of the Attorney General’s Department authorised by the Attorney General as an authorised officer for the purposes of this Act either personally or as the holder of a specified office.

Question 15

a volunteer under FP legislation

Answer 15

s76
(1) In this Act,
“volunteer” means:
(a) a person (other than a child or an incapable person) who consents to a request by a police officer for the person to undergo a forensic procedure, or
(b) a child who consents, and whose parent or guardian consents, to a request by a police officer for the child to undergo a forensic procedure, or
(c) an incapable person whose parent or guardian consents to a request by a police officer for the person to undergo a forensic procedure,

-but does not include a suspect, a person under 10 years of age or an excluded volunteer.

Question 16

excluded volunteer

Answer 16

a special subset of volunteers. all victims of Personal violence offences and persons who volunteer their finger and hand prints for the purpose of elimination for stealing, fraud and some related offences are excluded volunteers. parents and guardians can give consent for excluded volunteers who are children and incapable persons.

special group that are not subject to legislated rules.

Question 17

s87 and 88 of prosecutors duties

Answer 17

prosecutor must disclose as ass soon as practicable all material available which could constitute evidence relevant to guilt or innocence to the accused other than statutory immune material …unless prosecutor thinks it would seriously threaten integrity of the administration of justice or safety to any person.

otherwise under 88 must consider whether a) withdraw the charge for which the material relates to AND
b)accused should be faced only with lesser charge to which such material would not be so relevant.

Question 18

authority to withdraw

Answer 18

Responsibility for determining if proceedings are withdrawn or left to the determination of the Court rests with the Commander of the Police Informant i.e., the relevant Local Area/Police District Commander or equivalent. Crime manager etc.

Question 19

prosecutors authority to withdraw following without crime manager approval:

Answer 19

Fail to appear charge (s4 lodged)

back up charge / charge in the alternative

incorrect charge - written confirmation from OIC that it is incorrect charge

on day of hearing- subpoena issued for victim or witness - contact made and they say not attending or are uncontactable
no other admissible evidence to satisfy the charge
application for adjounrment/warrant has been considered
if appropriate make the application for adjournment/warrant. If court has refused the application then consult with OIC
consult then with senior sergeant/sergeant of prosecutions command and get approval to withdraw.

Question 20

reps steps

Answer 20

Representations are to be addressed in the following order:

1. Police Informant; then
2. Commander, Police Area Command or Police District; then
3. Prosecutor Team Leader.

Question 21

amendment of fact sheets

Answer 21

n amendment of the facts sheet in relation to a charge may be required in the following circumstances:
1. The facts sheet contains reference to facts that relate to offences with which the accused has not been charged.
2. The withdrawal of a charge may change the basis, and therefore the facts, upon which the remainder of the prosecution case is to be conducted.
3. The facts sheet refers to evidence or information that the prosecution is not in a position to prove.
4. The accused person agrees to plead guilty to an agreed set of facts.
A police prosecutor does not require the authority of the relevant Police Area/District Commander to amend a facts sheet to remove references to offences for which the accused is not charged if the references are removed for legal reasons and not removed on discretionary grounds in accordance with the principles referred to in R v De Simoni (1981) 147 CLR 383.
However, aggravating circumstances of offences that are charged must remain in the facts sheet.
No other amendments to facts sheets can be made by the Prosecutor without written instructions from the Police Informant.
Where there is a victim, the police prosecutor must ensure, where practicable, the victim is consulted by the Police Informant and, where possible, obtain the victim’s signature beside the changes on the facts sheet.