Victorian Numbered Acts Victorian Numbered ActsAfter section 464ZF of the Crimes Act 1958 insert —
(1) In this section—
"child" means a child aged 10 years or more but under 18 years;
"forensic sample offence" means any offence specified in Schedule 8 other than an offence tried summarily.
(2) If a court finds a person not guilty because of mental impairment of—
(a) a forensic sample offence; or
(b) an offence of conspiracy to commit, incitement to commit or attempting to commit a forensic sample offence—
a member of the police force, at any time following that finding but not later than 6 months after the final determination of an appeal or the expiration of any appeal period (whichever is the later), may apply to the court for an order directing the person to undergo a forensic procedure for the taking of a sample from any part of the body and the court may make an order accordingly.
(3) In an application under sub-section (2), the member of the police force must specify the type of sample (whether intimate or non-intimate) sought to be taken in the forensic procedure.
(4) Notice of an application under sub-section (2)—
(a) must be served on the person in respect of whom the order is sought and, if the person is a child, on a parent or guardian of the child; and
(b) must include a requirement that the person in respect of whom the order is sought attend the hearing of the application in person or by his or her legal practitioner.
(5) In determining whether to make an order under sub-section (2), a court—
(a) must take into account the seriousness of the circumstances of the forensic sample offence of which the person has been found not guilty because of mental impairment; 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 otherwise as it considers desirable.
(6) An application made under sub-section (2) must be heard in the presence of the person in respect of whom the order is sought or his or her legal practitioner.
(7) A person in respect of whom an application under sub-section (2) is made—
(a) is not a party to the application; and
(b) may not call or cross-examine any witnesses; and
(c) may not address the court other than in response to inquiries made by the court under sub-section (5)(c).
(8) In exercising the right of address under sub-section (7)(c), a person may be represented by a legal practitioner.
(9) An order under sub-section (2) in respect of a person who is not a forensic patient or a forensic resident within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 must include a direction that the person attend—
(a) at a place; and
(b) within a period (commencing after the expiry of the period referred to in sub-section (12) during which the order must not be executed)—
specified in the order to undergo the forensic procedure.
(10) If a court makes an order under sub-section (2), it must—
(a) give reasons for its decision and cause a copy of the order and reasons to be served on the person ordered to undergo the forensic procedure; and
(b) inform the person ordered to undergo the forensic procedure that a member of the police force may use reasonable force to enable the procedure to be conducted.
(11) A failure of a court to comply with sub-section (10) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464ZE(1)(a).
(12) An order made by a court under sub-section (2) before the appeal period in relation to the verdict of not guilty because of mental impairment has expired or an appeal against the verdict (if any) has been finally determined (whichever is the later), must not be executed unless—
(a) that appeal period expires; or
(b) the appeal against the verdict is dismissed—
whichever is the later.
(13) If leave to appeal against a verdict of not guilty because of mental impairment in respect of a forensic sample offence is sought after the expiry of the appeal period in relation to the verdict, an order made by a court under sub-section (2) before leave to appeal is sought, if not executed before that leave is sought, must not be executed unless—
(a) leave to appeal against the verdict is refused; or
(b) leave to appeal against the verdict is granted but the appeal is dismissed.
(14) If an order made by a court under sub-section (2) has been executed after the expiry of the appeal period in relation to the verdict of not guilty because of mental impairment in respect of a forensic sample offence and leave to appeal against the verdict is granted after the expiry of that period—
(a) any sample and any related material and information taken may be retained by a member of the police force but may not be used for any purpose pending the final determination of the appeal against the verdict; and
(b) if, on appeal, the verdict is set aside, the Chief Commissioner of Police must, without delay, destroy or cause to be destroyed any sample taken and any related material and information.
(15) If on appeal a verdict of not guilty because of mental impairment is set aside, an order made by a court under sub-section (2) ceases to have effect. '.