Section 23XWV — Crimes Act 1914: Retention of forensic material by order of a magistrate after volunteer, parent or guardian of child or incapable person withdraws consent

(1) An authorised applicant may apply to a magistrate for an order under subsection (2). (2) Subject to subsection (2A), a magistrate may order that forensic material taken or information obtained from carrying out a forensic procedure on a volunteer who withdraws consent, or parent or guardian of a volunteer who withdraws consent, as the case may be, to the retention of the material be retained if the magistrate is satisfied that: (a) during an investigation into the commission of a serious offence, material reasonably believed to be from the body of a person who committed the offence had been found: (i) at the scene of the offence; or (ii) on the victim of the offence or anything reasonably believed to have been worn or carried by the victim when the offence was committed; or (iii) on the volunteer or anything reasonably believed to have been worn or carried by the volunteer at the scene of the offence or when the offence was committed; or (iv) on an object or person reasonably believed to have been associated with the commission of the offence; and (b) there are reasonable grounds to believe that information obtained from analysis of the forensic material taken from the volunteer is likely to produce evidence of probative value in relation to the serious offence being investigated; and (c) the retention of the forensic material taken from the volunteer is justified in all the circumstances. (2A) Despite subsection (2), a magistrate may not make an order if: (a) the volunteer was asked to undergo a forensic procedure because of a request by a foreign law enforcement agency; and (b) the forensic evidence has already been provided to the foreign law enforcement agency. (3) The order may specify the period for which the forensic material taken or information obtained from carrying out the procedure may be retained.