Defence Forces (Evidence) Act 2022
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Inferences from refusal to consent, or withdrawal of consent, to taking of intimate sample | ||
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13. (1) Subject to subsection (5), this section applies where, in any proceedings against a person for a relevant offence, evidence is given that the accused— | ||
(a) refused without reasonable cause to give the consent required under section 10 (2)(b), or | ||
(b) without reasonable cause withdrew the consent given thereunder. | ||
(2) Where this section applies— | ||
(a) the court-martial (or, subject to the military judge’s directions, the court-martial board), in determining whether the accused is guilty of the relevant offence charged (or of any offence against military law of which he or she could lawfully be convicted on that charge), may draw such inferences from the refusal or withdrawal concerned, as the case may be, as appear proper, and | ||
(b) the refusal or withdrawal concerned may, on the basis of such inferences, be treated as, or as being capable of amounting to, corroboration of any evidence in relation to which the refusal or withdrawal is material. | ||
(3) A person shall not be convicted of the relevant offence charged concerned (or of any offence against military law of which he or she could lawfully be convicted on that charge) solely or mainly on an inference drawn from the refusal or withdrawal concerned. | ||
(4) Subsection (2) shall not have effect in relation to an accused unless— | ||
(a) he or she has been told in ordinary language by a member of the Military Police when seeking his or her consent that— | ||
(i) the sample was required for the purpose of forensic testing, | ||
(ii) his or her consent was necessary, and | ||
(iii) if his or her consent was not given, what the effect of a refusal or withdrawal by him or her of such consent might be, | ||
and | ||
(b) he or she was informed before such refusal or withdrawal of consent occurred that he or she had the right to consult a solicitor and, other than where he or she waived that right, he or she was afforded an opportunity to so consult before such refusal or withdrawal occurred. | ||
(5) This section shall not apply to a refusal by a person to give consent, or the withdrawal of such consent, unless the seeking of such consent by a member of the Military Police is recorded by electronic or similar means or the person consents in writing to it not being so recorded. | ||
(6) In this section, “military judge” means a person appointed, for the time being, under section 184J of the Act of 1954. |