Assess the effectiveness of the criminal investigation process as a means of achieving justice

Question 1

Thesis Statement

Answer 1

The criminal investigation process has proven to have had mixed effectiveness as a means of achieving justice, or upholding rights and punishing wrongs. Often, the investigation process has sacrificed the interests of the accused in an attempt to protect the rights of wider society

Question 2

Gathering Evidence Topic Sentence

Answer 2

Achieving justice requires that the criminal investigation process consider all relevant evidence. However, new developments in technology can struggle to overcome biases.

Question 3

Positives of Gathering Evidence

Answer 3

• Strict Procedures Outlined in the Evidence Act 1995
• “All evidence must be obtained in a proper and lawful manner, or risks becoming inadmissible”
• NSW police use special forensic experts to investigate crime scenes and evidence
• Helps to ensure that the accused is not acquitted or convicted on wrongful evidence

Question 4

Negatives Gathering Evidence

Answer 4

• The difficulty of the law in keeping up with new technology can be seen in the Katheleen Folbigg case
• The genomic sequencing technology we have today was not present at 2003 trial
• Australian Academy of Science issues a statement stating that “There are medical and scientific explanations for the death of each of Kathleen Folbigg’s children.”
• Appeal thrown out of court in under a minute, demonstrating a deciding of guilt and unwillingness to consider new technology that does not fit with that analysis

Question 5

Search & Seizure Powers Topic Sentence

Answer 5

The criminal investigation process protects the rights of property better than the rights of people

Question 6

SS Positive - Warrant Requirement for Property Searches

Answer 6

• When applying for a warrant, police must give substantial reasons or evidence to the magistrate to justify its granting
• Police require a warrant before they can search any premises without the consent of the owner
• Before any premises are to be searched, police must identify to the occupier the reason for it
• Helps to prevent abuse of police powers and limit discretion

Question 7

SS Negative - Strip Searching Powers

Answer 7

• Under Part 4 of the Law Enforcement (Powers and Responsibilities) Act 2002, NSW Police are given powers to ‘search people and seize and detain certain things’ without a warrant
• They are able to stop and search any person who they ‘believe on reasonable grounds’ is carrying anything stolen or prohibited by law
• In 2020, NSW Police had to fulfil a quota for 241,000 strip searches
• Greens MP David Shoebridge stated that this was “a guaranteed recipe for the abuse of police powers… and people’s human rights”

Question 8

Bail Laws Topic Sentence

Answer 8

Justice implies presumption of innocence, but must balance the interest of the accused

Question 9

BL Positive - Protection of the Community

Answer 9

• Bail attempts to protect the community from potential offenders
• Bail is unlikely to be granted when the charge is in relation to a violent offence, drug trafficking, or another crime that it detrimental to the wider community
• Bail itself can take many forms, from surety, regular police checks and wrist/ankle bracelets in an attempt to prevent re-offending
• Demonstrates an attempt to achieve justice by balancing rights of society & accused

Question 10

BL Negative - Presumption Against Bail

Answer 10

• Before 2013, there was a ‘presumption against bail’, which meant that it was up to the accused to prove why they should be granted bail
• The effect of denying bail can be severe, as it may result in an extensive period of time spent in custody before a verdict is reached
• In 2018, a BOCSAR report found that the prison population rose by 4% - a rise that it attributed to a growing number of prisoners being kept on remand
• 2013 amendments to the Bail Act means that it is now judicial discretion that determines whether an individual is an ‘unacceptable risk’

Question 11

Detention & Interrogation Topic Sentence

Answer 11

Justice requires the law protects the rights of all in the community, including those who may be a threat to the wider society

Question 12

DI Positive - Strict Procedures

Answer 12

• Law Enforcement (Powers & Responsibilities Act 2002) sets out the lawful conditions under which a suspect can be detained for questioning
• Police can only detain a suspect for six hours after which that suspect must be either charged or unconditionally released
• Any suspect under 18 years of age has the right to have a responsible adult present with them at the interrogation
• Any interviews must be recorded to ensure all policies and guidelines are adhered to by police

Question 13

DL Negatives - Terrorism Suspects

Answer 13

• Under the Terrorism (Police Powers) Act 2002, the police can make an application to the Supreme Court to detain a person in custody for a maximum period of 14 days without charge if they reasonable believe the suspect will otherwise engaged in a terrorist act
• These rules apply to suspects as young as 14
• Mr Blanks, President of the NSW Council for Civil Liberties, has stated that the 2016 proposed shift to allow holding periods to be extended by seven days at a time, instead of being subject to a judge’s approval every 48 hours, is “contrary to the interests of the community”.