Bullring Notes Flashcards
Scenario – LEPRA
Section 36 of LEPRA now provides a means for Police to seize a thing which is suspected of being used in the commission of an offence. What principles should Police adopt when they want to seize a “thing”? Support your answer with case law.
Ghani v Jones [1970] 1 QB 693, aka [1969] 3 All ER 1700 –Lord DENNING.
Section 36 (3) (a-d) of LEPRA-Provides police with the power to seize and detain:
(a) all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and
(b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and
(c) any dangerous article, and
(d) any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985 ,
found as a result of a search under section (1).
Principles – Ghani V Jones 1970 “Requisites must be satisfied”
1. The police officer must have reasonable grounds for believing that a serious offence had been committed
2. Police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime, or is material evidence to prove the commission of the crime
3. The police officer must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is an accessory to it, or at any rate his refusal must be quite unreasonable
4. The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence; and
5. The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards.
Lord Denning stated the privacy and possessions of an individual were not to be invaded except for the most compelling reasons being the principles above.
Scenario – LEPRA
It is 3:00am and you are patrolling an industrial park area of a LAC. You observe a panel van driving down the roadway a short distance in front of you. You can only see the driver in the vehicle. Upon seeing Police the driver immediately slows down to around 10km/h below the posted speed limit. Police conduct a vehicle check on the van; radio confirms that the vehicle is currently registered. There is one previous COPS entry that is three years old indicating that the vehicle was used in a ram raid in the city.
Ignoring any specific legal issues, prima facie what LEPRA power may allow Police to stop, search and detain the vehicle and occupants AND why this power is relevant?
Section 36 (1) of LEPRA allows a Police officer without a warrant to stop, search and detain a vehicle if the Police officer suspects on reasonable grounds that any of the following circumstances exist:
(a) the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, anything stolen or otherwise unlawfully obtained,
(b) the vehicle is being, or was, or may have been, used in or in connection with the commission of a relevant offence, (this is relevant as the vehicle was connected with a ram raid in the city)
(c) the vehicle contains anything used or intended to be used in or in connection with the commission of a relevant offence,
(d) the vehicle is in a public place or school and contains a dangerous article that is being, or was, or may have been, used in or in connection with the commission of a relevant offence,
(e) the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, a prohibited plant or prohibited drug in contravention of the Drug Misuse and Trafficking Act 1985 ,
(f) circumstances exist on or in the vicinity of a public place or school that are likely to give rise to a serious risk to public safety and that the exercise of the powers may lessen the risk. (this is relevant as the vehicle might be used to commit another ram raid or other serious offence)
Scenario – LEPRA
Assuming Police acted only on the information provided what issues may arise (if any) concerning the vehicle stop? Explain your answer with reference to relevant case law and LEPRA?
On the basis of Streat v Bauer, Streat v Blanco 1998
About 1am in the morning police had stopped a motor vehicle and conducted a check via police radio. There was a warning on the vehicle which suggested the vehicle may be involved in BES related offences. Based on this information the police submitted the vehicle to a search which its occupants opposed.
The magistrate held that the search was performed unlawfully as the police did not have a ‘reasonable grounds to suspect’ that the vehicle was involved in BES related offence. That the searching police were only relying on the opinion of other police. Being the warning, they were provided with over police radio and more facts were required the substantiate the warning. Such as recent radio broadcast or knowledge of a recent incident where a vehicle of similar description was seen leaving the scene of a BES incident.
This scenario is no different to the case of Streat V Bauer & Streat V Blanco. Police submitted the vehicle to a search relying on Time, Place, an outdated warning and seeing it slow down.
Magistrate stated: “bold and irritating conduct must be distinguished from conduct which might be characterised as suspicious”
To conduct a lawful vehicle stop the Police officer needed to have formed a genuine suspicion in his own mind (subjective test) of which a reasonable person (objective test) armed with this same information would have acted in a similar manner to the Police officer.
More grounds are needed to increase the ‘reasonable grounds to suspect’ and searching police should take their mind to:
-The situation; is there any other details of the matter that increases the officers suspicion.
-The History; do the police officers have any knowledge of the history of the location or occupants of the vehicle which would increase their reasonable grounds to suspect.
-Intelligence; are the police aware of any recent police intelligence of the location or occupants of the vehicle which would increase their ‘reasonable grounds to suspect’.
Scenario – LEPRA
If Police have applied for a crime scene warrant what are crime scene powers that Police can exercise straight away without a warrant? What powers can police exercise with a warrant?
LEPRA 95(1) A-L: without warrant
LEPRA 95(1) M-P: with warrant
Police can exercise any of the powers pursuant to Section 95 (1) A-L.
95 Crime scene powers
(1) A police officer may, in accordance with this Part and any relevant crime scene warrant, exercise the following functions at, or in relation to, a crime scene established under this Part:
(a) Direct a person to leave the crime scene or remove a vehicle, vessel or aircraft from the crime scene,
(b) Remove from the crime scene a person who fails to comply with a direction to leave the crime scene or a vehicle, vessel or aircraft a person fails to remove from the crime scene,
(c) Direct a person not to enter the crime scene,
(d) Prevent a person from entering the crime scene,
(e) Prevent a person from removing evidence from or otherwise interfering with the crime scene or anything in it and, for that purpose, detain and search the person,
(f) Remove or cause to be removed an obstruction from the crime scene
(g) Perform any necessary investigation, including for example, search the crime scene and inspect anything in it to obtain evidence of the commission of an offence
(h) For the purpose of performing any necessary investigation, conduct any examination or process
(i) Open anything at the crime scene that is locked
(j) Take electricity, gas or any other utility, for use at the crime scene
(k) Direct the occupier of the premises or a person apparently involved in the management or control of the premises to maintain a continuous supply of electricity at the premises and
(L) Photograph or otherwise record the crime scene and anything in it.
CAN ONLY OPEN A THING (i) only if possible to do so without causing damage to the thing or lock
WITH A WARRANT:
(m) seize and detain all or part of a thing that might provide evidence of the commission of an offence,
(n) dig up anything at the crime scene,
(o) remove wall or ceiling linings or floors of a building, or panels of a vehicle,
(p) any other function reasonably necessary or incidental to a function conferred by this subsection.
(2) The power conferred by this section to seize and detain a thing includes:
(a) a power to remove the thing from the crime scene when it is found, and
(b) a power to guard the thing in or on the crime scene.
Scenario – Preservation & Integrity of Scene
You are first on the scene at premises after responding to a call that a violent domestic was taking place. Upon entering the premises you find a woman lying on the floor of the kitchen with a stab wound to the chest, you ascertain that she is deceased. You conduct a search of the premises and find that there is no one else in the house. A knife with blood on it is found in the hallway.
As the first officer on the scene what should you do to preserve the integrity of the crime scene for examination?
• Assess any hazards and take appropriate action
• Render or arrange first aid for anyone
• Determine the nature and size of the scene
• Think forensically. i.e. try not to contaminate any forensic evidence, namely possible DNA evidence
• Establish crime scene-S90
• Determine an entry/exit point for the crime scene; a point not used by the suspect
• Remove all people through the entry point and record all witnesses particulars including their driver’s licence number where practical. This will help the linking process on COPS.
• Define the boundary of the scene with Police crime scene tape
• Start log & guard to prevent entry to those who don’t have a specific role to perform regardless of rank
• Call a supervisor and/or Duty Officer to coordinate control of the scene (Scene Coordinator) & request further car crews, further detectives, etc
• Call FOC
• Advise DOI, SOO or Local Area Commander of your call sign, name, location of scene control point and boundary position of scene tape
• Protect any endangered physical evidence and record action in your notebook
• Record any action which might have changed the crime scene eg. Forced entry or moving objects
• Provide senior investigating officer and crime scene investigator with all information before you leave
• Obtain the signature of the senior investigating officer when you are relived of recording duties
Comply with Part 7 of LEPRA to obtain a Crime Scene Warrant when necessary
Scenario – Deceased
You attend premises in response to a request from a mobile supervisor in relation to a deceased person. On arrival you speak with a man who states that he arrived at the premises to take his brother to a local drug clinic but, on entering the bedroom, he had found his brother lying on the bed, apparently deceased. You go inside the premises, accompanied by the brother, and go to the bedroom in which the deceased is located. You recognise him as a known drug addict who appears to have died from accidental drug overdose.
What procedure would you follow?
There is scope for a wide variety of answers here, but the discussion should touch on:
- Check body, confirm no signs of life, arrange for an ambulance
- Confirmed deceased, secure crime scene
- Obtain consent from brother or if he lived there alone don’t need consent
- Call supervisor
- I will determine if suspicious or not (crime scene or coronial investigation scene will be established)
- Either way for unnatural death reportable to coroner
- Arrange for crime scene to be called through FOC-they will determine their attendance or not
- After crime scene have attended search body and fill out search of body form
- Attach body tag to left ankle-write details of police, identity of deceased
- Obtain details for P79A and obtain off brother circumstances leading to death, under which the body was found, associates of deceased, places he visited or any other important information
- Give the coroner pamphlet to the brother or Senior NOK if present
- Record any property removed in notebook-do not give back to family if suspicious. Exercise caution if giving back for a non certificate.
- If suspicious or unsure, retain property as exhibits
- Examine personal documents, records or mobile phone to try to find the source of the possible drugs, identity of supplier and perhaps it may even provide a link to a death elsewhere.
- Conduct identification of deceased with NOK or appropriate person so in this case the brother.
- If no one willing to identify deceased can be done at morgue by another person later or can be done by fingerprints, dental or DNA.
- Fill out identification form.
- Take any drugs at the scene as exhibits
- Call Government contractors-advise them of sex & weight
- Follow contractors to hospital, they collect life extinct certificate then follow them to morgue
- Check in body at morgue-ask them to wait out the front until you get there-online check in system-receipt
- Return to station, complete deceased event on COPS, complete p79A, email to supervisor to review who then submits to coroner
- Book in property on EFIMS as either an exhibit or miscellaneous property depending on the scenario. In this case I would book up as an exhibit.
- As per police handbook you also want to include the deceased criminal history relating to drug matters is included in the P79A.
- Toxicology reports will identify the drug and level of drug in the deceased system.
Crime Scene Management
What is the primary function of an Incident Scene Guard and what should be recorded on the log?
Deny access to any personnel who do not have a specific and relevant role to perform and record all persons who enter and exit the crime scene. Prevent the contamination of the crime scene and evidence being removed from the scene.
Recorded on the log should be: • Date • Time of entry • Time of exit • Name/rank/station of person entering or name/business if non-police personnel • Signature of person entering • Reason for entering
Scenario
You are the first investigator to arrive at the scene of an armed robbery at a local bank.
What steps should you take to ensure an appropriate investigative response?
Armed Robbery Standard Operating Procedures
• Prior to arrival, obtain all known information (from Police radio)
• Use officer survival skills on approach
• Request some Police vehicles to attend the scene and others to circulate, police dog/pol air
• Attend to any injured persons and arrange medical treatment
• Obtain initial information from scene and circulate information via Police radio i.e. number of offenders, their descriptions/clothing, description of VOI, weapons sighted, proceeds if known and last known direction.
Crime Scene Considerations
• Establish crime scene. S.90(1)(b) LEPRA
• Consider Crime Scene Warrants if required (S.94LEPRA)/ utilising LEPRA powers S.95 LEPRA
• Place guard at Crime Scene ensuring no unauthorised access
• Allocate an officer to commence and maintain a Crime Scene Log
• Identify any areas for crime scene examination i.e. identify fingerprints, shoe/boot imprints, consider areas locating DNA, and secure as per SOPs
• Secure any demand notes for crime scene examination
• In instances where shots are fired – inform Ballistics Unit. Secure spent cartridges, live cartridges or discharged projectiles
• Arrange Duty Officer or supervisor to attend
• Arrange Crime Scene Unit (CSU) & FSG through the FOC
• Organise a search of an area in consultation with Crime Scene Examiner for exhibits i.e. clothing, cigarettes, rope, sticky tape etc, getaway vehicles
Avenues of Inquiry and Considerations
• Identify victim(s) and witnesses and separate them to avoid contamination
• Inquire and locate any surveillance camera(s) and secure relevant footage
• Organise a canvass of the area for witnesses and possible CCTV footage from nearby locations.
• Do not comment to media regarding witness names, and make no comment at all concerning amount of property taken. Refer to Media Policy. Leave media to duty officer
• Contact and inform Robbery and Serious Crime Squad as soon as possible
• Victims of Crime Should be directed to Post Incidence Traumatic Counselling. Remember it is very traumatic to victim – Victim Care is important
You are the first investigator at the scene of a homicide.
Pending the arrival of experienced investigators, what is your responsibility with crime scene management and what actions would you take to achieve this?
ANSWER
• Assess the scene to establish what has happened
• Commence management of the crime scene, secure the crime scene to ensure police have control
What actions are taken to achieve this?
ANSWER
• Remove any non-essential personnel from the crime scene & record their details
• Crime scenes cordon off using crime scene tape
• Inner, outer perimeters and exclusion zones are established
• Appropriate entry and exit routes have been established
• Appoint crime scene guards
• Commence and maintain crime scene logs
• Establish authority to hold the crime scene (Permission; S40 Coroners Act), crime scene warrant S.94 LEPRA
• Consider LEPRA Powers Section 88 to 95 under Part 7 of LEPRA
• Exhibit preservation and security has been undertaken
• Consider natural elements like:
o Impending weather conditions
o Lighting
o Vehicle / pedestrian traffic
o Commercial considerations (impact on local businesses etc)
Take necessary steps to preserve vital evidence regarding the factors
• Become aware of media interest
• Consider appointing a Media Liaison Officer if required
• Ensure relevant forensic and specialist resources attend-call FOC
• Consider a canvass / search if required in consultation with Crime Scene Investigator
• Ensure communication with Crime Scene Investigator
• Appoint Exhibit Officer to assist the Crime Scene Investigator
• Consider preservation of forensic evidence upon offender and witnesses
• Maintain communication with Command / Management
• Record contemporaneous notes ASAP in notebook
Scenario
A number of similar breaking offences have occurred in your LAC. Each offence is linked by the fact that garages have been targeted and golf clubs have been stolen.
You made inquiries with pawn brokers and as a result you found that a local criminal has sold nine sets of golf clubs to pawn shops in the last month. In the process of making those inquiries you see that the same person carrying a set of golf clubs towards a pawn broker.
- What would you do?
ANSWER
• Stop the suspect – WIPE in accordance with LEPRA
• Inspect the property (golf clubs)
• Caution suspect
• Questions the suspect about the property (how & when they got it)
• Search the suspect (WIPE prior) – looking for implements (housebreaking) S21(1)(b) and/or other stolen goods-S21(1)(a)
• Seize the goods if suspected being stolen 21 (2) (a)
• Arrest / caution the suspect for Goods in Custody. Arrest for break, enter and steal if admissions made at the scene.
- What should you consider regarding the goods in custody offence?
ANSWER
• Suspicion is on the goods not the person
• Condition and value
• Existence of serial numbers, inscriptions, packaging or other identifying marks
• Suspect’s explanation as to the acquisition of the property-is it reasonable?
- The golf clubs are engraved with a drivers licence number. A check on this number reveals a report that indicates these clubs were stolen from a break and enter offence only one hour before the arrest. What offence could you charge the suspect with and what legal principle would assist you in determining the charge?
ANSWER
• He would be charged with receiving S188 or the actual break and enter, being B & E commit SIO- S112(1)
• Doctrine of Recent Possession
• The defendant has in his possession goods (golf clubs) which are proved to be stolen (COPS report) and it is shown that his possession of them at the time was recent to their theft (1hour), the court may because of the circumstances of their possession, in the absence of a credible explanation by the defendant, come to the conclusion that he is either the thief of the goods or a guilty receiver.
• Section 121 of Crimes Act 1900 should be canvassed regarding alternative verdict for Larceny or Receiving, whichever of the 2 offences is subject to the lesser punishment. Larceny carries 5yrs, Receiving involving a vehicle is 12yrs or receiving property for serious indictable is 10 yrs or receiving property for minor indictable is 3yrs.
- Is there anything further you would do regarding the other sets of golf clubs?
ANSWER
• Review the incidents and identify similar features (modus operandi)
• Identify if there is any evidence; eyewitness, CCTV or forensic-DNA/fingerprints
• Interview the suspect in relation to each of the incidents-check pawn slips
• Other offences may include
o Break enter and steal S112(1),
o Receiving S188
o Goods in Custody S527C
o Obtain benefit by deception (when statute of limitations elapsed for goods in custody)-6 months for GIC S192E
o Dealing with property suspected of being proceeds of crime S193C
o Furnish false / misleading particulars to a licensee (Pawnbrokers & second hand dealers Act) S24
o Timeframes (recent possession) and identifiable property will influence decisions
Scenario – BREAK ENTER AND STEAL OFFENCES
Trevor and Barry have been watching the local RSL Club at Westmead for several days. For a fortnight they have been planning to break into the gaming area of the club outside of club trading hours and steal cash from the coin trays in the card machines. Trevor and Barry are sure that nobody will be inside the club when they break into the club.
On the evening of the job, Trevor and Barry force their way through the two glass doors and gain entry into the gaming area of the club. They immediately start to work on removing a coin tray from the first card machine. Barry starts to place coins from the card machine into a black bag.
At this stage what is the most appropriate offence that you would charge both Trevor and Barry with?
ANSWER
Aggravated Break Enter and Commit Serious Indictable Offence as per S112 (2) of The Crimes Act 1900 as under Section 105A of the Crimes Act 1900 each was in company with the other.
Aggravated offence is a 20 year offence opposed to 14 years for non-aggravated offence.
QUESTION – PROPERTY CRIME
BREAK & ENTER – AGGRAVATED CIRCUMSTANCES
Outline the circumstances of aggravation as defined under Section 105A of the Crimes Act 1900 as they apply to Section 106 – Section 115A:
“ACCADK” “IID”
ANSWER
Circumstances of aggravation means in circumstances involving any one or more of the following:
(a) the alleged offender is armed with an offensive weapon, or instrument,
(b) the alleged offender is in the company of another person or persons,
(c) the alleged offender uses corporal violence on any person,
(d) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person,
(e) the alleged offender deprives any person of his or her liberty,
(f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed.
Outline the circumstances of special aggravation under Section 105A of the Crimes Act 1900 as they apply to Section 106 – Section 115A:
circumstances of special aggravation means circumstances involving any or all of the following:
(a) the alleged offender intentionally wounds or intentionally inflicts grievous bodily harm on any person,
(b) the alleged offender inflicts grievous bodily harm on any person and is reckless as to causing actual bodily harm to that or any other person,
(c) the alleged offender is armed with a dangerous weapon.
Occurs immediately before, or at the time of, or immediately after any of the elements of the offence concerned occurred.
Dangerous Weapon: firearm, or an imitation firearm within the meaning of the Firearms Act 1996 or a prohibited weapon within the meaning of the Weapons Prohibition Act 1998 or a spear gun.
QUESTION – PROPERTY CRIME
EXPLAIN THE “DOCTRINE OF RECENT POSSESSION” AND HOW IT MAY BE APPLIED I.E. AN EXAMPLE
The defendant has in his possession goods which are proved to be stolen, and it is shown that his possession of them at the time was recent to their theft, the court may because of the circumstances of their possession, in the absence of a credible explanation by the defendant, come to the conclusion that he is either the thief of the goods, or a guilty receiver.
It should be noted that the doctrine of recent possession does not” presume” the defendant to be guilty, as he is presumed innocent until proven guilty, but a person’s possession of goods in certain circumstances as outlined above can be circumstantial evidence of guilt. The “doctrine of recent possession” is no more and no less than a piece of circumstantial evidence. The strength of the circumstance is sometimes considered to be stronger where the time lapse between the theft and the recovery of the property is small.
EXAMPLE: Proceeds of a break, enters and steal found on a person half an hour after an offence or similar.
6 POINT CHECKLIST
To satisfy the doctrine of recent possession you must prove:
• Identity of offender
• The offender had knowledge of possession of the goods
• The offender had knowledge of nature of the goods (knew stolen)
• The goods are proved to be stolen
• The offender does not have creditable explanation about how they came into possession of the goods, any explanation must be tested
• The recency of the possession to the theft, which is case by case basis
Bruce V R 1987
When no explanation is provided. Doesn’t constitute an exception to the right to silence but from the accused unexplained possession of being in possession of the stolen property it leaves the court to draw the conclusion that he is either the thief or guilty receiver.
QUESTION – PROPERTY CRIME
Scenario – GOODS IN CUSTODY-S527 C CRIMES ACT 1900
You conduct a lawful search of a car as a result of your reasonable cause to suspect that stolen property is in the vehicle. During the search you locate a DVD Player with the serial numbers ground off. You are able to determine through a COPS check that the DVD Player was stolen from a Break, Enter and Steal a month ago. When questioned the driver states he ‘got it off a mate’ and he did not know it was stolen.
QUESTIONS
- When conducting your questioning in relation to the Goods in Custody offence what should you keep in mind?
- Attach suspicion to the goods not the person
- Find out all you can about the property, it’s condition, its value, whether the serial numbers have been removed, is it still in its original packaging
- Question the person at length about the circumstances surrounding their acquisition of the property; where they obtained it, from whom, how much they paid for it, if they knew the seller, whether a recept was issued, how much they think it is worth
- Make a list of all grounds which a reasonable person might suspect the property to be stolen or otherwise unlawfully obtained. Depending on the circumstances these might include, the person purchased it in a pub, the person paid a price well below retail value, the person purchased it from an unknown person, no receipt provided, serial numbers have been removed
- Brain storm appropriate questions with your colleagues prior to interviewing the suspect
- Ensure that your interview is a thorough one
- You need to establish facts exist which would lead a reasonable person to believe the property is stolen or unlawfully obtained. You need to prove the person was aware of the existence of those facts at the time the property was in their custody
- What is the defence to a Goods in Custody charge?-s527C (2)
• If they can satisfy the court on the balance of probabilities that they had no reasonable grounds for suspecting the goods were stolen or unlawfully obtained
• Do not wait until the matter is before the court to deal with the defence, turn your mind to it a time of questioning
QUESTION – PROPERTY CRIME
Scenario – BREAK, ENTER AND STEAL
A break, enter and steal is committed upon a house in your LAC. Proceeds of the offence are a TV, DVD Player, Surround Sound System and numerous Movie DVDs and Music CDs. A red Holden Commodore sedan with white mag wheels is seen by a neighbour leaving from the rear access lane near the house with 2 male occupants.
You observe and stop a car matching the description of the suspect vehicle half an hour after the offence. Whilst questioning the driver you notice what appears to be a TV lying on the back seat of the car, partially covered by a blanket. You proceed to search the vehicle and locate the DVD player, surround sound system five speakers and many DVDs and CDs in the boot of the car.
The driver of the car will not offer an explanation for how he came into possession of the goods or who the owner is. You can positively identify the goods were stolen from the break, enter and steal from a licence number engraved into the back of the TV, DVD player and Surround Sound System.
- What is the Doctrine of recent possession?
When the person is proven to have, or have had, possession of property which can be shown by evidence to have been stolen, and that possession is recent to the time of the theft, and the offender fails to offer a credible explanation for their possession of the property, then a jury is entitled to draw the conclusion from the offenders unexplained possession of the goods that the person is either the thief or the guilty receiver.
- How do you satisfy the Doctrine of Recent Possession? You must prove (6 point checklist);
• Identity of offender
• The offender had knowledge of possession of the goods
• The offender had knowledge of nature of the goods (knew stolen)
• The goods are proven to be stolen
• The offender does not have creditable explanation about how they came into possession of the goods, any explanation must be tested
• The recency of the possession to the theft, which is case by case basis - What would be the best course of action for this scenario?
• Seize the goods (S.36 (3) (a)
• Arrest, interview and charge for the offence of Aggravated Break, Enter & Commit Serious Indictable Offence as per S112(2) each was in company with the other.
QUESTION – PROPERTY CRIME
Scenario – ASSETS CONFISCATION
You arrest a person who has a large quantity of cash that you believe are the proceeds of crime. You decide to charge the person under section 193C of the Crimes Act 1900 (Dealing with property suspected of being proceeds of crime). Cite 5 reasons why you would prefer a charge under this section, as opposed to a more conventional charge of Goods in Custody under Section 527(C)(1) of the Crimes Act 1900?
Reasons include:
- This section requires a reasonable suspicion that the property is proceeds of crime
- There is a reverse onus on the defendant to prove the property is not the proceeds of crime
- Proof is based on the balance of probabilities
- Gaol term has two section one below $100,000 is 3 years whilst above $100,000 is 5yrs, as opposed to 6 months for GIC unless MV which is 1yr
- Fine is ten times that of GIC (50 penalty units which $500 as opposed to 5 penalty units which is $50)
- There is a tracing provision (Doesn’t have to be exact property derived from the offence)-located in definition section. This includes property which may have been converted or exchanged.
- No need to supply the type of offence or location/jurisdiction
- Offence works for property transferred electronically-includes money, this is defined in the definitions section.
QUESTION – SEARCH WARRANTS
Scenario 1
You have been tasked with preparing an application for a search warrant.
- What information should be included in the application?
The information should be sufficient and pass the test of integrity:
• Date of application
• Name of applicant
• The address and description of the premises to be searched
• Accurate description of the subject ‘thing’ to be searched for
• Link to relevant searchable offence
• Establish will be there within 72 hours
• In the grounds of the application the following should be covered:
-Particular areas to be searched e.g grounds, structures
-the scope of the proposed search
-mention of the subject thing whether it is locked in a safe or vehicle
-Information must be detailed, relevant and accurate
-Intelligence should be timely and recent
• Clause 11 if required – an eligible issuing officer may at any time issue a certificate to the effect that the officer is satisfied that: a document or part of a document that could disclose a person identity and that if disclosed is likely to jeopardise that or any other person safety or that it could seriously compromise the investigation of any matter. The document or part of the document to which the certificate relates is not to be made available for inspection.
QUESTION – SEARCH WARRANTS
Scenario 2
You have been appointed as the case officer to run the execution of the warrant.
What roles are performed when conducting a search warrant?
What are the duties of those roles?
Operation Commander:
• Has carriage and overall responsibility for the management and conduct of the operation
• Reviews the operational orders and risk assessment
• Ensure authority provided by the LAC to execute the search warrant in accordance with the Operational orders
Warrant holder/case officer:
• Officer in charge
• Creates Op orders, Risk Assessment & risk treatment plan
• Allocates roles to all staff & ensures roles are understood
• Identifies and collects resources
• Conduct briefing
• Liaises with occupiers, issues occupiers notice, introduces all officers
• Conducts formalities of warrant
• Conducts de briefing/review of operation
Independent observer:
• Must be a substantive Sergeant or above
• Ensures fairness during warrant.
• Usually a duty officer or Sergeant from the LAC where the SW is occurring.
• Not connected with investigation in any way.
• Endorses the field exhibit seizure book
Safety officer:
• Identifies safety issues from the operational orders
• Ensures health and safety matters are discussed at commencement of briefing
• Assists case officer on safety aspects during the operation
Searching officers:
• Conduct a role in an ethical and professional manner
• Ability to assume role of case officer should the need arise
• Conduct a safety walk through with video operator. Ensuring location is safe before searching is commenced.
• Locates items of interest and leaves them in situ for recording.
• Maintain security and preserve the scene
Video officer:
• Will conduct a walk through of the location filming before searching is commenced
• Records entire search warrant filming items when they are located in situ
• Entry of recordings as exhibits
Exhibit officers:
• Ensure all necessary equipment is ready and available
• Prepare a scene plan and record exhibit location position
• Ensure all exhibits have been photographed and videotaped in situ
• Accurately record the seizure of all exhibits by recording time found, where it was found, finder details and detailed description of the item.
• Ensure integrity of all exhibits by labelling, packaging and retaining them
• Allow occupier to view and sign the exhibit book as well as having it endorsed by the independent officer
• Responsible for continuity, returning to station, ensuring exhibits are booked up on EFIMS.
QUESTION – EXHIBITS
Scenario
As an investigator, you execute a search warrant and seize a number of exhibits.
What procedures need to be followed in relation to the exhibits from detection to disposal?
- Wear gloves
- Photograph the exhibits in situ if possible
- Complete the Property Seizure / Field Exhibit Book-record time, who found it, where it was found & detailed description of the item
- Package and seal the items separately, sign and label correctly
- Ensure the occupant and Independent Officer signs the property seizure / field exhibit book
- Book exhibits into EFIMS and secure in Exhibit Room, generally of the LAC in which search warrant was conducted
- If further examination is required, then ensure packaging labelled appropriately
- Create and submit any appropriate analysis jobs in EFIMS, organise transportation to FASS, consider time frames for certain evidence, SAIKS, petrol etc.
- Retain exhibits for court purposes, or return exhibits to owner, dispose at earliest opportunity
- Ensure continuity of possession throughout
QUESTION – CORONIAL INVESTIGATON
Scenario – Deceased Persons
You attend the scene of a deceased elderly person at the request of the supervisor. The supervisor tells you the police have found an elderly male deceased on the bed at the premises. No relative is present and no inquiries have been commenced. Upon further investigation you establish there are no suspicious circumstances. For non-suspicious circumstances Police have certain actions and responsibilities for coronial matters.
What are the actions and responsibilities?
- DO NOT assume the death is the result of natural causes until a doctor certifies it is
- Make inquiries with the family, neighbours etc to determine when last seen alive
- Make inquiries about the deceased doctor and whether that doctor has seen the deceased within the last 6 months and is willing to issue a Death Certificate (indicating the medical cause of death)
- If a Doctor will issue a Death Certificate, then the body may be released to the Funeral Directors or family. If NO Death Certificate will be issued, the body will always be admitted to the Morgue and the death reported to the Coroner
- Notify Forensic Services Group (they will determine their attendance)
- Arrange for government contractors to attend
- Search the body at the scene in the presence of the supervisor and complete search form.
- Put a body tag on the left ankle of the deceased
- Search the premises for identification, medical prescriptions/medications and any personal valuables. Make detailed notes of the clothing of the deceased and the position of the body
- If possible organise for a family member or appropriate person to attend
- Get the NOK to ID the body and compete the Identification Form
- Where possible hand over any valuables, personal items to a family member or appropriate person. Record in your notebook and have the person sign as a receipt
- Gather as much information as you can for the P79A
- Attend and arrange with government contractors to transport the deceased to a hospital for a medical practitioner to pronounce life extinct
- Obtain a Certificate Pronouncing Life Extinct
- Attend the morgue with government contractors who transport the deceased
- Book in / check in the deceased at the morgue
- Identify and search the deceased with the morgue attendant
- Take any items from the deceased and complete an entry in your notebook
- Complete a COPS entry and P79A form ASAP and submit to the supervisor
- Record any property as miscellaneous property and book into EFIMS
- If the deceased relative/NOK resides in your LAC, attend the residence to deliver the death message. If not organise other Police to attend
- Enquire if the relative/NOK wishes to identify the deceased. Make arrangements or advise the morgue of their wishes. Also enquire if they request an inquest in to the death
- Organise for the relative/NOK to attend the Police Station to collect and sign for the property
QUESTION – CORONER’S PROCEDURES
Scenario : You are an investigator on duty when a death is reported. What categories of deaths require Mandatory Notification to the Coroner?
ANSWER
Section 6 of The Coroners Act 2009: Mandatory Notification to the Coroner required for a death in NSW which occurs:
(A) the person died a Violent or unnatural death
(B) the person died a sudden death the cause of which is unknown
(C) the person died under suspicious or unusual circumstances
(D) the person died in circumstances where the person had not been attended by a medical practitioner during the period of 6 months immediately before the person’s death
(E) the person died in circumstances where the person’s death was not the reasonably expected outcome of a health-related procedure carried out in relation to the person
(F) the person died while in or temporarily absent from a declared mental health facility within the meaning of the Mental Health Act 2007 and while the person was a patient at the facility for the purpose of receiving care, treatment or assistance under the Mental Health Act 2007 or Mental Health (Forensic Provisions) Act 1990 .
• Where no cause of death certificate is issued
• While in Police or other lawful custody or while escaping or trying to escape from a police officer or other lawful custody.
• During the course of Police operations
• While in, or temporarily absent from, one of the following, while an inmate:
o An admission centre or mental hospital, within the meaning of the Mental Health Act 2007
o A residential child care centre licensed under the Children (Care & Protection) Act 1987
o A facility within the meaning of the Community Welfare Act 1987
o A detention centre within the meaning of the Children (Detention Centres) Act 1987
o A prison within the meaning of the Prisons Act 1952, or a lockup
o A residential centre for handicapped persons licensed under the Youth and Community Services Act 1973.
o In all circumstances where the death is the result of a motor vehicle crash
