Investigations 10-13

Question 1

What do you need to identify when collecting evidence?

Answer 1

1. Is it Relevant? Reliable and Fair?

2. Original, Real and Documentary evidence.

Question 2

What is the three test rule to assess evidence?

Answer 2

i. Prima Facie – Evidence remains that still covers all the elements
ii. Sufficiency – Enough evidence remains to form a reasonable prospect of conviction.
iii. Public Interest – Is it in the interest of the public to spend the courts time on this matter.

Question 3

Define ‘Recording Particulars’?

Answer 3

the process of using PEACE (in an informal manner) to interview a person to collect sufficient information to create an incident on COPS.

Question 4

Define ‘Obtaining a statement’?

Answer 4

the process of using PEACE to interview a person (usually with a witness/victim) to collect evidence to assist with your investigation and in presenting that information in the form of a statement (contained in a Brief of Evidence) to the defence.

Question 5

Define ‘Interviewing a suspect’?

Answer 5

the process of using PEACE (in a formal manner) to interview a person (usually a suspect) to collect evidence to assist your investigation and present that information in the form of a record of interview (electronic or otherwise) to the court.

Question 6

When would you just obtain particulars when investigating?

Answer 6

From the information provided by victim/witness, it appears that you have no avenues of investigation, so you decide not to obtain a statement. e.g No witnesses, no sufficient evidence, Did not see suspect.

Question 7

When would you obtain a statement?

Answer 7

When there is sufficient evidence for investigation.

Question 8

What should you put into your notebook when recording particulars with a non-eyewitness/victim?

Answer 8

• Time, Date, Place, Incident type.
• Victim Particulars
• Location of incident
• Dates and time incident took place
• Vehicle Description
• Value
• Other relevant information

Question 9

What must be included in a written statement to satisfy Criminal Procedure Act 1986 (NSW), Section 283B?
(Witness interviews)

Answer 9

Basically what should be at the beginning of a written statement.

• Must specify the age. (Never date of birth)
• Must be Endorsed. (e.g This statement made by me accurately…)
• Must be written in a language of which the person giving the statement has a reasonable understanding of the endorsement.
• If endorsement is in a language other than English, must contain a translation of the endorsement annexed to the statement. (just to confirm the endorsement is correct.)

Question 10

What are the requirements for Criminal Procedure Regulation 2017 (NSW), Clause 9I? (Long one but remember the Law and what it is in a nutshell)

Answer 10

(1) For the purposes of section 283B (3) of the Act, a written statement must be endorsed as follows— (this statement made by me accurately sets out…)
(2) In the case of a person who is under the age of 18 years, or an adult who is apparently of appreciably below average intelligence, it is sufficient if the endorsement includes—
(a) words to the effect that the statement is true, or
(b) words to the effect that the statement contains no lies.
(3) A written statement that is in a language other than English and has a document purporting to contain an English translation of the statement or part annexed to it in accordance with section 283B (5) of the Act must also have annexed to it a certificate by the translator stating his or her qualifications and certifying that the translation is a correct translation of the document.

Question 11

Criminal Procedure Regulation 2017 (NSW), Clause 9J (1) and (5)
(WILL BE EXAMINED ON THIS)

Answer 11

(In a nutshell, it is about what you shouldn’t add to the written statement when giving it to the accused. UNLESS if it materially relevant to the offence. e.g it took place at the address)
9J Addresses, dates of birth and phone numbers not to be disclosed on written statements:
(1) A copy of a written statement served on an accused person must not disclose the address, date of birth or telephone number of the person who made the statement or of any other living person, unless—
(a) the address, date of birth or telephone number is a materially relevant part of the evidence, or
(b) a Magistrate makes an order permitting the disclosure in the statement.
(5) An address, date of birth or telephone number that must not be disclosed may, without reference to the person who made the written statement, be deleted from the statement, or rendered illegible, before the statement is served on the accused person.

Question 12

What does Criminal Procedure Regulation 2017 (NSW), Clause 9K entail?

Answer 12

(1) A written statement must be signed by the person who made the statement.
(2) If the person is unable to sign the written statement, the statement may be signed by another person with the consent of and in the presence of the person who made the statement.
(3) The other person must sign an endorsement on the statement to the effect that the person signed the statement on behalf of, with the consent of and in the presence of the person who made the statement.
(4) A written statement must also be signed, as a witness, by a person who witnessed the signing of the statement by the person who made the statement or by another person signing on the maker’s behalf (if applicable).

Question 13

What is an eye witness?

Answer 13

is a person who has witnessed the offence.
Examples:
1. Victim of assault
2. A security guard who witnessed an assault
3. Owner of a mailbox who witnessed an offender damage the mailbox.

Question 14

What is a non-eyewitness?

Answer 14

non-eyewitness is a person who has relevant information that assists the investigation (for example, proof of an element/s). However, they did not witness any part of the offence taking place.

e. g
1. A taxi driver who drove offender home after an assault
2. Hospital staff who treated a victim’s injuries
3. Owner of a mailbox who did not witness the damage occur (commonly called an ownership statement).

Question 15

What purpose does the Non-eyewitness interviews bring to court?

Answer 15

In such cases, the witness interview will seek to establish the factual elements of the offence rather than assisting the witness to recall an event. Once the factual elements of the offence have been established from the witness, they can be recorded in the form of a written statement.

Question 16

What goes into the Planning and preparation stage of PEACE?

Answer 16

PURPOSE: (the reason for which something is being done)
• To ascertain the truth about the matter under investigation
AIMS: (desired outcome)
• To ascertain the extent of the witness’s knowledge of the matter being investigated
OBJECTIVES: (things being sought, specific goals to be achieved)
Legal considerations:
Age:
• If young, is a parent or guardian required?
• If elderly, would a relative, friend or neighbour of the witness’s choosing be helpful?
Impairment:
Support: witness require the services of a language interpreter?
Is the witness vulnerable
Representation:
• Does the witness require or request legal representation?
- Are you the right person to interview them? would they be more comfortable with a woman or someone of their culture?

Question 17

Define hearsay evidence.

Answer 17

Second hand information. He/she didn’t hear, see or feel it. Someone else told them.
Exceptions can apply.
e.g Hearsay for non hearsay purpose. Someone tells you that another has a knife in public, so you will have reasonable suspicion to search the person due to that fact and will be admissible in court due to the reasonable suspicion. ‘In for one in for all.’
- Tags and labels: bottle has label on it and whatever is in there it is in fact what is in there.
- Business records: Bank statements, rosters.
- Phone records: Breach apprehended order. E.g they sent the text message from this phone number, and proof in court that they did in fact send it.
- Person’s health: You can tell the court what the felt after the fact. E.g hit on head and you tell court how they felt because they told you how they felt.

Question 18

What does Evidence Act 1995 (NSW), Section 59 (1) entail?

Answer 18

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
The only person who decides what is hearsay is the magistrate or judge.
The hearsay rule only comes into effect when a witness enters the witness box and tries to tell the court what they saw or heard before they got into the witness box. The witness is expecting the court to take their word for it, which of course the court is very reluctant to do.
So, therefore, to comply with Section 59 everything said from the witness box is hearsay and therefore inadmissible.

Question 19

What type of questions would you ask when recognising focal points for questioning?

Answer 19

1. (TEDS) Describe where you were walking?
2. (5WH) Who were you walking with?
3. Closed Question: Did you give permission for anyone to break your car window?

Question 20

What is a Fact sheet used for?

Answer 20

A Facts Sheet is a document the prosecutor presents to the court when an accused person enters a plea of guilty to a criminal offence.
Their importance in communicating to the court the details of the police allegation (and the elements of the offence) against the accused cannot be overstated.

Question 21

What are the components of a fact sheet? (IMPORTANT)

Answer 21

• KEY INGREDIENTS include Antecedents, Disclosure and elements of the offence/s
• ADDITIONAL INGREDIENTS include type and volume of evidence, investigation procedures, admissions and your reasonable cause to suspect.
• PROCEDURAL INGREDIENTS include Co-offenders, victim/s, injuries, property/drug value, compensation, expert evidence

Question 22

What goes into the Antecedents section of a fact sheet?

Answer 22

• The antecedent is included in the Facts Sheet to provide the court with information on the accused person when a penalty (good behaviour bond, fine, custodial sentence, etc.) is being imposed
- The antecedents will cover whether the accused is employed, for how long they have been employed, what they earn, whether married, if they have dependents, etc.

Question 23

What goes into the Full Facts section of a Fact sheet?

Answer 23

Chronological summary (narrative) in third person of the details of the offence. ALL ELEMENTS of the offence MUST be covered. Focus is on the actions of the accused and what they actually did.

Question 24

What is the aim of a police statement?

Answer 24

A police statement is to provide a truthful, accurate and chronological account of police observations and actions in connection with a matter. The content of the statement must comply with relevant legislation, policy and procedure. This will ensure the admissibility of the evidence and assist in either proving the offence in its entirety or establishing some of the elements of the offence. A police statement is a formal way by which the prosecution enters into evidence, and accounts for, the continuity of any exhibits (physical evidence) that are required as part of the prosecution’s case.

Question 25

What entails in Criminal Procedure Act 1986 (NSW), Section 283B (2)? (IMPORTANT)

Answer 25

(2) A written statement must specify the age of the person who made the statement. (DO NOT DISCLOSE DATE OF BIRTH UNLESS RELEVANT TO CRIME)

Question 26

What does Local Court Rules 2009 (NSW), Regulation 3.13 (2) entail? (IMPORTANT) (BASICALLY THE FORMAT AND THE RULES FOR THE FIRST AND SECOND POINT IN A POLICE STATEMENT)

Answer 26

(2) A written statement that is included in a copy of a brief of evidence must—
(a) specify the name and age of the person who made the statement, and
(b) be endorsed in accordance with subrules (2A) and (2B) by the maker of the statement, and
(c) be written in a language of which the person who made the statement has a reasonable understanding, and
(d) be signed by the person who made the statement.
(2A) Subject to subrule (2B), an endorsement referred to in subrule (2)(b) is to be in or to the effect of the following form—
“This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false or do not believe to be true.”
(2B) In the case of a child, or an adult who is apparently of appreciably below average intelligence, it is sufficient if the endorsement includes—
(a) words to the effect that the statement is true, or
(b) words to the effect that the statement contains no lies.

Question 27

What does Evidence Act 1995 (NSW), Section 33 entail?

Answer 27

1) Despite section 32, in any criminal proceeding, a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer.
(2) Evidence may not be so given unless—
(a) the statement was made by the police officer at the time of or soon after the occurrence (Must be done within days from offence not weeks) of the events to which it refers, and
(b) the police officer signed the statement when it was made, and
(c) a copy of the statement had been given to the person charged or to his or her Australian legal practitioner or legal counsel a reasonable time before the hearing of the evidence for the prosecution.
(3) A reference in this section to a police officer includes a reference to a person who, at the time the statement concerned was made, was a police officer.

Question 28

For a police statement to be read out in court, the statement must be MSG:

Answer 28

• MADE at the time or soon after the event
• SIGNED when it was made
• GIVEN to the accused person or their legal representative a reasonable time prior to the hearing

Question 29

What are the two main points to cover when endorsing a child or a person with average intelligence?

Answer 29

The endorsement for a child

(2) In the case of a child, or an adult who is apparently of appreciably below average intelligence, it is sufficient if the endorsement includes:
(a) words to the effect that the statement is true, or
(b) words to the effect that the statement contains no lies.

Question 30

What does Evidence Act 1995 (NSW), Section 32 entail?

Answer 30

This is only when you can look at your police statement if it is within days of the offence has taken place not weeks or months. If so, you will have to know your statement verbatim under Section 33, for the fact that it may be unreliable if the offence took place weeks or months ago.

Question 31

In a police statement, under the Evidence Act 1995 (NSW), Section 33, what does this Mean?

Answer 31

The statement should be made as soon as possible after the occurrence of the event, so the evidence is fresh in the maker’s mind, and that it complies with the Evidence Act 1995 (NSW), Section 33, and so it can be read in court instead of being recited by heart.

Question 32

What is the most important Information from a caller reporting a crash?

Answer 32

• Location of the crash
• Injuries/persons trapped
• How many vehicles involved
• Time of crash
• Particulars of the caller (at least name and contact details)

You need to prioritise the first three items, because it is necessary information with which to consider instigating immediate action of either/or organising for a car crew to attend, as well as any other service as required (for example, Ambulance, Fire and Rescue, Roads and Maritime, Power and Water, SES, etc.)

Question 33

priorities when attending and investigating a crash:

Answer 33

• Attend, assess, advise
• Attend to the welfare of injured
• Identify drivers and witnesses
• Breath test drivers where possible
• Preliminary point of impact
• Ensure the free flow of traffic
• Investigate and record details
• Adjudicate on who is at fault & deal with such under relevant legislation

Question 34

What are the first initial piece of information do you need for a crash in relation to notebook entries?

Answer 34

• Date, place, time of the crash – TOC

* Time of arrival at crash – TOA

Question 35

Vehicle 1, should be the person at fault. What information do you need for vehicle 1?

Answer 35

• That is Reg. No., make, model, colour, and extent of damage (upon attending a crash and after providing a situation report (sitrep) of the crash, police are usually able, from visual observations and any comments initially made by parties involved in the crash, to determine the vehicle most likely to be at fault, and that is the vehicle (and driver) with which to commence recording details – the normal convention is to classify the vehicle you believe to be at fault as Vehicle 1.

Question 36

Driver 1 details (Driver 1 should be the driver at fault), entail what?

Answer 36

• Being the driver of Vehicle 1 (the details required here include licence details to be copied directly from their driver’s licence – that is, name, address, licence no., class, etc. You will also need to ask Driver 1 relevant questions for the subsequent COPS entry – for example, how many years driving experience, was seat belt worn, and were vehicle lights turned on – suggest that students refer to a COPS entry completed for a traffic crash to see a full list of required information. Remember to always include a phone number, as that makes it easy to contact drivers as and when needed at a later stage).

Question 37

Driver 1 crash explanation Explanation should have what in it?

Answer 37

• Every crash investigation should begin with the question, “Were you the driver of this vehicle, registration number …, when it was involved in a crash on … Street/Road at … time today?”
• The investigation should then move to include the driver’s explanation, (that is, “Can you tell me what happened?”)

Question 38

What must a driver do In accordance with Road Rule 2014 (NSW), Rule 287

Answer 38

the driver is required to provide a verbal explanation of the circumstances surrounding the crash, and the explanation provided should be recorded in the driver’s exact words. There is no need to caution prior to this explanation because providing the explanation is a legal requirement that must be complied with.

Question 39

Referring to Section 139(5)(a) of the Evidence Act 1995 (NSW), a police officer has the power to do what?

Answer 39

the police officer believes ‘that there is sufficient evidence to establish that the person has committed an offence that is the subject of the questioning.’
ANY OTHER QUESTIONS TO CLARIFY OTHER THAN THE FIRST TWO QUESTIONS MUST CAUTION.

Question 40

Why should Signature of Driver 1 be added at the end of Driver 1’s notebook entry?

Answer 40

• The explanation, any further caution, and questions and answers should either be read back to Driver 1, or Driver 1 be allowed to read such detail and then, as a matter of fairness in terms of the recorded information, Driver 1 should be asked/provided with the opportunity to sign the notebook entry as a true and accurate record of what they have said/provided.

Question 41

Driver 2 should not be what?

Answer 41

The offending driver. Take particulars as you would driver 1.

Question 42

What are the statute of limitations for traffic matters?

Answer 42

Complete within 6 months.