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ADPP CLASS 355 > Law and Investigations Finals > Flashcards

Law and Investigations Finals Flashcards

1
Q

What section of LEPRA covers timeouts in an investigation period?

A

Law Enforcement (Powers and Responsibilities) Act 2002 s117: Certain times to be disregarded in calculating investigation period

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2
Q

What is considered a reason for a time out in an investigation period?

A

To allow time for any of the following:
-Any time that is required to convey the person from place of arrest to facilities for investigation.

-Any time that is required to allow the person to communicate, wait for the arrival of or consult with a friend, relative, guardian or legal representation.

-For medical attention.

-Any time required to arrange for an or their arrival interpreter.

-Any time required to arrange for an identification parade.

-Refreshments or bathroom breaks.

-Any time that is required to apply for a detention warrant.

-Any time that is reasonably required to carry out forensic procedures.

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3
Q

What is classified as a major traffic crash?

A

A major traffic crash:
Is classified by the NSW Police force as a collision between 2 or
more vehicles, or any other accident or incident involving a vehicle on a road or road
related area in which;
• someone is killed or injured, or
• a party fails to stop and exchange particulars, or
• a driver is allegedly under the influence of intoxicating liquor or a drug

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4
Q

What qualifies as an injury in a crash?

A

Injury relating to crashes:
A person is considered as injured for the purpose of classification as a major traffic crash
if they seek immediate medical treatment from a qualified medical practitioner by being:
• transported to hospital by ambulance and
• treated and/or admitted to a hospital
• or by being treated for that injury by a qualified medical practitioner.
• or by being treated at scene for an injury received arising from the crash by a member of the NSW Ambulance Service.

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5
Q

When will police attend any crash regardless of whether it is major or minor?

A

Police will attend any crash irrespective of if it is major or minor when;
• A person is trapped, killed or injured.
• A driver appears affected by alcohol or drugs.
• A driver/owner has failed to stop or exchange particulars.
• There are hazards present (e.g. leaking fluids, damage to power poles / structures, etc)
• There is currently or likely to be or obstructions to the safe and free flow of traffic.
• A heavy vehicle (Gross Vehicle Mass > 4.5t) requires towing (re: defect notice).
• Anyone involved in the crash is significantly distressed needing police assistance.
• A participant in the crash on reasonable grounds has requested police attend.
• Any other issue is exists requiring police attendance (eg. Aggressive driver,
• criminal behaviour, media interest, etc)

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6
Q

What does rule 287 of the Road Rules require a driver to do?

A

A driver involved in
a crash MUST give required particulars to police as soon as possible, but in exceptional
circumstances, within 24 hours of the crash, if
 anyone is killed or injured
 a driver does not give their required particulars to anyone involved in the crash, including owners
of property
 a vehicle involved is towed or carried away
 a police officer asks for the required particulars
For the purpose of the rule required particulars are
 the driver’s name and address, and
 the name and address of the owner of the driver’s vehicle, and
 the vehicle’s registration number (if any), and
 any other information necessary to identify the vehicle,

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7
Q

What are the three criteria to determine the classification as either a major or minor crash?

A

Was any person killed or injured?
Did any of the drivers leave the scene without providing their details (in accordance with Road Rules 2014 (NSW), Rule 287)?
Was any driver involved under the influence of alcohol or other drugs?

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8
Q

What are your considerations when investigating a crash scene?

A
  1. Environmental.
    Environmental factors include road, weather, lighting.
  2. Vehicle.
    Damage to vehicles should be examined and considered in the context of the crash. Does the damage to the vehicle/s reflect what is reported to have occurred.
  3. Human factors.
    Drugs and Alcohol, Driver error or misconduct, fatigue, medical conditions.
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9
Q

What criteria must be satisfied to obtain a blood sample from a driver?

A

You must satisfy the following criteria to have the sample tested for drugs.
• The crash resulted in a fatality, or
• Police MUST have evidence or reasonable suspicion, the driver was under the influence of a drug other than alcohol. (Schedule 3, Part 4 – Division 2 - 24(8) Road Transport Act 2013 (NSW)

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10
Q

What section covers destroy or damage property?

A

Crimes Act 1900 s195

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11
Q

What are the elements of destroy/damage property?

A
  1. The accused,
  2. Intentionally or recklessly
  3. Destroys or damages property
  4. Belonging to another.
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12
Q

What is a transfer of malice?

A

The concept of transfer of malice is a legal principle. A person’s intent to damage property, or to injure another person, is transferred to an outcome that results in damage or injury caused to other property or to another person, even though the offender did not intend to cause the damage or injure the person. The actual target or recipient is not the original intended target or recipient.

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13
Q

What is temporal coincidence?

A

A requirement of Common Law that the actus reus and mens rea must coincide in time.

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14
Q

What section and act is Break enter and commit SIO?

A

s112 Crimes Act (1900).

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15
Q

What are the elements of Break enter and commit SIO?

A
  1. Accused
  2. Breaks
  3. Enters
  4. Dwelling house or other building
  5. Committed a serious indictable offence
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16
Q

What are two the ways in which a Section 112 offence can be committed?

A

• (1)(a) break and enter and commit serious indictable offence
• (1)(b) already in premises, commit serious indictable offence and break out.

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17
Q

What are some examples of an actual break?

A

• Smashing or jemmying open a window or door, etc.
• Opening a window or door that is closed - they do not need to be locked
• Removing tiles from a roof and kicking a hole in the ceiling
• Opening a cellar door held down by its own weight
• Opening an interior door - not a cupboard
• Flicking the latch or chain off an otherwise partially opened window or door

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18
Q

What are the examples of a constructive break?

A

K: A key – Lawful access, but use when not authorised to do so
F: Fraud – Tricks victim to allowing accused to enter
C: Conspiracy – two or more people conspire (e.g. one person leaves a door open for another)
T: Threat – victim only allows entry upon a threat being made. Would not have allowed entry otherwise.

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19
Q

What is the doctrine of recent possession?

A

A person, who is in possession of items (property) so soon after a stealing, or a break and enter, has taken place, that no other conclusion should be reached by the Court other than the person is the thief, breaker or the guilty receiver in the absence of any explanation.

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20
Q

What section and act is Goods in Custody?

A

Crimes Act (1900) s527c (Goods in custody)

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21
Q

What are the elements of Goods in Custody?

A
  1. the accused;
  2. has any thing in his or her custody,
  3. has any thing in the custody of another person,
  4. has any thing in or on premises, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another, or
  5. gives custody of any thing to a person who is not lawfully entitled to possession of the thing,
  6. and the thing may be reasonably suspected of being stolen or otherwise unlawfully obtained.
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22
Q

What section and act is common assault?

A

Crimes Act 1900 (NSW), Section 61

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23
Q

What are the elements of common assault?

A
  1. The accused
  2. Assaulted
  3. A person
    NOTE
    To establish this element, it must also accommodate consideration of the following sub-categories:
    i. Intentionally or recklessly
    ii. Without consent (R v Bonora (1994) NSWSC)
    iii. Without lawful excuse
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24
Q

What can assault include?

A

Assault can include:
• Advance towards someone with a clenched fist (threats)
• Using a dog as a weapon
• Non-consenting kiss
• Spitting on a person
• Striking a horse causing the rider to fall
• Pointing an unloaded/loaded firearm or toy pistol (if the victim believes it to be a pistol/taser)
• An unlawful arrest
• Excessive force

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25
Q

What is the section and act for assault occasioning actual bodily harm?

A

Crimes Act 1900 (NSW), Section 59

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26
Q

What are the elements for assault occassioning ABH?

A

Elements of the offence:
1. The accused
2. Assaulted
3. A person
4. Occasioning actual bodily harm
Shall be liable to imprisonment for five years.
NOTE
To establish this element, it must also accommodate consideration of the following sub-categories:
i. Intentionally or recklessly
ii. Without consent (a person cannot consent to assault occasioning actual bodily harm)
iii. Without lawful excuse

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27
Q

What is the definition of actual bodily harm?

A

o Includes any hurt or injury calculated to interfere with the health or comfort of the victim.
Source: R v Lardner (1998)
o Such hurt need not be permanent but must be more than merely transient and trifling.
Source: McIntyre v R (2009)

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28
Q

What section and act is GBH?

A

Crimes Act 1900 (NSW), Section 33 Wounding or grievous bodily harm with intent

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29
Q

Definition of wounding?

A

Wounding requires the breaking of the continuity of the skin - dermis (interior layer) and epidermis (outer layer).
Source: (R v Smith 1837)

It need not involve the use of a weapon.
Source: R v Shepherd (2003)

Defined at common law, wounding involves the breaking of the skin (dermis). It is an injury in which the skin, tissue, or an organ is broken by some external force such as a blow or incision or deep laceration, with damage to the underlying tissue.
‘Skin’ includes the skin inside the mouth, ears, nose, genitals and anus.
The extent of the injury would be determined by a legally qualified medical practitioner. This would be in the form of an expert witness statement.

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30
Q

What are the legal ranges for prescribed concentration of alcohol?

A

The Legal Ranges for Prescribed Concentration of Alcohol
Novice Range PCA
0.001 - 0.019
Special Range PCA
0.020 - 0.049
Low Range PCA
0.050 - 0.079
Middle Range PCA
0.080 - 0.149
High Range PCA
0.150 or higher

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31
Q

What are some examples of personal violence offences?

A

Personal Violence Offences

I – Intimate images

B – Breach of Apprehended Violence Order

A – All manner of assaults

D – Damage to property

G – Guns

A – Attempts at these things

S – Stalking and Intimidation

O – Other Offence

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32
Q

What is a mandatory reporter?

A

Mandatory reporters are required by law to report suspected child abuse and neglect to government authorities.

Mandatory reporters are people who deliver the following services, wholly or partly, to children as part of their professional work or other paid employment.

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33
Q

Who are mandatory reporters?

A

Health care — registered medical practitioners, specialists, enrolled and registered nurses.

Welfare — registered psychologists, social workers, caseworkers and youth workers.

Education — teachers, counsellors, principals,

Children’s services — child care workers, family day carers and home-based carers.

Residential services — refuge workers, community housing providers.

Law enforcement — police.

Disability services – disability support workers and personal care workers.

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34
Q

What is an Apprehended Violence Order (AVO)?

A

AVOs are orders from the Court (provisional AVOs may also be granted by a Sergeant or above), which place restrictions or prohibitions on one person (the defendant) in order to protect another (victim/person in need of protection – PINOP).

Apprehended Domestic Violence Orders (ADVOs) protect people in domestic relationships.

Apprehended Personal Violence Orders (APVOs) protect people not in domestic relationships (for example neighbours, work colleagues).

ADVOs and APVOs fall under the umbrella term of AVOs.

AVOs can be either urgent or non-urgent.

35
Q

What can be contained in an AVO?

A

An AVO contains a number orders that can be placed on a defendant. The orders can be divided into the following: -

Orders about the defendant’s behaviour
Orders about the defendant’s conduct
Orders about family law and parenting
Orders where the defendant cannot go
Orders about weapons
Other orders

36
Q

What are the four types of AVO?

A
  1. Provisional
    Any police officer can make an application for a Provisional AVO. A Sergeant or above can issue a Provisional AVO.
  2. Interim
    An Interim AVO is a court made order based on the commission of certain offences, as outlined in Crimes (Domestic and Personal Violence) Act 2007 (NSW), Section 40.
  3. Non-Urgent
    A Non-Urgent AVO is not an order, but a summons for the defendant to appear before the court for so that an application can be made to seek an order.

A non-urgent application for an ADVO will not be enforced until an interim or final order is made by the court. The level of urgency and seriousness of the matter are determining factors as to whether a police officer will apply for a Provisional Order or make an application by way of a Non-Urgent AVO.

  1. Final
    A Final Apprehended Violence order is made by the court.

It remains in force for such period as is specified in the order by the court. The period specified in the order by the court is to be as long as is necessary, in the opinion of the court, to ensure the safety and protection of the protected person – Sections 79, 79A and 79B, Crimes (Domestic and Personal Violence) Act 2009 (NSW).

37
Q

What are some benefits of a provisional AVO?

A
  • Immediate protection for the protected person on service of the AVO on the defendant
  • Police rather than the protected person have initiated proceedings against the defendant
  • Police preparing and submitting the application before the court
  • The protected person receives support and advice from a NSWPF Domestic Violence Liaison Officer (DVLO)
  • The protected person is represented by a police prosecutor
  • The protected person will not need to engage a solicitor for the court process involving the ADVO application
38
Q

When must police apply for a provisional AVO?

A

Section 27, Crimes (Domestic and Personal Violence) Act 2007 (NSW) outlines when police are must apply for a Provisional Order. In summary police must apply for a Provisional AVO;

If a police officer suspects or believes a domestic violence offence or child abuse offence has recently been or is being committed, or is imminent, or is likely to be committed, or
Proceedings have been commenced against a person for an offence listed above against the person for whose protection an order would be made and
The police officer has good reason to believe an order needs to be made immediately to ensure the safety and protection of the person or to prevent substantial damage to any property of that person.

39
Q

What are the 7 deadly CIN’S?

A
  1. Goods in custody (Crimes Act s.527C)
  2. Larceny where the value does not exceed $300 (Crimes Act s.117)
  3. Offensive Conduct (SOA s.4(1))
  4. Offensive Language (SOA s.4A(1))
  5. Obstructing Traffic (SOA s.6)
  6. Unauthorised entry of vehicle or boat (SOA s.6A)
  7. Continuation intoxicated behaviour following a move on direction (SOA s.9)
40
Q

What are your responsibilities as an initial response officer for sexual assault?

A

DR E ALPINE:

Duty officer and supervisor to be notified

Respectful and supportive of the victim

Ensure the victim’s immediate safety

Assess and attend to urgent medical needs, including SAIK (Sexual assault investigation Kit and/or Early Evidence Kit (EEK) (Conducted at a hospital)

Liaise with Detectives/Criminal investigation staff to attend

Privacy of the victim

Identity of offender, secure any primary and secondary crime scenes, or other forensic evidence

Notebook entry -Conversations with the victim -Contemporaneous notes

Encourage the victim not to change or shower

41
Q

What constitutes a legally vulnerable person?

A

In all circumstances where police must afford an individual a duty of care, they must also have regard to whether that individual would be classified as a vulnerable person according to the Regulation.
This means that if police have a person in their custody who falls within one of these categories:
• Children
• Persons who have impaired intellectual functioning
• Persons who have impaired physical functioning
• Persons who are Aboriginal persons or Torres Strait Islanders
• Persons who are of non-English speaking background

42
Q

What are the phases of the cycle of domestic violence?

A

Build-up Increasing tension, harassment and arguments

Stand-over Increases level of control and threats creates and instils fear in victim and children

Explosion Uses extreme abuse, aggression and violence, damaging property (used as an extremely controlling behaviour)

Remorse Attempts to justify and minimise actions, blames victim, demonstrates guilt and may include threats of self-harm

Pursuit Promises that it will not happen again, becomes the ‘victim’, blames other factors or substance abuse (alcohol)

Honeymoon Returns to the courting phase increased caring, attentive and romantic phase (previous manipulative practices)

43
Q

What must happen for a blood sample to be tested for drugs following a collision?

A

When a blood sample is taken from a driver at the hospital it is only tested for alcohol. You must satisfy the following criteria to have the sample tested for drugs.
• The crash resulted in a fatality, or
• Police MUST have evidence or reasonable suspicion, the driver was under the influence of a drug other than alcohol. (Schedule 3, Part 4 – Division 2 - 24(8) Road Transport Act 2013 (NSW)
• Request for a blood sample to be analysed (via COPS event) for drugs other than alcohol
• This request to be forwarded to the Blood Sampling Unit (BSU)

44
Q

What section and act is self-administration of prohibited drug?

A

Drug Misuse and Trafficking Act 1985 (NSW), Section 12 Self-administration of prohibited drugs

45
Q

What section and act is possession of prohibited drug?

A

Drug Misuse and Trafficking Act 1985 (NSW), Section 10 Possession of prohibited drugs.

46
Q

What section and act is possession of equipment for administration of prohibited drug?

A

Drug Misuse and Trafficking Act 1985 (NSW), Section 11 Possession of equipment for administration of prohibited drugs

47
Q

What section and act is traffickable quantity of prohibited drugs?

A

Drug Misuse and Trafficking Act 1985 (NSW), Section 29 Traffickable quantity - possession taken to be for supply.

A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply.

48
Q

What section and act is cultivate prohibited plant?

A

Drug Misuse and Trafficking Act 1985 (NSW), Section 23. Offences with respect to prohibited plants

This includes:
(1) A person who—
(a) cultivates, or knowingly takes part in the cultivation of, a prohibited plant,
(b) supplies, or knowingly takes part in the supply of, a prohibited plant, or
(c) has a prohibited plant in his or her possession,
is guilty of an offence.
(1A) A person who—
(a) cultivates by enhanced indoor means, or knowingly takes part in the cultivation by enhanced indoor means of, a number of prohibited plants which is—
(i) not less than the small quantity applicable to the prohibited plants, and
(ii) less than the commercial quantity applicable to those prohibited plants, and
(b) cultivates, or knowingly takes part in the cultivation of, those prohibited plants for a commercial purpose,
is guilty of an offence.

49
Q

What section and act is directions generally?

A

LEPRA Section 197 Directions generally relating to public places

Mnemonic Used to Remember 197:
C – Causing Fear
H – Harassment / Intimidation
O – Obstructing Traffic (person/vehicle)
P – Procuring Prohibited Drug
S – Supplying Prohibited Drug

50
Q

What section and act is directions to intoxicated people?

A

LEPRA 2002 (NSW), Section 198 (1) Move on directions to intoxicated persons in public places.

51
Q

What is the consequence if someone fails to comply with a direction?

A

LEPRA, 2002 (NSW), Section 199 - Failure to comply with direction (cf Summary Offences Act 1988, s 28F)

(1) A person must not, without reasonable excuse, refuse or fail to comply with a direction given in accordance with this Part.
Maximum penalty—2 penalty units.
(2) A person is not guilty of an offence under this section unless it is established that the person persisted, after the direction concerned was given, to engage in the relevant conduct or any other relevant conduct.

52
Q

What are some reasons that police can enter a private premises in an emergency?

A

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Section 9 - Power to enter in emergencies.

(1) A police officer may enter premises if the police officer believes on reasonable grounds that—
(a) a breach of the peace is being or is likely to be committed

(b) a person has suffered significant physical injury or there is imminent danger of significant physical injury

(c) the body of a person who has died

53
Q

Do police have a general power to enter a persons home?

A
54
Q

Do police have a general power to enter a persons home?

A

NO.

Police do not have a general power to enter a person’s home.

There is no issue with entering a property from the curtilage (perimeter) to the front door in order to announce yourself, but to breach that door you must be lawfully on-premises.

55
Q

In what circumstances can police enter a persons home?

A

In an emergency
LEPRA 2002 (NSW), Section 9

Invitation from the owner/occupant (until revoked)
LEPRA 2002 (NSW), Section 82

To lawfully arrest or detain a person, or to execute warrant
LEPRA 2002 (NSW), Section 10

Execution of an entry warrant
LEPRA 2002 (NSW), Section 83

56
Q

Can police remain on premises after permission has been removed?

A

In certain circumstances - YES.

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Section 83
Warrant where Entry is Denied or Authority to Remain is Refused

(1) A police officer may apply to an authorised officer for a warrant if the police officer—

(a) has been denied entry to a specified dwelling or is expressly refused authority to remain in a specified dwelling by an occupier of the dwelling, and

(b) the police officer suspects that—

(i) a domestic violence offence is being, or may have been recently, committed, or is imminent, or is likely to be committed in the dwelling, and

(ii) it is necessary for a police officer to enter the dwelling immediately, or to remain in the dwelling, in order to investigate whether a domestic violence offence has been committed or to take action to prevent the commission or further commission of a domestic violence offence.

57
Q

May police search a residence upon entry for domestic violence purposes?

A

YES. Police may Enter and Search for Firearms. Police must also enquire as to whether any firearms are in the house under s85.

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Section 86

(1) A police officer who, on an inquiry under section 85, is informed that there is no firearm in the dwelling but who believes on reasonable grounds that there is or are a firearm or firearms in the dwelling, must apply to an authorised officer for the issue of a search warrant.

(2) A police officer who believes on reasonable grounds that—

(a) a domestic violence offence is being, or may have been recently, committed, or is imminent, or is likely to be committed, otherwise than in a dwelling, and

(b) any of the persons concerned may have a firearm in a dwelling, must apply to an authorised officer for the issue of a search warrant.

58
Q

May police seize anything from a residence after lawfully entering?

A

YES.

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Section 87

Search and Seizure Powers

A police officer who enters a dwelling under a power conferred by or under this Act and who believes, on reasonable grounds, that—

(a) a dangerous article or dangerous implement (other than a laser pointer) is in the dwelling, and

(b) that the dangerous article or dangerous implement is being, or was, or may have been or may be used to commit a domestic violence offence,

may search the dwelling for the dangerous article or dangerous implement and seize and detain the dangerous article or dangerous implement.

59
Q

What are the sections under which police can search a person/vehicle under LEPRA?

A

s21 - Power to search persons and seize and detain things without warrant

s23 - Power to search persons for dangerous implements without warrant in public places and schools

s27 - Power to carry out search on arrest

s28a - Power to carry out search of person in lawful custody after arrest

s30 - Person searches/searches generally.

s31 - Strip searches.

s36 - Power to search vehicles and seize things without a warrant.

60
Q

What steps must police take to preserve the dignity of a person being searched?

A

s 32 LEPRA Preservation of privacy and dignity during search

(1) A police officer who searches a person must, as far as is reasonably practicable in the circumstances, comply with this section.

(2) The police officer must inform the person to be searched of the following matters—
(a) whether the person will be required to remove clothing during the search,
(b) why it is necessary to remove the clothing.

(3) The police officer must ask for the person’s co-operation.

(4) The police officer must conduct the search—
(a) in a way that provides reasonable privacy for the person searched, and
(b) as quickly as is reasonably practicable.

(5) The police officer must conduct the least invasive kind of search practicable in the circumstances.

(6) The police officer must not search the genital area of the person searched, or in the case of female or a transgender person who identifies as a female, the person’s breasts unless the police officer suspects on reasonable grounds that it is necessary to do so for the purposes of the search.

(7) A search must be conducted by a police officer of the same sex as the person searched.

(7A) However, if a police officer of the same sex as the person who is to be searched is not immediately available, a police officer may delegate the power to conduct the search to another person who is—
(a) of the same sex as the person to be searched, and
(b) of a class of persons prescribed by the regulations for the purposes of this subsection.
The search by that other person is to be conducted under the direction of the police officer and in accordance with provisions of this Act applying to searches conducted by police officers.

(8) A search of a person must not be carried out while the person is being questioned. If questioning has not been completed before a search is carried out, it must be suspended while the search is carried out.

(8A) Subsection (8) does not prevent the asking of questions that only relate to issues of personal safety associated with the search.

(9) A person must be allowed to dress as soon as a search is finished.

(10) If clothing is seized because of the search, the police officer must ensure the person searched is left with or given reasonably appropriate clothing.

(11) In this section—
questioning of a person means questioning the person, or carrying out an investigation (in which the person participates).

61
Q

What are the 4 general reasons to arrest someone?

A

• Arrest for an offence
• Arrest by virtue of a warrant
• Arrest for breach of the peace (common law)
• Arrest by virtue of a specific power other than LEPRA

62
Q

What are your reasons to arrest without a warrant?

A

99 Power of police officers to arrest without warrant

(1) A police officer may, without a warrant, arrest a person if—
(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and
(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons—
(i) to stop the person committing or repeating the offence or committing another offence,
(ii) to stop the person fleeing from a police officer or from the location of the offence,
(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,
(iv) to ensure that the person appears before a court in relation to the offence,
(v) to obtain property in the possession of the person that is connected with the offence,
(vi) to preserve evidence of the offence or prevent the fabrication of evidence,
(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
(viii) to protect the safety or welfare of any person (including the person arrested),
(ix) because of the nature and seriousness of the offence.

63
Q

What section and act are crime scene powers of police?

A

s95 of LEPRA.

64
Q

What powers can police use when lawfully attending a crime scene?

A

(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,
(l) photograph or otherwise record the crime scene and anything in it,
(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.

65
Q

Can police detain a defendant of an AVO?

A

YES.

Powers of Police to Detain in Relation to AVOs:

Section 89 & 89A, Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Allows for the detention & direction of a person for the making and service of a Provisional AVO.

Section 89 relates to detention and direction for Personal Violence Orders.
Section 89A relates to Apprehended Domestic Violence Orders.

Section 90 & 90A, Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Allows for the detention & direction of a person for the service of an order or variation of an order.

66
Q

What directions can police give the defendant of an AVO?

A

Under Section 89A (1) (a-f) of the Crimes (Domestic and Personal Violence Act 2007 (NSW), police have a number of directions they may give to the defendant to facilitate the making and service of the provisional ADVO. The following is a summary of these directions:

  1. Remain at the scene where the incident occurred
  2. Remain at another location away from the scene as directed by a police officer
  3. Go to and remain at another location as agreed by the person
  4. Go to and remain at a specified police station
  5. Accompany a police officer to, and remain at, a police station
  6. Accompany a police officer to another location as agreed or to another location (whether agreed to or not) to receive medical attention and remain there.
67
Q

Under what section and act can police detain intoxicated persons?

A

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Section 206 Detention of intoxicated persons

Under this section, a police officer may detain an intoxicated person found in a public place who is:

Behaving in a disorderly manner or a manner likely to cause injury to the person or another person or damage to property; or

In need of physical protection because the person is intoxicated.

The detained intoxicated person must be taken to (and released into the care of) a responsible person willing immediately to undertake the care of the intoxicated person. Please note, this section does not authorise a responsible person to detain the intoxicated person.

68
Q

What is defined as a DV relationship?

A

Married or has been
Intimate relationships
Same household
Same residential facility
De facto
Ongoing care or dependence
Relative
ATSI kinship

69
Q

What are the 5WH’s?

A

who, what, when, where ,why, how?

70
Q

What does ADVOKAT stand for?

A

Amount of time under observation
Distance from the incident
Visibility at the time
Obstructions in view
Known or seen before
Any reason to notice
Time since observations

71
Q

What takes place in the Police agenda?

A

Police agenda
 Suspect given the opportunity to offer innocent explanation for the existence of evidence
 Suspect not made aware of the evidence in specific detail
 Not challenged yet

72
Q

What takes place in the suspect agenda?

A

Suspect agenda
 Opportunity for the suspect to respond to allegation put before them
 Begin by clearly stating the purpose of the interview
 Accept the version without challenge
 Each point is probed for maximum detail to clarify or expand

73
Q

What takes place in the challenge?

A

Challenge
 Suspects final opportunity to account for any discrepancies between evidence and suspects’ account
 Present suspect with least compelling challenge first and lead up to most compelling.

74
Q

What are the 3 parts of an interview?

A

Suspect agenda
Police agenda
Challenge

75
Q

What are the 6 closing questions?

A
  1. Is there anything further you wish to say?
  2. Have you answers to my questions been made of your own free will?
  3. Has any threat, promise or offer advantage been held out to you during this conversation?
  4. Will you now read aloud my record of our conversation?
  5. Is it a correct record of conversation?
  6. Will you now sign my notebook as a correct record of our conversations?
76
Q

What are the 4 skills of interviewing?

A

Planning and preparation,
Active listening,
Rapport building,
Questioning.

77
Q

What are the 5 steps of the peace model?

A

Preparation and Planning

Engage and Explain

Account phase

Closure

Evaluate

78
Q

What are the two types of opinion evidence?

A

4.3 Lay opinion – To be admissible the opinion must be rationally based on the person’s perception and helps to explain the witness’s testimony. I think the man was drunk because he smelt, looked, slurred.

Expert opinion Evidenct act 1995 s79 – admissible if the persons specialised knowledge, training or qualifications which form the basis of an opinion. Doctor giving expert evidence on injuries suffered during assault.

79
Q

What are comon hearsay exceptions?

A

• Hearsay for a non-hearsay purpose (Section 60) (admissible for all purposes once in evidence)
• First-hand hearsay where the maker is unavailable (Section 65)
• The identity of a person, place or thing (Section 66) (maker available)
• Contemporaneous statements about a person’s health (Section 66A)

80
Q

What are the three types of evidence?

A

Original:
• Oral testimony of a witness
• Observations

Real: Physical evidence
• Physical evidence found at the scene of a crime or used in the commission of the offence
• Trace evidence such as DNA/fingerprints

Documentary: Hard copy, electronic and audio records
CCTV footage
Phone records that demonstrate the accused has breached a condition of an Apprehended Violence Order

81
Q

What are the 3 tests that evidence must go through to be admissible?

A

• Relevant (s.55 evidence act)
• Reliable (s.165 evidence act)
• Fair (S.135 evidence act)

82
Q

What is a facts sheet?

A

Facts Sheets Explained
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

83
Q

When is a facts sheet prepared?

A

Whenever criminal proceedings are instigated against a person by way of:
• Field CAN
• Future Service CAN
• Arrest and CAN (Bail or No Bail CAN)

84
Q

For evidence of police officers to be admitted it has to be MSG.

What does MSG mean?

A

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

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

ADPP CLASS 355 (1 decks)

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