The Criminal Investigation Process Flashcards
What is the role of police powers in the criminal investigation process?
The NSW police force is given special legal powers under the Law Enforcement (Police Powers and Responsibilities) Act 2002 (NSW)
It includes the power to search & seize property and use reasonable force
To protect the rights of individuals, police will sometimes need to obtain a warrant from a court to use a particular power
The Crimes (Serious Crimes Prevention Order) Act 2016 (NSW) allows the police to apply for court orders that restrict the activities of a suspect (eg curfews)
What are issues relating to the reporting of a crime?
Some crimes, such as property offences, are more widely reported than others
It is estimated that up to 85% of sexual assault cases are not reported
Victims often feel shame and embarrassment and are unwilling to go through the purpose of reliving the experience with the offender present
Recent legislation allows victims in sexual assault cases to give evidence via CCTV
What are issues with the gathering of evidence/use of technology when investigating a crime?
Technology that we have today was not present at 2003 trial of Kathleen Folbigg
Genomic sequencing testing sheds doubt on conviction
Appeal thrown out of court in under a minute, demonstrating a deciding of guilt and unwillingness to consider new technology that does not fit with that analysis
Australian Academy of Science issued a statement saying: “There are medical and scientific explanations for the death of each of Kathleen Folbigg’s children.”
What are issues with police ‘search and seizure’ powers?
Police in NSW have broad powers to stop and search any person who they ‘believe on reasonable grounds’ is carrying anything stolen/used in an indictable offence
Determining ‘a search’ and ‘reasonable grounds’ can be seen in the case Darby v DPP (2004) when a sniffer dog contacted Darby, subsequently found to possess drugs
A local court magistrate ruled that the actions of the dog in sniffing Darby so closely constituted an unlawful search - a ruling that was overturned in the Court of Appeal
In 2020, NSW Police had to fulfil a quota for 241,000 strip searches
Greens MP David Shoebridge stated that this was “a guaranteed recipe for the abuse of police powers… and people’s human rights”
What are the conditions needed to arrest an individual?
The police are not allowed to detain a person without good reason to do so
Such reasons include catching a suspect committing an offence or believing on reasonable grounds that a person has committed/is about to commit an offence
Investigating an individual during the course of an investigation will require a warrant
What are the laws regarding detention and interrogation?
LEPRA - Police can only detain a suspect for six hours, by which that time the person must be either charged or unconditionally released
They may apply to a magistrate for a warrant to extend the investigation period up to a further six hours
Under the Terrorism (Police Powers) Act 2002, the police can make an application to the Supreme Court to detain a person in custody for a maximum period of 14 days without charge if they reasonable believe the suspect will otherwise engaged in a terrorist act
Before questioning, police must issue a caution (statement of rights) to the suspect
The suspect has the right to silence, and under 18 the right to a responsible adult
What are issues surrounding the provision of bail in Australia?
Before 2013, there was a ‘presumption against bail’, which meant that it was up to the accused to prove why they should be granted bail
The effect of denying bail can be severe, as it may result in an extensive period of time spent in custody before a verdict is reached
In 2018, a BOCSAR report found that the prison population rose by 4% - a rise that it attributed to a growing number of prisoners being kept on remand
2013 amendments to the Bail Act means that it is now judicial discretion that determines whether an individual is an ‘unacceptable risk
