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Yr12 Legal Studies > The Criminal Investigation Process > Flashcards

The Criminal Investigation Process Flashcards

1
Q

What is the role of police within the CIP

A
  • Investigate crimes
  • Make arrests if necessary
  • Interrogate suspects
  • Gather evidence against the accused
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2
Q

What act outlines police powers

A
  • Detain and question suspects
  • Search property and seize evidence (known as search and seizure)
  • Use reasonable force if necessary
  • Use particular technologies to assist an investigation e.g. Phone taps, surveillance or DNA samples
  • Arrest and interrogate suspects
  • Recommend whether bail should be granted
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3
Q

What makes police powers controversial

A

They will often directly conflict with ordinary rights of citizens

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4
Q

Why are police powers deemed necessary

A

Special powers are deemed by society and lawmakers as necessary to ensure laws are enforced and public order is maintained

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5
Q

What is the purpose of the code of practice (CRIME)

A
  • Sets out the rights of suspects in a manner which investigations should be carried out
  • Acts as a check on police powers
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6
Q

What does CRIME stand for

A
  • Custody
  • Rights
  • Investigation
  • Management and Evidence)
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7
Q

Which body overseeas NSW police force and deals with brecahes of code of practice

A
  • Law Enforcement Conduct Commission (LECC)
  • Established under the Law Enforcement Conduct Commission (LECC) Act 2016 (NSW)
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8
Q

What is purpose of LECC

A

To ensure police accountability

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9
Q

How is LECC limited

A
  • Lack of resources to investigate complaints
  • Guardian art, Nov 2019 ‘NSW police watchdog fully investigated just 2% of firehose of complaints’
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10
Q

What limits effectiveness of police code of conduct

A
  • Lack of police training around behaviour and the code
  • Guardian art, Oct 2019 ‘NSW police officer admits his 19 strip searches at music festival may have been illegal’
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11
Q

What are reasons people may be hesitant to report a crime

A
  • Reluctance to become involved or to appear as a witness
  • Fear of consequences if the crime is reported
  • Inability to report the crime
  • The dispute has already been settled with the offender such as a brawl.
  • Perceived time or administrative burden of reporting a crime
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12
Q

What’s the purpose of crime stoppers

A
  • Allows members of public to report crimes or make ‘tip-offs’ anonymously
  • Has substantial success with over 1,179 over period between 2018/2019
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13
Q

What type of crimes are most undereported

A
  • Domestic violence or sexual assault, more frequently go unreported
  • (estimated that 85% are not reported in Australia)
  • Due to the victim’s shame/embarrassment and/or unwillingness to go through the ordeal of reliving the experience in court
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14
Q

What is a police’s decison to investigate a crime based upon

A
  • Severity of the offence
  • The likelihood of success
  • The availability of resources
  • Priorities.
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15
Q

What are the types of evidence that may be gathered by police

A
  • Oral testimony of the accused
  • Police and witnesses.
  • Physical evidence such as objects or weapons.
  • Documents
  • Fingerprints/DNA samples
  • Video surveillance and electronic information on hard drives.
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16
Q

What is purpose of the Evidence Act 1995 (NSW)

A
  • Ensures that evidence is obtained in a proper and lawful manner
  • The collection of evidence must be legitimate and should not interfere with the rights of ordinary citizens
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17
Q

What is purpose of warrant

A
  • Balance rights of citizens against police powers
  • Check on police powers
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18
Q

What are examples of technology available when investigating crime

A
  • Fingerprint and DNA databases, make it easy for police to share information across states and internationally
  • Surveillance teams can record video/audio footage using digital methods, allowing easy storage and copies
  • Cybercrime units can use criminal’s internet activity
  • DNA evidence, very useful in securing convictions and solving cold cases
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19
Q

What is limit of DNA evidence

A
  • Only proves that accused was at crime scene
  • May lead to wrongful convictions
  • SMH art ‘Wrongfully accused’ March 2014, R v Jama 2006
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20
Q

When may police exercise search and seizure powers

A

Were they believe on ‘reasonable grounds’, that the person is carrying anything stolen or used in commission of an indictable offence, a prohibited plant or drug, or a dangerous article in a public place

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21
Q

What may police search

A

Police may ‘search’ anything in a person’s possession or control e.g. A person’s body, bag, clothes

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22
Q

What is the standard that police must meet before searching a person

A

Standard of reasonable suspicion

23
Q

What is the issue of the standard of reasonable suspicion

A
  • It is broad and can be applied widely
  • Difficult to prove
24
Q

Which act outlines procedures for police to follow when conducting a personal search or strip search.

A

Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) (NSW)

25
Q

What did Firearms and Criminal Groups Legislation Amendment Act 2013 establish

A
  • Amended Firearm Act 1996 to include Sn 74A Firearm prohibition orders
  • Granted police powers to search the vehicles and premises of people subject to a firearm prohibition order, without a warrant or reasonable suspicion
  • SMH art Sept 2013 ‘Police to get greater stop-search powers’
  • The Australian art Nov 2015 ‘Terror agencies in guns blitz: tough laws to target organised crime’
  • Introduced at a federal level in 2015
26
Q

What is a warrant

A
  • A warrant is a legal document issued by a magistrate or judge and authorises a police officer to perform a particular act
  • Ensures judicial oversight
27
Q

Why was the Firearms and Criminal Groups Legislation Amendment Act 2013 introduced

A
  • Crackdown on organised crime
  • Barry O’Farrell justified this increase in powers as ‘it sends a message to criminals who carry weapons illegally that there is no place for them to hide’.
  • It was a bid to deter bikies and other criminal gang members from possessing illegal firearms
  • Considered necessray due to links between illegal firearms and organsied crime and terrorism
28
Q

What are the issues with the Firearms and Criminal Groups Legislation Amendment Act 2013

A
  • Removes judicial oversight, and accountability over police actions
  • Might increase police corruption and abuse of police powers and undermine the rights of citizens.
  • Relates to balnacing rights of victims, the offender and society
29
Q

How do warrants provide addditional layer of proection to citizens against misuse of police power

A
  • Through judicial oversight which helps ensure that those special police powers are used only when appropriate
30
Q

Which Act outlines the conditions under which a police can lawfully arrest and detain a suspect

A

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

31
Q

What are the conditions under which a police officer can lawfully arrest a person

A
  • Catching a suspect committing an offence
  • Believing on reasonable grounds that a suspect has committed or is about to commit an offence
  • Where that person has committed a serious indictable offence for which they have not been tried
  • Possessing a warrant for that person’s arrest.
32
Q

Why is arrest only used as a last resort

A

Arrest is only used as a last resort as it is taking away the human right to freedom of movement protected under ICCPR 1976

33
Q

Before making an arrest what must police obtain

A

Police must obtain a warrant

34
Q

When making an arrest what force are police entitled to use

A

Whatever reasonable force is necessary

35
Q

After a person has been detained for four hours what are the 3 things a police must choose to do

A
  • Person must be charged or
  • Unconditionally released or
  • The police may apply to a magistrate for a warrant to extend the investigation period up to a further eight hours
36
Q

What are examples of rest periods that may not be inlcluded in the total time of detention

A
  • Transport to and from point of arrest
  • Waiting for a lawyer, family member or interpreter
37
Q

What must police do before commencing an interview

A
  • Police must caution the suspect
  • Informing them of the maximum period of detention and that they do not have to say or do anything but that anything that person does say or do may be used in evidence (orally and in writing)
38
Q

What are safeguards in place during an interview

A
  • The right to silence
  • Suspects under 18 have the right to a responsible adult present at the interrogation
  • Interview is recorded on videotape and two audiotapes, made to ensure all policies and guidelines are adhered to by the police and as a record to be used in court
39
Q

Once a suspect has been charged what must the police do

A
  • Police must either release the accused or
  • Bring them before a magistrate for a bail hearing
40
Q

What does the Terrorism (Police Powers) Act 2002 (NSW) allow police to do

A

allows police to make an application to the Supreme Court to detain a person in custody for a maximum period of 14 days without charge if they reasonably believe the suspect will otherwise engage in a terrorist act

41
Q

What is a court attendance notice

A
  • A court attendance notice is a legal document that states when and where a person must appear in court and the charge to which they must answer
  • failure to attend, they will be arrested and charged
42
Q

What is a subpoena

A

A subpoena is a legal document issued by a court requiring a person to attend and give evidence. If they fail to attend, they will be arrested and charged

43
Q

What is remand

A

When the accused is ordered to remain in custody until their trial

44
Q

What is bail

A

Bail is the temporary release of an accused person awaiting trial, sometimes on particular conditions such as lodgement of a sum of money as a guarantee

45
Q

What are the two types of bail

A
  • Conditional - for example a defendant may need to lodge a sum of money or must report to a police station daily
  • Unconditional - no extra conditions (rare)
46
Q

What are factors affecting whether an accused is granted bail

A
  • Likelihood of accused fronting to court
  • Interests of the accused
  • Protection of community
47
Q

What did Bail Act 2013 commencing May 2014 introduce

A
  • Bail will be refused if accused is deemed an unacceptable risk (risk to community and risk of not turning up to court). (unacceptable risk test)
  • Determining bail will include new risk factors such as the views of the victims and whether the accused has criminal associations or a history of non-compliance with court orders
  • Adults can only apply for bail once and juveniles twice
48
Q

Why was Bail Act 2013 introduced

A
  • Replaced the Bail Act 1978 which had plethora of 80 amendments and became difficult to navigate for legal profession, judiciary and police
  • Thus Bail Act 2013 introduced to improve accessibility of act
49
Q

What did 2014 amendments to Bail Act 2013 NSW introduce

A
  • Changes added the ‘show cause’ test applies to most serious offences (punishable by life imprisonment) and places the onus on the accused to show why their detention in custody is not justified
50
Q

Why was Bail Act 2013 amended

A
  • The amendments were driven by community concerns after a number of high-profile defendants were released on bail
  • Mahmoud Hawi - Mick Hawi, former Comancheros Leader whilst he was appealing his murder conviction
  • Man Haron Monis - Released on bail while awaiting trial for murder of his wife, while on bail orchestrated the Lindt Café siege
51
Q

What are arguments for the Bail Act 2013 and subsequent amendment

A
  • the new Bail Act 2013 reduced the complexity of the law
  • The new ‘unacceptable risk test’ allows for the rights of an accused to the common law right to the presumption of innocence to be balanced against the possibility of them posing an unacceptable risk to the community
  • for amendments defendants charged with serious offences in NSW will find it harder to receive bail which should help ensure the safety of the community.
52
Q

What are arguments against the Bail Act 2013 and the subsequent amendment

A
  • There is a view that the ‘unacceptable risk test’ represents a substantial diminution of the presumption of innocence and that bail is being used or is seen as a form of pre-emptive punishment
  • There is a concern that under the new amendments (in force Jan, 2015) to the Bail Act 2013, that the onus is on the accused to show why they should not be detained and this departs from the norm in criminal law where the prosecution carries the burden of proof.
  • A number of legal organisations and academics feel that the changes have come too soon after the introduction of the Bail Act 2013 and that only several months of operation did not allow enough time to demonstrate whether it was effective
  • They also felt that the govt had caved in to pressure from the media and made a decision to appease media commentators and appear ‘tough on crime’
  • Remand diminishes rights of the accused
53
Q

Media articles relating to Bail Act and amendment

A
  • ‘Stricter bails laws would be an assault on our rights’ ABC, Dec, 2014 - highlighted how govt introuduced chnages to Bail Act 2013 in hopes to appear tough on crime, Former DPP Nicholas Cowdery stated “not sure that changes would have changed anything in the Monis case”, reduces presumption of innocence
  • SMH ‘NSW Bail Act: some freedoms more equal than others’ July 2014 - highlights erosion of presumption of innocence
  • SMH ‘Court delays and bail laws drive increase in prisoner population’ Sep 2016 - 35% refused bail in 2016 compared to 25% refused bail in 2011
54
Q

What did the Crimes Amendment (Consorting and Organised Crime) Act 2012 introduce

A
  • Introduced the offence of habitually consorting.
  • Specifically, it is an offence to consort with two or more convicted offenders on two separate occasions
  • The first time someone Is caught consorting, a warning is issued.

Yr12 Legal Studies (9 decks)

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