1.2 The Criminal Investigation Process
Crime prevention: situational and social
if these are the reasons why people commit crimes, how can we prevent crime from happening?
Social crime prevention: aims to address the underlying reasons why people commit crimes.
poor home environment and parenting
social and economic disadvantage
poor school attendance
early contact with police or other authorities
prevention strategies:
welfare checks, remove child
social welfare payments, dependant on seeking jobs
truancy officers, checks on
police engagement with young people
Situational crime prevention: aims to limit the situations where people can commit crimes, and hopefully deter them from it.
eg. floodlights turning on to notify perpetrators that they have been seen, speeding signs to check speed, shutters to prevent windows getting smashed.
Reporting crime
The publics role in crime
how is the public involved in the process of reporting and investigating crime?
the public’s involvement in reporting and investigating crime directly relates to how efficient it is. By reporting crimes, it actively tells the police that the safety of society is at stake, and so the police investigate and prevent future crime while also working to provide justice to victims of the offenders.
The media’s role in reporting crime
Police Powers
what roles to the police force play in the legal system and our society?
they enforce the law
protect the community → protect people & their relationships with each other
deter people from committing crimes. → physical representation of the law and government.
Code of conduct and ethics
behave honestly and in a way that upholds the values and the good reputation of the NSW police force whether on or off duty. → eg. maintain respect (rule of law)
act with care and diligence when on duty (trust)
treat everyone with respect, courtesy and fairness → order (rule of law) → trust (competent)
take reasonable steps to avoid conflicts of interest, report those that cannot be avoided, and co-operate in their management → avoid bias (procedural fairness & rule of law)
only access, use and/or disclose confidential information if required by their duties and allowed by NSW police force policy → protect privacy → builds trust
report misconduct of other NSW police force employees → breeds corruption (rule of law)
why is the document important for the police? and why does it need to be available to the police as well?
police need to keep what society (and their superiors) expect of them.
the public too should know what is expected so they can trust police.
police and public will have a role in officers high standards.
In order for police to keep order and catch criminals, our society has given them a range of powers to aid them in this role - powers ordinary citizens aren’t allowed.
arrest and interrogation.
search property & seize evidence (commonly known as search and seizure).
use reasonable force if necessary to carry out their duties.
use particular technologies to assist an investigation, such as phone taps, surveillance & DNA samples
recommend whether or not bail should be granted.
These powers would be constituted crimes if used by other citizens - they conflict with various rights and can be misused.
the police standards of professional conduct are a way for police to police their own people, as those who break it face consequences (disciplinary actions).
an extension of Rule of Law → everyone must obey the law
more severe powers require a warrant - police apply to the courts to review the evidence/reasoning for wanting to use that power. This is an example of seperation of powers.
Key piece of legislation is Law (Enforcement and Power Responsibilities) Act 2002 NSW [LEPRA]
section 9 → power to enter in emergencies → police aare allowed to enter on reasonable grounds if a breach of peace inside, need to stop physical injury, or a person has died. 1A) before entering premises under subsection 1C, the police officer must obtain approval to do so (orally or in writing) from a police officer of an above rank of inspector.
Section 10 → power to enter to arrest or detain on execution of a warrant. → premises to arrest a person may only enter if there are reasonable grounds for the arrested or detained in the building. A police officer may enter to search the premises for the person, but they must obey the requirements imposed under the Act for entry of the premises.
LCMID: Crimes (serious crime prevention orders) Act 2016 [NSW]
prevent, restrict or disrupt a person for upto five years
what does this law allow?
allows the police to apply for court orders that restrict the activity of a suspect based on the allegations of their involvement in criminal activity.
Gathering of evidence, use of tech, search and seizure, use of warrants
Gathering evidence: Explain why police need to carefully document their evidence gathering? to maintain its integrity for it being evidence, if evidence is tampered with it can’t be admissible. What legislation covers this area? Evidence Act 1995 (NSW) List some evidence examples gathered by police. documents, fingerprints, DNA samples, tape recordings, video surveillance and electronic information. there is a specialised fingerprints and ballistics expert team on the police force.
Use of technology: Using one example, explain how technology can be a blessing and a challenge for police investigations. The use of technology can be highly beneficial in police investigations, but an issue is that technology is rapidly advancing and the law can’t keep up. Any new technology being used in law enforcement must be deemed extremely reliable, if not it can tamper with whether evidence will be admissible in court.
Search and seizure When (under what conditions) can police ‘search’ without a warrant? when does ‘seizure’ occur? Police can search any person when they ‘believe on reasonable grounds’ that the person is carrying anything stolen, used in a commission of an indictable offence or another specified offence, a prohibited plant or drug, ora. dangerous article in a public place. Police can seize and detain any of these objects if discovered. What are police allowed to check when searching a person? police may search anything in a person’s possession or control, including, for example, a persons body, bag, clothes and possessions. Outline some of the protections and concerns with police strip searches? intrusion into peoples privacy or personal space. search and seizure can also be confronting or embarrassing especially when conducted in a public place.
Use of a warrant What is a warrant? it is a legal document issued by a magistrate or judge and authorises a police officer to perform a particular act. When is it needed and not needed by police? needed for: making arrests, conducting searches, seizing property or using a phone tap. not needed: sniffer dogs, to search for illegal drugs at pubs or clubs, public transport or public events. What is the process that police go through to obtain a warrant? police must give substantial reasons or evidence to a magistrate or judge to justify the granting of the warrant. Why are warrants used? they’re required to have a valid warrant before they can enter and search any premises, residential or businesses, without the consent of the occupier.
Arrest and charge, summons, warrants
normally, the courts will issue the police with a warrant naming the person being arrested and their particular offence. the application would include the evidence. The application is a request to use their special powers to bring in that person before the courts. This process provides judicial oversight against the misuse of police powers of arrest.
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s101 in 101, allows an officer to arrest with a warrant, can arrest without a warrant when the person is committing the act,, or have just committed a crime [citizens arrest = s100] and pose a risk to the community, (reoffending, destroy evidence…)
when the time expires on holding suspects they must either let them go conditionally or charge them.
the charge must give a specific offence the accused has allegedly committed.
preventative detention can be put in place when they have reasonable grounds to suspect a person of terrorism, can be held up to fourteen days.
Summons can refer to:
a court attendance notice - a legal document stating when and where they must present themselves.
witnesses may receive a subpoena which requires their appearance in court with a specific date to give evidence.
Bail or remand
when the accused has been charged, the police need to decide what to do with them.
release?
without conditions
keep in detention?
if so, they are brought before a magistrate who will decide in a bail hearing whether to…
grant bail
(released usually with conditions)
hold on remand (detain while waiting trial)
A bail hearing functions around the question, can and should the accused be trusted with their freedom while waiting for trial?
Accused’s:
right to their liberty
presumption of innocence (be treated as innocent until proven guilty)
Community’s:
right to see justice done → the accused will stand trial → evidence and witnesses won’t be tampered with
be safe
Bail operates under a series of tests. The process was reformed with the creation of the Bail Act 2013 (NSW). A summary of the processes is the following three tests:
rights to automatic release for minor offences ← Bail granted
serious offenders must show cause for why they should be released (2015) amendment → Bail denied
the judge weighs up whether releasing the offender is an unacceptable risk - they weigh up ‘local concerns’ against any conditions they can put on the offender while on bail. ← Bail granted → Bail denied
Detention & interrogations, rights of suspects
LEPRA also covers police powers to detain people.
police can only detain a suspect for six hours, by which time that person must either be charged or unconditionally released.
but there are a range of circumstances that pause this clock, such as → transport to a police station → waiting for the relevant law enforcement officer to arrive to conduct the interview → waiting for a lawyer, family member or guardian (of a child) or an interpreter to arrive. → rest breaks, medical treatment
if they need more time, police can apply to the courts, where a magistrate can grant an extension for a further six hours.
Interrogation: police questioning a suspect
as soon as practical after detaining a suspect, police issue a caution informing them of their rights, especially: → the maximum period of detention → the right to silence - that they do not have to say or do anything but that anything the person say or do may be used in evidence. → the caution must be given to the suspect orally and in writing.
presumption of innocence + burden of proof = the police must gather the evidence, and the accused does not have to prove their innocence.
if in court you must answer questions asked if you chose to give testimony.
the Evidence Act 1995 (NSW) s89 (1) states ‘an inference unfavourable to the party must not be drawn’ by an accused refusing to answer.
the right to legal representation - there are some nuances to know how this works in Australia.
article 14 of the international convention of civil and political rights (ICCPR): ‘legal assistance of his own choosing ‘…’ to be informed that if he doesn’t have any, legal assistance will be assigned.’
you can choose a lawyer
there is no right for the state to pay for the lawyer. See Dietrich v The Queen (1992)
Dietrich came back from Thailand and got arrested for importing 70g of heroin.
he represented himself in court with charges more than life in prison.
he applied for legal aid, but they refused unless he pleaded guilty.
interviews when detaining/questioning are informal, where the officer writes notes by hand, or formal where audio recordings are made for police record. a copy of the recordings should be given to the defendant for procedural fairness
children under 14 must have a guardian present for support. between 14-17 they require your agreement on which adult should be there during the interview.