CRIME - Part 2 - Investigation process
Police Powers and the Legislative Framework
A criminal investigation typically follows a set sequence of stages: police receive a formal report or become aware of an offence, gather initial evidence at the crime scene, identify and interview witnesses and suspects, and utilize specific investigative powers to build a case.
Investigative powers include searches, forensic procedures, and surveillance.
Police must operate strictly within the powers and limitations defined by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), commonly known as "LEPRA."
The objective of adhering to LEPRA is to ensure that evidence is gathered in a way that remains usable and admissible during a later trial.
LEPRA consolidated previously scattered common law and statutory police powers into a single legislative Act.
Key powers established under LEPRA include:
Powers to stop and search individuals or vehicles based on "reasonable suspicion."
Powers of arrest.
Powers to enter and search premises, which can occur either with or without a warrant depending on circumstances.
Detention time limits for questioning, generally capped at hours, with the possibility of extension to hours upon authorization from a magistrate.
Specific safeguards for vulnerable populations, notably children.
Reporting and Detecting Criminal Activity
Crime typically comes to the attention of the police through two primary channels:
Reports made by victims, witnesses, or third parties.
Direct detection by police through patrols, surveillance, or proactive operations.
The criminal justice system is heavily reliant on the public's willingness to report crimes, as the vast majority of prosecuted crimes originate from such reports.
A significant portion of crime is never reported to the authorities, a phenomenon referred to as "the dark figure of crime."
Reasons for the non-reporting of crime include:
Fear of the offender, especially in cases involving domestic or family violence.
Shame or embarrassment surrounding the incident.
A belief that the police will be unable or unwilling to take action.
Distrust of the police force, particularly prevalent among some Aboriginal and migrant communities.
The emotional burden associated with reliving the trauma of the offence during the investigation and reporting process.
BOCSAR (NSW Bureau of Crime Statistics and Research) data highlights the extent of the "dark figure of crime":
Only approximately of physical assaults are ever reported to the police.
Only approximately of threatened assaults are ever reported to the police.
These statistics indicate that official crime data significantly understate the actual scale of offending.
Evidence Admissibility and the Rights of Suspects
Evidence gathered in compliance with the law—such as through a valid warrant, a lawful arrest, or a properly conducted interview—is generally admissible in court, governed by the Evidence Act 1995 regarding relevance and reliability.
Evidence obtained illegally or improperly (e.g., through an unlawful search, a coerced confession, or a breach of suspect rights) is not automatically inadmissible.
Under the Evidence Act, a court maintains the discretion to exclude improperly obtained evidence by weighing:
The seriousness of the police impropriety.
The necessity of deterring future police misconduct.
The public interest in admitting reliable evidence of guilt.
The case of R v Swaffield (1998) demonstrates that voluntariness is not the sole factor in admissibility. In this instance, the High Court held that a confession obtained by an undercover officer through an elaborate ruse without providing a caution or legal advice could be excluded. This decision emphasizes that confessions can be excluded if obtained unfairly, particularly when they undermine the right to silence.
Warrants, Arrests, and Detention Protocols
Police rely on different types of warrants to perform specific actions:
Arrest Warrants: Authorize police to detain a specific named individual.
Search Warrants: Authorize police to enter and search a specific location for evidence such as stolen property, drugs, or weapons. These must be approved in advance by a magistrate or authorized officer based on sworn information providing reasonable grounds.
LEPRA permits arrests and, in certain circumstances, searches without a warrant if police hold reasonable suspicion that an offence is occurring or has occurred and obtaining a warrant is not practical.
Upon arrest, suspects must be cautioned. They are informed they do not have to say or do anything, but anything they do say or do may be used as evidence. This caution protects the right to silence recognized under the Evidence Act.
Detention for questioning is limited by a "Reasonable Time" framework:
The initial detention period is capped at hours.
This can be extended to a maximum of hours with authorization from a senior police officer or a court.
Following this period, the individual must be charged, released, or have their detention further extended by a magistrate.
These time limits are designed to prevent police from using prolonged, informal detention to pressure suspects into confessions.
Limitations on Police Power and Official Oversight
The powers of the police are constrained by several mechanisms:
Procedural limitations: Regulations concerning warrants and detention time limits.
Judicial limitations: The discretion of courts to exclude evidence that was improperly obtained and the ability to declare an arrest or search unlawful after it has occurred.
Statutory safeguards: Mandatory protections for vulnerable individuals, including children, people with cognitive impairments, and those requiring interpreters.
Independent oversight: Organizations such as the Law Enforcement Conduct Commission (LECC) investigate allegations of police misconduct.
Judicial Precedents in Criminal Investigation
DPP (NSW) v SB (2020): This case centered on the legality of an arrest under section 99 of LEPRA. The law requires that an arrest be "reasonably necessary" for purposes such as preventing further offences or ensuring a court appearance. The Supreme Court confirmed that necessity is assessed objectively—whether the arrest was in fact necessary—while also noting the arresting officer's subjective state of mind regarding necessity is relevant. It serves as a modern test for the limits of police discretion regarding arrest versus proceeding by summons.
Poidevin v Semaan (2013): During a report of drug use at a block of flats, police instructed a group of men to "wait here" without formally arresting them. When Semaan attempted to depart, he was restrained, leading to a struggle and a subsequent charge of resisting arrest. This case explores the boundary between a brief, lawful investigative stop and an unlawful detention that restricts liberty without formal arrest.
R v FE (2013): This case is noted in legislative summaries, though specific verified facts should be cross-referenced with class materials.
Analytical Frameworks for Legal Evaluation
The investigation process represents the primary point of tension between the needs of community protection and the protection of individual rights.
While LEPRA grants police coercive powers (detention, search, arrest), judicial oversight via cases like Swaffield, DPP v SB, and Poidevin v Semaan ensures these powers are actively policed and limited by the courts.
The effectiveness of policing is inherently limited by the "dark figure of crime"; since the investigation process only responds to known crimes, even perfectly functioning police powers can only address a fraction of actual offending.