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HSC LEGAL STUDIES © NATASHA ISBEL & Edrolo 2015 1

The Criminal Investigation Process – Lesson 1

Presented by Natasha Isbel

HSC Legal Studies

Syllabus Dot Points: •  Police powers •  Reporting crime •  Investigating crime: gathering evidence, use of

technology, search and seizure, use of warrants



The Criminal Investigation Process

http://upload.wikimedia.org/wikipedia/commons/7/7e/Islamic_Protest_in_Hyde_Park,_Sydney_05.JPG



You Will Learn To

•  Discuss the powers of police in the criminal process

•  Examine the reporting and investigation of crime

•  Assess the effectiveness of the criminal investigation process as a means of achieving justice



The criminal inves>ga>on

process

2. Repor>ng and

inves>ga>ng crime

4. Bail and remand

1. Police powers

3. Arrest and charge, summons

and warrants



Criminal Investigation Process (discretion, morals and ethics, compliance, balancing rights and effectiveness)

•  Long and expensive but if effective, lays the foundation for a successful conviction.

•  Strict rules for its execution e.g. collecting evidence •  It is unlawful to detain someone unless you are authorised

e.g. police have the power to detain/arrest someone in certain circumstances.

•  Police powers are strictly controlled by –  Law Enforcement (Powers & Responsibilities) Act 2002

(NSW) –  Police Code of Practice for CRIME (Custody, Rights,

Investigation, Management and Evidence)



Police Powers Police:

–  critical to the legal system because otherwise the entire criminal justice system is let down

–  prevent crime = deterrence and investigating criminal activities –  assisting prosecutions e .g. specialist police prosecutor in Local Court

Have various powers, including: 1.  Arrest - s.21 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ; either

must •  Have a warrant or •  Be going to charge a person with an offence (they are taking them to court on

the basis of a reasonable suspicion); 2.  Issue warnings, cautions, fines for less serious offences 3.  Stop, search and detain (unlawfully hold someone against their will) - must have

reasonable grounds to suspect the person or car is carrying an illegal article e.g. drugs, weapon, proceeds of crime



Powers Are Not Unlimited Criticisms have been made that NSW police have an increasing: •  number of powers e.g. use of

Tasers = Roberto Curti; terrorism laws = Dr Haneef

•  range of activities that are being criminalised e.g the Crimes (Criminal Organisations Control) Act 2009 (NSW).

Have the reforms gone too far as they have an unduly harsh impact on individual rights? Or do these laws effectively address society’s concerns about law and order/changing community standards?

•  It is very important that police powers maintain a balance between the rights of victims and accused.

•  This ensures: –  A strong rule of law –  Public retains confidence in

the integrity of the investigation process

–  Justice is achievable because if the investigation is flawed, then it may risk the failure to secure a conviction at trial (not a just outcome for the victim)



Case Study: Death of Roberto Curti

•  Curti died in 2012 after being tasered up to 14 times by police in an attempt to arrest him. He had taken LSD and was wrongly assumed to have stolen biscuits from a convenience store.

•  Up to 12 police chased Curti, before pinning him down and handcuffing him. He was tasered several times and died at the scene.

•  A coronial inquest into Curti’s death recommended several police officers face disciplinary action, finding that the police had acted in a ‘thuggish manner’

•  4 police involved were charged, 2 with common assault and 2 with assault occasioning bodily harm. Only one was found guilty in relation to the use of capsicum spray.

•  Case highlights the importance of the rule of law = police are not above the law in using their powers

http://transform.fairfaxregional.com.au/transform/v1/resize/frm/storypad-WymvzAyKxdrzBvLAGd8HWp/d8126462-7f50-4fe7-992f-9b8a8c6cf6b7.jpg/w1200_h678_fmax.jpg



Role of Discretion in exercise of Police Powers

With limited resources: 1.  police must decide which

crimes to target and which reports to investigate;

2.  crime is not always as

thoroughly investigated as it could be

https://www.flickr.com/photos/jayneandd/4077933216



2. Reporting and Investigating Crime

•  Police rely on the public to report crimes

•  Community based programs e.g. Crime Stoppers and Neighbourhood Watch = without public assistance it would be difficult for police to solve and prevent crime.

•  Many crimes go unreported e.g. sexual assault, domestic violence, child abuse

https://crimestoppers.com.au/



Investigating Crime

•  Police use their discretion to determine whether or not to investigate an alleged crime = exercise influenced by: –  seriousness of the crime –  resources of the police –  policy decisions Police are involved in all aspects of the

criminal investigation process – this is important as it helps to achieve just outcomes

•  The police use a variety of tools to help them with their investigations: a.  Gathering evidence b.  Technology c.  Search and seizure d.  Warrants



a. Gathering evidence

•  Gathered by police and used by the prosecution to prove the criminal charge in court (and gain a conviction) = a core police function

•  Prosecution’s case will be more compelling with better quality and greater volume of evidence

•  Police have significant resources at their disposal to search and seize to gather evidence but must follow protocol: Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence) = limits police powers and operates as a mechanism to assist the balance of police powers and the rights of accused peoples



a. Gathering evidence (cont)

•  Evidence must be gathered lawfully and following correct procedures or it is inadmissible

•  Strict rules for gathering evidence = Evidence Act 1995 (NSW): –  evidence must pass the relevance, reliability and fairness test –  applies to all proceedings in a NSW court, except sentence

proceedings. •  May be:

–  physical = paper, coins, clothing or weapons –  electronic = photographs, email, phone and internet records,

computer drives –  forensic = DNA, blood splatter patterns –  witness statements = what people saw/heard e.g. identification and

expert



b. Use of technology

•  Revolutionised not only the commission of new crimes (e-commerce fraud, identify theft etc) but also the gathering of evidence e.g. CCTV, DNA left at crime scene

•  Used in a number of ways: –  forensic e.g. taking buccal swabs, tyre marks left at crime scene,

DNA; –  fingerprints and photos = Law Enforcement (Police Powers and

Responsibilities) Act 2002 (NSW) –  surveillance e.g. phone tapping and video = covered by the

Surveillance Devices Act 2007 (NSW) •  Traces of DNA are often left at crime scenes in blood, hair, nail or skin •  NSW has strict rules about the use of DNA evidence and its collection -

Crimes (Forensic Procedures) Act 2000 (NSW). These restrictions help to balance the rights of the victim, the offender and society



DNA

•  An important advance in technology helping solve both current and cold cases

•  BUT there have been some concerns about relying on DNA testing to prove a crime and gain a conviction

•  ABC Lateline ‘CSI Effect questions forensic evidence’ May 2012: –  Expert evidence or junk science? That's the question being asked after a

series of high profile appeals in recent months. They've raised alarming doubts about the use of untested evidence that can put innocent people behind bars.

–  It's called the CSI effect: the highly seductive notion that forensic science, at least on television, never fails. But in the real world, say the experts, forensic evidence is complex and maddeningly inconclusive, and when used in court, can be dangerously misleading for juries.

•  There is a natural tension between the rights of the accused, the victim and the community within the criminal investigation process = need for the law to remain balanced



Case Study: R v Farah Abdulkadir Jama (2008)

•  Accused convicted of raping a woman in a nightclub solely on the basis of DNA evidence; sentenced to 6 years jail

•  Doubts raised about the reliability of the DNA sample; appeal succeeded

•  Vincent Inquiry looked at how the prosecution case was mounted and pursued on dubious evidence = made various recommendations

•  Attorney Generals set up a working group to consider need for: –  nation wide standards for the collection and use of

DNA evidence –  measures ensuring the ‘CSI effect’ does not

compromise the integrity and fairness of criminal prosecutions relying on DNA evidence

http://www.truebluemagazine.com/wp-content/uploads/2014/02/dnasecret2.jpg



Case Study: R v Gillham (2009) and (2012)

•  Technology used to successfully appeal 2 murder convictions

•  Demonstrates importance of protections within the criminal justice system to ensure that an innocent man isn’t imprisoned = appeals, balancing rights, standard of proof

•  LIAC State Library Case Notes: –  Police investigation, coronial inquest and two

criminal trials = Gilham guilty of murdering his parents in 1993. Sentenced to life.

–  He always maintained that Christopher, his older brother, had murdered their parents and that Jeffrey stabbed Christopher in a rage on discovering his parent’s death

–  In 2011 Gilham's conviction was quashed by the NSW Court of Criminal Appeal and he was subsequently acquitted by the NSW Court of Criminal Appeal in 2012.

http://www.theaustralian.com.au/



Case Study: R v Silva (2015) NSWSC

•  Having been in a volatile and abusive relationship, Silva killed her ice addicted ex-partner in 2012

•  NSW Supreme Court jury found her not guilty of murder but guilty of the lesser charge of manslaughter on the grounds of excessive self-defence.

•  Extensive surveillance evidence used in trial – phone tapping (voice and text) as victim was being investigated by police in relation to another murder

•  This evidence enabled justice to be done as defence to charge was established

http://www.smh.com.au /



c. Search and seizure and d. Use of warrants

•  The Law Enforcement (Powers and Responsibilities) Act s.21 gives police the power to enter and search premises for the purposes of seizing evidence providing they obtain a warrant issued by the court.

•  In certain circumstances police can enter premises without a warrant e.g. domestic violence, crime has or is likely to have occurred on the premises.

•  Police have the power to search: –  If the person consents –  Person is under arrest or in custody –  If have a search warrant –  Reasonable grounds for suspecting person has if their possession anything that is

•  Stolen •  Drugs •  Weapons •  Implements of crime/dangerous implements

•  Police killing of David Gundy 1991 = example of an unlawful police raid as a warrant was obtained on the basis of false information and was incorrectly executed.

•  Law reformed after this to require warrants to be issued by courts rather than Justices of the Peace = meets community standards for police to be accountable when using their special powers



Improperly obtained evidence

Anything that has been improperly or illegally obtained by police cannot be used as evidence unless the court uses its discretion to allow it in the public interest (Evidence Act 1995 s.138).

https://www.flickr.com/photos/notbrucelee/7113385543



Fact Check

Lou is suspected by the Police of having stolen a car. Which of the following is a legal power that the police have when they approach Lou?

A.  To arrest Lou

B.  To fingerprint Lou

C.  To require Lou to answer questions

D.  To require Lou to go to the police station

(BOS 2011 Exam Q19)



Fact Check (Answer)

Lou is suspected by the Police of having stolen a car. Which of the following is a legal power that the police have when they approach Lou?

A.  To arrest Lou

B.  To fingerprint Lou

C.  To require Lou to answer questions

D.  To require Lou to go to the police station

(BOS 2011 Exam Q19)

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