📋 How to use this page

This is the full-content study version of Chapter 2 — read it for revision or self-study. Your teacher will teach from the matching slide deck. Deeper case treatment and essay practice live in the Crime Study Guide. Everything here maps to the NESA Crime syllabus dot points under "The criminal investigation process." The running theme is the balance between the rights of the suspect and the rights of the community — and the role of police discretion.

2.1 Police powers

Syllabus: police powers.

Why police powers exist

Laws are of little use without a body to enforce them — voluntary compliance by every member of the community is unrealistic. The NSW Police Force is responsible for detecting crime, keeping the peace, and responding to breaches of the criminal law. Because police act on behalf of the state, their powers must be carefully defined and limited — every power given to police is, in effect, a corresponding limit on individual liberty. The central tension of this whole chapter is balancing effective law enforcement against the rights and freedoms of individuals.

Legislation — the core statute
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) — "LEPRA"

LEPRA is the single most important Act for this chapter. It consolidates most NSW police powers — stop, search and detain; entry; arrest; the use of warrants; and the rules for detention and questioning after arrest (Part 9) — and sets out the safeguards that come with them. Where you can, cite LEPRA rather than "the law".

Powers granted to police under LEPRA

  • To stop, search and detain a person, or search a vehicle, where the officer has a reasonable suspicion.
  • To seize items connected to an offence (e.g. weapons, prohibited drugs, stolen goods).
  • To request identifying particulars (name and address) in defined circumstances.
  • To give move-on directions to a person or group.
  • To arrest without warrant in defined circumstances, and to use reasonable force to do so.
  • To detain a suspect for investigation after arrest, and to question them, within the limits in Part 9.
💡 Exam tip — "reasonable suspicion"

The threshold for most search powers is that the officer suspects on reasonable grounds. This is more than a hunch — it must be based on some fact or circumstance. It is the main legal check on the exercise of police discretion, and a classic point for evaluating whether the law balances enforcement against individual rights.

Police discretion

Discretion is the power to choose whether and how to act — for example, whether to issue a caution, a fine, or a charge, or whether to stop and search at all. Discretion makes policing flexible and humane, but it can also be exercised inconsistently, which raises concerns that some groups are policed more heavily than others.

Oversight and accountability

Because police powers can be abused, independent oversight bodies exist to receive complaints and investigate serious police misconduct:

Oversight body (current)
Law Enforcement Conduct Commission (LECC)

The LECC began operating on 1 July 2017 and is the independent watchdog for the NSW Police Force. It replaced the former Police Integrity Commission and took over the police-oversight role previously held by the NSW Ombudsman, consolidating oversight into a single body that detects, investigates and oversees the handling of serious police misconduct and corruption.

⚠️ Common exam error

Older textbooks (and the class notes) still refer to the Police Integrity Commission and the NSW Ombudsman for police complaints. For the current law, name the LECC (from 2017). You can mention the PIC/Ombudsman as the former arrangement to show the law has been reformed.

2.1.1 Law reform — move-on powers

Police powers are regularly expanded and contested. A good worked example is the move-on direction. LEPRA lets police direct a person to leave a public place and not return for a period, where their behaviour (for example, intoxicated and disorderly conduct) meets the statutory grounds. Amendments have broadened these powers over time — including a continued intoxicated-and-disorderly offence for people who fail to comply.

🤔 Reflection
Broader move-on powers give police more flexibility to keep public order — but critics argue they are used disproportionately against young people, Aboriginal and Torres Strait Islander people, and the homeless. How should the law balance order against equality before the law?
Link to two themes at once: discretion (broad powers + subjective grounds = uneven enforcement) and the law balancing the rights of individuals against the community. Strong answers use data (e.g. BOCSAR) and note that a power that is lawful in the statute can still be ineffective or unjust in how it is applied.

2.2 Reporting crime

Syllabus: reporting crime.

Most investigations begin because a member of the public reports a crime. The community therefore plays an essential role: without reports, many offences would never come to police attention. Reporting can be direct (000, attending a station) or anonymous.

The role of Crime Stoppers

Crime Stoppers is a national, community-based program that lets people report crimes, pass on information about unsolved crimes, or report suspicious activity — anonymously, by phone or online. Anonymity encourages people who would otherwise fear reprisals to come forward, which supports both investigation and prevention.

Online reports (2022)
≈ 187,000
Hotline calls (2022)
≈ 185,000
Charges laid
≈ 10,000
Arrests
≈ 4,200
💡 Using statistics

Quote figures as approximate and cite the source (Crime Stoppers, or BOCSAR for NSW recorded-crime data). A single up-to-date statistic is worth more in an answer than a vague claim — but always link it back to a point about effectiveness.

Why don't people report crimes?

A large share of crime is never reported — the "dark figure" of crime. Reasons include:

  • Inability to report (communication or language barriers, disability, remoteness).
  • Fear of the consequences or of reprisals from the offender.
  • Unwillingness to relive the trauma, or to appear as a witness.
  • A belief that the police can't or won't help, or that the matter is too minor.
  • The dispute has already been resolved privately.
  • Shame, or a relationship with the offender (a major factor in family and domestic violence).

Under-reporting: domestic and family violence

Some categories of crime are heavily under-reported, which distorts crime statistics and hampers the criminal justice system's ability to respond. Domestic, family and sexual violence is a leading example — victims may fear the offender, depend on them financially, or distrust the process.

Experienced violence since age 15
≈ 2 in 5 adults
Intimate-partner/family violence — women
≈ 1 in 4
Intimate-partner/family violence — men
≈ 1 in 8

Figures drawn from ABS Personal Safety Survey data (rounded). Women are far more likely than men to experience violence by an intimate partner or family member; men are more likely to experience violence by a stranger.

🤔 Reflection
If a crime is never reported, has the criminal justice system failed? What could improve reporting rates for domestic violence without adding to the pressure on victims?
Consider measures beyond policing — specialist DV liaison officers, ADVOs, safe-reporting pathways, and community education. Link to the effectiveness of the criminal justice system and to the theme of balancing the rights of victims against those of the accused.

2.3 Investigating crime

Syllabus: investigating crime — gathering evidence, use of technology, search and seizure, use of warrants.

Gathering evidence

Once a crime is reported, police gather evidence to build a brief that can support a charge in court. Speed matters: witnesses give the freshest and most reliable account soon after the event, and physical evidence degrades or is lost. Evidence is documented carefully in situ (photographed, recorded, bagged and labelled) to preserve its integrity and its value in court.

Legislation — the rules of evidence
Evidence Act 1995 (NSW)

Sets out how evidence may be gathered and when it is admissible in court. Evidence must generally be relevant and lawfully obtained. A court can exclude improperly or illegally obtained evidence — a powerful safeguard against police cutting corners. This links the investigation stage directly to the trial.

Types of evidence

  • Physical (real) evidence — objects: weapons, fingerprints, clothing, drugs.
  • Documentary evidence — records, messages, CCTV footage, business documents.
  • Witness testimony — what a witness saw or heard. An expert witness (e.g. a forensic scientist, pathologist or DNA analyst) gives specialised opinion evidence.
💡 Exam tip

Expert and DNA evidence can be very persuasive to a jury — but it is not infallible. Keep that phrase handy: it sets up the reliability point you develop with the Farah Jama case below.

Use of technology

Technology has transformed investigation — DNA profiling, fingerprint and facial-recognition databases, CCTV and automatic number-plate recognition, mobile-phone and metadata analysis, and body-worn cameras. Used well, these tools solve crimes faster and can re-open cold cases years later, and they can exonerate the innocent as well as identify the guilty.

DNA evidence — powerful but not conclusive

A person must generally consent to a DNA sample (a mouth swab or blood sample). If they refuse, police may in defined circumstances obtain a court order authorising a sample to be taken using reasonable force. DNA can place a suspect at a scene — but a "match" only shows contact with the sample, not how or when it got there, and samples can be contaminated in collection or laboratory handling.

Case — DNA reliability & contamination
R v Jama (Farah Abdulkadir Jama), Victoria — convicted 2008, conviction quashed 2009

Farah Jama was convicted of rape almost entirely on a single DNA sample. He had an alibi and there was no other evidence linking him to the scene — no CCTV, no eyewitness placing him there. It later emerged the DNA sample had been contaminated: material from an unrelated examination of Jama on another day had cross-contaminated the swab. His conviction was quashed in 2009 and a review followed into DNA-handling standards.

⚖️ Significance: a leading warning against treating DNA as automatically conclusive — the "CSI effect" can lead juries to over-value forensic evidence. Use it for the reliability of evidence and balancing the rights of the accused points.
🤔 Reflection
DNA can both convict the guilty and free the innocent. Does the persuasive power of DNA evidence make wrongful convictions more or less likely?
Both are arguable. DNA has freed innocent people through post-conviction testing; but over-reliance on a single "rock-solid" sample (as in Jama) can crowd out reasonable doubt. The safeguard is not banning DNA but insisting on rigorous chain-of-custody, disclosure of limits, and corroborating evidence.

Search and seizure

Search-and-seizure powers are among the most controversial police powers because they intrude on privacy and property. Under LEPRA, police may stop and search a person, or their bag, vehicle or possessions, where they suspect on reasonable grounds that the person is carrying something such as a prohibited drug, a stolen item, a dangerous implement or a thing used to commit an offence — and may seize such items.

  • Different rules and safeguards apply in different settings (a person in the street, a vehicle, a home, or a school).
  • Police should identify themselves, give the reason for the search, and conduct it with as much privacy and dignity as the circumstances allow.
  • Strip searches attract the strictest safeguards and are only lawful where the seriousness and urgency make them reasonably necessary — an area of frequent complaint and reform debate.
⚠️ Balance point

Every search power trades privacy for public safety. The reasonable suspicion requirement is the check that stops random or discriminatory searches — evaluate whether it works in practice, not just on paper.

Use of warrants

A warrant is a legal document issued by an independent judicial officer (a magistrate or judge) authorising police to do something that would otherwise be unlawful — most often to search premises or to arrest a named person. To obtain a search warrant, police must satisfy the officer that there are reasonable grounds; the warrant states what may be searched and what may be seized.

This judicial oversight is a key safeguard: by requiring an independent officer to approve intrusive action in advance, the warrant system caps police discretion and reduces the risk of misuse. Police may video-record the execution of a warrant, both to gather evidence and to protect themselves against later allegations of misconduct.

💡 Exam tip

Frame warrants as a rights-protecting mechanism: they insert an independent umpire between the police and the citizen. That is exactly the "balancing individual rights against community needs" idea the markers want.

Body-worn cameras

Body-worn video cameras were rolled out to NSW frontline police from about 2015. They record interactions on duty and can capture strong contemporaneous evidence — for example, of a victim's injuries or demeanour at a domestic-violence callout. They also promote accountability on both sides: officers and members of the public tend to moderate their behaviour when they know it is being recorded, and footage can resolve disputed accounts of what happened.

2.4 Arrest, charge, summons and warrants

Syllabus: arrest, charge, summons, warrants.

2.4.1 Arrest

The lawful grounds for arrest without warrant are set out in LEPRA. An officer may arrest a person where they:

  • are found in the act of committing an offence; or
  • are reasonably suspected of having committed, or being about to commit, an offence; or
  • are the subject of an outstanding arrest warrant.

Critically, LEPRA requires that arrest is exercised for a proper purpose — such as to stop the offence, ensure the person appears in court, preserve evidence, or protect safety. Arrest should be a last resort, not a routine first step: if a court attendance notice will do, that should be used instead.

Making the arrest lawful

  • The officer must tell the person they are under arrest and why (the reason for the arrest).
  • Police may use reasonable (necessary) force — no more than the situation requires.
  • Excessive force can itself be an offence and can be complained of to the LECC.
💡 "Last resort"

The "arrest as a last resort" principle is a favourite exam point. It shows the law trying to minimise interference with liberty — an arrest is a serious deprivation of freedom, so the power is hedged with purpose requirements and alternatives.

2.4.2 Charge

After arrest, a suspect is taken to a police station where police decide whether to charge them. At the end of the lawful investigation period (see 2.6), the person must be either charged or released — police cannot hold someone indefinitely. Once charged, the accused may be fingerprinted and photographed, and must be brought before a court as soon as practicable, where a bail decision is made.

2.4.3 Summons, court attendance notices and warrants

⚠️ Terminology update

The syllabus lists "summons", but NSW no longer uses that term for commencing most criminal matters. In practice you should know the Court Attendance Notice (CAN) and the subpoena. Mention that "summons" is the older word and CAN is the current mechanism.

Court Attendance Notice (CAN)
A legal document stating when and where the accused must appear in court and the charge they must answer. It commences proceedings without arrest — the alternative that makes "arrest as a last resort" possible.
Subpoena
Orders a witness to attend court to give evidence or produce documents. Failing to comply can lead to arrest or contempt — this is the witness equivalent of a CAN.
Arrest warrant
A judicial order authorising police to arrest a named person — e.g. where an accused fails to appear.
Search warrant
A judicial order authorising police to enter and search specified premises and seize specified things (see 2.3).

2.5 Bail or remand

Syllabus: bail or remand.

Bail is the conditional release of an accused person into the community while they await their trial or hearing. The alternative is remand — being held in custody until the matter is dealt with. This decision sits at the heart of the "presumption of innocence vs community safety" balance, because the accused has not yet been found guilty.

Bail
Released (with conditions)
Remand
Held in custody

Remand

If bail is refused, the accused is held on remand. Remand prisoners are un-convicted, but held because release is judged unsafe or unsuitable. If the person is later found guilty and sentenced to prison, time already spent on remand is normally deducted from the sentence. Note the equity concern: people who are homeless or disadvantaged can find it harder to meet bail conditions and so are more likely to be remanded.

Legislation — the current bail law
Bail Act 2013 (NSW)

Commenced May 2014, replacing the Bail Act 1978 (NSW). Its centrepiece is the "unacceptable risk" test. It was then toughened by the Bail Amendment Act 2014, which added the "show cause" requirement for serious offences (commenced 28 January 2015).

How a bail decision is made

  1. Show cause (serious offences only). For a defined list of serious offences (e.g. offences carrying life imprisonment, serious personal-violence and sexual offences, and serious offences allegedly committed while already on bail or parole), there is an extra hurdle: the accused must show cause why their detention is not justified. If they cannot, bail is refused. If they do show cause, the decision then moves to the unacceptable-risk test.
  2. The unacceptable risk test (all offences). The bail authority assesses whether the accused poses an unacceptable risk of: failing to appear; committing a serious offence; endangering the safety of victims, individuals or the community; or interfering with witnesses or evidence. If any unacceptable risk cannot be reduced to an acceptable level by conditions, bail is refused.

Bail conditions

Where bail is granted, conditions can be imposed to manage risk — for example reporting to a police station, a curfew, an electronic monitoring anklet, a residence condition, non-association or non-contact conditions, surrendering a passport, or a surety (a sum of money pledged, often by another person, forfeited if the accused fails to appear).

Case study — bail reform
Man Haron Monis & the Lindt Café siege (2014)

Man Haron Monis carried out the fatal Lindt Café siege in Sydney's Martin Place in December 2014. At the time he was on bail — he had been charged with being an accessory to the murder of his former wife, and separately with dozens of sexual-assault offences, yet was released into the community. The coronial inquest into the siege, whose findings were delivered in May 2017, examined how he came to be on bail and criticised aspects of the handling of his bail.

⚖️ Significance: a high-profile driver of the debate that tightened NSW bail law (the unacceptable-risk framework and the show-cause requirement). Use it to argue that law reform often responds to public pressure after a tragedy — and to weigh community safety against the presumption of innocence.
⚠️ Accuracy note

Monis was on bail for accessory to murder and sexual assault charges — not for terrorism. The bail decisions and the DPP's handling of them were scrutinised by the inquest. Keep the facts precise; markers reward accuracy over drama.

🤔 Reflection
Refusing bail imprisons a person who is still legally innocent. Granting it risks releasing someone who may reoffend or abscond. Does the Bail Act 2013 strike the right balance?
Argue both sides. Post-Monis reforms improved community protection and public confidence, but tougher bail has contributed to a rising remand population — including un-convicted, disadvantaged and Aboriginal defendants (cite BOCSAR). Effectiveness must weigh safety and the presumption of innocence and equity.

2.6 Detention, interrogation and the rights of suspects

Syllabus: detention and interrogation, rights of suspects.

After a lawful arrest, police may detain a suspect to investigate the offence and to question (interrogate) them — but only for a limited time and subject to strict safeguards. These rules are in Part 9 of LEPRA, and they exist to prevent oppressive questioning and unreliable (e.g. coerced) confessions.

The investigation (detention) period

  • The initial investigation period is a maximum of 6 hours from arrest.
  • Police can apply to an authorised officer for a detention warrant to extend it by up to a further 8 hours.
  • At the end of the period the suspect must be charged or released — they cannot be held indefinitely for investigation.

"Time-outs" — what does not count towards the 6 hours

Certain reasonable time-outs pause the clock and are not counted in the investigation period, including:

  • Time waiting for a lawyer, a support person, a parent/guardian or an interpreter to arrive.
  • Toilet, meal, rest, shower or medical-treatment breaks.
  • Time for the suspect to recover from the effects of alcohol or drugs.
  • Time spent transporting the person from the point of arrest to the station.
💡 Exam tip

Don't just recite "6 hours". The time-outs are the interesting bit: they mean a suspect can be at the station much longer than six hours in real time. That's a point about how a safeguard can be stretched — good for evaluating effectiveness.

Rights of suspects

A detained suspect keeps important rights, which balance the state's investigative power against the individual's liberty:

Right to silence
A suspect is not obliged to answer questions (beyond identifying particulars). Silence generally cannot be treated as an admission of guilt.
The caution
Before questioning, police must caution the suspect that they need not say anything but that anything they do say may be used in evidence.
Right to communicate
The right to contact a friend, relative, or an Australian legal practitioner, and to have a lawyer present during questioning.
Support persons
Extra safeguards apply to vulnerable persons — children, and people with impaired intellectual functioning — who are entitled to a support person.
Interpreter
A suspect who cannot communicate adequately in English is entitled to an interpreter.
Electronic recording
Admissions in serious matters must generally be electronically recorded to be admissible — protecting against "verballing" (fabricated confessions).
⚠️ Why the safeguards matter

If police breach these rules, any confession or evidence obtained can be ruled inadmissible under the Evidence Act 1995 (NSW). The rights of suspects are not "letting criminals off" — they protect the reliability of the process and the innocent against wrongful conviction.

🤔 Reflection
Do the detention time limits and suspects' rights make investigation too hard for police — or are they the minimum needed to keep the process fair and reliable?
Weigh effectiveness (police say tight limits and the right to silence can frustrate serious investigations) against rights and reliability (limits and recording prevent oppression and false confessions). The recurring theme is compliance and the balance of the rights of the suspect against the community.
✅ Chapter 2 checkpoint

You should be able to: explain the source and limits of police powers under LEPRA and the role of the LECC; describe how and why crime is reported (and under-reported); explain how police gather evidence and use technology, search & seizure and warrants (with the Evidence Act 1995 and the Jama reliability point); set out the grounds for lawful arrest, the CAN, and "arrest as a last resort"; apply the Bail Act 2013 unacceptable-risk and show-cause tests (with the Monis/Lindt Café case); and explain the detention period and the rights of suspects. Test yourself in the Crime Study Guide → Self-Test. Everything here threads back to one question: does the law fairly balance the rights of the suspect against the rights of the community?