HSC Legal Studies · The Crime Core (30%)

Chapter 2
The Criminal Investigation Process

Police powers, evidence, arrest, bail and the rights of suspects — and the balance between the individual and the community · NESA Syllabus 2009
Where we're going

By the end of this chapter you can…

Running thread: does the law fairly balance the rights of the suspect against the community?

2.1

Police powers

2.1 Police powers

Powers — and their limits

Police detect crime and keep the peace. Every power they hold is a limit on someone's liberty, so powers are defined and capped by statute.

LEPRA (2002)

The core statute — stop/search/detain, entry, arrest, warrants, and detention & questioning (Part 9).

"Reasonable suspicion"

The threshold for most searches — more than a hunch. The main check on police discretion.

2.1 Oversight & accountability

Who watches the police?

Exam update: name the LECC, not the old PIC/Ombudsman, for current police complaints.

2.1.1 Law reform

Case in point: move-on powers

LEPRA lets police direct a person to move on from a public place. Amendments have broadened these powers (e.g. a continued intoxicated-and-disorderly offence).

For

More flexibility to keep public order and prevent escalation.

Against

Applied disproportionately to youth, First Nations people and the homeless → equality concern.

Themes: discretion + balancing individual rights against the community.

2.2

Reporting crime

2.2 Reporting crime

Most cases start with a report

Crime Stoppers

National, community-based, anonymous reporting by phone/online — encourages people who fear reprisals to come forward.

Why crimes go unreported

Fear/reprisal · trauma · distrust of police · shame · relationship with offender · "too minor".

Under-reporting: domestic & family violence

1 in 4 women and 1 in 8 men have experienced intimate-partner/family violence since age 15 (ABS). Heavy under-reporting distorts statistics and hampers the response.

2.3

Investigating crime

2.3 Gathering evidence

Build a case that stands up in court

Gather evidence quickly and document it in situ to preserve integrity. Three types: physical, documentary, witness testimony (incl. expert witnesses).

Evidence Act 1995 (NSW)

Sets when evidence is admissible — it must be relevant and lawfully obtained. Improperly obtained evidence can be excluded — a safeguard linking investigation to trial.

2.3 Use of technology

DNA — powerful but not infallible

DNA, databases, CCTV, phone data & body-worn cameras solve crimes and re-open cold cases — and can exonerate the innocent. But a match shows contact, not guilt, and samples can be contaminated.

R v Jama (VIC) — convicted 2008, quashed 2009

Convicted of rape on a single, contaminated DNA sample despite an alibi and no other evidence. Conviction quashed. A warning against the "CSI effect" of over-valuing forensic evidence.

2.3 Search, seizure & warrants

Intrusive powers — and their checks

Search & seizure

Stop/search on reasonable suspicion; seize drugs, weapons, stolen goods. Strip searches = strictest limits. Trades privacy for safety.

Warrants

Independent judicial officer authorises a search/arrest in advance — caps police discretion (rights-protecting).

Body-worn cameras

Rolled out from ~2015. Contemporaneous evidence + accountability on both sides.

2.4

Arrest, charge, summons & warrants

2.4.1 Arrest

Lawful arrest under LEPRA

Grounds to arrest without warrant — the person is:

Must state you're under arrest and why; only reasonable force. Key Arrest is a last resort.

2.4.2 & 2.4.3 Charge · CAN · warrants

After arrest: charge or release

2.4.2 Charge

At the end of the investigation period → charge or release. If charged: fingerprints/photos, then before a court "as soon as practicable" for bail.

2.4.3 CAN & subpoena

Court Attendance Notice starts proceedings without arrest (replaces "summons"). Subpoena compels a witness.

The CAN is what makes "arrest as a last resort" workable.

2.5

Bail or remand

2.5 Bail or remand

Release, or held in custody?

Bail = conditional release before trial. Remand = held in custody. The accused is still legally innocent — so this is the presumption-of-innocence vs community-safety balance.

Bail Act 2013 (NSW) — two hurdles

1. Show cause (serious offences): accused must show why detention is not justified. 2. Unacceptable risk (all offences): refuse bail if risk of flight, reoffending, danger, or interfering with witnesses can't be managed by conditions. Show-cause added by the 2014 amendment.

2.5 Case study — bail reform

Man Monis & the Lindt Café siege (2014)

On bail at the time of the siege

Monis carried out the fatal Lindt Café siege (Dec 2014) while on bail — charged as an accessory to his ex-wife's murder and with sexual assaults (not terrorism). The coronial inquest (findings May 2017) scrutinised his bail.

A driver of tougher NSW bail law — weigh community safety against the presumption of innocence & a rising remand population.

2.6

Detention, interrogation & rights

2.6 Detention period

How long can police hold you?

Time-outs (lawyer/interpreter, meals, medical, sobering up, transport) pause the clock — so real time can be much longer. Part 9 LEPRA.

2.6 Rights of suspects

Safeguards during questioning

Silence & caution

Right to silence; police must caution before questioning. Silence ≠ guilt.

Contact & support

Contact a friend/lawyer; support person for vulnerable suspects (children, impaired); interpreter.

Recording

Serious admissions must be electronically recorded to be admissible — guards against "verballing".

Breach → evidence can be ruled inadmissible (Evidence Act). Rights protect reliability, not just the accused.

End of Chapter 2

Recap & check

Police powers (LEPRA) & the LECC · reporting & under-reporting · investigating (Evidence Act, DNA/Jama, search & seizure, warrants, body-cams) · arrest & the CAN · Bail Act 2013 (unacceptable risk + show cause; Monis) · detention & suspects' rights. Always ask: does the law balance the suspect against the community? Next: Chapter 3 — the Criminal Trial Process.
1 / 0