Flashcards in 2 Criminal Investigation Process Deck (45):
Police powers granted under
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
What are the 6 PP granted under LEPRA 2002 (NSW)
1. (Arrest) Detain and interrogation of suspects +using methods to identify them
2.Search and seizure (reasonable suspicion)
4. Using 'reasonable force' to carry out duties (Roberto Curti)
5. Use of tech (DNA, phone tapping, surveillance)
7.Issue warnings, cautions and fines
8. Access to information
Who are vulnerable persons and what are the provisions:
children, ATSI peoples, non-English speaking, physical/intellectual disability
- can have support person present
reasonable suspicion/witnessed crime/warrant
the process of detaining someone prior to charge
2.Search and seizure
for anyone over 18 - reasonable suspicion (of crime/possessing illegal articles/person agrees
/have warrant from judge (last 72 hours)
3. Emergency powers
to control a situation-use more force
2013 Roberto Curti reveals
consequences of excess & error from police power. He was tasered multiple times by many officers & died after committing a summary offence. His death was inconclusive. Only 2 officers were charged w. assault after Coronial Inquiry.
5. Use of tech (DNA, phone tapping, surveillance)
is being increasingly used in law enforcement to gather evidence and investigate reports of crime.
Conflciting concern over police use of tech (DNA, phone tapping, surveillance) because
need to improve crime detection and improve efficiency of CIP, but impacts on innoecent people;s freedoms and liberties
Procedures) Act 2000 (NSW) police have wide powers to take samples/
Divided into intimate (need order from magistrate) and non-intimate
Devices Act 1984 (NSW) allows police to record private conversations for law enforcement purposes/protect recorder's legal interests, amended in 2015 to allow video recordings of dv incidents to be used as evidence.
" Domestic violence: Recording crime scenes "
on video the new tool for police tackling Australia-wide crisis " ABC 2016
2015 amendments to Listening Devices Act 1984 (NSW) act led to
dramatic increase in convictions and more guilty pleas.
Evidence must be
gathered in a lawful manner under the Evidence Procedures Act 1995 (NSW) to be admissible (enhances effectiveness of CIP in achieving justice)
(Arrest) Detain and interrogation of suspects for how many hours?
4 hrs w/o warrant
8 hrs WITH warrant
In cases of terrorism, how long can police detain a suspect for?
48 hrs w/o a warrant
Jill Meagher 2012 Vic Police were able to convict Adrian Bailey
for brutal rape & murder using their search & seize powers to examine CCTV footage, phone records. Bailey arrested & charged 6 days later. Similar powers to NSW (Police power can= more efficient C.I.P)
Why we need more police powers?
need = playing field to catch crims that use high tech
need lots of power when dealing with terrorsits as they can do a lot of harm
Arguments for less PP
---doesn't address underlying factors of criminal behaviour
----can vilify minorities/single out individuals
----infringents of rights of innocence and normal people
more police, not power to inmprove CIP and detection
Act (No.2) 2005 NSW
Anti-Terrorism Act (No.2) 2005 NSW
person (14+yrs) suspected to be involved in terrorist activity detained for 48hrs w/o charge & this can be extended if needed.
Criticism of Anti-Terrorism Act (No.2) 2005 NSW
infringes HR as outlined by ICCPR, ppls liberties should only be restricted when there is a charge against them
After numerous amendments and in an attempt to address increasing remand and prison populations, the Bail Act 1978 (NSW) (had 80+ amendments) was replaced
by Bail Act 2013 NSW, removing presumptions for and against bail, instead introducing a risk management test. Included mitigating conditions, where individuals charged with criminal offences could be granted bail by imposing strict bail conditions.
A serious of controversial cases following the introduction of the Bail Act 2013 (NSW) including
case of Mahmoud Hawi 2014, for murder charges who applied for and was granted bail under the mitigating conditions.
And case of R v Fesus.
Media outcry and serious community concern led to review of act and more reform...
The 2014 reform which resulted following controversial granting of bail (case of Mahmoud Hawi 2014 + case of R v Fesus.)
under the revised test,
- someone who presents unacceptable risk refused bail
- Show cause measures :person charged with serious offence must show cause as to why their detention is unjustified
- vicitms views on their safety and past complaiance in parole and bail
Following the 2014 reforms implemented in September of 2014, what led to new reforms implemented in
2014 Lindt Seige café Seige, where Man Monis committed offence whilst on bail, despite having 40+ sexual assault charges w. 7 alleged victims & being an accessory to murder of ex-wife.
What reforms were introduced to bail after the 2014 Lindt Seige café Seige,?
Bail Amendment Act 2015 was in response to Martin Place Seige review:
reforms restricted violent extremists from being granted bail, when charged with serious criminal offences.
However 'terrorist activity' is a broad term.
What is a major issue with increasing remand rates balances the rights of victims, offenders and society?
Although this protects the right of the community to feel safe, the adult prison population grew by 9% in 2015–2016 (ABS 2016). This raises the question of the rights of the accused in this process and places increased pressure on the CJS whilst being more costly for the legal system to detain these offenders.
- also limits ability to promote social crime prevention.
what is another issue with regard to increasing remand rates, with regard to the extent to which the law balances the rights of victims, offenders and society?
Indigenous imprisonment in NSW: A closer look at the trend’ BOCSAR 2017 found that Indigenous remand populations were steadily increasing, mainly due to massive delays in NSW District Criminal Court.
Detention and interrogation: Rights of suspects
-to be informed of charge and of rights by police
- communicate w. fam/lawyer before police questioning
-refuse to have body samples/photos taken
-request presence of interpreter
refuse to take part in identification parade
Evidence Amendment (Evidence of Silence) Act 2013 was introduced,
to address Police frustrations with regard to criminal motorcycle gangs, where the accused remained silent until trial where they received acquittal after producing alibis. This meant there was no justice for the victim & no offenders found guilty of serious crime, causing danger to the community.
2012 Australian article ‘Right to Silence change is bad law’ NSW Law Soc. president Justin Dowd criticised
the law stating that lack of consultation had led to an ineffective law that limited the rights of individuals. The change would intimidate vulnerable individuals w. reduced understanding of the C.I.P, not criminal gangs.
Furthermore, these changes meant that the accused may not have had time to reveal e
article Law Soc. president Justin Dowd criticised
2012 Australian article ‘Right to Silence change is bad law’
What were actual changes introduced by Evidence Amendment (Evidence of Silence) Act 2013 reform and what are the implications?
allowed the jury to draw a "guilty inference" when the accused brings new evidence that was not said during questioning.
demonstrates that law reform plays a highly significant role in the criminal justice system, as it is integral for the achievement of resource efficiency and facilitates a better recognition of the rights of the victim and society.
how much do overcrowded jails cost a day
$200 000. Accroding to:
"Overcrowded jails costing NSW $200,000 a day, Auditor-General finds" (ABC 2016)
and prison populations at 120% capacity
what has NSW government pledged with regard to prison populations?
to invest $570 million over four years in strategies to reduce the rate of reoffending, ease pressure on the court system and improve community safety" "Overcrowded jails costing NSW $200,000 a day, Auditor-General finds" (ABC 2016)
Case of Mohamed Haneef (2007), arrested & detained for 2 weeks for
connections to a failed terrorist plot in Britain. Had his visa revoked, a decision found to be unlawful. Highlighted the ability of anti-terrorism laws to violate human rights. But inquiry followed, highlighting the ability for legal system to examine errors.
• Fitzgerald v Queen (2014)
F convicted of murder after his DNA was linked to evidence on Didgeridoo at crime scene. The ruling revealed
Investigating Crime (Use of technology)
errors made by lower courts were based on a misinterpretation of the DNA evidence. The High Court ruling was significant for criminal trials and future judicial decisions, showing that DNA evidence should be considered as only a piece of evidence, reducing the likelihood of jurors being deceived by authorities and technologies they may not understand and that DNA evidence is not concrete and can be circumstantial.
Remand issues: ‘Indigenous imprisonment in NSW: A closer look at the trend’ BOCSAR 2017 found
that Indigenous remand populations were steadily increasing, mainly due to massive delays in NSW District Criminal Court.
• R v Hall 2017
DNA evidence used to convict Hall of a rape that had occurred nearly 20 years earlier.
How does reporting limit the effectiveness of of CIP?
people may not report as they believe nothing will be done to offender, esp. common for breaches of ADVOS.
How does remand limit the achievement of justice in CIP?
possibility that they're accused and serious concerns for the rights of accused are raised by the increasing remand populations and backlog of courts.
33% of those in prison are on remand
"In charts: How Australia's prisoner population is booming" (The Conversation, 2017).
What is worrying about increasing prison populations?
majority of those sent to prison reoffend. Most indigenous women in prison for short sentences/remand - need better options.