Criminal Practice - Police Powers

Question 1

Identification Procedures

Answer 1

When ID procedure must be held:

1. Witness identified (or purported to identify) suspect
2. Witness say they can identify suspect
3. Reasonable chance witness can identify suspect

If witness knows the suspect there is no need to have an ID procedure

As a general rule, if witness does not know suspect or did know them but has not seen them for a very long time an ID procedure will be required

Taking witness to crime scene:

• If witness does identify suspect at the crime scene the police would have to follow this up with an ID procedure

Question 2

Rights of Suspects in ID procedure

Answer 2

• Entitled to have legal advice and be advised for reason for procedure
• Do not need to co-operate but failure to co-operate may be raised at trial
• Failure to co-operate won’t stop procedure going ahead as it may be held covertly
• Suspects on police bail should be warned that any changes in appearance may be used against them and adverse inferences drawn

Question 3

Types of Identification Procedures

Answer 3

Video identification

Moving images of suspect and eight or more others shown to witness

The others must resemble the suspect in age, height, appearance, and any position in life, and any distinguishing features must be concealed

Solicitor and suspect must be able to raise reasonable objections

Must be shown images at least twice and be warned suspect may not be featured

Identification parade

Suspect and eight or more others line up in person

The ‘others’ must resemble suspect in age, height, appearance and position in life, any distinguishing features should be concealed

Suspect and solicitor must have the right to raise reasonable objections (if reasonable objections not considered risk an application for evidence obtained to be excluded at trial)

Witness must be warned the suspect may not feature

Parade should be recorded or colour photographed

Group identification

• Witness sees suspect in informal group setting (can be done covertly)
• Colour photograph or video should be taken immediately after identification

Confrontation

• Witness confronted with suspect
• Witness must be warned that suspect may not be present
• Suspect has right to have solicitor/friend present unless it would cause undue delay
• Asked ‘is this the person you saw on the earlier occasion?’

Question 4

Objections to Identification Evidence

Answer 4

Grounds:

• Police disregarding reasonable objections to appearance of others;
• Not keeping witness away from suspect / not keeping different witnesses apart before or during identification process;
• Not warning witnesses that suspect might not be shown at all

Could lead to evidence being excluded - court will consider whether admission would have such an adverse affect on fairness of trial that it ought to be excluded

Question 5

Suspect’s Rights in Interview

Answer 5

• Right to legal representation
• Right to remain silent (must be told at start at interview in the caution)

Caution:

“You do not have to say anything but it may harm your defence if you do not mention something you later rely on in court. Anything you do say may be given in evidence.”

• Right to remain silent
• Adverse inference

Possible for defendant to object to interview being admissable at trial (e.g. if no caution given)

Special Caution:

• If suspect is asked to account for their presence at the scene of the offence or an object/substance/mark found on them at the time of the arrest
• Interviewing officer should give special caution outlining what offence is being investigated and what fact suspect is being asked to comment on before warning that an adverse inference may be drawn if they fail to account for a fact now that they seek to rely on in court

Question 6

Suspect’s Options in Interview

Answer 6

• Answer questions
• Decline to answer questions
• Prepared statement but answer no further questions

Question 7

Conduct of Interviewing Officers

Answer 7

• Should avoid using oppression or inducement as this could lead to the exclusion of the interview from evidence
• Oppression includes torture, inhuman or degrading treatement and the use or threat of violence
• Oppression may be shouting, using or threatening violence, aggression or a lot of officers present in interview room
• Inducement may include offer of bail, early release from custody, promise to provide a nice meal or cigarette

Question 8

Conduct by Defence Representatives

Answer 8

• Can intervene in order to seek clarificaiton, challenge an improper question or manner of questioning, advise their client not to reply to a particular question or ask for the interview to be halted to provide further advice
• Cannot tell suspect what to say or answer on behalf of suspect
• Should be warned if they do this and if they continue the interview should be stopped and interviewing officer can seek authority to remove them from interview
• Can only be removed if authorised by officer of at least the rank of Superintendent
• Suspect should then be given the right to consult with another legal representative

Question 9

Police Bail

Answer 9

• If decision made to charge custody officer will decide whether to grant bail
• Custody officer will listen to defence representative before making their decision
• Custody officer will take into account the same factors used in deciding the grant of court bail

Question 10

Vulnerable Suspects

Answer 10

• Persons under 18 and suspects with mental disorders or other vulnerabilities
• Entitled to access to an appropriate adult (parent/guardian, representative from care organisation when appropriate, social worker, or a volunteer who is not affiliated with the police)
• AA should be present during interview
• When appointing an AA the wishes of the suspect should be considered
• Interview may be excluded if an AA was not called in or person present not suitable to be an AA