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Police are responsible for the prevention and detection of crime and for the maintenance of public order. It is the police that are responsible for ensuring that criminal laws are observed.
The role of the police in the criminal investigation process is to:
- Investigate crimes
- Make arrests if necessary
- Interrogate suspects
- Gather evidence against the accused
The challenge for all communities is to balance the extent of powers required by police against the rights of ordinary citizens.
Investigate- For police this means carrying out research to discover evidence and examine the facts surrounding an alleged criminal incident.
Arrest- To seize a person by legal authority and take them into custody.
Interrogate- To formally questions a suspect in relation to an alleged crime.
Evidence- Information used to support facts in a legal investigation or admissible as testimony in court.
The NSW Police Force is awarded special legal powers under statute to enable them to carry out their duties effectively. The majority of these powers are contained in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), but can los be found in other specific legislation.
Some of the main police powers include the power to:
- Detain and question suspects.
- Search property and seize evidence.
- Use reasonable force if necessary to carry out their duties.
- Use particular technologies to assist an investigation, such as phone taps or DNA samples.
- Arrest and interrogate suspects.
- Recommend whether bail should be granted.
Search and Seizure- The power to search a person or their possessions and seize and detain items that are discovered.
Reasonable Force- Such force as is reasonably necessary for the officer to perform the function; the officer must honestly believe that it was justified and not excessive.
Police will sometimes need to seek a warrant from a court to be able to use a particular power, such as making an arrest or using a phone tap, this is one type of check that is put in place in order to ensure special powers are used appropriately and not abused.
Citizens have an important role to play in the criminal justice system by reporting crime. Community programs have been established to encourage the public to report information about criminal activity. These programs can assist police work and help promote a sense of community participation in solving crime, eg Crime Stoppers. It is particularly valuable where people may want to remain anonymous or not become directly involved in a police investigation.
Many crimes go unreported every year as victims or witnesses exercise their discretion about whether to report a crime or not. People may be reluctant to report a crime for a number of reasons, such as:
- Reluctant to become involved or have to appear as a witness
- Fear of the consequences if the crime is reported, especially if it may bring the victim’s own illegal acts or omissions to the attention of police
- Inability to report crime
- The dispute has already been settled with the offender, such as a brawl or theft by a person know to the victim
- Perceived time or administrative burden of reporting a crime-The belief that reporting does not lead to arrest or conviction
Some crimes are more widely reported than other, such as property offences, such as car theft. These crimes tend to be reported in an attempt to recover the property or because the victim cannot claim on their insurance unless a police report is filed. Other crimes, such as domestic violence and sexual assault, more frequently go unreported.
Gathering Evidence
When a crime has been committed it is the role of the police to gather evidence to further the investigation and to support a charge. It may involve taking witness statements at the scene of the crime or crime scene detectives looking at evidence that is left behind.
Charge- Formal accusation of a person committing a criminal offence.
Evidence is usually documented in situ with video and photography and recorded and handled to maintain the integrity of the evidence. Evidence that has been contaminated or compromised is known as inadmissible evidence. All evidence must be obtained in a proper and lawful manner as required by the Evidence Act 1995 (NSW).
In Situ- A Latin term meaning ‘in the place’; used to describe the place in which a piece of evidence is found or situated.
Inadmissible Evidence- Evidence that cannot be considered by a judge or jury in court, for example, evidence that has been compromised or was obtained by unlawful means.
The law imposes certain limits on the way police can gather evidence and the types of evidence that can be used, to help ensure the collection of evidence is legitimate and does not interfere with the rights of ordinary citizens. In certain circumstances strict procedures need to be followed and in some situations a court warrant may be required before police can search for and seize evidence.
Police officers may be specially trained or independent experts may be contracted to assist in gathering or examining evidence, eg fingerprint and ballistic experts.
Technology is frequently used by the police in order to gather evidence and prove charges, such as phone taps, DNA collection and video surveillance.
Scientific and technological advances have made the processing and cross-checking of criminal databases easier and more effective for day-to-day policing. Police surveillance teams are able to record video footage and audio using digital methods, which are easily stored and copied. Cybercrime units are able to locate criminals through their internet activity and track down people committing crimes.
DNA evidence is an important advance in technology that has been particularly helpful in gaining some difficult convictions in both current and cold cases. In NSW, police are allowed to take forensic samples such as blood or moth swabs to match evidence found during an investigation. Under the Crimes (Forensic Procedures) Act 2000 (NSW) criminal suspects and people convicted of serious offences can be tested for DNA. This act also provides for the establishment of a DNA database. A person must consent to the sample- if they refuse, the police can apply to a magistrate for an order to take the sample by using reasonable force. However, there have been concerns over the reliability of DNA testing.
Under Part 4 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), police are given powers to ‘search people and seize and detain things’ in certain circumstances. One of the most important of these is the power to search and seize without a court warrant.
Powers of search and seizure are often the most controversial of police powers because they represent an intrusion into people’ privacy or personal space.
Police in NSW have the broad powers to stop and search any person where they ‘believe on reasonable grounds’ that they are carrying anything stolen or used in the commission of an indictable offence or another specified offence, a prohibited plant or drug, or a dangerous article when they are in a public place.
Police can then seize and detain any of these objects if discovered.Police may search anything in a person’s ‘possession or control’, including for example a person’s body, bag, clothes or possessions.
Powers of search and seizure and the rules around them will differ where they involve, for example, the search of premises, search of school grounds, search of a person already under arrest or in custody, or where a strip search is required. The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) contains a number of procedures for police to follow in a strip search. These relate to the preservation of a person’s privacy and dignity during the search, informing of the reason why the search is necessary and asking for the person’s cooperation.
A warrant is a legal document issued by a magistrate or judge which authorizes a police officer to perform a particular act, for example make an arrest, conduct a search, seize property or use a phone tap. Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) sets out the circumstances in which a search warrant can be used.
Generally, police need a warrant to enter and search premises. Police can enter premises without a warrant when:
- They wish to arrest a person reasonably suspected of having committed a crime.
- They have reason to believe, on reasonable grounds, that a domestic violence offence has occurred.
When applying for a search warrant, the police must give substantial reasons or evidence to the magistrate to justify the use of the warrant. Emergency warrants can be obtained over the phone when time is of the essence or an officer is unable to see a magistrate.
A warrant will state the reason why the premises is being searched and thereby identify what articles are being searched for. When any premises are to be searched, the police must identify to the occupier the reason for the search and a copy of the warrant is given to the occupier. Usually the occupier is present or they can nominate a person to be present. Police may videotape the search in order to use in court and to guard against claims of improper procedures or the planting of evidence.
The conditions under which the police may lawfully arrest a person are contained in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and include:
- Catching a suspect committing an offence
- Believing on reasonable grounds that a suspect has committed or is about to commit an offence
- Where that person has committed a serious indictable offence for which they have not been tried
- Possessing a warrant for that person’s arrest
The courts will issue the police with a warrant stating that the person is being arrested for a particular offence. Arrest warrants require police to justify their suspicions based on reasonable evidence- they act as court declarations that the suspect has a case to answer in relation to the alleged crime and authorize police to use their special powers to bring that person before the courts.
Warrants provide a judicial safeguard for ordinary citizens against the misuse of police power of arrest. However, arrest should be used only as a last resort, and there is some criticism that arrest can be applied too early in the investigation process merely as a means of furthering an investigation.
In order for the procedure to be legal, the police must state to the person that they are under arrest and the reason why they are under arrest. By law, police are able to use whatever reasonable force is necessary to arrest a person.
The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) sets out the lawful conditions under which a suspect can be detained for questioning and for the purpose of further investigation.
Lawfully police can only detain a suspect for a period of four hours, by which time that person must either be charged or unconditionally released. They must apply to a magistrate for a warrant to extend the investigation period up to a further eight hours.
There are, however, many rest periods within the four hours, which might not be included in the total time. For example, transport from the point of arrest to a police station or waiting for the relevant law enforcement officers to arrive to conduct the interview.
Under the Anti-Terrorism Act (No.2) 2005 (Cth) provides for preventative detention, where a person suspected of being about to engage in a terrorist activity can be detained for 48 hours without charge and extensions to this may be granted. The Act has been criticized for violating the International Covenant on Civil and Political Rights 1966 (ICCPR), which embodies the principle that people’s liberty should only be restricted if there is a criminal charge against them.
As soon as the police have a suspect in custody, they are usually interrogated. The police must issue a caution to the suspect as soon as practical after the person has been detained to inform them of the maximum period of detention and that they do ‘not have to say or do anything but that anything the person does say or do may be used in evidence’. The caution must be given to the suspect orally and in writing.
Interrogation- The act or process of questioning a suspect by the investigating officers.
Caution- A statement issued by police to a suspect when they are detained to inform them of their rights.
The suspect has the right to silence, which means they do not have to answer any of the police’s questions, whether in the company of their legal representatives or on their own.
Exceptions to this right include:
- A driver must produce his or her licence on request.
- A person must, if able to do so, give the name and address of a driver who was involved in a motor accident.
- A person must give information to a customs officer about drug smuggling.
Any suspect under the age of 18 years of age has the right to have a responsible adult present with them at the interrogation. If he suspect lies to the police about their age and says they are over the age of 18 and the interrogation begins, the evidence they provide is admissible in court.
The interview is recorded on videotape as well as on two audiotapes: one for the police records and one for the defendant. These recordings are made to ensure that all policies and guidelines are adhered to by the police and as a record to be used in court.
At the end of the maximum detention period, the police must either charge the suspect with a specific offence or release them unconditionally. If charged, the police must either release the accused or bring them before a magistrate as soon as practicable after the end of the maximum detention period.
Once a person is charged, they will be issued with a summons to appear in court. A summons is delivered personally to the accused by a court-appointed person.
Summons- A legal document that states when and where a person must appear in court and, if they are the accused, the charge to which they must answer.
Witnesses will also receive a summons document which requires them to appear in court on a specified date to give evidence. Failure to attend the appointed court session could result in the summonsed person being arrested and charged.
In more serious matters, once charged the accused may be detained at the police station where they are fingerprinted and photographed. The police will be required to bring them before a court or authorized officer as soon as practicable for a bail hearing.
Bail- The temporary release of an accused person awaiting trial, sometimes on particular conditions such as the lodgment of a sum of money as a guarantee.
Bail can take many forms such as recognisance, which is where the accused promises to turn up, knowing that failure to do so will result in them being fined and arrested. Bail may also be in the form of surety, which is where someone else agrees to put up the money on behalf of the accused as an assurance that they accused will turn up for court.
Various factors are taken into account when a police officer, magistrate or judge is deciding whether to grant bail, discretion is involved in the consideration of these factors:
- The likelihood of the accused person coming to court on the appointed day.
- The interests of the accused person.
- The protection of the community.
Restrictions have been added to the Bail Act 1978 (NSW) against granting bail for certain offences, such as domestic violence. Known as the ‘presumption against bail’, it will be up to the accused to prove to the court why bail should not be refused if one of these offences has been committed. These presumptions can mean that the accused remains in custody for an extensive period before a final trial verdict is reached, with the risk that the accused may in fact be innocent.
If bail is denied and the magistrate determine that the accused should remain in custody until trial, the accused will be held on remand in police custody or at a remand centre.
Remand- A period spent in custody awaiting trial at a later date.
The accused will remain in detention until the trial date is set, throughout the trial and until they are sentenced. If the accused is found guilty and convicted, the time the offender had spent in remand is usually taken off the total time of their sentence and referred to as time already served.