Criminal Investigation Process (HSC SSCE Legal Studies): Revision Notes
Reporting and Investigating Crime
Reporting crime
The role of citizens in reporting crime
Citizens play a crucial part in the criminal justice system through crime reporting. Without public cooperation, many crimes would remain unknown to authorities and offenders would escape justice.
Community reporting programs have been established to encourage public participation. These initiatives help police investigations and foster community engagement in crime prevention.
Crime Stoppers is a national community-based program that allows people to report information about:
- Unsolved crimes
- Unknown offences
- Suspicious or unusual activity
The program is particularly valuable because it allows people to remain anonymous or avoid direct involvement in police investigations.
In , NSW Crime Stoppers received contacts from the public, resulting in arrests and charges laid.
Crimes are typically reported by:
- Victims of the crime
- Witnesses to the crime
- People with knowledge of criminal activity
Barriers to reporting crime
Many people are reluctant to report crimes they have witnessed or experienced. Common reasons include:
- Reluctance to become involved: Fear of having to appear as a witness in court
- Fear of consequences: Concern about retaliation from the offender or associates
- Inability to report: Physical or mental barriers preventing reporting
- Dispute already settled: The matter has been resolved privately with the offender (e.g. a brawl or theft by someone known to the victim)
- Perceived burden: The time and administrative effort required to make a formal report
Under-reported crimes
Property offences such as car theft tend to be widely reported because:
- Victims hope to recover their property
- Insurance claims typically require a police report
However, personal crimes are often significantly under-reported:
Domestic violence and sexual assault frequently go unreported because:
- Victims experience shame and embarrassment
- Victims are unwilling to relive the traumatic experience during court proceedings
- Fear of confronting the offender in court
It is estimated that up to 85% of sexual assaults in Australia are not reported to police. This is despite the fact that victims are not required to testify in court if they choose not to do so.
Investigating crime
Decision to investigate
Once police receive information about a crime, they must decide whether to pursue an investigation or take no further action. This decision is based on:
- Severity of the offence: More serious crimes receive priority
- Likelihood of success: Whether there is sufficient evidence to proceed
- Available resources: Police time and budget constraints
- Current priorities: Strategic focus on particular crime types
Not all reported crimes are fully investigated and prosecuted, as resources must be directed toward more serious or high-priority matters.
The investigation process
A thorough investigation typically involves:
- Establishing that a crime has been committed: Confirming the offence occurred
- Finding the offender: Identifying and locating the suspect
- Gathering sufficient evidence: Collecting proof that can support a conviction in court
This process can be lengthy and requires careful attention to legal procedures.
Gathering evidence
Purpose and importance
When a crime has been committed, police must gather evidence to:
- Further the investigation
- Support a charge (formal accusation of committing a criminal offence) in court
Charge: A formal accusation of a person committing a criminal offence.
Initial evidence collection
Evidence gathering must happen quickly to prevent:
- Witnesses forgetting what they saw or heard
- Evidence being compromised or interfered with
The process typically includes:
- Taking witness statements at the crime scene
- Crime scene detectives examining physical evidence left behind
Preserving crime scenes
Crime scenes and evidence must be preserved until specialists and detectives arrive. Evidence is then:
- Documented in situ (in place) using video and photography
- Meticulously recorded to maintain a clear chain of custody
- Carefully handled to maintain the integrity of the evidence
In situ: A Latin term meaning 'in the place'; used to describe the place where evidence is found or situated.
Inadmissible evidence: Evidence that has been contaminated or compromised cannot be considered by a judge or jury in court. Organic samples such as hair and blood are particularly vulnerable to contamination.
Legal requirements for evidence
All evidence must be:
- Sufficiently relevant to the case
- The best possible evidence available to secure a conviction
- Obtained in a proper and lawful manner as required by the Evidence Act 1995 (NSW)
If evidence is not obtained lawfully, it may be considered inadmissible at trial, jeopardising the chance of conviction.
The law imposes limits on how police can gather evidence to:
- Ensure collection is legitimate
- Protect the rights of ordinary citizens
- Prevent abuse of police powers
In certain circumstances, strict procedures must be followed, and a court warrant may be required before police can search for or seize evidence.
Types of evidence
Police may gather various forms of evidence:
Oral testimony:
- Statements from the accused
- Police testimony
- Witness accounts (usually recorded as written statements)
Physical evidence:
- Objects or weapons
- Documents
- Fingerprints
- DNA samples
- Tape recordings
- Video surveillance footage
- Electronic information stored on hard drives
Evidence may be handled by multiple people during an investigation, including:
- Police officers who initially gather the evidence
- Forensic experts who examine the evidence
Specialist investigators may be required, such as:
- Fingerprint experts
- Ballistic experts
- Crime scene investigators trained to search crime scenes
- Independent experts contracted to analyse evidence
Use of technology
Technological advances in law enforcement
Technology is increasingly used by police to gather evidence and prove charges. However, the law often struggles to keep pace with technological changes.
Reliability concerns: Technology must be extremely reliable, or it risks being inadmissible in court or, worse, resulting in wrongful convictions.
Modern investigative tools
Criminal databases: State-of-the-art fingerprint and DNA databases allow police to:
- Share information across states
- Access international databases
- Cross-check evidence quickly and effectively
Digital surveillance: Police surveillance teams can:
- Record video footage digitally
- Capture audio evidence
- Store and copy evidence easily
Cybercrime investigation: Specialised units can:
- Track criminals through internet activity
- Investigate computer hacking
- Combat internet scams
- Dismantle international crime rings (e.g. pornography networks)
DNA evidence
DNA evidence: Genetic material (such as hair, blood and saliva) that can be used to link a suspect with a crime scene or criminal offence.
DNA evidence represents a significant technological advance in criminal investigation and has been particularly helpful in:
- Securing difficult convictions
- Solving current cases
- Resolving cold (unresolved) cases
DNA collection in NSW: Police may take forensic samples such as blood or mouth swabs to match evidence found during an investigation.
Consent requirements:
- A person must consent to providing a DNA sample
- If they refuse, police can apply to a magistrate for an order
- The magistrate may authorise police to take the sample using reasonable force
Concerns about DNA reliability
Despite its usefulness, there have been serious concerns about the reliability of DNA testing.
Case Study: 2009 DNA Testing Errors
In , wrongful convictions were discovered in both NSW and Victoria caused by errors in the DNA testing process.
The Wrongful Conviction:
- A man was wrongfully convicted of break and enter due to human error in DNA testing
- He received a nine-month suspended sentence
- The error occurred when samples were incorrectly placed in a series of tests
- The wrong crime sample was placed in a test well, linking DNA from one crime scene to a person who was not present
Expert Concerns:
- Professor Mark Findlay (Institute of Criminology, Sydney University) noted that DNA testing is not an exact science
- Analysis can be flawed because it passes through several hands and stages
- Judges and juries, who are lay people, can be disproportionately impressed by DNA evidence
Recommendations:
- NSW Council for Civil Liberties president Cameron Murphy stated that police and courts should rely on other evidence to corroborate findings
- "It's far better for a guilty person to go free than for an innocent person to be in jail"
Reforms Implemented:
- Introduction of robotics in testing
- Review of all case work before results are released to police
- Independent external reviews by forensic science experts
Search and seizure
Police powers under LEPAR Act
Under Part 4 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), police have powers to search people and seize and detain items in certain circumstances.
One of the most important powers is the power to search and seize without a court warrant.
Controversial nature of search powers
Powers of search and seizure are often the most controversial police powers because they:
- Represent an intrusion into people's privacy
- Involve interference with personal space
- Can be confronting or embarrassing, especially in public places
When police can search without a warrant
NSW police have broad powers to stop and search any person when they 'believe on reasonable grounds' that the person is carrying:
- Anything stolen
- Items used in commission of an indictable offence or other specified offence
- A prohibited plant or drug
- A dangerous article
Location requirement: The person must be in a public place.
Seizure powers: Police can seize and detain any of these objects if discovered.
What constitutes 'reasonable grounds'?
Challenges to police searches often centre on whether the officer had sufficiently 'reasonable grounds' to believe they could conduct the search. This is a subjective test based on the officer's honest belief at the time.
Case Study: Darby v Director of Public Prosecutions [2004] NSWCA 431
This case illustrates the difficulties in defining 'reasonable grounds' and what constitutes a search.
Facts:
- Police used a sniffer dog named Rocky outside a nightclub to detect drugs
- Rocky sniffed the air, then moved toward Darby
- The dog engaged in 'bunting and ferretting' behaviour toward Darby
- Rocky sniffed Darby's genital area and trousers
- The dog touched its nose directly on Darby's pocket and stayed there
- Police then searched Darby and found cannabis and methyl amphetamine
Legal Proceedings:
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Local Court: The magistrate ruled that the dog's actions constituted an unlawful search because:
- Only police officers can conduct searches
- Only officers can make judgments on reasonable grounds
- The dog was not entitled to or capable of making such a judgment
- Evidence was inadmissible as it followed an illegal search
-
Supreme Court: Ruled that:
- The magistrate had erred in law
- The dog's search was not actually a 'search'
- The police officers' subsequent search was legal
- It was based on reasonable grounds from information conveyed by Rocky's behaviour
-
Court of Appeal: Two out of three justices found that Rocky's actions did not constitute a search.
Significance: This case demonstrates the complexity of defining what constitutes a lawful search and the importance of 'reasonable grounds'.
What police can search
Police may search anything in a person's 'possession or control', including:
- The person's body
- Bags
- Clothes
- Personal possessions
Search procedures
Generally, police will:
- Ask for a suspect's cooperation
- Request the suspect turn out their pockets
- Ask the suspect to remove bulky clothing
- 'Pat down' the suspect's body to feel for concealed items
- Require a person to open their mouth
- Ask a person to shake out their hair (if reasonable grounds exist to believe objects are concealed there)
Different types of searches
Powers of search and seizure differ depending on:
- Search of premises
- Search on school grounds
- Search of a person under arrest or in custody
- Strip searches
Safeguards for personal searches
The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) contains procedures for conducting personal searches and strip searches, including requirements to:
- Preserve a person's privacy and dignity
- Inform the person why the search is necessary
- Ask for the person's cooperation
- Follow specific protocols for strip searches
Despite these safeguards, NSW police powers of search and seizure remain broad, and reasonable suspicion is not usually a difficult standard for police to prove.
Use of warrants
What is a warrant?
Warrant: A legal document issued by a magistrate or judge which authorises a police officer to perform a particular act, for example:
- Make an arrest
- Conduct a search
- Seize property
- Use a phone tap
When warrants are required
In NSW, certain searches or seizures cannot be performed without a valid warrant. For example:
Sniffer dogs:
- Can be used without a warrant at pubs, clubs, on public transport, or at certain public events
- Require a court warrant for general searches in other public places
This requirement for judicial oversight:
- Ensures special police powers are used only when appropriate
- Provides protection for ordinary citizens against misuse of power
- Creates an additional layer of accountability
Search warrant provisions
Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) sets out the circumstances in which a search warrant can be used.
Obtaining a search warrant
When applying for a search warrant, police must:
- Provide substantial reasons or evidence to the magistrate
- Justify the use of the warrant
Emergency warrants can be obtained over the telephone when:
- Time is critical in an investigation
- An officer cannot see a magistrate in person (e.g. in the middle of the night)
Searching premises with a warrant
NSW police usually require a valid warrant before they can:
- Enter and search any premises (residential or business)
- Search without the consent of the occupier or owner
The warrant must state:
- The reason for the search
- What articles are being searched for
Warrant execution procedures
When executing a search warrant, police must:
- Identify themselves to the occupier
- Explain the reason for the search
- Provide a copy of the warrant to the occupier
- Ensure presence of the occupier or their nominated representative
- May videotape the search to:
- Use as evidence in court
- Guard against claims of improper procedures
- Prevent allegations of evidence planting
Handling seized items
Police will remove items relevant to the investigation, which will be:
- Withheld until after the case is prosecuted
- Returned to rightful owners (where appropriate)
- Destroyed after being used as evidence (for items like weapons and drugs)
Powers granted by search warrant
A search warrant authorises police to:
- Enter the named premises
- Use force reasonably necessary to enter
- Break open receptacles if reasonably necessary
- Search persons found on the premises who are reasonably suspected of having items mentioned in the warrant
- Arrest persons found on the premises suspected of committing an offence
- Seize, detain, or remove anything mentioned in the warrant and other items believed to be connected with an offence
- Disable alarms, cameras, or surveillance devices
- Pacify guard dogs
- Render safe dangerous articles
- Operate equipment to examine items or access data
- Move items to another place for examination
- Take steps to prevent loss, destruction, or damage to evidence (including blocking drains)
Remember!
Key Points to Remember:
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Citizens play a vital role in reporting crime through programs like Crime Stoppers, though many crimes remain unreported due to fear, shame, or reluctance to be involved
-
Police decide whether to investigate crimes based on severity, resources, and likelihood of success
-
All evidence must be gathered lawfully and preserved carefully to maintain integrity and avoid being ruled inadmissible
-
DNA evidence is powerful but not infallible – the 2009 wrongful conviction cases highlight the dangers of over-reliance on technology
-
Police have broad search and seizure powers based on 'reasonable grounds', which can be controversial due to privacy concerns
-
Warrants provide judicial oversight for certain searches and seizures, protecting citizens from potential abuse of police powers
Key Terms:
- Inadmissible evidence: Evidence that cannot be used in court due to contamination or unlawful collection methods
- In situ: Evidence documented in the place where it was found
- Reasonable grounds: The standard police must meet to exercise certain powers (subjective test)
- Charge: Formal accusation of a criminal offence
- Warrant: Legal document authorising police to perform specific acts
Exam Guidance:
- When analysing evidence gathering, consider both the effectiveness (does it help solve crimes?) and fairness (does it protect citizens' rights?)
- Be prepared to evaluate whether police powers strike the right balance between law enforcement needs and individual rights
- Use case studies like Darby v DPP and the 2009 DNA errors to illustrate the practical challenges and potential for injustice
- Consider how technology both assists and complicates the investigation process