The Criminal Investigation ProcessStudy notes2.1.1 Police powersThe main police powers are defined by two statutes including the Law Enforcement (Powers and Responsibilities) Act 2002 and the Bail Act 1978 (NSW)Police powers include:The power to arrestThe power to issue cautions, warnings and infringement notices in relation to minor offencesThe right to obtain identification information, (name, address and provision of licence)Example: If a vehicle is suspected of being used for a serious offence, the owner, driver, and passengers must provide their names and addresses to policeThe power to stop and detain a person for the purposes of a search if the police have reasonable grounds to suspect that the person is carrying illegal articles (such as drugs) on them or in their vehicleThe power to enter premises to prevent a breach of the peace, domestic violence or to arrest someone.2.1.2 Reporting crimeCitizens have discretion regarding whether to report a crime, assuming the police are not present, which is often the case. There are numerous factors which impact upon whether a citizen, victim or not, reports a crime to police.Example: sexual assaults are offences which are under reported, as are domestic violence related offences.A person should consider the many reasons why crimes are reported and not reported. There is a fear of retribution from the offender which is often a relevant concern in relation to domestic violence offenders. Apathy can also be a factor perhaps a third party who witnessed the crime simply does not want to get involved in the process.2.1.3 Investigating crimeInvestigating crimeOnce police are aware that a crime has allegedly occurred, they will commence the investigation process to establish whether in fact a crime has occurred and to gather evidence to support an arrest and, if applicable, to substantiate charges being proven in court, beyond a reasonable doubt.In many matters, police have discretion as to whether to proceed with an investigation. This judgement will be informed by factors such as the severity, or otherwise, of the alleged crime, available resources and targeted priorities. You should note that in some cases, such as a domestic violence complaint, police have no discretion and since 1997 when this reform was introduced, must attend and investigate all domestic violence complaints.Gathering evidenceWhilst acknowledging that police play an important role in deterring crime, their principal role in the criminal justice process is to investigate crime.Central to this function is the gathering of evidence to support the prosecution case, bearing in mind that it is the prosecution who carry the burden of proving all elements of the crime beyond a reasonable doubt.Evidence must be gathered lawfully otherwise the prosecution is at risk of it not being allowed to be relied upon in any subsequent hearing or trial as a judge may rule that the evidence is inadmissible. For example, police cannot, without a warrant, search premises or listen in to telephone conversations.Evidence gathered can take a number of forms, ranging from witness statements, physical objects, forensic evidence, including DNA and fingerprints, to business records.Use of technologyAdvances in technology have greatly enhanced the tools available to police when investigating crime and gathering evidence.Most strikingly, DNA evidence, the gathering of which is regulated by the Crimes (Forensic Procedures) Act 2000 NSW has revolutionised the criminal investigation process in terms of identifying the perpetrator of the crime.Additionally, closed circuit televisions (CCTV) in public spaces like railway stations, hotels and banks have also provided police with an important tool when trying to identify suspects.Search and seizureThe police have no general power to search a member of the public.Police do have the power to stop and detain a person for the purposes of a search if they have reasonable grounds to suspect that the person is carrying illegal articles, such as drugs, on their person or in their vehicle or boat.A reasonable ground has been held to mean more than a mere possibility but less than an actual belief.If police have been given special public disorder powers they have the right to search a person or vehicle if they are on a 'target road or area'.When police undertake a search of a person who is not under arrest, in the normal course this may involve a pat down and request to remove outer garments. Police can also use an electronic metal detection device and examine a person's hair and inside their mouth. A strip search must be justified by a genuine belief by police that it is necessary and as far as practicable should be undertaken by an officer of the same gender and with as much privacy as possibleAdditionally, a person must be told the reason for the search and given details of the police officer performing the search.Police may use specially trained drug dogs in public places like railway stations and music concerts. If the dog's reaction indicates that a person might have drugs then that provides grounds for the police having 'reasonable suspicion' and authorises police to search that person.Once a person has been arrested, police have the power to search that person.Use of warrantsPolice may apply to a court or authorised justice for an order authorising them to search a home or other premises. This order is called a search warrant and will only be granted by the court if it is satisfied that police can substantiate on reasonable grounds, that the issuing of a warrant will likely lead to an arrest.If acting pursuant to a search warrant, police are empowered to search any person at the premises and to use reasonable force to enter the premises.Police may seize any item which they believe is connected with the offence they are investigating and additionally, any other item which they have reason to believe is connected with a crime.It is a criminal offence to obstruct police carrying out their duties pursuant to a search warrant.2.1.4 Arrest and charge, summons, warrantsArrestPolice do not have a general power to compel suspects to attend the police station. The only lawful means for police to insist upon a person attending the station is if that person is placed under arrest. Clearly police must exercise their judgement to consider whether they have a sufficient basis for a lawful arrest. You should note that there are strict rules which regulate when police can arrest someone and the manner of that arrest. A lawful arrest can only occur if:The police inform the suspect that they are under arrest and why.The suspect is cautioned.The police have a warrant or the police believe that the suspect is about to commit a crime, has just committed a crime or they witness the crime taking place.ChargeCharging of the offender is the formal process whereby the suspect is charged with the particular offence(s) and receives notification of their first Court date. They are fingerprinted at this time.Police exercise their discretion, within guidelines, in determining which specific offence(s) the suspect will be charged with.You should note that the suspect is under no obligation to give a formal record of interview to police or to answer any of their questions, apart from providing a correct name and address. Suspects have the right to silence and are entitled to exercise this right throughout the criminal process.You should also note that not all criminal proceedings begin by way of arrest, charge and bail; this is discussed below. For more minor offences, police may exercise their discretion, within policing guidelines, to initiate proceedings via a Field Court Attendance Notice, discussed below.SummonsFor less serious criminal offences, rather than going through the process of arrest, charge and consideration of the issue of bail, there are alternative mechanisms available to police to compel an accused person's attendance at court:Previously police could arrange for an accused person to be summonsed to court. The legal document that facilitated that process was called a Summons which was issued by the clerk of the court, now referred to as the Registrar of the court. Summons is no longer used in NSW as initiating process in criminal matters.Police can issue Field Court Attendance Notices (known as Field CANS) for relatively minor offences, e.g. drink driving. These are issued by police 'on the spot' and provide the accused with details of the alleged offence, date and time they are required to appear at court and consequences of failing to attend.WarrantsA court may issue a warrant authorising police to arrest a person if there is sufficient evidence that a prima facie case exists. If an accused person fails to attend court on a required day the court, on application by the prosecution, can likewise issue a warrant for that person's arrest. Such a warrant is sometimes referred to as a bench warrant.2.1.5 Bail or remandBail is conditional freedom prior to verdict, although bail can in some circumstances be granted between conviction and sentencing.Bail requires the person charged to appear in Court at a later date. Bail may be refused in the case that the accused is remanded in custody pending the Court date, granted unconditionally or granted upon conditions, such as reporting to police or provision of money by a third party to guarantee the accused's appearance at Court, which is known as surety.A police officer has the discretion, subject to the provisions of the Bail Act 1978 NSW to grant or refuse bail. If bail is refused the police have an obligation to bring the accused before a court as soon as is reasonably practicable.Magistrates and Judges: again subject to the provisions of the Bail Act 1978 NSW also have the authority to grant or refuse bail2.1.6 Detention and interrogationPolice have no general power to detain suspects for the purposes of questioning.Once a person is under arrest they may be detained by police for a period of up to 4 hours to enable police investigations to continue. Police can only lawfully detain a person for longer than 4 hours by applying for a warrant which, if granted, can authorise an additional 8 hours detention. It should be noted that the time a person spends in police custody in this initial period does not include 'time outs' which are times taken to, for example, arrange, wait for and communicate with a support person, lawyer, doctor, interpreter or embassy official or recover from the effects of drugs or alcohol.Time outs cannot exceed 2 hours; if they do they will become part of the 4 hour investigation period.At the expiration of the reasonable period up to 4 hours, or as extended by warrant, police must either charge or release the person. If the person is charged the issue of bail will then be considered.When arrested and taken into police custody the accused has the right to remain silent and not to answer any questions put by police unless specifically compelled to do so by law because of the specific nature of the offence.
