The criminal investigation process (‘the process’) is a complex and necessary aspect of the legal system that aims to gather and investigate evidence lawfully, justly and in accordance with the rights of victims, suspects and society. The responsibility for enforcing criminal laws and ensuring they are adhered to lies with the police. In the criminal investigation process, the role of police is to investigate crimes through gathering evidence, interrogating and detaining suspects, searching and seizing properties, and making arrests. The police are then required to present the evidence against the accused in court.
Balancing the extent of powers possessed by police with the rights of victims, suspects and society is an exceptionally challenging task. Through statutory common law ‘checks and balances’ the criminal investigation process relies on law reform to balance the rights of victims suspects and society, with new tension arising when law is reformed. Police powers and bail are two areas of the process that have been subject to significant law reform.
In NSW, the NSW Police Force or the Australian Federal Police, depending on whether the offence was a state or commonwealth offence, will investigate crimes. The Police Force is granted special legal powers, which enables them to be able to carry out their duties effectively. The majority of these powers are derived from the Law Enforcement (Powers and Responsibilities) Act 2002. Due to the uniqueness of police powers, there is often controversy, as these powers allow the police to become in direct conflict with ordinary citizens. Therefore the powers of police must be balanced against individual rights to ensure that that the criminal investigation process continues to balance the rights of victims, suspects and society.
Police are expected to treat all members of society in a fair and ethical manner regardless their sex, age, ethnicity or the severity of the crime they are suspected of. The NSW Police Force follows a specific code of behavior called the Code of Practice for CRIME (Custody, Rights, Investigation, Management & Evidence) which sets out the rights of suspects and the way in which investigations should be carried out.
It can be argued that the criminal investigation process is effective in achieving justice and balancing the rights of citizens, as it protects the rights of its suspects. The operation of Police Powers (Drug Detection Dogs) Act 2001, demonstrates the limitations of the criminal investigation process when balancing the rights of suspects, victims and society. This legislation enables police officers to use ‘sniffer dogs’ to detect illegal drugs, and has been responsible for successfully prosecuting many drug-related offences.
An example of the criminal investigation process prioritising the protection of its suspects, is seen in the Darby v Department of Public Prosecutions 2004 case (Darby v DPP 2004). Darby was acquitted of drug possession after it was found that the sniffer dog committed an illegal search by coming in contact with his genitals. Therefore under the Evidence Act 1995 NSW, the evidence was unlawfully obtained and was therefore admissible in court.
In the Sydney Morning Herald on the 5th of June 2009, Geesce Jacobson discussed how the conditions and circumstances for obtaining illegal evidence could exonerate likely suspects and therefore deplete the course of justice for society and its victims, which renders the process somewhat ineffective. However, in the criminal investigation process, procedural fairness is fundamental, with the protection of its suspects being of utmost priority. The criminal investigation process is a system that defends and protects individual rights of suspects during investigation, deeming it as effective in balancing the rights of suspects.
However, it can also be argued that the criminal investigation process is ineffective in balancing the rights of suspects, as evidence can be faulty, misleading or tampered with, and therefore fails to protect its suspects. For example, the R v Jama (Victoria 2008) case, Jama was wrongfully convicted of rape based on faulty DNA evidence. Following the release of Jama, Adam Bennet of Sydney Morning Herald, 2 October 2009 interviewed professor Mark Findlay, director of the Institute of Criminology at Sydney University, who stated that DNA evidence is flawed, “because it goes through several hands and several stages”, and that “samples were too often relied upon as the only evidence in criminal prosecutions”.
Thus in this circumstance the criminal investigation process failed to prevent a miscarriage of justice an therefore deprived the suspect of his right to liberty, aswell as the victim, who failed to receive justice on her part, and society, who incarcerated an innocent man. Therefore is must be deemed that the criminal investigation process failed to achieve justice the rights of its victims, suspects and society.
