Investigate the criminal investigation process, including police powers, the arrest process, the right to silence, and the bail decision

What this dot point is asking

NESA wants you to know the powers police have to investigate offences in NSW, the rights of suspects, and how the bail decision is made. Expect this material in a Section II 5-7 mark question, or as part of a Section II extended response on the effectiveness of the criminal investigation process.

The answer

Police powers under LEPRA

In NSW, police powers are codified in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). The key powers:

• Stop, search and detain. LEPRA Part 4. Police may stop and search a person if they reasonably suspect the person is carrying a stolen item, prohibited drug, weapon, or anything used or intended to be used in an indictable offence (s 21).
• Strip search. LEPRA s 31 to s 33. Permitted only if reasonable suspicion exists and a strip search is reasonably necessary, with separate rules for under-18s.
• Arrest. LEPRA s 99. A police officer may arrest a person without warrant if they reasonably suspect the person has committed or is committing an offence and arrest is reasonably necessary.
• Detain for investigation. LEPRA Part 9. After arrest, police may detain an arrested person for a reasonable investigation period (up to 6 hours, extendable by warrant under s 118).
• Use reasonable force. LEPRA s 230 authorises reasonable force in exercising any LEPRA power.

Rights of the suspect

• Right to silence. A suspect is not obliged to answer questions other than identifying themselves. The standard caution given before questioning ("you do not have to say or do anything but anything you do say or do may be used in evidence") preserves this right. Adverse inferences from silence are limited; the Evidence Act 1995 (NSW) s 89 restricts most adverse comment.
• Right to legal representation. A suspect may communicate with a lawyer once detained (LEPRA s 123).
• Right to communicate with a friend or relative. LEPRA s 123.
• Right to an interpreter where needed (LEPRA s 128).

The bail decision

Bail is the release of an accused person on conditions pending the next court date. Governed in NSW by the Bail Act 2013 (NSW).

The unacceptable risk test (s 17)

The bail authority refuses bail if there is an unacceptable risk that the accused will fail to appear, commit a serious offence, endanger any person, or interfere with witnesses or evidence. Bail conditions can be imposed to mitigate risk.

Show cause offences (s 16B)

For specified serious offences (e.g. murder, serious drug offences, offences while on bail for other serious offences) the accused must "show cause" why their detention is not justified before the unacceptable risk test is applied. Show cause categories were expanded in 2014 amendments.

Recent NSW bail reforms

The Bail Amendment Act 2022 (NSW) and subsequent amendments tightened bail for repeat offenders and for offences while on bail. Critics including the Aboriginal Legal Service NSW/ACT argue the reforms increase remand of Indigenous accused; the 2023 NSW Bureau of Crime Statistics and Research (BOCSAR) report on remand trends documented a sustained rise in the remand population.

The investigation process and detention safeguards

The criminal investigation process is the stage between the commission of an offence and the laying of charges, and it sits at the heart of the tension between the powers of the state and the rights of the individual. After a lawful arrest, the LEPRA detention regime (Part 9) limits how long a person can be held for investigation: the investigation period is a reasonable time up to a maximum of $6$ hours, and any extension requires a detention warrant under s 118. During detention the custody manager must safeguard the suspect's rights, ensuring access to a lawyer, friend or relative (s 123) and an interpreter where needed (s 128), and recording the conduct of the investigation. These safeguards exist because the period in custody is when a suspect is most vulnerable to pressure, and a confession obtained in breach of them may be excluded.

The exclusion of improperly obtained evidence

A central check on police power is that evidence obtained improperly or in breach of LEPRA may be excluded at trial. Under the Evidence Act 1995 (NSW) s 138, a court has a discretion to exclude evidence that was illegally or improperly obtained unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained that way. This gives practical effect to police powers: an unlawful search (one conducted without reasonable suspicion under s 21) may render the resulting evidence inadmissible, which discourages misuse of power and protects the integrity of the trial.

Balancing state power against individual rights

The whole investigation regime is an exercise in balance. Society needs police to have effective powers to detect crime, gather evidence and protect the community, and the bail system needs to manage genuine risks to victims, witnesses and the public. At the same time, the individual has rights, the presumption of innocence, the right to silence, the right to liberty, and protection from arbitrary search and detention, that the law protects through the requirement of reasonable suspicion, time limits on detention, custody safeguards and the unacceptable risk test for bail. Evaluating the process means asking whether this balance is being struck fairly, and the evidence (over-representation of Indigenous accused, the rise in the remand population, and concerns over strip searches) shows the balance is contested.