Assess the extent to which the criminal investigation process balances the rights of victims, offenders and society
The criminal investigation process balances the rights of victims, offenders and society to a reasonable extent. The process itself includes the power of police, gathering evidence, use of technology, detention and bail. A criteria of protecting individual rights, justice and meeting society’s needs will be addressed.
Police powers are chiefly outlined in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) [LEPRA]. Police have power to search people, places or motor vehicles, and seize or take evidence. When police powers are exercised though, the officer must provide evidence that they indeed are a police officer, their name and place of duty and the reason for the exercise of power. The Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence) is a set of rules which have been created in order to ensure a balance between protecting people’s rights and liberties and effective law enforcement.
The gathering of evidence is essential to the criminal investigation process. Evidence must be lawfully obtained under the Evidence Act 1995 (NSW) and can involve, fingerprints, witness accounts, physical evidence and DNA samples. Care must be taken when obtaining and compiling this evidence though as when not done correctly, it could potentially infringe the rights of the alleged offender. This is evident in the case R v Stafford 1991 where Grahame Stafford was convicted of murdering 12 year old Leanne Holland after a three day murder investigation. Prior private investigations found the evidence obtained by the police was questionable, especially that of the interview, which police conducted in a very basic manner. The tyre marks and blood samples were also found to be very questionable in accuracy and context. Stafford’s conviction was quashed after serving 14 years in prison on the 24th of December 2009. In the ABC report 19.12.12 ‘Stafford lawyer calls for Holland murder inquiry’ Stafford’s lawyer highlights the miscarriage of justice placed upon Stafford after a Queensland police review found Stafford should be retried. No other suspects have been charged with the murder leading to the possibility of an offender still being present within society, causing the rights of society to not be protected. Although the gathering of evidence is generally done to a sufficient level, it is possible for the rights of society and alleged offenders to be infringed upon.
DNA testing is an accurate way of identifying offenders in criminal investigations but can also be seen as an invasion of privacy. Under the Crimes (Forensic Procedures) Act 2000 criminal suspects, volunteers and people convicted of a serious offence can be tested for DNA. Intimate forensic procedures (the taking of blood, saliva or pubic hair) and buccal swabs (scraping the lining of the mouth to obtain saliva and cells) can only be carried out on criminal suspects and serious offenders with informed consent or if authorised by court order. This act provides for the establishment of a DNA database which has proved effective in identifying criminals. Regardless of this there has been a lack of DNA laboratory resources in NSW, leading to a two year backlog as outlined in SMH 2.7.09 ‘DNA lab’s two-year lag hampers NSW forensic investigations’. This can infringe on the rights of both victims and society as the alleged offender could be still free causing the victim anguish and creating a threat to society. In the case R v Boney, police attempted a mass DNA testing program by appealing to the men of Wee Waa to voluntarily submit saliva swab tests after a 93 year old woman was raped and bashed in her home. Stephen Boney was among the 500 men to partake in the testing and due to the immense pressure he felt, confessed to the police ten days later. Apart from its accuracy, DNA testing can also have a mental impact on offenders,