CRIMINAL INVESTIGATION PROCESS
Bail and remand
 Bail Act 2013 (NSW), bail conditions R v Hawi, 2014
o Criticism of 1978: “Overly complicated, full of anomalies, no
consistent outcomes” – John Hatzistergos, 2014
 REFORMS: unacceptable risk test (2013) and show cause test (2014)
o Controversial: burden of proof & presumption of innocence
o BOCSAR 2018 report: 36% increase bail refusal
 REFORMS: terrorist charges refused bail (2017)
Gathering of evidence by police
 Evidence Act 1995 (NSW)
o Admissibility of evidence: obtained legally, relevant, reliable
 LEPRA 2002 (NSW) and Crimes (Forensic Procedures) Act 2000
o Police need consent to collect DNA or local court order
o Admissibility prevents unreliable evidence and wrongful
convictions
 Criticism: “Most people have unrealistic perceptions of DNA
evidence and wrongfully consider it infallible, which can lead to
miscarriages of justice” – SMH, 2014
o R v Jama (2008): flawed evidence = wrongful conviction
Detention and interrogation of suspects
 LEPRA 2002 (NSW)
o Issue caution, right to silence
 Children’s Criminal Proceedings Act 1987 (NSW)
o Under 18s adult required and must consent to adult present
 Maximum investigation period = 6 hours (+6 with local court
detention warrant) s. 115 LEPRA
 Terrorism (Police Powers) Act 2002 (NSW)
o Preventative detention: 14 days without charge, age 14+
o “We must do everything possible to protect our community
from terrorist attacks, and these powers do exactly that” –
ABC, 2015
CRIMINAL TRIAL PROCESS
Defence to criminal offences
 Crimes Act 1900 (NSW) – lists defences
 COMPLETE: Mental health/insanity (R v MD, 2016)
o Mental Health (Forensic Procedures) Act 1990 (NSW)
o Institutionalised + reviewed every 6 months by Mental
Health Tribunal (s. 39)
o Controversial: indefinite sentence, detainment of innocent
 PARTIAL: Extreme provocation (victim blaming)
o Abolished in many states, amended in 2014 to ‘extreme’
after R v Singh, 2012
o Criticism: “The reform serves to restrict the partial defence
to the point of redundancy” – Sydney Criminal Lawyers, 2016
Use of evidence
 Evidence Act 1995 (NSW) – outlines rules
 Witnesses: expert witnesses eg. Doctors, forensics, psychiatrists
o Very persuasive and useful but not flawless (R v Wood, 2012)
 Admissibility of evidence
o Relevant, obtained legally, uncompromised
o Protects from unreliable evidence and wrongful convictions
o Hearsay is inadmissible
Plea and charge negotiation
 Early Appropriate Guilty Pleas
o Criminal Procedure Act 1986 (NSW), amended in 2018
o Caused by NSWLRC report ‘Encouraging EAGP’
o 25% discount and reduces closer to trial
 Charge negotiation avoids costs and court time
o Controversial: crimes can go unpunished, prosecutors can
coerce
o Criticism: “The bargaining is conducted in secret negotiations
between the two parties, neither of which have any interest
in making the charges dropped public” – SMH, 2011
 SENTENCING AND PUNISHMENT
Statutory and judicial guidelines
 Statutory: mandatory sentencing
o Crimes Act 1900 and Crimes (Sentencing Procedure) Act 1999
o Breaches judicial discretion eg. One punch = 8 years (R v
Loveridge, 2013)
o Cannot consider mitigating circumstances
o BOCSAR 2014 report: crime moved to other parts of Sydney
= ineffective
 Judicial: created through precedent (binding and persuasive)
o Guideline judgements: from CCA and Attorney-General for
new laws
Alternative sentencing methods
 Young Offenders Act 1997 (NSW)
 Young justice conferences and restorative justice
o Voluntary conference to resolve, hold responsible,
encourage rehabilitation
 Circle sentencing: for Aboriginal offenders, involves community and
customary law
o “Young people are far too vulnerable for the harshness of the
criminal justice system, and these alternative methods let
them remain protected” – SMH, 2012
Role of victim
 Victims’ Rights and Support Act 2013 (NSW)
o Outlines rights for dignity, identity protection, recognises
harm caused
 Victim impact statements
o Crimes (Sentencing Procedure Act) 1999
o Presented after guilty verdict and can influence sentence
severity
o Allows victim/s to be part of the process
YOUNG OFFENDERS
Age of criminal responsibility
 Children’s (Criminal Proceedings) Act 1987 (NSW)
 Doli incapax: under 10 no mens rea, 10-13 presumed none
o R v LMW, 1999: acquitted due to no mens rea
o Criticism: “Children forced into the criminal justice system
are less likely to complete their education or find
employment” – AMA President Tony Bartone, 2018
o Below international standards: calls to raise to 14
Rights of children when questioned or arrested
 LEPRA: maximum investigation period 6 hours (+6 with local court
detention warrant)
 Children’s (Criminal Proceedings) Act 1987 (NSW)
o Adult required and must consent to adult present
 Terrorism (Police Powers) Act 2002 (NSW)
o Terrorist suspects detained for 14 days without charge, aged
14+
o “We must do everything in our power to protect our
community from terrorist attacks, and these reforms do
exactly that” – ABC, 2015
Alternatives to court
 Young Offenders Act 1997
o Three-tier system: warnings, formal cautions, young justice
conferences
o Circle sentencing available for Aboriginal offenders to involve
community and customary law
 “Young children are far too vulnerable for the harshness of the
justice system, and these alternative methods let them remain
protected” – SMH, 2012