This essay will discuss, firstly, the requirement for an officer to record an official caution in their official police notebook and the implications of having the accused adopt the record of interview contained in an official police notebook and, secondly, how a nominated piece of evidence must be collated, handled and analysed for use in a criminal investigation. The above points will be discussed with reference to relevant New South Wales (NSW) legislation, NSW Police Force operational guidance, as well as other relevant NSW legislation.
The requirement for a Police Officer to record the official caution in their Official Police Notebook, a small notebook which all officers carry to record details of incidents they attend, stems from thecommon lawright of an individual to silence. The caution must be voiced at four times; at the time of arrest, when an officer believes that the suspect has commited an offence, if the suspect would think that they aren't free to leave, or if the officer would not let the person leave if they wanted to do so (S139 Evidence Act 1995). Not only must it be stated to them, but it must be ensured that they understand the nature of the caution; what it means for them at that point in time. The caution itself comes down to two parts; that the suspect does not have to say or do anything while being questioned unless they want to, and that anything they do say or do can be used as evidence against them.This is a verbal caution, and must be given in a language that the suspect is able to understand. If the suspecthasimparied hearing that would limit their ability to recieve and understand the caution it may be given in writing (S139(5) Evidence Act 1995).In more serious criminal matters a special caution is also used, informing the suspect, in party with their legal counsel, that it may be detrimental to their defence if they do not mention something at this point in time which they may later rely on for their defence in court (S89A (1) Evidence Act 1995). It also has the purpose of informing the suspect, in part with their legal counsel, that any legal excuse for their conduct must be brought to light in a timely manner if it is to be taken into consideration duing their hearing at court (Evidence Amendmant (Evidence of Silence) Act 2013).
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Writing the caution down in full in an officers Official Police Notebook ensures that there is a record of it taking place, and that this record is transcribed into an accountable document. This document, the Official Police Notebook, can then be used in court as a source of evidence (p16, Briggs 2007). If the suspect tries to tell the courts that at no time was the caution administered to them, the record held in the Official Police Notebook will show otherwise, and be an acceptable document for the court to negate the testimony of the suspect in regard to the administration of the caution to them. The suspect will know full well, however, that such a record is being made, as it is the duty of the questioning officer to ensure that the suspect is given an opportunity to sight, read and sign the transcribed conversation, including the caution, contained in the questioning officer's Official Police Notebook. The signing of the entry by the suspect is an acknowledgement that the record is a true account of their conversation with the officer, free of any ommissions or fabrications. The implications of this are that the suspect is then legally bound to that version of events as they may or may not have told them at the time they were questioned by the officer (p15, Briggs 2007). As above, where the Special Caution was brought to light, anything that they may wish to introduce at a later date but did not do so at the time they were being questioned may now harm their defence as it will be viewed as suspect by the court that they did not mention it at the earliest opportunity, especially if they knew that it was going on record – which the caution proves that they did.
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In essence, the caution is an integral and essential part of evidentiary procedures against a suspect. It ensures they are aware of their legal right to silence and also ensures that they are aware of the implications of what they are doing in providing evidence to the questioning officer. It is their record of events, their testimony; their chance to put forward any reason as to why or how they were involved in the incident.
The written caution and record of interview form but one part of evidence; a factual record of interview and legal requirements between the interviewing officer and the suspect. Evidence can come in many forms, from words spoken by the offender to physical objects like a tool used for a break-in, or even DNA evidence left by the offender at the scene of the crime. Physical evidence from a crime scene is no different than the statement taken in a notebook, in that it can also make a case for or against a suspects involvement, and must also be treated with due care and dilligence in its collection to avoid rendering it inadmissable in court. Before collection and analysis of evidence, however, it is best practice that a crime scene be established.
A crime scene is an area where the event under investigation occurred, or where the bulk of evidence is expected to be found (Horswell, 2004, p.3). A crime scene must be established with as wide a perimeter as possible in order to contain any items of evidentiary value that may remain at the scene (p71 Processing the Crime Scene in Criminal Investigation, Lyman, 2014). This can be done by th first reponding officer to arrive at the scene, and may initially be made as large as reasonably necessary and then reduced in size later on if need be. Ideally, backup should be called to help contain, preserve and process the crime scene. The use of rope, crime scene or police tape is recommended in situations where it can be used to form an effective perimeter, or where one is not easily identifiable or enforceable (p71 Processing the Crime Scene in Criminal Investigation, Lyman, 2014; pp85-86, Horswell, 2004). A perimeter may be as simple as a single room with the door as an entry point, ranging up in complexity to an entire house and adjacent yards, footpaths and public streets.
The power to establish a crime scene comes from the Law Enforcement Powers And Responsibilities Act (s88, 2002), which also extends the power of an officer to establish a crime scene to traffic matters relating to a serious indibtable offence, or where serious injury or death has taken place (s90, 2002).
With regard to the initial collation, handling and analysing of the evidence layed out in the essay question, this essay will discuss the lawn bowl thrown by the offender at the defacto partner of the victim, which subsequently impacts a parked car, shattering its window.
The initial step of the investigation would be to cordon off all areas of interest, if possible, and record the event (the lawn bowl) in place. This would be done by both photographic means as well as by recording it in an official police notebook by way of written word and site diagram. The best practise would be to contact crime scene forensic group, who would be able to take further photographs of the scene, fingerprint the lawn bowl and then adequately seal it in a paper evidence bag which. This bag would then be sealed and signed by the sealing officer and returned to the station. Before returning to the station, a property receipt would need to be given to the bowling club as the lawn bowl is their property and will need to be returned to them at the conclusion of the investigation. Once at the station, the lawn bowl would need to be entered into the Exhibits, Forensic Information and Miscellaneous Property System (EFIMS) and taken, through chain of command, to the Exhibit Room.
The EFIMS system used by NSW Police is an integral part of the chain of custody, best eplained as the uninterrupted accountablity of evidence so as to ensure that they are not corrupted, damaged or degraded in any way (Horswell 2004). The EFIMS system demands an official account of all movemnts of evidence be recorded, from the initial time of processing through to producing the item at court (Exhibit Procedures Manual, 2012, NSW Police)
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Ideally, backup should be called to help contain, preserve and process the crime scene. The use of rope, crime scene or police tape is recommended in situations where it can be used to form an effective perimeter. REFERENCE p71
Once the perimeter has been established, clear the interior of the crime scene REFERENCE p71
Record actions taken at the crime scene prior to a log being started. p72
Restrict access to the scene. Limit access to only those persons required for the ongoing investigation of a matter, regardless of position or rank. p72
Crime scene processing categorized as major or volume, p25 of First Officer Attending in Crime Scene Management , Sutton + Trueman, 2009
Intimate and non intimate samples p26-27 REFERENCE
Prevent movement, destruction, contamination or loss of evidence by estting up an adequate crime scene perimeter.
LEPRA ACT 2002 s88 Officers legally on premises may excercise crime scene powers to set up, maintain and control a crime scene.
LEPRA ACT 2002 s90 Officers may form a crime scene for a traffic matter relating to a serious indibtable incident or where death or serious injury has occcured.
The primary crime scene is an area, place or thing where the incident occurred or where the majority or a high concentration of physical evidence will be found, e.g where there has been a sudden suspicious death" (Horswell, 2004, p.3)
"Secondary crime scene/s are places or things where physical evidence relating to the incident may be found. The potential physical evidence will usually be transported away from the primary crime scene" (Horswell, 2004, p.3). Some examples include : the suspect, the suspect's vehicle, the weapon used in the crime, the suspect's house etc.
Physical evidence comes in several forms. Primary evidence is evidence that is an immutable part of the offender – it is something they cannot change that they leave behind. This could be fingerprints, a recording of their voice or image by a closed circuit television camera or other such device, hair from their head or body or, increasingly, DNA in the form of blood, semen, saliva, sweat or skin cells.REFERENCE
Breaking evidence down, there are two classes – primary evidence and trace evidence. Primary evidence consists of