The criminal investigation process balances the rights of victims, offenders and society to a certain extent. The main aspect of achieving justice in the criminal investigation process is to balance the rights of the parties involved. Thus, the extent to which the law balances their rights, includes the use of police powers, the rights of suspects and the right on bail. The balance of powers used by police in protecting the rights of victims, suspects and society has partially been achieved in the criminal investigation process.
As stated in the legislation, the Crimes Act 1914 (Cth) authorises police officers to use ‘such force as is reasonable and necessary in the circumstances’. This reinforces that the police powers should not be misused. However, the case Police v Phillip Bugmy, highlighted the lapse of police powers in regards to the use of Taser guns, since it was found that the accused of resisting, intimidating police and using an offensive weapon was not guilty and that the Senior Constable Paul Charman used the Taser ‘excessively’.
Thus, the broad application of the excessive police power enables those who engage in the common act of associating to be convicted, which significantly reduces the rights of individuals. Conversely, if the act was not enforced selectively, it will lead to undermining the rule of law and limit just outcomes for all parties.
In addition, Kylie Bourne’s article “Shock tactics threaten police authority” states that ‘the adoption of Taser technology in Australia has been hurried and there has been insufficient empirical research on the risk associated with the technology’, obliging the NSW Council of Civil Liberties representative Cameron Murphy’s statement that ‘if transit officers encounter a difficult situation they should be calling in police assistance. ‘ Therefore, the law must be outlined to ensure that police uses the minimum amount of force that is necessary to effect arrest and apprehension.
Nevertheless, despite the aim to achieve justice in protecting the rights of society, the excessive use of police powers limits the rights of suspects thus the balance of their rights is effective to a certain extent. In aim to protect the rule of law, the right to silence has become the key aspect in balancing the rights of suspects and victims. The Evidence Amendment (Evidence of silence) Act 2013 has outlined the extent to which the law balances the rights of suspects and victims in the criminal investigation process.
Essentially, the Act allows an unfavourable inference to be drawn on the suspects if they fail to mention something they will later rely on in the proceedings. Thus, the suspect’s right on silence is reduced. In the case R v Swaffield (1998), the suspect was charged with three criminal offences and remained silent to police questions after unknowingly confessing to a police officer who recorded him without his knowledge or consent. Later on, the recorded ‘involuntary confession was presented to the courts of Australia where the case was appealed to the High Court.
The High Court of Australia addressed the issue in ‘context of voluntary confessions and the degree to which they are admissible in respect of voluntariness, unfairness and public policy considerations. In this situation, the procedural fairness has been breached where the police failed to present voluntarily confession evidence without limiting the right on silence of the offender. However, the High Court judges applied ‘discretion to exclude the evidence for unfairness’.
This precedential case stated that “the purpose of that discretion is the protection of the rights and privileges of the accused”, supported by the Sydney Morning Herald’s article ‘Protecting the rule of law’ that “the right to silence is an important protection for people who feel their poorly articulated explanations would be twisted by investigators”. Therefore, it can be argued that justice was achieved to a certain extent in balancing the rights of suspects since the High Court established a narrow operation of the discretion for the purpose of maintaining the accused’s rights in respect to voluntary confession and procedural fairness.
Essentially, exercising such powers in a responsibly, effectively balances the rights between suspects and society. The matters relating to bail processes were originally codified in the Bail Law Act 1978 (NSW), which somewhat protected the rights of offenders. However, after receiving 85 amending acts, the Bail Act, according to Attorney General Greg Smith became “too difficult to comprehend and navigate” reducing the offender’s rights and not achieving just outcomes. This resulted with the Bail Act 2013 (NSW) which corrected the process of granting bail in a consistent and transparent way.
However, the case of Adam Burke raised concerns on the limited extent to which the rights of offenders and society are protected. Justice Lucy McCallum stated that it will be a risk to grant bail to the offender, since he committed a crime when off medication for his state of schizophrenia, and ‘offences of the kind described raise a concern of danger to the community’. However, all risks fall under the Bail Act and the judge granted bail to the serious offender which will be kept under regular medication.
Thus, these bail laws arguably reduce the extent to which society and victims’ rights are protected in the criminal investigation process. Overall, the criminal investigation process balances the rights of victims, offenders and society to a certain extent through police powers, law reform and procedural fairness. The process has to some extent outlined that the police powers should be exercised effectively to enforce the law and that the rights of members of society including victims and offenders are balanced.