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To what extent does the criminal investigation process balance the rights of victims, suspects and society?
The criminal investigation process which is a part of the legal system, is mostly ineffective in balancing the rights of the victim, suspects and society. The responsibility to investigate crime is upheld by police who apply their police powers, society reports crime to and investigates criminal activity. Issues arise when imbalances occur, where the rights of one group exceed at the expense of another group, revealing the limited extent to which the legal system is able to impartially balance the rights of victim, suspects and offenders.
Police have a role in preventing crime by maintaining a public presence, acting as a deterrence, investigating criminal activities and assisting in the prosecution of those charged with offences. The powers of police which are to arrest, use tasers, and stop, search and detain are outlines in parliamentary legislation under Law Enforcement (Powers and Responsibility) Act 2002 (NSW) also known as LEPRA 2002 NSW. In the case of Roberto Curti (2010), an unarmed Brazilian student who was capsicum sprayed, handcuffed, knelt on and tasered 14 times despite showing minimal harm. Clearly, police were non-compliant with the law since unnecessary and excessive use of force was applied. In doing so, the legal system is ineffective in balancing the rights of the victim and by extension the rights of the society, as unnecessary force was applied and Curtis died in and inhumane and degrading fashion. Furthermore, issues have arisen where police powers have been extended to combat issues regarding police being sued. The amendments to the LEPRA 2002 NSW has wording issues where explicit references and limitations on, the purpose of arrest, may imply police have the power to arrest just to establish a person's ID, or for questioning. Also, a police officer only has to be satisfied that an arrest is ''reasonably necessary''.This allows room for police discretion to have an objective basis for arresting someone and overstep their boundaries. The new law has removed explicit references and limitations on, the purpose of arrest. A better solution to the problem would be to better train police rather than changing the law. Law reform in this regard deprive individuals and society of their right to innocence and justice, however gives better protection to the victims being police as it reduces the chances of them being sued (Focus on police, not the laws, SMH, 2013). Furthemore, the NSW parliament failed to provide give NSW police enhanced powers to detain terrorist suspects without charge. The NSW parliament is criticized of being slothful or incompetent, or both on counter terrorism laws (SMH, 2015). This balances the rights of the suspect since their right to innocence until proven guilty is upheld as their rights are not compromised in order to guarantee a conviction. However, this may not balance the rights of society since a fear of terrorism and the safety of individuals is at risk if potential terrorists are walking free. Evidently the extent to which the criminal investigation process is able to successfully balance the rights of suspects, victims and society is limited.
Investigations conducted by police involve gathering evidence, use of technology where police have discretion in investigations given the seriousness of the crime and the availability of resources. In accordance with the Evidence Act 1995 (NSW), evidence must be obtained quickly and appropriately so that it is not compromised or interfered with and witnesses do not forget what they heard or saw. If evidence is compromised, interfered with or does not follow the procedures outlined in the legislation it becomes inadmissible to use in court. In R v Gittany (2013), there was a successful persecution of the murder of Lisa Harnum where evidence including text messages, CCTV footage and eye witness statements proved the conviction of Simon Gittany. In this example it is evident there was an effective balance between the rights of the victim, suspect and society since equality was achieved. Society believes murders of that extent should be imprisoned and so Simon Gittany was imprisoned, which balances the right of society and the victims gains their rightful vengeance through the legal system. The suspect was given their right since they had a judge only trial due to bad publicity. Hence the gathering of evidence and use of technology was effective. In addition, the R v Crowe (2016) case oversaw the cold case Justice Project where the offender from DNA left at 5 different crime scenes was identified ultimately securing a conviction. He was sentenced to 12 years jail (ABC, 2016). This balances the rights of the victims, suspects and society since a violent criminals removed from society and the victim receives the punishment they deserve. In the case of R v Anderson (2015), a miscarriage of justice occurred by a major trial setback where the jury was provided with evidence of misleading DNA samples (SMH, 2015). This reveals resource inefficiency as it costs the legal system money to enter gather a new set of jury. Also, a failure to balance the right of the victim and individual, was vindicated, proving the balance of the of the rights if the victim and suspects is effective. Furthermore, in the Farah Jama case (2008) the jury found Jama guilty of raping a women in 2006 solely on the basis of DNA evidence. Although, it happened in Victoria, such a “substantial miscarriage of justice” could also happen in NSW. Jama was convicted without a shred of evidence to place him at the crime scene since there was no evidence of eye witnesses, security footage, phone or ear records. Also, it would have been impossible for Jama to execute the rape in half an hour (SMH, 2014). Hence the rights of the suspect was compromised since Jama was wrongfully convicted for a rape he did not commit. This incident would have stripped Jama of his liberty defame his name. Evidently the extent to which the criminal investigation process is able to successfully balance the rights of suspects, victims and society is mostly effective.
The police rely on the public to report crime for them to investigate. The justice system is barrier to reporting crimes as victims believe, the police would not be bothered or believe them, fearing the legal process and not knowing how to report crimes. In the case of Ashlee Sarsins (2015) the victim was left battered and bloody after being attacked by her boyfriend. Police did not investigate the case until there was a media outcry and the story was shared on Facebook. This reveals the lack of enforceability by police, who have failed to investigate the case and give the victim the justice she deserves. Evidently, the rights of the victim and by extension the rights of the society have not been balanced. Only half of the domestic violence victims surveyed had reported their most recent incident of violence to the police. 14% feared revenge or further violence from the perpetrator, 12% felt shame or embarrassment, 12% believed the incident was trivial and 8% thought the police would be unwilling to do anything about it. (BOSCAR, 2012). This shows ineffectiveness as there is a failure to meet community standards and accessibility. Evidently there is a failure to protect the right of society and individual, as women do not have access to reporting crimes, which allows several suspects to walk freely. Furthermore, Over 240, 000 Australian adult women are physically assaulted each year and nearly one-third of them by a current or previous partner (ABS 2006, social trends report). This reveals the lack of actions taken towards members of society and individuals who are assaulted, yet the perpetrators walk freely. However, the crime stoppers program revealed that information provided by the public through the program resulted in 550 arrests being made, including one instance of homicide (2008 Crime Stoppers Report). This shows the rights of society is being achieved. Evidently the extent to which the criminal investigation process is able to successfully balance the rights of suspects, victims and society is mostly ineffective.
In conclusion, the criminal investigation process has a difficult task in balancing the rights of victims, offenders and society. Those who breach the law are are at times adequately dealt with as seen through police breaching their powers, failure to gathering evidence and use technology appropriately and reporting crimes. The legal system must ensure the security of victims and the community as well as the rights of suspects is paramount. The legal system does this to an extent, however occasionally circumstances will arise where the law will favour one group at the expense of another.
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Topic: Legal Studies (Read 6224 times)