Evaluate the effectiveness of the criminal investigation process in regards to police discretion
Discretion is the ability of a, police officer or a judge to use their judgment to make a decision. Discretion is used by law enforcement agencies in situations to decide how to deal with a matter and ensures that justice prevails for all. Discretion is used in areas such as police powers involved, bail, and detaining terror suspects.
Law enforcement agencies must utilise their discretion when carrying out their duties. Law
enforcement (Powers And Responsibilities) Act 2002 (NSW) details the powers of police in carrying out their duties, such powers include, the rights to arrest and interrogate suspects and to detain and question suspects. Police must use ‘reasonable force’ meaning that the amount and type of the force needs to be appropriate and fit the nature of the crime, however arbitrary use of power is still in some used, which leads to excessive force. The
Curti Case 2012 is an example in which police have ineffectively used discretion resulting in
Curti’s death after being tasered 14 times within 51 seconds. This conveys this may be due to police officers lack of education about when and in what situations they can use Taser guns, as they lack training on making on the spot decisions on what type or amount of force to use. Uproar occurred in society as the officers were charged with assault rather than manslaughter, a less significant crime and punishment that didn’t fit the nature of the offence. By passing down a lenient sentence to the offenders this did not balance the rights of the victim and society, setting no deterrence. As a result, they’re exhibiting arbitrary abuse of powers and placing members of society at a risk.
The law has been effective to some extent in utilising their discretion in the criminal investigation process. Under the Bail Act 2013 (NSW) it focuses on a risk management approach and uses an ‘unnaceptable risk test’ which is when a bail authority determines whether or not the offender poses as a risk to society and if they should be granted bail.
Under this act, the bail authority has to regard to the presumption of innocence and the general right to liberty, thus protecting their rights using Lastly discretion; they need to assess if the bail conditions can reduce the risk of reoffending. If the offender or alleged offender poses a risk to society they are held on remand. In the media article MAHMOUD
HAWI case SMH 2014, whereby Hawi was accused of murder at the Sydney airport brawl and despite him being a known criminal with connections to OMCG’S organised crime he was still granted bail conveying how law needed to reform because of judges discretion to release the offender out on bail. This case led to the Bail Amendment Act 2014 reform, altering the ‘unacceptable risk test’ and introducing new provisions in which certain alleged offenders will need to ‘show cause’ as to why they should be granted bail. Thus, the act is effective to some extent, as the process is made ‘difficult’, adhering to community standards on the care and protection of society. Police discretion has restored public faith and safety in the legal system. However, polices discretion prove that the legal systems

lagging behind as they’re still granting bail to serious offenders having an inability to determine whether someone is going to reoffend due to it simply being based on discretion.
Thus the offender is most likely to commit the crime again as evident with Hawi, increasing rates of recidivism and instilling fear in the minds of society.
Judges/police has been effective to some extent in utilising their discretion to protect the greater society by implementing preventative measure to prevent crime. The Terrorism
(Police Powers) Act 2002 allow police to make an application to the supreme court to detain a person in custody for a maximum period of 14 days without charge, ability to apply for bail or having a court hearing if they reasonably suspect that they’re about to commit acts of terrorism. The detainment of a person on accusation of terrorism is based on suspicion.
Police officers and the supreme court judge must use discretion to determine whether or not an individual poses a risk to the public or not. As such the discretion to arrest someone will be based on the likelihood of the suspect to engage in a terror act or assist in a terror act. This is a measure of preventative detention. This involves keeping a suspect in custody, even though they haven’t committed a crime to prevent them from harming the public in anyway, infringing on individuals human rights as such right to presumption of innocence, freedom and liberty and fair treatment before the law. In the media article ‘Laws That
Erode Who We Are’ SMH 2011. The event that led to law reform was due to the 9/11 incidents. The legal system is attempting to be proactive by introducing these laws. This responses to the need to care and protection of society as it proves to be an effective measure that’s proactive rather than reactive in an attempt to restore order in society. It does this by being utilitarian in that infringing on the rights of one potential offender that could harm the greater society. However by this, this law doesn’t reflect community standards on fair treatment, justice, access and equality and detaining someone based on suspicion undermines the integrity of Australia’s democratic process.
Discretion is the ability of a, police officer or a judge to use their judgment to make a decision. Discretion is used by law enforcement agencies in situations to decide how to deal with a matter and ensures that justice prevails for all. Discretion is used in areas such as police powers involved, bail, and detaining terror suspects.