Today’s question arose in
… light of the recent murder in Melbourne. Can you go through the comparing courtesies versus mandatory actions following crimes? We often provide statements and documentation as a courtesy following official requests yet it has always been an impression that in a crime scene police have more authority when it comes to evidence, taping of scenes for example and seizing equipment and belongings until released.
I’ll answer this question in the context of Victoria.
Specific ‘crime scene’ powers are provided for in
- the Australian Capital Territory (Crimes Act 1900 (ACT));
- New South Wales (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW));
- the Northern Territory (Police Administration Act 1978 (NT));
- Queensland (Police Powers and Responsibilities Act 2000 (Qld)); and
- Tasmania (Police Offences Act 1935 (Tas)).
In general terms, when police exercise crime scene powers they can cordon off an area to restrict access, seize items found in the crime scene and interview people found in or near the crime scene.
There is no mention of ‘crime scene’ (in a relevant context) in Western Australia, South Australia or Victoria. It is clear that Victoria police do, as they must, cordon off crime scenes, seize evidence and take steps to ensure that the scene is not contaminated (see for example, R v Alexander  VSCA 142, ) but I cannot see where they have any specific, statutory authority to do that. The power, to the extent there is any, must come from common law and be implied by the duties of constable and the obligation upon Victoria police to ‘uphold the law so as to promote a safe, secure and orderly society’ (Victoria Police Act 2013 (Vic) ss 8 and 51).
A brochure on Police powers: Your rights in Victoria (2017 Victoria Legal Aid) suggests Victoria police have very limited powers. “Victoria Police policies and procedures are published in the Victoria Police Manual (VPM)” (https://www.police.vic.gov.au/policies-procedures-and-legislation). Unfortunately I cannot access the VPM so I do not know what it says about crime scene powers (if any).
In Victoria police can require a person to give their name and address where the police officer believes that the person ‘may be able to assist in the investigation of an indictable offence which has been committed or is suspected of having been committed’ (Crimes Act 1958 (Vic) s 456AA). Police cannot detain a person who is not under arrest for an offence (s 464I).
According to the Victims of Crime website (https://www.victimsofcrime.vic.gov.au/police-investigation/collecting-evidence):
Some items of your property may be related to a crime. If so, the police may need to take these for use as evidence at court. Police must give you a receipt if they take away any of your property. If the property is needed as evidence at court, you may not be able to have it returned to you until after the case is finished. You can expect that the police return your property as soon as possible.
Unfortunately they don’t say what legislation gives police the power to detain property. Where police do think there is evidence of a crime they can obtain a warrant that allows them to seize that property – Crimes Act 1958 (Vic) s 465.
What follows is that no-one is obliged to cooperate with police or answer their questions other than to provide their name and address where s 456AA, above, applies. That is true for everyone including paramedics. If police ask paramedics for a statement as to what they observed and did one would expect that paramedics would indeed assist but they are not compelled to do so. They may chose not to if for example the police want a statement about what a patient said whilst in the ambulance and to give the statement would breach the patient’s right to keep the communication confidential- see
- Paramedics and Patient Confidentiality number 2 (July 23, 2015); and
- Paramedic providing a statement to Queensland police (June 16, 2017).
Equally paramedics may want to report to police what they observed in the course of their duties due to the serious nature of any offence, but equally, they may not – see Discovering crime during an emergency response (July 19, 2016).
If items held by the paramedics will assist in the investigation, Victoria police would need to issue a subpoena or obtain a search warrant to compel production of those items.