Documentation is the spine of a criminal investigation. For the defence, analysing and critiquing the documentation of an investigation is also the primary means of challenging the prosecution case or obtaining exculpatory evidence.
Victoria Police are legally obliged to maintain complete, accurate and timely records of operational activity. It’s therefore crucial to be aware of what documentation could potentially exist in relation to a criminal investigation.
The following outlines common documentation within criminal investigations in order to assist the identification of missing, tampered or lost evidence.
First Responder Records
In many cases a crime is discovered through the actions of first responders, including police members on patrol.
Police members on patrol are expected to make contemporaneous notes as close as possible to the time of an event. Police notes must capture all relevant facts, scene observations. and any questioning of suspects or witnesses.
For Victoria Police these are usually documented as ePDRs (Electronic Patrol Duty Returns), Incident Reports, Source Contact Reports or other entries in the online Law Enforcement Assistance Program or ‘LEAP’ database.
Other first responder records can include ‘000’ calls, body-worn camera footage and witness statements.
Investigator Records
Along with LEAP entries, detectives are required to keep official diaries as well as online case files documenting all notable investigative activities including all contact with suspects, witnesses and decisions made in relation to an investigation.
Interpose is the principal electronic case management platform for major investigations within Victoria Police. Interpose entries document investigative strategies, taskings and intelligence holdings and form the major source of documentation for the later police brief.
When an investigation begins, an Interpose “investigation shell” is created. This acts as the digital folder containing all relevant material for investigation. Each shell must include at minimum witness statements, investigator notes, photographs and logs as well as initial action briefing notes and incident reports. Records may also include investigation planning records including the strategic direction and operational goals of an investigation.
Interpose entries will not exist for property-related volume crimes which have resolved within 30 days without suspects (they remain on LEAP).
Active investigations may also receive tips from the public or other officers summarised in ‘information reports’ which will be stored on either Interpose or LEAP. Police also maintain a complex set of records concerning the use and management of human sources (informers) – in Victoria this includes risk assessment documentation, informer contact reports, human course management logs and detailed recordings of conversations with human sources.
Further, internal correspondence and legal documents, although rare disclosed, detail communications concerning case strategy, disclosure decisions, legal advice, and liaison with other enforcement or government agencies (such as the AFP, Customs, ACC, or IBAC).
Many, but often not all, members of the investigative team will also make a formal statement which will be included in any police brief.
Finally of course, all police investigations which proceed to trial will involve the preparation of a brief of evidence (or police brief) supplied to prosecutors and including all evidentiary material intended to be relied upon.
Crime Scene Records
Once a crime scene is established, a scene log will be kept showing who entered and exited the scene.
Photographs or video of the scene will be taken (ideally before disturbance) and notes of any protective measures used for trace preservation provided by the crime scene examiners and other personal in their formal statements. Crime scene sketches may also be developed.
An exhibit register and forensic logbook will be completed for each piece of evidence gathered at a crime scene to ensure a clear chain of custody.
Interviews and Statements
Interviews with suspects for indictable offences must be electronically recorded, usually via video. Records must show breaks, who entered and left and any exhibits shown to the suspect. Initial interactions, such as an ‘initial disclosure interview’, are recorded, often first as notes, which are then typically typed into the Interpose system
A transcript of the record of interview should be provided and cross-checked against the video or audio recording of the interview.
Victim and witness statements do not need to be recorded, but should be written in a matter that reflects their own words. VARE recordings may be made for children and vulnerable witnesses.
Search and Seizures
Victoria Police personnel prepare and apply for warrants necessary to compel assistance or conduct searches. This includes affidavits sworn by police in support of various warrants (e.g., search warrants under the Crimes Act 1958).
Searches of property, persons or vehicles will usually occur with a warrant (unless authorised under emergency search legislation), a copy of which should be provided.
All property seized will be entered into the internal property management system for the police agency (within Victoria Police this is the PaLM system) . Detailed records are generated following seizure, such as a Victoria Police Exhibit Log. Special property types, such as mobile phones, cash and firearms will have extra identifiers (for example IMEI or serials) when entered into a property management system.
Surveillance, Intercepts and Covert Recordings
The use of listening, optical, tracking or data device should be supported by a warrant (unless emergency authorisation applies) as well as copies of data / material obtained.
Recordings obtained through telecommunications intercepts will generally be documented by a warrant as well as copies of the digital recordings, call and session lists and statements by telecommunication providers documenting compliance.
Covert recordings made during undercover or controlled operations and relied upon as part of the prosecution will be provided as digital files. If provided as the original files, metadata can be obtained to monitor the creation or modification of recordings.
Digital and Other Forensic Evidence
Full extracts of mobile phone or computer data are usually provided as digital files. A statement by a forensic digital officer should be provided along with details of how data was extracted from a device.
Third-party CCTV footage or video evidence should be provided as a digital file along with a witness statement to support the veracity of the evidence.
Forensic procedures will be documented by expert statements / reports, copies of warrants (if not otherwise authorised for procedures) as well as records of collection, retention and any destruction of physical evidence.
Accessing Missing Documentation of Criminal Investigations
Accessing documentation of a criminal investigation is easiest when a person is a party to a criminal matter, particularly the accused.
In Victoria, both the Criminal Procedure Act 2009 (Vic) as well as Office of Public Prosecutions guidelines require police and prosecutors to disclose any material known to them that is relevant or possibly relevant to an issue, raises a new issue or offers a real prospect of providing a line of inquiry. Despite this, endemic issues of police and prosecutorial non-disclosure exist. Defence counsel (or the accused) should therefore request a breadth of documentation during active criminal proceedings in order to ensure relevant material is not missed.
If criminal proceedings have been finalised, access to material is generally limited by Freedom of Information laws and bureaucracies. There are often lengthy delays regarding FOI requests made to police and prosecutors, with many grounds upon which authorities may refuse to disclose material.
It’s therefore crucial to identify gaps or lines of inquiry regarding documentation as soon as possible in a criminal investigation to maximise the chance of obtaining relevant and potentially exculpatory material.
Jarryd Bartle 