Published by Geoff Harrison | 28 August 2023
The power of police to establish a Crime Scene in NSW is dealt with under Part 7 of the Law Enforcment (Powers and Responsibilities) Act 2002 ('the Act'). A police officer may establish a Crime Scene if they suspects on reasonable grounds that it is necessary to do so to preserve, or search for and gather, evidence of the commission of the offence in connection with the crime scene: s89(3)(a). A police officer can declare an area a Crime Scene for up to a period of 4 hours (6 hours in a rural area) as per s92(3) of the Act or obtain a Crime Scene warrant (s94). If a Crime Scene warrant is issued, this could also allow police to access and seize data if the person believes on reasonable grounds that the data might be data that could be seized under the warrant: ss75A & 75B of the Act.
A police officer declaring a Crime Scene must notify a senior police officer of that fact: s93. A Crime Scene warrant if silent as to the expiry date/time, expires 72 hours after being issued: s73(5). In relation to a Crime Scene, a police officer can exercise the powers within s95 of the Act which includes directing people to leave and/or not to enter the Crime Scene. An occupier of premises the subject of a Crime Scene warrant can apply to a magistrate for a review of the grounds that a Crime Scene warrant was issued: s94A. A person must not, without reasonable excuse, obstruct or hinder a person executing a crime scene warrant: maximum penalty --100 penalty units ($11,000) and/or imprisonment for 2 years.
Other sources:
________________________________________________________________________________
LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 88
Crime scene powers may be exercised if police officer lawfully on premises
A police officer who is lawfully on premises (whether by authority of a crime scene warrant or for any other lawful reason) may-
(a) establish a crime scene, and
(b) exercise crime scene powers in accordance with this Part, and
(c) stay on the premises for those purposes.
LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 89
Application of Part to premises
(1) This Part applies to premises of any kind, whether or not a public place.
(2) Despite any other provision of this Part, a police officer may exercise crime scene powers at a crime scene in a public place without obtaining a crime scene warrant and the provisions of this Part apply accordingly.
(3) A police officer may exercise crime scene powers in relation to a vehicle, vessel or aircraft that is within a crime scene established in a public place, without obtaining a warrant, but may exercise a crime scene power that involves seizing, detaining or searching the vehicle, vessel or aircraft only if--
(a) the police officer suspects on reasonable grounds that it is necessary to do so to preserve, or search for and gather, evidence of the commission of the offence in connection with which the crime scene was established, or
(b) the police officer is authorised to do so by a crime scene warrant or other lawful authority.
LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 91
Establishment of crime scene
(1) A police officer may establish a crime scene on premises in any way that is reasonably appropriate in the circumstances.
(2) A police officer who establishes a crime scene must, if reasonably appropriate in the circumstances, give the public notice that the premises are a crime scene.
(3) A crime scene may not be established under this Part on the same premises more than once in a 24 hour period unless a crime scene warrant is obtained in respect of the second and any subsequent occasion.
(4) Subsection (3) does not prevent a subsequent crime scene being established on the same premises in a 24 hour period for the purposes of investigating a separate offence that is not related to the offence in respect of which the initial crime scene was established.
LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 92
Exercise of powers at crime scene
(1) A police officer may exercise any of the crime scene powers set out in section 95(1)(a)-(l) if--
(a) a crime scene has been established under this Part, and
(b) the police officer exercising the power suspects on reasonable grounds that it is necessary to do so to preserve evidence of the commission of an offence in relation to which the crime scene was established.
(2) A police officer may exercise any of the other powers set out in section 95(1), but only if--
(a) a crime scene has been established under this Part, and
(b) the police officer or another police officer applies for a crime scene warrant in respect of the crime scene, and
(c) the police officer suspects on reasonable grounds that it is necessary to immediately exercise the power to preserve evidence of the commission of an offence.
(3) A police officer may exercise the crime scene powers conferred by this section for a period of not more than 4 hours (or not more than 6 hours in the case of a crime scene established in a rural area prescribed by the regulations), commencing when the crime scene is established, unless the police officer or another police officer obtains a crime scene warrant.
(4) A police officer may exercise crime scene powers in relation to a crime scene whether or not the police officer is the person who established the crime scene.
(5) A crime scene power that may be exercised by a police officer under this section (other than the powers set out in section 95(1)(a)-(f) and (k)) may be exercised by a scene of crime officer, but only with the authority of the police officer who established the crime scene or is responsible for the crime scene at the time.
(5A) A police officer may, in exercising crime scene powers conferred by subsection (1) at a crime scene, open a thing that is locked only if it is possible to do so without causing any damage to the thing or the lock.
(6) A crime scene power that may be exercised by a police officer under this section may be exercised by the police officer with the aid of such assistants as the police officer considers necessary.
LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 93
Notice to senior police officer where warrant not required
If a crime scene is established for a period of 4 hours or less or for a period of 6 hours or less in the case of a rural area referred to in section 92(3) (otherwise than by authority of a crime scene warrant), the police officer who establishes the crime scene must notify a senior police officer of that fact.
LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 94
Crime scene warrants
(1) A police officer may apply to an authorised officer for a crime scene warrant if the police officer suspects on reasonable grounds that it is necessary for the police officer or another police officer to exercise crime scene powers at specified premises for the purpose of preserving, or searching for and gathering, evidence of the commission of--
(a) a serious indictable offence, or
(b) an offence that is being, or was, or may have been, committed in connection with a traffic accident that has resulted in the death of or serious injury to a person.
(2) The authorised officer may, if satisfied that there are reasonable grounds for doing so, issue a crime scene warrant authorising any police officer to enter premises, to establish a crime scene on the premises (if a crime scene has not already been established) and to exercise all reasonably necessary crime scene powers at, or in relation to, a specified crime scene.
(2A) A crime scene warrant may, if a crime scene in relation to an offence is established on more than one set of premises, apply to each of those sets of premises.
(3) A police officer may, in accordance with the warrant and this Part, exercise all reasonably necessary crime scene powers.
(4) A crime scene power that may be exercised by a police officer under this section (other than the powers set out in section 95(1)(a)-(f) and (k)) may be exercised by a scene of crime officer, but only with the authority of a police officer who is responsible for executing the warrant.
Note 1 : For provisions relating generally to applications for crime scene warrants and other matters, see section 59.
Note 2 : A police officer may be assisted in the exercise of crime scene powers--see section 71.
LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 94A
Application by occupier for review by a Magistrate of crime scene warrant
(1) This section applies to crime scene warrants issued in relation to premises that are not a public place.
(2) The occupier of premises in respect of which a crime scene warrant is issued may apply to a Magistrate for a review of the grounds on which the warrant was issued.
(3) Any such application for a review of a crime scene warrant does not stay the operation of the warrant or a digital evidence access order in connection with the warrant.
(4) After reviewing the grounds on which the crime scene warrant was issued, the Magistrate to whom an application for review is made may--
(a) by order in writing, revoke the crime scene warrant, or
(b) refuse to revoke the warrant.
LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 95
Crime scene powers
(1) A police officer may, in accordance with this Part and any relevant crime scene warrant, exercise the following functions at, or in relation to, a crime scene established under this Part--
(a) direct a person to leave the crime scene or remove a vehicle, vessel or aircraft from the crime scene,
(b) remove from the crime scene a person who fails to comply with a direction to leave the crime scene or a vehicle, vessel or aircraft a person fails to remove from the crime scene,
(c) direct a person not to enter the crime scene,
(d) prevent a person from entering the crime scene,
(e) prevent a person from removing evidence from or otherwise interfering with the crime scene or anything in it and, for that purpose, detain and search the person,
(f) remove or cause to be removed an obstruction from the crime scene,
(g) perform any necessary investigation, including, for example, search the crime scene and inspect anything in it to obtain evidence of the commission of an offence,
(h) for the purpose of performing any necessary investigation, conduct any examination or process,
(i) open anything at the crime scene that is locked,
(j) take electricity, gas or any other utility, for use at the crime scene,
(k) direct the occupier of the premises or a person apparently involved in the management or control of the premises to maintain a continuous supply of electricity at the premises,
(l) photograph or otherwise record the crime scene and anything in it,
(m) seize and detain all or part of a thing that might provide evidence of the commission of an offence,
(n) dig up anything at the crime scene,
(o) remove wall or ceiling linings or floors of a building, or panels of a vehicle,
(p) any other function reasonably necessary or incidental to a function conferred by this subsection.
(2) The power conferred by this section to seize and detain a thing includes--
(a) a power to remove the thing from the crime scene when it is found, and
(b) a power to guard the thing in or on the crime scene.
(3) Nothing in this Part prevents a police officer who is lawfully on premises from exercising a crime scene power or doing any other thing, if the occupier of the premises consents. Any such consent must, as far as is reasonably practicable, be in writing.
(4) The occupier of premises may consent to the exercise of crime scene powers on the premises only if the occupier is, before giving consent, informed by a police officer of the following--
(a) the crime scene powers proposed to be exercised on the premises,
(b) the reasons for exercising those powers,
(c) the right of the occupier to refuse consent.
Note : Under section 99 a police officer may arrest and take before an authorised officer to be dealt with according to law any person found in or on the premises whom the police officer suspects on reasonable grounds of having committed an offence.
LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 96
Obstruction or hindrance of person executing crime scene warrant
(1) A person must not, without reasonable excuse, obstruct or hinder a person executing a crime scene warrant.
Maximum penalty--100 penalty units or imprisonment for 2 years, or both.
(2) A person must not, without reasonable excuse, fail or refuse to comply with a requirement made or direction given by a police officer pursuant to the exercise of crime scene powers at a crime scene.
Maximum penalty--10 penalty units.
LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 97
Search warrants not affected
Nothing in this Part prevents a police officer from applying for a search warrant under Part 5, or exercising any other function under this Act at, or in relation to, a crime scene or affects the exercise of any such function.
LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 98
Part does not confer additional entry powers
Nothing in this Part (other than the provisions relating to crime scene warrants) confers on a police officer any additional power to enter premises or limits any power that a police officer has to enter premises.
LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 75B
Access to and downloading of data from computers (including access to computers outside premises the subject of a warrant)
(1) The person executing or assisting in the execution of a warrant to which this Division applies may operate equipment at the premises the subject of the warrant to access data (including data held at premises other than the subject premises) if the person believes on reasonable grounds that the data might be data that could be seized under the warrant.
Note : Under section 49, data may be seized under a warrant if connected with an offence. Section 46(3) provides that a thing is connected with an offence if, for example, it will provide evidence of the commission of the offence.
(2) The person executing or assisting in the execution of the warrant may--
(a) copy any accessed data to a disk, tape or other data storage device brought to the premises, and
(b) with the approval of the occupier of the premises, copy any accessed data to a disk, tape or other data storage device already at the premises, and
(c) take the disk, tape or other data storage device from the premises to examine the accessed data to determine whether it (or any part of it) is data that could be seized under the warrant.
(3) The person executing or assisting in the execution of the warrant may operate the equipment to put any data that could be seized in documentary form and seize the document so produced.
(4) The person executing or assisting in the execution of the warrant may seize the equipment and any disk, tape or other data storage device--
(a) if it is not practicable to exercise the powers referred to in subsection (2) or (3) in relation to the data, or
(b) if possession by the occupier of the equipment or device could constitute an offence.
(5) This section does not authorise the operation of equipment already at the premises the subject of the warrant to access data unless the person operating the equipment has reasonable grounds to believe that the equipment can be operated without damaging the equipment or the data.
(6) The responsible officer for an authority must arrange for the removal of any data obtained by the exercise of a power referred to in this section by a member of the authority from any device under the control of the authority and the destruction of any other reproduction of the data in the control of the authority if the responsible officer is satisfied that the data is data that could not be seized under the warrant.
(7) Subsection (6) does not require the destruction of court records.
(8) In this section,
"responsible officer for an authority" means the following--
(a) in relation to data obtained by a police officer--the Commissioner of Police,
(b) in relation to data obtained by a member of staff of the Law Enforcement Conduct Commission--the Chief Commissioner of the Law Enforcement Conduct Commission,
(c) in relation to data obtained by a member of staff of the New South Wales Crime Commission--the Commissioner for the New South Wales Crime Commission,
(d) in relation to data obtained in execution of a search warrant issued under a provision of an Act specified in Schedule 2--the person prescribed by the regulations.