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Controlling police discretion in the conduct of investigations: the Commonwealth perspective

Last updated 17th September 1994

Author: Rozenes, M.
Date: 17/09/1994
Venue:
The Society of Labor Lawyers (WA), Fremantle, 16-18 September, 1994

Introduction

Police exercise considerable discretion at various stages of the criminal
process. It is they who decide whether to investigate a complaint and,
if so, how the investigation is conducted, whether to arrest a suspect,
whether that suspect is to be charged and, if so, for what offences. Further,
so long as a prosecution remains in the summary courts, in the majority
of jurisdictions in Australia it is still the police who decide whether
and how that prosecution proceeds.

In so far as the Commonwealth is concerned, the position is that the police
now perform only a formal role in the actual prosecution. Apart from the
consideration that my Office has the responsibility for conducting summary
and committal proceedings as well as proceedings on indictment, except
in arrest matters the Australian Federal Police do not institute a prosecution
without prior reference to my Office. Rather the established practice
is for the police to forward a brief of evidence to my Office where we
will decide whether a prosecution should be instituted and, if so, on
what charge or charges. Even where a prosecution is instituted by arrest
and charge, my Office will assume control of the matter once it is before
the courts.

It is for this reason that my paper focuses on the conduct of investigations
involving a suspect, for it is that area where the police, at least in
the Commonwealth context, continue to exercise considerable discretion,
and where there will always be the potential for the allegation to be
made that those discretions are being abused.

While what follows is primarily concerned with the Commonwealth initiatives
in this area – the Crimes (Investigation of Commonwealth Offences)
Amendment Act 1991
and, more recently, the Crimes (Search Warrants
and Powers of Arrest) Amendment Act 1994
– any examination of the
control of police discretion in the conduct of investigations involving
a suspect must acknowledge the important role played by the court’s Bunning
v. Cross
discretion.

The traditional view in England, at least until the enactment of s78
of the PACE Act in 1984, was that it was not the responsibility of the
courts to supervise the police. Provided the evidence of the crime was
reliable, the English courts were not concerned with how the police had
obtained it.1 In Australia, on the
other hand, once the principle had been established that a court had a
discretion to reject evidence on the sole ground that it had been unlawfully
obtained2 the defence for the first
time had a real incentive to attack the means used by the police to obtain
evidence. Equally, the police now had an incentive to conduct themselves
with propriety when carrying out investigations involving a suspect if
they wished to avoid the risk of perhaps vital evidence being excluded
in the exercise of the court’s discretion. In a sense this discretion
also provided the catalyst for the recent Commonwealth legislative reforms.

Few would dispute that the questioning of a suspect, whether arrested
or not, plays a legitimate and essential part in the contemporary criminal
justice system. The police have a duty to endeavour to discover the truth
of what happened. Questioning is one of the principal means that the police
have at their disposal to do that. Questioning an arrested person gives
that person the opportunity to admit his or her guilt, if that be the
case, but in any event to provide his or her account of what happened,
which may tend to confirm or dispel the reasonable grounds that founded
the arrest. Questioning can still be important although the police are
already in possession of evidence which is considered sufficient to obtain
a conviction. The arrested person may claim in response to police questioning
that he or she was intoxicated at the time of the commission of the alleged
offence, thus raising perhaps for the first time whether the requisite
mental element for the offence under consideration can be established.
Questioning may also be necessary to endeavour to ascertain the surrounding
circumstances, for example whether any other persons may have been involved
in the offence.

Yet it is a curious feature of the common law, at least in Australia,
that it provides the police with little opportunity to lawfully question
a suspect. If a suspect has not been arrested, the police have no authority
to restrain him or her simply for the purpose of questioning. Save for
certain statutory exceptions, such as the requirements that operate in
some jurisdictions for a person to provide his or her name or address,
a person who has not been arrested is free to decline to answer any questions
put to him or her by a police officer.

Nor is the legal position materially different once the suspect has been
arrested. Yet it is of course commonplace for, what in some cases is perhaps
crucial evidence against an accused, to have been obtained while that
person was in the custody of the police. However, the practice of the
police questioning or carrying out other investigations involving an arrested
person has had to develop within the constraints of a common law rule
which recognises the only legitimate use of arrest as being for the purpose
of taking the suspect before a justice (nowadays usually a magistrate)
as soon as practicable after the arrest. If a magistrate is available,
at common law the police have no authority to delay taking the arrested
person before the magistrate for the purpose of questioning or carrying
out other investigations involving the arrested person.

There is an inevitable tension between the strictures of the common law
rule and the reality of police practice. In England this tension was resolved
many years ago in favour of a relaxation of the duty of a police officer
in respect of an arrested person. This amounted in practice to a recasting
of that duty. Some delay was in fact countenanced, provided what was done
following arrest to inquire further into the suspected offence before
the person was brought before a magistrate or sooner released, was reasonable. 3

In Australia, on the other hand, the approach taken by the courts to
the common law rule and its statutory equivalents was, generally speaking,
along more orthodox lines. Nevertheless, the end result was often the
same. In the first place, the police were able to avoid the restrictions
of the common law requirement by resorting to various stratagems. Arrest
could be deferred until as late as possible by "inviting" the
suspect to attend the police station for the purpose (to use the accepted
euphemism) of assisting them in their enquiries. Alternatively, the suspect
might be arrested at a time when no magistrate would be available.4

Further, although a confessional statement may have been made by an arrested
person during a period of illegal detention, in that it was obtained after
the time that it would have been practicable to bring the person before
a magistrate, nevertheless evidence of confessional statements obtained
in such circumstances was often admitted. In this regard, it should be
noted that the principle that evidence may be excluded on the sole ground
that it had been unlawfully obtained is of relatively recent origin, and
it was not until the High Court’s 1982 decision in Cleland v. R 5 that it was confirmed that this
discretion applied to confessional evidence as well as real evidence.
In any event, the courts were often prepared to countenance some delay
on the part of the police by exercising their discretion in favour of
the admission of evidence that had been obtained during what was, strictly
speaking, a period of illegal detention.

Although the reality of police practice was at odds with the letter of
the law, for many years there was no real pressure to provide the police
with a framework within which they could lawfully carry out investigations
involving an arrested person before being required to take that person
before a magistrate. However, such an unsatisfactory state of affairs
could not continue indefinitely, and the catalyst for change (at least
in some jurisdictions) was the High Court’s 1982 decision in Cleland
v. R
.

While the majority of the Court in Cleland observed that it would
only be in a very exceptional case that a voluntary confession should
be rejected in the exercise of the Bunning v. Cross discretion,
in a series of decisions Victorian judges, taking a somewhat expansive
view of the decision in Cleland, began to exclude in the exercise
of their discretion confessions and other inculpatory evidence that had
been obtained when a suspect had been in police custody for a longer period
than was considered to be permitted by law, notwithstanding that in many
instances the evidence had been obtained in circumstances that, but for
the delay itself, had not been unfair to the arrested person.

In response to police and public concerns at the exclusion of fairly,
albeit illegally, obtained evidence, the Victorian Crimes Act 1958 was
amended in 1984 giving the police an initial period of six hours to question
an arrested person and to carry out other investigative measures before
the police were required to take the arrested person before a justice.
Provision was also made for that initial period of six hours to be extended
on application to a magistrate. Broadly similar legislation was enacted
in South Australia in 1985.6

While Victoria and South Australia were thus the first jurisdictions to
introduce a period of post arrest detention for the purposes of investigation,
in fact the Commonwealth itself had attempted to enact broadly similar
legislation in the late 1970s. In its 1975 report on "Criminal Investigation",
the Australian Law Reform Commission had recommended that the police be
authorised to detain an arrested person for investigation for a period
of four hours, with some provision for "dead time" to be excluded
in calculating the four hour period, and that magistrates be authorised
to extend that initial period of detention for investigation for a further
eight hours. While a Criminal Investigation Bill to give effect to the
ALRC’s recommendations was introduced in 1977, it was vigorously opposed
by police. Apart from providing for a period of post-arrest/pre-charge
detention, the Bill also provided for tape recording of interviews with
suspects, and other safeguards such as access to a legal representative.
It was argued that those safeguards would tilt the criminal justice system
too much in favour of the suspect, and ultimately the Bill was not proceeded
with. A further version of the Bill was introduced in 1981. However, this
further Bill was also opposed by the police, and it lapsed when Parliament
was dissolved prior to the 1983 federal election.

With two failed attempts by the Commonwealth to introduce pre-charge detention
for the purposes of investigation (as part of legislation regulating the
area of criminal investigation generally) it is possible that this project
might have been shelved indefinitely in so far as the Commonwealth was
concerned but for the High Court’s 1986 decision in Williams v. R. 7

While the High Court’s decision in Williams was viewed by some,
particularly police, as representing a change to the law in this area,
in truth their Honours in Williams said nothing new with respect
to the detention of arrested persons. Rather they merely reaffirmed that
the police had no authority to delay taking an arrested person before
a magistrate in order to question that person, and that a court had a
discretion to reject a confession, although it had been voluntarily made
and it would not otherwise be unfair to use it against the accused, if
nevertheless it had been obtained from the accused while he or she was
in police custody for a longer period than the law allowed.

In this as in other areas of the criminal law a balance must be struck
between the need to protect the civil liberties of individuals and the
public interest in offenders being brought to justice. Following Williams there was a growing realisation, at least on the part of the Commonwealth,
that the common law had failed to adapt to the significant charges that
had taken place in our criminal justice system and that a different balance
had to be struck. Provided there were appropriate safeguards, there could
be no objection on principle to the police questioning an arrested person.
After all, under the common law rule there was nothing to prevent the
police questioning an arrested person provided that it did not result
in any delay in taking that person before a magistrate. Why should the
opportunity to lawfully question or carry out other investigations involving
an arrested person depend on the accidental (or perhaps deliberate) circumstance
that arrest had taken place at a time when no magistrate was available.
The common law rule also tended to bring the administration of criminal
justice into disrepute, by in effect forcing police to resort to what
often amounted to little or more than fictions if they wished to have
an opportunity to question a suspect.

Nor did the law provide adequate safeguards for a suspect in police custody.
There was the potential for improper pressure being brought to bear on
a suspect to confess, and the risk that records of interview could be
fabricated or altered. Save for the caution, nor were the police obliged
to inform a suspect of what limited rights he or she had while in police
custody.

If, however, a different balance was to be struck, it was clear that it
was a matter for the legislature and not the courts. As Mason and Brennan
JJ observed in Williams:

"The competing policy considerations are of great importance to the
freedom of our society and it is not for the courts to erode the common
law’s protection of personal liberty in order to enhance the armoury of
law enforcement. It should be clearly understood that what is in issue
is not the authority of law enforcement agencies to question suspects,
but their authority to detain them in custody for the purpose of interrogation.
If the legislature thinks it right to enhance the armoury of law enforcement,
at least the legislature is able – as the courts are not – to prescribe
some safeguards which might ameliorate the risk of unconscionable pressure
being applied to persons under interrogation while they are being kept
in custody." 8

Co-incidentally, a few months after the decision in Williams was
handed down the Commonwealth Attorney-General established a Committee
headed by the former Chief Justice of the High Court, Sir Harry Gibbs,
to undertake a thorough review of the Commonwealth’s criminal laws (the
"Gibbs Committee"). That Committee decided to examine the Commonwealth’s
laws relating to criminal investigation, and in September 1987 it issued
a discussion paper on "Arrest and Related Matters"9 which dealt, amongst other things, with the power to question or otherwise
investigate an arrested person. In September 1988 the Attorney-General
wrote to the Gibbs Committee requesting it to deal with pre-charge detention
by way of an interim report if it considered that it would be feasible
to deal with this matter separately from other "criminal investigation"
issues, such as the power to arrest and search warrants. The Gibbs Committee’s
interim report on "Detention before Charge" was issued in March
1989 and a Bill implementing the main recommendations contained in that
report was introduced in the Parliament in 1990 and passed in the following
year.

The Crimes (Investigation of Commonwealth Offences) Amendment Act 1991

This Act introduced a new Part IC into the Crimes Act 1914 which
came into operation on 1 November 1991.

In a nutshell, Part IC provides for the detention of arrested persons
for an "investigation period" of up to four hours with, however,
provision being made for the initial investigation period to be extended
for up to a further eight hours by a magistrate in the case of offences
punishable by more than 12 months imprisonment. The legislation also establishes
a system of safeguards, the major one being the tape recording of confessional
material. Other safeguards provided for by the legislation include the
right for persons under arrest to be permitted to communicate with a relation
or friend and a legal practitioner, and to have a legal practitioner present
during questioning.

From the perspective of the police the most important change effected
by Part IC was that the police were now authorised to detain an arrested
person for the purpose of investigating whether the person committed the
offence for which he or she was arrested or some other Commonwealth offence. 10 However, detention for such a
purpose cannot extend beyond what is referred to as the "investigation
period". This begins when the person is arrested, and ends at a time
thereafter that is reasonable in all the circumstances, but does not extend
beyond two hours in the case of a person under 18, an Aboriginal person
or a Torres Strait Islander, or four hours in any other case.11 In ascertaining what is a reasonable time in all the circumstances of
a particular case, regard may be had to the number and complexity of matters
being investigated.12 In addition,
provision is made for the exclusion of certain periods of "dead time"
for the purpose of calculating the investigation period when questioning
or other investigations involving the arrested person cannot, or should
not, take place, for example, the time reasonably required to convey the
arrested person to the police station or the time during which questioning
is suspended or delayed because of the arrested person’s intoxication. 13

Where investigations will not be completed prior to the expiration of
the initial investigation period, there is the option of making an application
under the legislation for that investigation period to be extended for
up to eight hours. However, an application for an extension can only be
made if the person has been arrested for an offence punishable by imprisonment
for more than 12 months.14 The application
must be made to a magistrate if possible but, if at the relevant time
no magistrate is available, the application may be made to a bail justice
or a justice of the peace who is employed in a court. Only as a last resort
may the application be made to an ordinary justice of the peace.15

The legislation also includes a provision preventing the police from artificially
extending the relevant investigation period by releasing the arrested
person without charge after an initial period of questioning, and then
re-arresting that person a short time later, either in relation to the
same offence for which he or she was first arrested or some other offence
that the police were aware of at the time of the first arrest.16

In my view, however, it is the safeguards introduced by this legislation
that are more significant. In a sense the provisions relating to detention
of arrested persons for investigation merely gave statutory authority
to what had previously been police practice. The safeguards, on the other
hand, provide a means to monitor what actually occurs while the suspect
is in police custody and to minimise the potential for the authority to
detain for investigation to be abused.

It should first be noted that the operation of these safeguards is not
limited to the situation where a suspect has actually been arrested. Rather
they apply in what may be loosely referred to as circumstances of "deemed
arrest", although the suspect has not been formally arrested and
indeed the police may not intend to arrest the suspect. A person will
be deemed to be under arrest if he or she is in the company of an investigating
official for the purpose of being questioned and:

"(a) the official believes that there is sufficient evidence to establish
that the person has committed a Commonwealth offence that is to be the
subject of the questioning; or

(b) the official would not allow the person to leave if the person wished
to do so; or

(c) the official has given the person reasonable grounds for believing
that the person would not be allowed to leave if he or she wished to do
so;"17

The intention behind this extension of the safeguards to certain circumstances
of deemed arrest was to ensure that the police were not able to evade
their obligations under the legislation by continuing to use the stratagem
of "voluntary co-operation".

In essence, the various provisions of Part IC operate at three distinct
stages:

  1. the requirement to tape record confessional statements will apply
    where a person is being interviewed as a suspect, whether or not under
    arrest, constructively or otherwise. In addition, the requirements relating
    to the presence of an interview friend before a person under 18 or an
    Aboriginal person or a Torres Strait Islander is questioned as a suspect
    will apply whether or not such a person is under arrest.
  2. Where a person is deemed to be under arrest but has not been formally
    arrested, all provisions of Part IC will come into operation other
    than
    the authority to detain an arrested person for investigation.
  3. Where a person has in fact been arrested, all provisions of Part IC
    will come into operation including the authority to detain for the purpose
    of investigation.

As well as providing for certain rights which have no counterpart under
the common law (for example, the right for a foreign national under arrest
to communicate with the relevant consular office18)
certain rights under common law have been enhanced. For example, at common
law an arrested person has a right to legal advice only in the sense that
a refusal by the police of a request by an arrested person to contact
a legal practitioner before or during questioning, or to have a legal
practitioner present during questioning, could in the circumstances of
a particular case warrant exclusion of any confessional statement obtained.
The police are under no obligation at common law to inform the arrested
person that he or she has the right to obtain legal advice. Under Part
IC the police are obliged to inform every suspect under arrest, whether
formally arrested or otherwise, that he or she has the right to communicate
with a legal practitioner of the person’s choice, and to arrange for a
legal practitioner of the person’s choice to be present during the questioning. 19 Similarly, the form of caution
under Part IC more accurately reflects the right to silence than does
the form of caution under the "Judges Rules" in that the suspect
is also informed that he or she does not have to "do anything". 20

The most significant safeguard introduced by Part IC is the tape recording
of confessions and admissions. Tape recordings, particularly video recordings,
provide a means of monitoring what actually occurs during the interview
situation, indeed whenever any other investigative measure is undertaken
involving a person in custody.

Of course, suspects are not the only beneficiaries of this requirement.
Under the old fashioned methods of conducting an interview with a suspect
allegations of "verballing" and the like were easy to make but
difficult to refute. Recording the interview by electronic means reduces
considerably the potential for disputes over confessions at any subsequent
trial, as well as providing a protection to the police in respect of allegations
that a confession has been fabricated.

Part IC does not in terms require that a confessional statement by a suspect
must be tape recorded. However, the practical effect of the legislation
is to force police to tape record the interview with a suspect if it is
practicable to do so by rending any confessional statement inadmissible
if it is not tape recorded.21 Further,
as mentioned previously, the tape recording requirements apply where a
person is being interviewed as a suspect, whether or not the suspect is
under arrest.22

If it is not practicable for the interview with a suspect to be tape recorded,
then the legislation sets out a relatively complicated procedure which
must be complied with before any confessional statement by the person
will be admissible in evidence against that person. Briefly, a written
record must be made of the interview, either contemporaneously or as soon
as practicable thereafter, and that written record must be read back to
the person, again as soon as practicable after the written record has
been made, with a copy of the written record being made available to the
person at the time of the reading back. The suspect must be given the
opportunity to interrupt the reading at any time to point out claimed
errors or omissions, and to make a further statement regarding any claimed
errors or omissions at the end of the reading. Finally, the reading, and
anything said by the suspect, must be tape recorded.23

Notwithstanding that the tape recording requirements have not been complied
with, or there is insufficient evidence of those requirements having been
complied with, a court has a limited discretion to admit into evidence
a confessional statement made by a suspect if:

"… having regard to the nature of and the reasons for the non-compliance
or insufficiency of evidence and any other relevant matters, the court
is satisfied that, in the special circumstances of the case, admission
of the evidence would not be contrary to the interests of justice". 24

In its interim report "Detention before Charge" the Gibbs Committee
considered that it would not be practicable to insist on video recording
from the outset, and Part IC does not specify a particular mode of recording.
Either video or audio only is suitable. However, despite the capital cost
involved, the AFP decided to install video recording equipment from the
outset. There were a number of reasons for this. It was considered that
video would provide a much more useful record in the event police conduct
was attacked. In some cases it may also be important to be in a position
to record the gestures and expressions of those involved as well as what
they say. In any event, it was considered that video recording of interviews
with suspects would become the norm in the not too distant future, and
to start out with video would avoid the need to re-equip some years down
the track.

In my view Part IC strikes the right balance between the need to protect
the civil liberties of suspects and the public interest in offenders being
brought to justice, and that the police not be unduly hampered in performing
that task. Indeed, on the basis that the provisions relating to detention
for investigation merely provide statutory authority for what was previous
police practice, the new balance struck by this legislation is very much
in favour of the rights of suspects

The Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994

The Crimes (Investigation of Commonwealth Offences) Amendment Act was
the first in what is intended to be a three-stage program to replace the
unsatisfactory patchwork of Commonwealth law, common law and applied State
and Territory law with a comprehensive set of Commonwealth provisions
regulating the investigation of Commonwealth (and certain Territory) offences
and related matters. The second stage was the Crimes (Search Warrants
and Powers of Arrest) Amendment Act 1994 which will come into operation
later this year.25

The main areas dealt with by the Crimes (Search Warrants and Powers of
Arrest) Amendment Act are the issue and execution of search warrants,
the power of arrest, the search of arrested persons, the taking of identification
material and the conduct of identification parades. Hitherto Commonwealth
law in these areas reflected a "bare bones" approach. Either
the Commonwealth relied almost exclusively on State and Territory laws
which were made applicable to Commonwealth matters by s68(1) of the
Judiciary Act 1903
, or Commonwealth law conferred little more than
a bare power, with it being left to the common law to "flesh out"
the manner in which that power should be exercised. This unsatisfactory
mixture will shortly be replaced with what amounts to a codification in
the areas covered by the Act. The only area where the Commonwealth will
continue to rely on applied State and Territory law is in relation to
the issue of warrants for arrest, but even there the Act specifies additional
criteria which must be complied with before a warrant may be issued.26

From the police perspective the new Act will address a number of anomalies
and areas of uncertainty in the existing law as well as, in some areas,
conferring additional powers on the police. Under the new Act the police,
for example, will now be able to obtain search warrants in relation to
persons as well as premises. The new Act also takes account of technological
developments, particularly in the area relating to the execution of search
warrants.

On the other hand, an important aspect of the new Act is that the opportunity
has been taken to enhance the protection of individual rights and freedoms.
This is particularly so in relation to the conduct of an investigation
involving a young person or a person who is incapable of managing his
or her affairs. Taking the provisions relating to the obtaining of identification
material as an example, there is a prohibition on the taking of identification
material from a person under 10 unless that person is not a suspect and
a court orders that the material be taken.27 For a suspect who is between 10 and 18, or who is incapable of managing
his or her affairs, identification material may not be taken without a
court order unless the person has been arrested and charged.28 Further, where identification material is taken from a person who is under
18 or who is incapable of managing his or her affairs, it must be done
in the presence of a parent or guardian of the person or some other person
who is capable of representing the person’s interests and who, as far
as is practicable, is acceptable to the person.29

Unlike the position in a number of Australian States, in exercising the
power to arrest without warrant it is not sufficient that the constable
believes on reasonable grounds that the person has committed or is committing
an offence. Under the new Act the constable must also believe on reasonable
grounds that to proceed against the person by way of summons would not
be effective. While the provision to be replaced, s8A of the Crimes Act,
also incorporates the "necessity principle", the relevant provision
in the new Act is an improvement in that it specifies the circumstances
where to proceed by way of summons would not be effective.30

On one issue, however, I consider that the new Act has not achieved that
appropriate balance between the protection of individual freedoms and
the community’s interest in effective law enforcement.

At common law evidence of a suspect’s refusal to participate in an identification
parade may only be given in any subsequent proceedings against the person
for the limited purpose of explaining to a jury why evidence of the most
satisfactory means of identification, ie that resulting from an identification
parade, is not being led.31 In that
event, however, the jury must be directed that it may not consider such
evidence for the purpose of drawing an inference that the person is guilty. 32 In the Bill as introduced in the
Parliament it was proposed that the common law position be modified to
permit a court or jury to draw such inferences from a refusal to participate
in an identification parade as appear proper. However, this proposal was
abandoned in the face of opposition in the Senate.

In my view, the proposal was justified from the stand-point of principle.
In the first place, I do not consider that the proposal constituted an
unwarranted interference with a suspect’s "right to silence".
Secondly, a suspect has no right not to be identified, and the police
are free to attempt to obtain evidence of identification by any other
means available in the circumstances, provided of course that in doing
so they commit no civil or criminal wrong.33 However, any such alternatives will usually provide less satisfactory
evidence of identification than a parade. Given the lengths that the new
Act has gone to ensure fairness in the conduct of an identification parade,
in my view it was in both the interests of the community and of the suspect
that the latter be provided with such an incentive to participate in an
identification parade.

Conclusion

It is not all that long ago that the police station was regarded as sacrosanct,
and there was fierce opposition from police quarters to giving suspects
anything more than the most basic rights. Tape recording of interviews
with suspects, for example, was opposed, not just on grounds such as the
cost involved and a fear that suspects would fake police beatings on tape,
but also, one suspects, simply because of the fear of the unknown. It
was this opposition which effectively killed the Commonwealth’s first
attempt to introduce legislation regulating the exercise of police powers.

In contrast, there has been no great opposition from police circles to
the recent Commonwealth legislation. The police have come to realise that
the old ways were becoming increasingly untenable, and that if they were
to have additional powers, such as the authority to detain for investigation,
then there had to be trade-offs. Merely to have enhanced the armoury of
law enforcement would not have been politically acceptable without adequate
safeguards in place to protect suspects and indeed other members of the
community from the possibility that the police would improperly use their
powers. Not only does a suspect now have greater rights than were available
under the former law, but just as importantly a suspect must now be informed
that he or she has those rights.

Although the police have undoubtedly benefited from the new legislation,
to reiterate a point made earlier it is individual rights and freedoms
which are the main beneficiaries.

Footnotes

1 see, for example, Kuruma v. R [1955] AC 197 and Sang [1979] 3 WLR 263

2 R v. Ireland (1970) 126 CLR 321; Bunning v. Cross (1978)
141 CLR 54; Cleland v. R (1982) 151 CLR 1

3 see, for example, Dallison v. Caffery [1964] 2 All ER 610, per
Denning MR at 617

4 In R v. Burns (Court of Criminal Appeal, unreported, 19 August
1988) Street CJ rejected a defence submission that the police should have
arranged for a person who had been arreste at night to be brought before
a Justice. In delivering the judgment of the Court of Criminal Appeal,
the Chief Justice stated- "The suggestion that a Justice could have
been brought back to the police station in order to open his court, and
exercise his judicial function, appears to me to involve some excess of
the expectation of the common law that the bringing of the personbefore
a Justice should be as soon as practicable. The requirement is not absolute.
It is a requirement tinged, as are most common law principles, with an
element of reasonableness and I see nothing unreasonable in the proposition
that the requirement is not offended merely by reason of the failure of
the police to go and find a Justice somewhere and bring him back to the
police station in order to exercise his function. I am not accordingly
persuaded that the detention of the appellant was unlawful at the time
the confession was made, and I accordingly would not rule out the confession
on that ground."

5 (1982) 151 CLR 1

6 see the Summary Offences Act 1953 (SA), sections 75 – 79a

7 (1986) 161 CLR 278

8 at 296

9 Discussion Paper No. 3

10 S23C(2)

11 S23C(4)

12 S23C(5)

13 S23C(7)

14 S23D(6)

15 S23D(2)

16 S23C(6)

17 S23B(2)

18 S23P

19 S23G

20 S23F

21 S23V(1)(a)

22 S23V(1)(a)

23 S23V(1)(b)

24 S23V(5)

25 The third and final stage will deal with the conduct of forensic procedures
involving a suspect. While the first and second stages in the main implemented
recommendations made by the Gibbs Committee (Interim Report : Detention
before Charge, March 1989; Part V – Search Warrants, Fourth Interim Report
(November 1990); Part II – Arrest and Matters Ancillary Thereto, Fifth
Interim Report (June 1991)), the conduct of forensic procedures is to
be addressed by model legislation currently being developed by the Model
Criminal Code Officers Committee (MCCOC) under the auspices of the Standing
Committee of Attorneys-General. A draft Model Forensic Procedures Bill
was released for public comment earlier this year, and it is possible
that a Commonwealth Bill to implement MCCOC’s final report in this area
could be introduced some time next year.

26 S3ZA

27 Subsections 3ZJ(5) and (9)

28 S3ZJ(6)

29 S3ZJ(8)

30 S3W

31R v. Clune (1982) VR 1

32 R v. McCarthy and Ryan, NSW Court of Criminal Appeal, unreported,
24 December 1993, per Hunt CJ at CL

33 See, for example, Wright (1992) 60 A Crim R 215 at 220 – 221