Commonwealth Director of Public Prosecutions

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

Date of Publication: 
17 September 1994

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


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.


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.


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