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Law Reform Act - Law Reform Commission - Reports - No. 2 - Criminal investigation - Interim report, 5 September 1975


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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

1975— P a rlia m en ta ry P aper N o. 280

CRIMINAL INVESTIGATION REPORT No. 2

INTERIM REPO RT BY THE LAW REFORM

COMMISSION

5 September 1975

P resented pursuant to S ta tu te 4 N ovem ber 1975

O rdered to be p rin te d 11 N ovem ber 1975

TUI GOVERNMENT PRINTER OF AUSTRALIA CANBERRA 1976 '

Publications o f the Law Reform Commission

ALRC 1 Com plaints Against Police

Commission reference: ALRC 2

The Law Reform Commission is established by section 5 of the . Law Reform Commission Act 1973 for the purpose of prom oting the review, modernisation and simplification of the law. The Chairman and first Members were appointed in 1975. The offices of the Commission are at 99 Elizabeth Street, Sydney, N.S.W., Australia (Tel. 02 231 1733). '

© Commonwealth o f Australia 1975

Printed by W atson Ferguson and Co., Brisbane

Contents

Page Paragraphs

Terms of Reference ix

Participants X

Foreword xiii

Table of Cases xvi

Table of Legislation xxi

1. PRELIMINARIES

Terms of Reference 1 1-3

Preparation of Report 2 4-5

General Principles and Scope of Report 3 6-12

Application of Recommendations Australia Police 6 13-16

Other Federal Officers 7 17-18

State Police and Judicial Officers 8 19-20

Private Citizens 9 21

2. ARREST

Present Law and Practice 10 22-24

Arrests by Warrant 12 25-27

Arrests Without Warrant—Overview 13 28-29 Arrestable Offences 13 30-34

Interstate Offenders 16 35-37

Criteria of Arrest 17 38-44

Arrests Without Warrant by Persons other than Australia Police Other Federal Officers 19 45

State Police Officers 20 46

Private Citizens 20 47

Force in Arrest Present Law 20 48-50

Proposed Reforms 22 51-54

Firearms 23 55-57

Personal Search Incident to Arrest 25 58-59 Entry Pursuant to Arrest 26 60

Notification of Grounds of Arrest 26 61

3. PROCEDURES SHORT OF ARREST

Summons 27 62-6?

iv / Contents

Voluntary Co-operation

Page

28

Paragraphs

The Problem 28 64-65

Method of ensuring Voluntariness Minority Position Furnishing of Name and Address

28 66-71

72-78 79-81

4. CUSTODY AND CUSTODIAL INVESTIGATION

‘Restraint’ and ‘Lawful Custody’ 36 82-85 Rights of. Persons in Custody—Overview 37 86 Duration of Custody Present Law and Practice 38 87-88

The Four-Hour Limit 39 89-98

Notification of Rights 44 99-102

Access to Friends and Relatives 45 103

Notification of Whereabouts 46 104

Access to Counsel Fingerprints and Photographs 46 105-111 Taking Records 50 112-115

Destruction of Records Identification Parades

51 116

Present Practice 52 117

The Problems 52 118

Judicial Warning 53 119

General Fairness Clause 53 120

Photograph of Parade 53 121-122

Records and Prior Description 54 123

Presence of Lawyer 55 124

Compulsion 55 125

Identification by Photographs 55 126-128

Identity Kit Pictures 56 129

Medical Examinations 57 130-133

Forensic Analysis Treatment Generally of Persons in 58 134

Custody 59 135

5. QUESTIONING AND THE RIGHT TO SILENCE Present Law and Practice Law 60 136-139

Practice 62 140-141

Recommendations—Overview 63 142-145 The right to Silence 64 146-150

Voluntariness Rule 69 151-153

Procedures for Ensuring the Re­ liability of Confessional Evidence The Problem 70 154-155

Recording by Mechanical Means 71 156-159

Contents / v

Page Paragraphs

Corroboration by a Third Person 72 160

Reduction of Oral Confessions to Writing 73 161

Checking by a Third Person 73 162

Incentives to the Use of Safeguards 73 163-164

6 . RELEASE AND BAIL

Release—General 75 165

Police bail—Present Law and Practice Need for Review 75 166

Legislation 76 167-169

Police Instructions 77 170

Practice 78 171

Problems 78 172

Police Bail—Proposed Procedures 79 173-177 Criteria for Bail Present Position 82 178

Probability of Appearance 82 179-180

Interests of the Accused 84 181

Protection of Community 84 182

Conditions of Bail 85 183-187

7. SEARCH, SURVEILLANCE AND ENTRAPMENT

Introduction 88 188

Search and Seizure 88

Present Law and Practice—Search Warrants 88 189-192

Present Law and Practice—Searches Without Warrant 90 193-195

Recommendations—Overview 92 196-199 Warrant Procedure—General 94 200

Telephone Warrants 95 201-202

Emergency Searches Necessary to Prevent Loss of Evidence 96 203

Stop and Search 96 204

Searches by Consent 96 205

Searches Pursuant to Other Statu­ tory Authority 97 206-209

Remedies for Unlawful Search and Seizure 98 210

Electronic Surveillance The Devices 98 211

Present Law 99 212-215

Present Practice 102 216-218

Issues 103 219-222

Recommendation 106 223-225

Entrapment 107 226-229

vi j Contents

Page Paragraphs

8. USE OF CRIMINAL INTELLIGENCE DATA

Issues and Problems 110 230-234

Security of Crime Information 112 235-238 Recommendations 113 239-240

Individual Access and Error Correction 114 241-243

Next Steps 116 244-245

9. SPECIAL PROBLEMS OF MINORITY GROUPS

Introduction 117 246-247

Aboriginals 118

The class 118 248

Problems 118 249-252

Recommendations 120 253-258

Non English-speakers 123

The class 123 259

Problems 124 260-261

Recommendations 125 262-264

Children 126

Problems 126 265

Recommendations 127 266-267

10. SPECIAL PROBLEMS OF REMOTE AREAS

The General Problem 128 268-271

Oral Communications 129 272-275

Physical Communications 132 276-282

Availability of Magistrates 134 283-286

11. ENFORCING THE RULES

Introduction 136 287

Exclusionary Rule 136

Present Law 136 288-290

Law in Canada 138 291

Law in United States 138 292

Scottish and Irish Law 139 293

Principles and Policy 139 294-297

Recommendation 141 298

Criminal Offences 142 299

Civil Action 142 300

Police Discipline Code 143 301-302

Contents / vii

Page Paragraph

12. SUMMARY OF RECOMMENDATIONS

General 145 303-307

Arrest and Summons 145 308-321

Procedures Short of Arrest 147 322-324

Custodial Investigation 147 325-343

Questioning and the Right to Silence 149 344-348 Release and Bail 150 349-358

Search, Surveillance and Entrapment 150 359-366 Special Problems of Minority Groups 152 371-377 Use of Criminal Intelligence Data 152 367-370 Special Problems of Remote Areas 153 378-381 Enforcing the Rules 153 382-385

APPENDIXES

A. Organisations and Persons Making Submissions 155

B. Draft Criminal Investigation Bill 161 C. Other Proposed Legislation 210

Bibliography 214

Index 218

Terms of Reference

:LII, keppel earl enderby, Attorney-General, hereby refer the following matter to the Law | IReform Commission for inquiry and report as provided by the Law Reform Commission Act 1 :1973:

I JHAVING REGARD TO

Ή a) the decision of the Australian Government to integrate the former Commonwealth and Territorial Police Forces and certain sections of the former Department of Customs and Excise into a single law enforcement agency known as the Australia Police;

»(b) the commitment of the Australian Government to bring Australian law and practice into conformity with the standards laid down in the International Covenant on Civil and Political Rights;

■(c) the desire of the Australian Government to introduce legislation in the Budget sittings of the Australian Parliament in 1975 relating to the Australia Police and specifying appropriate safeguards for individual rights in relation to the law enforcement process under Australian and Territorial law; and

(d) the policy of the Australian Government to provide for human rights and civil liberties and the need to maintain a proper balance between protection for individual rights and liberties on the one hand and the community’s need for practical and effective law enforcement on the other;

to inquire into and report as to the appropriate legislative means of safeguarding individual rights and liberties in relation to the law enforcement process by the Australia Police under Australian and Territorial law, and in particular in relation to:

(a) the conduct o f investigations;

(b) powers o f arrest, search and seizure;

(c) the rights o f persons detained in custody to access to legal advice, protection against compulsory self-incrimination, speedy access to a justice or magistrate, and to humane and dignified treatment;

(d) rights with respect to bail and speedy trial;

(e) the right to representation and other means o f ensuring fair trial;

(f) the investigation of complaints against members of the Australia Police; and

(g) any other related matter;

and t o r e p o r t thereon not later than 15 August 1975.

16 May 1975

KEP ENDERBY Attorney-General

Participants

COMMISSIONERS OF LAW REFORM

The Hon. Mr Justice M. D. Kirby, B.A., LL.M., B.Ec. (Syd) Chairman of the Law Reform Commission Deputy President of the Australian Conciliation and Arbitration Commission Mr F. G. Brennan, Q.C., B.A., LL.B. (Qld) Member of the Law Reform Commission President of the Queensland Bar Association Executive Member of the Law Council of Australia

Mr J. Cain, LL.B. (Melb.) Member of the Law Reform Commission Executive Member of the Law Council of Australia Barrister and Solicitor of the Supreme Court of Victoria Professor A. C. Castles, LL.B (Melb.), J.D. (Chicago)

Member of the Law Reform Commission Professor of Law, The University of Adelaide Mr G. J. Evans, B.A., LL.B. (Melb.), B.A. (Oxon.) Member of the Law Reform Commission

Barrister and Solicitor of the Supreme Court of Victoria Senior Lecturer in Law, University of Melbourne

Associate Professor G. J. Hawkins, B.A. (Wales) Member of the Law Reform Commission Deputy Director of the Institute of Criminology Faculty of Law, University of Sydney

CONSULTANTS TO THE COMMISSION

The Hon. Mr Justice R. J. B. St John, LL.B. (Syd.), LL.M. (Lond.) Judge of the Australian Industrial Court Ms Susan Armstrong, B.A., LL.B. (Syd.)

Lecturer in Law, University of New South Wales Lately Research Director, Australian Commission of Inquiry into Law and Poverty Dr M. Aronson B. Juris, LL.B. (Monash), D. Phil. (Oxon.) Lecturer in Law, University of New South Wales

Barrister and Solicitor of the Supreme Court of Victoria

Participants / xi

and Barrister at Law of the Supreme Court of New South Wales Mr A. J. Cameron, B.A., LL.B. (Syd.) Solicitor of the Supreme Court of New South Wales

Lately Principal Solicitor, N.S.W. Aboriginal Legal Service M r T. R. Carney, LL.B., Dip. Crim. (Melb.) Lecturer in Law, Monash University

Mr R. C. Chisholm, B.A., LL.B. (Syd.), B.C.L. (Oxon.) Senior Lecturer in Law, University of New South Wales Mr J. A. Epstein, A.B. (Syracuse), LL.B. (Stanford) Lecturer in Law, Monash University Member of the State Bar of California Superintendent R. Farmer Officer-in-Charge, Australia Police—N.S.W. Region

Mr W. B. Fisse, LL.B. (Cantab.), LL.M. (Adel.) Senior Lecturer in Law, University of Adelaide Consultant to the Criminal Law and Penal Methods Reform Committee of South Australia

Chief Superintendent J. B. Giles, G.M., B.E.M., Q.P.M. Chief Superintendent of the South Australia Police Legal and Training Section Associate Professor R. W. Harding, LL.B. (Lend.),

LL.M. (Columbia) Associate Professor of Law. University of Western Australia Professor J. D. Heydon, B.A. (Syd.), M.A.. B.C.L.

(Oxon.) Professor of Law, Sydney University Professor Colin Howard LL.B , LL.M. (Lond.), Ph D. (Adel.), LL.D. (Melb.)

Hearn Professor of Law, University of Melbourne General Counsel to the Attorney-General of Australia Member, Criminal Law and Penal Methods Reform Committee of South Australia

Mr J. G. Starke, Q.C.. B.A . LL.B (W.A.). B.C.L. (Oxon.) Editor, Australian Law Journal

REPRESENTATIVES OF THE ATTORNEY-GENERAl'S DEPARTMENT

Mr L. J. Curtis. B.Sc., LL.B. (Melb.) First Assistant Secretary, Federal Courts, Intellectual Property, Territories and Law Reform Division. Attorney-General's Department

Dr D. de Stoop. B.A., LL.B. (Melb.); LL.M. (Lond.)

xii / Participants

Dr de L’Universite (Paris) Principal Legal Officer, Attorney-General’s Department

REPRESENTATIVES OF DEPARTMENT OF POLICE AND CUSTOMS AND OF THE AUSTRALIA POLICE

Mr J. P. Cosgrave, LL.B. Barrister and Solicitor of the Supreme Court of Victoria Assistant Secretary (Legislation) Mr H. Bates, M.B.E.

Assistant Secretary (Special Services)

Mr A. J. Watt, Q.P.M. Assistant Commissioner (Operations) Inspector W. L. Antill Officer-in-Charge, A.C.T. Police Legal Division

LEGAL ASSISTANTS

Mr W. J. Koeck, LL.B. (Syd.) Mr C. J. Lovell, B.A., LL.B. (Melb.) Mr D. H. Maguire, B.A., LL.B. (Syd.)

EXECUTIVE OFFICER

Mr K. A. Johnson, F.S.A.G.

Foreword

I This is the second report of this Commission. It accompanies the report Complaints Against Police (ALRC 1). Its presentation concludes for the time being the Commission’s work on its first reference. It would have been difficult to choose an area for our first operation pregnant with more contention and controversy. For the law of criminal investigation and police Ί procedure goes at once to the heart of the liberty of the Australian community.

| To complete the project in the time limited by the Attorney-General, as we did, it was necessary j to turn to a team of consultants: a judge, practising lawyers, academics and policemen. But we ] are not just a ‘brainstrust’ of specialists. We set out to secure, as well, public submissions so that, as far as possible, our proposals could reflect not only the view of the experts but also the values j now held by society.

i Contrary to the experience of other law reform bodies, this Commission found no difficulty ; whatsoever in procuring the opinions of a wide cross-section of Australians. A list of participants is attached to this report. Persons and organisations were seen in all parts of the | country. They included police, professional, civil liberties and like organisations. But they also | included ordinary citizens and special interest groups. Indeed, one submission was received I from Mr Darcy Dugan, writing to us from H.M. Gaol, East Maitland, New South Wales. He I proffered this advice to the Commission:

II I am of the opinion that my [suggestions] will be unwanted by ‘sensitive’ public servants, who | worship the status quo. But I tender this thought: liberty is a fragile flower; nothing that I guarantees its preservation is wasted.

I It is because liberty is undoubtedly a delicate plant that we all felt keenly our obligation to tread with care in this operation. The plant can be crushed just as readily by a rude suppression of police efficiency and self-confidence as by neglect of the rights and privileges enjoyed in our community under the protections inherited from the English criminal law. The Attorney- General called this tension to our specific notice in the terms of reference, referring to the

need to maintain a proper balance between protection for individual rights and liberties on the one hand and the community’s need for practical and effective law enforcement on the other.

It is of the nature of the exercise, then, that a balance must be struck. Wherever the line is drawn it will leave those who place a greater value on one element in the tension dissatisfied and even hostile. This Commission does not deceive itself that its proposals will recommend themselves in a flash to all sections of the community.

A great number of the proposals are probably beyond much debate, since they represent nothing more than an attempt, in statutory form, to express current standards and practice. Such proposals apart, however, a core remains in which, even within the Commission’s own ranks, it has not been found possible to reach absolute unanimity. This ‘core’ is not on the periphery of the essential questions of this reference. It is at the very heart. It affects the

respective powers and duties of police and rights and privileges of accused at the point of detention, in the course of police criminal investigation.

The common law at the moment requires, generally speaking, that once a person is detained by police, he shall be taken immediately before a justice, and handed over from the restraints of the

xiv j Foreword

executive arm of government into the impartial hands of the judicial arm. Of course, immediate transmission does not generally happen. The interval may be called ‘voluntary co-operation’ or ‘assisting police with their inquiries’. A central issue for this Commission was whether to face up to this apparent hypocrisy on the part of the law or whether simply to leave the present situation to ‘muddle along’, perhaps with procedural safeguards. In the event, the majority of the Commission preferred to recognise the reality of police practice and to seek to afford positive safeguards against its abuse. One Commissioner feels differently. Those who read this report superficially may say that a ‘time-honoured common law requirement’ has been overturned. However, in any review of criminal procedure the issue will be starkly posed: do we enshrine the common law’s principles in the knowledge that they will be ignored or do we seek to recognise

and regulate proper police investigative procedures? The approach favoured in this report is to recognise reality and bring the law in the books closer to the practice on the ground, as it should be.

The differences within the Commission concerning police restraint should not overshadow the accord reached in the great bulk of this report. The recommendations are summarised in Part 12 and the legislation proposed is attached. The reforms should be seen as part of a total scheme to modernise and rationalise this area of the law. The following are some of the matters on which complete accord has been reached:

• Strict criteria are proposed to govern arrests without warrant. • Limitations are suggested in respect of the use of force, including firearms, in the course of arrests, and force likely to cause death or grievous bodily harm is to be narrowly confined. • Persons under police restraint are to be afforded facilities to communicate with and arrange

for the attendance of a lawyer. • Such persons are to be allowed access to a friend or relative. • The notification of the whereabouts of persons under restraint is not to be unreasonably withheld.

• General warrants are to be abolished. • Special procedures for securing warrants, if necessary by telephone, are provided for the police. • Aboriginal Australians are not be questioned in serious cases except in the presence of a

‘prisoner’s friend’. • Persons not fluent in the English language are not to be questioned in custody except with the help of an interpreter. • Children are not be questioned except in the presence of a parent, guardian or other like

person. • Provision is made for tape recording or other verification to ensure reliability of confessions to police. e Modern procedures are suggested for identification parades, including a requirement that

they be photographed to ensure fairness. • Limitations are placed on the taking of fingerprints, otherwise than for purposes of identification. • Intrusive personal searches are to be conducted only by medical practitioners. • Police bail decisions are to be based on specific criteria relating to the likelihood of

appearance in court, the interest of the accused and the protection of the community. • Conditions of bail are to be flexible and lay emphasis on non-cash bail. • The practice of ‘entrapment’ by police is to be outlawed where a crime would not otherwise have occurred.

Foreword / xv

• Police are to have the right to require citizens to identify themselves and citizens a reciprocal right as against policemen. e Suggestions are made on access to police criminal data. • The rule of evidence for the exclusion of evidence illegally obtained by police is to be changed

to accord with the Scottish rule, by which the onus is upon the prosecution to justify the admission of such evidence. The thrust of the Commission’s proposals is towards recognising, controlling and using, in the interest of the accused as well as the authorities, modern technology: tape recorders, telephones, telex, computers and copiers. The Commission has also sought to take emphasis off arrest and to encourage proceedings by summons instead.

Why an interim report? There are three reasons. First, a difference of opinion has emerged in the Commission which arises, at least in part, from the time afforded us to reflect upon and consider our recommendations. Secondly, it is vital that law reform recommendations should involve the fullest participation of the community. So far as has been possible, we have enlisted

that participation in public sittings and otherwise. If it is believed that further discussion in the community is necessary, the Commission will seek to enliven that discussion. If the Parliament believes that the proposals now advanced are acceptable as a modern, realistic code of Australian criminal investigation, it will be necessary to take the matter.no further.

A third reason relates to the legislation appended to this report. Every word of an Act which affects the natureofafree society is critical. In Re Castioni[\%9\] 1Q.B. 149,atp. 167, Stephen J. gave good advice to those who. in reforming the law, would draft legislation for that purpose:

. . . Although [Acts of Parliament] may be easy to understand, people continually try to misunderstand, and . . . therefore it is not enough to attain to a degree of precision which a person reading in good faith can understand; but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand. It is all the

better if he cannot pretend to misunderstand it.

Time and further thought may require refinement of the legislation which is now tendered. If, however, an Australia Police is to be established by Act, the occasion is plainly at hand for the introduction of a modern, balanced code of criminal investigation procedure, relevant to the contemporary Australian community.

5 September 1975

M. D. KIRBY Chairman

Table of Cases

Paragraph

Adair v. McGarry [1933] S.L.T. 482 125

Alderman v. U.S. 394 U.S. 165 (1969) 292

Almeida-Sanchez v. U.S. 413 U.S. 266 (1973) 199 Amad; R v. [1962] V.R. 545 83

Ashburton v. Pape [1913] 2 Ch. 469 290

Attorney-General (The People) v. Martin [1956] I.R. 22 125

Bailey; R. v. [1958] S.A.S.R. 301 139

Banner; R. v. [1970] V.R. 240 83, 87, 140

Barnsley; R. v. [1972] 2 N.S.W.L.R. 220 288

Barron; R. v. [1975] V.R. 496 147

Basto v. R. (1954) 91 C.L.R. 628 151

Beamish v. R. [1962] W.A.R. 85 139

Beim v. Goyer [1965] S.C.R. 638 54, 70

Biswell; U.S. v. 406 U.S. 311 (1972) 199

Boardman; R. v. [1969] V.R. 151 119

Brislan; R. v., ex parte Williams (1935) 54 C.L.R. 262 223 Buller; R. v. (unrep.) Supreme Court of the Northern Territory, Alice Springs (No. 170 of 1975) 250, 251, 252, 253

Burdeau v. McDowell 256 U.S. 465 (1921) 292

Burdett v. Abbott (1811) 14 Eas. 1 60

Burnett; R. v. [1973] Crim. L.R. 748 288

Burns v. R., High Court of Australia (unrep.) 154

10 June 1975 154

Calandra; U.S. v. 414 U.S. 338 (1974) 292

Calcraft v. Guest [1898] 1 Q.B. 759 290

Camara v. Municipal Court 387 U.S. 523 (1967) 199 Chambers v. Maroney 399 U.S. 42 (1970) 199

Chapman; R. v. (1969) 91 W.N. (N.S.W.) 61 119 Chapman v. U.S. 610 (1961) 199

Chic Fasions Ltd v. Jones [1968] 2 Q.B. 299 189

Chimel v. California 395 U.S. 752 (1969) 193, 199 Christie v. Leachinsky [1947] A.C. 573 61, 101

Colonnade Catering Corp. v. U.S. 397 U.S. 72 (1970) 199 Commissioners of Customs and Excise v. Harz and Power [1967] 1 A.C. 760 151

Contenanza; R. v. [1958] Tas. S.R. 3 263

Coolidge v. New Hampshire 403 U.S. 443 (1971) 199 Court; R. v. [1962] Crim. L.R. 697 288

Craig v. R. (1933) 49 C.L.R. 429 119

Czerwynski; R. v. [1954] V.L.R. 483 263

Daliison v. Caffery [1965] 1 Q.B. 348 87, 125

Table o f Cases / xvii

Paragraph

Davis v. United States 328 U.S. 582 (1946) 199

Demicoli; R. v. [1971] Qd. R. 358 288

Dillon v. O’Brien (1887) 16 Cox C.C. 245, (Ir.) 58

Dugar; R. v. (1970) 92 W.N. (N.S.W.) 767 105

Drymalik v. Feldman [1966] S.A.S.R. 227 87

Elias v. Pasmore [1934] 2 K.B. 164 58, 193

Entick v. Carrington (1765) 19 State Tr. 1407 189

Escobedo v. Illinois 378 U.S. 478 (1964) 105, 149 Everett v. Ribands [1952] 2 Q.B. 198 48

Ex parte Hughes; Re Moulden & Anor (1946) 63 W.N. (N.S.W.) 293 166, 169

Ex parte Kearney; McAneny v. Kearney [ 1966] Qd. R. 306 130

Ex parte Newton; R. v. Tillett (1969) 14 F.L.R. 101 190, 200

Fannon and Walsh; R. v. (1922) 22 S.R. (N.S.W.) 427 128 Feldman v. Buck [1966] S.A.S.R. 236 38

Field v. Sullivan [1923] V.L.R. 70 58

Foulder R. v. [1973] Crim. L.R. 45 288

Frazier v. Cupp 394 U.S. 731 (1969) 199

Gallegos v. Colorada 370 U.S. 49 (1962) 265

Gault, Re 387 U.S. 1 (1967) 265

Ghani v. Jones [1970] 1 Q.B. 693 193

Gideon v. Wainwright 372 U.S. 335 (1963) 105

Goode; R. v. [1970] S.A.S.R. 69 126

Hallahan; R. v. (unrep.) Brisbane District Court, 14 August 1972 217

Handcock v. Baker (1800) 2 Bos. & P. 260 60

Harris v. N.Y. 401 U.S. 222 (1971) 292

Harrison; R. v. [1938] 3 All E.R. 134 38

Haslam; R. v. (1925) Cr. App. R. 59 127

Hass; R. v. [1972] 1 N.S.W.L.R. 589 112

Howe v. R. (1958) 100 C.L.R. 448 48

Ireland; R. v. (1970) 126 C.L.R. 321 112, 147, 288, 291

Jeffries; R. v. (1947) 47 S.R. (N.S.W.) 284 139

Johnston; R. v. [1964] Qd. R. 1 48

Jones v. Commonwealth (1965) 112 C.L.R. 206 223

Katz v. U.S. 389 U.S. 347 (1967) 213, 292

King v. R. [1969] 1 A.C. 304 288, 289, 293

Kuruma v. R. [1955] A.C. 197 210, 288, 289, 290, 291, 293

Lawrie v. Muir (1950) S.L.T. 37 293

Lee; R. v. (1950) 82 C.L.R. 133 139

Leigh v. Cole (1853) 6 Cox C. C. 329 58

oiodaiQdQdiadQdd οί οί οί αί οί

xviii j Table o f Cases

Paragraph

Li Wai-Leung; R. v. [1969] H.K.L.R. 642 291

Light; R. v. [1954] V.L.R. 152 182

McAney v. Kearney; ex parte Kearney [1966] Qd. R. 306 130

McDermott v. R. (1948) 76 C.L.R. 501 138

McDowall & Another; R. v. [1910] Q.W.N. 43 38

McEvilly; R. v. [1974] Grim. L.R. 239 288

McKay v. R. [1957] V.R. 560 48, 50

McLean v. Cahill [1932] S.A.S.R. 359 288

McNamara; R. v. [1963] V.R. 402 288

Mapp v. Ohio 367 U.S. 643 (1961) 290, 292

Maqsud Ali; R. v. [1969] 1 Q.B. 688 218

Marsden; R. v. (1868) L.R. 1 Cox C. C. 131 60

Masnec; R. v. [1962] Tas. S.R. 254 48

Mathews and Ford; R. v. [1972] V.R. 3 212, 293

Miranda v. Arizona 384 U.S. 436 (1966) 105, 149 Murphy v. A.G. for Northern Ireland [1965] N.I. 138 288

Nardone v. U.S. (No. 1) 302 U.S. 379 (1937) 290

Nilson; R. v. [1968] V.R. 238 218

Nisei v. Teese [1942] V.L.R. 69

Olmstead v. U.S. 277 U.S. 438 (1928) 38, 213, 290

Palmer v. R. [1971] 1 All E.R. 1077 48

Payne; R. v. [1963] 1 All E.R. 848 288

People v. McGrath (1960) 99 1 L.T.R. 59 291

People v. Martin (1955) 290 P.2d 855 125,292

People (Attorney-General) v. Martin [1956] I.R. 22 125 Pettipiece; R. v. (1962) 7 C.C.C.2d 133 288

Phillips; R. v. (1947) 32 Cr.App.R 47 182

Pitarresi; R. v. (unrep.) Supreme Court of Victoria, 23 June 1966 218

Police v. Mangulagula (unrep.) Darwin Court of Summary Jurisdiction, 21 May 1975 55

Preston; R. v. [1961] V.R. 761 119

v. Amad [1962] V.R. 545 83

v. Bailey [1968] S.A.S.R. 301 139

v. Banner [1970] V.R. 240 83. 87, 140

v. Barnsley [1972] 2 N.S.W.L.R. 220 288

v. Boardman [1969] V.R. 151 119

v. Boardman [ 1969] V.R. 151 119

v. Brislan; ex parte Williams (1935) 54 C.L.R. 262 223 v. Buller (unrep.) Supreme Court of the Northern Territory, Alice Springs (No. 170 of 1975) v. Burnett [1973] Crim. L. R. 748 288

v. Chapman (1969) 91 W.N. (N.S.W.) 61 119

v. Contenanza [1958] Tas.S.R. 3 263

v. Court [1962] Crim.L.R. 697 288

v. Czerwynski [1954] V.L.R. 483 263

Table o f Cases / xix

Paragraph

R. v. Demicoli [1971] Qd.R 358 288

R. v. Dugan (1970) 92 W.N. (N.S.W.) 767 105

R. v. Fannon and Walsh (1922) 22 S.R. (N.S.W.) 427 128 R. v. Ford & Mathews [1972] V.R. 3 212, 293

R. v. Foulder [1973] Crim.L.R. 45 288

R. v. Goode [1970] S.A.S.R. 69 126

R. v. Hallahan (unrep.) Brisbane District Court, 14 August 1972 217

R. v. Harrison [1938] 3 AU.E.R. 134 38

R. v. Haslam (1925) 19 Cr.App.R. 59 127

R. v. Hass [1972] 1 N.S.W.L.R. 589 112

R. v. Ireland (1970) 126 C.L.R. 321 112, 147, 288, 291 R. v. Jeffries (1947) 47 S.R. (N.S.W.) 284 139

R. v. Johnston [1964] Qd.R. 1 48

R. v. Lee (1950) 82 C.L.R. 133 138, 139

R. v. Li Wai-Leung [1969] H.K.L.R. 642 291

R. v. Light [1954] V.L.R. 152 178, 182

R. v. McDowall & Another [1910] Q.W.N. 43 38

R. v. McEvilly [1974] Crim.L.R. 239 288

R. v. McNamara [1963] V.R. 402 288

R. v. Maqsud Ali [1966] 1 Q.B. 688 218

R. v. Marsden (1868) L.R.l Cox C.C. 131 60

R. v. Masnec [1962] Tas.S.R. 254 48

R. v. Mathews & Ford [1972] V.R. 3 212, 293

R. v. Nilson [1968] V.R. 238 218

R. v. Payne [1963] 1 All.E.R. 848 288

R. v. Pettipiece (1972) 7 C.C.C.2d 133 288

R. v. Phillips (1947) 32 Cr.App.R. 47 182

R. v. Pitarresi (unrep.) Supreme Court of Victoria, 23 June 1966 218

R. v. Preston [1961] V.R. 761 119

R. v. Riley (No. 2) (1972) 66 Q.J.P.R. 24 129

R. v. Ryan (1966) 50 Cr.App.R. 144 137

R. v. Secretary of State for India [1941] 2 K.B. 169 108 R. v. Smith [1964] V.R. 95 136

R. v. Tillett; ex parte Newton (1969) 14 F.L.R. 101 190, 200 R. v. Turner [1962] V.R. 30 49

R. v. Wainwright (1925) 19 Cr.App.R. 52 128

R. v. Wray (1970) 11 D.L.R. (3d) 673 291

Re Gault 387 U.S. 1 (1967) 265

Rice v. Connolly [1966] 2 All.E.R. 649 137

Riley; R. v. (No. 2) (1972) 66 Q.J.P.R. 24 129

Rochin v. California 342 U.S. 165 (1952) 292

Rosey v. Reynolds [1929] S.A.S.R. 408 38

Ryan; R. v. (1966) 50 Cr.App.R. 144 137

Schneckloth v. Bustamonte 412 U.S. 218 (1973) 205 Scott v. Baker [1969] 1 Q.B. 659 288

Secretary of State for India; R. v. [1941] 2 K.B. 169 108 See v. Seattle 387 U.S. 541 (1967) 199

Semayne’s Case (1604) 5 Co.Rep. 91a 189

xx I Table o f Cases

Paragraph

Sernack v. McTavish (J970) 15 F.L.R. 381 112

Silverman v. U.S. 365 U.S. 505 (1961) 292

Silverthorne Lumber Co. v. U.S. 251 U.S. 385 (1920) 292 Smith v. R. (1957) 97 C.L.R. 100 83

Smith; R. v. [1964] V.R. 95 136

Smith v. Shirley (1846) 3 C.B. 142 60

Sorrells v. U.S. 287 U.S. 435 (1932) 226, 227

Symes v. Mahon [1922] S.A.S.R. 447 83

Terry v. Ohio 392 U.S. 1 (1968) 199

Thomas v. Sawkins [1935] 2 K.B. 249 60

Tillet; R. v., ex parte Newton (1969) 14 F.L.R. 101 190, 200 Turner; R. v. [1962] V.R.

U.S. v. Biswell 406 U.S. 311 (1972) 199

U.S. v. Calandra 414 U.S. 338 (1974) 292

U.S. v. White 401 U.S. 745 (1971) 292

Wade v. United States 388 U.S. 218 (1966) 124

Wainwright; R. v. (1925) 19 Cr.App.R. 52 128

Walder v. U.S. 347 U.S. 62 (1954) 292

Warden, Md. Penitentiary v. Hayden 387 U.S. 294 (1967) 199 Weeks v. U.S. 232 U.S. 383 (1914) 292

Wendo v. R. (1963) 109 C.L.R. 559 75, 288

White; U.S. v. 401 U.S. 745 (1971) 292

Wolf v. Colorado 338 U.S. 25 (1949) 290, 292

Wong Sun v. U.S. 371 U.S. 471 (1963) 292

Woon v. R. (1964) 109 C.L.R. 529 147

Wray; R. v. (1970) 11 D.L.R. (3d) 673 291

Table of Legislation

AUSTRALIA

Constitution s.51(i): 223 s.51(v): 223 s.51(xxxix): 16,19 s.52(i): 16, 223 s.80: 35 s. 109: 215, 223

s.120: 19 s. 122: 223

Acts Interpretation Act 1901-1973 s.42: 32 Australian Bureau of Statistics Act 1975: 238 Commonwealth Electoral Act 1918-1973: 16

Commonwealth Places (Application of Laws) Act 1970-1973: 16 Commonwealth Police Act 1957-1973: 14 Crimes Act 1914-1973:14,16, 31, 32

s.10: 190, 200 s.8a: 22, 39 S.30AB: 37 s.30D: 37 S.30E: 37 s.30F: 37 s.70: 238 s.89: 37 Crimes (Hijacking of Aircraft) Act 1972-1973

s.ll: 87

Crimes (Overseas) Act 1964-1973 s.6(3): 87 Customs Act 1901-1974: 37, 45 s.187: 194, 208

ss. 187-190: 207 s.196: 194, 207 s.197: 194, 207 S.197A: 207 s.198: 192 s. 198-201: 191 s.200: 192 s.210: 22 s.212: 87 s.233: 33 Excise Act 1901-1974: 45

s.87: 194, 208

s.88: 191,192, 208 s.89: 191, 208 s.90: 194 s.102: 87 s.104: 208 Health Insurance Act (No. 2) 1975

S.126B: 240 S.126K: 238 S.126M: 235 S.126T: 235 Judiciary Act 1903-1973: 14, 202

s.68(l): 25, 88,167 Law Reform Commission Act 1973: 135 s.6(l)(a): 174 s.7: 135

s. 10(a): 2

Migration Act 1958-1973: 14 s.38(2): 87 Passports Act 1938-1966: 16 Post and Telegraph Act 1901-1974: 212

Regulations: reg. 16A: 212 -

Public Order (Protection of Persons and Property) Act 1971: 37 Racial Discrimination Act 1975: 246 Service and Execution of Process Act 1901­

1968: 202 s.18: 35

Telecommunications Act 1975 s.86: 212 Regulations: reg. 37: 272 Telecommunications Commissions (Trans­

itional Provisions) Act 1975 s.4: 212 Telecommunications General By-Laws: By-Law 19: 212 Telephonic Communications (Interception)

Act 1960-1966: 215, 217 s.3: 213 s.4: 212 s.5: 212 s.6: 212 s.6(4): 216 s.7: 2/2

Italicised numbers refer to paragraphs in the text.

xxii / Table o f Legislation

NEW SOUTH WALES

Crimes Act 1900 ss. 56-61: 36 SS.79-81B: 32 ss. 126-9: 32 s.352: 27 s.352(2)(a): 49 s.353A(3): 112 ss.354-5: 302 S.556A: 260 Justices Act 1902: 25

s.63: 62 s.75B: 62 s.153: 167,169 Listening Devices Act 1969: 214 Privacy Committee Act 1975: 245

VICTORIA

Aboriginal Affairs Act 1967 s.37: 256 Aboriginal Affairs (Transfer of Functions) Act 1974: 256 Crimes Act 1958: 32

s.458: 32, 47, 167 s.458(l)(a): 39 s.458(1)(a)(i): 40 s.458(l)(a)(iii): 44 s.458(l)(a)(iv): 43 s.458(3): 44 s.459: 32 s.459(b): 35 ■ s.460: 167

s.460(1): 87,165 s.460(5): 87 s.460(7): 176 s.461(l): 165 Evidence Act 1958 s.149: 138, 153 Justices Act 1958: 25

s.222(4): 187 Listening Devices Act 1969 s.3: 214 s.4: 218

QUEENSLAND

Criminal Code Act 1899 s.254: 48 s.256: 50

Invasion of Privacy Act 1971: 214 Justices Act 1886-1968: 25 s.69A: 167,168 s.92(2)-(3): 167

Vagrants Gaming and Other Offences Act 1931-1971 s.44: 160

SOUTH AUSTRALIA

Justices Act 1921-1974: 25 s.62C: 62 Listening Devices Act 1972: 214 Police Offences Act 1953-1974

s.67: 191 s.78: 167 s.78(l): 87 s.80: 167

WESTERN AUSTRALIA

Criminal Code Act 1913 s.231: 48 s.233: 50 Justices Act 1902: 25

s.64: 167

Police Act 1892-1970 s.48: 167

TASMANIA

Criminal Code Act 1924 s.30: 48 s.30(3): 50 s.31:48 s.303: 87 Justices Act 1959-1974: 25

s.34: 167,168 s.34(l): 87 Police Offences Act 1935-1973 s.56: 87

s.60: 191

Traffic Act 1925 s.34: 167,168

Italicised numbers refer to paragraphs in the text.

Table o f Legislation / xxiii

AUSTRALIAN CAPITAL TERRITORY

Court of Petty Sessions Ordinance 1930-1974: 23 s. 1160:62 S.116E: 62 Evidence Ordinance 1971

s.68: 138,153 Police Offences Ordinance 1930-1970: 32 s.47: 36 s.48: 36 Police Ordinance 1927-1975

s.14:191 s.16:194 5.18:22 s. 19: 27 s.24:167 s.24(l): 87

Traffic Ordinance 1937-1974 s.27: 33

NORTHERN TERRITORY

Justices Ordinance 1928-1974: 25 Police and Police Offences Ordinance 1923­ 1974 s.21: 191

s.22: 190 s.23: 194 s.27(l)(a): 257 s.27(l)(e): 22 S.33A: 257 s.34: 167 s.34(l): 87

UNITED KINGDOM

Criminal Law Act 1967 s.2(l): 33 Magistrates’ Court Act 1952 s.40: 115 Metropolitan Police Act 1839

s.66: 204

Rehabilitation of Offenders Act 1974: 243 Summary Jurisdiction Act 1879 s.38: 169

CANADA

NEW ZEALAND

Crimes Act 1908-1961 ss.358-60: 33

UNITED STATES OF AMERICA

Constitution 4th Amendment: 199, 213, 290, 292 5th Amendment: 105, 292 6th Amendment: 105 14th Amendment: 292 Bail Reform Act 1966: 173,183 Federal Communications Act 1934

s.605:290 '

Omnibus Crime Control and Safe Streets Act 1968: 91, 222 Privacy Act 1974: 238

Bail Reform Act 1971: 173 Protection of Privacy Act 1974: 222 Italicised numbers rejer to paragraphs in the text.

1. Preliminaries

TERMS OF REFERENCE

1. Following the decision of the Australian Government to integrate the former Commonwealth and Territorial police forces and certain sections of the former Department of Customs and Excise into a single law enforcement agency to be known as the Australian Police, the Attorney-General, Mr K. E. Enderby, Q.C., on 16 May 1975,

requested this Commission to inquire into and report as to the appropriate legislative means of safeguarding individual rights and liberties in relation to the criminal investigation activities of the new force, in particular in relation to:

(a) the conduct of investigations; (b) powers of arrest, search and seizure; (c) the rights of persons detained in custody to access to legal advice, protection against compulsory self-incrimination, speedy access to a justice or a magistrate,

and to humane and dignified treatment; (d) rights with respect to bail and speedy trial; (e) the right to representation, and other means of ensuring fair trial; (1) the investigation of complaints against members of the Australia Police; and (g) any other matter. The present report deals with all aspects of the terms of reference except item (f). Proposals for the investigation of complaints against members of the Australia Police have been the subject of a separate report from the Commission, Complaints Against Police (ALR C /, 1975).

2. Given the controversial and delicate nature of any question concerning the relations between police and public, and the wide-ranging character of the present reference, which extends to every aspect of the exercise of police power in the pre-trial period, the Commission’s task was from the outset a difficult one. That task was made even more difficult than it might otherwise have been by a time limit of three months imposed on its

deliberations.1 The Commission, conscious of the importance of the issues referred to it, yet mindful of the desire of the Government to introduce legislation defining the powers, and limitations on power, of the Australia Police during the 1975 Budget sittings of the Parliament, sought to perform its task within this time limit. So far as is practicable, the

Commission is committed to a policy of promptly answering urgent tasks of law reform as they arise from time to time. As will appear from the short account of its manner of preparation in the next paragraph, the present report has been the subject of wide-ranging consultation. Thousands of hours have in fact gone into its production. In the result, however, following the procedure suggested by s. 10(a) of the Law Reform Commission Act

1973, we have determined to submit it as an interim report rather than a final one.

3. Two factors have contributed to the decision to submit this as an interim report. First, the solutions which the majority of the Commission is minded to recommend, derived

The terms of reference, set out in full in the preliminary pages, specify 15 August 1975 as the due date. Report No. 1, dealing with item (f), was submitted on 7 August. The Attorney-General agreed on 11 August to extend the time for report in respect of the remaining items by three weeks, until 5 September 1975.

2 / Criminal Investigation

from the many sources of advice to which we refer below, are not a mere restatement of existing and familiar concepts. They are in many respects quite innovative. Having regard to the importance of the issues, we should all prefer to withhold a final recommendation until critical comment has been invited upon, and hopefully given to, the Commission’s

preliminary recommendations. Secondly, although the Commission is unanimous on the great majority of the questions dealt with in the report, there is a key issue, relating to the power of the police to question suspects before or after arrest, upon which a divergence of

opinion has arisen. We should all prefer, therefore, to have the benefit of observations upon this question. We should add that if the recommendations contained in this interim report are immediately attractive to the Government and the Parliament, it will not be necessary to take this exercise further. But if it is desired that we should put these recommendations to the test of public scrutiny before making a final report we shall do so in further public sittings designed to elicit informed comment and criticism.

PREPARATION OF REPORT

4. Immediately upon receipt of the terms of reference, the Commission met to formulate research guidelines, appoint consultants and arrange for the invitation of submissions from the public. The Commission at this stage comprised only the Chairman, three part­ time members and limited staff. Numerous individual invitations for comment were issued to professional, police, civil liberties, government, academic and law reform bodies

in all parts of the country. In the event, written submissions were received from nearly 100 individuals, organisations and government agencies. A complete list of these submissions, which were taken into account in all the deliberations which followed, is contained in Appendix A. A team of fourteen consultants, whose names appear in the preliminary pages, produced by the first week in July 1975 substantial research papers on particular aspects of the reference. These papers formed the detailed basis for the Commission’s subsequent discussions and recommendations. Some tentative views were then for­ mulated at a three-day conference at the Australian National University in Canberra on 5-8 July 1975 attended by all members of the Commission and all consultants. The Commission then held a series of advertised public hearings in the capital cities of every State and in the Northern Territory and Australian Capital Territory from 9 to 23 July

1975. In the course of these hearings, oral submissions were received from a total of 115 persons. These included representatives of State, Territory and Commonwealth Police Forces, Police Associations, Councils for Civil Liberties, Law Societies, Bar Associations, Legal Aid Services, magistrates and a number of members of the community appearing in

their personal capacity. The Commission also held private conversations with a number of the judges of the Territory Supreme Courts. A complete list of persons making oral submissions is also contained in Appendix A. The Commission met again in Canberra on 25-27 July 1975 for a further intensive three-day session to establish its conclusions and recommendations in the light of all the comment received. A draft report was then written and the Office of Parliamentary Counsel instructed to prepare draft legislation in accordance with the report. Further meetings to refine conclusions and to settle the draft legislation were held in Sydney on 16-17 and 30-31 August 1975.

5. The Commission expresses its gratitude to the consultants, advisers, assistants and interested persons and bodies who have given it the benefit of their assistance during the course of the project. The time constraint pressed heavily upon all participants. The Commission would particularly like to record its thanks to those senior officers of the Department of Police and Customs and Australia Police who were present by invitation at all major stages of the Commission’s deliberations. While it has not been possible to

Preliminaries j 3

reach a unanimity of feeling and expression on every issue raised for determination, the closest possible consultative links have been maintained with the police and departmental officers. Police views as to the proper and necessary ambit of the powers required to fight crime on behalf of the community have been fully taken into account at all stages of the exercise.

GENERAL PRINCIPLES AND SCOPE OF REPORT

6. The Commission’s primary responsibility in formulating its recommendations was, in the words of the terms of reference, ‘to maintain a proper balance between protection for individual rights and liberties on the one hand and the community’s need for practical and effective law enforcement on the other’. This time-honoured nostrum is easier to state than to apply. It does not answer questions so much as raise them. As we both expected and found, striking the kind of balance which will satisfy everyone on any given issue is not an easy task. If attitudes to law and order questions can be caricatured as a continuum, with police spokesmen at one end and organised civil libertarians at the other, then a solution pitched nicely at the half-way mark is at least as likely to provoke criticism from both sides as praise. We do not delude ourselves with the expectation that the wisdom of these recommendations will appear instantly and universally self-apparent right across the political and social spectrum. Even within the Commission itself there has been a difference of opinion on some important matters. What we do hope, however, is that our recommendations will be looked at as a whole, and that the effect of any single change that we recommend will be measured against its effect in the total scheme. The following paragraphs sketch in outline the Commission majority’s2 basic assumptions,

and explain how, drawing together all the individual threads, it thinks the balance between individual rights and community interests should finally be struck.

7. We begin with the assumption, hardly startling in its novelty but still in reality more honoured in the breach than the observance, that there should be a close correspondence between what the police do in fact and what they are entitled to do in law. This may not be a sufficient condition for community respect for the legal process (since respect must also depend on the content of the law in question), but it is undoubtedly a necessary one. Hypocrisy does breed cynicism. The tension between law and reality in present police practice is nowhere more apparent than in the area of custodial investigation. Put shortly, the present law provides that there can be no detention for questioning or other forms of investigation short of arrest; and once an arrest has taken place, the obligation of the police officer is to take the arrested person more or less immediately before a court to be dealt with according to law. The legal mechanisms for the enforcement of these legal rights have never been particularly effective in run-of-the-mill cases. Nevertheless that is the law. But this body of law manifestly does not take into account the legitimate needs of the police in their investigations of crime, particularly of complex and serious crime. It is widely recognised, not least by the courts themselves (though this recognition tends to be covert), that there must be an opportunity at some stage of the process to question

suspects and tie up the loose ends that are necessary to bring criminal charges successfully to fruition. The result of all this has been that members of the various Australian police forces (and we do not in any way mean to single out the Northern Territory, A.C.T. or

Commonwealth Police in this regard) have tended to take a somewhat relaxed view as to the ambit of their powers. As a submission from a police source put it with commendable frankness:

2 For M r F. G. Brennan’s dissenting view, see para. 10.

4 / Criminal Investigation

The existing law . . . forces police officers to adopt methods which are of doubtful or obscure legality. Among these methods are: (i) stretching and bending the concept of ‘voluntary co-operation’; (ii) engaging in subterfuge or deceipt to ensure a person’s detention; and

(iii) using a ‘holding charge’ which in most cases is completely unrelated to the crime under investigation.

One might add to this list the apparent failure of many policeman to take very seriously their obligation to take an arrested person before a court without delay. That this overall state of affairs is unsatisfactory to police and suspect alike hardly needs asserting.

8. While the Commission has been impressed with the necessity to expand the former limits of police power in some respects, it is clear that bringing law and practice into closer alignment is not an end in itself. The point at which law and practice meet is at least as important as the fact that they meet, and clearly some changes will need to be made in police practice as well as in the law. The question of the precise extent to which the law should be changed in relation to the general issue of custodial investigation is perhaps the most difficult of all those with which the Commission has had to deal, and the one which

raises the most fundamental questions of principle. The view was urged upon us, following the conclusion of the South Australian Criminal Law and Penal Methods Reform Committee3, that the law should be rationalised by allowing a defined period during which persons believed capable of assisting the police with their inquiries could be compulsorily detained for questioning, even where police suspicions fell short of those necessary to found a valid arrest. This view has its attractions for those who feel that the law’s traditional insistence on formal arrest as the culmination, rather than the beginning, of the investigative process ought to be preserved at all costs. But the view which the majority of the Commission has finally adopted is that compulsive powers o f any kind ought only to be exercised against the citizen when the police officer can satisfy the criteria

which would justify an arrest o f that person. If the law is to be relaxed at all to enable various investigative procedures to take place, then the proper time for that relaxation is after arrest, or at least after all the criteria4 for a lawful arrest have been satisfied. If these recommendations are accepted the police will have greater formal investigative powers than hitherto in the post-arrest situation. But the corollary is that if compulsive powers

ought not to be exercised except under arrest, then pre-arrest ‘voluntary co-operation’ should be genuinely voluntary. We make recommendations to ensure that it is.5 The balance to be struck between the community and the individual demands a certain encroachment on the absolute freedom of the individual. However, the Commission was

not prepared to countenance any encroachment which was not based at least on an objectively testable reasonable belief that the person had committed a crime.

9. There are a mass of consequential and supporting recommendations which flow from the basic principles outlined above, and which are detailed in the course of this report. They relate, for a start, to the power of arrest. It is clearly necessary to define this power with some precision if arrests are not simply to replace ‘voluntary co-operation’ as the normal vehicle of police investigation, and if the policy of proceeding by way of summons rather

than arrest whenever possible is not to be undermined. They also relate to the permissible

3 Second Report: Criminal Investigation (1974), Ch. 6, subsequently referred to as the ‘South Australian Committee R eport’.

4 F or our detailed account of what these criteria should be, see paras 38-44. Briefly, the police officer must have reasonable grounds for believing the suspect to be guilty o f an offence, and be able to point to one of several specified factors as justifying proceeding by arrest rather than summons.

5 Paras 66-71.

Preliminaries j 5

duration of police custody and the circumstances in which police bail can be sought; the precise nature—and limits—of the various compulsive powers which can be exercised during custodial investigation; and the character of the powers—search and seizure, electronic surveillance and so on—which might still be exercised otherwise than in the context of a custodial investigation. If we have often appeared to come down on the side of the individual rather than the law enforcement authority—e.g. in generally endorsing the suspect’s right to silence, and right of access to counsel at all stages of the criminal process—then it must be said that in doing so we have done little more than seek formal legislative endorsement for values which have long been paid almost universal lip-service. On the other hand, the antiquity of a value is no automatic guarantee of its contemporary

relevance. The Commission has carefully considered whether the law enforcement process would be intolerably hindered before committing itself to any such endorsement.

10. One Commissioner6 dissents from the recommendations which flow from the conferring upon the police of greater investigative powers after arrest. If greater powers are to be conferred, he would prefer the police to have them when they are making inquiries rather than when the suspect has been arrested. He would deny to the police any significant power to interrogate after arrest and apprehends that the conferring of that power will

lead to more frequent arrests at an earlier stage in the investigation. He holds the view that, when a person is arrested, he is thereby affected by physical and psychological constraints. He is neither legally nor actually free and he is conscious of the power which authorities then have over him. In such a situation, he ought not to be subject involuntarily to the exercise of the interrogator’s powers. The protections proposed for persons undergoing custodial interrogation are not, or may not in practice be, sufficient.

11. Perhaps the major innovative thrust of the Commission’s recommendations has been to seek to give teeth to many of the rules governing police procedure by providing new mechanisms for their enforcement. Criminal sanctions will continue to play only a minor role in governing police behaviour, and we make no innovative recommendations so far

as the traditional, and for the most part ineffective, civil sanctions (e.g. actions for damages for assault or wrongful arrest) are concerned. Our positive recommendations, endorsed by the whole Commission, involve the exclusionary rule of evidence and the availability of actions under a police discipline code for breaches of the statutory rules of procedure. The exclusionary rule that we recommend, as will appear from the discussion

in Part 11, is of a discretionary rather than absolute kind. However the onus will be on the prosecution to justify, by reference to rather stringent criteria, the admission into evidence of confessions or other matter illegally obtained. If the recommendations contained in the Commission’s report on Complaints Against Police are accepted, charges under the police

discipline code will be capable of initiation by external complaint, investigation by a special branch of the Australia Police, oversight by the Ombudsman and determination by an independent Tribunal. They should accordingly operate as an additional effective deterrent to breach of the statutory rules.

12. There is one further matter to which we must advert. It is not immediately within our terms of reference and we do not further deal with it in the course of this report. This is police recruitment and training. The view has been strenuously put to us from a number of quarters, on a number of occasions, that police respect for individual rights, and the state of police relations with the community generally, depends on nothing so much as having the right men and women in the job, trained to the point where, even very early in their careers, they can react to stress situations calmly, sensibly and fairly. A number of recent reports, including that of the South Australian Committee, have made this point, and we

6 M r F. G. Brennan. F o r a more detailed statement of his views, see.paras 72-78.

6 / Criminal Investigation

do not need to elaborate upon it. We do not, however, go so far as to say—as some would have us do—that there is no point legislating in detail to govern the conduct of criminal investigations until all policemen personally measure up to the ideal standard. Pending the millennium, ground rules are necessary.

APPLICATION OF RECOMMENDATIONS

13. Australia Police. The terms of reference, and indeed the Australian Government’s basic constitutional powers, extend only so far as the Australia Police. The Commission’s recommendations are accordingly not intended to apply, except in the marginal situations noted below, to the various State police forces. The Australia Police has been formed by the integration of the former Commonwealth, A.C.T. and Northern Territory police forces, together with certain migration officers and certain sections of the former Department of Customs and Excise (in particular the Narcotics Bureau), into a single agency under the aegis of the new Department of Police and Customs. The Australia Police has a combined establishment of approximately 2750, intended to rise at the rate of

about 3% per annum to a total of not much more than 3000 by 1980. The present total for all the six State police forces is approximately 21 000.

14. At present the procedures of the two Territory forces are primarily governed by a jumble of local Ordinances. Those of the Commonwealth Police are governed partly by the over­ arching provisions of the Commonwealth Crimes Act 1914-1973 and partly by the laws of the particular States in which Commonwealth police officers happen to be. These State laws are applicable by virtue of provisions in the Commonwealth Police Act 1957-1973 and the Judiciary Act 1903-1973. The Commission found no support for the continuation of this confusing state of affairs. Clearly, with the integration of the forces into a single unit, and the integration of training facilities and the increased mobility of personnel which will naturally follow, it makes no rational sense to retain different rules for different components of the force. The recommendations in this report are intended to result in

legislation which will operate as a single code of procedure governing the conduct of all members of the Australia Police, whether they happen to be working in the Territories or the States, and whatever task they happen to be performing. The Commission considered whether this might not give rise to difficulties from the citizen’s point of view, in that the rights of a suspect in a State might be different depending on whether he is dealt with by a member of that State’s force or by the Australia Police. But such subtleties are unlikely to be the cause of much practical concern; and to the extent that the conduct of the Australia Police is likely to be more strictly controlled than that of the State forces, any such

distinction would, as likely as not, work to the suspect’s advantage. Over time, the federal rules may be seen as setting standards which the States could feel it to their advantage, and that of their citizens, to adopt.

15. A question arises as to whether Australia Police officers should be bound by the proposed new federal code when engaged in enforcing State law within the territorial jurisdiction of a State. For Territory members of the Australia Police the question will only arise as a practical matter in respect to border situations. It has been the practice in the past—and no doubt will continue to be in the future—to swear in the Territory officers as special constables of the neighbouring State. The A.C.T. police, for example, have thereby been able to act with full State powers when called in to assist in dealing with a disturbance in neighbouring Queanbeyan, New South Wales. The Commission’s view is that in this situation the proposed federal code can and should continue to apply to the Australia Police officers. Such procedural constraints on their behaviour as there are should remain

Preliminaries / 7

the same whether they cross the border or stay within it. This proposal has the incidental practical advantage of not requiring the officer to learn an additional set of rules.7

16. The other context in which the question of the enforcement of State law has arisen is in relation to the activities of the former Commonwealth Police. This force has had numbers of men in each of the States engaged in enforcing Commonwealth laws—especially the Crimes, Migration, Passport and Electoral Acts—and policing Commonwealth establish­ ments or ‘places’,8 especially airports. As a practical matter, the question of the enforcement of State law by Commonwealth officers only arises in relation to Commonwealth places, i.e. airports, post offices, defence establishments and the like. Outside this context Commonwealth officers have, when they are not explicitly enforcing Commonwealth laws, no greater powers than those of the ordinary citizen, and have certainly not been in the habit of exercising any. As to Commonwealth places, the

Commonwealth Places (Application o f Laws) Act 1970-1973 ensures that the law which applies in such places as to murder, breaches of the peace, thefts and the like is not technically State law, but rather State law which has been picked up and transmogrified into the character of ‘Commonwealth’ law by the Commonwealth Places (Application of

Laws) Act. Thus, in enforcing the law Commonwealth officers are really enforcing Commonwealth law, and the problem which is the subject of this paragraph does not really arise. There are, however, some complications which it is appropriate at least to mention here, if not to attempt to solve. It is not clear for example what is a

Commonwealth place. Does it include a car, a ship, a stratum title? What is the effect of the qualifying clause in s.52(i) of the Constitution that the place be one acquired "for public purposes’? Are Commonwealth Bank premises, arguably acquired for ‘com­ mercial’ purposes, included? Does the incidental power in s.Sl(xxxix) of the Constitution stretch to enable enforcement activity extending beyond the immediate boundaries of the place in particular situations as, for example, in pursuing thieves fleeing from a

Commonwealth place? Whatever problems these questions raise, the fact remains that for present purposes, in enforcing Commonwealth laws, whatever the limits of that description may prove to be, the Australia Police should be bound by the federal code, and to the extent that they have the power or the opportunity to enforce State laws, they should continue to be bound by that code.

17. Other Federal Officers. Subject to the exception discussed below, it is not intended that the Commission’s recommendations should bind any other classes of federal officers than those who are members of the Australia Police. Such officers have extensive powers of search, seizure, arrest and the like which might be thought to bring them within the scope

of the proposed legislation. The reason is in the first instance the limitations of our terms of reference. Beyond that the reason is not so much one of the principle as of time. The limitations on the time available for the preparation of this report have made it impossible to review fully, in consultation with all the relevant departments, the activities of tax investigators, postal investigators, trade practices officers and the like, not to mention Territory health inspectors, building inspectors, poultry and fisheries inspectors and the innumerable others who exercise similar powers under the authority of the Australian

7 M r Brennan does not concur in this recommendation. When a federal officer is clothed with powers under a State statute, his duties under that statute are ascertained by reference to its provisions. If the Commission's recommendation were accepted, M r Brennan foresees that the enacting legislation may either invite consitutional challenge or occasion a refusal to swear in Australia Police officers as special constables.

Neither result would in his view be desirable.

8 The description ‘Commonwealth places’ derives from s.52(i) o f the Constitution which provides that the Parliament shall have powers to make laws with respect to ‘the Seat o f Government of the Commonwealth, and all places acquired by the Commonwealth for public purposes’.

8 I Criminal Investigation

Government. The Commission recommends that as a matter of urgency a systematic review should be made of the officers and functions mentioned, to determine what powers are properly founded and controlled and which if any ought to be circumscribed.

18. The exception relates to those officers of the former Department of Customs and Excise who have not been absorbed into the Australia Police but who will work alongside them as part of the new Department of Police and Customs. The officers in question include a number with specific law enforcement functions. In particular, there are the Preventive Officers engaged in ‘behind the barrier’ searches of incoming and outgoing vessels, aircraft and passengers, and the Revenue Control Investigators and Excise Inspectors engaged in the revenue protection aspects of customs and excise work. They also include those members of the Joint Services Division who are engaged, inter alia, in the collection,

storage and use of criminal intelligence data. The overlap between ‘police’ and ‘customs’ functions in the work of the officers mentioned, and the fact that all the officers in question are now to work under the same departmental umbrella, makes it appropriate, and indeed necessary, in the Commission’s view, that their respective powers be brought

into line. The power exercised by customs officers, especially by the use of general warrants, has long been notoriously wide. It would be unfortunate to leave standing any suspicion that Australia Police officers might be tempted on occasion to negotiate the limitations on their own power by invoking the assistance of their better-armed brethren. A rationalisation of customs powers as against those of the police was also sought, for a variety of reasons, by the Police and Customs Department itself. The form that rationalisation takes will be further explained below. Generally speaking, the principle

adopted is to allow customs officers their traditional, relatively unfettered, powers in ‘behind the barrier’ situations, but to recommend (a) that no wider powers than those available to police officers be conferred in the context of customs activities in the community at large and (b) that the powers of customs officers be explicitly confined to the enforcement of customs laws.

19. Stale Police and Judicial Officers. The terms of reference do not enable the Commission m any way to deal with the enforcement of State criminal law by State police and judicial officers. However there are two questions as to the power of State officers which do arise as a necessary incident of considering the power of the Australia Police. The first concerns the treatment in police custody of a person who is arrested by a member of the Australia Police for a federal offence in a State and taken by that policeman to a State police station, and there lodged in the custody of State police officers. This situation quite commonly

arises because of the limited Australia Police facilities in the States. These consist usually • of no more than a single capital city headquarters, often without a lock-up. If the Commission’s proposed rules as to the maximum duration a person can be held in custody are to apply to such persons, and in particular the recommendations as to the procedure

to be followed in granting police bail, then it is clearly necessary that State police officers be bound by the federal code in this situation. Otherwise the whole pattern of the recommendations could be frustrated. Further it would appear to be necessary that State magistrates or justices be bound, at least in respect to the proposed obligation to hear and determine appeals from police bail decisions. There seems to be no particular constitutional difficulty in the way of achieving this. If the creation of certain obligations with respect to these federal offenders is not incidental to the execution of the federal criminal law within the meaning of s. 51 (xxxix), then it would at least appear to be covered

by the explicit language of s. 120, which provides that:

Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment

Preliminaries j 9

of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision.

Doubt was expressed in some States as to whether some State police sergeants and watch- house keepers would see their duty quite as clearly as the proposed legislation contemplates. But elsewhere the Commission was assured that relations between State and Australian police were generally good and co-operative, and there was no question but that State police would observe the law once its terms were made clear.

20. A further question which arises is a logical extension of the foregoing. Should not State officers be bound by the federal code whenever dealing with federal offenders, irrespective of whether there is a person in custody who has been brought to them by members of the Australia Police? In principle the Commission finds it difficult to answer this question

otherwise than in the affirmative; there is no obvious justification for having a criminal offender’s rights vary depending on who catches him. And there are obvious reasons for not exposing Australia Police to the temptation of having their State colleagues, armed with less carefully defined powers, perform some of their more borderline investigations

for them. Against this, even assuming that there are no constitutional difficulties involved in extending the incidental power to cover all the persons by whom federal offenders are apprehended, a number of practical difficulties were pressed upon the Commission. The most important of these is that State policemen in remote country areas are not infrequently involved in the investigation of federal crimes, e.g. in relation to thefts from post offices or social security frauds, in circumstances which make the calling in of Australia Police impracticable. It was suggested that it would be extremely difficult, and unlikely to be productive of much success, to require such policemen to learn and apply

two quite different sets of rules depending on the offence in question. There is the further problem, perhaps less pressing, of city policemen investigating bank robberies hypothetically being in the position of having to apply one set of rules to the National

Bank, say, and another to the Commonwealth Bank next door. Balancing these various factors, the Commission does not recommend as a general rule that State officers be bound by federal rules of procedure when enforcing federal laws; that should only be the case in the limited circumstances described in the preceding paragraph. The wider

question might be reconsidered at a future time.

21. Private Citizens. Although the powers and duties (as distinct from rights) of private citizens are not within the principal paragraphs (a) to (e) of the terms of reference, when engaged in defining the powers and duties of police officers it occasionally becomes necessary to pay consequential attention to the powers and duties of private citizens if incongruities are not to arise. The most obvious situation requiring this attention is in

relation to powers of arrest, where private citizens (a description which includes store detectives and security guards) have traditionally had, by the common law, quite wide- ranging powers. Clearly it is necessary that the citizen’s arrest power should be made compatible with that now to be exercised by the Australia Police. Recommendations of

the Commission seek to achieve this.9

9 See para. 47.

2. Arrest

PRESENT LAW AND PRACTICE

22. The existing powers of arrest of the component units of the Australia Police are very wide. Apart from the power to arrest pursuant to warrant for any offence, which exists in all jurisdictions, the power to arrest without warrant in respect of any offence is in effect unlimited. So far as the former Commonwealth Police is concerned, the primary arrest

power has been that conferred by s.8A of the Crimes Act 1914-1973. This section provides:

Any constable may, without warrant, arrest any person, if the constable has reasonable ground to believe— (a) that the person has committed an offence against a law of the Commonwealth or of a Territory; and

(b) that proceedings against the person by summons would not be effective.

In the A.C.T. the primary power to arrest is conferred by the Police Ordinance 1927-1975, which provides inter alia that:

18. Any member of the Police Force, without any warrant other than this Ordinance, at any hour of the day or night, may apprehend . . . (e) any person whom he has reasonable cause to suspeect of having committed, or being about to commit, any offence.

It is to be noted that there is not in this language any restriction equivalent to that contained in s.8A(b) of the Commonwealth Crimes Act, limiting arrest power where a summons would be effective. The primary arrest provisions in the Northern Territory are contained in the Police and Police Offences Ordinance 1923-1974, in terms similar to the A.C.T. Ordinance, but containing certain interesting variations in language. For example, s.27(l)(e) extends the power of arrest to any person whom the police officer:

has just cause to suspect of having committed, or being about to commit, any felony, misdemeanour or offence, or of any evil designs.10 The powers of customs officers, including members of the Narcotics Bureua, now incorporated in the Australia Police, are described in s.210 of the Customs Act 1901-1974. They extend to persons ‘committing, or attempting to commit, or of being concerned in the commission of ’ smuggling, importing or exporting prohibited goods, or assaulting an officer in the execution of his duties. Again there are no qualifying criteria of any kind in relation to these powers.

23. It is not, of course, police practice to proceed by way of arrest in every case. Police officers are instructed, in greater or lesser detail, by their several Commissioners not to arrest in circumstances where there is any reasonable alternative. The most comprehensive instructions issued in this respect are those issued to members of the Commonwealth Police. These officers are told to regard arrest as a ‘drastic course’ and are given, in

General Order 5, the following specific guidance:

19. Factors which might reasonably lead the arresting constable to believe that proceedings against the suspect by summons would not be effective would include such

Emphasis added.

Arrest j 11

considerations as the seriousness of the offence, whether the suspect has no known ties, thus rendering more probable his failure to answer the summons (for example, does he own his own home, is he in permanent and regular employment, is he married, has he absconded on bail on any previous charge, has he made any preparation for flight, has he stated an intention not to answer a summons, etc.). The refusal to desist from the commission of an offence would be a relevant factor to be taken into account in justifying an arrest.

20. Examples which do not justify arrest are: (a) the desire by the offender to ‘get it over quickly’; (b) the fact that the defendant has a criminal record; (c) the desirability of obtaining the defendant’s fingerprints, photograph etc. These reasons in themselves do not give cause for arrest, instead of proceeding by summons. Undue haste in making an arrest can result in inadequate investigation and inadequate reporting of the facts.

24. Figures made available to the Commission indicate that the ratio of arrests to proceedings byway of summons is approximately 1:2 for the Commonwealth Police, 1:4 in the A.C.T. and an extraordinary 5:1 for the Northern Territory. For purposes of comparison with a State force the ratio is 1:3 for South Australia.11 It should be noted that the relatively high

arrest rate for the Commonwealth Police is partly explained by a large proportion of proceedings against prohibited or illegal immigrants, who are always arrested, and the generally more serious nature of the offences enforced by the Commonwealth Police.12 The figures for the Northern Territory, indicating that five people are arrested for every

one proceeded against by way of summons, have been explained to us only on the basis that that Territory has a large itinerant population. So far as the number of arrests in proportion to population is concerned, the figures are not significantly different as between South Australia and the A.C.T., running at around 2% of the population per annum in each case. On the other hand in the Northern Territory the arrest rate is closer to fiteen arrests for every hundred persons per annum.13 While it is not possible to generalise plausibly without rather more detailed research than the Commission was able to undertake in the time available, it does not appear that the incidence of arrest by the component members of the new Australia Police, the Northern Territory Police excepted, has in the past been manifestly excessive. That is not to say, however, that it may not be

11 The detailed figures (supplied to the Commission by the respective Forces) are as follows:

Arrests Summons Total

Arrests as % of total

Cwlth Police (1974-75) 2 938 6 392 9 330 31.48

A.C.T. (1974-75) 3 520 15 984 19 504 18.05

N.T. (1973-74) 15 753 2 982 18 735 84.08

S.A. (1973-74) 26 148 75 495 101 643 25.72

A bout a quarter of Commonwealth Police arrests have been of illegal immigrants. If these are excluded, the arrest rate drops to 23.6%, or The figures are as follows:

approximately 1:3.

Arrests Population

Arrests as % o f population

A.C.T. (1974-75) 3 520 190 600 1.85

N.T. (1973-74) 15 753 101 200 15.57

S.A. (1973-74) 26 148 1 218 200 2.15

12 / Criminal Investigation

desirable to introduce some rather more substantial formal safeguards in relation to the power of arrest than has hitherto been the case.

ARRESTS BY WARRANT

25. Arrests by warrant are the exception rather than the rule.14 Warrants are primarily employed in the situations where there is a so-called ‘all points alert’ hunt proceeding for some identified major offender, in relation to an offence committed either locally or interstate. The other occasion arises where an officer, not under any great time pressure to make an arrest, swears out a warrant in what might be called a ‘marginal’ case as assurance that the arrest will not later be held to be unlawful. In the A.C.T. and Northern Territory, provisions relating to the issuing of arrest warrants are to be found in the Court o f Petty Sessions Ordinances 1930-1974 and Justices Ordinance 1928-1974 respectively.

For Commonwealth offences committed in the States, the Commonwealth Police and Customs officers have been obliged, by virtue of the operation of the Judiciary Act 1961 - 1973, s.68(l), to apply the law of the State in which the offence was committed. The Justices Acts of each State contain the appropriate provisions. Generally speaking, the

issuance of a warrant of apprehension depends on the issuing judicial officer’s being satisfied that the complaint or information made on oath ‘substantiates’ the demand for a warrant.

26. Two reforms are suggested in relation to arrests by warrant. First, it is appropriate that there be a single federal rule governing all arrests by warrant by members of the Australia Police to replace the present myriad of Territorial and State provisions. Secondly, in drafting such a provision, additional safeguards should be introduced to ensure that judicial officers genuinely turn their minds to the grounds advanced to support the

issuance of the warrant and do not merely become ‘rubber stamps’. These safeguards should take the following form. There should be, first, a requirement that the information on oath be supported by affidavit, stating in some detail the reasons upon which the officer believes both that the person in question is guilty of an offence and that he ought to be arrested instead of being proceeded against by summons. Secondly, the judicial officer should be obliged to satisfy himself, by questioning if necessary, that the

stated reasons amount to reasonable grounds for issuing the warrant. Further, the judicial officer should endorse the informant’s affidavit indicating his satisfaction with some or all of the reasons there set out and stating whether he relies on any other evidence than those written reasons. These recommendations conform with those made below, in Part 7, with respect to search warrants. The Commission has no wish to discourage the use of arrest warrants. But the extra protection afforded to an officer by the possession of such warrants requires that the process of issuing warrants should be subject to procedures, even ones a little more cumbrous than at present, which make it possible for that process to be effectively supervised by the courts.

27. There is one consequential matter which requires attention in this context. Situations not uncommonly arise in which a police officer, knowing that a warrant for the apprehension of a certain person exists, sees that person and arrests him without having the warrant in his possession. This common law power has been incorporated in statutes in New South Wales15 and the A.C.T.16 It is appropriate that it should be included in the proposed legislation to govern the powers of the Australia Police. There is a need to establish

14 111 the A.C.T. in 1974-75, for example, only 260 out of 3520 arrests made, or 7.4%, were by warrant.

15 Crimes Act, 1900 (N.S.W.). s.352.

16 Police Ordinance (A.C.T.) 1927-1975, s. 19.

Arrest j 13

safeguards on this power. The officer must know that the warrant is in existence, must reasonably believe that the person he is arresting is the person named in the warrant, and must produce the warrant to the person arrested as soon as possible after arrest. If these requirements are met an officer should not be liable for any civil action if he mistakenly

arrests the wrong person.

ARRESTS WITHOUT WARRANT— OVERVIEW

28. Although there are no grounds upon which to assert that in the past the use of the arrest power by most members of the Australia Police has been manifestly excessive, the Commission takes the view that alternatives to arrest without warrant should be given as much legislative encouragement as possible. Arrest has disadvantages for the state as well

as for the person arrested. These are obvious enough. Our society quite rightly puts a premium on freedom of movement. Arrest is the complete negation of freedom. As a result it casts a considerable onus on those who would justify it. Further, arrests cost the state a considerable amount of money, both in absolute terms and as compared to other ways of bringing people to court. Innumerable man-hours are spent in transporting, guarding and processing the arrestee. American experience suggests that an arrest costs the state on average five times the cost of a summons.17 As well, American, Canadian, English and Australian studies18 have all shown that the eventual outcome of a case is

markedly affected according to whether or not the accused is in custody before the trial or comes to court by way of release on bail or a summons proceeding. A partial causal connection at least has been claimed. One further disadvantage of arrest which it is appropriate to mention is the fact that there is strong disapproval, in many parts of

society, of anyone who has an arrest record. This may take the form of social ostracism, dismissal from employment or withdrawal of commercial credit. This consideration, amongst others, supports not only the recommendations with respect to arrest, but also recommendations in Part 8 concerning the non-disclosure of criminal history records.

29. The Commission seeks to encourage the Australia Police to proceed by summons and not by arrest wherever possible. To accomplish this, attention must be paid both to the procedures for arrest without warrant and also to summons procedures. The necessity to streamline summons procedures, and make them more attractive to police officers, is

treated later.19 There are two principal ways in which arrest powers may be limited. The first is by simply limiting the number of arrestable offences. The second is by setting criteria to govern the power of arrest for those offences which are arrestable.

ARRESTABLE OFFENCES

30. The Commission has carefully considered a number of alternative solutions to the definition of arrestable offences. However no substantial change in the present situation under Commonwealth and Territorial law is recommended. At present all offences are prima facie arrestable. Safeguard provisions are more appropriately directed at the

17 J. M. Allen, 'Pretrial Release under Californian Penal Code, s.853.6: An Examination of Citation Release (1972) 60 California L. R. 1339. 18 D. Freed and J. Wald, Bail in the United States (A Report to the National Conference on Bail and Criminal Justice, 1964) at pp. 45-48; M. L. Friedland, Detention before Trial: A Study of Criminal Cases tried in the

Toronto Magistrates Courts (1965); M. Zander. Ά Study of Bail. Custody Decisions in London Magistrates C ourts’ [1971] Crim. L R. 191; K. L. Milte, ‘Pre-Trial Detention' (1968) 1 A.S'.Z.J. Cnm. 225.

19 Paras 62-63. -

14 j Criminal Investigation

exercise of the policeman’s discretion to arrest in any given case and not by reference to the character of the particular offence; the Commission’s recommendations as to the considerations which should govern that discretion are dealt with below.20 This conclusion is reached not because of any belief that there are no offences which should not under any circumstances be arrestable. It would be difficult to accept, for example, that there ever could be justification for arresting someone for riding a bicycle without a light. The difficulty is to fix upon any system of classification that divides offences into ‘arrestable’ and ‘non-arrestable’ which does not create more problems than it solves. Some of these difficulties are mentioned below. A modification that we do propose to the substance of existing Commonwealth and Territorial arrest law is that there should be a provision enabling the subsequent proclamation of particular offences to be ‘non­ arrestable’. The nature of and reasons for this recommendation are further discussed below.21 31. The traditional basis for the power of arrest without warrant at common law was the

distinction between felonies and misdemeanours. Arrest lay for someone found committing, about to commit, or reasonably suspected of having committed a felony. Misdemeanours were arrestable only when they constituted a presently occurring breach of the peace. The primary difficulty in relying for this purpose on any such distinction between felonies and misdemeanours is that most Commonwealth and Territorial criminal law is not presently built on such a distinction. The Commonwealth Crimes Act

1914-1973, for example, does not contemplate the classification at all. Its introduction would necessitate major legislative amendment, to say nothing of the re-education of Commonwealth Police officers. Furthermore, it is becoming an increasingly widespread view that this old form of classification is now quite outmoded, and not only ought not to be given new applications, but ought to be abolished where it presently appears.22 The Commission is inclined to endorse that view. 32. Another commonly suggested ground for distinguishing arrestable from non-arrestable

offences is the distinction between indictable and summary offences. This distinction was, for example, partly employed by Victoria in recent innovative amendments to the Victorian Crimes Act 1958.23 The major difficulty of employing this comparatively well- known distinction in the present context is the erratic and complex way it is applied under Commonwealth and Territorial law. The Acts Interpretation Act 1901-1973, s.42, defines an indictable offence as any offence punishable by imprisonment for more than six months. However, this rule only applies where the statute creating an offence does not

show a contrary intention. In a number of places criminal legislation does show such a contrary intention. The Commonwealth Crimes Act 1914-1973, for example, provides that a number of offences punishable by up to twelve months’ imprisonment shall be

triable summarily. In the A.C.T. a number of provisions in the Crimes Act 1900 (adopted from New South Wales), are indictable, although for comparatively minor offences, for example petty larcenies24 and homosexual conduct.25 The Police Offences Ordinance

2,1 Paras 38-44.

21 Para. 34.

22 Compare the Victorian Chief Justice’s Law Reform Committee Report on "Abolition of the Distinction between Felonies and Misdemeanours' (1973), recommending adoption of the English Criminal Law Act 1967 in this respect.

22 As amended 1972. ss. 458-9. For commentary see G. Evans, "Arrests without W arrant in Victoria' (1972) Law Inst. J. (Vic.) 507. The legislation was based upon the report of the Statute Law Revision Committee upon "Arrest without W arrant and Related M atters’ (1968), subsequently referred to as the ‘Victorian Committee: Arrest R eport’.

24 Sections 126-9.

25 Sections 79-8IB.

Arrest j 15

1930-1970 of the A.C.T. contains several offences which are punishable summarily even though imprisonment may be ordered for longer than six months. In the Northern Territory the position appears to be much the same as in the A.C.T., although the correlation between indictable procedure and a penalty of more than six months appears to be more closely maintained. In all the jurisdictions mentioned there are further difficulties arising as to the proper classification of the hybrid class of ‘indictable offences triable summarily’. It is apparent, overall, that sweeping legislative changes would be necessary before the distinction could be systematic and simple enough to be employed in

operational situations, where police officers do not have the time to read textbook commentaries before making decisions as to the scope of their powers and duties.

33. A further difficulty (shared with the indictable-summary distinction) with any other classification based on a rule-of-thumb distinction between ‘serious’ and ‘less serious’ offences26 is that there are many ‘less serious’ offences which will justify arrest in certain circumstances. The best examples are public order offences such as offensive behaviour, abusive language, being drunk and disorderly and the like, which may justify arrest in particular situations for the reason that immediate object of arrest in such a case is as much to remove the nuisance as to arrange for the punishment of the offender. This consideration has made essentially unworkable the distinctions introduced in the United Kingdom (where arrestable offences were declared to be those punishable by more than five years’ imprisonment27) and New Zealand (where the relevant period used to be three

years or more.28) In both countries, it was found necessary to specify a list of exceptions to the basic rule so long that, in the result, a situation was produced in which the initial aim of simplicity was frustrated. Similar considerations also lead tire Commission to reject suggestions that the power of arrest without warrant should be confined to certain

designated groups of offences, for example those involving breaches of the peace, personal violence, serious property offences (as defined by reference, say, to a penalty of six months’ imprisonment or more), serious narcotic offences and the like. Although having rational appeal, it was thought that this kind of solution was still too complex for

the demands in practice of arrest law. Other suggestions were made to the Commission which were simple enough, but quite impractical for other reasons. One example is the distinction between offences punishable by fine and those punishable by imprisonment. The difficulty here is twofold: firstly, there are several non-trivial offences which are

punishable only by fine29; and secondly, there are a great many trivial offences which are punishable by imprisonment as well as fine.30 34. As has already been indicated, the Commission takes the view that the power to arrest should depend not primarily on the character of the offence at all, but on the necessity of

arrest as a means of enforcement in the particular situation. Arrest should normally be a last resort. The Commission was impressed by the argument that if the threshold power to arrest was taken for granted in respect to any kind of offence, the whole stress in a policeman’s training could be placed on the criteria which should govern his arrest decision in a particular situation. What those criteria should be is spelt out in the next

section of the report. To add additional threshold distinctions would make the policeman’s task unnecessarily complex. His task in applying the law is not that of "a legal adviser after lengthy research, or a judge after careful argument, but an individual acting

26 Including the definition of serious offences that we ourselves employ in various contexts: see paras 36-37.

21 Criminal Law Act 1967 (U.K.), s.2(l).

28 Crimes Act 1908-1961 (N.Z.), ss.358-360.

29 e.g. ‘smuggling’ under s.233 of the Customs Act 1901-1974.

30 e.g. many Territory traffic offences, such as failure to stop at a ‘Stop sign under s.27 of the Traffic Ordinance 1937-1974 (A.C.T.). .

16 / Criminal Investigation

without book and often in a situation of great stress’31. Accordingly, any code should be both short and simple. However, as foreshadowed above, one variation from the substance of the present Commonwealth and Territorial law is recommended, viz. that

powers of arrest without warrant not be available in respect of any offence proclaimed to be non-arrestable. There is an advantage in a facility to make minor changes as the occasion arises without having to run the gauntlet of Parliamentary priorities with full- dress legislation. There are perhaps a number of very trivial offences which ought not, on

any view, to be arrestable. It may be that in due course these can be extracted and so dealt with. Such an extraction was beyond bur resources in the time available. One category of offences suggested as being appropriate for classification as ‘non-arrestable’ is the so- called ‘victimless’ crimes category, including gambling, prostitution, homosexuality between consenting partners, and the like. The occasional piecemeal proclamation of particular offences to be non-arrestable should not unduly complicate the working policeman’s task. This suggestion is not so much a proposal for reform of the law as a proposal to create a vehicle for future reform. Normally speaking, it would be inappropriate to confer such a role on subordinate legislation. However we point out that the particular power of proclamation here envisaged has no destructive potential for civil liberties, but rather the contrary.

INTERSTATE OFFENDERS

35. One further matter with respect to arrestable offences should be mentioned. Territory police officers need to be able to apprehend quickly and efficiently interstate fugitives, i.e. those who are believed to have committed offences against the law of a State. The law at present allows officers to arrest interstate fugitives who are the subject of a warrant of

apprehension,32 and also to serve a summons in a part of Australia other than that in which the crime was committed. There should, additionally, be the pwer to arrest fugitive offenders without warrant in certain circumstances. The Victorian Crimes Act 1958, as amended, contains a useful provision that a police officer will have this power when ‘he believes on reasonable grounds (that the person) has committed an offence elsewhere which, if committed in Victoria, would be an indictable offence against the law of Victoria (including any indictable offence which may be heard or determined summarily)’.33 It is plain that such a power ought only be exercised in respect of the more serious crimes. The question again arises as to whether in the Commonwealth sphere a reference to ‘indictable’ offences is a satisfactory basis for distinguishing between serious and less serious offences. For reasons already advanced above, we think it is not.34 A better basis for making such a distinction is to be found by reference to penalty rather than mode of trial. An appropriate dividing line in this respect would be one which attached consequences to ‘serious’ offences, and described as ‘serious’ those offences punishable by a term of imprisonment of more than six months.

36. There are other contexts later in this report in which we consider it necessary to draw a distinction between serious and less serious offences.35 Although perhaps an excursus

31 Victorian Committee: Arrest Report, para. 26, quoting D. A. Thomas, ‘Police Powers II—Arrest: A General View’ (1966) Criminal L.R. 639.

32 Service and Execution o f Process Act 1901-68, s. 18.

33 Section 459(b).

34 Para. 32. We do take the point that there is an additional reason, lacking above, for seizing upon the ‘indictable’ criterion in the present context, viz. the requirement under s.80 of the Constitution that a person be tried for an indictable offence in the State where he committed the crime.

35 Viz. Entry pursuant to arrest, para. 60; voluntary co-operation, paras 67-68; stop and search, para. 204; special protection for Aboriginals, para. 255, and children, para. 266.

A irest j 17

from the present theme, it seems appropriate, to avoid later repetition, to deal briefly and in a general way at this stage with the foundations of a ‘six months’ criterion. What are the kinds of offences, under Commonwealth and Territorial law, that would be included and excluded by it? So far as Territory law is concerned, there are four distinct categories of offences that would be regarded as ‘less serious’ by a definition founded on imprisonment for six months or more. Firstly, there are the public order offences, including disorderly or

indecent behaviour, offensive behaviour and joining or continuing in an unlawful assembly. Associated with these are the mixed bag of offences concerning anti-social behaviour which is irritating but trivial, such as nuisances, the unwarranted ringing of doorbells and so on. Secondly, the traditional ‘holding’ offences, vagrancy, being an idle or disorderly person, loitering and the like, are all included. Thirdly, traffic offences are nearly all less serious, the exceptions being those concerned with drinking whilst driving.

Finally, there are the minor property offences, often associated with children: minor vandalism, and a large number and variety of petty larcenies. The only offence which could reasonably be regarded as serious, and yet which is excluded by the proposed

definition, is assault and aggravated assault (extending to wife and child beating) under the A.C.T. Police Offences Ordinance 1930-1979.36 It may be that consideration should be given to reclassifying this offence. There do not appear to be any Territory offences which raise the converse problem, viz. that of being ‘serious’ on the basis of our definition although manifestly trivial in fact.

37. So far as Commonwealth criminal legislation is concerned, the great majority of Crimes Act 1914-1973 offences come within the ‘serious’ category. The only exceptions are those which relate to furthering the existence of unlawful associations37 and trespassing on Commonwealth property.38 Although nearly all Customs Act 1901-74 offences come

within the ‘less serious’ category by virtue of their penalty provisions, narcotics offences are all in the serious bracket. The public order offences in the Public Order (Protection of Persons and Property) Act 1971 are for the most part punishable by less than six months’ imprisonment. Although some anomalies may exist in the penalty provisions of that legislation, it is believed that the Act is at the moment under review. Therefore, with a handful of minor exceptions, the distinction proposed is one which, if applied to present Commonwealth and Territory legislation, will produce a result that will generally be regarded as acceptable. For thq most part, the offences commonly accepted as ‘serious’ seem to be in the right category of punishment. In the context of interstate offenders, therefore, there would appear to be no anomaly involved in confining the power to arrest without warrant to such fugitive offenders as rank in the ‘serious’ offences list, i.e. those offences punishable by more than six months’ imprisonment.

CRITERIA OF ARREST

38. The threshold requirement for a lawful arrest is of course that the police officer has reasonable grounds for believing39 that the person is committing, or has committed, an

36 Sections 47 and 48. There are alternative and more serious indictable offences under the Crimes Act. 1900 (N.S.W.) ss. 56-61.

37 Sections 30AB, 30D, 30E, 30F.

38 Section 89. 39 There does not appear to be any significant legal distinction between believing and suspecting in this context: see Rosey v. Reynolds [1929] S.A.S.R. 408, at p.418. For analysis of the concepts in a variety of different contexts see R. v. Harrison [1938] 3 All E.R. 134: R. v. M cDouall [1901] Q. W.N. 43: Nisei v. Teese [1942]

V.L.R. 69: and Feldman v. Buck [1966] S.A.S.R. 236. The Territory arrest provisions refer to ‘cause to suspect’, but the Commonwealth Crimes Act bases the power on 'reasonable ground to believe': see para. 22.

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arrestable offence. But what additional factors should determine whether a police officer should take the drastic step of proceeding by way of arrest rather than summons?

39. The Commonwealth Police General Orders, quoted above40, collect most of the considerations which should govern the decision of a police officer to arrest in a given situation. The Commission’s recommendations have in mind these and similar police instructions in other jurisdictions. Reliance is also had on the model now incorporated in the Victorian Crimes Act, s.458(l)(a), following amendments to that Act in 1972 made on the recommendation of the Statute Law Revision Committee.41 An overriding consideration is already acknowledged in the terms of s.8A of the Commonwealth Crimes Act 1914-1973. It is that an arrest ought not to be made unless the police officer has a reasonable belief that proceedings against the person by way of summons would not be effective in the circumstances. The Commission believes that it is necessary to go further

than simply to state this general principle. Four basic reasons would justify such a reasonable belief as to the inefficacy or inappropriateness of a summons. These should be established as the statutory criteria for arrest, as a further guide to the legislative intent on this question.

40. The first criterion is the need to ensure the appearance of the offender before a court ot competent jurisdiction.42 There are obvious grounds for proceeding by way of arrest if the police officer is unable to establish the identity and address of the offender, or if he suspects, on reasonable grounds, that he has been given false information. Clearly, in such circumstances, proceeding by summons will be impossible or at least very difficult.43

Other considerations might, in certain circumstances, lead to the conclusion that the appearance of the offender could not be guaranteed otherwise than by arrest. They may include the seriousness of the offence, and the place of residence, employment and family ties of the offender.

41. The second reason that may justify proceeding by way of arrest and not summons is the prevention of a continuation or repetition of the offence for which the person is arrested. The reference to preventing a continuation or repetition of the offence is particularly relevant in public order situations. A reference in such terms would make unnecessary the Victorian recommendation of a criterion of arrest ‘to preserve public order’.44 The Victorian provision also refers to arrests ‘necessary for the safety or welfare of members of the public’: but the Commission regards this as unnecessarily wide. The Victorian provision refers, finally, not only to arrests necessary to prevent ‘a continuation or repetition of the offence’ but also to prevent ‘the commission of a further offence’. The Commission again regards this as unjustifiably wide. Preventive detention is not yet part of the rule of law. As Lord Denning has put it, ‘it would be contrary to all principle for a man to be punished, not for what he has already done but for what he may hereafter do’.45

It is not intended that the reference to arrest for the purpose of preventing the ‘repetition’ of an offence be given any but the narrowest application. This criterion should apply only where there is a likelihood of further offences being committed, in the immediate context of the particular arrest situation, unless the officer proceeds to arrest. There can be no justification for the arrest of, say, a shoplifter or housebreaker on the basis that he or she is

40 Para. 23.

41 Above note 23.

42 cf Crimes Act 1958, as amended. (Vic.) s.458(l)(a)(i).

43 I n paras 79-81 we make recommendations with respect to the furnishing o f names and addresses to police on reasonable request, partly in aid o f the policy of encouraging summons proceedings rather than arrests.

44 Crimes A ct 1958, as amended, (Vic.) s.458(l)(a)(iii).

45 Everett v. Ribands [1952] 2 Q.B. 198 at p.206.

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the ‘kind of person’ who, allowed to go free, might proceed to commit other such thefts elsewhere.46

42. The third of the criteria suggested to justify arrest arises where the arrest is believed on reasonable ground to be necessary to preserve evidence of, or relating to, the offence for which the person is arrested. Under present Australia Police practice arrests are made under Commonwealth or Territorial law where necessary to prevent the loss or destruction of evidence, and we do not seek to alter that position. Clearly an arrest could not be made on a purely exploratory basis in order to secure primary evidence. There must

always be, independently, reasonable grounds for believing that the person has committed an offence. The Commission makes it clear that it does not in any way countenance, nor does it see that its proposals countenance, the arrest of persons on trivial ‘holding’ charges in order to pursue investigations in respect of more serious

offences in respect of which there is no evidence such as would justify arrest.

43. The last of the four suggested reasons to justify arrest relates to ‘protective custody’ provisions under mental health, child welfare and similar legislation. Arrest provisions of this kind were left standing by the Victorian legislation, which otherwise completely codified Victorian arrest law. The notion of ‘protective custody’ raises difficult issues of substantive policy. It is inappropriate to enter into these in this reference. The view is taken, for present purposes, that the arrest power in the proposed legislation ought not to

be drawn in such a way as to remove entirely such existing powers of arrest as there are on this ground. However, if such provisions are to be retained, it appears unnecessary to go the further distance of the Victorian legislation and to justify arrest on the ground that it is necessary for ‘the safety or welfare of . . . the offender’.47

44. The above four reasons, to the extent that they give rise to a reasonable belief that proceedings against a person by summons would be ineffective or inappropriate, should be the only reasons justifying an arrest. It follows as a corollary that if the reason for the person’s arrest ceases to exist or apply then the custody, if continued, will be unlawful. Such a person should be released forthwith. Examples of such a situation are where positive proof of identity is produced, or where the demonstration which gave rise to a reasonable expectation of continuing offences being committed has dispersed and no difficulty stands in the way of proceeding by summons. Where a person has not yet been charged, and it appears to his arrestor that the reason for his arrest no longer continues, then he should be released from custody, whether or not a summons issues against him. A provision to this effect is to be found in the Victorian Crimes Act.48 Fears that this provision might be misused, as a basis for making ‘temporary’ arrests in circumstances

which would not otherwise justify them, do not appear to have been borne out in practice.

ARRESTS WITHOUT WARRANT BY PERSONS OTHER THAN THE AUSTRALIA POLICE

45. Other Federal Officers. As has earlier been stated, it is not within the scope of this report to make recommendations with respect to the law enforcement powers of officers other than those in the Department of Police and Customs. Certain customs officers arc not incorporated within the Australia Police. In respect of these officers it seems plain that the powers of arrest conferred by the Customs Act 1901-1974, Excise Act 1901-1974 and the

46 On the subject of preventive detention, see generally A. R. Angel et at. 'Preventive Detention: An Empirical Analysis’ (1971) 6 Harvard Civ. R ights--Civ Libs. L. R. 289. and A. M. Dershowitz. 'Preventive Confinement: A Suggested Framework for Constitutional Analysis' (1973) 51 Texas L. R. 1277.

47 Crimes Act 1958, as amended, (Vic.) s.458(l)(a)(iv).

48 Section 458(3).

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like should be amended so as to bring them into line with the arrest powers of the Australia Police. This will involve amendment to these Acts providing that the power to arrest for customs and excise offences should only be exercised when the officer is satisfied

that proceedings by way of summons would be ineffective or inapporpriate in the circumstances.49 .

46. State Police Officers. For reasons already stated 50 State police officers should not be subject to the proposed federal laws when arresting persons for breach of Commonwealth law. There are a number of considerations which make it, at least for the present, difficult to implement such a rule. Hopefully if the federal procedures are seen to be just and effective they will be accepted in due course in the State police context.

47. Private Citizens. As foreshadowed above51 specific provision should be made with respect to the powers of arrest enjoyed by private citizens under Federal and Territorial law. In the absence of explicit statutory provision, private persons may, at common law, arrest without warrant in the following circumstances: (a) when they find a person committing, or having just committed, a felony; (b) when the arrest would prevent a person committing a felony; (c) when they reasonably suspect a person of having committed a felony (provided there has in fact been a felony committed); and (d) when they find a person committing a ‘breach of the peace’, even if that breach amounts to no more than a misdemeanour. One obvious difficulty with these rules is the archaic and often irrelevant distinction between felonies and misdemeanours.52 The major difficulty, however, is the incongruity that would result if private citizens were to enjoy powers of arrest more substantial in some respects than those of police officers. Accordingly citizens’ arrest should, in the first place, be confined to situations where it is strictly necessary. Secondly, when it is exercisable, citizens’ arrest should be subject to exactly the same criteria as are to apply to members of the Australia Police. Only the first recommendation requires explanation. The Commission has thought it appropriate here to follow the lead of the Victorian Crimes Act amendments,53 and to confine the power of citizens’ arrest to

situations where the person arrested is believed to be committing, or to have just committed, an offence. This excludes the case of a person having committed an offence at some prior time. Speaking generally, we believe that the only justification for citizens, as distinct from police, ever making an arrest is where a situation happens virtually before

the citizens’ very eyes, and requires immediate action by him. It should be the duty of a private citizen, having made an arrest, forthwith to take the person arrested before either a justice or magistrate or (as would more commonly happen) a police officer. It is entirely inappropriate that private citizens should have any powers of custodial investigation.

FORCE IN ARREST

48. Present Law. The law applicable to the use of force in arrest depends at present on where in Australia the arrest is made. Substantial disparities as between the various States and Territories are best understood by considering in turn so-called ‘confrontation’ arrests on the one hand and ‘fugitive’ arrests on the other. The former involve direct physical resistance, and the latter, flight. In a ‘confrontation’ arrest, the amount o f force which could lawfully be used to make an arrest at common law was such as was reasonably

49 See further paras 17-18 and 22 above.

50 Para. 20.

51 Para. 21.

52 Para. 31. ·

53 Crimes Act \95&, as amended, (Vic.) s.458. ·

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necessary to effect the arrest. Thus if the arrestee offered resistance, the arrestor could lawfully increase his force in proportion to the force of that resistance. The ultimate logic of this principle was accepted by the common law: if the arrestee was unavoidably killed in the ensuing confrontation as a result of the arrestor’s use of reasonable force, the killing

was justified.54 This common law position remains the law in all Australian States and Territories.55 The use of greater force than reasonably necessary is unlawful. Although the matter is not entirely free from doubt, it does appear that the arrestor has to accept the full criminal consequences of the use of unreasonable or disproportionate force, even to the point of being criminally responsible for murder.56 In the Australian common law

States (New South Wales, Victoria and South Australia) and in the Territories, the full rigour of such a view has been modified by the doctrine of ‘excessive defence’. This doctrine has been judicially defined thus:

If the occasion warrants action in self-defence, or for the prevention of felony or the apprehension of a felon, but the person taking action acts beyond the necessity of the occasion and kills the offender, the crime is manslaughter not murder.57 Excessive defence is not available as a partial defence in the Code States, however.58

49. So far as fugitive arrests are concerned, the common law provides that if an arrestee seeks to avoid arrest by flight he may justifiably be killed if it is sought to arrest him for felony or treason and if he cannot be arrested within the immediate situation in any other way.59 The justification for this apparently harsh rule derives from the historical fact that all

felonies and treason were capital offences and that the means of subsequent apprehension of offenders were manifestly crude and inefficient. Such extreme measures were not justifiable for misdemeanours, which were not of course capital.60 In the common law States and the Territories the principal rule regarding fleeing felons is still the law. Thus

even if a man’s identity is known and although there is every reason to suppose he is not dangerous, if he seeks to escape arrest and cannot be arrested within the immediate situation in any other way he may lawfully be shot (and killed) as a means of effecting arrest. This is not a mere textbook law. Several such killings have in fact occurred in Australia under the warrant of this rule in recent years.61 Moreover, the legal scope of justifiability has even been expanded, at least in Victoria. In R. v. Turner62 it was held that

54 See J. W. Turner (ed.) Russell on Crime (11th ed., 1958) p.485 el seq. and references cited in ri.48 at p.486 (subseqently referred to as Russell).

55 In the common law States (N.S.W., Victoria & South Australia) by the common law. For the Code States (i.e. those where the substantive criminal law is contained almost entirely in a single enactment to the exclusion of the common law rules) see the Criminal Code Act of 1899 (Qld), s.254; Criminal Code Act. 1913 (W.A.), s.231; Criminal Code Act 1924(Tas.),s.30. As regard Tasmania, however, it seems that the common law position has only been fully m aintained with regard to Appendix A crimes; see s.3 1.

56 See generally L. H. Leigh, Police Powers in England and Wales (1975), pp. 43-47, for a full discussion of the applicable law.

57 McKay v. R. [1957] V.R. 560 at p. 563 (Full Court). The doctrine has been accepted by the High Court in Howe v. R. (1958) 100 C.L.R. 448 (on appeal from South Australia). Although it has recently been rejected by the Privy Council, on appeal from the C ourt o f Appeal of Jamaica in Palmer v. R. [1971] 1 All E.R. 1077. it is probably preferable to regard it as being still good law in the common law States of Austrialia. unless and until the High Court overrules its own earlier decision.

58 R. v. Masnec [1962] Tas. S.R. 254; R. v. Johnston [1964] Qd.R. 1.

Russell, p. 501. 011 Russell, p. 501, citing Foster 271, 1 Hale 481, and 1 East P.C. 302.

61 R. W. Harding, Police Killings in Australia, pp. 154-63; also R W Warding "Changing Patterns of the Use of Lethal Force by Police in Australia’, pp. 3-6 (paper delivered to ANZAAS Congress in 1975, forthcoming in the A .N .Z. Journal o f Criminology.).

62 [1962] V.R. 30. .

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the right to kill a fugitive in the course of effecting arrest, if there is no other available means, extends to situations where it is sought to arrest for a misdemeanour of the kind for which arrest could be made without warrant. The permissible mode of arrest has been kept in kilter with the formal prerequisites of arrest. In New South Wales it is the case that a policeman can lawfully arrest without warrant a person whom he reasonably suspects of having committed a summary offence.63 Does this mean that the law will countenance the use of lethal force in doing so if there is no other means of making that

arrest within the immediate situation?64

50. In the Code States, neither the principal rule, nor its development, is the law. Where a police officer seeks to arrest someone and that person takes to flight, the police officer may only use force likely to cause death or grievous bodily harm where the arrest is for a crime punishable by death or by life imprisonment.65 This is of course a relatively restricted category of offences. Moreover, the common law requirement that there be no other way within the immediate situation of making the arrest is given specific point by the Code requirement that such force may not lawfully be used ‘until the person sought to be arrested has been called upon to surrender’.66 With fugitive, as with confrontation, situations the doctrine of excessive defence is available in the common law States67 but not in the Code States.

51. Proposed Reforms. There should be a single Australia-wide law relating to the mode of arrest for all members of the Australia Police. A police officer of the national force seeking to arrest a fugitive in Melbourne should not be entitled to proceed with less circumspection than his colleague in Perth seeking to make a comparable arrest. Arrest is "an absolutely essential feature of the police function. It can hardly be appropriate today

that as a man is transferred between different State jurisdictions in Australia his legal rights and obligations in relation to this function should change.

52. So far as confrontation arrests are concerned, the Commission’s recommendation is simply that the basic rule now in force in all States and Territories should be confirmed, viz. that force reasonably necessary to effect the arrest may be used. The only difficult question here is the proper course of action in respect to the doctrine of excessive defence. On the other hand, it could be argued that the doctrine is of questionable continuing validity. It has never had any validity in the Code States, and the use of excessive force should be even more firmly discouraged in a disciplined force within the community than amongst individual citizens. On the other hand, in those jurisdictions where the doctrine continues to exist as part of the general law, to withdraw its availability from a member of

the Australia Police who is making an arrest would be to put him in a position more vulnerable than a civilian member of the community in such situations. Whilst appreciating the force of the counter-arguments, we recommend that no legislative steps be taken at this stage to abolish in respect of the Australia Police the excessive defence doctrine in those States and Territories where it presently applies.

53. Not only should the minimum amount of force be used in effecting an arrest but also the person arrested should not be exposed to more indignity than is reasonably necessary in

« Crimes Act 1900, (N.S.W.) s. 352(2)(a).

64 There may however be a let-out in that what the court said in the Turner Case was that reasonable force could be used; and presumably in the context of a misdemeanour being committed at night force likely to cause death or grievous bodily harm was capable o f being reasonable. Such force would, perhaps, be held not to be capable of being reasonable in making an arrest for a summary offence.

05 Queensland Code, s.256; Western Australia Code, s.233: and Tasmania Code, s.30(3).

60 Queensland Code, s.256; Western Australia Code, s.233: Tasmania Code. s.30(3).

67 See e.g. the facts of McKay v. R. itself [1957] V.R. 560.

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the particular circumstances. If it is not strictly necessary to handcuff the accused person or to hold his arm or any other portion of his anatomy while conducting him through a public place, then such measures should not be employed. We have no particular evidence of any police behaving maliciously in this respect. But some undoubtedly do behave unthinkingly, and there is an advantage whilst drawing up a legislative code of police conduct in giving the rule a formal statutory backing.

54. So far as fugitive arrests are concerned, it appears to the Commission that the common law fleeing felon rule is too draconian for modern conditions. It is most clearly inappropriate where the identity of the offender is known and where there is every reason to suppose that he is not dangerous.68 The use of force likely to result in death or grievous

bodily harm should not be a power available at large, but only one which is exercisable when reasonably necessary in all the circumstances. We agree with the South Australian Committee Report69 that the predominant criterion of whether the use of lethal or

dangerous force is justified should be the dangerousness of the fleeing offender. That Committee’s recommendation was that ‘the use of firearms be permitted only where it is reasonably necessary to protect life, or there is a reasonable apprehension of serious injury to a person’. This recommendation is also in line with a Canadian interpretation of the common law70 and with earlier criticisms made with regard to Australia.71 This

Commission agrees. The Commission considered, but rejected, the present formulation the Code States, viz. that the right to use lethal or dangerous force in effecting arrest should be restricted to the arrest of fleeing offenders sought to be arrested for crimes punishable by death or by life imprisonment. The presumption that, such persons are the most dangerous is unreliable in practice. We do not take the view that the social harm they

may have perpetrated, alone and as such, is so great as to justify their apprehension at all cost. Although it is implicit in the recommendation that lethal force not be used except where the officer believes on reasonable grounds that that force is necessary to protect the life or prevent serious injury to some person, there is one further point which needs to be spelt out. Such force should not be exercised unless the police officer is satified that no other means is available to effect the arrest. At the very least this would mean that, except in the most extreme circumstances imaginable, the police officer should call upon the person to surrender before shooting him.

55. Firearms. Australia is not yet in any sense an armed society. The use of firearms by both criminals and police is still relatively uncommon. This state of affairs cannot be expected to continue unless the most stringent legislative and administrative controls with respect to the licensing and use of firearms are maintained. The Commission was particularly

concerned by the submissions received in public sittings in the Northern Territory concerning the somewhat casual way in which firearms control is maintained in the Northern Territory police. The possession of private firearms, including hand guns, is apparently almost universal in that force. Such weapons are used in lieu of the official

issue. They are not subject to such controls as exist in relation to the official issue. It must be said that there does not appear to have been a higher incidence of the use of firearms in arrests, or of police shooting incidents generally, in the Northern Territory. Nevertheless the present practice was the subject of a number of complaints to the Commission. We

were told of unhappy incidents in and around Aboriginal settlements, involving the firing of weapons in order to announce the arrival of a police officer, or to prematurely ‘cool

68 See, e.g. the Lacco Case, described by R. W. Harding. ANZAAS 1975 paper, pp. 4-6.

69 Recommendation 4(4)(b), p. 126.

10 Beirn v. Coyer [1965] S.C.R. 638.

11 R. W. Harding, Police Killings in Australia, particularly chapter 5.

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down’ a situation.72 We were told that the panic and alarm which such behaviour engendered might at any time be expected to touch off a serious incident.73 We were told of a resentful reaction to the conduct of policemen walking around with guns on their hips like ‘cowboys’.74 The Chief Magistrate for the Northern Territory, Mr D. A. McCann, expressed his own concern on this subject in the case of Police v. Mangulagula, decided in the Darwin Court of Summary Jurisdiction on 21 May 1975:

I find it inconceivable that police officers should carry their private pistols when on official duty, and surely if it is deemed necessary that police be armed, the Commis­ sioner of Police should ensure that there are regulations controlling when police officers are armed, provide arms and ensure that the use of those arms is controlled. The use of private arms by police officers seems to cut directly across the proper

control of firearms and their lawful use by police officers.

56. Time has not permitted an exhaustive or even detailed study of the problem. Nevertheless the Commission is satisfied that a problem exists. Urgent consideration needs to be given to means of re-establishing on a proper basis the control of police use of firearms in the Northern Territory. It appears that the major reasons for the very widespread use of private firearms are the inadequate number of weapons in police stations at any given time, and the antiquated design and often inadequate calibre of the weapons that are available. Although some progress seems to have been made in this respect since Brigadier J. G. McKinna’s report on the organisation of the Northern Territory Force in 197 3 75, there is a great deal more that needs to be done to modernise the armoury. It should be done quickly. When that is accomplished, there will be no reason not to impose controls of the utmost stringency upon the issue and use of weapons and ammunition. Strict procedures have evolved in other jurisdictions in Australia which it is not necessary to

detail here. It may, of course, be necessary to issue firearms for a variety of specific purposes where it is reasonable to apprehend a danger to life or limb, and it may be necessary to make a continuing issue to certain police officers, for example those on out- stations. The object of our recommendation is not to prohibit altogether but to regulate the use of firearms.

57. Our remaining recommendation in this context is in many ways the most important. This is particularly so given the necessity, in a policing situation such as that of the Northern Territory, for many officers to be relatively unsupervised by senior men for substantial periods at a time. Adequate methods of training, and retraining, in the use of firearms must be introduced. Professional experts suggest that reasonable firearms training cannot

be completed without the firing of from 500 to 1500 rounds in basic training. Retraining, it is said, should involve not less than 200 rounds per year, with psychological preparation—the instilling of a proper attitude towards police use of firearms—being an integral element in both initial and continuation training.76 Measured by these standards,

72 Sec the oral submission of M r G. Eames (Central Australian Aboriginal Legal Aid Service) in the Transcript of submissions to the Commission, 15 July 1975, para. 256, (subsequently referred to as ‘Transcript’).

73 ibid. Cf. the submission o f Mr R. Wesley-Smith (C.C.L. of N.T.), Transcript, 7 July 1975, para. 443.

74 See the submission o fM rD . McCann, C.M., Transcript, 17 July 1975, para. 488. Concern was also expressed in a number of written submissions including one received from Mrs D. Lawrie, M.L.A., dated 18 July 1975. Cf. the police views stressing the problems o f inadequate issue and of isolation: Inspector Taylor, Transcript, 16 July 1975, para. 349 and Commission W. J. McLaren, 17 July 1975, para. 412.

75 ‘Report of the Inquiry into the Northern Territory Police Force’ (submitted to the Acting Administrator, 23 November 1973).

76 The views expressed here are those of Chief Supt Colin Greenwood, of the North-East Yorkshire Police Force, in a letter to P ro f R. W. Harding, Consultant to the Commission. Chief Supt Greenwood is the author of Tadics in the Police Use o f Firearms (1969) and Firearms Control (1972), and is regarded as the leading English expert in the field.

Arrest /' 25

the level of firearms training in most Australian forces appears inadequate, and in the Northern Territory especially so. If the Australia Police are to have the power to use, in the exercise of their duties, the most lethal form of force of all, they should be subject to a comprehensive and efficient training program.

PERSONAL SEARCH INCIDENT TO ARREST

58. It has always been the case at common law that a police officer could lawfully search the body, clothing and property in the immediate possession of a person arrested, if such search was reasonably believed to be necessary either (a) for the purpose of discovering a concealed weapon or any article which might be used by the person to injure himself or

others or to assist him to escape,77 or (b) to secure or preserve evidence with respect to the offence for which the person was in custody.78 Whether the common law allows any wider scope to warrantless searches incidental to a valid arrest is the subject of continuing controversy.79 The Commission’s view is that it does not, and should not. The matter should be put beyond doubt by writing into legislative form the relatively narrow powers we have indicated. We address ourselves elsewhere80 to the larger question of what other

search and seizure powers police should have, i.e. apart from those necessarily incidental to arrest.

59. The most difficult problem in seeking to define any power of personal search incident to arrest is determining exactly where the power is to stop. As the Victorian Chief Justice’s Law Reform Committee81 pointed out, unless the power to search the ‘body’ of an arrested person is very carefully defined, it ‘would not exclude the possibility of a prima facie legitimate search extending to a very detailed physical examination: the person

might be stripped in an attempt to discover distinguishing bodily marks, and various orifices explored to discover, e.g., concealed drugs’. Personal searches of the body by policemen in the context of an arrest should be confined to ‘frisk’-type searches for

weapons or evidence. The more intrusive searches of the surface of the body, or various cavities thereof, even when conducted in the privacy of a police station, will be dealt with below in the context of ‘medical examinations’.82 An additional definitional point should perhaps be made for the sake of clarity. Our proposal is that the common law standard with respect to searches of the person should be strictly adhered to, namely that such

searches be confined to those reasonably believed to be necessary to elicit evidence with respect to the particular offence for which the person is in custody. Where there is such reasonable cause for a search, and evidence of another previously unsuspected offence happens to be found, then there should be no barrier in the way of using such evidence in

relation to the other matter. We do not seek to establish any such barrier, for we can see no sound reason of principle why a blind legal eye should be turned to such discoveries.

77 Leigh V. Cole (1853) 6 Cox C.C. 329, 332.

78 Dillon v. O'Brien (1887) 16 Cox C.C. 245 fir.); Field v. Sullivan (1923) V.L.R. 70.

77 Much depends on the status of the much judicially and otherwise criticised Elias v. Pasmore [1934] 2 K.B. 164 which purported to allow police, in the course of executing an arrest warrant, to go so far as to search the house where the accused was arrested and to seize material incriminating a different person for a different offence. For some o f the criticisms, see E. Campbell and H. Whitmore. Freedom in Australia (2nd ed.. 1973). pp. 66-8.

80 Paras 189-210.

81 ‘Powers of Police after Arrest’ (1972), para. 25.

82 Paras. 130-133.

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ENTRY PURSUANT TO ARREST

60. At common law, whenever a police officer has the right to arrest, with or without warrant, he may enter upon private premises without the occupier’s permission in order to do so.83 It is necessary to clarify the power of entry pursuant to arrest in the light of the changes recommended to the law of arrest. A power to enter should be available, first, in order to arrest a person named in a warrant of arrest and reasonably believed to be on the premises, and, secondly, where no warrant exists, to accomplish the lawful arrest of a person reasonably believed to have committed a serious offence and reasonably believed

to be on the premises. The proposed definition of a ‘serious’ offence is explained above;84 clearly it is necessary to set some limitations on the extent to which police can break into private property in order to exercise their otherwise lawful powers, given the fact that we have recommended that all offences, however minor, should be prima facie arrestable. It

should further be provided that arrests involving entry onto premises should not be made at night where it is practicable to make the same arrest during daylight hours. We should add that there are other powers of police entry, apart from those available pursuant to arrest, which are arguably recognised at common law, including in particular the power to enter to prevent an apprehended breach of the peace.85 We do not seek to recommend either legislative endorsement or legislative denial of such extended powers: they raise difficult questions of substantive law and policy which we see as being outside our immediate terms of reference.

NOTIFICATION OF GROUNDS OF ARREST

61. At least since the House of Lords decision in Christie v. Leachinsky86 an arrest will be unlawful unless reasonable efforts are made to communicate to the person arrested the grounds upon which he is being taken into custody. He does not have to be told the technical name of the offence in question. Nor is it necessary to say anything to him if he is caught red-handed or is otherwise obviously aware from the circumstances of the general

nature of the offence for which he is arrested. Nor is it necessary if the person arrested himself creates a situation which makes it impossible to inform him of the reasons for his being arrested; for example, because he is vigorously resisting. The fundamental rationale of the rule is to enable the person arrested to clear himself by explanation at the first

opportunity. The Christie v. Leachinsky rule, together with its qualifications, should be incorporated in the proposed legislation. In Australia a special problem arises from the presence of many persons not fluent in English. It would not be practicable to require that the person arrested should be notified at the time of his arrest of the grounds of his arrest

in a language which he understands. However, any language barrier ought to be surmounted as soon as possible, and recommendations are directed at this question below.87

83 Hundcock V. Baker (1800) 2 Bos, & P. 260; Smith v. Shirley (1S46) 3 C.B. 142; R. v. Marsden (1868) L.R. 1 C.C.R. 131 and, as to arrests by warrant. Burden v. Abbot (1811) 14 Has. 1 at pp. 158, 162.

84 Paras. 36-37.

85 Thomas v. Sawkins [1935] 2 K.B. 249.

86 [1947] A.C. 573.

87 See especially paras 100, 262-264.

3. Procedures Short of Arrest

SUMMONS

62. It is a necessary corollary of any legislative attempt to encourage wherever possible the use of summons rather than arrest procedure that the summons procedures should be an alternative not unattractive to police. If the amount of paperwork and leg-work that is associated with the issue and service of a summons is as great as, or greater than, that

involved in making an arrest, the temptation to continue making arrests in marginal cases might be too great for the average police officer to resist. Our recommendation here is a comparatively simple one. There should be enacted for the Australia Police a single set of summons provisions to replace the myriad clauses presently located in existing State and Territorial legislation. These provisions should incorporate the most streamlined and modern of the existing State and Territorial legislation88, especially with respect to service

of summonses by post in the case of minor offences.

63. The Commission considered in some detail a proposal, based on United States innovations, to introduce a general system of ‘on-the-spot’ summonses, whereby police officers, either in the street or at the police station, could write out and,serve upon a person an ‘Appearance Notice’ requiring that person to attend at court on a particular day and date to answer to a charge. The proposal differs from the existing on-the-spot systems in some Australian jurisdictions with respect to parking and minor traffic matters in that no fixed sum fine is expressed to be payable in order for the person to clear the matter. Rather the notice is of exactly the same character as an ordinary summons. The only difference is that it is issued by the police officer on the spot, rather than by a court for subsequent

service personally or by post. The advantage of such a system was argued to be that it would be an incentive for proceeding otherwise than by arrest. The Commission, however, considers that the advantages of the proposal are outweighed by the disadvantages. In the first place, the procedure for issuing summonses by courts is

relatively efficient in practice. The major area requiring reform would rather appear to be at the stage of service of summons. Secondly, it would appear that there are safeguards for the accused under the present system which would be lost by an inflexible on-the-spot summons procedure. Now, when a matter is reported, there is an independent exercise of discretion by a senior police officer as to whether to proceed with a prosecution. This discretion is quite often exercised in the accused's favour. It would be unfortunate to

remove entirely that prosecutor’s discretion. Thirdly, there may be difficulties, except in the most straightforward matters, in requiring inexperienced police officers to fill in summons forms with precision and accuracy. This would be especially true so far as the accurate definition of the offence is concerned. Back-up verification documentation would be required to be served in many cases, and this would plainly frustrate the advantages of the on-the-spot service. Finally, there are the many practical difficulties involved in a police officer fixing a court date and time. Documents varying the.summons to accommodate court congestion would need to be served in many on-the-spot cases. The consideration of these and other factors have persuaded the Commission, in the ultimate, not to adopt the United States procedures in this context. Instead, an attempt is

88 Sec especially Justices Act (N.S.W.). ss.63, 7 5 B: Justices Act (S.A.). S.62C: Court of Petty Sessions OnUtunu e 1930-1974 (A.C.T.), SS.116D, 116E. .

28 /' Criminal Investigation

made to grapple with the inefficiencies caused by some of the present rules governing service.

VOLUNTARY CO-OPERATION

64. The Problem. The majority of us have indicated previously89 and will indicate again below90 our concern to ensure that no compulsive powers of any kind ought to be exer­ cised against a person when a police officer has no reasonable belief as to his guilt such as would justify the arrest of that person. That is not to say that we think the police should

have no powers at all in the pre-arrest situation. We argue elsewhere for limited powers to obtain the names and addresses of persons thought likely to be capable of assisting the police91 and for another very limited power to stop and search persons thought likely to be carrying either offensive weapons or evidence as to the commission of serious

offences.92 Nor do we contest the desirability of the police being able to freely seek the co-operation of those, whether suspected or not, from whom they think useful infor­ mation might be obtained. What the majority of the Commission is anxious to ensure is

that any such ‘pre-arrest’ questioning should be genuinely voluntary. The recommenda­ tions in this section of the report are directed to advancing this majority point of view.

65. It may be noted that the recommendations in this respect will become even more important if the recommendations in Part 4, as to post-arrest custody, are accepted. This comes about as follows. The law at the moment provides that the police may investigate with complete freedom so long as they have the ‘voluntary co-operation’ of those with

whom they are dealing. If an arrest is made, then the police obligation is to take the person arrested more or less immediately before a justice or magistrate. In practice, however, as the police will readily acknowledge93, the law is being somewhat less than carefully observed. The concept of ‘voluntary co-operation’ would appear to be very much stretched in Australian police practice. There are no effective time constraints on the police to ensure that they take a suspect before a magistrate promptly after arrest. The recommendation below, in Part 4, for a four-hour time limit on police custodial

investigation is designed to deal with this problem. One difficulty with such a specific time limit is that it will—although technically expanding police power after arrest—be seen by police as a limitation where none previously existed in practice. Accordingly, there will be an even greater temptation than hitherto to rely on ‘voluntary co-operation’. It is, then, in the context of the greater pressure that will be brought about if such a recommendation is accepted that the majority of us feel constrained to recommend the control o f ‘voluntary co-operation’. It may "do no harm to reiterate yet again that we do understand that there are some suspects in respect of whom some detailed police investigation is necessary before charges can be confidently laid. However we do not think that any such investigation should proceed against the will of the suspect unless the police can satisfy those criteria, including belief on reasonable grounds of guilt, that would justify them making an arrest.

66. Method o f Ensuring Voluntariness. The mechanism proposed by the majority of us to ensure that ‘voluntary co-operation’ is genuinely voluntary is a very simple one. We recommend that a police officer should not question any person whom he thinks might be

89 Para. 8.

Para. 85.

91 See paras 79-81.

92 See para. 204.

93 See, e.g., the submission quoted in para. 7.

Procedures Short of Arrest j 29

the author of a serious crime, nor seek to have that person go to a police station or anywhere else for the purpose of attempting to procure evidence against him, without previously advising him of his legal rights, that is to say his present legal rights to refuse to answer any questions or to go to any such place for any such purpose. Signed

acknowledgment, on a prescribed form, should be prima facie evidence that this advice was given at the time stated on that form. The failure to produce such a signed acknowledgment should be prima facie evidence that the advice was not given. In other

words, the absence of a written acknowledgment from the accused that his participation in the investigation was entirely voluntary will be prima facie grounds for a court refusing to admit in evidence against him any .admission or other damaging evidence that may

have been obtained during such investigation.

67. There are a number of points to be made in elaboration and justification of this proposal. In the first place, it will be apparent that the intention is to confine the proposed formalities to a relatively small proportion of the innumerable exchanges that police officers have with members of the public. The requirement that a police officer should get a signed acknowledgment as to the voluntariness of the occasion is confined to situations:

(a) where the person approached is being approached for the purpose of ascertaining whether or not he is a party to an offence, i.e. as distinct from being a mere witness to it, or a possible source of other useful information; and

(b) where the offence in question is a ‘serious offence’ (i.e., on the definition previously suggested, an offence punishable by imprisonment for more than six months94).

The kind of person whom we have in mind in (a) is, for example, someone who may have committed the type of offence in question in the past, and whose name the police have culled out—perhaps along with a number of others—after a scrutiny of police modus operandi records. It might be argued that we have unduly limited the class of persons who

are to enjoy such benefits as the proposal confers. First, the proposal clearly excludes those whom the police might want to involuntarily detain in order to secure damaging disclosures, not against their own interest, but against the interests of someone else.

Secondly, the proposal excludes from consideration that class of witnesses who might conceivably become potential suspects as a result of questioning in a less-than-voluntary situation. The Commission carefully weighed these considerations, but in the event we come down on the side of a relatively narrow application, viz. one that excludes these two

groups. All members of the Commission appreciate that free and open exchange between police and public ought to be encouraged as much as possible. Even limited constraints on that free exchange of the kind involved in this proposal ought to be circumscribed as narrowly as possible, consistent with giving the proposal sufficient strength to advance the fundamental object.

68. The reasons for the limitation in (b) above should be self-evident. Police are not usually inclined to go to the trouble of taking people to the police station for ‘voluntary" interrogation in minor cases. The mischief with which the Commission is concerned tends to occur for the most part in the context of those offences punishable for six months or more.. If the ‘co-operation’ was technically sought in relation to an offence of the class commonly used as ‘holding’ charges and if questioning then proceeded in relation to a

more serious offence, it would not be difficult retrospectively to establish that it was the intention of the police officer to interview the person in respect of the serious charge. In such a circumstance a written consent ought to have been obtained and courts would

See paras 36-37.

30 / Criminal Investigation

plainly say so. However in two situations the majority of us would seek to modify our threshold condition framed in terms of the seriousness of the offence. So far as Aboriginals and children are concerned, some additional protection is necessary in order to ensure that justice is both done, and seen to be done. Elsewhere there will appear the Commission’s recommendation that in custodial situations no evidence should be admitted against any member of either of these classes of suspects unless obtained in the presence of a ‘prisoner’s friend’ of one kind or another.95 We recommend that that

protection be extended to pre-custodial investigations of the kind being considered here not only where serious offences are in issue but also for ‘offences against the person’ and ‘offences against property’ which do not come within the ‘serious’ definition. This extension still excludes most traffic offences and public order offences (both of which categories of offence do not in any event rely much on admissions for their enforcement)

but it does get in the great majority of what, in particular, are thought to be ‘children’s offences’, including petty larcenies, vandalism and the like. This question will be treated in more detail in Part 9 below.

69. An objection to the foregoing proposal might be that it is unlikely to be effective in practice in achieving its objective. It will be said, for a start, that a signed acknowledgment is no necessary guarantee that the acknowledgment was voluntarily made. The only real answer to this, and we make it again below in our discussion of the acknowledgment of confessions,96 is that at least a signed record provides a better assurance as to the truth of

the matter recorded than a contest of word against word. Numerous policemen have told us that people are more reluctant to sign things than say things. But then, it may be objected, what happens if a genuinely co-operating person changes his mind half-way through the interview? The easy answer is that of course the person is then free to leave and not to answer any more questions. But of course it may be the case that he is not in practice allowed to leave, in which case all the pre-conditions for a swearing contest as to who said what when, and as to who did what when, will be established. If the police officer can establish that some admission was made during the time in which the interview was genuinely voluntary then he may well be able to claim that the subsequent detention of the person against his will was founded upon a reasonable belief as to that person’s guilt and accordingly was justified.97 The person complaining, on the other hand, will want to say that any admissions he made were made during a period when he was in fact detained against his will, under a detention which was no longer lawfully justified. It is conceded at once that such controversies will be as arid as are present controversies as to the point of time at which the police officer ‘made up his mind to charge a person with a crime’ and accordingly should have administered the caution required by the Judges’ Rules.98 There are two answers which we would advance to all of this. In the first place, on the specific question of confessions, the Commission recommends below 99 that a court, in considering both and admissibility and weight of confessional evidence, whenever obtained, should have regard to whether there is some independent support of it, whether by tape recording, the presence of an independent third party or other similar means. This provision may go a great deal of the way toward reducing the controversies around an alleged statement. The second answer is simply this. However inadequate the requirement of notification and evidence by written acknowledgment may be to cover all situations, at the very least the proposal should work to ensure that the suspect’s mind is alerted to his

1,5 Sec paras 253. 266-267.

Para. 161.

1,7 This is what is defined in para. 83 as an "arrest-analogous' situation.

gH On the Judges" Rules and cautions, see paras 139 ff.

m Paras 154-162.

Procedures Short o f Arrest / SI

circumstances, to his right to silence and to his right to leave. It is stressed that these are the rights which citizens presently have by the common law but of which most are quite ignorant. If the suspect is insufficiently strong-willed to take advantage of at least the right to silence, then there is probably nothing much more the law can or should do to protect him in his predicament, at least in the pre-arrest situation.100

70. The argument will undoubtedly be advanced that the majority’s proposal will unduly hinder law enforcement. But by limiting the range of people, and offences, to whom these requirements apply, the majority believe that the requirement of ‘pieces of paper’ will not impossibly complicate the police task in day-to-day, minor-order law enforcement. N or is it accepted that it will ‘poison the relationship’101between police and people. If the

objection is focused on the enforcement of serious crimes, and the claim is made that the enforcement will be severely hindered if evidence obtained in a pre-arrest situation is inadmissible unless accompanied by a signed acknowledgment as to the voluntariness of

the occasion, then this answer is advanced. First, it is not necessarily the case that evidence will not be admitted at the trial of the accused unless there is a signed document to go with it. The Commission’s proposed discretionary rule102 for the exclusion of evidence wrongfully obtained provides for the possibility of admitting evidence where, on balance, the intrusion upon the civil liberties of the accused was slight in comparison with all the other circumstances of the case. Secondly, if such evidence is in fact declared to be inadmissible, then that is the price which must be paid for the observance of the principle

that no one should be subject to any compulsive process otherwise than after arrest.

71. The final objection which the majority proposal must meet is that a likely result of the proposal in action will be to encourage many more arrests than has hitherto been the case because only following arrest will the police have the power compulsorily to detain, question and otherwise engage in investigative procedures with a suspected person

against his (alerted) will. The majority of the Commission would answer this claim upon two levels. In the first place, it is not conceded that the proposal would in fact increase the incidence of arrests. The Commission’s earlier recommendations for new criteria for lawful arrest will prevent this. In a great many of the exploratory interrogation sessions

which have hitherto passed for ‘voluntary co-operation’ there would not in fact, on these criteria, have been reasonable grounds on which to make an arrest. We do not see that situation as likely to change. In the past the unlawful character of an arrest may have been no great disincentive to undertaking it in any given case. Without greater clarity in the legal position, who would take the point that a summons ought to have been issued and

that the arrest was unnecessary? This situation may now be expected to change with the more vigorous enforcement methods that the Commission recommends, both within the police force and in the court room. In any event, the policeman will still have a number of procedural barriers to overcome if he does make the arrest. Accordingly, unless the police

officer is reasonably sure of his ground, he is not going to be tempted to make an ‘exploratory’ arrest on this basis. The second reply is that even if arrests were to increase

100 It might be thought that another way of dealing with this whole problem is to require that there be a 'sign-off acknowledgement as well as a 'sign-on' one, the idea being that the volunteer should record both the time that his co-operation started and the time that it stopped, and that anything reported to be said by him outside that time range be prima. facie inadmissible. The difficulty with this, apart from its additional

complexity, is that controversies would still arise as to the time at which a particular admission was actually made. Short of a full panoply of gadgetry, such as a sealed tape recorder with a built-in 'speaking-clock', there seems to be no way of resolving this dilemma.

101 The ‘poisoning’ being that requiring people to acknowledge in writing the voluntary character of their exchange with a policeman will create an atmosphere of artificial hostility and mutual suspicion in a way which would not otherwise have existed.

102 Para. 298.

32 l Criminal Investigation

as a result of the majority proposal (a consequence that is not at all accepted) this would not necessarily be so iniquitous a result as may have been the case in the past. If the recommendations made in Part 4 are accepted, the suspect will have a number of

safeguards—including the right to a lawyer—which he may not have had in the pre­ arrest situation o f ‘voluntary co-operation’. We recommend 103 that it be made clear that a person arrested may be released without charge, thus reducing the practical inevitability of a charge of some description being laid, which used to be the case previously. Further, very stringent controls are recommended104 on the disclosure of criminal history records, including arrest records, so that the dangers which may hitherto have attended the arrest

of a citizen (even where subsequently released or acquitted) may not be so great. Perhaps the most obvious point of all, however, is that even if there should be a greater number of formal arrests than before, this will do no more than formalise what in practice, though not in name, has been exactly the same thing. The fact that no shoulders may have been touched, or incantations mouthed, does not mean for a minute that a very large number of people indeed who were in the past ‘voluntarily co-operating with police’ or engaged in ‘assisting the police with their inquiries’ were just as surely arrested as if they had been bound in chains. .

72. Minority Position. Mr Brennan dissents from these views. He holds the view that a police ofhcer at an early stage of the investigation ought to be able freely to pursue his inquiries from all citizens, whether suspected or not. He apprehends that the giving of the warning and the request for the written acknowledgment by the person who may conceivably be implicated in an offence will impede adequate and proper police investigation. The law which permits questioning of persons who answer voluntarily ought not to be changed so as to permit questioning only of those who volunteer. Given that police officers sometimes stretch or bend the notion of ‘voluntary co-operation’, he would prefer that citizens be enlightened as to their rights by general educative processes rather than by a process which in each case may tend to dry up legitimate sources of information. And if the police overreach themselves by taking or keeping a mere suspect in custody before arrest, the solution of choice ought to be the detection of the malpractice and the exclusion of the evidence improperly obtained. The safeguard procedures and the exclusionary rule are designed to this end.

73. In the minority Commissioner’s view, the solution of the written acknowledgment goes too far. It does not give the policeman a practical guide for ascertaining when he ought to seek the acknowledgment. It requires him to take a step which will tend to impede his investigation unless he arrests and thereby acquires the power to interrogate. Such an incentive to arrest should not be created. If the police cannot function without an extended power to question, that extended power should be exercised at the time when the police are seeking information to solve the crime, not at the stage when the offender has been identified and arrested. The Commission is unanimous in the view that the police contact with a person who is ultimately charged with the commission of an offence should be seen

as a continuum during which the police should desirably have an opportunity to ask questions. But we are not unanimous as to whether the police should be granted a legal right to question and a power to enforce that right, or, if a legal right to question be created, whether it should be exercised against a person under arrest.

74. The minority Commissioner is of the opinion that, although present practice does not adequately enforce the rules governing police contact, the rules themselves do strike the

103 Para. 165.

104 Part 8.

Procedures Short o f Arrest / 33

right balance. The police are both entitled and bound to ask questions of any person from whom they think useful information can be obtained. They are not entitled, in doing so, to use any threat or promise to induce a confession or to use force or otherwise overbear the will of a suspect. Confessions which are the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure are liable to be rejected. Illegal

conduct does not become authorised because it is undertaken to procure a confession and unfairness is not countenanced. The inadequacy of the present rules lies not in their substance but in their enforcement. The courts have been unable sometimes to check upon police evidence which is doubtful or denied. Thus, if police have stretched or bent the

concept o f ‘voluntary co-operation’, they have hidden the stretching or bending from the eyes of the court. The safeguard procedures proposed by this report will hopefully give the court some assistance in arriving at a comfortable conclusion on the facts of investigation.

75. When the facts have been known to the court, the court has sometimes failed to enforce the rules relating to police contact. The dominant consideration has been the relevance of the evidence obtained to the case in hand rather than a concern as to the method by which that evidence was obtained. The proposed exclusionary rule will shift the focus of the court’s attention towards the role which the court ought to play in supervising these rules.

The court has sometimes expressed uncertainty as to its power to reject admissible evidence on the mere ground that the evidence was illegally obtained.105 The proposed exclusionary rule will affirm the court’s discretionary power to exclude evidence on this ground and indicate the manner of its exercise.

76. The minority Commisioner acknowledges that there is a case for the grant of a right to question. He is of the view that further public discussion of this right is required. If such a right were to be granted, in his view, the right should be subject to two stringent limitations. It should not be exercised against a person who has been arrested nor against

a citizen upon whom suspicion has not reasonably rested, and the police should not have the ability to decide against the citizen that the occasion for the exercise of the right had arrived and to enforce that decision by arrest. A police power to ‘detain for questioning’ is both too wide if it is exercisable against persons who are not suspects and too oppressive if the police are to be the judge of their power to detain.

77. It may, in the minority Commissioner’s view, be right to allow police to request a suspect to submit to questioning and to go to a police station for the purpose. Subject to proper controls, it may be appropriate to empower the police to issue a notice requiring attendance for the purpose of questioning to a person whom the police suspect on

reasonable grounds to be guilty of the offence. The grounds of suspicion should be stated in the notice. But as the police should not be entitled physically to compel submission to questioning, non-compliance with the notice should constitute only a non-arrestable offence. In that way the suspect could test the bona fides of the police allegations in court,

if he were so minded. A proposal of this kind may be so loose as to be of little practical assistance in police investigation. But the expansion of police power beyond this point will significantly alter the balance between the exercise of executive power and the rights of the citizen. A more compelling case for the grant of additional powers should be made out by

police authorities before recommending that the rights of citizens be diminished.

78. It follows from these views that Mr Brennan does not join in the recommendations which relate to interrogation of a person who is in lawful custodyr

105 cf. Wendo v. R. (1963) 109 C'LR 559, at p. 562.

34 I Criminal Investigation

FURNISHING OF NAME AND ADDRESS

79. Statutory power to require a person to furnish his name and address exists at present in most jurisdictions only in relation to traffic offences. It is, nonetheless, a power which policemen both need, and exercise, in practice. The need arises in at least three distinct contexts. The first is where the police, knowing that a crime has been committed and seeking to discover the author of it, wish to interview all those who may be in the vicinity at the time. The taking of names and addresses for subsequent follow-up is a far more satisfactory way of coping with this than seeking to detain what may possibly be a large number of people for interviews on the spot. The second context is where the police do not know that an offence has been committed but think it might have been, and wish to interview all those who may have been witnesses to it. The basic example of this is the traffic accident situation, where witnesses are often reluctant to co-operate with inquiries, not because of any potential culpability but simply because of the inconvenience involved in attending court hearings and the like. The third situation is that which arises where the police think an offence may be about to be committed. For example they may see

someone standing in a shop or factory doorway late at night. In this kind of situation, it is invariably police practice to question the person concerned, even though formal power to do so might be totally lacking, certainly to extract the identity of the person.

80. It will have become plain that a major thrust of a great part of the Commission’s report is that so far as possible it is better to legally recognise, and at the same time establish some legal controls over, justifiable police powers which are in fact exercised than to turn a blind eye to them because they have not traditionally been formally recognised by the common law or because they may have some potential for misuse. Police officers should have the power to require that a person whose identity is unknown to the officer in question and whom the officer reasonably believes may be able to assist him in his

inquiries in relation to an offence should furnish his name and address. It should be an offence, punishable by fine, to refuse to furnish a name and address or to give a false name and address. The Commission does not envisage that this power should be exercisable on the merest whim of a policeman. Nor is it likely to result in citizens constantly being harassed by policemen whilst going about their ordinary business. The power proposed should be circumscribed in a number of particulars. It will extend only so far as questions about name and address. It will not entitle questions to be put, or require them to be answered, as to where a person has been, where he is going, what he is doing and the like. And it will only be available in situations where there is some nexus with an actual or possible offence, which nexus the policeman must be able credibly later to explain if challenged to do so (e.g. in the context of a disciplinary action brought against him based on the complaint of a citizen). Furthermore the police officer will be required to identify the reason for which the name and address is sought. Finally, there should be a reciprocal right for a citizen to demand and receive from the policeman his identity. This will of course be especially relevant so far as plain clothes police are concerned.

81. There is a danger that the proposed power might be misused in relation to particular classes of persons, not in the habit of carrying about with them persuasive evidence of their identity. One example would be out-of-town Aboriginals in the Northern Territory. It is a logical corollary of the recommendation that a police officer who has reasonable ground to believe that he has not been furnished with a correct name and address would have prima facie grounds for arresting that person. However there must be reasonable grounds for believing that a false name and address has been furnished, and the other criteria for a lawful arrest106 must be satisfied. Given the notorious absolute truthfulness

106 See paras 38-44.

Procedures Short o f Arrest / 35

of most Aboriginals, a fact to which a very wide spectrum of our Northern Territory witnesses attested, there would need to be something very special about the situation to justify an arrest in the case mentioned. There is of course the possibility that any police power, including this one, will be abused by a minority of officers. However we are

satisfied that the safeguards built into the provision itself and the means here and elsewhere recommended for enforcing those safeguards107 will ensure that abuse will be kept within narrow bounds. The recommendation fits squarely within the principle that greater emphasis should be placed on proceeding by way of summons as distinct from arrest, which we have recommended elsewhere.108 It is plainly the necessary pre-condition of any successful summons system that the police should be confident that they can

successfully establish the identity of an alleged offender for the purpose of the summons. More generally, this recommendation can be seen as a very much more attractive option than the one which was strenuously pressed upon the Commission from a variety of quarters, namely the creation of a power in the police to compulsorily detain for some specified period any person thought capable of ‘assisting the police with their

inquiries’.109 While turning its face against any such large extension of formal police power, the Commission is anxious to arm the Australia Police in its task of preventing and solving crime, so far as is reasonably justifiable.

See Part 11 on the disciplinary action, the exclusionary rule, and the civil action for false imprisonment.

108 See para. 29.

,0‘' The South Australian Committee had made such a recom mendation (at pp. 74-6) and it was supported by four of our professional consultants as well as num erous police spokesmen.

4. Custody and Custodial Investigation

‘restraint’ and ‘lawful custody’

82. The following sections of this report deal with the investigative procedures of various kinds which should be available to police when a person is in custody. Some of the procedures in question might no doubt be appropriately employed by consent in a non­ custodial situation (e.g. exculpatory-motivated attendance at a line-up). Others, as will be noted, might be available against a person not in custody by virtue of a court order (e.g. an order for the obtaining of the fingerprints of a person proceeded against by summons). The primary context for the present discussion is the one that matters most in practice, that of custody. We are also concerned here, as the other side of the coin, not only with the powers of police but with the rights which may be claimed by persons when they find themselves under police restraint. It becomes important, then, to be clear at the outset about what we mean by ‘custody’ or, as we would prefer to describe it, ‘restraint’. (The latter word is preferred in order to avoid ambiguity or confusion when we distinguish below between ‘custody’, i.e. ‘restraint’, on the one hand and ‘lawful custody’ on the other.) Upon this explanation will depend an understanding of the Commission’s recommendations as to the points of time in the criminal investigation process when various duties have to be performed, and various powers become available.

83. Put shortly, ‘restraint’ describes a situation in which a person is physically detained in some place (or in the presence of some person110) and is not permitted freely to leave. Police restraint can be either lawful or unlawful. It arises in present police practice in three principal ways which are described succinctly by the Victorian Chief Justice’s Law Reform Committee in its 1972 report ‘Powers of Police after Arrest’. First, there is formal arrest, which may or may not be lawful depending on whether the legal criteria

laid down in the jurisdiction in question are satisfied. The basic common law rule is that the police officer must have reasonable grounds for suspecting that the person has committed the offence. Secondly, there is de facto custody, which describes the situation which arises, not uncommonly, where a police officer, lacking the reasonable belief that might ground an arrest, and without actually purporting to make an arrest, requests a person to accompany him to a police station or elsewhere. Such a case involves the person believing that he is obliged to accompany the police, and that he would not in fact be free to go if he expressed a wish to do so. In the absence of the necessary reasonable belief or other circumstances that would justify an arrest, such custody is clearly unlawful.111 In no Australian jurisdiction do the police have power to detain for the purpose of questioning or to otherwise facilitate their investigations.112 Thirdly, there is what may be described as an arrest-analogous situation. In the words of the Victorian Committee,113 this ‘arises with respect to a person hitherto not free but in “de facto custody” at that point in their investigations when the police accumulate such information as to amount to reasonable

11.1 cf. Symes v. Mahon [1922] S.A.S.R. 447.

1.1 R. v. Amad [1962] V.R. 545, Smith v. R. (1957) 97 C.L.R. 100, at p. 129.

1.2 See R. v. Banner [ 1970] V.R. 240 at p. 249; and Victorian Chief Justice's Law Reform Committee Report. ‘Powers of Police after Arrest' (1972), subsequently referred to as the ‘Victorian Chief Justice's Committee Report', para. S; cf. the recommendation of the South Australian Committee, ch. 6. noted above in paras 8. 81.

113 Victorian Chief Justice's Committee Report, para. 9.

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and probable grounds for believing that the suspect has committed the offence. . . it is at this stage that hitherto unlawful custody becomes lawful’. We would only add that an arrest-analogous situation could also arise in the context of a person genuinely engaged in voluntary co-operation with the police, if at some point evidence is disclosed which would justify the police determining not to allow that person to leave on the basis of their having

secured reasonable grounds for believing that he had committed an offence. Provided any other conditions that might be required for a valid arrest in the jurisdiction in question were satisfied (e.g. a requirement of belief that proceedings by summons would be ineffective), the decision to detain in these circumstances would be lawful.

84. The Commission proposes to remove as much as possible of the vagueness and ambiguity which has hitherto surrounded the notions of custody and restraint in the following ways: (a) by giving clear statutory definitions to both ‘restraint’ and ‘lawful custody" so as to leave no doubt in the police officer’s mind as to how any given situation should be

characterised; (b) by prescribing, where relevant, police duties and powers by reference to these defined concepts (so that, for example, the duty to warn a suspect of his rights shall arise when that suspect is under ‘restraint’, but the power to search or fingerprrint him shall arise

only where there is ‘lawful custody’); and (c) by requiring police officers to notify a suspect when he is under police restraint of that fact, in order to minimise the possibility—both then and in any subsequent voir dire—of misunderstanding. This is particularly important in the context of those

situations described above as arrest-analogous.

85. Parts (b) and (c) of this recommendation are spelt out in further detail below.114 As to (a), it is proposed that statutory definitions should follow the terms of the discussion in paragraph 83. It should be made absolutely clear that de facto restraint, as there des­ cribed, is not lawful custody. We have already stated the Commission’s view that ‘volun­

tary co-operation’ ought to be genuinely voluntary, and that police should not have the right to deprive persons of their liberty unless, as a threshold condition, they can satisfy the criteria that would justify arrest. It is appreciated that this will involve come changes in present police procedure. If a person in respect of whom there is some suspicion is not willing to ‘assist the police in their inquiries’, then a decision will just have to be made as to whether there are sufficient grounds for his arrest, or whether rather he should not be detained. The ambiguities of the past will not be quite so easy to sustain. If, on the other hand, a person is genuinely willing to co-operate (as evidenced particularly by his signature of a paper to that effect), there is no reason why police should not proceed much as before. They will of course have the ‘arrest-analogous’ right to convert this voluntary exchange of information into compulsive custody if anything is disclosed which would justify an arrest. This is provided , at the time suspicions harden in this respect, the suspect

is advised of the change m his status, i.e. of the fact that he has become a person under restraint.

RIGHTS OF PERSONS IN CUSTODY— OVERVIEW

86. The basic scheme which the Commission115 proposes is as follows. Where a person is under restraint (whether or not that restraint proves on subsequent examination to

114 As to (b) see paras 86 ff; as to (c) see para 101. 115 Note that the references to 'the Commission' in this Part of the report should be read subject to the general dissent o f Mr F. G. Brennan on all questions discussed in this Part to the extent that they involve investigative procedures, or at least questioning, after arrest. Mr Brennan's position is explained in paras 72­

78. ·

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amount to lawful custody) he is to be informed of that fact and the reasons for it. He is to be advised of his rights with respect to access to relatives and friends, consultation with a lawyer, the answering of questions and so on. How each of these rights is defined, and the balance struck in each case between conflicting interests, is described in detail in subsequent sections below. In lawful custody situations the police shall have certain powers in relation to personal search incident to arrest and the taking of fingerprints, photographs and the like. Medical examinations are to take place only with the express consent of the person in lawful custody or pursuant to a court order. Identification procedures, especially line-ups, are to be closely regulated to ensure fairness, and the suspect fully notified of his rights in relation to them. Special provision is to be made for members of various minority groups—Aboriginals, persons not fluent in English and juveniles—and these recommendations are set out in Part 9 of the report. The special

problems which arise in relation to custodial interrogation in remote areas are taken into account in discussion of particular procedures, and are the subject of further comment and recommendation in Part 10. The rights of persons in custody with respect to release

generally, and bail in particular, are dealt with in Part 6. The immediate question that arises with respect to custodial investigation, one which is in many ways a pre-condition to any discussion of the powers and duties just outlined, is how long the custodial investigation may take. Are police to be unfettered as to time, or should there be time constraints? If so, what? It is to these questions that we now first turn.

DURATION OF CUSTODY

87. Present Law and Practice. It is well established at common law that the power of the police (and private citizens) to arrest exists only for the purpose of taking the suspect before a justice or magistrate to be dealt with according to law. The corollary is that a detention will become unlawful if there is unreasonable delay in so doing. The fundamental policy

is that the law enforcement process should move as fast as possible from the committed executive level to the uncommitted judicial level. This common law principle has been given statutory expression in one way or another in most Australian jurisdictions. The language employed to delimit the permissible time period varies widely: from

‘forthwith’, 116 ‘without delay’,117 ‘without undue delay’,118 ‘as soon as practicable’119 and ‘not longer than is reasonably necessary in the circumstances’120 to ‘within twenty-four hours’121 and even ‘within forty-eight hours . . . or if not practicable . . . as soon as practicable after that period’.122 Except in Drymalik v. Feldman123 1 2 4 where the South Australian Supreme Court held that ‘forthwith’ meant just that, and certainly did not extend to allow interrogation of the person arrested, the courts cannot be said to have shown much inclination to give these various expressions either precise denotation or teeth. In R. v. Banner'24 the Full Court of the Supreme Court of Victoria held.

116 e.g. Police Offences Act, 1953-1974 (S.A.) s.78(l) (see Drymalik v. Feldman [1966] S.A.S.R. 227), Police and Police Offences Ordinance 1923-1974 (N.T.), s. 34( 1) and Police Ordinance 1927-1974 (A.C.T.), s. 24(!).

117 e.g. Tasmania Police Offences Act 1935-1973, s. 56, and Criminal Code Act 1924, s. 303.

118 e.g. Customs Act 1901-1974, s. 212, and Excise Act 1901-1974, s. 102.

e.g. Crimes A d 1958. as amended, (Vic.) s.460( 1); Justices Act, 1959-1974 (Tas.), s.34(l); Crimes ( Hijacking oj Aircraji) A d 1972-1973, s. 11.

120 Crimes ( OverseasJ Act 1964-1973, s. 6(3).

121 Crimes Act 1958, as amended, (Vic.) s.460(5).

122 Migration Act 1958-1973, s.38(2).

123 [1966] S.A.S.R. 227.

124 [1970] V.R. 240.

Custody and Custodial Investigation j 39

acknowledging observations to similar effect by Lord Denning M.R.,125 that a morning’s visit to a murder site following a confession may have been a permissible delay. The court went on to hold that another forty-four hours which the accused then spent in police custody before appearing before a court was most certainly not permissible. However, the court found itself unwilling to exercise here its residual power to exclude evidence unfairly

obtained. Accordingly it was unable to administer any effective sanction against the police. The accused was left to his civil action.

88. Police practice appears for the most part to be as unsatisfactory as the law. Officers of the former Commonwealth Police, here as elsewhere, are bound, by virtue of s.68(l) of the Judiciary Act 1903-1973, to observe the procedural law of the State in which they are operating in the absence of more specific Commonwealth provisions. Such officers have

been instructed126 not to hold accused or suspected persons for ‘unjustifiable’ periods. They are told by their Commissioner’s General Orders that ‘what is an unjustifiable period of time for this purpose will naturally depend on the circumstances of each case’.127

The Commission was told in its public sittings that members of the Northern Territory Police Force were in the habit, in the Alice Springs area, of frequently not contemplating bail until the morning following a person’s arrest.128 The Commission was informed of particular cases where persons arrested have been held for up to three days in police

custody on minor public order charges. The complaint was by no means universal. The A.C.T. Police Force, in particular, appears to have a good reputation in this respect. However the Commission did note in the course of its public hearings in all parts of

Australia that unnecessarily prolonged custody was one of the complaints most frequently voiced against police forces generally.

89. The Four-Hour Limit. The Commission129 is of the opinion, after carefully canvassing alternative options, that there ought to be a precise time limit set for police custodial investigation. The proposal is, in outline, as follows. (a) No person taken into custody for an offence (or group of offences) shall be questioned

or subjected to any other investigative procedure for a period longer than four hours from the commencement of the custody. (b) As soon as reasonably practicable, and in no event longer than four hours after the custody commences, a decision shall be made either to release the person without any

information being laid, release the person on the basis that a summons has issued or will issue against him, or charge that person. If the decision is taken to charge the person, then within the four-hour period he shall be brought before a justice or magistrate, or, if a justice or magistrate is not reasonable available, a decision shall be

made by the police with respect to the granting of police bail. (c) If a police bail decision is made, and such bail is either denied or granted on conditions unacceptable to the accused, an appeal shall lie to a magistrate either personally or by telephone or similar means of communication if the magistrate is not

reasonably available in person. (d) If such a telephone appeal fails, so that the person remains in custody, the duty of the police shall be to bring the person before a justice or magistrate as soon as is reasonably practicable, and in any event no later than the first sitting of the most

conveniently located court, following arrival at such court after travel thereto by the most direct route. - : In Dallison v. Caffery [1965] 1 Q.B. 348 at p. 367.

126 General Order 36, s. 25(10).

127 ibid. 128 Chief Inspector N. J. Owens (Officer-in Charge, Alice Springs), Transcript, 15 July 1975. para. 318.

129 See note 115 above.

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(e) In calculating the four-hour time limit for custodial investigation no account shall be taken of direct travel time to the police station, time spent arranging communication with the relatives, friends or lawyer of the person in custody or time spent (no more than two hours if the police so insist) waiting for the arrival of, and engaging in preliminary consultations with, a lawyer or prisoner’s friend. (f) Before the expiry of the four-hour period, application may be made to a magistrate

(by telephone or similar means of communication if a magistrate is not reasonably ' available in person) for an extension of the time within which to continue custodial investigation. The accused or his legal representative shall have the right to be heard

in the determination of any such extension. Such extension is to be specified by the magistrate and in no circumstances is to exceed a further eight hours. However, an additional extension of time is envisaged that may be obtained from a Federal, Territory or State Supreme Court. (g) Provision shall be made to ensure that no repetition of the four-hour investigation

period is possible within a reasonable time. Plainly a provision is needed guarding against the rearrest immediately after release of the suspect following the expiry of four hours, for a different offence, with further rearrest again after another four hours and so on.

90. The argument for having some explicit time period fixed for custodial investigation is as follows. The present vague parameters are satisfactory neither for suspects nor policemen. For suspects, the reason is obvious enough: too many people are being kept in police custody too long.130 For policemen, the difficulty in the present situation lies in its uncertainty; no one really knows what kind of delay wall be held to be reasonable for what kind of case. Hitherto, when the only sanction for unreasonable delay has been an

admonishment from the bench and the unlikely prospect of a civil suit for false imprisonment, this uncertainty could no doubt be tolerated by police officers with composure. But if the Commission’s recommendations are accepted as to a more effective exclusionary rule of evidence, and a police discipline code which can be enforced through externally initiated complaints, then it will become much more important for the working policeman to know with some precision what he can and what he cannot do. In the public

sittings the Commission was urged by police representatives on numerous occasions to formulate all its recommendations with as much precision as possible. We were told to abjure generalised statements of civil rights and guarantees which express principles in large and general terms and leave it to the courts to fill in the details. The present context is one in which the Commission feels inclined to accept that advice.

91. It is to be noted that the setting of a fixed time for the duration of police custody is by no means unprecedented. As stated above,131 expressions such as ‘twenty-four hours’ and ‘forty-eight hours’ already grace our statute books. The United States Omnibus Crime Control and Safe Streets Act 1968132 sets a specific maximum period of six hours, and the South Australian Committee found it not incongruous to fix a time limit of two hours on the period a person could be detained for questioning.133

92. Why four hours? This figure was fixed upon as being, on the evidence before the Commission, the shortest period within which, in the great majority of cases, the post-130 See the evidence of M r J. Lazarus, representing the Victorian Bar Council, to the Statute Law Revision Committee, Minutes of Evidence, 9 May 1972, esp. at p. 83.

131 Para. 87.

132 18 U.S.C. 3501. 133 South Australian Committee Report, p. 74. The crucial difference between that proposal and the present one is, of course, that the South Australian time limit was to apply in pre-arrest situations.

Custody and Custodial Investigation j 41

arrest investigation is brought to fruition and the suspect charged or released, American studies have suggested that as many as 97 per cent of cases are cleared in this time,134 and local research has produced figures of a similar order.135 Oral statements made in the public sittings of the Commission by policemen in most jurisdictions136 indicated that the time proposed was realistic. The point was made that if the ‘voluntary co-operation’ (or

‘assisting the police with their inquiries’) phase of police investigation had to be in every sense genuinely voluntary, this would mean that more time than hitherto would be needed after formal arrest. Previously, arrest had tended to represent the culmination of many investigations (i.e. those involving the actual participation of the suspect) rather than their commencement. Nonetheless, it was generally agreed that, provided the time excluded ‘dead’ time spent travelling, waiting for the arrival of a lawyer and so on, four hours was a realistic maximum for all but the really serious or extremely complex crimes.

93. The Commission carefully considered the objection that setting any time limit which implies an acceptance of some post-arrest investigative procedures is undesirable, in that it represents a retreat from the common law principle that arrest marks the point of executive commitment, the point at which there should be a reduction rather than expansion of police power, and the point at which the judicial arm should take over as

soon as possible. While appreciating the force of this argument, the majority of the Commission137 feels that it is outweighed by other considerations. The first is that all the evidence before us suggests that the stated common law principle has long been honoured

more in the breach than the observance. Custodial investigation does now take place as a matter of course in every police force. Wherever possible—and it usually is—police prefer to call custody or restraint by another name, viz. ‘voluntary co-operation’. Where that is not possible, because the suspect refuses to go anywhere without being arrested, then

investigation, questioning and the rest appear for the most part to proceed in the normal way, unconstrained by any particular concern for the principles stated. The second consideration follows naturally upon the first. If the majority recommendations as to voluntary co-operation are accepted, and this results—as it is likely to—in a lesser

number of investigative sessions being conducted on this basis then hitherto, then one has to provide for the realities of police requirements elsewhere in the system. The South Australian Committee put the point well:138 As a basis for our recommendations it is necessary to stress that no advantage is to be

gained by formulating rules of conduct for police investigation or for the admissibility of evidence which fail to take account of the reality of police work. The inevitable result of such failure is formal police compliance with the law but substantial evasion of it, which subverts the very values sought to be protected.

As we have already stated at the outset of this report13'1, it is obvious that certain compulsive powers, albeit hedged about with various safeguards, have to be exercised by­ police in the larger community interest. If the question then becomes one as to when those powers are to be exercisable, our answer is clear: not before the point of time at which the

134 E. L. Barrett, Jnr, 'Police Practice and the Law - From Arrest to Release or Charge' (1962) 50 Calif. L.R. 11. 41-5.

1,5 T. Carney and J. Epstein: consultants' paper to Commission based on a recent empirical study of investigations at a Melbourne outer suburban police station. 88" „ of cases, involving a range of offences from petty larcenies to indecent assaults and breakings, were resolved within four hours.

136 One exception was the N.T. police.

133 This is the main issue on which M r Brennan dissents. See note 115 above, and the references there cited.

138 South Australian Committee Report, p. 3.

13e Para. 7. -

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police have such reasonable grounds for believing the person has committed a crime,, and such other reasonable grounds for believing in the necessity of an arrest, as would justify his arrest.

94. One final question must be answered with respect to the proposal of a four-hour maximum time limit for investigation. It is whether this period might not be too long for some offence situations, thus endangering civil liberties, and too short for others, thus j inhibiting the police to the detriment of the law-abiding community. To guard against the first possibility, that the period might be too long, it is recommended that the legislation

be formulated so that the duty upon police officers is not simply to make a release or bail decision ‘within four hours’ after custody commences, but rather to make the decision ‘as soon as reasonably practicable, and in no event longer than four hours’. If the present system of enforcing these rules by reliance on civil damages actions were all that was proposed, it is perhaps true that not much more could be expected of the formula than seems to have been the case to date. But the point must be made again that the Commission is recommending a system of enforcement for these rules, built around a new rule for the exclusion of evidence and, more especially, an externally enforceable police i discipline code. These are likely to give such rules much more ‘bite’ than they would otherwise have had and than they have had to date. That is not to say that the four-hour period should not be kept closely under review. If it appears, after a period of operation under the new rules, that the maximum is in practice becoming the norm, and the proposed safeguards are not working effectively, then the basic time limit should be reduced accordingly.

95. As to the second objection, that the period specified may be too short for some cases, our answer is the recommendation that the period may be extended by court order in appropriate circumstances. Proceeding on the basis of statements made to us by police officers in our public sittings, it would seem that only in extremely rare cases of a very serious kind would as many as twelve hours or more of custodial investigation be involved. The proposal is for:

(a) an initial extension of the specified period up to a maximum of eight hours, by order of a magistrate after hearing police and any representations from the accused or his legal representative; and (b) any further extension to be made only by order of a Federal, Territorial or State

Supreme Court judge. These extension procedures are seen as a fail-safe mechanism, as it were, rather than as measures which would need, or be likely, to be employed very often. The good sense of magistrates and judges can be relied upon to secure this result.

96. The obligation we propose for police officers is to, within a maximum of four hours, either take the alleged offender before a justice or magistrate or, if a justice or magistrate is not reasonably available, make a decision as to the granting of police bail. The rules proposed to govern the granting of police bail are treated in Part 6 of this report, together with procedures for an immediate appeal—by telephone if necessary—from a refusal of police

bail. The question now arises, however, as to what is the obligation of the police officer with respect to the question of duration of custody, if police bail is refused and either an appeal is not pursued or a telephone appeal is rejected. His obligation, clearly, is still to take the person before a justice or magistrate to be dealt with according to law, and to do so as soon as such a justice or magistrate is physically available. The Commission considered various alternative formulae to govern this situation—‘as soon as practicable, but in no event longer than forty-eight hours’, ‘within twenty-four hours’ and so on. In the event the Commission has concluded that in this context such precision is not really

Custody and Custodial Investigation / 43

attainable. The particular difficulty here arises from the problem of remoteness in the Northern Territory. There physical movement across large distances is always difficult and slow, and at times, in the wet season, impossible. Accordingly, the obligation should

be expressed simply as one to bring the person before a justice or magistrate as soon as reasonably practicable and in any event no later than the first sitting of the most conveniently located court following arrival at such court after travel thereto by the most

direct possible route. The Commission does not propose the ‘nearest’ court because evidence made it plain that at times the nearest in distance might be inaccessible. This takes account of the Territory’s problems, while at the same time making it clear that in an urban context the delay can be no longer than the next magistrate’s court sitting. This will usually mean the following morning, and hopefully never a period longer than forty-eight

hours. The safeguard for the accused during this period is that he has at least been considered for police bail, and if refused it, has had the opportunity for an appeal. The prisoner should not be questioned or in any other way made to directly participate in police investigative procedures during this period.

97. It does not appear to be necessary to comment in any detail on our various consequential recommendations set out above.140 Clearly provision will be needed to ensure against misuse of power by successive arrests for technically different offences. As to the calcula­ tion of the four-hour period, it is clearly necessary that exemptions be allowed for travel time, and for the time spent in the arrested person’s own interests, tracing his relatives, friends and lawyer, waiting for the lawyer to arrive and consulting with him when he

does, and waiting for the arrival, in the case of Aboriginals or children, of a ‘prisoner’s friend’. Time otherwise spent out of the police station, for example on site visits and the like, should be included within the four-hour maximum. Perhaps it will not be taken amiss

if we say that we trust that common sense will prevail in the application of these provisions in the courts, and that justices, magistrates and judges will not require police officers to go about like rally drivers armed with stop-watches and minute-by-minute log books. The time limit we recommend is merely a statutory guide to reasonable conduct. It should be

viewed in that perspective.

98. A proposal was urged-upon the Commission to recommend, as incidental to the present proposals, a police power of ‘citation’ of the kind available in some United States jurisdictions.141 This procedure involves the police officer serving a notice upon a person—analogous in some ways to a court summons—which obliges him to attend at a

police station at a given time for questioning, identification procedures, medical examination and the like. Such a power would only be available in respect of a person who had, or could have, been arrested. The object of its exercise would be to enable the police to disaggregate the four hours at their disposal in order to use that time more efficiently.

For example, time may be needed to gather witnesses for an identification parade, or to check an alibi as a prerequisite for further questioning, and also to enable arrangements of mutual convenience to be made with amenable suspects. Although attractive in theory, the proposal was thought by those policemen whom the Commission consulted on the

question to be impractical and unnecessary. Their argument, in a nutshell, was that the kind of accused for whom the procedure was designed would be the kind of accused for whom anything so formal would be unnecessary. Follow-up investigations are conducted at the moment, apparently without any real difficulties either in principle or practice. It

would be as well to provide, however, that no such follow-up procedures should take place without either the written consent of the person or a court order.

UD Para. 89. 1,1 See Note, ‘Detention to obtain Physical Evidence without Probable Cause: Proposed Rule 41.1 of the Federal Rules of Criminal Procedure' (1972) 72 Columbia L.R.. 712 at p. 713. n.5.

44 / Criminal Investigation

NOTIFICATION OF RIGHTS

99. It should not be necessary to argue that if a person has rights he should be made aware of them. Whether, once informed, he has the will, the wit or the wisdom to take advantage of them is probably something no criminal justice system can completely ensure.142 Perhaps it should not try. But no criminal justice system deserves respect if its wheels are turned by ignorance. Any system which pays lip-service to the existence of rights yet does nothing to ensure that they are known and understood—and indeed which may depend on their not being understood—is a system that discriminates against the weak, the unintelligent and the uncomprehending in favour of the strong-willed, the smart and the linguistically competent. Or, as one writer has put it143, ‘if warnings need not be given, the intelligent

are favoured over the ignorant, the rich over the poor, the habitual offender, who has learnt his rights from experience, over the (possibly innocent) first offender’. There may well be argument about the social utility of conferring particular rights, and the Commission takes these arguments into account in discussing particular rights in the paragraphs which follow. But there can be little argument about the injustice involved in capriciously determining who shall enjoy them by criteria which have nothing to do with

merit, need, desert or any other factor which could conceivably be relevant.

100. The Commission accordingly recommends that the proposed legislation should be absolutely explicit in its requirement that persons in custody be notified of their rights before any questioning or other form of investigative procedure involving their participation commences. They should be informed of the fact that they are in custody, why they are in custody, and what their rights are, in the first place in respect to the answering of questions, access to friends and relatives, and access to a lawyer,144 and subsequently, if the occasions arise, in relation to identification parades, bail and the like. That information must be communicated in a language which the person can understand. Preferably it should be communicated both orally and in writing, but at the very least in

writing. It should not be impossible to ensure the availability in every police station of appropriate translations, in a full range of languages, of the relevant basic information. The problem of the illiterate tribal Aboriginal in the Northern Territory we treat in Part 9. It may not be possible to take account in this way of everyone’s problems but certainly a far greater effort can be made than hitherto. The possibility of an exotic exception—say an illiterate Finn in Nhulunbuy—should not be enough to defeat the system proposed. In the application of the exclusionary rule, a court could be expected to give due weight to the uncertain status of evidence obtained from such a person. Nor is it likely that disciplinary action against the incommunicative policeman would be aggressively pursued, or if pursued, that it would be successful.

101. We draw particular attention to the desirability of the police officer advising the person that he is in fact in custody. The Victorian Chief Justice’s Committee put it well, referring to certain police powers only exercisable when a person is ‘in lawful custody for an offence':145

142 One recent study of the effect of the M iranda warning in the United States discovered that 60% of those suspects who waived their rights thought that the document had no legal effect: L. S. Leiken, 'Police Interrogation in Colorado: The Implementation o f M iranda’ (1970) 47 Denver L.JA.

143 J. D. Heydon 'Police Powers and the Trial of the Accused: Some M odern Attitudes’ (A.N.U. History of Ideas Seminar paper, August 1975), subsequently referred to as Heydon, ‘Police Powers’.

144 The report of the International Commission o f Jurists on “ The Right of Arrested Persons to Communicate" concluded that the rule o f law required as minimum principles for arrested persons (1) a right to communicate orally with a lawyer (2) as soon as practicable, and (3) cast a duty on the police to inform him of this right without delay: (1964) Journal o f the l.C.J. 85.

145 Victorian Chief Justice’s Committee Report, para. 16.

Custody and Custodial Investigation j 45

It follows that if this condition is not satisfied the person is entitled to resist being searched, medically examined, fingerprinted and so on. It is accordingly important—in the interests of both suspect and police—that at all stages of police action with respect to a suspect both the police and the suspect should be precisely aware of their respective rights. The possibility of misunderstanding as to whether the ‘lawful custody’ condition has been satisfied, or at least as to whether it is being relied upon, should so

far as possible be excluded. There will of course be little room for misunderstanding in the context of an actual arrest (where, it may again be noticed, police are obliged to specify the offence for which the person is being taken into custody: Christie v. Leachinsky [1947] A C. 573), and even less after a formal charge has been laid. But, as

appears from the discussion in the preceding paragraphs, there is at least one situation which may give rise to uncertainty. This is the situation which arises at the stage of their inquiries with respect to a person hitherto voluntarily co-operating or in de facto custody when the police develop reasonable grounds for suspecting that he has committed an offence. It is at this point that what may hitherto have been an unlawful custody situation becomes one of lawful custody—and it is accordingly only at this point that, in the subcommittee’s view, the proposed powers should become exercisable. The difficulty lies in determining when this point has been reached. It is analogous to the difficulty which arises, in the context of interrogation, as to when a

policeman has ‘made up his mind to charge a person with a crime’ (at which stage the Chief Commissioner’s Standing Orders, 0.634, require a caution to be administered). In the subcommittee’s opinion, all such difficulties may be avoided by obliging the police, before they exercise any of the powers conferred by the proposed section, to

specifically state to the suspect that he is in custody for a particular offence and that they propose to act in reliance on the authority conferred upon them . . . . It is felt that this would not only clarify the suspect’s position at the time of the investigation, but would aid the efficient conduct of any subsequent voir dire.

102. Even if the prisoner is informed of his rights, he is not in a strong position to complain of their denial, or subsequently enforce them, if he does not know about whom he should complain. As part of the process of advising a person of his rights, therefore, the police officer should identify himself, perhaps even, if he is a plain clothes officer, by handing a

name-card to the person. This is part of the larger question of police identification generally, a question which has been much discussed in this country especially in the context of allegations of excessively robust law enforcement activity at demonstrations. Here we simply add our voices to those who have urged, hitherto without success, that

uniformed police officers be required to wear, in a conspicuous position, a permanently attached badge or label of easily legible size recording the name or number of the officer in question. We cannot see that such self-advertisement could be construed in any way as undignified. It is to be noted that it has recently been introduced in the Australian Defence

Forces.

ACCESS TO FRIENDS AND RELATIVES

103. Some psychological advantage is doubtless obtained by a police investigator keeping the suspect isolated from any contact from the outside world. This justification is clearly insufficient, in the Commission's view, to deny a person in custody- -who is still, let it not be forgotten, presumed by our law innocent until proved guilty—the opportunity to communicate with at least one friend or relative in order to explain his position and make

any necessary arrangements. In the great majority of cases the proper administration of justice will not in any way be hampered by allowing such communication. Nor will it be

46 j Criminal Investigation

hindered by allowing it to be made directly, in the first instance, by the person himself using the telephone. There will, however, be cases where the right of communication should be limited because of a well-founded police belief that such communication will result in the tipping off of an accomplice, who may himself escape or arrange for the disappearance, destruction or fabrication of evidence. Accordingly, the right of access

should be limited to the extent necessary to avert these consequences which, on reasonable grounds, are anticipated. Generally speaking, Australian police practice seems to accord reasonably well with these principles. However the Commission sees some advantages in ensuring their enforcement by including them in the proposed legislation.

NOTIFICATION OF WHEREABOUTS

104. An associated problem which has caused considerable distress in the past has been the absence in most jurisdictions of any formal obligation upon police to answer inquiries from friends, relatives and legal representatives as to the location, and status, of a person being held in custody. In the majority of cases such inquiries do in fact appear to be answered, and answered accurately and politely. There are nonetheless occasions—particularly in the context of investigations of serious crime—when for one reason or another such inquiries are frustrated. The Commission believes that it should be mandatory for the police to answer such inquiries promptly and accurately, provided of course they are satisfied as to the bona tides of the inquirer. In order to enable such

information to be given, there should be an obligation upon any police officer making an arrest or otherwise detaining a person in custody to report that fact immediately to a prescribed central point, normally police headquarters in the capital city or regional centre in question. Further, such officer should report any subsequent movements—site visits, transport to another police station, to a remand centre or a court or the like—to such central point. Although on the face of it this is an elaborate mechanism, the Commission believes that it is a necessary one. We further believe, after taking advice from our police consultants on the point, that it is unnecessary to hedge such a provision with a qualification of the kind contained in the previous paragraph, viz. that such information not be given when there is reason to believe that the person in custody has in fact been arrested. In such a case any dangers which might be thought to flow from that knowledge or suspicion will be likely to have already occurred. The occasional case where this might not be so is not enough, in the Commission’s view, to weigh against the advantages involved in a universal, almost routine, information system of this kind.

ACCESS TO COUNSEL

105. The right to consult with a lawyer during the course of pre-trial police investigations is one of those traditionally claimed civil rights to which almost universal obeisance is paid in principle, but which is greeted with very great circumspection in practice by law enforcement authorities. The ‘right’ has no constitutional or statutory backing in Australia. It cannot be said to have more than the most marginal support from the common law.146 This is to be contrasted with the situation in the United States. There,

building on the already recognised entitlement of every person accused of a crime to have a lawyer at trial,147 the Supreme Court of the United States has declared, first in Escobedo

146 For such authority as there is, see R. v. Dugan (1970) 92 W.N. (N.S.W.) 767 (C.C.A.) per Manning J. A. and Taylor J.; M. W. Doyle, ‘Access to a Solicitor after A rrest’ [1974] New Zealand L.J. 420; and ‘Solicitors at the Police Station' [1975] Crim. L.R. 189.

14~ Gideon v. Wainwright (1963) 372 U.S. 335.

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v. Illinois (1964)148 and later in Miranda v. Arizona (1966)149 that the Fifth and Sixth Amendment constitutional rights to the assistance of counsel and to be free from compulsion to be a witness against oneself require the accused (a) to be warned that he has a right to remain silent, (b) to be warned that he has the right to the presence of an

attorney, and (c) to be told that if he does not know or cannot afford an attorney, one will be appointed for him.

106. Australian police practice varies somewhat between the various jurisdictions. A typical Police Commissioner’s directive is the Victorian Chief Commissioner’s Standing Order 643, which has recently been the subject of some controversy150 within the profession:

A solicitor or his clerk should be allowed to communicate with a prisoner in custody at a police station. Facilities, as far as practicable, should be given to ensure that the communication should not be overheard by anyone, but care must be taken that the person does not escape, and, if necessary, a member of the Force may keep the person

in sight during the interview.151 However, a more accurate reflection of reality, and of police attitudes often expressed to us, appears to be found in the provision in the 1964 revision of the English Judges’ Rules:

Every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the process of investigation or the administration of justice by his doing so . . .152 Given the present state of the law and practice in relation to access it appears clear to the Commission that it is necessary, if a right to counsel is to be recognised and enforced, that such a right should be given statutory backing.

107. The question, then, is to what extent the right to counsel during custody should be recognised in the legislation. The most controversial context in which this question has been argued out is in respect to questioning and the suspect’s right to silence. It has been argued by many—and not only policemen—that to confer both an enforceable right to

silence and an enforceable right to counsel upon an accused person would be rather too much of a good thing, and would serve only to frustrate the legitimate and necessary tasks of law enforcement. As to the right to silence the Commission will spell out, in Part 5, its reasons for recommending the retention of that right, notwithstanding the cogent

arguments that have been advanced for its diminution. Suffice it to say here that the most basic reason is that any such diminution would undermine one of the most fundamental tenets of the present criminal justice system. For better or worse, this is the principle that it is for the prosecution to establish guilt. It is not for the defence to prove innocence or

indeed anything. Policemen are investigators, not inquisitors. The argument that the accused should not be given the extra benefit of a lawyer, because lawyers invariably tell their clients to remain silent and this hinders the proper administration of justice, leaves the Commission unmoved. In the first place, we do not believe that lawyers appreciative of the best interests of their clients will always advise them to remain silent. Secondly, even if lawyers did usually so advise, alerting clients to their right to silence and confirming their

148 378 U.S. 478. For the evidence as to the effect of Escobedo and Miranda, see note 242 below.

148 384 U.S. 436. 150 For an exchange of correspondence between the Law Institute and the Chief Commissioner, and a resulting set of guidelines for practitioners, see [1974] Law Inst. J. (Vic.) 207-8, 255. 370-3.

m cf. also Victoria Police Chief Commissioner's Standing Order 644.

152 Emphasis added. Strong views on this subject were expressed in a written submission to the Commission from Mr R. M. Tremethick (Australian Federation of Police Associations and Unions). 7 August 1975.

48 j Criminal Investigation

resolve in this respect, this would have no greater effect than to put the recipients of such advice in the same position as other persons in custody, more strong-willed and better informed, who will insist on their rights without the benefit of such advice. There can be

no respect for a system of justice which pays lip-service to certain rights and then either does nothing to ensure that they are enforced or, perhaps worse, ensures that they will be enforced unequally. If it is felt that the right to silence will, if enforced in practice, have unacceptable results, then the rule to attack is the right to silence, not the right to a lawyer.

108. There are, of course, other reasons, quite apart from advice of the right to silence, for wanting a lawyer or his clerk to be present during custodial investigation. The lawyer has a role to play in advising his client as to his options in relation to identification parades, fingerprints, photographs, medical examinations and the like. He can represent his client in opposing police applications for the extension of custodial time. Even more important, he can represent his client in the application for police bail and any appeal, by telephone or otherwise, which may follow it. The very presence of counsel is an important guarantee of general fair treatment for the suspect. That is not so much because of his possible later role as a witness able to testify to improper practice, which may well be thought to sit uneasily with his primary role as an advocate153, but rather as a matter of prevention. Nor

ought we to underestimate the important role played by the legal profession as a psychological prop to a citizen caught up, especially for the first time, in the frightening circumstances of police restraint.

109. We do not advocate that a suspect’s lawyer should have a free hand completely to hinder and disrupt the normal course of police investigation. He should be entitled to consult with and advise his client, in private, before any investigative procedures begin. During the course of any questioning he should be entitled to answer any question put to him by his client. Except perhaps in the event of some gross and manifest breach of the rules, he should not be entitled to intervene unilaterally at any stage. His role in the pre-trial stage is to alert the suspect to his rights and to the consequences of various courses of action, and to help plan the proper defence strategy in the circumstances, not to fight the battle. Similarly, he should not be able to hinder the course of investigation by unduly delaying his arrival at the police station, freezing police activity in the meanwhile. The legislation should provide that police not be required to wait more than two hours for the lawyer’s arrival before commencing the questioning or other procedures. This time limit is obviously unrealistically short for some remote areas. However it was felt that this was one context where that consequence could not be avoided. The realities of available legal representation in the Northern Territory are beyond the powers of realistic legislation to cure in every respect. The provision should be framed in such a way as to make it clear that a longer period may transpire by mutual consent. It is to be hoped that in the investigation at least of serious crimes, the police will allow as much time for the arrival of the lawyer as is reasonably possible in the circumstances, if one is requested by the accused.

110. Provision must obviously be made to ensure that a suspect’s right to a lawyer is exercisable in practice. This will mean that the suspect who does not have or know of a particular lawyer, or whose usual lawyer is unavailable or cannot be contacted, must be given the opportunity to find another. Accordingly a list should be prepared, and handed to the suspect at the time of the original notification of his rights154, detailing those

practitioners in the area who have indicated their willingness to assist and represent such persons in custody. The suspect should be permitted if he wishes to do so to choose a name therefrom. Such a list should obviously be drawn in consultation with the appropriate

153 cf. R. v. Secretary o f State for India [1941] 2 K.B. 169.

154 See paras 99-100.

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practitioners’ organisation in order to avoid any ethical difficulties. It would contain, as a matter of course, the appropriate Australian Legal Aid Office155 and Aboriginal Legal Service156, along with any local Law Society scheme contact point or neighbourhood legal advice centre. Provision should obviously be made for the person who is unable to afford a lawyer. It was not pressed upon us that we should go so far as to make it a statutory obligation for Australia to provide an indigent suspect in police custody with a lawyer in all cases. Quite apart from questions of principle, it was felt that the resources of the community in terms of manpower, if not money, would not stretch so far. While accepting this view, the Commission was clearly of the opinion that every effort should be made in practice to ensure that legal assistance is available when requested, irrespective of the lack of means of the person requesting it. It is intolerable that the just presentation of the accused’s case, indeed his prospects of liberty, should depend, or be seen to depend, on his wealth.

It is not within the present terms of reference to make any detailed analysis of the legal resources of the community and the various possible sources of legal advice and assistance. The Commission favours the use of all available means to deliver legal services to those that need them, and makes no distinctions for present purposes as to the relative worth of the Australian Legal Aid Office (A.L.A.O.), the existing Law Society schemes,

specialised government-funded schemes such as the Aboriginal Legal Services, and the independently organised voluntary neighbourhood advice centres which have multiplied in Australia in recent years. The Commission’s proposals for pre-trial representation appear to be within the community’s resources even on the basis (unlikely in the extreme) that the A.L.A.O. alone were to be the source of this representation. A calculation based

on the most unfavourable assumptions about costing produces a rough working figure of about $616 000 as the maximum cost to the community each year for providing, through the A.L.A.O. alone, a legal aid service for suspects of the kind described.157 This is to be compared with the total A.L.A.O. appropriation for 1975-76 of $12.7 million, and the

total budget appropriation for 1975-76 of $2269 million. The rough figure stated is useful perhaps only insofar as it puts the maximum cost in perspective, and provides some concrete foundation at least for arguments and counter-arguments about scarce resources and competing social utilities which otherwise tend to proceed in a totally fact-free

vacuum. The Commission believes that in fact the actual cost of this proposal would be far more modest. In the Commission’s view the magnitude of the outlay that would be involved is not, in all the circumstances, excessively large, especially when measured against the social utility that would be achieved by the implementation of this scheme.

155 As at 31 July 1975 there were 29 A.L.A.O. offices in existence employing a total o il 17 solicitors. There is one office in the A.C.T. employing five solicitors, and two in the Northern Territory also employing a total of five.

156 On the Aboriginal Legal Services, see para. 256.

157 During the three months from M arch to May 1975 there was a total of 842 arrests in the A .C.T.. 1126 in the Northern Territory, and 429 by the former Commonwealth Police in all States combined. This indicates average weekly totals of 64, 86 and 33 respectively. Roughly 45” „ of these arrests took place outside normal office hours. (This figure is inflated by a 76"„ arrest rate outside office hours in the A.C.T.). Let us make the.

most unlikely, assumption that all those persons arrested (including Aboriginals, who are presently serviced by the Aboriginal Legal Services) both want an A.L.A.O. lawyer and are entitled, on the basis of the liberal means test employed by that office, to get one. Although very many cases could be expected to be handled by the salaried A.L.A.O. lawyers themselves on roster duty, let it further be assumed that 75"„ of the work, both

inside and outside office hours, will be briefed out to private practitioners. It would be realistic to suppose that the average length of time attending a client in custody would be one hour inside normal office hours and (allowing for extra travel time) two hours outside those hours. Finally, let it be assumed, not unrealistically at the time of writing, that the marginal cost per case for the A.L.A.O. when acting only through its ow n

lawyers would be $20 per hour both inside and outside hours, and when acting through other practitioners would be $40 per hour inside and $60 per hour outside hours. The total so arrived at is S615 880.

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FINGERPRINTS AND PHOTOGRAPHS

112. Taking Records. Fingerprints and photographs, and to a lesser extent records such as handwriting samples, voice-prints and palm-, foot- and toe-prints, are particularly useful, and commonly used, methods of police identification. The police interest in being able to take and use prints, photographs and samples takes a variety of forms. This interest includes the following: (a) to identify—or exculpate—the person as the offender in the instant case; (b) to have such information available to assist in the identification of those responsible

for future offences; (c) to have definite means of identification to confirm the prior record of guilty offenders awaiting sentence, or perhaps persons seeking bail; (d) to be able on occasions to make ‘windfall’ identifications of persons caught for some

minor offence, but wanted elsewhere for a major one; and (e) to use such methods, especially photographs, to record evidence—e.g. of injuries—for use at trial.158 The extent of the power to take fingerprints and the like varies from jurisdiction to jurisdiction, but is nowhere unlimited, or even particularly extensive.159 The common law

confers no such comprehensive power,160 and most of the statutory provisions, where they exist, confine the particulars which may be taken to those deemed necessary for the identification of a person in custody. In Sernack v. McTavish,161 Fox J. held that in one such statutory provision, applicable in the A.C.T.,162 ‘necessary’ for identification meant just that, and it was not sufficient that fingerprinting was merely thought desirable.

113. The Commission takes the view that the power to take prints, photographs and samples should not be absolute. As the Victorian Chief Justice’s Committee put it:163 ‘There is a certain embarrassment and indignity involved in these procedures, to which a person . . . should not be exposed unless there is some overriding necessity’. There is, for better or worse, an aura of real criminality about having one’s fingerprints or photograph compulsorily taken.164 There have also been suggestions made to the Commission that the actual or claimed power to fingerprint has been used from time to time, particularly in the context of arrests following demonstrations, as a means of harassing and delaying the release of arrested offenders in circumstances where the identification of the offender has not in any way been in issue. Bearing these considerations in mind, the Commission's

158 See e.g. R. v. Ireland(1970) 126 C.L.R. 321 and R. v. Hass [1972] 1 N.S.W .L.R. 589.

159 For a review of the various State provisions, and a discussion of the whole question on which much of the present argument is based, see Victorian Chief Justice's Committee Report, paras 39-50.

160 As to photographs, see R. v. Ireland (1970) 126 C.L.R. 321 per Barwick C. J. at p. 334.

161 (1970) 15 F.L.R. 381.

162 Viz. Crimes Act, 1900 (N.S.W.), s. 353A(3).

163 Victorian Chief Justice’s Committee Report, para. 46.

164 This is, apparently, a particular traum a for Italians. 'In Italy only those who have committed an extremely serious crime are fingerprinted and those who have been fingerprinted are likely to be under continual police surveillance. So an Italian, particularly if he can speak little English and does not know what he is being charged with, is likely to become very difficult when confronted with the need to be fingerprinted. A Sydney solicitor reports a case where he was acting for the m other o f a 14-year-old Italian boy charged with a minor

offence. The mother was quite calm until the police started to fingerprint the boy and then she became hysterical. The same solicitor said he knew of two cases where migrants had returned to Italy, giving as the reason the fact that they had been fingerprinted here.' A. Jakuvowicz & B. Buckley, 'Migrants and the Legal System: A Report to the Law and Poverty Section of the Australian Commission of Inquiry into Poverty' (for publication 1975), Part 4 Migrants ά the Police, Cultural Differences.

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recommendation is that the power to take fingerprints and the like from a person in lawful custody should be limited to situations where such print, photograph or sample is reasonably believed to be necessary for the identification of the person with respect to, or for affording evidence as to, the commission of the offence for which he is in custody. We do not, it is to be noted, suggest any limitation on powers which may exist in relation to

the taking of such particulars after conviction.

114. It may be that this recommendation will exclude the possibility in some cases of prior convictions being conclusively checked before a police bail decision is made. However, the Commission was informed by a number of police officers that it was not usual practice in any event to exhaustively check antecedents before a police bail decision was made. The

suggested provision will also on its face exclude the possibility of ‘windfall’ captures, as described above. However this possibility is also of course lost whenever a matter is proceeded with by way of summons. The removal of an automatic power to fingerprint

following arrest will remove one further practical rationale for proceeding by way of arrest rather than by summons. As such it is consistent with the Commission’s general policy, espoused above, concerning the respective merits of arrest and summons procedures.

115. It is not the Commission’s wish to unduly or unreasonably hinder police investigative powers by these proposals. It may be that there exist situations, other than those immediately covered by the recommended rule, where the power to obtain fingerprints and the like should be available. Examples mentioned are where a person is in custody for

a particular housebreaking offence, and the police think that he may be responsible for other such offences for which fingerprints would offer proof, or where police have a suspicion that a person arrested for some minor charge might conceivably be a person wanted elsewhere for a major crime. Again following the reasoning of the Victorian

Committee, we recommend that these problems be met by an additional provision comparable to the terms of the English Magistrates’ Court Act 1952, s.40. This enables an application to be made to a magistrate by a senior police officer for an order permitting prints, photographs or handwriting samples to be obtained from a person who is in

custody if the magistrate so thinks fit. It should be pointed out that in England it is only by such an order that fingerprinting can ever be done at all prior to conviction. We see no reason why such orders should not also be available against persons who have been charged and released, or who have been proceeded against by way of summons. This would tend to remove one incentive police might otherwise have for taking persons into

custody. We further recommend that applications should be able to be made by telephone if personal attendance is impracticable in the circumstances.

116. Destruction o f Records. The taking of photographs and fingerprints involves, as we have said, a degree of embarrassment and indignity. So too does the retention in police records of such information. In the case of an innocent person, the very knowledge that such information is so stored may be a source of anguish and discomfort. That discomfort may

be particularly well founded in the case of photographs. As the Victorian Committee pointed out,165 one can easily envisage situations where the presence of one's photograph in a police ‘rogue’s gallery’, open to the inspection of lay victims and witnesses as well as policemen, might be damaging to one’s reputation. Fingerprints, voice-prints and the like

are less obviously a potential source of embarrassment. The objection in principle to their retention still holds, based on the privacy claim that individuals should have control, so far as is possible, over the information which is stored and disseminated about them. Again the Commission is inclined to agree with the Victorian Committee that some of

165 Victorian Chief Justice’s Committee Report, para. 46.

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these objections would not have the same force in principle if fingerprints, photographs and other such data were universally rather than selectively collected. Such a situation is not yet the case and may never be so. The Commission’s solution to the problem is one which has been propounded many times before, by for example the Victorian Committee,166 the South Australian Committee167 and the Criminal Law Review.168 It involves the requirement that prints, photographs and samples taken in connection with an alleged offence should be destroyed whenever the matter is not proceeded with or when, the person in question is acquitted. This would not apply in the case of previous conviction or in the special situation in which the court finds a charge proved but does not record a conviction. In such circumstances, as in the event of a conviction, it is quite proper that the records be kept for reference. Further, as many persons making submissions to the Commission expressed themselves concerned about the keeping of copies of prints, photographs and samples the destruction of which is required, it is appropriate to create an offence in this regard.

IDENTIFICATION PARADES

117. Present Practice. Identification parades, or ‘line-ups’, are an integral part of police investigation techniques and commonly employed when the police wish to check the identity of a suspect held in custody with witnesses to a crime. Present Australian police practice with respect to identification parades is governed by Police Commissioners’

Standing Orders rather than legislative provision.169 Such standing orders govern the fairness with which parades are conducted with a greater or lesser degree of thoroughness. It is the Commission’s view that identification evidence is so important, and so subject to mistakes, that the conduct of identification parades ought to at least in some respects be governed by the proposed legislation.

118. The Problems. There is considerable evidence now accumulated as to the unreliability of identification parades, and an English committee under the chairmanship of Lord Devlin is presently making a thorough investigation of the whole question.170 A memorandum to the committee from the National Council for Civil Liberties171 lists fifteen cases over a period of two years in which there was either admitted or strong evidence of persons convicted or remanded as a result of mistaken identification by witnesses. The Criminal

Law Revision Committee, in its Eleventh Report172, said that it regarded mistaken identification as ‘by far the greatest cause of actual or possible wrong convictions’. One of the most notorious English cases was that of Alfred Beck, who was picked out in identification parades by twelve women, served seven years, and was released. As the offences continued he was again picked out by four women, was convicted and was awaiting sentence when the real villain was finally apprehended. Another notorious case was that of Oscar Slater, who served eighteen years for murder owing to wrong

166 ibid., para. 49.

167 South Australian Committee, pp. 134-6.

168 Editorial, [1974] Crim. L.R. 275.

169 Seee.g. Commonwealth Police General Order 33, A.C.T. Police General Order 61, Victoria Police Standing Order 651.

170 The Committee was established by the Home Secretary in response to the controversial Virag and Dougherty cases; see W. Birtles, ‘The Failure of Identification Procedures', New Law Journal, 19 December 1974, p. 1174.

171 ‘Identification Parades and Procedures' (Mimeo.), N.C.C.L. 1974.

172 English Criminal Law Revision Committee, Eleventh Report, ‘Evidence (General)', Cmnd. 4991/1974. paras 196-203, subsequently referred to as the ‘Eleventh R eport’.

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identification173. The record of these mistakes makes sorry reading for all those concerned about the integrity and efficiency of our system of criminal justice.

119. Judicial Warning. The fairness with which identification parades are conducted is present­ ly controlled by the courts though the exercise of their discretion to exclude evidence unfairly obtained, and occasionally by the exercise by appellate courts of a power to quash conviction when no sufficient warning has been given to the jury in relation to the

acceptance of identification evidence.174 As to the latter, the Commission recommends that the position be formalised by a statutory requirement that a warning be given by the judge at the trial of a case against the accused'where it turns wholly or substantially on the correctness of one or more identifications of the accused. In such a case, where the defence

alleges the identification to be mistaken, the court should warn the jury in general terms of the special need for caution before identification.175 This recommendation is not confined to identification merely at identification parades, but extends to photographic and other forms of identification dealt with further below.

120. General Fairness Clause. The successful operation of the discretionary rule for the exclu­ sion of evidence requires, in the Commission’s opinion, explicit statutory guidance to be provided. Accordingly several recommendations are called for as to rules for the conduct of identification parades. The first is the need for a general clause requiring fairness in the conduct of identification parades. A question arises as to how detailed such a provision

should be. One approach would require quite a lengthy list of rules specifying similarity as to height, weight, complexion and so on in those lined up, and to ensure that nothing was done to otherwise draw the witness’s attention to the person suspected. But not only is this legislative exercise a cumbersome one, there is also the danger pointed to in the report of the Victorian Committee176 that the list of criteria so drawn will not be exhaustive. On balance, the Commission thinks it preferable simply to signpost the necessity to exercise a

discretion, and to confine specific legislative provisions to those which allow the defence a real opportunity to test the question of fairness. It may be appropriate in due course to re­ examine the existing Standing Order instructions and to formulate a new set of detailed police regulations on this subject, but such an exercise is not here attempted.

121. Photograph o f Parade. So far as procedures for testing fairness are concerned, the Commission’s main recommendation is that identification parades should be photo­ graphed. The proposal now has an impressive array of supporters, including Read,177 Williams and Hammelmann,178 the Victorian Committee179 (which regards video-tape or

movie camera records as preferable, but photographs as 'better than nothing") and the Lord Chief Justice of England.180 The South Australian Committee181 believed that a photographic record might deter members of the public from volunteering to take part in a parade, as they might think themselves likely later to be mistakenly regarded as having

173 These and other examples were referred to by Glanville Williams in The Proof o f Guilt (3rd ed.. 1963). pp. 110-14. 174 See Craig v. R. (1933) 49 C.L.R. 429. at pp. 448-50. R. v. Preston [1961] V.R. 761. R. Boanlman [1969] V.R. 151; but cf. R. v. Chapman (1969) 91 W.N. (N.S.W.) 61.

175 This follows the recommendation of the Eleventh Report, para. 191 and Draft Bill. cl. 21.

176 Victorian Chief Justice’s Committee Report, para. 36.

177 F. T. Read, ‘Lawyers at Line-Ups: Constitutional Necessity or Avoidable Extravagance’ (1969) 17 U.C.L.A.L.R. 339, 392. 178 Glanville Williams and H. A. Hammelman. "Identification Parades' [1963] Crim. L.R. 479. 545.

I7'' Victorian Chief Justice’s Committee Report, para. 37.

1811 Editorial [1974] Crim. L.R. 681.

181 South Australian Committee Report, pp. 78-81. .

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committed a serious crime. The South Australian Committee preferred a requirement that the names and addresses of participants be taken in order that they could be required later to attend at court as witnesses. After hearing submissions from policemen and civil liberties organisations on this question the Commission takes the view that, although it would be desirable to record the names and addresses of participants if they consented, such a procedure, as a mandatory requirement, would be a greater disincentive to voluntary participation in parades than would the likelihood of appearing in a photo­

graph. The photograph would, after all, be available only to those involved in a later court trial. The Commission concludes that the obvious advantages for the admini­ stration of justice in the keeping of the photographic record outweigh the hypothetical disadvantages.

122. The Commission agrees with the Victorian Committee that a moving-camera or video­ taped record would be preferable, particularly if it recorded sound as well as movement, and such a record in colour even more so. This view is taken consistently with the theme, appearing elsewhere in the report, that the time has come to recognise in the statute book the significant technological advances of the times. It is appreciated, however, that

considerations of cost and technical difficulty are unlikely to make either of these alternatives a practical proposition in the short run. Accordingly the Commission contents itself for the moment with recommending that a still photograph, preferably in colour, be taken, and that a copy of such photograph be given as soon as practicable to the accused or his legal representative. We do not regard a requirement that photographs be taken in all cases as being beyond the resources of the Australian Treasury or the expertise of members of the Australian Police. The expense would be small. The availability of a photograph could put at rest many arguments at the trial. Those who still doubt the necessity of dealing with this problem by the best available means should read the

chronicle of injustice caused by inaccurate identification referred to above.182

123. Records and Prior Description. The Commission further recommends that a detailed documentary record should be kept of all parades, whether or not they are ‘successful’, and of all words spoken or gestures made by the witnesses. The accused is entitled to a record of the witness’s doubts on this occasion, as a witness’s recollection (if such it be)

will be permanently reinforced by the parade. Further, part of the record of the parade should be a written description by the witness of the person his is seeking to identify before he views the parade. If his recollection prior to the parade is of a short, fat, blond man then clearly his identification of a tall, dark, lean one at the parade will be less than persuasive. The defence ought to be able to place before the jury the arguments that inevitably arise from such discrepancies. The point still holds in less extreme cases. All efforts must be

made to overcome the suggestion that lay witnesses may derive from a line-up, namely that the police have got their man and that the witness’s job is to pick him out, which suggestion may well lead them to pick the person most like the person they recall and unconsciously explain away any discrepancies. The careless use by police of words such as ‘Which of them is the one?’ rather than ‘Do you see the man here today?' will of course reinforce this tendency. The requirement of a prior written description was supported by both the South Australian Committee183 and the English Criminal Law Revision Committee.184 The records referred to in this paragraph should be kept and made available to the accused or his legal representative, if desired, before the hearing of any charge.

182 Para. 118.

183 South Australian Committee Report pp. 78-81.

184 Eleventh Report, para. 200.

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124. Presence o f Lawyer. The question as to whether a suspect’s lawyer should be entitled or required to be present at identification parades has been the subject of some controversy.185 Although we agree with the South Australian Committee186 that ‘the accused’s solicitor or counsel should not be put into the position of a witness either for or

against the police in the matter in which his client is implicated’ we nonetheless take the view that a lawyer should be entitled to be present to give advice to his client prior to the commencement of a parade, and to act as a source of general reassurance to him during it if the client requires it. The lawyer’s presence should be construed as a preventive device, rather than as a means to assist in the proof of improper practices which have already

occurred. The latter would be incompatible with his role as an advocate.

125. Compulsion. Another controversial question in the literature which it is necessary to deal with is whether identification parades should be compulsory. The common law is somewhat less than clear on the subject. The cases and comment go both ways.187 The point is to some extent an academic one. Unwilling suspects can easily abort the proceedings by drawing attention to themselves. The Commission would not favour any

compulsive power to require participation in identification parades, not only for this reason but also for the reason that the grave risk of misidentification, even with the safeguards recommended herein, makes it unfair to force people in custody to undergo a parade.

IDENTIFICATION BY PHOTOGRAPHS

126. Identification by photograph is most commonly used, and most useful, when the police are seeking a lead to the identity of the person to be apprehended. The problem of identification by photograph is similar to that of identification parades. Evidence suggests that a person shown a photograph will, if there is a likeness, be likely to substitute the image of the photograph for the vaguer image of the person sought to be identified, the latter possibly obtained briefly, under stress and in poor lighting.188 It is therefore essential that similar standards of fairness should apply to the use of identification

photographs as to the conduct of identification parades. The Commission recommends, accordingly, that a general statutory requirement of fairness be established, together with certain procedures which may go to ensure that fairness is in practice observed. Witnesses should record a written description of the person sought to be identified prior to viewing a

photographic display. Further, a full record should be kept—and furnished on request to the accused or his representative—of all photographs shown to witnesses for identification purposes in order that the defence might have the opportunity to reconstruct the identification process in order to test it. It is to be noted that in R. v.

Goode189 the Supreme Court of South Australia commented adversely on the fact that although a witness had been shown eighteen photographs, there 'was no evidence as to how far, if at all, the originals of the other seventeen photographs resembled the applicant’.

185 Read, passim, attacking W ades. United States 388 U.S. 218 (1966).

186 South Australian Committee Report, p. 81.

187 Com pare Adair v. McGarry (1933) S.L.T. 482 at p. 493 per Lord Morison and Dallison v. Caffrey [1965] 1 Q.B. 348 at p. 367 per Lord Denning M.R. with The People t Attorney-Generalj v. Martin [ 1956] l.R. 22 and C. Williams ‘Identification Parades’ in [1955] Cri/n. L.R. 525 at p. 528. ,HH F o ra very good description o f the psychological factors involved in this process see W. Nash (N.C. C.L.) and

B. L. Irving (Tavistock Institute), 'M emorandum of Evidence to the Devlin Committee on Identity Parades and Procedures’ (Oct. 1974).

11,0 [1970] S.A.S.R. 69. .

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127. A further difficulty with the use of photographs in identification is that if the witness subsequently sees in the flesh the person whom he has identified by photograph his subsequent identification will be governed more by the photograph than the original image. Following the decision in R. v. Haslam190 the Commission is of the firm view that the showing of photographs of a suspect to a witness after that suspect has been apprehended should be prohibited. Where a suspect is still at large and unidentified the showing of photographs is unavoidable. But this rationale ceases as soon as he is in custody: identification then, if necessary, should be by parade. The Commission recognises the necessity for an exception to this rule when the person in custody refuses to take part in, or consistently aborts, a parade, or where for some reason—for example a disfiguring injury—he is unable meaningfully and fairly to participate.

128. One further problem with respect to photographic identification requires comment. It has in the past been considered unfair to refer to photographic identifications at trials because juries may conclude that the defendant was known to the police prior to the olfence with which he is charged. In R. V. Wainwright191 a conviction was quashed where evidence was

given of identification from a police album of photographs. In that case the deciding factor was that such evidence should not be given by the prosecution in chief, but only in reply. In R. v. Fannon and Walsh,192 Ferguson J. said ‘it is almost impossible that the jury will not be influenced by the fact—which-they may infer—that the prisoner is known to the police’. An aggravating difficulty here is that a warning not to be so influenced may draw the jury’s attention to something they possibly may not otherwise have noticed. The South Australian Committee193 rejected a proposal that the police should have, in addition to photographs of persons who have been charged and convicted, an equal number of photographs, taken in similar surroundings, of persons who have not been so charged or convicted. The Committee preferred to rely on the less cumbersome method of a trial judge direction (to the effect that the jury should have ‘no interest’ in how the police came to have a photograph of the accused in their possession) where appropriate. This Commission makes no specific recommendation on this vexed question. It is not as troubled as was the South Australian Committee by the difficulty of accumulating a police ‘rogue’s gallery’ comprised of persons other than rogues. We suggest that at least

some attention be devoted to the feasibility of collecting random photographs on the basis indicated, so that jurors can in truth be charged as to the possible neutrality of the fact that the accused’s photograph appeared.

IDENTITY KIT PICTURES

129. The use of identity kit pictures for the purposes of identification raises problems similar to those just mentioned. In R. v. Riley (No. 2) 194 a composite photograph, described as ‘the witness’s selection of a nose, mouth, ears, eyebrows, shape of face, from a number of examples of such features as being the ones best suited to the likeness of the person whom

he saw on the previous occasion’, was admitted into evidence. McLoughlin D. C. J. said:

the Crown is, of course, entitled to make such use of any similarity they may claim exists between the identi-kit photograph and the accused. But it is in my opinion a form of identification of the person seen on the prior occasion and as such is admissible. No 1 0 0

100 (1925) 19 Cr. App. R. 59.

1,1 (1925) 19 Cr. App. R.52.

192 (1922) 22 S.R. (N.S.W.) 427 at pp. 430-1.

193 South Australian Committee Report, pp. 77-8.

194 (1972) 66 Q.J.P.R. 24.

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doubt, at an early stage, the prior identification of the accused by photographs would have seemed as novel a procedure as the identification of the accused by the identi-kit process seems now.

The Commission recommends that, in the same manner as with photographs, no witness should be shown an identity kit picture of the accused after his apprehension, and further that the records of any identity kit identification be provided if required to the defence before any hearing. Because of the additional uncertainties involved in the identity kit

procedure, the Commission further recommends that identity kit identification which results in the apprehension of a suspect should always be followed after apprehension by a personal identification parade or, where that is impossible, at least by a photographic display.

MEDICAL EXAMINATIONS

130. Although most Australian States make provision for involuntary medical examinations, the common law clearly does not require arrested or suspected persons to submit to medical examination without consent.195 The use of physical force, whether by a member of the police force, a medical practitioner or anyone else, to compel a person to submit to examination, or to furnish a sample of his blood, urine or other body sample, would constitute an assault and battery. The Victorian Committee196 recommended that the

stringent common law rule should continue. It expressed concern about the vague limits of the notion of ‘medical examination’, the highly intrusive character of such examinations, the possibilities for abuse inherent in their use if not very carefully circumscribed, and the invidious position in which a medical practitioner might be placed

by being required to carry out such an examination. Conceding that a case might conceivably be made out for allowing compulsory examinations in the context of particular, e.g. drug, offences, it concluded nonetheless that ‘very great legislative caution is proper when countenancing violations of individual integrity of the kind inevitably

involved in compulsory medical examinations, and that no provision in general terms—however hedged about with requirements that the force used by reasonable and so on—is ever likely to be appropriate’.197

131. The Commission agrees with the Victorian Committee to the extent that it regards medical examinations as a highly intrusive form of investigative procedure which ought to be very closely circumscribed. We take the view that the best means of securing this end is to require that no medical examination be undertaken except pursuant to (a) the consent, acknowledged in writing, of the person concerned or (b) a court order from a magistrate

obtained after application, supported by the affidavit of a senior police officer setting out proper reasons. It is envisaged that the procedure for obtaining such orders should, generally speaking, be the same as the recommended for obtaining search warrants, discussed below.198

132. A number of consequential provisions are suggested. We recommend that a medical practitioner should be granted immunity from suit by the person examined to the extent that he acts in accordance with written consent or a court order. Nothing should be taken to derogate from the overriding power of the court to exclude evidence obtained by the

",s E x parte Kearney [1966] Qd. R. 306 at p. 311 per Stable J. ,,>6 Victorian Chief Justice’s Committee Report, paras 29-33. !'n ibid., para. 33. ' >,)S Paras 200 ff.

58 / Criminal Investigation

use of excessive force or inhumane treatment. As with the fingerprint and photographic records discussed above, there should be provision for the destruction of medical records obtained in relation to an offence if the matter is not proceeded with or the person is

acquitted. Again it is apt to consider the way the Victorian Committee put it: ‘a medical examination . .. or an extensive physical search. . . may reveal physical characteristics no less peculiar—and often more personal—to the individual than his fingerprints’. We do not recommend that the special existing law in relation to the breathalyser or blood tests for drivers should be affected by these provisions. These statutory provisions are clearly socially necessary for a particular limited purpose and have acquired a degree of community acceptance.

133: There is a very close overlap between the kind of activity which might constitute personal search incident to arrest, as discussed above,199 and medical examinations. The intention of the Commission is to confine the power of search incident to arrest to light body search of the so-called ‘frisk’ type. The more intrusive searches of the surface of the body, or various cavities thereof, should be carried out only in accordance with provisions governing medical examinations. Obviously it will be difficult in many cases to draw the line between what is a personal search, which can be carried out by a police officer, and what is a medical examination, which in our recommendation can be carried out in the absence of consent only by a medical practitioner pursuant to a court order. The Commission is of the view that a search of the body surface, even if it only for superficial

scratches of bruises, should be construed as a medical examination to the extent that it involves any invasion of the modesty or dignity of the person concerned, as by the shedding of clothes and so on. It is difficult to draw this kind of distinction clearly in statutory terms. Much will clearly depend on the willingness of the courts to draw the appropriate distinctions when practical situations come before them, upon the discipline enforced by senior police officers and upon the response of all officers to the principle advanced here.

FORENSIC ANALYSIS

134. There is an increasing use being made of forensic techniques in Australia Police investigations, involving not only traditional methods such as blood grouping and visual testing of particle samples, but also more modern techniques including neutron activation analysis. The issue of forensic analysis overlaps medical examinations to the extent that the police may seek to require from a person in custody samples of his hair, nail clippings,

skin scrapings, blood, semen or the like. The Commission regards it as proper, because of the intrusive character of such procedures, that in the absence of written consent from the person, they should be undertaken only in pursuance of a court order, in the same manner as medical examinations. The principle against self-incrimination should not govern these procedures (nor indeed medical examinations generally, nor the use of fingerprints, photographs and the like) so as to rule out absolutely the possibility of such evidence

being obtained. The probative value of this kind of evidence is such that it ought to be obtainable and admissible, provided that enforceable safeguards for the accused are built into the system. It would be outside the Commission’s immediate terms of reference to recommend additional safeguards with respect to forensic analysis methods generally.

However we think it appropriate to mention that the time has come to give more systematic attention to the kind of rules which should govern not only the collection of material to be used for forensic analysis, but also its use. In particular, we seem merit in

1OT Paras 58-59.

Custody and Custodial Investigation / 59

suggestions made to us200 that there ought to be a right in the accused to apply to a court for a sample, where practicable, of the material in question in order that he can secure his own expert analysis. Furthermore, copies of any analysts’ reports should be made available immediately upon request by the defence. Considerations of fairness should govern all stages of police pre-trial procedure, including this.

TREATMENT GENERALLY OF PERSONS IN CUSTODY

135. The Commission’s attention is called to the International Covenant on Civil and Political Rights by s.7 of the Law Reform Commission Act 1973. That Covenant provides in Article 7 that ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment’ and in Article 10 that ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’. It is appropriate that these general provisions should be incorporated into any Australian legislation dealing with the rights of persons in custody and the obligations of those detaining them there. Such

general provisions do not, of course, exhaust the need for more explicit rules. Accordingly a number of specific rules are recommended. First, medical treatment should be obtained forthwith for any person in custody who either requests it or reasonably appears

to need it. There is no reason why the cost of such treatment201 should not normally be borne by the person in custody. Secondly, we regard it as axiomatic—but no less necessary in statutory form for that—that persons in custody be provided with reasonable toilet facilities, food and drink. Thirdly, we recommend that persons, if held in custody for

more than four hours, should be given, where reasonably possible, the opportunity to wash or shower, shave and obtain a change of clothes prior to their appearance in court. There is ample evidence now accumulated to show that prospects of acquittal of persons who appear in court directly from custody are substantially less than if they answer a

summons or have been released on bail.202 Although obviously other factors play a role, part at least of the reason for this phenomenon has been thought to be the kind of physical dishevelment—crumpled clothes, unshaven faces, and the like—which is an almost inevitable concomitant of spending a night in the cells in most parts of this country. Such

factors cannot fail but to create a disadvantageous impression. Physical appearance is also, of course, an important morale factor, partly determining the extent to which persons, especially those in a novel situation, can pull themselves together before their court appearance. It might be said that this recommended provision is somewhat unusual

in its specificity about a somewhat undignified subject-matter. However the Commission regards it as no less desirable for that. It seems important, if practical effect is to be given to the Covenant to which the Statute directs our attention, that there should be no shying away from the articulation of practical consequences and explicit legislation.

200 Especially in oral and written submissions from Mr K. V. Borick. Barrister of Adelaide. See Transcript. 14 July 1975, paras 227 f. 201 i.e. in situations where the doctor seeks his fee from the patient rather than directly from the Health Insurance Commission (Medibank).

202 See note 18 above.

5. Questioning and the Right to Silence

PRESENT LAW AND PRACTICE

136. Law. The present law can best be understood by reference to the answers to three questions. First, when can a person be questioned by police? Secondly, does he have to answer? Thirdly, under what circumstances can what he does say be admitted in evidence against him? To the first question the accepted answer is that ‘when a member of the force is endeavouring to discover the author of a crime there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not, from whom he thinks useful information can be obtained’.203 In a custodial situation, the continual questioning of a person who has clearly indicated that he does not wish to answer any further questions might be regarded as oppressive and unfair conduct. It might, as such, result in the exclusion by the court, in the exercise of the discretion discussed below, of any evidence subsequently obtained. Generally speaking, however, the position is that questions can be asked at any time.204

137. The second issue, whether a person has to answer any such questions, is a different matter. The law is perfectly clear. A person who declines to answer any questions cannot be forcibly compelled to do so. In Rice v. Comolly20S a person declining to answer questions successfully appealed from his conviction for ‘obstructing a police officer in the execution of his duty’. Lord Parker put the position as follows:

It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to the effect, and indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority . . ,206 The real question here, however, is not the right to silence207 itself, but rather the consequences of exercising that right. As to this, the law is somewhat more complicated

and we shall return to the question below.208 The basic principle is clear that no inference adverse to an accused person can be drawn from a refusal to answer questions put to him or a failure to mention, until the trial, some fact which would exculpate him.209

203 Judges’ Rules, Rule 1 (in both 1912-18 and 1964 versions).

204 Sec R. v. Smith [1964] V.R, 95, per Gowans J. at 97: ‘in seems to me that it is the duty of the police to ascertain facts which bear upon the commission of a crime, whether from the suspected person or not, and that they are not bound to accept the first answer that is made, as long as they do not carry the interrogation to a point of impropriety in the sense of bringing pressure to bear upon the accused or bringing about an unfair or unreliable result’. Of course, if the person is detained against his will for the purpose o f answering questions in a situation which would not justify arrest, he may well have an action for false imprisonment but that would be based on the detention, not the questioning.

205 [1966] 2 All E.R. 649.

206 ibid., at 652.

207 The right to silence is sometimes referred to as the 'right not to incriminate oneself or the ‘right against self-incrimination’. These alternative expressions are in fact, however, more restrictive than the proposition that one need not answer any questions at all, which is in law substantially the position.

208 Paras 146 ff.

2IM This seems to be the case whether or not the accused has been cautioned that he has a right to remain silent; see/?, v. Ryan (1966) 50 Cr. App. R. 144 at p. 148 and the discussion thereof in the Eleventh Report, pp. 16-17

Questioning and the Right to Silence I 61

138. As to the third issue, the admissibility of confessional evidence, there are two distinct rules which presently apply, the voluntariness rule and the discretion rule. The classic statement of the voluntariness rule210 was that made by Dixon J. (as he then was) in McDermott v. R.:2L1

If [the accused] speaks because he is overborne his confessional statement cannot be received in evidence, and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of

the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made.

This common law rule applies in every Australian jurisdiction except Victoria and the A.C.T., where there are statutory provisions saving from automatic rejection confessions induced by threats or promises, provided those inducements were not really calculated to cause an untrue admission of guilt to be made.212

139. The discretion rule of admissibility is as follows: when a confession is found to be voluntary according to the above principles, the judge may nonetheless exercise a discretion to reject it if he considers it was obtained in circumstances that would render its reception into evidence unfair to the accused. The factor most mentioned in exercising the discretion is whether or not the Judges’ Rules have been complied with. The Judges’ Rules

were devised by the Kings Bench judges in England in 1912 and 1918 as a guide to police conduct in questioning suspects. Various glosses have been added from time to time. A completely revised set of rules was announced in 1964.213 The content of the rules is directed primarily toward ensuring that the mind of the suspect is alerted to his right to

silence, by requiring that a caution to that effect should be given at various stages of the police investigation with respect to him. The rules are also aimed at limiting the extent to which questions are asked, particularly where a person in custody is ‘making a voluntary

statement’(i.e. as distinct from answering questions). The Judges’ Rules, in their pre-1964 version, apply in one way or another in most Australian jurisdictions.214 They are incorporated almost verbatim in New South Wales Police Regulations and the Victorian

Chief Commissioner’s Standing Orders. Police in the A.C.T. and Northern Territory are also instructed to conform to the Judges’ Rules. Commonwealth Police Officers are told, in General Order 36, that ‘the Judges’ Rules should, generally speaking, be followed by members’.215 In Queensland and Tasmania the Rules have been clearly adopted by the courts as a guide to the exercise of judical discretion. South Australian and Western

Australian courts have not adopted the Judges’ Rules216 but have applied the general test stated by the High Court iri R. v. Lee. This test is to the effect that ‘the obligation resting upon police officers is to put all questions fairly and to refrain from anything in the nature of a threat, or any attempt to extort an admission'.217 It should be emphasised that, to the

2111 Which does not mean that statements have to be 'volunteered', rather only that they be 'made in the exercise oi'a free choice to speak or be silent’: R. v. Lee (1950) 82 C.L.R. 133. at p. 149.

211 (1948) 76 C.L.R. 501, a tp . 511.

2,2 Evidence Act 1958 (Vic.), s. 149: Evidence Ordinance 1971 (A.C.T.). s. 68.

2.1 Practice Note [1964] 1 All E.R. 237.

2M On the reception o f the Rules, see generally J. A. Gobbo, Cross on Evidence (Aust. ed.. 1970). at p. 576.

215 Emphasis added.

21.1 Sec R. v. Bailey [1958] S.A.S.R. 301 and Beamish v. R. [1962] W.A.R. 85. 212 R. v. Lee (1950) 82 C.L.R. 133 at p. 154 citing Street. J. in R. v. defines (1947) 47 S.R. (N.S.W.) 28 at pp. 311-2. -

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extent that the Judges’ Rules are recognised by the courts, they are regarded not as rules of law, but rather rules prescribing in a general way standards of propriety which may be taken into account in the exercise of the court’s overriding discretion to exclude218 evidence and to ensure a fair trial.

140. Practice. For the most part, Australian police do not appear to have felt greatly constrained by such rules as there are governing the conduct of their questioning of suspects. The following extract from the notes used in the recruit training course of one Australian police force are a revealing illustration of how not only the letter but the spirit of the Judges’ Rules tends to be regarded:

It does sometimes help to persuade the reluctant witness who adopts the attitude—‘Why should I make a statement? Why should 1 be drawn into a criminal prosecution?’—to remind him that Her Majesty’s judges have categorically stated that the police may take statements from persons, whether suspect or not, if it is thought that they may assist investigation into crime. It is, o f course, no more than a bluff, but often succeeds in convincing those persons whose outlook is such that they are inclined to regard questioning as ‘not nice’ or who for some other reason do not wish to assist the police to prosecute in a criminal case.219 The Judges’ Rules are themselves notoriously imprecise and ambiguous.220 They tend, even when purportedly applied, frequently to be no more than an illusory safeguard in practice. The basic rule is that ‘persons in custody should not be questioned without the usual caution being first administered’ (Rule 3). However this has little worth to the extent that police can credibly claim that the occasion was not one of ‘custody’ but rather ‘voluntary co-operation’. Further, Rule 2 provides that a caution has to be administered before asking any questions, or any further questions, ‘when any member of the Force has made up his mind to charge a person with a crime’. Now, apart from the inherent difficulty in determining a policeman’s state of mind at any given time, the weakness of this from the accused’s point of view7 is that, even if understood, the caution here frequently comes too late in a confessional or interview situation to influence his course of action. This problem is accentuated when it is appreciated that it is usual and perfectly understandable police practice, so far as possible, to delay characterising the situation as custodial until such time as sufficient evidence is obtained to both make an ‘arrest’ and to lay a charge simultaneously. In weighing the effectiveness of the Judges’ Rules in practice, another factor which has to be taken into account is the present absence of any right to a lawyer. The Commission takes the view that perhaps it is this factor more than any other which makes the supposed right of silence of the accused person illusory in practice.221 Another, more general, consideration which has no doubt contributed to the relaxed way in which Australian police officers appear to view the constraints of the Judges’ Rules is to be found in the fact that Australian courts have been far less willing than courts elsewhere to exercise the overriding discretion to exclude evidence wrongfully obtained. As it will be

observed below222 2 2 3 in explaining the reasons for the introduction of a tightened form of discretionary exclusionary rule of evidence, it is far more common for police acts and omission to be criticised by courts than for evidence obtained as a result to be excluded.228

2,8 R. V. Lee (1950) 82 C.L.R. !33 at p. 154.

210 Emphasis added.

220 For a good account of the difficulties in interpreting the 1964 Judges’ Rules, see, for example, H. J. Glasbeck and D. D. Prentice ‘The Criminal S aspect's Illusory Right o f Silence in the British Commonwealth’ (1968) 53 Cornell L. R. 473 at pp. 476-836. The 1912-18 Rules are even more difficult of interpretation.

221 Paras 105-108: cf. Glasbeek & Prentice at pp. 483-7.

222 Para. 788.

223 cf for example R. v. Banner [1970] V.R. 240.

Questioning and the Right to Silence / 63

141. There are other controversial aspects of police practice with respect to questioning, quite apart from considerations of adherence to the Judges’ Rules. We refer to the complaints that are widely made (much more widely, it must be said, in some jurisdictions than others) of police misconduct in securing admissions from suspects. Techniques complained of include on the one hand the extraction of confessions by violence or the threat thereof, and on the other hand the practice of ‘verballing’, i.e. the alleged fabrication of confessions, which are presented and explained to the court as oral admissions which the accused would not later acknowledge in writing.224 It is in no sense part of this Commission’s terms of reference to engage in any examination of the extent to which such alleged misconduct does or does not take place. Certainly allegations and denials were made to us in the course of our public sittings and in written submissions. We have neither sought, nor do we possess, conclusive evidence one way or another concerning the extent of such practices. But that is not to say that we do not think it desirable that some legislative steps be taken. Such legislation is required not only in the interests of accused persons, but also to preserve the reputations of the police themselves

and to decrease the incidence of such conduct, or allegations of such conduct.

RECOMMENDATIONS----OVERVIEW

142. The question of the extent to which confessional, as distinct from ‘real’, evidence has become the staple of criminal trials in many jurisdictions in Australia was the subject of a good deal of critical comment addressed to the Commission. The Commission does not underestimate the degree to which efficient law enforcement, in the interests of the community, depends on reasonable freedom of action in police questioning of suspects.

Our proposals will in no sense rule out the admission of confessional evidence. What they will perhaps do is go to ensure that something more than lip-service is paid to those traditional standards of protection for the accused for which the British system of justice has always been praised. The Commission advances four principal proposals. In tht first place, there should be provision to ensure that the suspect’s mind is alerted to his right not to answer questions, and that he be afforded the facility of such professional or other assistance as is necessary to enable him to exercise that right. We have already stated above, in some detail, the Commission’s position on these issues.225 Elsewhere,226 we will indicate the nature of the additional protection that is needed by some minority groups, in particular Aboriginals, persons not fluent in English and children. It will be plain that this recommendation is premised on the acceptance of the continued existence of a general right to silence, as that right has traditionally been known. Our reasons for rejecting submissions that the right to silence should now be abolished are stated below.227

143. Our second recommendation is that the traditional discretion rule of evidence should be recast in order to give it more teeth. The rule should become a genuine disincentive to failure to accord the suspect his rights, rather than merely the paper disincentive which it has tended to be in the past. The rule that we envisage would operate in the same way with

respect to confessional as with other kinds of evidence. This proposal will be dealt with in Part 11 of this report.

224 Submission of Mr D. G. Sturgess et al, of the Queensland Bar. Transcript. 19 July 1975. paras 579 If.; submission of M r M. Rutherford of the N.S.W, Bar. Transcript. 21 July 1975. paras 674 If.

225 Paras 99 ff, 105 ff.

220 Part 9.

227 Paras 146 ff. ·

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144. Our third recommendation is that the voluntariness rule228, breach of which should lead to the absolute (as distinct from discretionary) exclusion of confessional evidence, should be incorporated into the proposed legislation. It was urged upon the Commission that it should rationalise completely what has become a somewhat irrational area of the law and should substitute a test of the ‘reliability’ of evidence in place of the old rule which looked to it’s voluntariness. We have not thought it proper to go so far, although we do recommend certain modifications of the common law position.229 2 3 0

145. Our fourth recommendation concerns the introduction of new procedures for ensuring the reliability of confessional evidence, including the use of tape recorders. We do not at this stage go so far as to suggest that evidence obtained without verification by one or other of our suggested methods should be automatically inadmissible. However we do urge the introduction of provisions to ensure that a court or jury, as appropriate, will have regard in the discharge of their respective functions to the failure of the police to use and the prosecution to produce such verification where it would have been practicable to do q n 230

THE RIGHT TO SILENCE

146. No one can be heard to say that if a person questioned declines to answer he should be compelled by force to do so. The right to silence in this basic sense is not, and never has been, in issue in our society.231 There are, however, a number of perfectly respectable writers who have lately argued that the consequences of exercising that right ought to be re-examined. It is urged that the rule that no inference of guilt may be drawn from an

accused’s failure to answer questions, or to mention an exculpatory fact, should be abolished. Among the most recent exponents of that view have been the English Criminal Law Revision Committee,232 and the South Australian Committee.233 The whole issue has been a very controversial one for many years, and particularly controversial since the publication of the Criminal Law Revision Committee’s Eleventh Report in 1972. The arguments on both sides are well enough known not to require rehearsal in great detail. It is appropriate nonetheless to indicate the diversity of propositions with which the Commission has had to grapple in reaching its position on this topic.234

147. The basic argument of those who would abolish the right to silence is that it is without rational foundation in any system of justice which is remotely concerned with establishing the truth. It is claimed that the rule can do no more than hinder the innocent and help the guilty. In Bentham’s famous aphorism, ‘Innocence claims the right of speaking, as guilt

invokes the privilege of silence’.235 It will be noted that this argument tends to subsume two others, both of which have been hotly contested. These are that there are unlikely to

228 See para. 138.

229 Paras 151 ff.

230 Paras 154 ff.

231 Some m inor exceptions to this have long been recognised, in particular the power to require a person to furnish his name and address in respect of particular classes of offences. Recommendations in relation to this m atter are contained in paras 79-81.

232 Eleventh Report, paras 28 ff.

233 Chapter 7, pp. 100-7.

234 A succinct account of the competing viewpoints, from which much of the following is immediately draw n, is to be found in Heydon, ‘Police Powers’. See also the symposium ‘The Right to Silence’, Proceedings o f the Institute o f Criminology, Univ. of Sydney. No. 17 (1973).

235 Treatise on Evidence, p. 241, cited in Eleventh Report p. 18.

Questioning and the Right to Silence j 65

be any reasons for silence consistent with innocence, and that many guilty persons are helped to acquittal by relying on the right. A second argument often advanced is that if the policy basis of the right is to protect the confused or frightened suspect, then this does not sit well with the rule of evidence which allows the lies of a person under questioning to be

admitted as showing a consciousness of guilt, in so far as it seems to be the case that ‘the confused or frightened suspect is much more likely to tell untruths than to rest stolidly upon a “right of silence”, which takes a lot of doing when questions are persistently put to you’.236 A third argument, which has obvious force, is that abolition of the right would, if it did nothing else, rationalise the law and excuse the courts from drawing absurdly fine distinctions for juries.237 At the moment there are many circumstances where a record of interview disclosing ‘no comment’ answers to police questions can indeed get before a jury at the trial of the accused. The distinction appears to be between records which in the circumstances, because of the way the refusals are made, go somehow to show a consciousness of guilt238 and those in which the accused flatly states, after warning, that he will answer no (or no more) questions.239 The location of the dividing line is more than somewhat unclear. It appears, as already stated, that most such records are admitted into evidence without difficulty. This consideration seems to the Commission to somewhat reduce the practical significance of the present theoretical protection. Finally a negative argument is advanced, namely that the abolition of the right to silence would not be oppressive in practice in that the inference of guilt would not be automatic. Such an inference would have to be reasonable in the circumstances, and so determined by a jury, looking at all the evidence.

148. The main arguments advanced in favour of retaining the present situation are as follows. In the first place, as the Criminal Law Revision Committee itself conceded, there are several reasons for silence which are perfectly consistent with innocence:

For example, the accused may be shocked by the accusation and unable at first to remember some fact which would clear him. Again, to mention an exculpatory fact might reveal something embarrassing to the accused, such as that he was in the company of a prostitute. Or he may wish to protect a member of his family.240 The English Committee was satisfied that such reasons would in fact come out if the matter were proceeded with, and that the court or jury would give them their proper weight. Its opponents are not so sure on either count. Another argument is that even if a

court of jury can decide whether there is an intelligible reason for silence, nonetheless to draw inferences from silence will force suspects to speak. The danger, in turn, of this is that the tribunal may give undue emphasis to what they then say:

Most suspects are not strong, intelligent and articulate. They are in a frightening situation; they may misunderstand the true significance of questions . . . [Pjeople are commonly unable to sort out and state the factual aspects of their problems clearly even after time for studied reflection and discussions with friendly legal advisers. In a more hostile atmosphere they are prone to ramble, to tell foolish lies in an attempt to

terminate questioning instead of saying truthfully ‘1 don't remember", to contradict

236 Glanville Williams, 'The W ork ofCrim inal Law Reform’ (1975) \5 Jnt. Soc. Puh. Teachers L. 183. at 190.

*' Cross put the matter more strongly in [1973] Own. L.R. 329. at 333: it 'would spare the judge from talking gibberish to the jury, the conscientious magistrate from directing himself in imbecile terms and the writer on the law of evidence from drawing distinctions absurd enough to bring a blush to the most hardened academic face’. 238 Admissible on the rule in Wmm v. R. (1964) 109 C.L.R. 529. Sec also R. v. Burnui [197s] V.R. 496.

23" R. v. Ireland (1970) 126 C.L.R. 321 at p. 331 per Barwick C. J.

240 Eleventh Report, para. 35.

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themselves, and to provide all kinds of evidence which to a later observer may constitute evidence of guilt.241

149. The final argument concentrates on countering claims that the right to silence, as exer­ cised in Britain and the United States, has resulted in high acquittal rates for serious crimes and lower prosecution and conviction rates. In fact, almost all the empirical studies in this field indicate that such claims are mistaken. More rights for individuals do not necessarily result in more guilty people going free.242 There are many reasons for acquittal, good and bad, which operate quite independently of the right to silence. In any event, if the concern is with a small group of ‘professional criminals’ well versed in the rules, it is not at all obvious that the problem of dealing with a small minority is a proper ground for seriously disadvantaging the bast bulk of suspects of whom some are innocent. The argument tends eventually to become one as to whether it is, or is not, better that ten guilty men be acquitted than one innocent person be convicted. About this question reasonable men will continue to differ for as long as debate continues. It is however a question which the British system of criminal justice, inherited in this country, still tends to answer in the affirmative.

241 Heydon, ‘Police Powers’ p. 32.

242 A. United States

Ever since Escobedo v. Illinois 37SU.S. 478 (1964) and Miranda v. Arizona 384 US 436 (1966) established the rights of persons in custody to be told of their rights to remain silent and consult a lawyer it has been argued that the detection of crime and the conviction o f criminals has been seriously impeded. In fact, however, the vast m ajority of empirical studies conducted in the post-Escobedo!Miranda period indicates that there has not been any significant impairment of law enforcement functions. The following bibliography lists the relevant articles. Its comprehensiveness has been checked with Professor Fred Inbau of Northwestern University, regarded as one of the leading scholars in this field. Items (i)-(ix) argue for the non-impairment of law enforcement functions; items (x) and (xi) indicate non-compliance on the part of law enforcement agencies with the Escobedo/M iranda requirement; and item (xii) contains arguments as to the detrimental impact of the rulings.

(i) J. W. Witt, ‘N on-Coercive Interrogation and the Administration o f Criminal Justice; The Impact of M iranda on Police Effectuality’, 64 J. o f Criminal Law and Criminology 320 (1973). This is the most recent study on the subject, analysing 478 cases of ‘one western police departm ent’. It concluded that there is ‘very little indication that the Miranda requirements had materially affected the outcome of formal police interrogation. . .’ Indeed, in the short run, effectiveness seemed to have improved. Thus

a comparison between the pre-M iranda year 1964 and the post-M iranda year 1967 (years in which the arrest rate was almost the same) revealed an increase of 3% in successful interrogations, an increase of 4% in respect o f stolen property recovered and an increase of 4% in the average clearance rate of serious crimes. A possible explanation for these findings is that the restrictions placed on the police in respect o f obtaining confessions led to more stringent and diligent investigation by other means.

(ii) L. S. Leiken, 'Police Interrogation in Colorado: The Implementation of Miranda', 47 Denver L. J. I (1970). This is on interviews with suspects in the Denver County Jail and data from the Denver Police Department. The authors conclude that ‘the effect of Miranda on the game of interrogation is effectively neutralised in its implementation. Indeed, one of the latent functions of Miranda appears to be to aid the police in overcoming their evidentiary burden with respect to proving the suspect's knowledge and waiver of his constitutional rights'.

(iii) Comment, 'Interrogation in New Haven: The Impact of Miranda'. 76 Yale L.J. 1519 (1967) and Faculty Note, ‘A Postcript to the Miranda Project: Interrogation of Draft Protestors', 77 Yale L.J. 300 (1967). Both the formal study and sequel indicate that 'not much had been changed after Miranda'; the impact on law enforcement has been ‘small’ because (a) interrogations play but a secondary role in solving crime in New Haven, and (b) the Miranda rules, when followed, seem to affect interrogations but slightly.

(iv) R. H. Seeburger and R. S. Wettick, Jr, 'Miranda in Pittsburgh A Statistical Study', 29 U. of Pitt. L. Rev. 1 (1967). The Pittsburgh figures support the finding that Miranda has 'not impaired significantly' the apprehension and conviction of criminals by law enforcement agencies. The authors admit that in the aftermath of Miranda there has been a 'significant' decline in the percentage of cases in

Questioning and the Right to Silence j 67

242 continued

which a confession is obtained, but that confessions are still obtained in ‘substantial’ number and conviction rate has not declined.

(v) A. J. Reiss, Jr and D. J. Black, ‘Interrogation and the Criminal Process’, 374 Annals of the Amer. Acad, o f Pol. and Soc. Science 47 (November 1967). These summary findings o f the U.S. President’s Commission on Law Enforcement and Adm inistration o f Justice, Field Survey III, briefly discuss the Miranda problem. Small sample data on interrogations of suspects in high-crime police precincts in

Boston, Chicago and W ashington, D C. show that arresting officers always had evidence apart from the interrogation itself as a basis for arrest. ‘It would appear that the introduction of Miranda-type warnings into field settings would have relatively little effect on the liability o f suspects to criminal charges, particularly in felony cases. . .’ (Thecitation to the actual study is D. J. Black and A. J. Reiss.

Jr, ‘Patterns of Behaviour in Police and Citizen T ransactions’, particularly pages 124-132, in A. J. Reiss, Jr (ed.), Studies in Crime and Law Enforcement in Major Metropolitan Areas, Volume II, U.S. President’s Commission on Law Enforcement and Adm inistration of Justice, Field Survey ill (W ashington, D C., U.S. Governm ent Printing Office, 1967).) (vi) N. R. Sobel, The New Confession Standards 140-151 (N.Y., Gould Publications. 1966). This empirical

study of 2000 cases in King’s County, New Y ork, reveals that from 'any perspective’ the ‘new’ exclusionary rule (Miranda) does not ‘measurably affect the successful prosecution of crime’ (emphasis in original).

(vii) E. J. Younger, ‘Interrogation o f Criminal Defendants— Some Views on Miranda v. Arizona', 35 Fordham L. Rev. 255 (1966). This study concludes that Miranda requirements will not ‘create any significant difficulties. . .’ (viii) T. Souris, ‘Stop and Frisk or Arrest and Search—The Use and Misuse of Euphemisms’, 57 J. of Crim.

Law, Criminology and Pol. Science 251 at p. 255 (1966). This survey, actually conducted by the D etroit Police Departm ent, revealed ‘improved police efficiency'. The decline in the percentage of cases in which a confession was essential was attributed to improved investigation and preparation of cases.

(ix) B. J. George, Jr, A New Look at Confessions: Escobedo— The Second Round, (Ann Arbor, Institute of Continuing Legal Education, 1967) at pp. 160-161. This reports the Detroit Survey mentioned in (viii). (See also the general discussion on pp. 79-111.) (x) C. D. Robinson, ‘Police Prosecutor Practices and A ttitudes Relating to Interrogation as Revealed by

Pre- and Post-Miranda Questionnaires: A Construct of Police Capacity to Comply'. 1968 Duke L.J. 425. Based on questionnaires sent to police and prosecutors throughout the United States the authors conclude that O n the whole, police reaction to C ourt decisions (particularly Miranda) has been that of following mechanically the apparent meanderings of a distant star'.

(xi) R. J. Medalie, L. Zeitz, and P. Alexander, 'Custodial Police Interrogation in our Nation’s Capital: The Attem pt to Implement Miranda,' 66 Michigan L. Rev. 1347 (1968). 'In contrast to the first premise underlying the C ourt’s decision in Miranda that the police would give adequate and effective warning of legal rights and honor the accused’s exercise of those rights, the police (in the District of Columbia) in fact were, reported to have failed to observe the spirit and often the letter of Miramlu.i (xii) Controlling Crime Through More Effective Law Enforcement. Hearings before the Subcommittee on

Criminal Laws and Procedures of the Committee on the Judiciary. United States Senate. 90th Congress, 1st Session (M arch, April, May. July, 1967) (Superintendent of Documents Classification Y4.J89/2:C86/6). '

(a) Statement o f Frank S. Hogan, New York County District Attorney at pp. 120-23 as a result of a six-month post-Miranda study in New York. Hogan argues (in a "tentative" way) that the ‘stringent requirements of Miranda have significantly increased the chances that a criminal will escape judgment, where under previously prerailing fair standards he would hare been convicted for his crim e’. The evidence cited is a 35“,, drop in the confession rate of non-homicide

felony defendants in the six months prior to the ruling.

(b) ‘Resolution of the National District Attorneys' Association in re Miranda v. Arizona, at 619-20.

(c) Statement and testimony of Quinn Tamm. Executive Director. International Association of Chiefs of Police, at 326-353. (d ) Statement of Thomas F. McDermott. First Vice-President, Police Chiefs Association of South Eastern Pennsylvania, at 1133 ff.

(e) Preliminary survey conducted by Evelle J. Younger. District Attorney. Los Angeles C ounty. which concludes that Miranda does not cause any significant problems', at 343 ff. (also discussed in 35 Fordham L. Rev. 255 (1966)).

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150. On balance, the Commission takes the view that the arguments in favour of changing the present position are not sufficiently persuasive to justify making that recommendation. The onus is on those who would change the present position. Allowing inferences to be drawn from a failure to answer questions or offer explanations has been widely thought2 4 2 243 to be a departure from the whole tradition of British criminal justice, which still requires the Crown to make its case in a criminal prosecution. It does not require the person who is suspected or accused to prove his innocence. After considering the question by reference

242 continued

B. United Kingdom There has been considerable discussion in the United Kingdom of the question whether too many defendants in criminal cases have obtained acquittals when they should have been convicted. This discussion has arisen largely as a result of the Eleventh Report of the Criminal Law Revision Committee and two public lectures by Sir R obert M ark, Commissioner of M etropolitan Police. The Criminal Law Revision Committee asserted that 'There is now a large and increasing class of sophisticated professional criminals who are not only highly skilful in organising their crimes and in the steps they take to avoid detection but are well aware of their legal rights and use every possible means to avoid conviction if caught’, Eleventh Report, para. 21. (One member of the Committee appears to have regrets about this passage—see Rupert Cross, 'The Evidence Report: Sense or Nonsense2 [1973] Crim. L.R. 329, at p. 332).

Sir R obert M ark asserted that ‘only a small proportion of those acquitted by juries are likely to be innocent in the true sense of the w ord’ and that it was the professional criminal who was ‘the very man most likely to escape society’s protective net’. (Robert M ark, ‘The Disease of Crime: Punishment or Treatm ent’, 1972, Royal Society o f Medicine, at 6 and 13. See also now R obert M ark, ‘M inority Verdict', The Listener, 8 November, 1973, also published separately by the B.B.C.)

There are two articles which attem pt to consider the empirical evidence:

(i) S. J. Elgrod and J. D. M. Lew, ‘Acquittals—A Statistical Exercise’ [1973] New Law Journal 1104. This study sought to determine whether the proportion of acquittals had increased and if the acquittal rate was 50% as Sir Robert M ark had asserted. The authors conclude: ‘W hat above all is clearly shown by these statistics is that there is no foundation to the claim that the number of acquittals has increased or that the acquittal rate is anywhere in the region of 50%. The near hysterical claims of Sir Robert M ark in the 1973 Dimbleby Lecture have not been supported by any published statistics and, in our view, are an attempt at scare-mongering for the purpose of justifying a change in the law limiting the freedom o f the individual and giving greater powers to the police’.

(ii) M. Zander, ‘Are Too Many Professional Criminals Avoiding Conviction?—A study in Britain’s Two Busiest C ourts’ (1974) 37 Modern Law Review 28. This study set out to try to establish to what extent those acquitted in the higher courts were likely to be professional criminals and to what extent the professional criminal stood an unduly high chance of avoiding conviction. The author concludes that ‘the evidence does not support the belief that acquittals even o f professional criminals are a significant problem in this country at the present time'. On the contrary, he says, the evidence "runs mainly in the opposite direction.’

Summarising the evidence he writes: 'There is first the fact that two-fifths o f those who arc acquitted have no criminal record at all. No doubt some of these could be professional criminals but it hardly seems likely that the number of whom this is true is likely to be very large. Secondly the evidence shows that the defendant with a prior record has a statistically lower rather than a higher

chance of an acquittal than someone with no conviction. It would not seem therefore that the system is by its nature tipped in favour of the professional criminal. Thirdly, very few cases and even fewer acquittals involve “ major" or “ heavy" crime. No doubt it is particularly aggravating to the police when one of the big fish get away but this is itself unobjectionable if the acquittal was by fair means in the ordinary course of the operation of the system. Fourthly, it would seem that a large majority of acquittals including acquittals in “m ajor" cases are in fact just such results of the ordinary operation of the system. The lawyers for prosecution and defence agree that on the evidence before the court the acquittal was at least “ understandable” and often was required and directed by thejudge. In under 10 per cent of cases was the acquittal “perverse". The perverse verdicts are of course examples of the system not functioning in its proper way. But it is difficult to think of any way of eliminating such verdicts short of abolishing the jury system.'

243 It is fair to point out that another view would have it that abolishing the right to silence does not change the burden of proof, but rather simply goes to ensure that relevant facts will be given their due weight: see C. Howard, working paper on Right to Silence prepared for Commission.

Questioning and the Right to Silence j 69

to the theoretical and practical arguments in the literature, and in terms of the range and force of the various submissions put directly to the Commission, we do not think that the onus has been discharged.

VOLUNTARINESS RULE

151. The voluntariness or inducement rule244 is generally justified in two ways. First, it is said, there is a risk that confessions produced by threat or inducement from a person in authority will be false. Clearly the force of this argument depends on the character of the , particular inducement in question. To the extent to which it is trivial so too will the risk be

less.245 Lord Reid has recently cast doubt on this assertion by saying:

It is true that many of the so-called inducements have been so vague that no reasonable man would have been influenced by them, but one must remember that not all accused are reasonable men and women: they may be very ignorant and terrified by the

predicament in which they find themselves. So it may have been right to err on the safe side.246 The second main purpose of excluding involuntary confessions has been to discourage

undesirable police practices. The rule has a disciplinary function in much the same way as the United States rule, grounded in the Constitution, which excludes the results of unlawful searches and seizures.

152. The voluntariness rule has recently come under attack from a number of quarters. It is argued that the rule is complicated, soft on criminals, unnecessary to protect accused persons since they are now competent to testify and often legally aided, pointless to the extent that more sophisticated modern juries can now assess reliability for themselves, and inappropriate as a disciplinary tool against a better controlled and more trustworthy

police force than was the case when the rule was formulated in the nineteenth century. Upon this view, all confessions should be admissible, however obtained, and their weight simply assessed for acceptability and reliability in the same way as any other evidence.247

153. The Commission believes that some of these points are well taken. However it would not go nearly as far as the view just stated. We think it is important that there should be an extra disincentive, in addition to the operation of the police disciplinary code and the discretionary exclusionary rule, against the use of force or violence, or the threat thereof, to extract confessions from suspects. Accordingly the Commission proposes the retention

of the absolute exclusion rule on this ground alone, quite apart from the likely unreliability of evidence so obtained. If the Commission's recommendation of a reverse- onus discretionary exclusionary rule is accepted, there is a case for softening the full potential effect of the common law rule as to inducements. Accordingly, we recommend that confessions or admissions made as a result of inducements other than physical

violence or the threat thereof should not be treated as involuntary if the court is satisfied that the means by which the confession or admission was obtained were not in fact likely to cause an untrue admission to be made. The majority of the English Criminal Law Revision Committee reached a similar conclusion. It recommended that a contested

244 Defined in para. 138. 245 As the High Court remarked in Basto v. R. (1954) 91 C.L.R. 628 at p. 640: Ά confessional statement may be voluntary, and yet to act upon it might be quite unsafe: it may hav no probative value. Or such a statement may be involuntary and yet carry with it the greatest assurance of its reliability or truth .

246 Commissioners of Customs and Excise v. Harz and Power [ 1967] 1 A.C. 760. at p. 820.

241 cf. the minority view put by three members of the English Committee in the Eleventh Report, para. 63.

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confession be admitted only if the prosecution proved beyond reasonable doubt that it was not obtained by oppressive treatment of the accused; and that it was not made in consequence of any threat or inducement ‘of a sort likely, in the circumstances existing at the time, to render unreliable any confession which might be made by the accused in consequence thereof.248 It will be noted that this Commission’s recommendation goes most, but not all, of the way with s. 149 of the Victorian Evidence Act 1958 and, perhaps more importantly for present purposes, s.68 of the A.C.T. Evidence Ordinance 1971.249 The recommendation is premised very much on the condition that there should be introduced a more effective rule for the discretionary exclusion of evidence wrongfully obtained than has hitherto been the case. If the present rule were to remain, it is the Commission’s view that the accused needs all the protection that the common law voluntariness rule now gives him.

PROCEDURES FOR ENSURING THE RELIABILITY OF CONFESSIONAL EVIDENCE

154. The Problem. The most frequently contested issues in the criminal trial relate to the confession. Was a confession made? Was it voluntary? Was it obtained unfairly or improperly? Is it reliable? So long as a confession is regarded as an adequate proof of guilt, the contest will continue. The police will seek confessions to conclude an investigation, to save the burden of other inquiries and to provide evidence of guilt. The accused will contest an allegation that he confessed, or he will attack the admissibility or cogency of

the confession by seeking to show that the facts bring into play an exclusionary rule (whether the exclusionary rule be stated in terms of voluntariness or in terms of reliability). The lines of contest are drawn. The factual dispute can be foreseen and its ambit predicted in advance. The outcome of the criminal trial will often turn upon the facts relating to the obtaining of the alleged confession and the terms in which the confession is allegedly made. The facts are in dispute, the police and the accused each rely upon their oral evidence, and there is usually no independent touchstone by which the court can determine where the truth is to be found. When a signed confession is produced, the conflict will yet be waged as to the circumstances in which the confession was obtained. A large proportion of the time of the criminal courts, time which is enormously expensive to the public purse, as well as to the pocket of the accused, is spent in resolving these disputed factual issues. If these facts could be placed beyond dispute a large number of trials would not take place—either because the prosecution, unable to rely upon the confession, would have no other sufficient evidence or because the defence, fixed with an unassailable confession, would decline the trial contest. The frequent serious conflicts

248 Eleventh Report, para. 65.

2411 Section 68 of the Evidence Ordinance 1971 (A.C.T.) provides as follows:

68 Admissibility o f confessions or admissions. (1) Subject to the next succeeding sub-section, a confession or admission made by a person charged in a criminal proceeding is not admissible in evidence against that person unless it was made voluntarily by that person. (2) A confession or admission tendered in evidence against the person charged in a criminal proceeding shall not be rejected only on the ground that a promise, threat or other inducement (not being the exercise of violence, force or other form of compulsion) has been held out to or exercised upon the person making the confession or admission, if the judge is satisfied that the means by which the confession or admission w as

obtained were not in fact likely to cause an untrue admission of guilt to be made. (3) The judge has, in a criminal proceeding, a discretion to reject a confession or admission (whether or not it is a confession or admission to which the last preceding sub-section applies) made by the person charged, if. having regard to the circumstances in which, or the means by which, the confession or admission was obtained, the judge is satisfied that it would be unfair to the person charged to admit the confession or admission in evidence.

Questioning and the Right to Silence j 71

between police and accused as to confessions tend to sap the confidence of the public and the courts in the integrity of the police. The court sometimes suspects that the real process of determining guilt occurs in the police station. If the court is informed of the events of the investigation by evidence which is not open to dispute or which is less open to dispute, criminal trial procedures will be improved, the reputation of the police force will be enhanced and the court will feel more confident in reaching its decision. In the High Court

of Australia, Mr Justice Murphy has recently made the point succinctly:

The liberty of the accused, the reputation of the police and the proper administration of justice are jeopardised by the failure, where opportunity permits, to provide a more independent record of police questioning.250

155. There are many ways in which the credibility of evidence as to the events of the investigation can be improved. Indeed, any procedure which will bring in evidence other than the oral evidence of the police or the accused should be encouraged. It was put to the Commission that the police practice o f ‘verballing’ an accused was so widespread and had so polluted the course of criminal justice that no confession should be received in evidence unless further external evidentiary checks on the truth of the police allegations were forthcoming.2 51 The Commission is not in a position to determine whether the practice of ‘verballing’ is so widespread as to warrant such a limitation on the admissibility of evidence of alleged confessions. The statutory exclusion of all confessional statements

which are not corroborated by external evidence may be too heavy a price to pay at this stage for the advantage of ensuring that more reliable evidence is produced. However, the legislation ought desirably to contain incentives to the police to provide independent safeguards for the interests of the accused and for the integrity of the police force, safeguards which will give the court a more comforting ability to ascertain the truth. The safeguards should desirably be provable by evidence which is not open to reasonable challenge. Although any elaboration of the investigative procedure will add to its cost, it is apprehended that that cost will be more than offset by a saving in time otherwise required to canvass the investigation in court. Four safeguards are suggested in the paragraphs which follow: recording by mechanical means, corroboration by a third person, reduction of oral confessions to writing, and checking by a third person.

156. Recording by Mechanical Means. Sound recording devices such as tape recorders are now instruments of general community use. Models are available which are portable, reliable and reasonably priced. Training in the use of tape recorders is not an extended procedure. School children use them. The full period of contact between police and suspect in serious cases could as a matter of sheer technicality quite easily be taped.252 But three substantial

objections have been raised against a requirement to use mechanical recording devices. First, it is said that many a suspect will refuse to discuss a matter with a police officer if the conversation is to be sound-recorded. However it is precisely in such a situation that the seeds of future recrimination are sown. The subsequently-to-be-denied verbal confession

should not be the investigator’s method of choice. It is better to discourage the obtaining of verbal confessions in the cases where other investigative steps would not solve the crime and identify the criminal. In any event, it is not at all clear that the overt use of tape recorders will tend to ‘dry-up’ suspects. A number of police officers informed the Commission that the process might well be no more inhibiting than is the widespread present practice of typing questions and answers as they are put and made.

25,1 Burns v. R. an as yet unreported High Court judgment delivered on 10 June 1975. where his Honour noted the absence of either a tape recorder or independent witness at the contested interview.

251 See above note 224.

252 For a description of the system now used by the Victoria Police, see below para. 218.

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The issues involved in the covert use of tape recorders, which might solve some of these practical problems, are discussed below in Part 7.253

157. Second, there may be problems which arise from the presence on the recording of material which is inappropriate for presentation at trial. A suspect may be willing to speak frankly to a police officer about matters in which the police have an interest but which are irrelevant to the guilt of the suspect. Or he may be willing to implicate others in the commission of the offence under investigation. In cases of this kind the suspect may not wish to be identified as a source of police information. Indeed it may be unsafe for him or for his family if he were so identified. If a tape recording of the whole interview were automatically to be published at the trial no adequate protection could be given to the suspect. Moreover, the allegations which he makes may be a gratuitous defamation of the people whom he names. The rules for the exclusion of inadmissible evidence would give no adequate protection against unwarranted defamation and scandal if the tape recording were to be played in the court in order that the rules may be applied. The Commission considered as one means of dealing with this problem the suggestion that a referee—e.g. a magistrate or lawyer not connected with the particular case—be empowered after hearing submissions from both sides to eliminate from the copies to be prepared for admission, as evidence, any material thought to be for one reason or another improper to tender. It was

felt however that this ‘editing’ power should be left to the court dealing with the substan­ tive question itself, subject to the condition that the court should be empowered to proceed in camera with any question that may arise as to the propriety, in the senses discussed in this paragraph, of admitting any recorded material. The court should also be empowered to make an order prohibiting publication of the deleted material.

158. A third difficulty of a different kind has been raised: the risk of interference with a recording after it is made. The Commission has been reliably informed that electronic technology is now sufficiently sophisticated to detect any interference with a recording. However it would be highly inconvenient to require sophisticated checks to be made in every case in order to verify the accuracy of a tape. Provision should therefore be made in the proposed legislation for the custody of tapes by persons other than the police, with a requirement that the police deliver any tape recordings made forthwith into the hands of such custodians. These persons should be especially appointed, in order that appropriate facilities for storing the tapes safely may be provided by them and in order that they may efficiently discharge the duty of producing the relevant tape at a court hearing. A place of safe custody of the tape is essential in order that neither police nor suspect nor persons informed against should be able to tamper with it. It is obvious that our recommendation is by no means completely foolproof. A considerable time may in practice have to elapse, particularly in remote area situations, before the recording can in fact be delivered into the hands of a custodian, but it appears to the Commission that this kind of custody provision is as far as legislation can go.

159. If no charge is laid against the person whose admission is recorded on the tape, the tape should be erased. Assuming that twelve months is a reasonable time in which to commence proceedings, after that time the person making the admission should be entitled to seek destruction of the recording. Total erasure should be automatic after eighteen months if no proceedings have been instituted.

160. Corroboration by a Third Person. If a person who is truly indifferent as between the police and a suspect, and who is able to remember and give evidence of what transpires, were available to attend the interview, his presence at the interview would guarantee propriety

253 ibid.

Questioning and the Right to Silence / 73

in the investigation and his evidence would settle any question in dispute.254 Such a person may not often be available. Numbers of such persons will not be available to corroborate every police investigation. But where the crime is serious and the investigators have a suspect whom they wish to question it may be prudent to seek the attendance of an independent third person. If an independent third person is not available, an assurance of protection of the rights of the suspect can be obtained by the presence either of his lawyer or of a friend or relative. Indeed, if a lawyer, friend or relative is present during the police interview it may be cumbersome and inefficient to require the presence of a further independent person. Either the independent third person or the suspect’s lawyer or a friend or relative of the suspect is an adequate safeguard. But the police should be entitled to insist upon an independent third person in appropriate cases. They should also be entitled to insist that the friend or relative of the suspect should not unduly interfere with the conduct of the interview. The restraints upon the lawyer’s participation are dealt with elsewhere.255

161. Reduction o f Oral Confessions to Writing. Although a signed confession is not a necessary guarantee that no dispute will arise as to the circumstances of its being obtained, a signed record of a transaction provides a better assurance to the court of the truth of the matter recorded than a contest of word against word. It is therefore proposed that a written record of what transpires during a police interview should be kept (including a record of any oral admission made and a record of any written statement given). This record should be available for signature as soon after the interview terminates as is practicable. Indeed, if there were a delay of weeks between the termination of the interview and the police preparation of the record, that fact would provide a ground of attack if any challenge were made to the truth of the police record. The 1964 Judges’ Rules contain some additional safeguards as to the recording of cautions and the signature of statements. Rule 4 of those Rules might be modified for application in the proposed statutory safeguards.

162. Checking by a Third Person. If a third person has not been present during the interview and the interview was not mechanically recorded, it is proposed that a third person should be introduced at the stage where the written record and any written confession is to be acknowledged by the suspect. Theclasses of persons who may be asked to be present

during an interview are supplemented for the purpose of this safeguard by the senior police officer present. The object is to ensure that, if all other safeguards fail, at least the final acknowledgment of the proceedings by the suspect may be handled by some person other than the police officer primarily involved in the interview. Although the usual kinds

of questions are to be asked, viz. did the suspect make the statement attributed to him? was it true? did the police act improperly (as defined by reference to other rules) in obtaining the statement from him? and so on, it is not suggested that the answers to those

questions should determine the admissibility of the confession. But the answers are evidentiary material which the court should have available to it.

INCENTIVES TO THE USE OF SAFEGUARDS

163. Granted that the safeguards are desirable, the incentive to their use must be spelt out. The incentive can be effective, of course, only in cases where it is practicable to use the safeguard. To require a safeguard to be used where it is not practicable to use it w ould be an unwarranted interference with the police investigation. A requirement that a safeguard

2 = 4 The only Australian legislative precedent for our proposal appears to be the Queensland I agruni'· (mnwie and Other Offences Act. 1S>31 to 1971. s.44. discussed in Campbell & Whitmore, p. 84.

2 5 5 Para. 109

74 / Criminal Investigation

be used ‘if practicable’ opens up a fresh area of disputation in which value judgments will have to be made. But the issue raised by the ‘if practicable’ test will require evidence of objective facts which will not be open to dispute in many cases—the availability of a tape recorder or of an independent witness. Further, the police judgment as to whether the use of the safeguard is practicable will be affected by the standards exacted by the courts from time to time. The court will be empowered to set the standards for safeguards in criminal

investigation. That is a power which, if not wholly lacking, has fallen into desuetude in recent times. As the facilities available for providing one of the suggested safeguards are known more to the police than to the suspect, it is proposed that the onus of establishing the impracticability of employing a safeguard should be cast upon the police.

164. Even if it be practicable to employ a safeguard, the forfeit for non-employment should be flexible. The failure may be so accidental, or its relevance so slight, that it does not affect the credibility of the confessional evidence. Much depends on the circumstances of the case. These circumstances are known to the judge at the trial, and it is right that he should

determine whether the failure is of such little importance, having regard to the objective of the safeguard provisions of the statute as well as to the particular case, that the failure may be overlooked. It is therefore appropriate to repose in the judge a discretion to admit or reject the confessional evidence even where he finds that it was practicable to employ a

safeguard, and no safeguard was employed. The discretion could be a discretion at large, or it could be a discretion which is prima facie to be exercised against admitting the confessional evidence. For the reasons which have led to the recommendation of the exclusionary rule256 and in order to preserve uniformity in approach, it is proposed that a failure to employ a safeguard where it is practicable to do so should prima facie result in exclusion of the evidence. There is, however, a distinction between the purpose which the proposed safeguard rule seeks to achieve and the purpose sought to be achieved by other proposed rules. The safeguard rule is calculated directly to improve the reliability of evidence whereas other rules are calculated to regulate the extent to which the police ought properly to affect the freedom of the citizen or his treatment in custody when reliability of evidence is in issue. When reliability of evidence is in issue the question is primarily a question for the jury. If it was practicable for the police to employ a safeguard and none was employed, that fact is relevant to the jury’s evaluation of the weight of the evidence provided the police officer in question was under a duty to employ a safeguard. The failure to employ a safeguard falls for consideration not only at the stage of the voir dire. It is relevant also at the stage of determination of the jury issues. The statute ought, then, to define the duty of the police officer and to make it clear that the exclusion of confessional evidence is not the sole remedy for, or consequence of, the breach of the duty so defined. The statute ought also to provide that when an accused person raises before the tribunal of fact a denial of the making of an alleged confession, or of its terms, or of the circumstances of its being obtained, the tribunal shall have regard to any failure on the part of the police officer to employ a safeguard.

2 56 Paras 288 ff.

6. Release and Bail

RELEASE— GENERAL

165. The reasons which suggest that arrest should be effected only as a last resort apply also to detention in police custody. Deprivation of liberty is a serious matter. It should not be prolonged for any longer than is strictly necessary in the circumstances. There are three distinct situations in which the question of release of a person from custody will arise.

First, it will arise when the police officer decides that he has no reasonable ground for continuing to believe that the person had committed an offence such as would justify his arrest. It may be, for example, that there has been a demonstrable error of identification. It is clear enough in principle, but should be so provided, that the detaining police officer should not attract any liability in this situation, if release is made immediately and if the original custodial detention was reasonably grounded at the time.257 Secondly, it arises where there are continuing grounds for believing that the person has committed an offence, but where one or other of the additional reasons necessary to justify the arrest of . that person are not or are no longer satisfied. As previously stated.258 when this situation

arises a person should be immediately released, at least if he has not been charged, and any further action proceed by way of summons. Thirdly, it arises at the conclusion of the prescribed time for police custodial investigation (i.e. four hours, as extended by any

lawful extensions259) or at such earlier time as the police are ready to lay a charge. When a formal charge is laid a decision must be made as to whether or not to grant police bail. The law in relation to bail generally, and police bail in particular, is badly in need of overhaul. The Commission suggests a number of innovative recommendations in respect to it. The

remaining paragraphs of this Part examine the present law and practice, indicate its weaknesses, and state these recommendations in detail.

POLICE BAIL— PRESENT LAW AND PRACTICE

166. Need for Review. Neither the legislatures nor the courts nor even law reformers have accorded the subject of the grant or refusal of bail by police officers anything like the same attention that has been accorded to the grant or refusal of bail by magistrates and judges. As to the reformers, for example, only two paragraphs out of 185 in the recent British

Home Office Working Party Report260 are devoted to police bail. Only eight paragraphs of the Victorian Statute Law Revision Committee’s 1969-1970 Report261 and only three in its even more far-reaching 1975 successor2 5 26-’ deal with the subject. There is but one chapter on it in the influential Cobden Trust Report of 1971 26 i. and only passing attention

25' cf. Crimes Act 1958, as amended. (Vie.) s, 461(1).

-5S Para. 44.

2512 Para. 89.

2<,n 'Bail Procedures in Magistrates' Courts" (1974). para. 179-180.

21.1 "The Law and Practice in Relation to the Granting and Rcspital of Bail', pp. 4-5.

21.2 'Bail Procedures', paras 17-19. The Committee's recommendation here went not much further than a suggestion that police make 'greater use" of their existing powers.

263 'Bail or Custody" by M. King (1971). pp. 5-9. Subsequently referred-to as 'C'obden Trust Report'.

76 j Criminal Investigation

in the textbooks.264 This relative lack of attention is mirrored in the law reports. Despite the myriad of cases on the considerations which should determine grant or refusal by magistrates and judges, there are but a handful of decisions on police bail265, with scarcely any reference at all to the criteria by which a police officer should be guided.

167. Legislation. The statute books, on the other hand, do have quite a deal to say about police bail266, but not in any very consistent, usefully detailed, rational, or up-to-date way. It is to be noted at the outset that the disconformity and disharmony of these statutory provisions assume significance in respect to the commission of offences against the laws of the Commonwealth. It will be remembered that it is provided by s.68(l) of the Judiciary Act 1903-1969 that:

the laws of each State respecting the arrest and custody of offenders or persons charged with offences, and the procedure . . .for holding accused persons to bail shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth committed within the

State, or whose trial for offences committed elsewhere may lawfully be held therein.267 It is instructive to observe some of the more important variations and inconsistencies. In the case of some provisions, the power of police officers to admit to bail is confined to alleged offenders arrested without warrant (see, for example, the A.C.T., Northern Territory and South Australian provisions). In respect to other provisions, the power is applicable to arrestees taken into custody with or without a warrant (see, for example, the Queensland and New South Wales enactments). So far as criteria governing the allowance of bail by police officers are concerned, in the case of the enactments in the Australian Capital Territory, Queensland, South Australia and Western Australia268, the criterion for release on bail is that the police officer concerned deems it ‘prudent’ to admit the arrestee to bail. In the case of Tasmania, under s. 34 of the Traffic Act 1925, the criterion of ‘prudence’ applies to ‘arrests for offences against this Act’. Under s.34 of the Justices Act

1959, bail may be refused for other offences if these appear to the police officer concerned to be o f ‘serious nature’. The relevant Victorian statutory provision, s.460 of the Crimes Act 1958, as amended, lays down a number of criteria which enable the police officer concerned to refuse bail; under s.460(6) a person is not to be discharged from custody where the police officer concerned believes on reasonable grounds that the continued detention of that person is necessary: (a) to ensure his appearance before a court of competent jurisdiction; (b) to preserve public order;

2,"‘ Sec c.g. Campbell & Whitmore, ch. 4.

21,5 One of the few is Ex parte Hughes; re Moulden and Anor (1946) 63 W.N. (N.S.W.) 293.

266 The provisions are as follows:

New South Wales : Justices Act, 1902, as amended, s. 153, and Justices Bail Rules, published in Government Gazette No. 157 of 4 December 1970. Victoria : Crimes Act 1958 as amended, s.460.

Queensland : Justices Acts, 1886 to 1968, ss.69A and 92(2) and (3). South Australia : Police Offences Act, 1953-1967. ss.78 and 80. Western Australia : Police Act 1892-1970, s.48 and Justices Act 1902, as amended, s.64. Tasmania : Justices Act 1959, s.34 and Traffic Act 1925, s.34.

Australian Capital Territory : Police Ordinance 1927-1975, s.24.

Northern Territory : Police & Police Offences Ordinance 1923-1974. s.34.

267 Emphasis added.

268 Police Act, 1892-1970, s.48 (W.A.) but not s.64 of the Justices Act 1902 (W.A.).

Release and B ail/ 7 7

(c) to prevent the continuation of repetition of the offence or the commission of a further offence; or (d) for the safety or welfare of members of the public or of the alleged offender.

These criteria correspond to those necessary, under s.458(l)(a) of the same Act, to effect a valid arrest.

168. There are other variations. For example, the Queensland provision269 is applicable only to arrestees taken into custody for ‘simple offences'270, whether with or without warrant, and who have been delivered into the custody of any police officer during his attendance at any police station. In other words, it is strictly a case of so-called ‘watchhouse bail’. In the case of Tasmania, the provisions in the Traffic Act are to be contrasted with that in the Justices Act. Apart from the difference mentioned above, the driver arrested for an

offence against the former Act may be released on giving his personal undertaking (as distinct from entering into a recognisance) to appear at such time and place as may be indicated by the police officer concerned, and on his depositing with such officer a sum equal to the maximum fine for the relevant offence, or the motor vehicle itself as security. Finally, there is a highly inconvenient fourteen-day limitation on the duration of police bail imposed by the A.C.T. and Northern Territory Ordinances, which does not appear to

apply in the other jurisdictions.

169. These Australian statutory provisions as to police bail are, to say the least, inadequate. They require updating in the light of the desiderata laid down in such reports as the Victorian Statute Law Revision Committee Reports, the British Home Office Working Party Report and the Cobden Trust Report, referred to above. Some of the provisions have their ancestry in English enactments of the nineteenth century relating to summary jurisdiction.271 With the exception of the Victorian provisions, none of the provisions

renders it mandatory for the police officer refusing bail to note or record the reasons for such refusal. Moreover, under the ‘prudence’ criterion and otherwise, the field of discretion left to the police officer concerned would appear to be too large and to allow opportunities for abuse. For the most part, also, the allowance of bail under these provisions is geared to the arrestee binding himself by recognisance, with or without

sureties, at the discretion of the police officer concerned, to make appearance at a later date. Apart from the element of vagueness and lack of specificity in these provisions as to the finding of sureties for an arrestee on bail, the system of personal recognisances is somewhat anachronistic and ought not to be relied upon as the linchpin of the allowance of bail by police officers. The British Home Office Working Party came to the view in its Report that the system of personal recognisances was ‘for all practical purposes largely ineffective’.272 This finding is not inconsistent with Australian experience.

170. Police Instructions. The lack of uniformity in the Australian statutory provisions relating to police bail is paraded by a similar disconformity in the instructions and general orders on the subject to be found in the Australian police manuals. The purpose of such instructions and general orders as deal with the subject in detail has doubtless been lo provide supplementary guidelines for the exercise of the discretion of the police officer, whose statutory responsibility is to admit an arrestee to bail, and or to impose necessary

1(Λ Justices Acts, 1886 to 1968, S.69A. 270 The term 'simple offence' denotes any offence, indictable or not. v.hich may be punishable upon summary conviction before a magistrates' court. 271 Justices Act. 1902 (N.S.W.). s.153. was an adaption of s.38 of the English Summary Jurisdiction Act 1879(42

& 43 Viet. c.49). See ex parte Hughes: re Moidden ά A nor (1946) 63 W.N. (N.S.W.) 293. per Jordan C J.

272 Paragraph 98, p.32. .

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obligations in regard to records of particulars as to the accused, recognisances taken, and in regard to the safekeeping of cash lodged by way of security, and other such matters. It is a fair criticism of the instructions and general orders that they fall short of giving adequate directions as to how the police officer’s discretion should be exercised. Indeed, they fall lamentably short of providing adequate guidance in respect of such matters as obtaining sureties for bail, and the fitness of such sureties, where one would have expected the clearest and most detailed guidance to be afforded, in the light of past experience. One can only infer from this that, if the practice of sureties for bail is to be continued to any perceptible extent, the rules and guidelines in this connection should be laid down, if not in statutory provisions at least in regulations made under statutory authority. This is important not only from the standpoint of police officers. It is also important for the accused and persons acting as sureties, or for his legal advisers and representatives.

171. Practice. It has not proved possible for the Commission to make a detailed comparative study of the incidence of police bail in the various jurisdictions of Australia. The most we could establish was that the proportion of arrested offenders released on police bail, during a three-month period in 1975, was 73.9% in the A.C.T., 73.1% in the Northern Territory and 25% for the Commonwealth Police (rising to 33% if prohibited immigrants are excluded).273 Although the Commonwealth Police figures look excessively low, it must be recalled that the policing function of that force is quite different from the Territorial forces, not least in that it does not encompass traffic and other routine offences. Complaints were made to the Commission about various aspects of police bail practice. But these complaints were largely confined—so far as the component units of the Australia Police are concerned—to the Northern Territory, and related mainly to excessive delays in the making of bail decisions.274 It must be emphasised that the Commission did not seek out such evidence and we have no means of deciding whether the evidence received was representative or truly based, though we have no cause to doubt the latter.

172. Problems. That is not to say, however, that the present administration of police bail gives any more cause for complacency than the law on which it is based. Our study of the official and unofficial reports on the subject indicate that there are a number of defects and abuses in the working of most police bail systems. There is no particular reason to suppose that ours are free of them. These defects and abuses include the following: (a) The absence in most jurisdictions of an established system for giving the arrestee

notice of his rights, before he secures legal advice or representation, or if he fails to get it. Some arrestees may seek information from the police as to their rights concerning bail, but many arrestees remain in complete ignorance as to the available possibility of release upon bail. This difficulty is compounded where the arrestee is a migrant, with little or no knowledge of the English language, and an interpreter in his particular language is unavailable or not supplied. (b) The difficulty for an arrestee of obtaining legal representation in order that his case

274 The figures (for the period March-May 19/5) arc as follows:

Arrests Police hail

Bui! a.\ o f arrests

A.C.T. 843 622 73.9

N.T. 1126 ,823 73.1

Cw’th Police 432 108 25.0

274 See submission of D. Avery (A.L.A.O., Darwin), Transcript. 17 July 1975, para. 473.

Release and Bail / 79

for the allowance of bail may properly be put forward before the police officer deciding the question of bail.275 (c) The so-called ‘bail bargaining’ between police officers and the arrestee, according to which it is claimed that arrestees are induced to make admissions, by way of a quid pro

quo for immediate release by the police on bail.276 This is asserted to be due to the large discretion which may be allowed to police officers so far as the grant or refusal of bail is concerned. In order to provide against the possibility of such an abuse of police officers’ discretion, solutions suggested are either that the principles and criteria

governing the exercise of such discretion should be laid down in explicit statutory provisions, or that the practice o f ‘bail bargaining’ should be made a statutory penal offence.277 (d) In some jurisdictions there may be no established rule of practice or regulation

requiring the police officer refusing bail either to note or record his reasons for such refusal, or to advise the arrestee of these reasons, thus enabling him to contest the refusal on appeal (if indeed an appeal is provided for at all). (e) The general haphazardness and fluidity involved in the present system of granting and refusing police bail, leading to inequalities in the treatment of persons in custody. (f) The inconsistencies in the approach of the police reflected in a refusal to allow bail upon arrest and before the arrestee has appeared in court, and in their subsequent consent to the court granting bail upon the appearance of the arrestee before a magistrate or judge.278 * (It may be that a useful reform in the practice would be for the court concerned always to insist upon an explanation for the change of approach, particularly where the arrestee is not legally represented before the court.) (g) The special hardships occasioned to an arrestee, under the present system, when he is

taken into custody during a weekend or during certain public holidays276 so that more than forty-eight hours could elapse before an appearance in court is possible. (h) The extent to which a refusal of police bail may lead to a disruption of the arrestee's family life, and have a detrimental effect upon his employment or prospects of

promotion, out of all proportion to the gravity of the offence charged. This is a matter of public interest which ought never to be overlooked in the decision-making process as to the grant or refusal of bail.

POLICE BAIL— PROPOSED PROCEDURES

173. The Commission has no doubt but that the principles and criteria governing the grant or refusal of bail by police officers should be systematically laid down by legislation. In preparing its recommendations, the Commission has carefully taken into account not only the many recent reports on the question of bail by official and unofficial law reform agencies, but also the legislative precedents established in the United States Bail Reform

Act of 1966 and the Canadian Bail Reform Act of 1971. Generally speaking, it has been thought desirable that so far as possible the police should follow the same principles as judges and magistrates in granting bail. To that extent it is hoped that these proposals may in due course promote the drawing up of uniform guidelines for court bail, a project which

275 Cobden Trust Report, pp.7-8 and M. Zander, 'Bail: A Reappraisal" [1967] Crim. L.R. 25. at p.28.

276 Cobden Trust Report, pp.6 and 8. and 'Granting Bail in Magistrates' Courts: Proposals for Reform (Howard League for Penal Reform. 1972). para. 40, pp. 10-11.

277 Cobden Trust Report, p.6.

278 ibid., pp.7 and 8.

27,1 ibid., pp. 5-6.

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is outside our present terms of reference but which we regard as urgently necessary. It should be said on this point, however, that the subject of police bail does involve a number of special problems different from those arising in respect to bail granted or refused by judicial officers. One important difference is in the quantity and quality of information which is likely to be available at the relatively early time the police bail decision has to be made. This may make it reasonable to express the presumption in favour of granting bail in slightly less stringent terms than would be appropriate in respect of court bail. Another consideration is that the condition of the arrestee, at the time he is taken into custody, may differ from his condition upon his appearance before the court. Because he is under the influence of liquor or drugs, or for some similar reason, it may be imperative that he should remain temporarily in custody.

174. One further general matter should be referred to. The Commission regards it as extremely important that the language of legislation, and criminal legislation in particular, should be intelligible to those governed by it. The language of the law of bail, perhaps more so than any other single area of criminal law or procedure, has been replete with archaisms unintelligible to men in the street and indeed many professional lawyers. The main candidates for dismissal from the statute book are ‘recognisance’, ‘surety’, ‘respital’ and

‘estreat’. More modern expressions such as ‘undertaking’, ‘guarantor’, ‘renewal’ and ‘forfeiture’ are in our view far more appropriate in modern legislation. While it should be emphasised that, as an English Committee has put it, ‘provisions designed to simplify a complicated system of law cannot always themselves be expressed in simple terms’280, this Commission takes seriously its statutory obligation281 to promote the simplification of the law. It does not see its task as extending to the creation of still more mysteries capable of being unravelled only by highly paid initiates.

175. The principal recommendations as to the procedure to be followed in granting police bail may be summarised as follows: (a) A person in custody charged with an offence must be fully informed (in a language which he understands, and where possible both in writing and orally) of his right to

apply for bail, to have legal advice in this respect and to communicate with such other people as may be necessary to obtain such assistance (for example someone to act as a guarantor) as he may need. He should also be advised, by being handed an appropriate written card, of the criteria which are to be employed in making the bail decision, and the kind of conditions upon which a person may be released on bail. (b) The decision to grant police bail, which may be made by any officer who is of or above

the rank of sergeant or who is for the time being in charge of a police station, may be made at any time after arrest and charge, but must be made within four hours from the commencement of custody (subject to such extensions on that basic time as may be permissible under the recommendations contained in Part 4 above). (c) The bail decision must be made by reference to specific criteria set out in the

legislation. Our recommended criteria are set out in detail below.282 A written record should be kept of the reasons for refusing bail in any case and given to the accused or his lawyer on demand. (d) There should be much more flexibility as to the conditions on which a person may be

released on bail. A series of conditions are suggested283 which ought to appear in the

280 Eleventh Report, para. 25.

281 Law Reform Commission Act 1973 (Aust.), s.6(l)(a).

282 Paras 179-182.

283 Paras 183-187.

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legislation in the form of a ‘priority list’, laid out in an increasing order of stringency, from unconditional release on a simple promise to appear, at the ‘soft' end of the scale, to release conditional upon the actual payment of a sum of money by the

defendant, or someone on his behalf, at the other end. The reasons for the choice of a particular condition should be noted and advised to the defendant or his lawyer on demand. (e) A person refused bail, or set conditional bail, should be notified of his right to appeal

against either the refusal or the stringency of the condition. That appeal should be brought on within one hour of the refusal of bail and it should take the form of a physical appearance before a justice or magistrate where one is reasonably available, or where one is not, by telephone or similar means of communication to a duty

magistrate. The defendant should have a right to representation by his lawyer in relation to any such appeal. (f) An arrested person who is released under these provisions, and who wilfully and unreasonably fails to appear as instructed, or breaks a conditions of release imposed

upon him, should be guilty of a criminal offence. (g) A senior police officer should have the power to revoke bail and rearrest a person where there are reasonable grounds for believing that he is absconding or breaking a condition of his release. (h) There should be no limit as to the duration of police bail which may be set. This is a

reform particularly desirable so far as remote areas of the Northern Territory are concerned. The present fourteen-day limitation on the duration Of police bail often works a hardship on defendants who must come before a justice or magistrate at the expiry of that period. (i) Other technical defects in the present law should be remedied. For example the

requirement in the A.C.T. that a person charged with a number of offences be separately bailed in respect of every one of them has no rational justification when one pauses to consider the fundamental rationale of bail.

176. Most of the recommendations set out above are either self-explanatory or will be explained in more detail in the sections on criteria and conditions below. Some further comments may. however, be necessary in respect of item (e) with respect to appeals, and (f) with respect to the creation of a criminal offence for breaking conditions of bail. So far as appeals against police bail decisions are concerned, the Commission’s proposal is based on legislative precedents, in particular s.460(7) of the Victorian Crimes Act 1958, as amended. The addition of a specific time limit seems to the majority of us to be necessary, for reasons similar to those advanced in the discussion of the proposed four-hour limit on police custody above.284 What will make this time limit workable is the availability of duty magistrates, at least in the A.C.T. and Northern Territory, who will be prepared to hear bail appeals out of hours. Whether this system can be made to work in respect of

federal offenders in the States is something that remains to be seen. Hopefully arrangements can be made with the States to this effect. It may be necessary to provide for the hearing of such appeals by, say, a Canberra magistrate over the long-distance telephone which links all parts of this country on virtually instant access. The notion of

modern technology being employed in the service of the law is not one that is entirely familiar to most lawyers. It may be the no less appropriate for that.

111. As to the proposal in item (f) above that absconding, or the wilful breach of a bail condition, should be made criminally punishable in its own right, this has been a

284 Para. 90.

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recommendation common to all the latest reports on the subject, most recently in the Victorian Statute Law Revision Committee’s 1975 report upon ‘Bail Procedures’.285 At present when an accused person fails to appear as required, any deposit lodged by a surety on his behalf may be forfeited and a warrant is issued for the arrest of the person on the original charge. As will appear below, the Commission wishes to place much more emphasis on non-monetary conditions of bail and generally to widen the opportunities and incentives for such release. If the worst that can happen to a person jumping bail or breaching a non-monetary condition is that he is proceeded against on the original

charge, there is no real disincentive against his doing just that. At least, and this is probably more important, this is the way the situation is likely to appear to bail decision makers. For these reasons we think it just, and appropriate, that the person who fails to answer to bail, provided he has acted wilfully or unreasonably in the circumstances, should be subject to an additional statutory penalty. However, that penalty should, under no circumstances, exceed any penalty which might have been imposed in respect of the original offence.

CRITERIA FOR BAIL

178. Present Position. Consideration of the factors which should govern the exercise of the bail grantor’s discretion must be regarded as the centre-piece of the law of bail. But, as often seems to be the case, the law is here at its most irritatingly vague. The statutes on the subject do no more than hint at the kind of considerations that working policemen are likely to regard as most relevant. The innumerable common law judgments on the subject have either tended to focus on some particular criterion without putting it into any kind of perspective, or alternatively to produce a shapeless list of criteria in which first- and second-order considerations are jostled erratically together.286 When the law is so vague, it is not difficult to proceed without much overt reference to it. This indeed seems to have

been the case so far as police bail decisions have been concerned. We think it is desirable and possible to introduce a little more precision into this area of the law. The criteria for police bail should be set out in the legislation under three distinct headings which address attention respectively to the probability of appearance, the interests of the accused and the protection of the community.

179. Probability o f Appearance. This has traditionally been the most important criterion, and rightly so. But whether an accused will appear or abscond is not something which can be intuited. It is necessary to look at a number of more specific factors which may bear upon the respective probabilities. There are two distinct groups of relevant factors. The first is of a general kind and the second more specifically related to the particular situation. They are, respectively: (a) the background and community ties of the accused person, as indicated by his

residence, employment and family situation and prior record; and (b) the circumstances of the particular charge, including its nature and seriousness, the strength of the evidence against the defendant, and other specific information, for example the recent purchase of air tickets, going to the likelihood of the person

absconding. At least so far as the factors in (a) are concerned, the Commission apprehends that it is possible to introduce a much greater degree of objectivity into the bail decision than has

285 Paragraph 64, p. 13.

286 On the latter point, see in particular R. v. Light [1954] V.L.R. 152, the judgment by Sholl J. in which is widely regarded as the last word on the subject.

Release and Bail j S3

hitherto been the case. We are impressed with the evidence that has accumulated as to the successful experimentation in a large number of jurisdictions with the points system devised by the Vera Foundation in New York in its Manhattan Bail Project.287 There have been a number of variations on this system. It would no doubt have to be adapted in some respects to local circumstances if it were to be employed in Australia. The basic model works as follows.288 The person charged is interviewed by the arresting officer, who works through a four-factor questionnaire designed to elicit information found by independent empirical research to be relevant to successful pre-trial release. The officer may seek to verify the information supplied concerning residence, family ties and employment by telephone or by field visits. Points are allocated by the police officer in accordance with the following scale. In order to meet the threshold qualification, the accused needs an address in the area and five points from the following categories:

A. Prior record

B. Family ties

C. Employment

D. Residence in area

E. Time in area F. Discretion

2 No convictions 1 One misdemeanour conviction 0 Two misdemeanour convictions or one felony conviction — 1 Three or more misdemeanour convictions or two or more

felony convictions 3 Lives with family and has weekly contact with other family members 2 Lives with family and has weekly contact with family

1 Lives with non-family person 3 Present job one year or more 2 Present job four months or present and prior job six months

1 Current job, or receiving unemployment compensation or welfare or supported by family or savings 3 Present residence one year or more 2 Present residence six months or present and prior one year

1 Present residence four months or present and prior six months 1 Ten years or more 1 Pregnancy, old age, poor health or attending school

In the Manhattan system, this recommendation is then communicated to the court which is free to accept or reject it. During the three year trial study of the Vera Foundation Project, 3505 persons were released on recommendation. Only 1.6°0 failed to reappear, as compared with a 3% absconding rate under the previous system.289 Follow-up projects elsewhere have tended to confirm these results.290 A small-scale study was undertaken in Australia in 1968 to determine whether a list of the Manhattan type would be successful under local conditions. It involved matching the characteristics of a group of 51 defendants who had absconded against those of a group who had not. The author

287 The Commission has received much assistance in its present exercise from the Vera Foundation. For accounts of the M anhattan system in operation see C. Arcs. A. Rankin, and H. Sturz, 'The M anhattan Bail Project: An Interim Report on the Use of Pre-Trial Parole' (1963) 38 A . Y.L'.L.R. 67; M. Zander "Bail: A Reappraisal' [1967] Crim. L.R. 25, at 28; and Note. "An Analysis of the Citation System in Evanston. Illinois: Its Value, Constitutionality and Viability' (1974) 65 ./. Crim. L. & Crim. 15.

288 The following account is taken from K. L. Milte, "Pre-Trial Detention’ (1968) l ! Λ Z ./ Crim. 225.

289 ibid, at p. 237.

2911 See the studies cited in note 287. ,

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concluded that the results obtained indicate that the Manhattan bail test is a relatively accurate screening device for those likely to abscond if released pending trial.291

180. It is important to appreciate that the points system is in no sense meant to be a substitute for the exercise of discretion in granting bail. It is simply a means of giving shape and coherence to one extremely important group of factors that should weigh in the bail decision. If it does nothing else, the system at least works as a useful check-list to ensure that the mind of the bail decision maker is directed in a systematic way to each of the factors in the list. Too often the bail determination otherwise tends to be based on a fleeting and impressionistic consideration rather than a properly systematic one.292 The Commission does not now go so far as to recommend that this point system, or anything like it, should be incorporated in terms in the proposed legislation. What we do recommend is that serious consideration should be given to the adaptation of the

Manhattan points system to Australian circumstances, and that the system be introduced by way of regulations, or at least Police Commissioner’s instructions, as a guide to the way in which this aspect of the bail criteria should be applied. Although the Manhattan scheme was formulated with court rather than police bail in mind, we see no reason at all why the system should not be applied at the earlier stage. It poses the critical questions for the mind of the police officer considering the bail decision.

181. Interests of the Accused. The more particular bail criteria subsumed by this description are: (a) the period which the defendant may be obliged to spend in custody if detained and the conditions under which he would be held; (b) the needs of the defendant to be free to prepare for court appearance, to obtain legal

advice, or for any other reason; and (c) whether the defendant is incapacitated by virtue of intoxication, injury or use of narcotics, or is otherwise in danger of physical injury or in need of physical protection. These various factors have not often been spelt out in the cases but are manifestly part of the equation whereby bail is determined. The considerations listed in (c) are arguably more relevant to police than court bail, as was noted above.

182. Protection of Community. The suggested criterion here is the likelihood of the defendant interfering with evidence or intimidating witnesses. These provisions are unlikely to be controversial, although questions may well arise as to what is to count as evidence of such a likelihood. It was proposed that another criterion should be added, namely the likelihood of the defendant committing further offences should he be released. This proposal raises more difficult questions. On the one hand there is the concern that persons released on bail might commit further serious offences, particularly of the crimes against property type.293 This attitude found judicial favour with Atkinson J. who said in R. v. Phillips294 that ‘Magistrates who release on bail young housebreakers (should) know that

291 S. Armstrong ‘An Application of the M anhattan Bail System to Offenders in New South Wales'. Proceedings o f the Inst, o f Criminology, Univ. of Sydney, No. 3 (1969), 39 at p. 41.

292 This is certainly so in respect of court hail. For example, a study o f bail cases at Sydney's Central Petty Sessions showed that in only four of I 19 bail matters were criteria relating to occupation, family and residence discussed before the court: Armstrong, at p. 41. See also Zander, 'Bail: A Reappraisal' and Ά Study of Bail/Custody Decisions’.

203 Submission on behalf of the Commonwealth Bank Officers Association by Mr K. Walsh. Transcript, 21 July 1975, para. 641: submission on behalf of Mayne Nickless Ltd by Mr J. Mullctt. Transcript. 9 July 1975. para. 31.

294 (1947) 32 Cr. App. R.47; cf. Shell J. in R. v. Light [1954] V.L.R. 152, at p. 156.

Release and Bail / 85

in 19 cases out of 20 it is a mistake’. The contrary point of view is, simply, that preventive detention is not a part of the rule of law. The Commission’s opposition to preventive detention in any form has already been stated above295 in the context of powers of arrest. If the accused on release proceeds to commit another offence he should be dealt with then. He should not be punished in

advance by the loss of his liberty because of speculation as to what he might do if he secures it.

CONDITIONS OF BAIL

183. Just as the criteria which should entitle an officer either to grant or refuse bail should be set out in the most definite and explicit manner possible, so too should be the provisions setting out the conditions on which bail, once granted, should be allowed. The legislation must be both flexible to cover a variety of different circumstances, and yet quite precise. The Commission’s recommendations have drawn on the United States Bail Reform Act

1966, s.3146. The first requirement is that it be clearly established that there is a power to release a person arrested and charged, simply upon that person being given a notice and signing a formal undertaking to appear at a court at an appointed time and place. That release may be quite unconditional, or it may be made subject to such conditions as are

thought appropriate in the circumstances of the particular case. The power to impose conditions should not be confined to monetary conditions. The economic discrimination involved in monetary bail has long been a subject of concern. Further, it has now been widely recognised that monetary bail is a very blunt instrument and not well equipped to

distinguish between different kinds of bail risk. If the concern is less with the likelihood of the accused’s non-appearance than with the possibility of his interfering with witnesses, this could be better met by a condition of non-communication with such witnesses than by

any monetary sum which might be forfeited in the event of non-appearance. Similarly, the prospect of the accused committing further offences might conceivably be met by attaching conditions such as night curfew or reporting to a police station at certain times.

184. The different kinds of general conditions which might be imposed should be set out in systematic form in the legislation. As we foreshadowed above296 the conditions should be set out in the form of a priority list laid out in an increasing order of stringency. Everyone in respect of whom a decision to release on bail is made should be required to sign a simple

form of ‘undertaking to appear’. Thereafter, any additional conditions that might be imposed will depend on the responsible officer’s assessment of what is necessary to ensure the appearance of the defendant, prevent him intimidating witnesses, or to satisfy any of the other criteria upon which bail might be granted. He should consider each of the

following options in the order stated: (a) unconditional release; (b) release conditional on the defendant’s signed agreement to observe any non-financial conditions as to his conduct reasonably imposed by the responsible officer:

(c) release conditional on the signed acknowledgment from a third party, acceptable to the responsible officer, that he is acquainted with the defendant and regards him as a responsible person likely to appear as instructed if released; (d) release conditional on the unsecured agreement of the defendant, or any other person

acceptable to the responsible officer, to forfeit a specified sum of money if the defendant fails to appear as instructed; 21,5 Para. 41.

206 Para. 175(d). .

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(e) release conditional on the secured agreement of the defendant, or any other person acceptable to the responsible officer, to forfeit a specified sum of money if the defendant fails to appear as instructed; and

(f) release conditional on the payment by the defendant or any other person acceptable to the responsible officer of a specified sum of money to be forfeited if the defendan t fails to appear as instructed. Notwithstanding the above order of dealing with the bail question an arrested defendant should have the right to request release on any terms acceptable to the responsible officer regardless of the priority listing.

185. As stated, the order of this list reflects an attempt to move from the least to the most onerous forms of release. The responsible officer is required to make a positive determination that one form of release is insufficient to allow for elfective law enforcement and protection of the public before he can move onto the next. One obvious

difficulty may be that in many cases an unsecured promise to pay cash (or even the actual deposit of cash) will be less onerous than other forms of release appearing earlier in the list. However to place money bail high in the list for this reason would perpetuate the present system of automatic financial conditions without consideration of the possible alternatives. It would accordingly preserve the economic discrimination which this has

tended to mean in practice, especially as bail sums are generally set by a reference to the nature of the offence and not the means of the accused. The concluding reservation is an attempt to meet this objection. It would allow persons in custody to opt, with the consent of the officer in question, for a condition later in the list, such as monetary deposit, rather than the one set for them. For this to work, of course, people would need to clearly understand their options. It is part of the Commission’s proposal that they be given a simple written explanation of the priority list at the time the bail decision is made. To the objection that this involves yet another piece of paper, the Commission

would respond that the more one can bring rationality and sensible articulate explanations into the criminal process, the more it will command the respect of the community.

186. Although the proposed system may at first sight appear to be complicated, the individual components of it do not seem to require elaborate explanation. It will be noticed, so far as (c) is concerned, that we have moved away from the traditional view of the surety's role, namely that of being personally financially responsible for the defendant’s failure to appear. What is retained is the notion of the value of the surety being his good opinion of the accused; the good opinion, that is, of a person who appears to the bail decision maker to be trustworthy. So far as the money bail provisions (d), (e) and (0 are concerned, which graduate from an unsecured promise to pay, through a secured promise, to a cash deposit, it is not intended that the alternative here allowed of payment by an acceptable third person be simply an old-fashioned surety provision. Payment by a third person should not be required under any circumstances as a form of guarantee but should be permissible as a means of assisting the defendant if he cannot raise the cash or security himself. Where a father, husband, friend or the like pays the defendant’s bail on his behalf it is hardly reasonable to require that this cash or security be deposited in the defendant's own name.

187. One further small reform is called for which may save a great deal of inconvenience in practice and bring the law up to date with modern conditions. It is the adoption of a provision similar to that contained in s.222(4) of the Victorian Justices Act 1958, as amended. This subsection provides that where bank passbooks, deposit stock cards and the like are lodged as security for bail, and where the person so lodging the security subsequently wishes to substitute a cash deposit therefor (in order to avoid the

Release and Bail / 87

inconvenience of the account being frozen), such substitution is permissible. Another minor reform that seems called for is to provide that the legislation should contemplate, in the appropriate case, the acceptance of a cheque or other modern means of payment as security in lieu of cash. Australian society follows closely upon others

where a requirement to produce cash as security may impose impossible conditions, although the suspect has undisputed access to very substantial credit. No modern law should overlook these changes.

7. Search, Surveillance and Entrapment

INTRODUCTION

188. It is necessary now to deal with three kinds of investigative procedure which are not essentially, or usually, associated with situations of police custody. The first, one of the most important in this report in terms of its character and practical relevance in day-to­ day police operations, is search and seizure. The Commission’s focus here is upon the search of premises and vehicles and the seizure of property incidental to such searches. The question of ‘seizure’ has larger legal and policy ramifications than we can deal with here. A number of submissions were put to us about anomalies in customs and other legislation, going both to excessive power on the one hand and limitations of power on the other.297 However such issues, although needing legislative attention, go more to the substantive law than to police power. Accordingly they have been treated as being outside the immediate terms of reference of the Commission. The second issue discussed is the vexed one of electronic surveillance by means both of telephone tapping and other eavesdropping devices. Although, as we will explain, we do not think the criminal investigation legislation proposed in this report is the appropriate vehicle for attempting the reform of this area of the law, we state our views as to what the principles governing any such legislation should be. The third topic raised under this subject is entrapment, which might in general terms be described as the practice of solving crime by assisting, encouraging, counselling, procuring, soliciting or inciting it to take place. In the United States the use of agents provocateurs has long been regarded not only as unsavoury (in which most, would agree) but also in some respects unlawful. The issue has been given much less attention in Australia than it deserves.

SEARCH AND SEIZURE

189. Present Law and Practice—Search Warrants. The common law is jealous indeed of the right of the individual to limit entry to his home or business premises to those whom he expressly or impliedly allowed admission: ‘the house of everyone is to him as his castle and fortress’.298 2 9 9 Search warrants were allowed only for stolen goods. Even then they were allowed only if issued by a judicial officer who was satisfied that there were reasonable grounds for the search, and if the warrant described with particularity what was to be searched and seized. It was enough that the warrant described a class of things (rather than particular things), or at least specified the offence in relation to which the search and any consequential seizures were authorised. But the common law was, and remains, hostile to any greater degree of generality. In Chic Fashions Ltd v. Jones299 the Court of Appeal in England decided that a constable who enters premises by virtue of a search warrant may seize not only the goods which he reasonably believes to be covered by the warrant but also any other goods which he believes on reasonable grounds to have been

297 As to the latter, for example, it was argued that there ought to be a power in the Northern Territory to order destruction of the carloads of liquor taken illegally on to Aboriginal missions by European profiteers: at the moment such persons are convicted, fined—then given their liquor back. See Inspector Taylor. Transcript. 16 July 1975, para. 349. .

298 Lord Coke in Semayne's Case (1604) 5 Co. Rep. 91a.

299 [1968] 2 Q.B. 299.

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stolen. The case can be regarded either as extending the law on search warrants, or alternatively as creating a new class of permissible warrantless seizures. It has been much criticised on the ground that it undermines the common law requirement of particularity of description.300 Its authority in Australia is as yet uncertain. Whatever the force of this

recent development, however, it remains true to say that the common law has, ever since the great constitutional case of Entick v. Carrington301 in the eighteenth century, totally rejected general warrants, that is to say those search warrants which, to a greater or lesser extent, purport to empower the holder to go anywhere at any time, in relation to any

offence, search any place or person, and seize any thing.

190. Statutory extensions to the common law power in respect of search warrants have taken three distinct forms, two of them unexceptionable, the third less so. In the first place there have been piecemeal extensions of the warrant power to cover particular classes of offences. For example, the Police and Police Offences Ordinance 1923-1974 (N.T.), s.22, allows the issue of warrants to search houses used for prostitution, and provisions of the Crimes Act, 1900 (N.S.W.), applicable in the Capital Territory, enable search warrants to issue in respect of explosives, forging equipment and property in relation to which it is suspected that an indictable offence has been committed.302 The second kind of extension is to be found in a number of Australian jurisdictions, but most relevantly for present purposes in s. 10 of the Commonwealth Crimes Act 1914-1973. This section authorises the issue of search warrants in respect of any Commonwealth or Territorial offence, provided

that certain detailed conditions are satisfied. These conditions essentially conform to the common law rules set out above. Section 10 was the subject of detailed and rigorous exposition by Fox J. in R. v. Tillett; ex parte New ton A03 His Honour there held that a warrant issued under this section should show on its face that the justice himself was

satisfied by information on oath that there were reasonable grounds for the warrant to issue. These grounds should amount to reasonable grounds for suspecting that there were in the premises certain things, and reasonable grounds for believing that they would

afford evidence as to the commission of a particular offence against the law of the Commonwealth or of a Territory, as specified in the warrant. Further, the warrant should authorise seizure only by reference to the offence specified. It was not essential that the warrant should specify the person suspected of the offence in issue, or a period for the execution of the warrant, or—in every case—the particular things to be seized. The

general description ‘books, documents or other things’ would, therefore, have amounted to sufficient particularity in the instant case had the offence in question been specified.

191. The third kind of statutory extension has given more cause for concern. This is the statutory provision for general warrants. It occurs in the State legislation of South Australia304 and Tasmania.305 It is also found in the A.C.T.,306 the Northern Territory30' and under the Customs and Excise Acts.30* The Northern Territory general warrant which, like the South Australian, is unlimited as to the places, times or offences with respect to which it may be executed, is at least limited to the extent that it may only be

Sec. c.g. ('.iinplxll & Whitmore, p. 66 and references cited therein. 3,11 (1765) 19 State Tr. 1407, and see Holdsw orth's History o f English !.an\ col. 10. pp. 659. 660. 667-72.

.cos Sections 354, 355.

3,13 (1969) 14 F.L.R. 101.

504 Police Offences Act, 1953-1973, s. 67 (the repeal of which has now been recommended by the South Australian Committee).

305 Police Offences Act 1953, s. 60. roe p 0nce Ordinance 1927-1975, s. 14.

3,17 Police and Police Offences Ordinance 1923-1974. s. 21.

3OT Customs Act 1901-1974, ss. 198-201; Excise Act 1901-1974. ss. 88-9.

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issued by the Senior Judge of the Northern Territory (albeit for a period of up to twelve months at a time). It may only be executed at places outside a radius of one hundred miles from Darwin, Alice Springs, Tennant Creek or Katherine. The rationale of the warrant is

doubtless to be found in the remoteness and isolation problems of law enforcement in that Territory.309 But the Commission’s proposal for telephone warrants, explained below310, will hopefully remove the necessity for this provision. The general warrant in the Capital Territory, like that in Tasmania, can be issued only in respect of searches for stolen goods.

However each is issued not by a judicial officer but rather the respective Commissioner of Police, for a period of up to six months in each case.

192. Under the Commonwealth customs legislation there are two forms of general warrant available. First there is the Writ of Assistance which is obtainable only from a High Court or Supreme Court judge upon application made by the Minister or Comptroller of the Customs Department. Such writ remains in force ‘so long as any person named therein remains an officer of Customs’.311 Secondly , there exists a Customs Warrant, issued by the Comptroller of Customs or any State or Territory Collector of Customs for a period specified by that officer. Either form of warrant entitles the bearer to ‘at any time in the day or night enter into and search any house premises or place and . . . break open the same and search any chests trunks or packages in which goods may be or are supposed to be’.312

The extent to which powers under these warrants are exercised, and the extent to which the exercise of such powers has in fact given rise to complaint, appears to have varied somewhat between the different jurisdictions mentioned. It is nonetheless perfectly obvious that the powers conferred are all of them quite extraordinarily wide in their scope. There is no requirement in any of them that before the powers are exercised an independent judicial mind should consider the circumstances of the particular case, weighing the public interest as against that of the individual concerned. Nor is there any effective way in which any of the powers once exercised can be the subject of ex post facto judicial review.

193. Present Law and Practice— Searches Without Warrant. The common law power to search without warrant was confined to searches incidental to a valid arrest. As has already been stated313, this power extended only so far as was necessary either to remove weapons or to preserve evidence. Just what this means has been the subject of some uncertainty. On the narrowest view, search incidental to a lawful arrest extends only as far as the physical area within which the person arrested might obtain weapons or evidentiary items of a

destructible character.314 Another view is that it can extend as far as the seizure of any goods in the arrested person’s ‘possession or in his house’.315 There is now some authority for the proposition that warrantless searches can take place in certain circumstances

309 The Commission was informed in Darwin that the Senior Judge would no longer issue such a warrant, following in this respect the views of Blackburn J. when Senior Judge in the Northern Territory; see Transcript, 17 July 1975, para. 410 (submission of Commissioner W. J. McLaren).

3ln Paras 201-2.

311 Customs Act, s. 198.

3,2 Customs Act s. 200; the Excise Act in s. 88 qualifies this slightly by referring to packages etc. in which ‘excisable’ goods may be found.

313 See para. 58.

3M This is certainly the American view: see Chimel v. California 395 U.S. 752 (1969).

315 Ghaniv. Jones [ 1970] 1 Q.B. 693 per Lord Denning M.R. An even more extreme, and apparently discredited, if not overruled, view is that pursuant to an arrest the police may seize any property they find which is evidence o f a crime committed by anyone: Elias v. Pasmore [ 1934] 2 K.B. 164.

Search, Surveillance and Entrapment , 91

otherwise than in the context of an arrest. In Ghani v. Jones316 the Court of Appeal in England held, obiter, that the police, having ‘somehow’317 obtained access to premises, could take property and detain it for reasonable time if they reasonably believed that a very serious offence had been committed, that the property was the fruit of the crime or

the means by which it had been committed, or material evidence to prove its commission, and that either the person in possession was involved in the crime or his refusal to give up the property was ‘quite unreasonable’. The credence Australian courts will give to this excursion remains a matter of some uncertainty.

194. As with searches with warrants, there have been innumerable statutory extensions of the power to search and seize without warrant. The most conspicuous of such powers under Commonwealth .law are those conferred under the Customs and Excise Acts.318 In the Territories, the powers most frequently used appear to be the ‘stop, search and detain’

powers under s.16 of the A.C.T. Police Ordinance 1927-1975, and s.23 of the Northern Territory Police and Police Offences Ordinance 1923-1974. Each of these sections provide that: any member (of the Police Force) may stop, search and detain—

(a) any cart, carriage or vehicle in or upon which there is reason to suspect anything stolen or unlawfully obtained may be found, and (b) any person who is reasonably suspected of having, or conveying in any manner, anything stolen or unlawfully obtained.

In addition to this kind of provision, there are in every jurisdiction a mass of statutory provisions authorising various inspectors to enter and search, without warrant, various areas or premises for various purposes—under Health Acts, Fisheries Acts. Stock Diseases Ordinances, Fisheries Ordinances. Scaffolding and Lifts Acts and Ordinances, and the like. Some of the Acts and Ordinances in question do confer powers on policemen,

but only for the immediate purposes of the particular legislation. In practice these powers tend to be exercised by policemen only in remote areas, where it is impractical to have the usual inspectors or other specialised officers visit.

195. From the material placed before the Commission in its public sittings it appears that, in practice, very many of the searches of premises undertaken by police officers are made not in immediate reliance upon either search warrants, general or special in charatacter, or by reference to common law or statutory powers of search without warrant. They are made, or are claimed to be made, at the ‘invitation’, or at least with the consent, of the occupier in

question. We were told, without securing any figures on the question, that 'most' of the searches conducted in both the Northern Territory and the A.C.T. are conducted on the basis of consent. Specific figures given to the Commission by the former Narcotics Bureau of the Customs Department, now to be amalgamated into the Australia Police, indicate an exactly similar picture. In the six-month period from January to June 1975. 346 searches were conducted around Australia by this Bureau. Of these. 215. or 6 2 " , were

made by consent. One hundred and twenty-eight of these, or 59",,, in turn yielded drugs. In the 131 cases where the search was made with the aid of a general w arrant. 82 seizures, representing 62% of this group, were made. Officers of the Narcotics Bureau state that

316 [1970] 1 Q.B. 693. ,n 'The police have to get the consent of the householder to enter if they can: or if not. to do it b\ stealth or force. Somehow they seem to manage. No decent person refuses them permission, [f he does, he is probably implicated in some way or other. So the police risk an action for trespass. It is not much risk'., ibid., per Lord

Denning M R. at p. 705.

3,8 c.g. Customs Act, ss. 1S7, 196, 197 and Excise Act. ss. 87 and 90. .

92 j Criminal Investigation

they have had but a handful of complaints made against the Bureau or its officers in respect of search activities. It was said that there has never been a civil action for damages initiated against the Bureau or its officers. By the same token the Commission did receive complaints from citizens who had suddenly and unexpectedly been the subject of such searches, concerning the overwhelming numbers and force brought to bear and the exhaustive, intrusive searches conducted.31®

196. Recommendations—Overview. The power to search and seize is undoubtedly a very necessary one for police to have. It has great destructive potential so far as the right to privacy and civil liberties generally are concerned. The power must therefore be capable of justification on every single occasion on which it is used. On this view, the continued

existence of general search warrants cannot be countenanced. In the Commission’s view such provisions should long ago have disappeared from the Commonwealth and Territorial statute books. We recommend that their demise be delayed no longer. In clarifying and reforming the law of search and seizure, however, there is a need to go further than the removal of general warrants. The creation of the Australia Police brings with it a need, here as elsewhere, to have applicable to that force a single set of codified provisions applying uniformly over the whole of Australia to replace, so far as possible, the present muddle of statutory provisions and uncertain common law rules.

197. The Commission’s recommendation is, put shortly, that all searches and seizures be unlawful unless made pursuant either to a court order or warrant, or, if made without a warrant, in accordance with one of the following criteria: (a) in response to circumstances of such seriousness and urgency as to require and justify

immediate action without the authority of such an order or warrant; (b) at the invitation, or with the consent, of the person occupying the premises or in charge of the vehicle in question, a signed acknowledgment being prima facie evidence that such an invitation was made or consent given, the absence of such

acknowledgment being prima facie evidence that it was not; or (c) pursuant to specifically designated statutory authority.

198. What we mean to achieve by the above general provisions is the subject of more detailed exposition in the paragraphs which follow. In particular, we shall indicate the improvements that we think can be made in relation to the issuing of warrants3 1 9 320 and shall outline a proposal for the introduction of telephone search warrants.321 We shall indicate

briefly why we think explicit provision in respect of searches by consent should be made322 and will also indicate the existing statutory authority in respect to search and seizure that ought to be preserved, and that which ought to be amended.323 As to the proposed category of warrantless searches described in (a) above, our view is that while the legislation should not attempt to state exhaustively the situations which could satisfy the standards of ’seriousness and urgency’ there referred to, it is appropriate that three specific classes of ‘urgent’ searches be spelt out. These classes are: (i) searches incident to arrest; (ii) emergency searches necessary to prevent loss of evidence; and (iii) searches of persons and vehicles suspected on reasonable grounds to be carrying any

319 An anonymous submission, Transcript, 9 July 1975, paras 331".; submission of M r J. Billington, Transcript, 9 July 1975, para. 56.

320 Para. 200.

321 Paras 201-202.

322 Para. 205.

323 Paras 206-209.

Search, Surveillance and Entrapment / 93

article which is an offensive weapon, or is either the fruit, instrument or material evidence of the commission of a serious offence. Of these, we have dealt with (i) above324, and there is no need to repeat here what was there said; (ii) needs some explanation325, and (iii) perhaps needs some justification326, which we offer below.

199. It may be noted that the Commission’s search and seizure recommendations are modelled to some extent on the United States Fourth Amendment doctrine. The Fourth Amendment to the United States Constitution provides that:

The rights of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

By judicial interpretation, this constitutional provision has come to mean that searches made without a warrant are unreasonable, and therefore unconstitutional, unless they fall within certain exceptions. The exceptions to the warrant requirement fall into three

groupings.327 In the first place, there are searches on consent, either that of the party affected328 or someone authorised by that party to control access to the places or things searched.329 Secondly there are a limited class of ‘routine’ searches, including border searches of persons and objects entering the United States330 and searches of premises licensed for the distribution of such regulated commodities as firearms and liquor.331 It should be noted that administrative inspections of buildings for violations of building and health codes and the like are not exceptions to the warrant requirement, but there is here some relaxation of the requirement of particularly of description.332 Searches in these cases remain subject to the Fourth Amendment’s general requirement of reasonableness. They may not be made in an abusive or unduly intrusive manner. The third and most important group of exceptions involves cases where there is probable cause (i.e. reasonable grounds for suspicion) but where there is a fast developing situation which

precludes resort to a magistrate or, as some courts have put it, where there is a ‘compelling need for immediate action’. The main situations here are searches incident to arrest,333 ‘stop-and-frisk’ searches, i.e. the brief street detention of a suspicious person accompanied by a pat-down search for weapons334, and searches of motor vehicles that are capable of being driven away before a warrant can be procured, provided the

searching officer has probable cause to believe that the vehicle contains criminally related

324 Paras. 58-59.

325 Para. 203.

326 Para. 204.

327 The following brief account is largely drawn from A.G. Amsterdam. ‘Perspectives on the pourth Am endment’ (1974) 58 Minnesota L.R. 349, 358-60.

328 e.g. Davis v. U.S. 328 U.S. 582 (1946).

327 e.g. Frazier v. Cupp 394 U.S. 731, 740 (1969).

330 Almeida-Sanchez v. U.S. 413 U.S. 266 (1973).

331 See v. Seattle 387 U.S. 541 (1967); U .S.v. Biswe/l 406 U.S. 311 (1972): Colonnade Catering Carp. v. L.S. 397 U.S. 72(1970).

332 Camara v. Municipal Court 387 U.S. 523 (1967).

333 Sec e.g. Chimel v. California 395 U.S. 752 (1969). 'ii j v ohm y>2 L.S. 1 (1968). The grounds here need not actually amount to probable cause for arrest, but they must consist of ‘specific and articulable facts which . . . judged against an objective

standard . . . “ warrant a man of reasonable caution in the belief' that the action taken [is] . . . appropriate': ibid, at p. 21 -2. .

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objects.335 It appears that warrantless searches for other highly mobile articles—e.g. luggage deposited for shipment out of rail or air terminals—are also permissible when there are reasonable grounds to believe that they contain criminally related objects.336 It also seems that there is a more general class of ‘exceptional circumstances’ in which the

imminent removal or destruction of seizable items might permit warrantless searches337, but except in the ‘hot pursuit’ of the fleeing and dangerous criminal338 the Supreme Court has never applied this language to validate an entry into a building without a warrant. Again, searches in this third group of exceptions must be conducted in a reasonable manner and their scope is limited by their specific justifications.

200. Warrant Procedure—General. As foreshadowed in the discussion of arrest warrants above339, the Commission’s recommendations here are aimed at putting beyond doubt the obligation of the justice or magistrate issuing the warrant to satisfy himself that there are reasonable grounds for doing so, and to introduce formal machinery to ensure that that obligation is discharged in practice. In both these respects we propose nothing more than what has been stated to be the law by the Supreme Court of the A.C.T. in R. v. Tillet; ex parte Newton340, and that which has been police practice, at least for the Territory and Commonwealth Police, since that decision. The following extract from General Order 49 of the Commonwealth Police General Orders341 summarises both our concern and the practice we desire to see introduced:

There has been a general, if not universal, practice, in cases where a search warrant is sought under s.10 of the Commonwealth Crimes Act, for a Commonwealth Police Officer having knowledge (either personally or on information and belief) of the facts to swear before the justice a document described as an Information in which the officer

states as a conclusion that there is reasonable ground for suspecting that there is in particular premises something answering the description contained in one of the lettered paragraphs of s.10. This, as the Supreme Court of the Australian Capital Territory has held, provides no basis for the issue of a warrant and it is necessary that the facts and circumstances known to the police be put before the justice on oath so that the justice may determine whether, on that material, he is satisfied of the matters which the section commits to his decision. In many, if not all, cases the written information has been supplemented by oral evidence given on oath before the justice. While the giving of oral evidence before the justice would seem to be an appropriate course when circumstances preclude the preparation of a document setting out the facts and circumstances relied upon, a general practice should be established and followed o f preparing such a document.342 The preparation of such a document would

not only assist the police officer concerned in clarifying in his own mind the basis upon which the warrant is sought, but it would facilitate . . . consideration of the matter and would also provide, in case of a challenge to the validity of the warrant, a record of the material placed before the justice. The contents of the document should be

incorporated in the body of a form o f ‘Information’ to be sworn before the justice.

3,5 Chambers v. Maroney 399 U.S. 42 (!960); cf. Cooiidge v. New Hampshire 403 U.S. 443 (1971).

336 For detailed citations see Amsterdam, η. 116 at p. 446.

337 See Chapman v. United States 365 U.S. 610, 615 (1961).

338 Warden, Md. Penitentiary v. Hayden 387 U.S. 294 (1967).

339 Para. 26.

340 (1969) 14 F.L.R. 101; para. 190.

341 Being part of the text of advice to the Commonwealth Police from the Commonwealth Crown Solicitor after the Newton case.

342 Emphasis added.

Search, Surveillance and Entrapment, 95

We would add to this a recommendation that the judicial officer should be required to endorse the informant’s detailed information, or affidavit appended thereto, to the effect that he is satisfied with the reasons there set out—or if not satisfied with any or all of them, then that fact too—and noting whether he relies on any material343 other than that set out in the written reasons.

201. Telephone Warrants. The use of the telephone is by no means unknown in judicial procedures. Urgent applications for injunctions or for orders in the nature of habeas corpus have been made and granted on a number of occasions by this means. Bearing in mind the difficulties that will be experienced by officers of the Australia Police, particularly in the Northern Territory, in gaining access to magistrates, it seems to us the natural application of a modern convenience that the telephone should be used, in

appropriate circumstances, to gain the authority to make a search. The Commission’s recommendation here, it will be noted, parallels the earlier recommendations that the telephone be used for seeking extensions, where necessary, of the basic four-hour period344 and also in the context of appeals from refusals of police bail.345 We propose that the procedure for obtaining a search warrant by telephone, when it is impracticable to proceed in the normal way, should be as follows: (a) the police officer shall state his reasons for seeking the warrant, which the magistrate

shall either accept or reject, keeping a written record of his reasons and of the date and time of approval where a warrant is granted: (b) the police officer shall complete a warrant form in all respects but for the magistrate's signature, and use this as necessary in the search;

(c) as soon as reasonably practicable after the search is completed, the police officer shall forward the warrant to the magistrate for endorsement, attaching a signed statement of the reasons advanced in originally seeking the warrant; and

(d) on receipt of the warrant and statement of reasons, the magistrate shall endorse them and file them with a court in the normal way.

202. We propose that, in order to maintain some control over this procedure and avoid, in particular, any suggestion of ‘forum-shopping’, telephone warrants should be available only from magistrates and not justices of the peace. The Commission has discussed with magistrates both in the A.C.T. and the Northern Territory the practicality of maintaining

a duty roster of magistrates in order to deal with out-of-hours applications, and has been assured that such a roster system would be acceptable and viable.346 Some of the magistrates indeed indicated that they regarded it as entirely proper and desirable that they should have the opportunity to exercise a greater degree of control over the issuing of

such warrants than has hitherto been the case. The Commission appreciates that some practical difficulties could arise in respect to the activities of the Australia Police in the States, in the absence of any more widely based roster system being developed there. The

solution to this may well be, as we indicated previously in discussing police bail appeal applications347, the use of the telephone to call long distance to Darwin, Alice Springs or. more likely, Canberra, to the duty magistrate there rostered. We see no constitutional difficulties in extending the jurisdiction of the Territorial magistrates in this way. but it

may prove necessary to make consequential amendments to the Judiciary Act 1903-1973

543 Which will usually take the form of supplementary oral evidence from the police officer concerned.

344 Para. 89(f).

345 Paras 175(e), 176.

34,1 See Transcript, 17 July 1975, paras 482, 485.

347 Para. 176. ■

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and the Service and Execution o f Process Act 1901-1968 if the scheme is to have a sound legislative base. The alternative and preferable solution would be to secure the co­ operation of State magistrates in the implementation of this law.

203. Emergency Searches Necessary to Prevent Loss o f Evidence. Circumstances may be envis­ aged in which there will be a compelling need for immediate action in relation to a search which makes quite impracticable the obtaining of a warrant, even by the means suggested in the preceding paragraph. We have been told, and have no reason to doubt, that such

situations do arise with some frequency in the area of major narcotics law enforcement in particular, the searches in question not being technically describable as searches incident to arrest, as we have rather narrowly defined that power.348 It is impossible precisely to delineate the permissible scope of such emergency searches in advance; everything will depend on the way in which the courts are prepared to construe and apply the notion. We envisage, and hope, that the law will develop very much along the lines of the American experience, noted above.349

204. Stop and Search. Ever since 1839350 the London Metropolitan Police have had the power to "stop, search and detain’ any person or vehicle reasonably suspected of carrying anything stolen or unlawfully obtained. It is a power which is capable of being, and apparently has been, exercised with restraint. It has undoubtedly been of very considerable utility in law enforcement. As has been noted already351 such powers have

also been enjoyed for some time in both the A.C.T. and the Northern Territory. We are persuaded that it is both appropriate and necessary to retain this power, and indeed, if the law is to conform with the reality of police practice, to extend it slightly. We accordingly recommend that the power to search persons and vehicles without warrant should be extended to the following situations, namely where there are reasonable grounds to suspect that there may be found (i) an offensive weapon or (ii) something which is the fruit of a serious crime, the means by which it was committed, or material evidence to prove its commission. By a ‘serious’ crime we mean, here as elsewhere, one punishable by a

sentence of more than six months’ imprisonment.352 The requirement of ‘reasonable grounds to suspect’ is intended to be, and hopefully will be, objectively testable. It seems to us that any misuse of this power, for the purposes of harassment of citizens innocently going about their business, would be eminently well suited to disciplinary action of the kind discussed below.353

205. Searches by Consent. The proposed exception for consent is not quite as obvious as may appear at first sight. It has been argued that none of the rights we have recommended ought to be susceptible to waiver at all. If waiver is possible it can be abused, leading to the necessity for protracted judicial definition of what amounts to an acceptable waiver and all the uncertainty in law and practice which this implies. United States law does allow

rights against search and seizure to be waived, but it has not adopted a consistent stance on the question w hether the person consenting should be informed of his rights.354 The argument in favour of allowing waiver is that unnecessary delay, and possibly prejudice,

348 Paras 58-59.

349 Para. 199.

350 Metropolitan Police Act 1839 (U.K.) s. 66.

351 Para. 194.

352 Paras 36-37.

353 Paras 301-302.

354 ‘Consents may not be coerced, by explicit or implicit means, by implied threat or covert force"; Sclmeeklotliv. Bustamante AM U.S. 218, at p. 228 (1973): but the same case then holds that neither warning or knowledge of the right surrendered is a necessary precondition of valid consent- sec at pp. 227-34.

Search, Surveillance and Entrapment j 9 7

may ensue if an innocent person who does wish to assist the police finds that he cannot do so because to do so would involve a technical breach of his rights under the legislation. The Commission considers, on balance, that an appropriate solution is for searches on consent to be permitted, provided that such content is entirely voluntary and is made after

being informed of the right to refuse consent. Although we do not wish to multiply unduly the number of pieces of paper that police officers must carry about with them, we think that the rights in question here are sufficiently important of protection to require that any consent on which the police rely in conducting a search should be acknowledged in writing. The absence of any such written acknowledgment would be prima facie evidence that no such notification was made, or consent given.

206. Searches Pursuant to Other Statutory Authority. It has already been explained355 and need not be repeated here why it is that the Commission has treated the powers of customs officers as being within its terms of reference and the powers of all other federal officers, apart from members of the Australia Police, as being outside them. Our recom­ mendations so far as the search and seizure powers of customs officers are concerned are relatively straightforward. First, all references to general warrants356 should be

repealed. They should be replaced by a power to search with a warrant obtained from a magistrate, and without warrant in circumstances of compelling need for immediate action, the power in both respects running parallel with that available to members of the Australia Police. In the particular white-collar-crime context of revenue frauds, there

should be a specific power to search for and copy documents pursuant to warrant, similar to that contained in cl.263(4) of the Corporations and Securities Industry Bill 1975.

207. Secondly, there are certain existing powers of search without warrant conferred by the Customs Act 1901-197 4357 which are perfectly appropriate in a border situation but which in terms are not so limited. The Commission’s recommendation here is that the power to detain and search suspected persons, or vehicles, should be restricted in its application to ‘customs areas’, which would be defined to include ports, wharves, dock-side warehouses, customs halls, airport aprons and their environs.358 There may be a case, so far as personal searches within customs areas are concerned, for slightly extending the permissible scope of personal searches beyond the limits we specified in our discussion of this above.359 It may, for example, be not unreasonable to permit customs officers to engage, where they have reasonable grounds for suspicion, in a complete external search

of the person of a suspect without calling in aid a medical practitioner. However we certainly could not countenance customs officers themselves engaging in any search of body cavities. Such a procedure should be carried out in the same way as has been

recommended for police medical examinations above.360 So far as the general supervision of personal searches by customs officers is concerned, the present provision in s. 196 of the Customs Act whereby a suspected person may require to be taken before a justice or the collector before he is searched should be amended by confining the review power to a justice and requiring that the person be notified of his right of access to a justice before any

such search is undertaken.

208. The third way in which customs powers should be amended is by introducing a "purpose"

155 Paras. 17-18.

35'> Paras 189, 191-192.

337 Sections 187-90. 196. 197. 197A.

It would '..Vi'i' appropriate that the power applied to all persons within these areas, whether or not of the status of an in com in g or outgoing passenger.

354 Paras 58-59.

Ml Paras 130-133.

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limitation on those powers which are presently open-ended, but which cannot in practice be confined to any particular geographic area. The main provision here is s. 187 of the Customs Act which permits the customs officer to board and search ‘any ship, boat or aircraft’. Although it is perhaps unlikely that a customs officer would be tempted to employ this power in searching a houseboat on Lake Eildon. the power should nonetheless be qualified by specifying that it be ‘for the purpose of ascertaining whether any dutiable goods, prohibited imports or prohibited exports are contained in the ship, boat or aircraft’.361

209. So far as federal officers other than those in the Police and Customs Department are concerned, it will be necessary that specific statutory exemptions be contained in the proposed legislation in order to preserve the powers presently enjoyed. As to those specialised Acts and Ordinances which confer powers of search and seizure upon policemen as well as other officers362, the Commission has been unable in the time

available to make a systematic and thorough examination of all the relevant legislation in order to determine whether any powers inconsistent with those recommended above have been conferred upon policemen. It appears, however, that such powers as are conferred on policemen by these provisions are confined narrowly to the purposes of the particular legislation, making possible abuses of power unlikely. Pending a systematic review of such legislation it would be as well, however, to provide specifically in the proposed legislation that any power conferred on police officers by existing legislation shall be construed as

being confined solely to the purposes of that legislation. It is perhaps worth pointing out that very many of the powers referred to in this paragraph, namely those exercised by other federal officers, either alone or in conjunction with police officers, would no doubt satisfy the description o f ‘routine’, ‘regulatory’ or ‘administrative’ searches which in the

United States have been held compatible with the Fourth Amendment.363

210. Remedies for Unlawful Search and Seizure. At present in Australia the victim of an unlaw­ ful search or seizure has only his tort remedies; an action in damages for trespass, and possessory relief. There is no general or automatic bar on the admissibility of evidence unlawfully obtained; if it is relevant it is almost invariably admitted into evidence.364 The possibility of excluding the evidence depends solely on the exercise of the judicial discretion to. exclude evidence unfair to the accused, and this is rarely exercised.

The most that can usually be hoped for by way of redress is the cold comfort of judicial admonishment to the police officers involved. The weaknesses of these remedies, which are such that if continued in their present form they would render irrelevant, in terms of their practical effect, the rules proposed above, are discussed further in Part 11 below. We envisage that the primary mechanisms for the enforcement of the search and seizure rules in the future will be, in the first place, a discretionary exclusionary rule, and secondly, a police discipline code, proceedings under which shall be capable of initiation by external complaints. Both of these mechanisms will be discussed in detail in Part 11.

ELECTRONIC SURVEILLANCE

211. The Devices. The surveillance devices of particular concern in the delimitation of police

361 In addition to the recommended amendments of the Customs Act, it will be necessary to amend along the same lines certain other similar legislation administered by the same department, in particular sections X7-9 and 104 of the Excise Act 1901-1974.

362 As noted in para. 194.

363 Para. 199.

364 Kuruma v. R. [1955] A.C. 197. 203: sec further the discussion in para. 288.

Search, Surveillance and Entrapment i 99

powers are those acoustical365 devices which intrude upon individual privacy in such a way that ordinary methods of avoiding the attentions of eavesdroppers or informers are ineffective. Devices of this nature include keyhole microphones, spike microphones,

directional microphones, induction microphones for telephone tapping, ‘infinity transmitters’366 and laser beam listening devices capable of detecting sounds from their impact upon a window pane.367 No doubt technological advances will promote the appearance of new devices, or refined versions of those mentioned above. The question of

the proper legal control of the use of such surveillance devices demands more detailed attention than we have been able to give it in the course of this reference. For reasons stated below, we think that, in any event, the whole question would be more appropriately dealt with in separate privacy protection legislation, rather than the proposed criminal

investigation legislation. Accordingly, the present discussion is limited to indicating briefly the present law on the question, the nature of the problem, alternative possible approaches to its solution, and the Commission’s tentative views as to an appropriate solution.

212. Present Law. At the Commonwealth and Territorial level, the only legislation368 controlling the use of listening devices by public officials or private persons is the Telephonic Communications (Interception) Act 1960-1966 and s.86 of the Telecom­ munications Act 1975, together with certain regulations and by-laws made thereunder.369 The Telephonic Communications (Interception) Act prohibits the interception of

communications passing over the telephone, subject to certain exceptions, the most notable of which relate to national security surveillance. Section 6 of the Act provides for interception by the Australian Security Intelligence Organisation (A.S.I.O.) under the warrant of the Attorney-General in circumstances in which security surveillance is

required otherwise than on an emergency basis. Section 7 makes provision for emergency interception under the warrant of the Director-General of Security. In the former case the warrant may remain in force for a period of six months, and in the latter no more than forty-eight hours. The other category of lawful interceptions relates to telecom­

munications officers acting in the course of their duties; no offence is committed, for example, where such an officer intercepts a communication in order to trace the origin of a call of an indecent or abusive nature. The definition o f ‘interception’ in s.4 of the Act is

cast in terms such that no offence is committed where a communication is listened to or recorded after passage over the telephone system. Accordingly it appears not to be an ‘interception’ to use an extension phone to overhear a conversation or to record a conversation by means of a tape recorder and microphone connected to the receiving handset.370 However, it is to denoted that By-Law 19 of the Telecommunications General

365 Optical surveillance devices, like binoculars, cameras and infra-red night-viewing scanners, can also raise privacy invasion problems, but not of the same magnitude as those with respect to listening devices.

31,6 These are devices inserted into telephone handsels which, when activ ated by dialling the number and giving an ultrasonic note on the last digit, prevent the telephone ringing and transmit over the dialler's telephone all the sounds in the room in which the telephone dialled is situated, whether the handset is on or olf.

361 U.K. Report of the Committee on Privacy (1972). Cmnd. 5012 (Younger Committee).

3,18 For the common law position, which does not afford any direct remedy, sec A. Darvall and D. Emmcrson. ‘Eavesdropping: Four Legal Aspects' (1962) 3 Melh. I'.L.R . 364.

Section 86 of the Telecommunications Act prohibits the interception of information passing over a telecommunications system, which for these purposes docs not include the telephone system. The clause is based substantially upon the corresponding provisions of the Telephonic Communications (interception)

Act; provision is made for national security (but not police) surveillance under warrant b\ rcg. 37 of the Telecommunications Regulations 1975.

3711 In R. v. Matthews & Ford[ 1972] V.R. 3 at p. 13 it was acknowledged by the Full Court of the Supreme Court of Victoria that tape recordings of certain telephone conversations had been illegally obtained under .v 5 of

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By-Laws 197 5 371 prohibits the unauthorised recording of communications passed or received over a telephone line. Unless authority is secured from the appropriate official (the conferring of which authority seems itself in any event to be inconsistent with the Telephonic Communications (Interception) Act), the result is that a police recording

made, say, in a hijacking or kidnapping situation, even with the consent of the person receiving the call, would contravene the regulation.

213. The present federal law has been criticised on a number of grounds. First, under the Telephonic Communications (Interception) Act, surveillance for the purpose of national security is not subject to any judicial control.372 The risk of abuse may be increased by the very wide definition o f ‘the security of the Commonwealth’ in s.3 of that Act.373 Secondly, the use of listening devices other than those related to the interception of telephonic communications is not covered. The result is that the use of electronic surveillance in

many situations appears to be subject only to the uncertain and unreliable degree of control afforded by the general discretionary power of courts to prevent an abuse of process, or to exclude evidence improperly or unfairly obtained. Thirdly, the Act is arguably too restrictive. No provision is made for telephonic surveillance by police even in circumstances which may meet the requirements, of particularity of description and the like, prescribed for the lawful search and siezure of physical objects. Those requirements might conceivably be met in some cases of monitoring without the consent of either party

to a conversation374, and would be met in many cases where monitoring is conducted with the consent of one party.375 214. Four States—New South Wales,376 Victoria,377 Queensland378 and South

the Telephonic Communications (Interception) Act. The C ourt had earlier stated, however, (at pp. 11-12) that the recordings resulted from a tape recorder being attached to a telephone handset, and that what was intercepted by the tape recorder was not the electrical impulses passing along the wire before they reached the receiver, but rather the reconverted sounds produced by the receiver: this would suggest that there was not an ‘interception’ within the meaning of the Commonwealth Act. There may of course have been a breach of By­ law 19; see following discussion.

371 Formerly reg. 16A of the Telephone Regulations under the Post and Telegraph Act 1901-1974, which Act was repealed by One Postal and Telecommunications Commissions (Transitional Provisions) Act 1975, s. 4. Except for the removal of an averment provision, there is no substantive difference between reg. 16A and By-Law 19. The fine for a breach of the By-Law is $50, cf. $ 1000 or imprisonment for two years under s. 5( 1) of the Telephonic Communications (Interception) Act.

372 cf Note, ‘Foreign Security Surveillance and the Fourth Amendment’ (1974) 87 Harv. L.R. 976.

1-3 Vi/, "the security of the Common uealth” means the protection of the Commonwealth and the Territories of the Commonwealth from acts of espionage, sabotage or subversion, whether directed from, or intended to be committed, within the Commonwealth or n o t’.

314 Consider the facts of K at: v. U.S. 389 U.S. 347 (1967), the case which overruled Olmstead v. U S. 277 U.S. 438 (1928) in deciding that all judicially unauthorised eavesdropping was unconstitutional, and in so doing confirmed Brandeis’s theory of the Fourth Amendment as a guarantor o f a broad right o f privacy. Here the F.B.l. reasonably believed that the accused was using certain telephones for illegal gambling purposes at

about the same time each day. When the accused was seen approaching the two booths in question, a wire­ tap was installed for the duration of his conversation and then removed on each occasion. Six recordings were made and used. N o search warrant had been obtained, and for this reason the Supreme Court held that the surveillance violated the Fourth Amendment. However the Court stated that the search was of such limited nature that a search authorised by warrant (with appropriate safeguards) would have been

compatible with the Constitution. For a full discussion of Kat: v. U.S. sec E. W. Kiteh. 'Kat: v. United States: The Limits of the Fourth A m endm ent' (1968) Sup. Ct. R. 133.

375 For example, in the hijacking or kidnapping cases mentioned in the preceding paragraph.

377 Listening Devices Act, 1969 (N.S.W.).

377 Listening Devices Act 1969 (Vic.).

378 Invasion o f Privacy Act of 1971 (Qld).

Search, Surveillance and Entrapment 101

Australia379—have legislation purporting to control the use of listening devices. In each case, ‘listening devices’ are defined widely so as to include any instrument, apparatus, equipment or device capable of being used to overhear, record, monitor or listen to a private conversation. In each case, there are two basic exemptions from the general

prohibition on the use of such devices. The first exemption relates to the situation where the person using the listening deice is a party to the private conversation in question. This would appear to authorise, for example, the Victorian police practice, referred to shortly below, of recording the read-over of a record of interview by a suspect in circumstances

where the suspect has no knowledge that the exchange is being recorded but the police officer who is reading or listening to the record certainly does.380 The second, more important, exemption is a general one relating to the use of such devices by police officers,381 whether or not with the consent of any party to the conversation. In Victoria

and Queensland the use of such devices by police officers is at least controlled to the extent that a judicial warrant is necessary: in Queensland from a judge of the Supreme Court, and in Victoria from a Stipendary Magistrate. In New South Wales police use of listening

devices may be authorised by certain prescribed senior police officers, and judicial intervention is not required. However such officers must be satisfied that the use of the listening device is necessary either for the conduct of an investigation in regard to an offence that has been committed, or, in respect of an offence that is about to be, or reasonably likely to be committed, is for the purpose of obtaining evidence of the

commission of the offence or the identity of the offender. It is to be noted that neither here nor in any of the other State Acts is there any limitation as to the class of offence with respect to which the use of listening devices by the police may be authorised. The South Australian Act reflects the least sensitivity to the dangers involved in the use of listening devices. Unlike the Victorian or Queensland legislation there is no requirement of prior judicial authorisation.382 Indeed, even the administrative controls provided do not go to

the extent of requiring the detailed prior authorisation that is necessary under the New South Wales Act. There is not even a requirement that the police officer using the device must believe that its use is necessitated by the unavailability, or failure, of other means of enforcement.

215. Finally it should perhaps be said that all the State legislation is on its face wide enough to permit duly authorised police officers to intercept telephone communications by the use of appropriate devices. However, it cannot seriously be doubted but that the Commonwealth Telephonic Communications (Interception) Act 'covers the field' in this respect. Section 109 of the Australian Constitution provides that ‘when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid". There is clearly an inconsistency here between the Commonwealth law, the effect of which is to prohibit wire tapping by police, and the State laws, the effect of which is to allow it. State legislation cannot authorise police officers to do what they would not be entitled to do under the Commonwealth Act.

379 Listening Devices Act, 1972 (S.A.) 380 if indeed this read-over to a police officer constitutes a "private conversation': Victorian Police Standing Orders, para. 1438B, express the opinion of the Solicitor-General that an interrogation is not. Under s. 3 of the Victorian Act ‘private conversation’ means 'any conversation carried on in such circumstances as may

reasonably indicate that the parties to such conversation desire it to be confined to such parties, but does not include a conversation made in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard’.

381 The Victorian, Queensland and New South Wales Acts extend this exemption to Commonwealth customs and national security officers, in each case with no requirement of prior judicial authorisation.

382 A point of criticism taken recently in the South Australian Committee Report, p. 140.

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216. Present Practice. The extent to which electronic surveillance devices are currently being used by police, national security and other law enforcement officers, and in the private sector, has been the subject of a very great deal of comment and speculation but not much hard evidence. The most detailed evidence which is available concerns in fact the most sensitive area of all, that of national security. The then Attorney-General, Senator Murphy, informed the Australian Parliament in April 1973, in a written answer to a question383, that the number of authorisations of interceptions made for security purposes under the Telephonic Communications (Interception) Act had been as follows

over the preceding ten years: 1964 — 62 1965 — 70 1966 — 75

1967 — 105 1968 — 95

1969 — 80 1970 — 95 1971 — 105 1972 — 115 1973 — 107

Although figures have not been made available for the number of people and conversations overheard in the course of these interceptions, the figures may be assumed to be very large. This is particularly so given the fact that A.S.I.O. taps authorised by the Attorney-General are usually for periods of three months or six months.384 If American figures as to the ratio of persons and conversations overheard to wire-taps installed are any kind of guide, it may indeed have been the case that the 107 wire taps authorised in the year ending March 1973 resulted in the overhearing of as many as 12 000 different people engaged in as many as 68 000 conversations.385 So far as the use of listening devices by the component units of the Australia Police is concerned, there is no reason to believe that there has been any telephone interception in breach of the Telephonic Communications

(Interception) Act or telephone regularions. Nor is there any evidence before this Commission as to the use of other devices to monitor other forms of private conversation.

217. There is no systematic evidence as to the use of listening devices by State police forces for the purpose of intercepting telephone conversations. But from time to time allegations have been made that the Commonwealth legislation has been infringed in this way. Some of the more notable incidents include the Aldermen of Bankstown case in 1964, the Qantas bomb hoax in 1971 and the Hallahan case in 1972. In the Bankstown case, tape recordings of certain telephone conversations taken by members of the New South Wales Police Force were admitted in evidence during the preliminary hearing of conspiracy charges against several aldermen. The then Prime Minister, Mr Menzies, wrote to the then Premier of New South Wales to inform him that the recording in this case appeared to have been in breach of the Telephonic Communications (Interception) Act. The Prime

Minister asked that the attention of the State Police be drawn to that Act to avoid future contraventions.386 In the Qantas case, it was widely believed, though never officially acknowledged, that the New South Wales Police had been assisted in tracing the call of ‘Mr Brown’, the extortionist involved, by means contrary to the Commonwealth Act. No

383 Parliamentary Debates (House of Representatives) 12 April 1973.

383 The Telephone Communications (Interception) Act s. 6(4) enables the issue of such warrant for 'a period that does not exceed six m onths’.

385 Figures compiled by Professor H. Schwartz of the State University o f New York, reported in the ,Yeir York Times of 19 December 1971, reveal that 271 eavesdropping operations installed in 1969 in fact involved 31 436 people overheard in 173 711 conversations. This ratio of persons and conversations to wire-taps, if indeed accurate for the United States, may. it is conceded, in fact be wildly astray for Australia. But there is no more precise information on the public record.

38" Information supplied to Commission by Attorney-General's Department. It appears that no reply was ever received.

Search, Surveillance and Entrapment 103

complaint was every publicly made as to this suggested infringement. R. v. Hallahan was a case heard before His Honour Judge Broad in the Brisbane District Court on 14 August 1972, which involved a charge of corruption against a Queensland Police Officer. It appeared in the course of the evidence that the Queensland Police had, in pursuit of their investigations, made a tape recording of a telephone conversation between the accused and another, by means of an induction coil placed adjacent to the telephone wire. His

Honour, without giving reasons, declared the evidence so obtained to be inadmissible. Following this case the then Attorney-General, Senator Greenwood, wrote to the Queensland Minister for Justice and Attorney-General, Mr Knox, requesting that the

apparent breach of the Commonwealth Act be drawn to the attention of the Queensland Police so that such circumstances did not again occur.387

218. Listening devices have been used by police forces for purposes other than the initial gathering of evidence. Hitherto this has not been done very extensively or systematically. The Commission has recommended above388 that so far as possible the tape recording of interviews with suspects should be a normal part of police procedure. The only Australian police force to have used tape recordings with any real degree of frequency has been the

Victoria Police. This was done in response to recommendations to this effect from the then Solicitor-General, Mr Murray, in 1965.389 For one reason or another, and at least partly because of the physical difficulties of recording when a typewriter is simultaneously clattering, the use of tape recordings is now restricted to those cases where a suspect is willing to read aloud the record of interview or confession after it has been recorded in writing. Where he cannot read, the confession is read over to him. What brings this practice within the present discussion, rather than our treatment of the question of tape recording of interviews earlier in this report,390 is the fact that it is normal practice for this reading-over recording to be made without the knowledge of the accused person. Sound­ proof interview rooms with concealed microphones have been set up at Russell Street Police Headquarters and in at least another dozen suburban and country C.I.B. stations,

and these have been inspected in connection with the Commission’s present exercise. The Supreme Court of Victoria has held that tapes so obtained are admissible in evidence irrespective of whether the accused has been informed that the tape recorder is operating, provided that the tape is an accurate record of what occurred, the voices of those participating are properly identified and the contents are relevant to the charge in issue.391 3 9 2

That Court has also accepted the legitimacy of admitting only part of the interview record, i.e. the final reading over and not the interview itself: ‘it is either persuasive corroboration or it is not, and that is a matter for the jury’.302

219. Issues. The arguments for and against the use of surveillance devices in law enforcement have varied somewhat in their persuasiveness depending on whether the monitoring is

387 Inform ation supplied by A ttorney-G eneral’s Department.

388 Paras 156-159. 589 B. L. M urray, M em orandum to the Victorian Attorney-General 'Procedure on the Interrogation of Suspected Persons by the Police’ (1965), in D. Chappell & P. Wilson (eds). the Australian Criminal Justice System (1972), 405.

390 Paras 156-159.

391 R. v. Nilson [1968] V.R. 238 (Full Court): cf. R. v. Maqsud A/i[ 1966] QB 688. The Victorian Listening Devices Act 1969 does not appear to affect this position, either because the situation in question is not proper In­ describable as a ‘private conversation' (see note 380 above) or because it comes within the exception in s. 4(1 )(a) o f the Act providing that it is not an offence for one person to record his conversation with another. It

is, further, open to the police to get an authorisation for the secret recording of a private conversation in any given case under s. 4(3) of the Act.

392 R. v. Pitarresi, Gowans J, 23 June 1966 (unreported).

104 Criminal Investigation

conducted with or without the consent of a party to the conversation. So far as monitoring without consent is concerned the main arguments in favour of the law allowing at least some such eavesdropping are as follows. First, it is essential if law enforcement is to be effective against the increasing sophistication and complexity of crime today, particularly

in the context of national and internal security, kidnapping, serious vice offences, narcotics trafficking, gambling, and ‘organised crime’ generally. The relevant activities of such criminals themselves almost invariably take place in secret. This position was expressed forcefully in the U.K. Report of the Privy Counsellors Appointed to Inquire

into the Interception of Communications.393 The second argument is the negative one that there is an insignificant distinction between, on the one hand, eavesdropping by means of listening devices and, on the other hand, observation by means of police informers, or police officers observing a suspect with the aid of binoculars (and perhaps lip-reading), or listening from an adjacent place of secrecy, all of which have never been prohibited. To the extent that listening devices may involve a greater risk of invasion of privacy, adequate protection may be afforded by a requirement akin to that of securing a search warrant.

220. Against these, the following counter-arguments are advanced. First, it is sometimes disputed that listening devices are an essential law enforcement tool. Many serious offences, including murder and robbery, typically involve sudden non-repetitive encounters. Some offences, notably kidnapping, may justify no more than monitoring with the consent of the person with whom the suspect communicates. Some offences, of the type loosely described as ‘victimless crimes’, arguably justify a low level of enforcement and perhaps even decriminalisation altogether. The issue plainly turns upon

personal assessments of the relevant balance between the enforcement of the criminal law and individual privacy and liberty. To concede that listening devices may make enforcement easier is not ipso facto to concede that their use is justified. Law enforcement would also be made easier if various other time-honoured and accepted protections, including those relating to search warrants and detention for investigation, were modified or removed.

Secondly, it is urged that there is a material distinction between eavesdropping by means of listening devices and eavesdropping observation by such conventional means as police informers or observers. Listening devices lend themselves to a far greater invasion of privacy. Persons cannot ensure their security and privacy by resort to private places beyond the reach of the hearing or vision of human eavesdroppers (even if equipped with ocular aids). The insecurity of a society devoid of the opportunity of private communication has only to be stated to be guarded against. Another consideration is that

listening devices in operation inevitably record many conversations which should be excluded, either because they impinge upon some privileged communication, e.g. between a suspect and his lawyer or doctor, or perhaps even more importantly because they are of

no relevance whatever to the suspected offence in question. What most distinguishes electronic surveillance from ordinary search and seizure for physical objects is that electronic surveillance tends by its very nature to be exploratory, unselective and indiscriminate. In effect it involves a type of general search warrant. This is particularly so given the lengthy period of operation for ‘searches’ by listening devices usually contemplated by their proponents. One hundred and seven authorised phone ‘taps’ in a

year does not seem much of a price to pay for national security, but when one considers the number of conversations, and conversationalists, that may be involved the issue is more grimly posed.

383 1957, Cmnd. 283, especially para 150.

Search, Surveillance and Entrapment j 105

221. The arguments relating to the use of listening devices with the consent of one party to the relevant conversation, which in a law enforcement context means with the consent of the police officer or police informer, can be briefly stated. Monitoring of this type is arguably no more than an extension of the use of informers. It involves much less risk of widespread

intrusions upon privacy in that listening is normally confined to conversations, over the telephone or otherwise, between the informer and suspect. Furthermore, it is possible to subject the monitorings to a search warrant procedure closely based upon that relevant to searches for physical objects. Greater specificity of the object is possible, and the

opportunities for the monitoring of conversations beyond the purpose of the search are limited. The prospective party to a conversation can normally anticipate the relevant time, place and circumstances of the conversation more easily than can a third party who

proposes to monitor without consent. The objections to monitoring with the consent of one party are not as easy to state as was the case with respect to third party non-consensual eavesdropping. They are difficult to disentangle from larger arguments—which the Commission cannot accept—that the use of informers in law enforcement should be totally prohibited. It is argued that the use

of listening devices creates a risk of invasion of privacy beyond that arising from the use of informers only. It has been put as follows:

[t]he risk added by electronic participant monitoring is that what could have been related to a non-participant selectively, inaccurately, after the fact, and supported only the word of the relator, will now be related in its entirety, accurately, perhaps simultaneously, and supported by independent evidence.394 The point being made here is not the ‘sporting contest' notion that the more probative

evidence is, the less fair it is to use it against the accused. The concern is rather that freedom of speech and discourse generally is unduly hampered by the knowledge that anyone with whom one talks may be ‘wired for sound’. It is surely a universal human characteristic to talk with different levels of concern for the veracity of what is said,

depending upon the audience and knowledge of the use which will be made of what is said, quite apart from questions of criminally motivated concealment. The point has been made well by Louis Schwartz:395 3 9 6 Free conversation is often characterised by exaggeration, obscenity, agreeable

falsehoods, and the expression of anti-social desires or views not intended to be taken seriously. The unedited quality of conversation is essential if it is to preserve its intimate, personal and informal character.

222. If monitoring is to be allowed at all, whether or not subject to prior judicial authorisation or some other means of restraint, an important question arises as to whether it should be permitted only in respect of certain classes of offence, and if so which. One view is exemplified by recent United States399 and Canadian397 legislation. Both of these Acts

restrict the use of listening devices to a specified range of serious offences, including those within a loose definition o f ‘organised crime". It was submitted to the Commission that the offences for which authority might be granted in Australia to use surveillance devices should be confined to those cases in which there is. or has been, serious injury to body or

394 W. Greenawait, ‘The Consent Problem in Wire Tapping and Eavesdropping: Surreptitious M onitoring with the Consent of a Participant in a Conversation" (1968) 69 Columbia L.R. 189. n.22 at p.218.

395 L. B. Schwartz, ‘On Current Proposals to Legalise Wire Tapping' (1954) 103 V. of Pennsylvania L.R. 157 at p. 162. "

396 Omnibus Crime Control and Safe Streets Act 1968 397 Protection of Privacy Act, 1974. ·

106 I Criminal Investigation

threat to life, offences involving hard drugs, and offences involving fraud or extortion. There are problems, of course, with any attempt in this context to limit the relevant offences to such particularised categories as soon as one seeks to define the categories. For example, bribery and other offences relating to the administration of justice might on the face of it be excluded. Y et, since these offences are often committed in secrecy, a case could be made out for their inclusion. Many offences against property which do not simultaneously involve a threat to life or limb might prima facie be excluded, though these are a subject of widespread concern. The most expansive view would have it that listening devices are needed in respect of a very wide range of offences indeed. Organised criminal activity need not be confined to serious offences against the person, to extortion or to hard drug offences. A very wide range of property and even some police or other summary offences may be involved. But the difficulty with an approach which focuses attention on the notion of ‘organised crime’ is that because of the difficulty of defining the expression with any precision, an acceptance of the need for the use of listening devices in this area tends to lead to the position that few, if any, restrictions should be imposed.

223. Recommendation. Legislation is necessary to rationalise, simplify and make more relevant to modern law enforcement conditions the existing law with respect to the use of surveillance devices. Systematic recommendations about the use of such devices by­ persons other than members of the Australia Police are clearly beyond the scope of this reference. A question exists, of course, as to the limitations of federal constitutional power with respect to this subject matter as such. The Commonwealth’s power is extensive here, but probably not sufficient to enable it to ‘cover the field’ for the purposes of entirely excluding State laws by virtue of s. 109 of the Australian Constitution. In relation to the interception of telephonic or postal communications the Commonwealth’s power under s.51 (v) is undoubted. Apart from this, the Australian Parliament would appear clearly able to legislate validly only in respect of (a) the use of surveillance devices by persons employed by the Australian Government or its agencies, or operating under the authority of laws made by the Parliament,' (b) the use of such devices in places acquired by the Commonwealth and in the Territories;398 (c) the importation of devices to be used as surveillance devices;399 (d) the admissibility in matters within federal jurisdiction of evidence obtained by or as a result of the use of surveillance devices; and, possibly, fe) the use of surveillance devices involving wireless transmission.400 While there would appear to be no constitutional difficulty in legislating for the control of the use of surveillance devices by the Australia Police alone, it appears to the Commission to be undesirable to approach the important question of the use of surveillance devices in such a piecemeal fashion. The necessity for the use, and the possibility of misuse, of such devices by State Police, national security officers, private investigators, or corporations engaged in or threatened with industrial espionage, all need to be taken into careful account in drawing appropriate legislation in this connection. Such legislation indeed may need to be drawn on a uniform basis401 if the difficulties of the Commonwealth’s lack of constitutional power are to be met. For all these reasons, the Commission takes the view that the subject of surveillance devices is better dealt with by separate legislation than by the legislation

specifically proposed in this report. 3 9 8 3 9 9 4 0 0 4 0 1

398 Sections 52 and 122 of the Constitution.

399 Constitution, s. 51(i).

400 On an extended reading of the s. 51 (v) power, which has been construed to extend to broadcasting and television services: R. v. Brislan; ex parte William (1935) 54 C.L.R. 262, Jones v. Commonwealth (1965) 112 C.L.R. 206.

401 i.e. with the States and the Commonwealth each passing the same legislation to operate within their respective jurisdictions.

Search, Surveillance and Entrapment j 107

224. It may, however, be useful to state some tentative views that have been reached as to how this problem should be tackled in respect of police officers. First, we see no distinction in principle between telephone tapping and other forms of surveillance involving the use of electronic listening devices. Secondly, we think that the police ought not to be denied all the advantages of modern technology in fighting crime which itself uses it. Monitoring of conversations without the consent of either party ought to be permitted in certain

narrowly defined circumstances. Such authorisations should only be granted by a federal judge or a judge of the Supreme Court of a State or Territory, and should be available only in respect of very serious402 offences. Such judicial authorisation should only be available

when other investigative procedures have been tried and failed or would be impracticable. The authorisation should state with great particularity the offence, persons and places that are the subject of the surveillance. It should contain such other specific terms and conditions as the judge considers advisable in the public interest and should be valid for a

period not exceeding ten days. Thirdly, in respect of the monitoring of conversations with the consent of one party the Commission acknowledges some of the practical difficulties, not least for the recording of police interrogations recommended elsewhere, which would follow from a tightening up of the law in this area. Nonetheless the Commission feels that

the dangers to privacy in the unrestricted use of listening devices in this way are such that some carefully drawn controls are necessary. The controls should in these cases be similar to those employed in respect of search warrants. The authorisation in question here should be obtainable from a magistrate, but, unlike the case of search warrants, such

authorisations should be available only in respect of serious offences.403

225. Although these may appear at first sight to be a somewhat narrow and stringent set of recommendations as compared with present State laws, it will be noted that, at least so far as telephonic communications are concerned, the proposals represent in fact an enlargement of the present area of permitted interceptions. At present any interception of a telephonic communication, even with the consent of one party, is forbidden. We reiterate, however, that these conclusions are no more than tentative. Legislation which takes into account the needs of law enforcement officers should be part of a more

systematic attempt at rationalising the law in this area.

ENTRAPMENT

226. Homosexual offences, abortion, offences concerning the illegal sale of liquor or drugs, soliciting by prostitutes, illegal gambling and certain offences against state security are typical examples of offences where the task of enforcement is made difficult by the frequent secrecy of the relevant conduct, and the absence of complaining victims. A common police method of detecting these offences is known as ‘entrapment’. This

involves conduct by the police or their agents which amounts in practice to assisting, encouraging, counselling, procuring, inciting or soliciting the commission of an offence. The use of ‘trappers’, ‘decoys' or ‘agents provocateurs'. and the practice of entrapment generally, has long been the subject of widespread abhorrence, but hitherto Anglo-

Australian law404 has not reflected the abhorrence in any systematic way. The reasons for this have perhaps been twofold: the difficulty of defining precisely what conduct should be prohibited, and the difficulty of determining an appropriate sanction.

41,2 It may be that our definition of 'serious' in terms of punishment by imprisonment for more than six months (see paras 36-37) is over-inclusive so far as monitoring without consent is concerned, and that further attention will need to he given to means of appropriately narrowing the scope of the power.

403 ‘Serious" in this context is intended to refer to our standard six-month imprisonment criterion (paras 36-37).

404 Compare the situation in the United States since Sorrells v. (.'..S'. 287 U.S. 435 (1932).

7 0 S / Criminal Investigation

227. Entrapment consists essentially in the instigation of offences. The trapper’s role is to' be distinguished from that of the spy or informer, who in no way causes the crime but merely observes it, and that of the fabricator, who falsely alleges the commission of crimes. The difficulty is to define what degree of instigation is reprehensible enough to attract legal sanctions, or, putting it another way, what kind of conduct amounts to undue or improper temptation. United States law permits a defence of entrapment ‘when the criminal design originates with the officials of the Government and they implant in the mind of an innocent person the disposition to commit the alleged offence, and induce commission in order that they may prosecute’.405 This Commission is inclined to follow

this principle. We would define entrapment as inducing the commission o f an offence which the person induced would not otherwise have committed on the occasion in question, either with the entrapper or anyone else. We do not intend the notion to extend to various methods of detection such as marking bank notes to catch an office thief, concealing a policeman near a public lavatory where small boys are known to have been molested, or

setting a ‘trap’ to ensure the apprehension of a kidnaper or bomb planter in connection with the payment of ransom money. In none of these cases is the police conduct in any way contributing to the commission of the crime. The definition proposed extends rather to those situations where a police officer or police agent makes an explicit approach to a person, demonstrating by one means or other his willingness to engage in consensual criminal activity. It is conceded that it may be difficult in any given case to determine whether the criminal conduct would have occurred in any event without the police inducement, but this objection should not be overstated. The law readily accepts, for example, the difficulty of making hypothetical judgments in the context of attempts. Similar degrees of vagueness are involved in the defences of insanity and involuntariness, and the statutory defences of taking ‘reasonable’ precautions or making a ‘reasonable’ mistake of fact.

228. The Commission considered three basic ways in which sanctions against the practice of entrapment might be constructed. The first, based on American law and widely canvassed elsewhere,406 is the concept of a defence of entrapment. This approach was initially attractive to the Commission and we do not wish to be taken as recommending against its adoption. However we take the view that to recommend the creation of new defences is to intrude further into the substantive criminal law than is warranted by our present terms of reference. To go so far would demand, also, in order to complete the excursion, a full analysis of the implications of the rule so far as the liability of the police officer or agent to a charge of complicity, incitement or conspiracy was concerned. This is unquestionably

outside our present concern, which is with procedural matters. The second possible sanction approaches the matter from the perspective of controlling police behaviour rather than the criminal guilt of the accused. This is to treat entrapment as resulting in the mandatory exclusion o f evidence so obtained. The trouble with mandatory exclusion rules, however, here as elsewhere, is that they demand very considerable precision in the formulation of the rules on which they are to operate if they are not to cause more problems than they resolve. As has already been noted in the preceding paragraph, the context of entrapment is not one in which such precision appears to be attainable.

229. We prefer the third approach. This is to regard entrapment as a basis for the operation of a reverse-onus discretionary exclusionary rule of evidence. Professor J. D. Heydon puts the

405 Sorells v. U.S. 287 U.S. 435, at p. 442 (1932)

406 See ‘Entrapm ent’, New Law Journal, 10 April 1975, p. 347, discussing the N.C.C.L.’s submissions to the English Law Commission on its W orking Paper No. 55. ‘Codification of the Criminal Law. General Principles, Defences of General Application: Official Instigation and Entrapm ent’ (1974).

Search, Surveillance and Entrapment / 109

rationale for such a rule in terms which the Commission accepts:407 The issue of improper police conduct when it arises in such areas as confessions, the Judges’ Rules, illegally obtained evidence, and faulty identification procedures goes to admissibility rather than guilt. It is for the legislature to state what conduct is criminal, but it is for the courts to control what forms of evidence are brought before them in proving it. Indeed entrapment is more serious than other forms of improper conduct in

two respects. First, the other forms of impropriety are merely methods of collecting evidence, whereas entrapment causes the substantive commission of the crime by the accused. Secondly, if entrapment does not lead to the exclusion of the evidence, and if it is not a ground for presecuting the trapper, there is no other sanction against its use: in other forms of misconduct at least the victim has a civil action or the possibility of prosecuting the guilty policeman. Sometimes the exclusion of the evidence will lead to

acquittal, but not always: there may be other evidence. In determining whether the evidence should be excluded, some account could be taken of such circumstances as the difficulty of detecting the crime discovered by ordinary means, the prevalence and seriousness of the crime, and the normality of the

inducement, whether the inducement was offered deliberately or accidentally, and whether there were circumstances of urgency or emergency. The status and personality of the trapper may also be relevant: a policeman, who is responsible to trusted

superiors, is governed by well-established codes of behaviour and has to meet minimum standards of character, intelligence and honesty, will generally be in a different position from a private trapper working for the police force for some consideration; purely private informers are even less reliable for they are not working

for an organised institution charged with the duty of detecting guilt with its inherent controls and guarantees of reliability. If the above suggestions are sound, when an entrapment issues arises the judge would direct as follows. First, he should ask himself

whether the evidence should be admitted at all, after considering the factors we have just listed. If so (as will often be the case), he should remember that the accused is technically an accomplice and give the jury whatever warning the general law requires. Then, if the accused is convicted, he should make allowance in his sentence for any

grievance the accused may feel and any police behaviour which requires adverse notice or deterrence. In a very bad case, the evidence will be excluded and the prosecution will fail in the absence of other evidence; if it succeeds, a very lenient sentence may be inflicted, and the judge may suggest the prosecution of trappers guilty of any offences. The latter course should not be taken lightly because it is undesirable to discourage

police acting properly though in some technically illegal ways; it is open because trappers often do break the law. It is thought that what has been suggested represents a reasonable compromise between the need to avoid tempting the weak unduly, the need of the state to collect evidence of persistent offenders, and the public interest in proper police standards.

We would add only that the Commission would envisage that breach of the proposed entrapment rule should give rise not only to the operation of the discretionary exclusion rule,408 but also to action under the proposed police discipline code.409

407 'The Problems of Entrapm ent' (1973) Cambridge L J . 268. 285-6.

408 Discussed in more detail in para. 2881Γ.

41,4 As to which see paras 301-302.

8. Use of

Criminal Intelligence Data

ISSUES AND PROBLEMS

230. To operate effectively a law enforcement agency must collect and have access to a vast amount of information about people. This information usually finds its way into a formal record-keeping system. Any police force’s crime information system will include files such as the following: (a) criminal history files: listing arrests, charges and convictions; (b) files listing persons wanted on warrant, wanted for questioning, or missing; (c) intelligence files: listing persons suspected of criminal activities or known to associate

with criminals, and details about the activities of such persons; and (d) motor vehicle, firearm registration files and other types of public or semi-public records. The new Australia Police is no exception in this respect. Each of its component forces presently has its own manual criminal information systems. Proposals have been made410 for the Police and Customs Department to extend the existing national customs computer network to provide not only a joint intelligence and information facility for the Australia Police, but also a full-scale national crime information system modelled on the F.B.l.'s National Crime Information Centre (N.C.I.C.), as recommended in 1973 by the

Committee on Computerisation of Criminal Data.411 With the exception of a limited set of data of interest to Interpol, there is at present no priority in the computerisation of any particular category of criminal data. The Commission has been informed that no such data will be coming on line until well into 1976, if then. That is not to say that there is no urgency in formulating legislative guidelines and administrative procedures to deal with

the privacy problems created by criminal intelligence systems, whatever their degree of sophistication. The time to act is not when a new system is on foot, but during its planning stages. The whole area has been sadly neglected in the past, and should be ignored no longer.

231. The privacy problems to which criminal information systems give rise can be described as follows. Criminal data, by its very nature, has the potential to cause harm and prejudice to those about whom it is kept, far more so than the case of any other class of government- collected information. In the first place, there is the possibility of inaccurate intelligence information leading to unjustified surveillance or arrest, or the disclosure of names of ‘criminal associates’ prejudicially affecting people who have not committed offences. Half-truths can of course be just as damaging as complete untruths. Particularly dangerous in this respect is the practice in the United States of keeping and disseminating arrest records unaccompanied by full information as to the subsequent disposition of the charge, which may have been not proceeded with, or dismissed. Secondly, even complete

and accurate criminal history records can have an extremely prejudicial effect if disclosed

410 See the Report to the Attorney-General on a National Law Enforcement Authority by A. T. Carmody. Comptroller-General of Customs. April 1974. tabled in Parliament on 20 February 1975 (subsequently referred to as the Carmody Report). Appendix A pp. 2-3 and Appendix G Recommendation !(e)(iii).

4,1 Report to the Attorney-General of Australia, August 1973, tabled in Parliament on 15 April 1975. Subsequently referred to as the Ward Report.

Use o f Criminal Intelligence Data / 111

to prospective employers or others. It means a person can never hope to escape his past convictions. Thirdly, there are other consequences of the keeping of criminal records, less directly hurtful but hurtful nonetheless, that we have already discussed above, in particular in the context of fingerprint and photographic records.412

232. The right to privacy in the present context denotes the claim of persons to have some control over what information concerning themselves is stored and when, how and to what extent that information is communicated to others. In summary, the privacy problems in the area of criminal intelligence data are as follows: the nature of the information that can be legitimately stored; safeguards against incorrect, obsolete or

irrelevant information; who should have access to what information and under what conditions; the extent to which individuals should be able to examine, or have examined on their behalf, data concerning themselves; and the provision of remedies, the setting up

of a monitoring authority, and other administrative machinery to safeguard the rights of the individual.

233. The Ward Committee began its treatment of these issues with the claim that 'the introduction of the computer into a criminal data system does not change the basic issues involved’.413 The Commission does not entirely agree with this assertion. It can be claimed that it is the existence and use of information rather than how it is stored that is important. But it has to be remembered that the computer’s capacity to accumulate and effectively cross-reference masses of data, and to retrieve it with great speed and accuracy, gives a potential for abuse much greater than any manual system. Furthermore, the existence of one data system must not be considered in isolation from other existing

systems. The scale of possible linkages and leakages from one data system to another is greatly increased with computerisation. Since the Ward Committee Report was written, the F.B.I.’s N.C.I.C. system, on which the Committee’s recommendations were largely modelled and which involves the centralisation of all state criminal information systems into one centrally held computerised system, has come in turn under widespread criticism and finally under extensive regulatory control.414 It appears to this Commission that a full-scale implementation of the Ward Committee recommendations should not come about on an administrative basis, but only, if at all, after further investigation, public debate, and on the basis of specific enabling legislation scrutinised in the Parliament.

234. It is appreciated that the foregoing raises more questions than the Commission can hope to answer in the course of the present reference. We content ourselves in what follows with making recommendations in two areas where immediate legislation appears to be necessary, desirable and, because of its relative simplicity, at this stage possible. Those two areas concern, first, the specification of a general obligation of security,415 and

secondly, the control of access to criminal history records.41 h In the concluding section we draw attention to the next steps that should be taken to secure the systematic protection of the interests of individuals in a way that is compatible with the public interest in effective law enforcement.

412 Above para. 113. See also para. 132 with respect to medical examination records.

4,3 Section 9.2.1. 414 For criticism, see e.g. U.S. Dept of Health. Education and Welfare 'Records. Computers & the Rights of Citizens’ (1973), Appendix E 'Computerised Criminal information & Intelligence Systems": A. F. Westin & M. A. Baker (eds), Data Banks in a Free Society (1973) pp. 45-64: S. A. Cohn. 'Criminal Records A

Comparative A pproach' (1974) 4 Georgia J. hit. & Comp. L 116. For the regulations, see Title 28. Ch. 1. pt. 20 ‘Criminal Justice Inform ation Systems' (40 Fed. Reg. 22114. 20 May 1975).

4.5 Para 235 ff.

4.6 Para. 241 ff. '

112 I Criminal Investigation

SECURITY OF CRIME INFORMATION

235. The most immediately important question in respect of crime information is who should have access to it, directly or indirectly. Pending the completion of the very difficult tasks of setting limits on the type of data to be stored and devising safeguards for the currency, relevance and accuracy of that data, some protection of privacy can still be achieved by adopting strict rules limiting dissemination. The groups with the most obviously legitimate need for access to such data are the law enforcement officers and agencies, i.e. the component units of the Australia Police, customs officers engaged in the administration of aspects of the criminal law, police in the States, and certain international agencies such as Interpol. It may prove feasible, in a computerised if not

manual system, to record the details of all such access to ensure that law enforcement officers always have legitimate reasons for retrieving a person’s file.417 The Australian Security Intelligence Organisation418 should not be regarded as an ordinary law enforcement agency in this respect. The Commission is of the view that control of the access by A.S.I.O. to police files and data generally raises wider questions. Access, if any, by A.S.I.O. to police data should be permitted only through officers of high rank. Further all such access should be recorded in detail by the police and in such a way as to be susceptible to scrutiny by any independent agency that is ultimately set up to carry out the task of supervision. These recommendations reflect the general concern felt in this Commission that the line between law enforcement and security intelligence activity, and the governmental agencies which may be concerned with each, should not be blurred any more than is strictly unavoidable.419

236. The question of the dissemination of data becomes most controversial when it is directed to persons or organisations that are not in any way concerned with law enforcement.420 The situation most commonly arising is where another Commonwealth or State Government department, or private employer, seeks to ascertain the criminal history if any of a prospective employee. At present, it is certain that a large number of such checks are carried out annually by government departments. It is also clear that many such checks involve persons applying for positions which do not involve security risks. It also appears to be the case that where that information is already a matter of public record elsewhere, as for example in court records, the Department of Police and Customs in certain circumstances will disclose information to private organisations. The service

which is performed in this case is to make accessible what is already undoubtedly available in theory but which, because it is so scattered, is quite inaccessible in practice.

237. So far as government employment checks are concerned, the Commission agrees with the Ward Committee recommendation that ‘while there are many public service positions in which the need for a rigid character check is essential, these should be defined as narrowly as is practicably possible. It would be desirable that a Committee of all States and the

417 cf. Health Insurance Act (No. 2) 1975, ss. 126T and 126M.

418 It is assumed for present purposes, at least pending the outcome of the Royal Commission on Intelligence & Security, that the organisation will continue in its present form.

419 The Commission does not, as presently minded, favour the recommendation in the Carmody Report that discussions be held between A.S.I.O. and the Australia Police 'to establish the extent to which the current duplication of intelligence records can be minimised as part of maximum liaison between A.S.I.O. and this new organisation’, Appendix G Recommendation l(e)(ii).

420 A distinction is to be drawn here between data in their original form and aggregated statistical data which have been 'sterilised’ by the removal of individual names and other identifying material. There can be no objection to disseminating the latter kind of data to particular persons or organisations that have a legitimate interest in such information.

Use o f Criminal Intelligence Data j 113

Australian Public Service should meet and define those positions for which a check of previous criminal history is desirable’.421 Some notification and appeal mechanism would need to be established to make it possible to ensure that information supplied was accurate, and relevant to the position applied for, in any particular case and that the

applicant has had an opportunity to explain it. So far as the access by private employers is concerned, opinions differ as to the extent to which it is ever justifiable for criminal history information to be supplied. Certainly the legal question as to what criminal information a police officer can provide to an employer, prospective employer or other private individual without being liable to a defamation action is complex and varies between the

States.422 In the opinion of the Commission, it would be justifiable for police to provide such information for pre-employment checks in certain positions involving high security risk, particularly in the security industry itself, or in financial institutions, or in private institutions dealing with children or like special groups. It is questionable whether the availability of such checks should depend upon whether public or private employment is

applied for. The nature of the position applied for would seem a far more relevant criterion. Apart from such exceptional situations, the livelihood of persons in the community should not be placed in jeopardy by communications of vague police

suspicions or by the supply of details of crimes for which the penalty in law has already been paid. This is particularly appropriate after there has been a substantial lapse of time. The danger involved in such disclosures is greatly increased by the impossibility of instituting an effective appeals procedure in private employment. In such areas the

faintest whiff of suspicion may result in substantial injustice.

238. Access to police files by government departments might also be sought for reasons other than employment checks. Numerous studies and reports have recognised that one of the greatest dangers to individual privacy and liberty is the potential of government departments to amalgamate or interface their immense, but as yet largely separate, files on

individuals.423 While Australian Government bodies such as the Treasury and the Bureau of Statistics have a high reputation for the way in which they preserve the confidentiality of their records from other government departments, it is not enough to rely on nothing more than the good faith of organisations and the individuals who staff them. The present

rules of non-disclosure are partly based in particular statutes relating to particular departments. More generally they are to be found in s.70 of the Commonwealth Crimes Act 1914-1973 which makes it an offence punishable by two years’ imprisonment for an officer to:

publish or communicate, except to some person to whom he is authorised to publish or communicate, any fact or document which comes to his knowledge, or into his possession by virtue of his office, and which it is his duty not to disclose.

The vagueness of this provision has been much criticised. There has been an increased tendency in recent years to write more explicit statutory provisions into particular departmental statutes; see for example the Health Insurance Act (No. 2) 1975. s.l 26K and the Australian Bureau o f Statistics Act 1975. The Commission expresses its firm approval of this modern approach.

239. Recommendations. Although, as has been indicated, much work remains to be done in identifying precisely the classes of information that should be made available to particular

4ii W ard R eport at 9.2.9.

422 cf. Ward Report at 9.2.7.

42J Prominent among these are such studies as A. F. Westin and M. A. Baker (eds) Data Bunks in a Free Society (1973) and the U.S. Departm ent o f Health. Education and Welfare's study 'Records. Computers and the Rights of Citizens' (1923). which inspired the Privacy Act of 1974. -

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persons or organisations, it is appropriate that some overarching legislative provisions should be enacted immediately to constitute the framework within which the detailed future law should proceed. Accordingly the Commission recommends as follows:

(a) except as prescribed by regulations, a person shall not directly or indirectly divulge or communicate to any person any information with respect to the affairs of another person acquired by him by reason of his access to records in the possession or under the control of the Police and Customs Department; and

(b) a person shall not directly or indirectly request, obtain or seek to obtain any information, knowing that the divulging or communicating of such information is prohibited. Breach of these rules should be punishable byline or imprisonment. It will be immediately apparent that the whole force and effectiveness of this proposal will depend upon what is ‘prescribed by regulations’. However the point of the present proposal is not to specify the detailed content of the dissemination rules, but to recommend that the content be precisely drawn so that a police officer or a departmental official knows exactly what his duties are.424 It is not possible with the time constraints of the current reference, or indeed within the terms of reference now before the Commission, to deal with the subject in any more detail than this.

240. As an immediate step, to supplement the duties of an individual character falling on officers in the Department, the Commission further recommends that the legislation provide that the Secretary of the Department of Police and Customs should take all such measures as are reasonably necessary to ensure the accuracy and security of all criminal history and crime intelligence records. What those administrative measures will need to be will have to be the subject of very detailed subsequent investigation later. The obligation

to initiate these measures should be created now.425

INDIVIDUAL ACCESS AND ERROR CORRECTION

241. The other major matter on which it is necessary and appropriate to make immediate recommendations is the creation of the opportunity for individuals who feel that inaccurate or irrelevant information about them is being held in police files to have a means of redress. A distinction must be drawn here between criminal history or other ‘factual files’ on the one hand, which consist of matters such as records of arrest, charges, judicial proceedings, dispositions of proceedings, sentencing, incarceration and release, in

which individuals are identified, and ‘criminal intelligence data’ on the other. Criminal intelligence data is that more subjective body of information about the activities and propensities of people, some of whom may be without records but are suspected of crimes

or are associates of known criminals. Much of this data will be plainly irrelevant and inaccurate, and all of it is undoubtedly highly prejudicial to the individuals concerned, or at least would be if misused in any way. However such data is undoubtedly useful and necessary in the anticipation and solution of crime by police. The purpose of holding such information would be largely, if not wholly, destroyed if individuals had direct access to it

for the purpose of the correction of error. For present purposes, no detailed recommendations are made with respect to the correction of criminal intelligence data.

424 An example of the kind of data exchange which might be treated as permissible by the proposed regulations is contained in the answer of the Minister for Social Security to question No. 1319, recorded in the House of Representatives Hansard for 25 February 1975, which indicates the personal details in social security files which are made available to other departments. .

425 cf. 'Health Insurance Act (No. 2) 1975. s. 126B. .

Use o f Criminal Intelligence Data / 115

The best way to deal with this problem may prove to be at the use of an independent supervisory body, perhaps the Ombudsman, who can investigate intelligence files on the complaining individual’s behalf. As suggested by the Ward Committee426 the police might be required to show cause why disputed information is accurate; the complainant would in the result only be informed that no information concerning him was now being improperly held.

242. So far as the problem of criminal history records is concerned, there is no reason why individuals should not have access to a copy of their own files, if they apply in person to the police and supply the relevant proof of identity. There is also no reason why a non­ prohibitive fee should not be charged for such access. The legislation should

accommodate these recommendations. In the case of criminal history files, which will largely be searched by fingerprint, applicants may have to be fingerprinted to ensure that the applicant is not an imposter, such fingerprints being in all cases returned to the applicant at the completion of the search, with no copies being kept. In order to prevent

abuses we recommend that it should be made a criminal olfence to make a copy of a fingerprint taken for this purpose.427 Such a simple basic scheme would need to be rounded out by regulations in some respects. One example would be to provide for

applications otherwise than in person to the Australia Police, as from prisoners in gaol who seek a copy of their record. Until a systematic method of supervision of the whole area of the use of criminal intelligence data is worked out, it would be premature to make detailed recommendations concerning the procedures to be followed for the correction of

alleged errors in a person’s criminal history record. For the moment, we suggest that if an applicant feels that the file contains an error his proper course should be to negotiate first with the police for its correction and then, if he does not gain satisfaction from this, to complain to the Ombudsman.428

243. One danger involved in providing for the production, on application, of a person’s criminal history record (if any) is that employers will short-circuit such restrictions as have hitherto existed on their acquiring information as to the record of an actual or potential employee, and will require that such criminal history records be produced as a

matter of course and as a pre-condition to employment. Although, as previously stated, it may indeed be legitimate in some cases for employers to seek this information, we would regard it as a serious retrograde step in the rehabilitation of offenders if records were to trail them through life in this way. One solution to the problem is to make provision for

the complete expunging of criminal records after a specified lapse of time. The Commission gave careful attention to whether this course was feasible. Although we are strongly in favour of a system of expunging being introduced, we have decided after a preliminary examination of the legislation and literature on this topic elsewhere429 that

the matter is one of such complexity that it ought not to be dealt with en passant in the course of this reference. As an appropriate interim solution to the problem stated, we recommend that it should be made an offence to require that a person produce his criminal history record as a condition of employment or for any similar purpose. except_

where such a request is expressly authorised by statute or regulations.

426 Paras 9.3.7 and 9.3.9. 422 For less sensitive factual files, which in any case would not be searched by fingerprints (c.g. firearm registrations) lesser proof of identity would be sufficient. 428 In the Commission's Report Complaints Against Police it is suggested that the Ombudsman be given a

general supervisory jurisdiction with respect to complaints against the police, and armed with means in a proper case to have the complaint resolved impartially. 4 2 4

424 In particular the U.K. Rehabilitation of Offenders Act 1974. for a summary of which sec B. Harris

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NEXT STEPS

244. The Commission is aware that in the course of the above discussion, many more problems have been stated than solutions offered. The outstanding issues include the subject-matter of the data which might properly be collected, the specific circumstances in which it is appropriate for the police to disseminate such data, the problem of expunging of criminal records after an appropriate time lapse, the mechanisms by which individuals might ensure the review and correction of sensitive intelligence data concerning themselves, and the kind of machinery that should be established to provide redress in cases where police or departmental powers with respect to the collection, storage and use

of criminal information data are abused or misused. In addition there are the enormously complex technical problems involved in a useful, workable but secure system. What steps should now be taken to answer these questions and produce solutions?

245. It was urged upon the Commission that we should recommend the establishment of a general ‘Australian Privacy Commission’ along the lines of the New South Wales Privacy Committee set up in 19 74.430 Such a body would have a mixture of functions, including detailed research and recommendation as to further legislative reform, and the

investigation and conciliation of particular complaints. The Commission has been impressed by the work of the New South Wales Committee across the whole spectrum of privacy issues, involving commercial organisations and the media as well as government departments. We would certainly not wish to be taken as ruling out the creation of a like

body as an appropriate long-term solution to privacy problems as they exist and will emerge at the Australian Government level. The data-bank privacy problem is by no means confined to the Australia Police. A strong case exists for a systematic set of principles to be applied across the whole area of Australian Government activity.

However, we have taken the view that the particular problems relating to the data collection and dissemination activities of the Australia Police are too urgent, and in some respects too specialised, to await the creation of the larger on-going body with more general responsibilities. Under all the circumstances, the most appropriate way of dealing with these complex, difficult and technical questions would be to refer them as soon as possible to an expert committee or task force for in-depth study and report. That task force could appropriately consist of representatives from the Police and Customs Department, the Attorney-General’s Department and the Law Reform Commission, perhaps with assistance from the New South Wales Privacy Committee431, and civil liberties organisations. It would be desirable that there should be some overlap of membership with the Ward Committee in order that old ground is not simply retravelled, but rescrutinised and built upon. The Commission believes that the time has come to establish such a task force.

"Rehabilitation of Offenders Act 1974— The Act Examined’, New Law Journal, 17 October 1974, p. 953. Sec also Living it Down: The Problem o f Old Convictions, report of the Committee set up by Justice, the Howard League for Penal Reform, and the N ational Association for the Care and Re-Settlement of Offenders, under the Chairmanship of Lord Gardiner (1972); South Australian Law Reform Committee, Thirty-second Report. "The Past Records of Offenders and other Persons’ (1974); also Ward Committee, section 9.5.

430 Following th e ‘Report on the Law of Privacy'by Professor W. L. Morison (1973) prepared on behalf ol the New South Wales Government for the Standing Committee of Attorney-General: see the Privacy Committee Act, 1975 (N.S.W.). So far the New South Wales body is the only one to have been formed along the lines suggested in the Morison Report.

431 The N.S.W. Committee being the only such Committee in existence, and a body which has already made a special study of this problem.

9. Special

Problems of Minority Groups

INTRODUCTION

246. There are a number of groups in the community who, because of their status, background or intelligence, may be at particular risk when made the subject of police investigation. The literature identifies four main groups as candidates for this description: Aboriginals and Torres Strait Islanders,432 migrants433 and others in Australia with special difficulties

in the English language, children434 and the mentally retarded.435 The risks are serious enough to justify the enactment of special protections for the members of those groups when in police custody. The sections which follow deal respectively with Aboriginals, non English-speakers and children. We have omitted the category of the mentally

retarded, not because we think no special protection is necessary, but rather because of the acute difficulties involved in identifying this group in practice. While it is appreciated that there may also be difficulties in determining whether an adolescent is as old or as young as he claims to be, or whether a light-skinned person is in fact of Aboriginal descent436, or whether an agitated, inarticulate migrant is in fact sufficiently fluent in English to make an interpreter unnecessary, these difficulties are much magnified in the case of the mentally retarded. The following anecdote brings this out:

One lawyer questioned a girl for an hour and a half. She answered his questions very well, slowly and deliberately perhaps, but nonetheless she had listened to the questions and had been responsive in her answers. He felt he had . . . a complete picture of his client. Then the other lawyer (who had a retarded child). . . asked her three questions

(to look up her telephone number, count some change and add 24 and 24). The girl was unable to cope at all with these questions.437 A future exercise will be required if we are to deal with the general problem of crime and

the mentally retarded.

247. We focus our attention, then, on three groups in the community: Aboriginals, a group called for convenience ‘non English-speakers" and children. We see no difficulty in principle in singling out such groups for special protection in this way. The theoretical and

432 E. M. Eggleston, Aborigines and the Adm inistration of Justice (Ph.D. thesis. Monash University. 1969): G. Nettheim, (ed.) Aborigines, Human Rights and the Late (1974): A. C. Collett. "Aborigines and the Law (report prepared for Poverty Commission: m anuscript supplied by permission of the author).

433 A. Jakuvowicz and B. Buckley, "Migrants and the Legal System". A Report to the Law and Poverty Section of the Australian Commission of Inquiry into Poverty (for publication 1975).

4.14 \y Cavanagh, Juvenile Courts, the Child and the Late 11967): Judge A. G. Muir. "Report to the Minister for Youth & Community Services on Certain Parts o f the Child Welfare Act &Rclated Matters' (Dept of Youth. Ethnic & Community Affairs, Sydney. 1975).

435 Estimated in the United States to comprise 3"„ of the population, of whom 90' ,, fall into the group rarely characterised by physical signs . . . with a mental age of equivalent to a normal child between 7-1 I years (I.Q. scores 50-84)'. H. Kay el at., "Legal Planning for the Mentally Retarded: The California Experience' (1972) 60 California L.R. 438, at p. 441. 436 For legislative purposes we would recommend the adoption of the definition of Aboriginality which appears,

e.g., in the Racial Discrimination Act 1975. viz. 'Aboriginal means a person who is a descendant of an indigenous inhabitant of Australia'. 437 D. E. Haggerty e la i, ‘An Essay on the Legal Rights of the Mentally Retarded' (1972) 6 Family L.Q.'jb at pp. 59-60. " - - -

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practical problems involved in any governmental program of ‘benign’ or ‘reverse’ discrimination are may and various, and we do not underestimate their difficulty.438 But differential treatment has always been justified when there are relevant differences between classes of people. It has never been seriously doubted but that differential need is one very relevant criterion for justifying differential treatment. In the Commission’s view it is established that Aboriginals, non English-speakers and children439 do have

particular needs in relation to the criminal justice system and are entitled as a result to such special measures as can be devised to meet those needs.

ABORIGINALS

248. The Class. The Aboriginals with whom the Australia Police will primarily come into contact, and for whom our proposed protections are primarily designed, are those living in the towns and settlements of the Northern Territory. For the most part they lack even that degree of linguistic and other sophistication which characterises Aboriginals living in the cities and towns of the south. For a variety of reasons, Aboriginals everywhere have had quite a disporportionate contact with the criminal law. Nowhere is this more so than in the Northern Territory, where the destruction of a traditional Aboriginal society—with all the problems of culture shock and maladjustment that this brings in its train—is not just a matter of distant history but a visibly occurring contemporary phenomenon. The

legal problems of Aboriginals are acute. Some of the disabilities they face when confronting a police officer or a court are those shared by all poor people. But in addition they may suffer any or all of the disadvantages due to racism, cultural differences and

(especially in the Northern Territory) their own illiteracy and language problems.440 It is of course as difficult, and unwise, to generalise about Aboriginals as it is about the members of any other racial group. We do not suggest that all Aboriginals suffer the disabilities to which we refer. Nor do we wish to suggest that all Aboriginals who come into contact with the Australia Police will need, or want, the special protections we propose. It may be that some Aboriginals would regard the Commission’s recom­ mendations as unwarranted paternalism. Out answer to this is that none of the measures we propose is intended to be forced on any Aboriginal who does not want to take advantage of them. As we shall explain in more detail below, the rights proposed are all to be capable of knowing, intelligent and voluntary waiver.

249. Problems. Many of the problems that concern the involvement of the Aboriginal with the criminal law are outside the present terms of reference. We instance, for example, questions as to the substantive law of drunkenness and vagrancy, all aspects of trial procedure including the composition of juries, and the fundamental dilemma as to whether, if at all, the European criminal justice system should recognise tribal law and punishment and if so to what extent. There are aspects of the criminal investigation process which particularly affect Aboriginals which we have dealt with elsewhere in this report. These include for example the criteria for arrest441, the criteria and conditions of

438 For a detailed analysis of these problems sec G. Evans. ‘Benign Discrimination and the Right to Equality' (1974) 6 Federal L.R. 26.

43,) If it were possible as a m atter of practicality to provide special protection for every other group in the community with special needs in relation to the criminal justice system (for example the mentally retarded), the Commission would happily do so. As has been indicated, it is not practicable, certainly within the time at our disposal.

440 cf. E. M. Eggleston 'Aborigines and the Administration of Justice' in Netthcim. p. 42.

441 Paras 38-44.

Special Problems o f Minority Groups / 119

bail442, the treatment generally of persons in custody443, the use of firearms by police444, questions as to the furnishing of names and addresses445 and the problem of travel to and from court in remote areas.446 In relation to these matters we do not propose to make any further specific recommendations. The main focus of attention here relates to the problems of communication and understanding which arise not only in the courtroom but also in the course of pre-trial police investigation. The problem reduces to that of

ensuring that the Aboriginal is genuinely in a position of exercising the rights he shares in common with other members of the Australian community.

250. In the course of its public sittings, especially in Alice Springs and Darwin, the Commission received a great deal of evidence concerning the language difficulties confronted by Aboriginals. The effect of the submissions is conveyed in the words of Mr Jim Lester, an Aboriginal interpreter working in Alice Springs, in a paper written by him

for a Conference in 1973 organised by the International Commission of Jurists:447 Aboriginal people are severly limited in their understanding of English. Court language is very hard to understand, and most of the people don't understand the charges against them. Sometimes it is hard even for the interpreter to understand, or to

put in the Aboriginal language. The same problem applies in the police station. This lack of understanding of what is going on leads to considerable fear. Aboriginal languages are very different from English. This makes it very hard for the people to understand the English. They use the negative differently. If they are asked

‘Did you or did you not do that’ they will say ‘Yes’ meaning ‘Yes. I did not do it’. The people have no understanding of connecting or qualifying words like ‘if, ‘but’, ‘because’, ‘or’. In our languages these are part of another word, or they don’t exist. We have no word for ‘because’. The same with words like ‘in’, ‘at’, ‘on’, ‘by’, ‘with’, ‘over’,

‘under’ and so on. For these there is one ending that goes on other words. Most ofthe people when they speak English leave out these words. When they hear them they don't understand their meaning. Wc have a different idea of time, and people just don’t understand when they are asked ‘how long were you there'.1" "Was it about one hour?"

‘Was it ten minutes'. The same applies to number. The Aboriginal people have a different idea of number, and don't understand 20, or 50, or 100, or 1000. They are confused about place. If asked ‘Did you go into his house?’ they will say ‘yes’. It may have been only in the driveway, or inside the fence, but that means "in the house’ to them.

Particular difficulties are experienced, as may be imagined, with the Judges" Rules caution. The Rev. Jim Downing, of the Institute for Aboriginal Development in Alice Springs, made this point when appearing as a witness in a recent case in the Supreme

Court of the Northern Territory:448 I have interpreted for police officers on occasions and have tried to administer this caution in Pintjantjatjara . .. I am fairly certain that I have not been able to interpret it

442 Paras 178-187.

442 Para. 135.

444 Paras 55-57.

445 Paras 79-81.

44,1 Paras 276-82.

447 Nettheim, pp. 47-48. 448 R. v. Buller No. 170 of 1975 in the Supreme Court of the Northern Territory at Alice Springs. Court Transcript, pp. 162-3.

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adequately. I am convinced that the people to whom I have tried to interpret have not understood the concept at a ll. . . Though some of the people do understand English, the majority of them do not understand English concepts. Those concepts are very difficult, there is no equivalent in their own experience.

251. The problem is not only one of language. The police (by their accounts) have done their best to solve this problem by explaining complicated legal concepts, including cautions, in the simplest possible terms.4 4 4 * * * * 449 What has also to be understood is the possibility for disortion inherent in the Aboriginal’s fear of the authority situation in which he finds himself. Mr Downing made this point in elaboration of an answer in the trial previously referred to:450

If an authority figure—and this does not mean only police—says ‘You don’t have to answer me’ and then proceeds to ask questions, the very weight of his authority dictates that they must answer. If they understand—and there is considerable doubt in my mind as to whether people do understand this clearly—what the policeman is saying, then what they understand is that he is informing them that his practice is—and those who have been to court know this—to tell the magistrate what they told him. I do not think it means anything in terms of their understanding of their rights in this m atter... I think they are just in an authority situation, in many cases very apprehensive and dealing with an authority figure, and no matter what he may say about not having to answer, the very weight of his authority dictates that if he goes on asking questions, he expects them to answer. 252. Another aspect of Aboriginal susceptibility to authority situations which has caused

concern is the tendency to give the answer thought to be expected, rather than that which is necessarily the case. The point was made to us by many persons.451 It was brought out well in the same trial in the following passage from the testimony of a police sergeant:452 Won’t you agree from your experience that if an Aboriginal knows you are after an

affirmative answer he will readily give it?—Yes. More readily than a white man—Yes, possibly so. And you will agree, I suppose, that itself could lead to injustice?—Yes it could do if mishandled.

What I am asking you is, because of the fact that Aboriginals will more readily give an affirmative answer then white people, I suggest that and because this will sometimes cause injustice, I suggest the reason is the answer can be sometimes quite wrong, misleading if you like?—The answer could be misleading, yes.

And this is something that is more likely to happen with an Aboriginal than a white man?—Yes.

253. Recommendations. The Commission’s basic response to these problems is a reflection of what was said by Mr Downing:453

444 An approach which has been endorsed by the courts. ‘I would agree .. that there may be occasions of formal compliance in the traditional vocabulary (which) would not be sufficient proof by the Crown of the admissibility of admissions against Aboriginal persons but I am satisfied that in respect of these people the interrogating officers did their best to get the message required by law across, namely, the questions were asked that they need not be answered, and if they were to be taken down, that is to say, recorded, and would be shown to the court—generally referred to as the judge—in later proceedings.' See R. v. Butler, ibid, per Muirhead J., Court Transcript, p. 213.

450 ibid., p. 163. 451 For example, submission of Mr G. Fames, Transcript, 15 July 1975, para. 262. 281 ff.; Chief Inspector N. J. Owens, ibid., para. 321; M r P. Tiffin (Crown Law Officer, Alice Springs) ibid., para. 370.

452 R. v. Builer, ibid., p. 82.

453 ibid., p. 165.

Special Problems o f Minority Groups / 121

I think the people must be questioned in regard to crime, but 1 think the disadvantages are so great and the people are themselves so disadvantaged by our system of law and its application that the only safeguard that I can see is for cross-examination only to be allowed with an independent interpreter interpreting the law process to shield the person from their anxiety and the weight of authority.

The Commission’s recommendation is that Aboriginals and Torres Strait Islanders, when in custody for serious offences, or any offences against the person or property, should be entitled to the presence during any questioning or other investigative procedures of a ‘prisoner’s friend’. As stated earlier, in paragraph 68, that protection ought also to be available in pre-custodial investigative situations. The prisoner’s friend will be a lawyer, welfare officer, relative or other person, Aboriginal or not, who is able to interpret if necessary, and who is chosen by the person in custody of his own volition. The Aboriginal should be entitled to nominate anyone at all for this role. But if the person nominated is not available, or if the Aboriginal is unable to nominate anyone who may be reasonably available, then he should be given a list of persons, who have indicated their willingness to act as prisoners’ friends in such situations, from whom the person in custody can then choose a name. The right to have a prisoner’s friend present is not

intended to be in substitution of any other rights previously recommended, but in addition to them.454

254. The right of an Aboriginal to the presence of a prisoner’s friend should be expressed in more absolute terms than the general right of a person in custody to have the presence of a lawyer. The failure to have such a person present should constitute prima facie grounds for the exclusion of any evidence obtained during the absence of such a person. As foreshadowed above, we do think that the right to the presence of such a person should be capable of being waived, provided that the waiver is, to use the language developed in a like context in the United States ‘knowing, intelligent and voluntary’. The onus of satisfying a court that the right was waived in this way should rest with the police. We do not think there are any circumstances in which the police should be formally entitled to proceed in their investigations in the absence both of a prisoner’s friend and a proper waiver. This may cause delay and some inconvenience in certain circumstances. The rights in question are sufficiently important to justify this delay and inconvenience.

255. It will be noted that we have recommended that this right be available only in respect of Aboriginals in custody or under investigation for 'serious" offences (defined above455 to be those punishable by imprisonment for more than six months) and "offences against the person’ and ‘offences against property’. It is necessary to define a threshold criterion low enough to cover most of the situations where Aboriginals have found themselves disadvantaged in the past, yet not so low as to make law enforcement in manifestly trivial cases impossibly cumbersome. The ‘offences against persons and property’ criterion is an attractive one for present purposes. It tends to exclude most traffic and public order offences. Both of the latter categories do not rely much on admissions or identification evidence for their enforcement, and they are the areas in which police activity would be

most disrupted if long delays were involved in the handling of any particular case. On the other hand, although the concepts of offences against the person and offences against property are familiar enough in the mind of working policemen, they arc not sytematically embodied in legislation. There are some offences which are not easily classifiable. It is not

454 If the chosen prisoner's friend happens to be a lawyer, say from an Aboriginal Legal Service, as will frequently be the case in the Northern Territory, the result will be much saving of time and inconvenience. But it should not of necessity be a lawyer.

455 Paras 36-37. .

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clear, for example, whether consenting homosexual conduct or narcotics possession and use would be regarded as offences against the person. However the borderline cases appear to be sufficiently few in number to make this in itself not a decisive factor against

employing the classification. But what is clear is that the person and property classification is not in itself sufficient to define all those cases in which extra protection ought to be afforded to Aboriginals. The difficulty is that a number of clearly serious offences, which ought to require special protections, are excluded by the classification: examples are perjury, treason, sedition and espionage, ‘unlawful association’ offences, bigamy, weapons offences and arguably drug offences. Accordingly, to catch the whole class of offences that seems appropriate for this special treatment our final recom­ mendation is that the protections in question ought to be available where an Aboriginal is in custody for (a) a ‘serious’ offence or (b) a non-serious offence which may be described as an offence ‘against the person or against property’.

256. Where an Aboriginal, or at least a person who is reasonably believed to be an Aboriginal, is in custody for an offence, police should be required to notify forthwith the appropriate Aboriginal Legal Service of that fact. The Aboriginal Legal Services have a network of offices in all States and the Northern Territory. They are independent bodies which have

been funded, and to some extent co-ordinated, by the Australian Department of Aboriginal Affairs since 1972. The services are normally controlled by an elected all­ Aboriginal Council. They employ solicitors and Aboriginal field officers whose job it is to act for Aboriginals in all classes of criminal and civil matters. Although the services have clearly had teething troubles in some locations, the Commission’s impression is that they

have performed a quite remarkable role in improving both the quantity and quality of representation for Aboriginals, certainly in criminal matters. They appear to enjoy the support of the great majority of the Aboriginal people. The Commission believes that the Services would work even more effectively were they to be informed at an earlier stage that Aboriginal persons were in custody or under investigation, and could make the necessary arrangements for their representation, subject of course to the wishes of the Aboriginal in question. Such a system was in operation for several years in Victoria, based loosely

upon a provision of the Aboriginal Affairs Act 1967 (Vic).456 Very recently, in August 1975, the Chief Commissioner of the Australia Police instituted a notification procedure of the kind in question by issuing the following instruction to all members of that force:

The Secretary of the Department of Aboriginal Affairs has requested that the commission of offences by Aboriginals be notified to the Aboriginal Legal Services so that appropriate action can be taken to arrange representation at Court. For the purpose of this instruction an Aboriginal is defined as:

450 Section 37 of that Act provided that: "37(1) Where an aborigine is a party to any criminal proceedings the court or the justices hearing such proceedings shall inform the Director of Aboriginal Affairs thereof and if it considers that it is in the interest of the aborigine may adjourn the hearing to enable the Director or his deputy to appear on behalf of the aborigine.

(2) In such a case the Director or some other person authorised by the Minister may appear on behalf of the aborigine and make any application to the court which the Director or the person so appointed may deem necessary in the interests of the aborigine.' In practice, the Victoria police notified the Department directly. When the Victorian Aboriginal Legal Service was established in 1972, the Departm ent in turn notified that Service in order that representation might be arranged. This was done either directly by the solicitors employed by the Service or. more often, by briefing a private practitioner in the area to handle the matter. In due course the practice was further short- circuited. and the police in many cases notified the Legal Service directly. The 1967 Act has now been repealed by the Aboriginal Affairs ( Transfer o f Functions) Act 1974, following the transfer of responsibility in this area to the Commonwealth.

Special Problems o f Minority Groups / 123

Ά person of Aboriginal or Torres Strait Islander descent who identifies as an Aboriginal or Islander and is accepted as such by the community with which he is associated.’ When a person falling within the definition of ‘Aboriginal’ is either arrested or proceeded against by summons, the member in charge of the case will forthwith notify the nearest office of the Aboriginal Legal Service by the most direct means. In those

instances where an offence is dealt with by summons, the relevant time for notification is after the summons has been served. In remote areas of the Northern Territory Region notification may be made through the Regional Headquarters or Alice Springs Station. In other Regions it may

be made through the Regional Headquarters. When notification is given verbally, a written record is to be made of the name of the person to whom the information is passed and this should be followed up in writing if time permits.457

257. The Commission sees no difficulty, and some advantage, in now making this notification procedure legally mandatory. There must of course be provision for the Aboriginal in custody who does not wish his name to be given to a Legal Service in this way to elect out of this procedure. An appropriate method would be to require him to acknowledge such a

decision in writing. The procedure here recommended should be applied in respect of all offences for which Aboriginals are taken into custody, with the possible exception of drunkenness. Drunkenness has not technically been an offence in the Northern Territory since 1974.458 However a drunken person may be kept in police custody for up to 6 hours as a form of protective custody under section 33A of the Police and Police Offences

Ordinance 1923. Although claims were made to the Commission that the power to detain drunks had been occasionally misused by police as a means to hold persons for questioning, the Commission takes the view that the balance of convenience is in favour

of excluding drunkenness from the proposed procedure for the notification to Aboriginal Legal Services of the detention of Aboriginals in custody.

258. One conclusion must be stated following the public sittings held by the Commission in the Northern Territory. The general state of police relationships with the Aboriginal community in the Northern Territory does not appear to the Commission to be entirely satisfactory. According to several persons who have made submissions to us, there have

been some improvements in recent months. Senior police officers to whom we spoke appreciate how important it is to work in harmony with the communities the police serve. This is particularly true on the isolated outstations. It appears to the Commission that much could, and should, be done to improve the training of policemen in respect to Aboriginals. Even a small understanding of the culture, language and habits of thought of Aboriginals might go a very long way indeed to easing a very difficult law enforcement situation. Such an understanding might be secured by attendance for example at the

training course run by the Institute of Aboriginal Development in Alice Springs. Alternatively, the curriculum of that course could be modified and adapted for a special course in the police training classes.

NON KNGUSH-SPIiAKIikS

259. The Class. The plight of the person in Australia not proficient in the English language is in

457 Head Office Instruction (General) No. 75 12. 6 August 1973. «.'I p 0 )jce anc| Police Offences Ordinance. No. 65 of 1974. deleted the relevant words in section 27i 1)(a) of that Ordinance. .

124 j Criminal Investigation

many ways similar to, and indeed overlaps with, that of the Aboriginal. Not only can he not know or understand what the law is, he is not able to properly fend for himself once confronted with it. The problem of persons not fluent in the English language is part and

parcel of the rapid intake of migrants to this country following the Second World War. Unhappily, the administration of criminal justice on a police level at least has not caught up with the radically changed society in which it can no longer be assumed that every person has English as his mother tongue.

260. Problems. A ready example of the problems faced may be seen in the concept of bail. Bail conditional on the payment of money is a notion that is basically confined to common law countries. In Italy, for example, it is rare for offenders to be released before trial. When they are released, bail money is seldom required.459 Consequently ‘bail’ can be, and is, easily confused with ‘fine’. An uninstructed migrant may not appear at court to answer a charge because on the payment of money he considers the matter is closed. Safeguards will be irrelevant for him unless they are understood. It is clear, furthermore, that such persons can often be drawn into the criminal process unwittingly and in many cases quite unfairly. An example graphic enough to be worth recording in full is given in the special report prepared for the Law and Poverty Section of the Australian Commission of Inquiry into Poverty:460

Mr C. was going home by train one evening. At a suburban stop he leaned out the door to see the name of the station and a group of young men pushed him out of the train and on to the platform and would not let him re-enter the carriage. As a result of the scuffle that developed, the Station Master arrived on the scene and eventually Mr C. (but not the young men) was arrested and charged with (i) assault and (ii) assaulting an officer of the Commissioner of Railways. When he came before the magistrate and was asked for his plea, Mr C. said he didn’t understand why he was there; the magistrate thereupon remanded him in custody for fourteen days for a psychiatric report. On Mr C.’s second appearance in court fourteen days later a report was produced which stated it was not possible to communicate with C. adequately because of language difficulty, but it was thought he might be schizophrenic and ideally he should be referred to a psychiatric hospital for investigation. The magistrate then remanded the defendant to Long Bay Gaol for a further 14 days with an order for medical and psychiatric reports to be obtained with the assistance of an interpreter. During all this time C. had been unable to communicate with anyone—employer, friends (he had no family) or lawyers. A next-door neighbour disturbed by C.’s unexplained absence eventually managed to trace him and contacted the Council for Civil Liberties, who arranged to get the remand broken and the man released on $50 bail. Legal defence was subsequently arranged and the first charge was dismissed under S.556A of the Crimes Act and the second charge was not proceeded with. 261. Other very common situations where misunderstanding and confusion prevail arise when

migrants are arrested for street offences. One survey461 shows that at the Central Court of Petty Sessions in Sydney during a three-month period in 1973 all migrant groups, other than Greeks and Maltese, had a higher proportion of street offence charges against them than the Australian group.462 The Greeks were almost the only foreign nationality charged with betting offences.463 Often the acts in question—e.g. urinating in a public

459 Proceedings o f the Institute o f Criminology, 1969, Appendix 1: ‘Bail in Foreign Climes', p. 94.

46,1 Jakuvowicz & Buckley, Part 5, Courts, Summary Trial.

461 Reported in Jakuvowicz & Buckley, Part 4, Migrants and the Police, Street Offences.

462 e.g. Italians 45.9%, Yugoslavs 41.3%, Eastern Europeans 7 7 . 3 " cl. Australians 36” 463 In the above-mentioned survey, 7.5% o f Greeks arrested were arrested on gambling charges, mainly in respect of traditional games played in cafes.

Special Problems of Minority Groups j 125

place—are not offences in the country of the migrant’s origin. No one would suggest different substantive rules for different classes of residents, at least in urban Australia. However it would not appear entirely unreasonable to believe that in a great many cases once told clearly that such acts are unlawful in Australia, a migrant will desist from them in the future. It may be necessary to proceed with a prosecution in a particular case. However, the prosecution is unlikely to have much educative or deterrent effect if the person remains from first to last quite unclear of the offence for which he is being

prosecuted.

262. Recommendations. These considerations lead the Commission to make the recom­ mendation that persons unable to speak or understand English with reasonable facility should not be questioned except in the presence, and with the assistance, of a competent interpreter. Where a police officer who is asking, or who wishes to ask, a person any

questions has reasonable grounds for believing that the person is unable to speak or understand English with reasonable facility, he should not proceed with that questioning unless or until an interpreter can be made available. This requirement should apply in respect of both pre-custodial and custodial investigations.

263. The sanction for a breach of the rule should be the exclusion of the evidence obtained in default of the rale under the proposed reverse-onus discretionary exclusionary rule.464 At present there is no rule of law or practice that when a man with an imperfect knowledge of English is interrogated without the presence of an interpreter, statements made by him shall be inadmissible in evidence.465 Whether a judge will hold the confession inadmissible in cases where the warning or questions were not interpreted will depend upon whether he considers that in the whole circumstances its admission would be unfair

to the accused.466 The Commission’s proposals will clearly not work a revolution in this area of the law. They will simply amount to a legislative endorsement of the proposition that questioning a suspect lacking facility in English, without an interpreter, is prima facie likely to result in unfairness. The discretionary exclusionary rule will be reinforced so that

it can be used more positively by judges than has been the case in the past applying the rather feeble rule of the common law. It is also intended that a breach of the rule requiring that an interpreter be obtained may result as well in disciplinary action in an appropriate case.

It is well understood that there may be acute difficulty in practice in determining whether a person’s linguistic disability is such as to bring this proposed rule into operation. There will obviously be marginal cases. The discretionary exclusionary rule and the disciplinary proceeding sanction are both tools flexible enough to deal with this

problem. A policeman should not expect to be charged with a disciplinary offence or to suffer the exclusion of his evidence if he has behaved reasonably in all the circumstances.

264. The Commission has proposed that the interpreter should be ’competent’. The report prepared for the Poverty Commission questioned the competence of some at least of those who hold themselves out, for a fee, as professional interpreters.46" That report also noted the general undesirability of having interpreters retained by police forces.468 On the other hand, it appears that those organisations which do provide adequate services are severely understaffed and cannot provide instantaneous service when required.469 There is no

464 Para. 298.

465 R. v, Czerwynski [ 1954] V.L.R. 483.

466 R. v. Contenanza [1958] Tas. S.R. 3.

467 See also South Australian Committee at pp. 45-6.

U,H Jakuvowicz & Buckley. Part 4. Migrants and the Poliee. Interpreters in Police Stations.

4fty ihid., Part 3, Interpreting and Information Sen-ices. ,

126 j Criminal Investigation

published information available as to the extent and efficiency of such services in the Territories, where the problem is most likely to arise so far as the Australia Police are concerned. As has already been observed470, much can be done in the context of notification of basic rights by the simple expedient of ensuring the availability in police stations of appropriate translations, in a full range of languages, of the relevant basic information. But this can of course be only part of the solution. Though there may be practical problems in the short run, given the present supply of interpreters, the

Commission believes this to be a great source of confusion and injustice. It is accordingly minded to recommend that legislation for the provision of interpreters be enacted immediately. The Commission believes that interpreter services will develop on the necessary scale to meet the necessities of such a law. No person who has travelled in a country in whose language he is not fluent can doubt the justice of this proposal or the need for it, in Australia, where a large minority of the population now comes from non English-speaking countries.

CHILDREN

265. Problems. It has always been accepted that children need special protection in their dealings with the criminal law. Material placed before the Commission in public sittings makes it clear that Australian police practice recognises their special position. An illustration of this fact may be found in the Victorian Chief Commissioner’s Standing Orders:

644(2) Where a person under the age of sixteen years is detained on suspicion, such person must not be questioned until the following steps have been taken to arrange for either the parents or some independent person to be present during the interview. Police shall endeavour, without delay, to contact his or her parents and inform them that they are permitted to be present at the Police Station or place where the person has been detained during the questioning of such person, if they so desire. If the parents do not desire to be present, they should be asked if they would like to nominate a person to

be present at the questioning on their behalf. Where a child has no parents or it is not possible or practicable for either of the parents to attend the Police Station or place where the person has been detained within a reasonable time and they do not desire to nominate a person to be present on their behalf, an arrangement should be made if practicable, for an Officer or Sub-Officer or Policewoman who is not connected with

the inquiry to be present during the questioning.

The Commission proposes to formalise in law what has hitherto been very largely accepted in practice. Our starting point, as with Aboriginals and migrants, is the proposition that children should be entitled to all the protections accorded to adults, but in addition to certain necessary extra protections.471 The age of a person is relevant for two main reasons. In the first place juveniles are under the guardianship of some adult or adults, usually the parents; thus police interrogation of juveniles involves other people to an extent that interrogation of adults does not. Secondly, and more important, it appears well accepted that children are, for the most part, less able to handle police interrogation

than adults. In a leading case in the United States472 the Supreme Court of the United States held that:

a fourteen-year-old boy, no matter how sophisticated, is unlikely to have any

470 Para. J00.

471 cf. Re Gault 387 U.S. 1 (1967).

472 Gallegos v. Colorado, 370 U.S. 49 (1962).

Special Problems o f Minority Groups / 127

conception of what will confront him when he is made accessible only to the police, that is to say, we deal with a person who is not equal to the police in knowledge and understanding of the consequences of the questions and answers being recorded and who is unable to know how to protect his own interest or how to get the benefit of his

constitutional rights.

This point is confirmed by a very experienced observer of juvenile courts in England, Professor Winifred Cavanagh, who comments:

Children’s minds do not appear to work in quite the same way as those of adults. It is doubtful whether the caution administered under the Judge’s Rules conveys to them what it is intended to convey.473 ' Of course, the force of this observation will vary to some extent with the age of the child. The juvenile offender legislation in most of the States of Australia sets 16 years as the maximum age for justifying differential treatment in law. The Commission accepts that age as suitable for the procedural safeguards now proposed to govern the relations of police officers and child suspects.

266. Recommendations. First, no questioning of a child should take place except in the presence of a parent, relative, friend, lawyer, welfare officer or other responsible person. In a custodial situation, that applies to any offence whatsoever. So far as pre-custodial questioning is concerned, that protection ought also to be afforded in respect of most classes of offences. The appropriate description is, as with Aboriginals, ‘serious’ offences

together with all those other offences which may not be punishable severely but may be described as offences against the person or property. As has already been noted elsewhere474 4 7 5 , to include only ‘serious’ offences would be to exclude from the range of protection petty larcenies, vandalism and indeed all the most common ‘children's

offences’. The sanction for a breach of this proposed rule by a police officer would be, again, loss of the evidence by the operation of the discretionary exclusionary rule, or the possibility of a discipline proceeding being brought under the discipline code.

267. The Commission’s second recommendation is that when a child is under police restraint, his parent or guardian should be immediately notified. This may not always be practicable. Further, some parents, even if available, may be of no use to the child: being themselves too overawed, or ignorant, or anxious to please the authorities, or

uninterested, or even anxious to see the child ‘taught a lesson". The child may not want his parent or guardian there. He may want a friend, or a lawyer, or nobody. As a qualification to the foregoing, where a parent, friend or other person who might be described as a ‘prisoner’s friend’ is unavailable to attend within a reasonable time, say two hours, or

where the attendance of such a person is unacceptable to the child, the interview should proceed in the way it usually does at present, that is. in the presence of a senior police officer, or policewoman, not connected with the investigation.4 7

473 Juvenile Courts, the Child and the Law (1967). p. 163.

474 Para. 36. 475 See e.g. Victorian Chief Commissioner's Standing Orders. Order 64412).

10. Special Problems of Remote Areas

THE GENERAL PROBLEM

268. Distances in Australia are indeed tyrannical. In the Northern Territory, where this problem is most acutely felt by the Australia Police, there are a number of settlements which are hundreds of kilometres from the nearest regularly sitting court. Police resources are spread very thin. The present establishment of 469 officers has to police an area of one

and a quarter million square kilometres with a population of 8 6 500476 spread over five main population centres. As well there are at least thirty other centres large enough to require a police presence. Apart from the main towns—Darwin, Alice Springs, Katherine, Tennant Creek and Nhulunbuy (Gove)—there are presently 29 Northern Territory Police

outstations, 19 of which are manned by a single officer477 and another nine by only two officers.478 The remaining station, Groote Eylandt, is manned by five officers. Courts sit regularly only at Darwin, Nhulunbuy, Groote Eylandt, Katherine, Alice Springs, Tennant Creek and Warrabri. They are held irregularly—three or four times a year—at another three locations, Maningrida, Papunya and Yuendemu. The location of the various police stations and the nature of the communication facilities which link them is

shown on the accompanying map. The vast distances which separate them are also illustrated on that map.

269. The problem of remoteness has important consequences not only for police efficiency but also for the liberties of the subject. Sustained physical isolation, accentuated by poor communications, throw's an enormous psychological strain on the individual police officer, and makes it harder for him to maintain the sense of balance which is so essential to fair and effective police work. The lack of access to magistrates, or even justices in many instances, reduces the element of prior judicial restraint, which is particularly important, for example, in the exercise of the search and seizure power. That lack of access becomes even more important when a suspect is in custody for an offence; he cannot be brought immediately before a justice or magistrate, and in some circumstances may not be able to

be so brought for a period of several days. There is the further problem, from the suspect's point of view, of gaining access to a lawyer, none of whom in the Northern Territory resides outside the main population centres.

270. Throughout this report the Commission has kept the problem of distance in mind, and has attempted so far as possible and desirable to minimise its effects by the terms of its recommendations. Thus we have constantly urged the use of the telephone or similar modern means of communication as an integral part of police procedures: in the obtaining of search warrants479, in seeking an extension of the maximum period of

476 Bureau of Statistics figures as at 31 March 1975 (Doc. Ref. 4.16). In September 1974, before Cyclone Tracy devastated Darwin, the estimated Northern Territory population was 103 900.

477 Batchelor, Daly River, Borroloola, Daly Waters, Elliott. Larrimah, Maranboy, M ataranka. Roper Bar, Timber Creek, Wave Hill, Wollogorang, Anthony Lagoon, Avon Downs, Finke, Harts Range. Kulgera. Lake Nash and Ti Tree.

478 Adelaide River, Garden Point (Bathurst Island), Maningrida, Pine Creek. Hooker Creek. Papunya. W arrabri, Warrego, and Yuendemu.

479 Paras 201-202.

Special Problems o f Remote Areas / 129

custodial investigation480, in seeking approval for taking of fingerprints and the like in certain circumstances481, and in seeking permission to undertake medical exam­ inations.482 4 8 3 From the suspect’s point of view, similarly, we have recommended that the telephone be available to him not only to contact a lawyer482, and friends or relatives484, but also in appealing to a magistrate from a refusal of police bail or against the conditions

of bail set.485 It may take time to make these procedures viable. But once operating they should give police and suspect alike means of access to the outside world which in remote areas have hitherto not been used or not been available. It is of course a necessary condition of the viability of these procedures that there should be an efficient communications network between the outlying stations and the location of the duty magistrates. We treat this question of oral communications in the next section below. We cannot of course solve all the suspect’s problems simply by means of the telephone facility.

Much will depend upon his knowing how to exercise his rights and also upon the physical presence on the scene of someone who can help him to exercise them, namely a lawyer, or in the case of an Aboriginal or child suspect, a ‘prisoner’s friend’. We have recognised elsewhere in the report486 that, especially so far as the lawyer is concerned, this problem may in some places be insoluble. The Commission’s recommendations have been made

accordingly, so that custodial investigations will not be held up indefinitely pending the uncertain arrival of such a person.

271. A further problem associated with geographical remoteness is that of getting the accused to a court. The present situation leaves much to be desired in this respect. So far as persons granted police bail are concerned, the Commission has recommended487 that police bail not be limited as at present to a maximum period of fourteen days. This recommendation, if accepted, will relieve the present problem created by accused persons being required to travel very long distances simply to answer bail and secure an adjournment of

proceedings and a continuance of bail. For persons refused police bail, it is not practicable to recommend specific time limits for the period within which such persons must be taken before a court.488 But it is nonetheless clear that something must'be done to improve the present transportation system in this respect. This report will deal with the question of physical communication in the Northern Territory.489 If there is difficulty in bring people to the courts, there is of course another way to solve the problem, time honoured in the system of British criminal justice, namely by bringing the courts to the people. The

feasibility of improving magistrates’ mobility in this respect is the subject-matter of the final section of this part.490

ORAL COMMUNICATIONS

272. The present communication system is something of a nightmare. As illustrated on the

480 Para. 89(f).

481 Para. 115.

482 Para. 131.

483 Paras 105 ff.

484 Para. 103.

485 Paras 175(e), 176.

486 Para. 109.

487 Para. 175(h).

488 Para. 96.

489 Paras 276-282.

49,1 Paras 283-286.

130 / Criminal Investigation

NORTHERN TERRITORY OF AUSTRALIA

TIMOR SEfi

4Μί/Ν/νΓ'-/-5ρ •W DARWIN

G roote Eylandl

Special Problems o f Remote Areas / 131

map it is based upon H.F. radio links between all outstations. These are complemented by telephone links between the stations on or near the arterial roads of the Territory and by telex links between the five main urban centres. Telex is a perfectly satisfactory communications medium, but there are acute problems with both telephones and H.F. radio in the Northern Territory. The Commission was informed that the telephone facilities at Elliott and Ti Tree are reliable only during official business hours. The radio­ telephone facilities at Timber Creek and Harts Range are reliable only between the hours

of daylight and early evening. A further difficulty with most of the telephone links is that they are on a ‘party-line’ basis, and this of course makes confidential communications impossible. H.F. radio is regarded as a thoroughly unsatisfactory basis for com­ munications as it is generally quite unreliable between 8 p.m. and 6 a.m. and reception is not always good even outside these hours. Thirteen of the outstations, including Groote Eylandt, Garden Point, Maningrida, Hooker Creek and Yuendemu, which are all frequent trouble spots, are linked with the outside world only by H.F. radio.

273. In his 1973 Northern Territory Police Report, Brigadier McKinna stated the position as follows:491 Communications are important to any Police Force, but to the Northern Territory Police they are vital and because of distance and doubtful accessibility they must rely

heavily on radio. Single Side Band (S.S.B.) equipment has been installed at most of the police stations in the northern portion of the Territory and generally the radio operates reasonably well at those stations which are relatively close to Darwin. The police radio com­

munications for the remainder of the Territory can be classified from poor to very bad. The older radio sets rarely function efficiently and many country police stations are experiencing the greatest difficulty in establishing contact with Headquarters or other stations. The situation is aggravated still further by interference by other radio

transmissions. Queensland police operate on the same frequency but with a high power output and consequently obliterate Northern Territory Police transmissions. The frequency 3260 is ‘drowned’ at Alice Springs by Radio Australia and the "bush" stations often cannot contact their District Headquarters . . .

The whole of the Northern Territory Police country radio communication system requires to be carefully examined by experts in that field, who could recommend the changes that must be made to provide an efficient service to and from all police stations.

274. Some attention is being given to upgrading the present facilities. The Commission was told that the Department of Police and Customs had developed a three-year plan which will result in a system based on more power for H.F. radio to satisfy both police and customs requirements. This should provide reliable communications between all

outstations, all travelling officers and the new customs patrol launches. It is also intended eventually to link customs outposts along that part of the northern coastline of Australia between Broome and Cairns. A specific proposal which is being considered is the introduction of a radio/telex system. This is a telex system which works from H.F. radio

and has the great advantage of being able to receive and store printed messages without an officer being present. It is. however, expensive: the present capital outlay of about S7000 per unit w'ould require an initial expenditure of the order of S200 000. to which must be added the cost involved in upgrading the radio transmitters to a level capable of feeding

the telex. Radio telex units must be serviced and replaced frequently, and the running expenses will also, as a result, be high.

4‘" ‘Report of the Inquiry into the Northern Territory Police Force", pp. 65-6.

132 / Criminal Investigation

275. The Commission fully appreciates the practical difficulties that are involved in upgrading a complicated communications system in an area like the Northern Territory, and in doing so quickly. However the Commission cannot over-emphasise the importance of this being done. In the interests of both police and suspects, it is time that the makeshift, pioneering spirit of the frontier, however admirable its maintenance may be in other contexts, gave way to modern technology. The practical implementation of minimum

standards in the administration of criminal justice in the Northern Territory of Australia requires nothing less.

PHYSICAL COMMUNICATIONS

276. The police man-hours lost every year in road travel in the Northern Territory are enormous. In 1974-75 nearly 650 000 road kilometres were travelled in conducting prisoner escorts, mission patrols, conveyance of police and civilian witnesses, search and rescue operations, arrests, licensing and station inspections, urgent maintenance trips to country stations, attendance at special country events (e.g. race meetings), traffic patrols and the like.492 Added to the hours spent in travel, there must also be taken into account the inevitable drop in efficiency of police officers required to carry out specific functions at the end of long road journeys, often immediately upon arrival at their destination. Other problems from a police point of view include the lengthy delays which have arisen from time to time in rendering assistance to areas requiring reinforcements. These problems arise because of the numbers of personnel available and the amount of equipment to be transported and the absence of suitable aircraft to assist in the operation.

277. The delays and difficulties involved in surface travel have important consequences not only for police efficiency but also for the rights of accused individuals. The nature of the problem is best illustrated by the following extract from a submission made to the Commission by the North Australian Aboriginal Legal Aid Service:

Justice being brought to the people who are in need of it is a service taken for granted by most Australians. In the Northern Territory, however, the people are obliged to take themselves to where justice resides, which in many cases means travelling distances of up to 1600 km for the return trip.

Take the Katherine Court of summary jurisdiction. It sits once a week and is serviced weekly by a magistrate who flies from Darwin. Its area covers a gigantic 320 000 square km, which includes in its area two large Aboriginal communities—Hooker Creek settlement (population 1200), 560 km away, and Roper River mission (population

800), 320 km away. Two policemen are stationed at each of these communities and both pairs of police have the responsibility of maintaining white man’s law and order. The catch is that if an Aboriginal tribesman commits an offence and is formally charged by the police, he must then make an epic journey to Katherine to answer police bail. It follows that the miscreant, after he is fingerprinted, photographed and released on police bail to appear

at the Katherine Court, carries a most onerous obligation to answer his bail—particularly when you consider that there is no public transport linking either of these communities to Katherine and that few, if any, Aboriginals would own or have the use of a four-wheel drive vehicle usually necessary for the trip.

Not being able to answer his police bail escalates the Aboriginal’s problems; he is then arrested on a warrant because of his non-appearance at court and may subsequently spend up to a week in police custody in a tiny cell pending the sitting of

492 Written submission from Australia Police, Northern Territory Region, to Commission, 22 July 1975.

Special Problems o f Remote Areas / 133

the next court, where he must face two charges—not answering his police bail in the first place and the original police charge which brought him under notice. If the Aboriginal has the good fortune to escape a term of imprisonment for his breach of the law (which he quite possibly never knew existed and which he most probably never understood), he faces one final trial—getting back home again. The

police who brought him to Katherine in custody usually make their own way back to the settlement, leaving the Aboriginal stranded in Katherine, far from his tribe and family, and in many cases not being able to speak a word of English. For the Aboriginal it means a long walk home—with the assistance of any list he can beg along the way, or, in the right season, a float down the river in the general direction

of his home, and a long trek overland. Since May 1974 when police were first stationed at Hooker Creek settlement after representations were made by white nurses for police protection against amorous tribesmen, there have been about 200 Aboriginals arrested and charged with summary

offences requiring them to appear at Katherine Court. The figure is slightly less for Roper River mission.

278. The police authorities from whom the Commission sought information on this question agreed that it was not usual practice to return Aboriginal defendants to the remote settlements from which they may have been brought for court appearance. Three main reasons were offered for this. In the first place, police regulations did not authorise passengers to be taken in police vehicles, and difficulties would arise if there happened to

be an accident. Secondly, the Aboriginals in question often desired a ‘holiday’ in town, or for some other reason did not want to go back to the settlement immediately. Thirdly, it was thought ‘distasteful for police to have to chauffeur’ persons whom they had just been engaged in prosecuting.

279. One obvious solution to the problem discussed in the preceding paragraphs is the holding of courts at the remote settlements. The feasibility of this solution is discussed in the next section. It is clear that drastic steps are urgently needed to upgrade the system of physical communications in the Northern Territory. The obvious solution here is the acquisition

of police aircraft. At present there are no such aircraft owned by the Northern Territory Region of the Australia Police. Although the use of aircraft on commercial routes and on a charter basis has increased substantially in recent years, air travel still represents only a minute portion of the total miles travelled. The force has suggested that if appropriate

light aircraft were available, at least 75°,, of police travel (excluding short journey and town area patrols) could (and probably would) have been by this means. This would represent at least a 300% saving in man-hours, calculated on pure travelling time alone.

Substantially more would be saved if necessary rest periods, and wasted man-hours through exhaustion-induced reductions in efficiency, w'ere also taken into account. From the accused person's point of view, travel by aircraft also has obvious advantages. In serious cases, where police bail is refused, he can be brought before a magistrate much more quickly. Further, there would be a saving not only in the time spent travelling to and from court centres from remote settlements, but also a substantial reduction in the discomfort experienced by persons obliged to travel over rough bush roads in the back of a police utility. As to the potential use of police aircraft not only to bring, but also return, defendants to isolated settlements, it is assumed that it will be possible for police pilots to overcome the distate for this task apparently felt by their surface-bound colleagues. Submissions made to the Commission in the Northern Territory underline the dangers of abandoning remote area Aboriginals in towns following the completion of court

proceedings. A more open invitation to further problems could scarcely be imagined.

134 I Criminal Investigation

280. It has not proved possible to make a detailed feasibility study of the kind, and cost, of aircraft appropriate to meet the Territory’s needs. There are at least two types of fixed­ winged aircraft, the Nomad 22 and the Cessna 402, the range, speed, payload and take-off and landing characteristics of which are such as to justify a detailed feasibility analysis.

Such analysis is a complex matter, as may be illustrated by taking a single important characteristic, that of range. The range of the Nomad is expressed to be 1600 kilometres and that of the Cessna 1300 kilometres. If these figures are translated on to the map, it appears that either aircraft would give ample coverage of the vast Northern Territory distances. But the stated range of an aircraft is merely a flat figure indicating how far it can fly on its full payload of fuel. It takes no account of the amount of fuel reserves which are required by civil aviation regulations. Under Visual Flying Rules (V.F.R.) which apply to daytime flying in good light, good weather, and with no more than light cloud, the range

of the Nomad is reduced to 1360 kilometers and that of the Cessna to 1011 kilometers. This gives an effective radius of action for each of 684 and 505 kilometers respectively. Under Instrument Flight Rules (I.F.R.), which apply in all other cases (and effectively throughout the wet season in the top third of the Northern Territory), the ranges are reduced in 1150 and 830 kilometres respectively, implying an effective radius of action of

575 and 415 kilometres. This demonstrates that careful attention has to be devoted to the location of fuel dumps at strategic points and, or course, the economics of maintaining them.

281. Another important consideration in evaluating the merit of particular types of aircraft is the kind of take-off and landing areas required. During wet season conditions in the northern end of the Northern Territory, numerous stations and country centres have their airstrips affected by flooding. With the extremely short take-off and landing requirements of the Nomad, there is a good possibility that this aircraft could be successfully operated on shortened strips under such emergency conditions. A possible solution to this problem would be the purchase of helicopters. However the short range493 and slower cruising speed of these aircraft militate against their use. The great compensating advantage of the helicopter is its utility in search and rescue operations. Attention should be given to the

feasibility of the purchase of a limited helicopter facility for some town centres.

282. A full research program to recommend the size, type, location, usage and number of aircraft required in the Northern Territory would take several months. The cost of implementing the recommendations to emerge might appear to the Government to be prohibitive. The Commission recommends, nonetheless, that the highest priority should be given to upgrading the Territory’s physical communications along the lines suggested.

Fair and effective law enforcement in conditions such as those applying in the Northern Territory demands not only well-trained and dedicated police personnel, but also equipment and resources suited to the special problems of the Territory.

AVAILABILITY OF MAGISTRATES

283. There are at present in the Northern Territory one Chief Magistrate and five Stipendiary Magistrates. Two of the Stipendiary Magistrates sit in Alice Springs and surrounding locations. Regulat courts are held as follows: daily in Darwin and Alice Springs; weekly in Katherine and Tennant Creek; fortnightly in Nhulunbuy and Groote Eylandt; monthly in Warrabri; and irregularly—three or four times per year—in Maningrida, Papunya and Yuendemu. There are no magistrates’ courts ever held, then, at 19 of the 29 locations

483 e.g. the commonly used Bell 2063 Jet Ranger, which carries a pilot and four passengers plus luggage, has a flat range of only 700 kilometres.

Special Problems o f Remote Areas / 135

where there is sufficient law enforcement business for it to have been thought necessary to establish police stations.

284. Approximately 140 persons hold appointments as Justices of the Peace for the Northern Territory. Some have never sat in court. However,during the past three years 53 Justices have sat at various centres in the Territory. They sit regularly at Katherine, Nhulunbuy, Tennant Creek and Papunya to deal with cases between visits by magistrates. The most constant call upon justices to sit is at Nhulunbuy. Justices have also sat from time to time

at Finke, Kulgera and Yuendemu. A substantial debt of community gratitude is owed to those lay justices who, without fee and often at much personal inconvenience to themselves, have performed this judicial function. The Commission, however, shares the almost universally recognised view that it is not a proper function of lay justices today to

sit in court to hear and to determine matters, at least by themselves. Their functions should be limited to signing court process and adjourning matters for hearing by professional magistrates.

285. Among all the magistrates, legal practitioners, police officers, and representatives of the Aboriginal community to whom we spoke on the subject, there was complete consensus that the magistrates’ court sittings should be conducted at more remote area locations than hitherto, and with greater frequency. This applies particularly to those locations with substantial Aboriginal populations. Swift justice is understood and appreciated. Justice dispensed weeks or months later, and often hundreds of miles away,

leads more often than not, for tribal Aboriginals, to complete bewilderment. Moreover, justice dispensed on location has an important educative effect not only upon the recipient, but also upon the community which witnesses the occasion.

286. At a minimum, court sittings should be held at at least five additional locations to those on the present list, namely Garden Point (Bathurst Island), Hooker Creek, Roper Bar, Finke and Kulgera. What are now irregular sittings at Maningrida, Papunya and Yuen­ demu ought to be upgraded to become regular monthly courts. The primary need all over the Territory is for a flexibility of response by magistrates, so that when trouble erupts at a

particular location a court can be held there w ithin a matter of days. It is clear that the present establishment of six magistrates cannot cope effectively with this expanded workload. These magistrates will be under even more pressure than hitherto if the Commission’s proposals are accepted and a duty roster system introduced for the hearing

o f ‘telephone’ applications of various kinds,494 although the amount of such work should not be exaggerated. The Chief Magistrate. Mr D. A. McCann, has recommended that two additional Stipendiary Magistrates should be appointed as soon as possible, both to relieve existing pressures and to enable the expansion of court facilities to new locations.

This Commission adds its voice in support of that recommendation. Increasing the availability of magistrates in the Northern Territory seems to be one of those familiar proposals for reform in the administration of the law about which everyone seems to agree, but in respect of which nothing ever seems to happen. The time for action has come.

494 Paras 202, 270.

11. Enforcing the Rules

INTRODUCTION

287. Rights without remedies may be no more than rhetoric; duties without sanctions for their breach may as well not be imposed. These considerations have been in the forefront of the Commission’s thinking throughout its deliberations on this reference. It has been put to us on many occasions that the great failing of the law of criminal procedure hitherto has not so much been its principles or its sentiments, not the kind of theoretical balance

between community and private interests that it has attempted to strike, but rather the failure of the law on the ground to conform with the law in the books. The central sanction hitherto has been the civil action for damages—for false imprisonment, wrongful arrest, assault, or trespass to land or goods—brought at the instance of the aggrieved victim of an excessive use of power. The back-up sanctions have been the voluntariness and discretion rules of evidence, designed to ensure the exclusion of certain kinds of evidence in certain rather narrowly drawn circumstances. But neither class of sanction has, for reasons we have adverted to throughout the course of this report, been a particularly effective deterrent to overly enthusiastic law enforcement activity. Nor has either been a very- effective vehicle for remedying the grievances of those on the receiving end of such activity. Changes are necessary, both by way of reinforcing the old sanctions and introducing new ones. In this Part, we discuss four different classes of sanction which may be relied on to a greater or less extent in enforcing the rules we have proposed: first, a new form of discretionary exclusionary rule; second, to a very limited extent, the creation of criminal offences; third, the traditional civil actions; and fourth, proceedings under a

revised police discipline code.

EXCLUSIONARY RULE

288. Present Law. In Anglo-Australian law, evidence is admissible even though it was obtained by illegal or improper means, but the court has a discretion to exclude if its admission would operate unfairly against the accused. The usual kinds of illegality and impropriety to which the rule applies are: illegal searches of a suspect’s body or property, illegal seizures of objects, illegal blood tests and medical examinations, illegal phone

tapping and interception of mail, the use of tricks, lies and eavesdropping, and entrapment. The existence of the discretion has been approved twice by the Judicial Committee of the Privy Council, in Kuruma v. R. and King v R.495, and twice by the High Court of Australia, in Wendo v. R. and R. v. Ireland496, though in Wendo Dixon C. J. voiced serious reservations about the rule. The English Criminal Law Revision Committee in 1972 recommended no change.497 The discretion is in practice a narrow-

one. It is often mentioned but rarely acted on. It is far more common for police misconduct to be criticised by the court than for evidence obtained as a result to be excluded. To secure exclusion of the evidence it seems that conduct in some way

495 Kuruma v. R. [1955] A.C. 197: King v. R. [1969] 1 A.C. 304. 496 Wendo v. R. (1963) 109 C.L.R. 559; R. v. Ireland (1970) 126 C.L.R. 321. Other Australian authorities illustrating the rule of admissibility are: McLean v. Cahill [1932] S.A.S.R. 359; R. v. McNamara [1963] V.R. 402.

491 Eleventh Report, para. 68.

Enforcing the Rules / 137

oppressive is necessary.498 Evidence is usually excluded where consent to a medical examination has been obtained by some trick or misrepresentation499, or where the accused is wrongly told he must be photographed500, or where breath test evidence which

has been compulsorily obtained can lawfully be used only on minor but not major charges501, or where a statute is held implicitly to forbid the use of blood test evidence without certain conditions precedent having been followed502, or where very elaborate

deceptions occur, as where policemen obtain confessions by disguising themselves as magistrates and bail bondsmen. 503Early signs of the regular exclusion of entrapment evidence proved illusory.504 289. The reason why the discretion is usually exercised against the accused is said to be that where evidence is relevant and reliable it should not lightly be kept from the jury. But is the real evidence put before the court always so reliable? The notion that things, unlike men, cannot lie, is deceptive, because our belief in the existence of the things depends on the fallible testimony of the men who said they found them. In Kuruma itself the accused, a Kenyan African, was convicted during the Mau Mau Emergency of illegally possessing two rounds of ammunition. The search which was said to have discovered this was carried out illegally in that the two African constables concerned were too low in rank. Although the evidence was admitted because of its ‘reliability’ there were reasons to doubt this. The police said they had taken the unusual step of returning a pocket knife supposedly found with the ammunition to the accused while he was in custody; the accused denied ever possessing either knife or bullets. Three persons alleged to have observed the constables’ search were not called as witnesses. The magistrate ignored the unanimous contrary advice of three lay assessors in admitting the evidence and convicting. The accused, a man of good character, knew that the road on which he was travelling had a road block at which he was likely to be stopped; he had an alternative route to his destination. The entire point of a regulation such as that which made the search illegal was to prevent such disputes about planting evidence, particularly during troubles partly based on tribal conflict; in the legislature’s view a senior officer could be trusted not to plant evidence.505 In applying the Kuruma rule of admission the courts, it might be said, were substituting their standards of reliability for those of the legislature.

290. The Kuruma decision is also unsatisfactory in its handling of Scottish and United States authority. It cited the former in support of the result reached, and said that the stricter exclusionary rule of the United States depended on the Constitution. Though Scottish law' is usually stated in a way verbally similar to our own, in practice the discretion is a much

more sophisticated one more commonly exercised against the prosecution. As for United States law, though the Fourth Amendment forbids unreasonable searches and seizures, in all jurisdictions—American and non-American—a common question must be faced: is it desirable to admit evidence obtained in breach of laws which do not provide expressly for

its exclusion? Lord Goddard’s advice in Kuruma failed to discuss Wolfv. Colorado51"' which held that the States were bound by the Fourth Amendment, itself an important step

4I,H Murphy v. A .G .for Northern Ireland (1965) N.). 138. at pp. 147-9.

4,,,) R. v. Court [1962] Crim. L.R. 697; R. v. Payne [1963] 1 All E.R. 848. 500 R. v. Ireland (1970) 126 C.L.R. 321. sot R. v. Demicoli [1971] Qd. R. 358; cf. R. \. Ban,dev [1972] 2 X.S.W.L.R. 220.

502 Scott v. Baker [1969] 1 Q.B. 659 at pp. 671-2.

5,13 R. v. Pettipiece (1972) 7 C.C.C. (2d) 133. 504 R. v. McEvillv [1974] Crim. L.R. 239: cf. R. v. Faultier [1973] Crim. L.R. 45: R. v. Burnett [ 1973] Crim. L.R. 748. '

505 See also King v. R. [1969] ! A.C. 304, a case where drugs were illegally planted.

5,16 338 U.S. 25 (1949). .

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towards Mapp v. Ohio507 which held that evidence obtained in breach of the Fourth Amendment should be excluded in both federal and state courts. Lord Goddard cited Olmstead v. U S .108 holding wire-tap evidence admissible, but did not mention its reversal.5 0 7 5 0 8 509 Many other criticisms may be made of the Kuruma decision and reasoning.

Lord Goddard relied on civil cases denying a party’s claim of privilege when a copy of the privileged document comes into the hands of his opponent510 but these cases are themselves not uncontroversial.511 5 1 2 In any event, a denial of privilege in a civil case is different from admitting illegally obtained evidence in criminal cases. In a civil case the wrong is more likely to be remedied by separate proceedings than if the victim is in prison and the wrongdoer a policeman. The fundamental difficulty with the present position is its vagueness. It is strange that evidence obtained by a trick without illegality is more likely to

be excluded than evidence obtained illegally, and more curious still that so uncertain a criterion as ‘unfairness- should be employed.

291. Law in Canada. In R. v. Wray512 the majority of the Supreme Court of Canada favoured a more narrow rule of exclusion than that stated in Kuruma. In their view, even if a discretion to exclude illegally obtained evidence which operated unfairly existed, the meaning of ‘unfairness’ had to be limited:

The allowance of admissible evidence relevant to the issue before the court and of substantial probative value may operate unfortunately for the accused, but not unfairly. It is only the allowance of evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling, which can be said to operate unfairly.513 Such a view has made occasional appearances in other jurisdictions.514 It has the merit of avoiding the difficult questions about ‘unfairness’ that arise in Australia. However, it goes very close to a rule of universal admissibility, and ignores the unreliability which may be inherent in the very circumstances of illegality. 292. Law in the United States. The courts in the United States of America have held that the

Fourth Amendment right against unreasonable searches and seizures can only be enforced by the sanction of excluding evidence obtained in breach of it both in state and federal courts.515 The exclusion extends to ‘the fruit of the poisonous tree’, i.e. leads which are suggested by the evidence gained from the illegal search and seizures516, to oral evidence as well as real, e.g. statements overheard by driving a microphone into the wall of a house517, or statements made to police during an unlawful search.518 A more spectacular extension, which would probably have surprised the Founding Fathers and which does some apparent violence to the words of the Fourth Amendment, is the recent

507 367 U.S. 643 (1961).

508 277 U.S. 438 (1928).

509 Federal Communications Act 1934, s. 605; Nardone v. U.S. (No. I ) 302 U.S. 379 (1937).

5.0 Calcraft v. Guest [1898] 1 Q.B. 759.

5.1 Ashburton v. Pape [1913] 2 Ch. 469; See also Notes in (1972) 35 Mod.L.R. 83 and (1974) 37 Mod.L.R. 601.

512 (1970) 1 1 D.L.R. (3rd) 673 discussed in M.S. Weinberg. The Judicial Discretion to Exclude Relevant Evidence’ (1975) 21 McGill L.J. 1. "

513 ibid, at 689-90.

514 Ireland: People v. McGrath (1960) 99 I .L.T.R. 59. at p. 74; Hong Kong: R. v. Li Wai-leung (\969) H.K.L.R. 642, at pp. 666-7.

5,5 Weeks v. U.S. 232 U.S. 383(1914); W olfv. Colorado 338 U.S. 25(1949); M appv. Ohio 367 U.S. 643 (1961).

516 Sllverthorne Lumber Co. v. U.S. 251 U.S. 385 (1920).

514 Silverman v. U.S. 365 U.S. 505 (1961).

518 Wong Sun v. U.S. 371 U.S. 471 (1963).

Enforcing the Rules / 139

decision that wire-tapping and eavesdropping fall within ‘searches and seizures’.519 But the American rule has limits. An accused person cannot invoke the rule if the evidence was obtained in breach of another's rights. 520 The rule does not apply to breaches by a private individual rather than a state official.521 It does not apply so as to prevent the presentation of illegally obtained evidence to a federal grand jury.522 And the rule does not apply where the evidence is admitted not on the issue of the accused’s guilt but on some collateral issue such as his credibility as a witness.523 This kind of narrow distinction between evidence proving guilt and evidence proving that an accused who says he is not guilty is not worthy

of belief as a witness tends to bring the law and lawyers into contempt. The requirements of the Fifth and Fourteenth Amendments that the federal or a state government shall not ‘deprive any person of life, liberty or property, without due process of law’ are also

relevant. Actions which shock the conscience may infringe them, for example the forcible stomach pumping of the accused to reveal his having swallowed drugs.524

293. Scottish and Irish Law. In Scotland and Ireland the courts have taken the middle ground between the United States and the Kuruma positions. The verbal formulation of the rule is similar to the Kuruma doctrine. But it is not often noticed by these courts which cite Scottish authorities that their practical effect is very different in that they exclude evidence far more often. The touchstone of the law is Lord Cooper’s dictum in Lawrie v. Mu»·:525

the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods.

The Scottish and Irish courts have succeeded in going beyond the generalities of our courts by isolating and making explicit a number of different factors relevant to the exer­ cise of the discretion one way or the other. In brief, they ask: was the irregularity a vital part of a deliberate attempt to get the evidence illegally, or was it an accident? Was the il­

legality, whether deliberate or not, serious or trivial? Were there circumstances of urgency or emergency making it necessary to remove the evidence illegally to preserve it? Were the responsible parties police or public officials subject to control by superiors, by traditional codes and norms, by elected politicians and public opinion, or were they entirely

irresponsible private persons who must be disciplined by an exclusionary rule in the absence of a better alternative?526 Was the breach an infringement of a carefully devised statutory procedure which Parliament for good reasons intended to be followed in detail?527 Would it have been easy to obey the law? How serious was the offence being

investigated? How necessary are underhand methods in its investigation (e.g. eavesdrop­ ping or blackmail)?

294. Principles and Policy. As between the four rules of admissibility—our own. the Canadian, the United States and the Scottisb-Irish—which is preferable?525 The Anglo-Australian rule has the general merit, if merit it be, of increasing the admissibility of evidence much of which is reliable. There are circumstances in which its failure to embody a positive

519 Kat: v. U.S. 389 U.S. 347 (1967); U S . v. m i t e 401 U.S. 745(1971).

520 Alderman v. U.S. 394 U.S. 165 (1969); cf. People v. Martin 291) P. 2d 855 (1955).

521 Burdeau v. McDowell 256 U.S. 465 (1921).

522 U.S. v. Calandra 414 U.S. 338 (1974).

522 Waltler v. U.S. 347 U.S. 62 (1954); Harris v. .V. Y. 401 U.S. 222 (1971).

524 Rochin v. California 342 U.S. 165 (1952).

525 [1950) S.L.T. 37, al p. 41.

526 Lawrie v. Muir{ 1950] S.L.T. 37; cf. R. v. Matthews & Ford [1972] V.R. 3.

522 cf Kuruma v. R. [1955] A.C. 197 and King v. R. [1969] 1 A.C. 304.

524 See generally J. D. Hcydon 'Illegally oblained Evidence [1973] C nm. L.R. 603 at p. 690.

140 I Criminal Investigation

sanction against impropriety is not serious. Circumstances could exist in which the present rule reflected social needs with perfect adequacy. One would exist if it were certain that internal discipline, judicial criticism, public opinion, private tort actions or private prosecutions were sufficient to control, deter and punish any serious police impropriety which might exist. Another would be a relatively homogeneous population prepared to lend necessary support to the police in detecting crime. The third would be that the bulk of criminal conduct was popularly felt to be correctly stigmatised, so that trivial police

illegalities were regarded as tolerable in the prosecution of serious crimes. In the opinion of the Commission these conditions are not those of modern Australia. Although we refer below and elsewhere to some improvements that can be made so far as internal police discipline and the investigation of complaints are concerned, these in themselves will never be complete solutions. The civil remedies are, for one reason or another, practically never sought. We have some unpopular laws, several archaic, others which arouse deep divisions. Our population is increasingly factious and divided in a way posing serious problems for the acceptance and enforcement of the law.

295. The critics of the United States exclusionary rule say it hampers the already unfairly burdened police, injures their morale, tempts perjury as to the existence of facts relevant to legality or illegality, induces harassment rather than prosecution, and increases the chance of a policeman reasoning that if evidence will be excluded for a trivial illegality he may as well run the risk of it being excluded for a serious illegality. It tempts courts to reduce the protection of the substantive search-seizure rules by holding no illegality has occurred in order to avoid important evidence being excluded. Some crimes can scarcely be prosecuted without illegally obtained evidence, and if criminals are unrestricted in their choice of weapons the police, so it is said, should be equally free. The guilty should not escape on technicalities; trials as to X’s guilt should not be cluttered with collateral issues

about Y’s misbehaviour. The policeman has committed one wrong; but the consequential exclusion of his evidence, in running the risk of a guilty man being acquitted, is another. In written submissions and in oral representations made to the public sittings of the

Commission in all parts of Australia the above arguments were strenuously advanced by police authorities. They uniformly saw the issues as clearly compartmentalised: the probative value of the evidence of the guilt of the accused on the one hand; the breach of police discipline by the police officer on the other.529

296. On the other hand, a virtual non-exclusionary rule such as our own has serious drawbacks. It tends to encourage illegality, and hence reliance on illegally obtained evidence rather than other evidence. For some crimes which cannot be prosecuted without real evidence, which is hard to obtain, normal principles require that the burden should be borne by the prosecution and not the accused. The state should not profit from its own wrong; this can only weaken general respect for the law, and the administration of justice. An exclusionary rule by itself could scarcely be regarded as a serious factor in

increasing the crime rate. In any event, what really hampers a law-abiding police officer is not the exclusion of illegally obtained evidence, but the substantive rules which make it illegally obtained—the law concerning warrants, arrest, search, intercepting com­ munications and so on. Many of these rules were formed before modern police iorccs were

born, and certainly before modern crimes were enacted and modern criminals appeared. But if these rules need modification, and modernisation, this is the way to tackle the problem: by express legislative or judicial change, not by ceasing to enforce the rules or admitting evidence obtained in breach of them.

297. The virtues of the United States rule are sometimes said to depend on its deterrent effect.

529 Submission of Mr R. M. Tremethick. Transcript. 14 July 1975, para. 170.

Enforcing the Rules , 141

So far as the deterrent effect exists, it does not favour only the guilty, for it ensures that in future both the guilty and the innocent will be protected from illegal investigation. Even if such an effect exists, it may operate in a very small area, since the police may well seize property illegally less because it will be used in court than because they wish to harass offenders or find leads to witnesses who will testify or suspects who will confess. The likelihood that ultimately the accused will plead guilty, as most do, negates an excessive fear that evidence will be inadmissible, for on guilty pleas evidence is not needed. The obscurity of some relevant substantive rules of illegality militates against any deterrent effect. Further, even though it involves a collateral inquiry, it does ensure that the accused’s rights are not meaningless by attaching a retributive consequence to their violation. It vindicates them without the accused’s having to incur the expense and inconvenience of starting new proceedings in another court, and it enables fundamental modern, relevant law on uncertain questions as to warrants, search, arrest and interrogation to be built up. But the essential difficulty is that the United States rule achieves these purposes too well. If conduct is to be deterred or punished, it must be worth deterring or punishing, and it should be intentional or at least negligent conduct. In America the exclusionary rule makes the illegalities it applies to wrongs of strict liability. In the opinion of this Commission trivial illegalities may be excusable and even laudable if they are needed for the urgent collection of evidence of serious crimes; unconscious illegalities will not generally be effectively deterred by a broad exclusionary rule. A man who does not realise he is breaking the law, and indeed for whom it may be very difficult to discover whether he is, will not be deterred by the thought that, if he were breaking it, consequential evidence would be excluded. Too strict a rule will simply lead to police lying about the facts which prove illegality, or will cause them to use the illegally obtained evidence as leads to other evidence and to lie about the connection between them. Too high a price can be paid for the certainty of the United States rule and the integrity with which it enforces individual rights. Though it is an easy rule for the heterogeneous courts of the United States to administer, our much smaller judiciary is capable, like the Scots, of administering a discretionary rule with reasonable uniformity. 298. Recommendation. The above considerations lead the Commission to conclude that the

most appropriate rule for the admissibility of evidence illegally obtained would be one built upon the Scottish-Irish precedents, and occupying the middle ground between the Kuruma and United States ‘extremes’. The Commission has been fortihed in this conclusion by a universally favourable response to this suggestion from those lawyers,

magistrates and judges with whom we have discussed the issue. It is proper to say that the Commission was told of an increasing concern by the Bench at the incidence of evidence wrongfully obtained. Put shortly, our proposal is that evidence obtained in contravention or in consequence of any contravention of any statutory or common law rule—including

all the various rules of procedure that have been proposed in this report—should not be admissible in any criminal proceedings for any purpose unless the court decides, in the exercise of its discretion, that the admission of such evidence would specifically and substantially benefit the public interest without unduly derogating from the rights and liberties of any individual. The burden of satisfying the court that any illegally obtained evidence should be admitted should rest with the party seeking to have it admitted, i.c. normally the prosecution. If the burden of proving that the evidence ought not to be admitted continued to rest with the accused, the position would be unlikely to be much different from that which is now the case. Things will change if the court has to find a positive reason for exercising its discretion in favour of admissibility. The result should be the positive exercise by the court of a discretionary determination. A question arises as to

how many, if any, of the Scottish criteria for the exercise of the discretion should be spelt ' out in the legislation. The Commission believes that it is·unnecessary to spell out the

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considerations in very great detail. It is enough that the court be made generally aware that its basic obligation is to weigh the gravity of the contravention of the procedural rules against the gravity of the offence charged, bearing also in mind that the onus is always on the party who would justify the contravention. To this end, it may be sufficient to state simply that factors relevant to the exercise of the discretion should include: (i) the seriousness of any crime being investigated, the urgency or difficulty of detection

of it and the urgency of attempting to preserve real evidence of it; (ii) the accidental or trivial quality of the contravention; and (iii) the extent to which the illegally obtained evidence could have been lawfully obtained

by means of an available common law or statutory procedure.

CRIMINAL OFFENCES

299. To the extent that a breach of any of the proposed rules for criminal investigation may already involve a criminal offence—as for example the assault of a suspect in the course of questioning him—the Commission makes no specific recommendations for any change in this situation. The criminal law should continue to take its course, uncertain and cumbersome though it may be. Nobody has suggested otherwise. So far as the creation of new criminal offences is concerned, the Commission does not, generally speaking, think that criminal penalties are either necessary, given the alternative sanctions suggested, or desirable, given that there should, on the whole, be less rather than more criminal law7. There are a handful of cases, however, in which the Commission has thought it

appropriate to recommend the creation of new criminal offences. Ail of them concern aspects of the keeping and disclosure of criminal records, and we have adverted to each in context above.530 The common consideration here is the Commission’s concern that

neither the exclusionary rule nor police disciplinary proceedings, nor civil action, will, either alone or in combination, be available or appropriate or effective to meet the mischief in every case. An extra disincentive is necessary, particularly given the extremely damaging consequences that could follow from misused records in particular cases.

CIVIL ACTION

300. We have stated often enough in this report that the existing array of civil actions for damages—assault, false imprisonment, wrongful arrest, trespass and the like—have for a variety of reasons proved quite ineffective sanctions against police misbehaviour. The reasons include expense, time delays, the often disproportionate relationship between the original grievance and what is needed to remedy it, and the often inappropriate character of the remedy if one is available. The Commission certainly does not, however, conclude from this that the traditional civil actions should be abolished. The increasing availability of legal aid may indeed make such actions a more realistic alternative than has hitherto been the case. It may be, again, that both the substantive law in this area and civil procedure generally can be improved to make such court actions more attractive and appropriate. Civil remedies are mentioned here to make it clear that to the extent that

under the present—or new—law the individual has rights of action in respect of various kinds of misuse of police power, the Commission believes that those rights of action should be preserved. In the Commission’s report Complaints Against Police a proposal

530 See paras 94 (destruction of prints, photos etc), 114 (destruction of medical records), 239 (security o f crime information). 242 (fingerprints of applicants for criminal history records). 243 (demands for criminal history records).

Enforcing the Rules / 143

has been advanced to abolish the common law rule whereby the Crown is not vicariously liable for the wrongs of police officers, if this recommendation is accepted and passes into law, the usefulness and practicability of seeking redress in civil actions may be substantially increased.

POLICE DISCIPLINE CODE

301. In its report Complaints Against Police the Commission also recommended the creation of new machinery for the investigation and determination of complaints against the Australia Police. The essential feature of the proposals was the introduction of an independent element at each of the vital procedural stages. Accordingly, the Commission

proposed to have (a) the Ombudsman playing a role both in the initial reception of public complaints and in the oversight of the subsequent investigation, (b) the creation of a special Internal Discipline Branch, modelled on the A. 10 Section of Scotland Yard, to conduct investigations and report thereon, and (c) the creation of an independent tribunal

to hear disciplinary charges brought before it as a result of such investigations. The charges brought before the tribunal should be formulated by a reference to a newly drawn and modern police discipline code, which ‘should accommodate the whole range of misconduct that undermines the integrity and good order of the Force’.531 Attached as an

Appendix to that report is a model discipline code which contains a clause recommending the creation of a disciplinary offence o f ‘abuse of authority’. This offence is to be committed, inter alia, where a police officer

breaches or fails to perform an statutory duty or obligation with regard to arrest, identification, bail, search, seizure, interrogation or any other aspect of pre-trial investigation or procedures.

The Commission’s intention is that the disciplinary code should be explicitly deal with breaches of all the rules which are the subject of its recommendations in the present report. It is true that in the past there has been some degree of overlap between the rules of law governing criminal investigation procedure, on the one hand, and on the other various police orders and instructions, breach of which has constituted an internal

disciplinary offence. Nothing as systematic as the connection we now propose has existed in the past. It seems entirely apt and practical to reinforce the rules of procedure by a discipline code and one that can be initiated by complaint by a member of the public as well as by internal charge.

302. The reason for the present proposal is perhaps obvious enough. It is founded in observations of members of the Commission and consultants, much reinforced by the Commission’s public sittings and discussions with police officers in the course of this reference. It is plain that the internal disciplinary sanction—which can result in penalties

up to loss of rank or dismissal from the force—is a far more immediate and pressing sanction in the working policeman’s mind than the hitherto remote possibility of civil or criminal action being brought against him, or of his evidence being excluded by the court because of the manner in which it was obtained. It should also be apparent that the

disciplinary sanction itself is likely to weigh even more heavily on police officers in the future than it has in the past if the recommendations in the Commission’s report Complaints Against Police are accepted. Externally initiated complaints will be far more rigorously followed up, or at least be seen to be far more rigorously followed up. under the

proposed machinery than they were under the old. where by and large they were dealt with

531 Complaints Against Police IALRC l)p a ra . 139.

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from first to last behind closed doors at police headquarters. When combined with the proposed reverse-onus exclusionary rule, and the very real possibility this will create that evidence illegally or unfairly obtained will not be admitted into evidence, it seems to the Commission that the disciplinary sanction proposal will ensure that the proposed new rales of procedure are taken very seriously indeed. This is certainly the aim and wish of the Commission. The procedure for handling complaints against police was the subject of a separate report for reasons of convenience only. The terms of reference to this Commission and its first two reports are to be seen as a unity: a modern set of rules for governing and controlling police conduct in an Australian context.

12. Summary of Recommendations

GENERAL

303. There should be a single legislative code of procedure governing the conduct of all members of the Australia Police, whether they happen to be working in the Territories or the States, and whatever task they happen to be performing (Para. 14).

304. The law enforcement powers of customs and excise officers should be brought into line with those of the Australia Police by amendment of the appropriate legislation (Para. 18).

305. A systematic review should be made of the law enforcement powers of federal officers other than those within our present terms of reference, in order to deternine which are sufficiently controlled, and which, if any, ought to be circumscribed (Para. 17).

306. State police officers should be bound by the proposed legislation governing the powers of the Australia Police to the extent only that they deal with persons arrested by Australia Police officers for federal offences (Para. 19).

307. State magistrates and justices should apply the proposed federal legislative code in pre­ trial matters relating to persons arrested by members of the Australia Police. Arrangements should be entered into with the States with respect to the jurisdiction and availability of such judicial officers (Paras 19, 176).

ARREST AND SUMMONS

308. Australia Police officers should proceed by way of summons rather than arrest wherever possible (Para. 29).

309. There should be enacted for the Australia Police a single, streamlined and modernised set of summons provisions to replace the State and Territorial legislation presently applicable to the force. The new legislation should contain detailed provisions with respect to the service of summonses by post, especially for lesser offences (Para. 62).

310. There should be a single law controlling the issue of arrest warrants to members of the Australia Police. The procedure for the issuing of such warrants should be tightened by requiring that: (a) the information on oath be supported by an affidavit of the police officer stating

detailed reasons for seeking the arrest warrant; (b) the judicial officer be required to satisfy himself, by questioning if necessary, that the stated reasons amount to reasonable grounds for issuing the warrant, or that there are other such grounds; and .

(c) the judicial officer endorse the affidavit indicating those reasons on which he relies in issuing the warrant (Para. 26). 311. All Commonwealth and Territorial offences should be prima facie arrestable, except those declared by regulation to be non-arrestable (Para. 34).

312. No arrests should be made in any particular case unless the police officer has a reasonable belief not only that the person has committed an offence, but also that proceedings against

146 / Criminal Investigation

him by way of summons would not be effective or appropriate in the circumstances. Arrest must be justified by the necessity to: (a) ensure the appearance of the offender before a court of competent jurisdiction;

(b) prevent the continuation or repetition of the offence; or (c) prevent the loss or destruction of evidence relating to the offence (Paras. 38-44).

313. Australia Police officers in the Territories should have the power to arrest without warrant fugitive interstate offenders in circumstances where it is believed on reasonable grounds that the person has committed an offence elsewhere which, if committed in the Territory, would be a serious offence. ‘Serious’ offences should be regarded as those punishable by a term of imprisonment of more than six months (Para. 35).

314. Private citizens should have the power to arrest without warrant for federal offences only where the person is believed to be committing or to have just committed the offence, and the exercise of the power should be subject to the same criteria as govern the Australia Police. The duty of the private citizen should be to forthwith take the person arrested before either a justice or magistrate, or a police officer (Para. 47).

315. The arrest powers of customs and excise officers should be brought into line with those of the Australia Police and made exercisable only when the officer is satisfied that proceedings by way of summons would be ineffective or inappropriate in the circumstances (Para. 45).

316. It should be unlawful to use more force, or to expose a person to more indignity, than is reasonably necessary to effect an arrest or prevent the escape of the person from lawful custody (Paras. 51-53).

317. The common law ‘fleeing felon’ rule should be abolished. Lethal or dangerous force should not be used except where the person making the arrest believes on reasonable grounds that such force is necessary to protect the life of or prevent serious injury to some person, and is satisfied that no other means is available to effect the arrest (Para. 54).

318. Immediate steps should be taken to re-establish on a proper basis the control of police use of firearms in the Northern Territory. Comprehensive and efficient training and retraining programs in the use of firearms should be introduced, particularly in the Northern Territory (Paras 56-57). .

319. Personal searches of the body by police officers in the context of arrests should be confined to ‘frisk’-type searches believed to be necessary for the purpose of discovering either dangerous weapons or evidence with respect to the particular offence for which the person is in custody (Paras 58-59).

320 There should be a power to enter premises: (a) in order to arrest a person named in a warrant of arrest and reasonably believed to be on- the premises; and (b) in the absence of a warrant, to accomplish the lawful arrest of a person reasonably

believed to have sommitted a serious offence and to be on the premises.

This power should not authorise police officers to enter premises for arrests at night where it would be practicable to make that arrest during the day (Para. 60).

321. Persons arrested should be notified at the time of their arrest, where practicable, of the reasons for their arrest (Para. 61).

Summary o f Recommendations j 147

PROCEDURES SHORT OF ARREST

322. The power to require a person to furnish his name and address, now available only in traffic cases, should be extended to situations where the policeman has reasonable grounds for believing that the person can assist him in relation to an offence which has been, may have been, or may be committed. The police officer should be required to specify the reason for which the person’s name and address is sought, and there should a reciprocal right, in such a situation, for a citizen to demand and receive from the policeman particulars of his own identity (Paras 79-81).

323. As a general rule, a police officer should not be entitled to question a person against his will or to exercise any other compulsive investigative power in respect of that person unless he can satisfy the criteria that would justify an arrest of that person (Paras 8,64).532

324. Procedures should be introduced to ensure that pre-arrest ‘voluntary co-operation’ is genuinely voluntary. A police officer should not question any person whom he thinks might conceivably be the author of a serious crime, nor seek to have that person go to a police station or anywhere else for the purpose of procuring evidence against him, without previously advising him of his rights to refuse to answer any questions to go to any such place for any such purpose. Failure to produce a signed acknowledgment that this advice was given should be prima facie evidence that it was not given, and should be grounds for

a court refusing in a proper case to admit in evidence any confession or other damaging evidence that may have been obtained (Para. 66fi).

CUSTODIAL INVESTIGATION

325. Police duties and powers in relation to persons in custody should be systematically defined in legislation, the duties by reference to whether the person is under ‘restraint’ and the powers by reference to whether he is in ‘lawful custody’ (Paras 82-86).

326. Persons under restraint should be notified of their rights before any questioning or other form of investigative procedure involving their participation commences. They should be informed of the fact that they are under restraint, why they are under restraint, and what their rights are, in the first place in respect to the answering of questions, access to friends

and relatives, and access to a lawyer, and subsequently, if the occasion arises, in relation to identification parades, bail and the like. This information should be communicated in a language which the person can understand both in writing and, where practicable, orally (Para. 100).

327. Police officers dealing with persons in custody should be required to identify themselves. Uniformed officers should wear a permanently attached badge or label of easily legible size recording the name or number of the officer in question (Para. 102).

328. The permissible duration of police custody should be precisely specified in legislation. The statutory maximum should be four hours, although this should be capable of extension up to another eight hours following application (be telephone if necessary) to a magistrate. Further extensions should be obtainable only from a Federal. Territory or State Supreme Court judge (Para. 89).

329. The four-hour period should be, and be regarded as. the maximum rather than the norm.

M r Brennan dissents from this recommendation, and also those following which would both limit the power to question before arrest and allow a degree of questioning alter arrest; see paras 10. 72-8.

I!

148 j Criminal Investigation

The primary statutory requirement should be to take the person before a justice or > magistrate, to make a police bail decision, or to release him, ‘as soon as reasonably j practicable’ after the custody begins. The four-hour period should be kept under review, ; and if it appears that this ‘as soon as reasonably practicable’ safeguard is not being observed in practice, then the basic time limit should be reduced accordingly (Para. 94).

330. A person under restraint should have the right to communicate with a friend or relative, subject only to the right of police to prevent this if they have a reasonably founded belief that it will result in the escape of an accomplice or the loss or fabrication of evidence (Para. 103).

331. A system should be introduced to enable friends, relatives or the legal adviser or a person under restraint to establish his whereabouts. It should be mandatory for police officers to answer such bona fide inquiries promptly and accurately (Para. 104).

332. A person under restraint should be afforded the facilities necessary to enable him to communicate with, and arrange for the presence of, a lawyer of his choice. He should be aided in this respect by being furnished, if necessary, with a list of legal practitioners in the area, the list being compiled in consultation with the appropriate Law Society and containing the names of lawyers who have indicated their willingness to represent such

persons (Paras 107-8, 110-11).

333. If the person under restraint, after notification of this right, requests consultation with a lawyer, then no questions should be asked pending the arrival of that lawyer, although police should not be required to wait longer than two hours for such arrival. Facilities should be made available for the private consultation of a person with his lawyer before any such questioning begins (Para. 109).

334. The lawyer representing a person under restraint should be entitled to be present during questioning of such person and to give his client any advice that may be sought at any time, but not to otherwise interfere with the proceedings (Para. 109).

335. The police power to take fingerprints, photographs, handwriting samples and the like should be limited to situations where the obtaining of such fingerprints etc. is reasonably believed to be necessary for the identification of the person in relation to the offence for which he is in custody, or where a magistrate’s order has been obtained (Paras 113-15).

336. Prints, photographs and samples taken in connection with an offence which is not found by a court to be proved, or which is not proceeded with, should be destroyed. It should be an offence for a police officer or other person to make a copy of any prints etc. required to be destroyed in this way (Para. 116). ■

337. There should be a general statutory obligation to conduct identification parades fairly. All identification parades should be photographed, preferably in colour (Paras 120-1). A suspected person should be informed of his right not to participate in a parade, and to have a lawyer or an independent witness present during any such parade (Paras 124-5).

Full written records should be kept of the conduct of identification parades, including a written description by the witness of the person he is seeking to identify before he views the parade (Para. 123).

338. There should be legislative provision governing identification by photographs: a general requirement of fairness, a requirement of written records, including witness’s prior description, and a requirement that, but for exceptional circumstances, the showing of photographs of a suspect to a witness after that suspect has been apprehended should be prohibited (Paras 126-8).

Summary o f Recommendations / 149

339. The use of identity kit pictures should be controlled in a way similar to the use of photographs (Para. 129).

340. A warning should be given by the judge at the trial of a case against the accused turning wholly or substantially on the correctness of one or more identifications, by any means, of the accused. Such warning should draw the jury’s attention to the special need for caution before convicting in reliance on identification evidence (Para. 119).

341. No medical examination of a person under restraint should be undertaken except pursuant to (a) the consent, acknowledged in writing, of the person concerned or (b) a court order from a magistrate obtained after application by a senior police officer supported by affidavit setting out proper reasons. Nothing should be taken to derogate

from the overriding power of the court to exclude evidence obtained by the use of excessive force or inhuman treatment (Paras 131-2).

342. The obtaining of body samples from an accused for the purpose of forensic analysis should be subject to the same controls as medical examinations (Para. 134).

343. There should be a general statutory prohibition upon the inhuman or degrading treatment of persons in custody, and explicit rules governing the provision of reasonable toilet facilities, food and drink, the provision, if necessary, of medical treatment and the opportunity to wash or shower, shave and obtain a change of clothes prior to court appearance (Para. 135).

QUESTIONING AND THE RIGHT TO SILENCE

344. There should be statutory recognition of the suspect’s right to silence, a statutory requirement that he be notified of that right and a statutory guarantee that he be afforded the opportunity to obtain such professional assistance as is necessary to enable him to exercise that right (Paras 142, 146ff.).

345. There should be procedures introduced for ensuring the reliability of confessional evidence and minimising contests as to the circumstances in which it was obtained. Interviews should preferably be (a) recorded by mechanical means or (b) corroborated by a third person and, if these measures are not practicable in the circumstances, (c)

checked by a third person after being reduced to writing, or at least (d) reduced to writing and signed by the accused (Paras 154-62).

346. Special provision should be made with respect to tape recording of interviews concerning the custody of tapes and the obtaining of copies thereof, the power of the court to edit out. in camera, irrelevant and prejudicial material, and the erasure of such tapes if no proceedings have been commenced within twelve months (Paras 156-9).

347. A failure to employ one of the above-mentioned safeguards in circumstances where it was practicable to do so should prima facie result in the exclusion of the evidence . Even if the confessional evidence is declared admissible after application of the reverse-onus discretionary exclusionary rule of evidence, the failure to employ safeguards should be treated by the tribunal of fact as going to the weight of such evidence, and legislation

should provide accordingly (Para. 163).

348. The common law voluntariness rule, resulting in the automatic exclusion of confessional evidence involuntarily obtained, should be incorporated in the legislation in modified form. Confessions extracted by violence or the threat thereof should be deemed involuntary, but other forms of inducement should not produce that result unless they are

held likely to have caused an untrue admission to be made (Paras 151-3).

150 I Criminal Investigation

RELEASE AND BAIL

349. It should be made clear that a police officer is entitled to release a person in custody at any time without a charge being laid or a summons issuing, with no liability being attracted provided the restraint was well grounded in law until the time of release (Para. 165).

350. It should be made clear that there is an obligation immediately to release a person arrested when one or other of the criteria necessary to justify that arrest no longer apply (Paras 44, 165). 351. There should be detailed legislative provisions governing the release of persons on polici

bail. So far as possible the principles should be the same for police as court bail. The latter is outside our present terms of reference, but needs urgent law reform attention (Para. 173).

352. Persons in custody charged with an offence should be fully notified of their rights to apply for bail, to have legal advice in this respect and to communicate with such other people as may be necessary to obtain assistance. The criteria and conditions on which bail may be granted should also be notified in writing (Para. 175).

353. The bail decision should be made within the four-hour maximum time limit (as lawfully extended) for custodial investigation. It should be capable of being made by any police officer of or above the rank of sergeant or for the time being in charge of a police station (Para. 175-6).

354. _ The bail decision should be made by reference to specific criteria set out in legislation. These should address attention respectively to (a) the probability of appearance at court, (b) the interests of the accused and (c) the protection of the community. The last- mentioned criterion should not include ‘the probability of the accused committing further offences’: the Commission does not favour the power of preventive detention. Consideration should be given to adapting the Manhattan points system for determination of probability of appearance, and incorporating this practical scheme in bail procedure by way of regulations or police commissioner’s orders (Paras 178-182).

355. There should be much more flexibility as to the conditions on which a person may be released on bail. Non-monetary conditions should be emphasised. Various classes of conditions should be set out in the legislation in an increasing order of stringency, with the police officer obliged to set the least onerous condition consistent with the person’s release. The traditional language in which bail conditions have been set should be modernised and simplified (Paras 174, 183-6).

356. There should be a right of immediate appeal to a magistrate (by telephone if necessary) if bail is refused or conditions considered too stringent are imposed (Para. 175).

357. A person released on bail who wilfully and unreasonably fails to appear as instructed or breaks a condition of release imposed on him should be guilty of a criminal offence (Para. 177).

358. Other minor reforms with respect to police bail should include: (a) provision to enable the subsequent deposit of cash in lieu of security where money bail is set (Para. 187); (b) provision enabling payment of bail money by cheque rather than cash if this is

acceptable to the police officer (Para. 187); (c) provision removing the 14-day limitation on duration of police bail which has proved onerous in some jurisdictions (Para 175); and

Summary o f Recommendations / 151

(d) provision enabling a person charged with multiple offences to be bailed on one alone (Para. 175).

SEARCH, SURVEILLANCE AND ENTRAPMENT

359. General search warrants in all forms should be abolished (Para. 196).

360. The procedures governing the issue of search warrants should be tightened by requiring an affidavit from the informant stating the reasons why the warrant is thought necessary, and requiring the judicial officer to (a) satisfy himself that the stated reasons or some others justify the issue of warrant and (b) endorse it accordingly (Para. 200).

361. Procedures should be introduced for the issuing of search warrants by telephone in exceptional cases (Paras 201-2).

362. Searches and seizures made without warrant or court order should be lawful only if made:

(a) pursuant to specific statutory provision which sets out the specific purposes of the search (Paras 206-9); (b) at the invitation or with the consent of the person in question, as evidence by a signed acknowledgment, the absence of which should be prima facie evidence that the

consent was not given (Para. 205); or (c) in response to circumstances of such seriousness and urgency as to require and justify immediate action without authority of such an order or warrant (Paras 197f.).

363. The ‘urgency’ power of search should be extended to searches incident to arrest, emergency searches necessary to prevent loss of evidence, and searches of persons and vehicles suspected on reasonable grounds to be carrying any article which is an offensive weapon, or is either the fruit, instrument or material evidence of the commission of a

serious offence (Paras 203-4).

364. The search and seizure powers of customs and excise officers should be redrawn to provide for (a) the abolition of general warrants and their replacement with powers to search with and without warrant analogous to those of the Australia Police; (b) specific statutory power to search without warrant in certain ‘behind-the barrier’ customs

situations; and (c) power to search without warrant for certain closely defined customs purposes (Paras 206-8).

365. Separate legislation should be introduced, after further study, to rationalise, simplify and make more relevant to modern law enforcement conditions the existing law with respect to the use of electronic listening devices. Such legislation ought to be based on the following general principles: (a) there is no distinction in principle between telephone tapping and other forms of

surveillance involving the use of electronic listening dev ices: (b) monitoring of conversations without the consent of either party ought to be permitted only in respect of very serious offences and when the monitoring has been authorised, by reference to stringent criteria, by a Federal, Territorial or State

Supreme Court judge; and (c) monitoring of conversations with the consent of one party should be permissible on a similar basis as is the case with respect to search warrants (Paras 223-5).

366. Entrapment, which may be defined as the practice of inducing the commission of an offence which the person induced would not otherw ise have committed on the occasion in

152 j Criminal Investigation

question either with the entrapper or anyone else, should be prohibited. The appropriate sanctions should be (a) the operation of the discretionary exclusionary rule prima facie to exclude evidence so obtained, and (b) action under the proposed police discipline code (Paras 226-9).

USE OF CRIMINAL INTELLIGENCE DATA

367. A working party should be established immediately to make detailed recommendations with respect to (a) the subject-matter of the data which might properly be collected, (b) the specific circumstances in which it is appropriate for the police to disseminate such data, (c) the problem of expunging of criminal records after appropriate time lapse, (d) the mechanisms by which individuals might ensure the review and correction of sensitive intelligence data concerning themselves, and (e) the kind of machinery that should be established to provide redress in cases where police or departmental powers with respect to the collection, storage and use of criminal data are abused or misused (Paras 244-5).

368. Pending the report of such a task force, legislation is possible and desirable now with respect to two general subject areas, (a) the security of crime information and (b) access to criminal history records (Paras 234ff.).

369. It should be made an offence to divulge or request any criminal information from police records except as prescribed by regulations. A statutory duty should be imposed upon the Secretary of the Department of Police and Customs to take all such measures as are _ necessary to ensure the accuracy and security of criminal history and crime intelligence

records (Paras 239-40).

370. Individuals should be given access to their own criminal history files if they apply in person and supply the relevant proof of identity. Pending the development of mechanisms for the correction of errors, complaints should be made to the Ombudsman. It should be an offence to require that a person produce his criminal history record as a condition of employment or for any similar purpose except where such a request is expressly authorised by regulations or statute (Paras 242-3).

SPECIAL PROBLEMS OF MINORITY GROUPS

371. Aboriginals and Torres Strait Islanders, when under restraint or in a pre-custodial questioning situation for serious offences, or any offences against the person or property, should be entitled to the presence during any questioning or other investigative procedures of a ‘prisoner's friend', i.e. a lawyer, welfare officer, relative or other person. Aboriginal or not, who is able to interpret if necessary, and who is chosen by the person in custody of his own volition, either directly or from a list of appropriate persons supplied (Paras 68, 253-5).

372. Where an Aboriginal or Torres Strait Islander is in custody for an offence, police should be required to notify forthwith the appropriate Aboriginal Legal Service of that tact, unless the prisoner objects to such notification (Para. 256-7).

373. The onus of proving that an Aboriginal waived his right to the presence of a prisoner's friend, or objected to the notification of an Aboriginal Legal Service, should rest upon the police (Paras 254, 257).

374. The training of police officers in the Northern Territory should include some attention to the culture, language and habits of thought of Aboriginals (Para. 258).

Summary o f Recommendations j 153

375. Persons unable to speak or understand English with reasonable facility should not be questioned except in the presence, and with the assistance, of a competent interpreter (Paras 262-4).

376. No questioning of a child under 16 should take place except in the presence of a parent, relative, friend, lawyer, welfare officer or other responsible person. This should apply: (a) in a custodial situation, to any offence whatsoever, and (b) so far as pre-custodial questioning is concerned, to serious offences and offences

against the person or property (Paras 68, 266).

377. When a child under 16 is under police restraint, his parent or guardian should be immediately notified. If such a person, or other ‘prisoner’s friend', is unavailable the interview should proceed only in the presence of a senior police officer or police woman not connected with the investigation (Para. 267).

SPECIAL PROBLEMS OF REMOTE AREAS

378. Legislative provisions should enable and encourage the use of the telephone or similar means of communication as an integral part of police dealings with suspects (Para. 270).

379. The oral communication system in the Northern Territory should be substantially upgraded as a matter of urgency, preferably by the installation of telex facilities at all police outstations (Paras 272-5).

380. A detailed feasibility study should be undertaken as a matter of urgency in relation to the acquisition of appropriate police aircraft for the Northern Territory. The physical communication system is urgently in need of upgrading (Paras 276-82).

381. Magistrates’ court sittings should be conducted at more remote area locations, particularly on Aboriginal settlements, and with greater frequency. At least two additional stipendiary magistrates should be appointed as soon as possible to relieve existing pressures and enable the expansion of court facilities to new locations (Paras

283-6).

ENFORCING THE RULES

382. A reverse-onus discretionary exclusionary rule of evidence should be introduced. This should provide that evidence obtained by or in consequence of any contravention of any statutory or common law rule—including all the various rules of procedure proposed in this report—should not be admissible in any criminal proceedings for any purpose unless the court decides in the exercise of its discretion that the admission of such evidence would

specifically and substantially benefit the public interest without unduly derogating from the rights and liberties of any individual. The burden of satisfying the court that any such illegally obtained evidence should be admitted should rest with the party seeking to have it admitted, i.e., normally, the prosecution. Certain criteria should be incorporated in the

legislation to signpost to the court its obligation to weigh the gravity of the contravention of the procedural rules against the gravity of the offence charged in the context of the total circumstances of the particular case (Para. 298).

383. Breach of the rules recommended herein should not normally constitute a criminal offence. Criminal offences are recommended only with respect to certain aspects of the keeping and disclosure of criminal records (Para. 299). -

154 / Criminal Investigation

384. Such civil remedies as are, and would be under the new rules, available in respect of misuses of police power, should be preserved (Para. 300).

385. Breaches of the rules recommended herein should constitute a breach of the proposed police discipline code, and be subject to externally initiated action under that code as recommended in the Commission’s report on Complaints Against Police (ALRC I) (Para. 301).

m . d . k ir b y (Chairman)

F. G. BRENNAN J. CAIN A. C. CASTLES G. J. EVANS G. J. HAWKINS 5 September 1975

Appendix A

SCHEDULE OF ORGANISATIONS AND PERSONS WHO MADE SUBMISSIONS CONCERNING CRIMINAL INVESTIGATION

WRITTEN SUBMISSIONS

Mr K. Aldrick Mr K. Arnott Mr D. H. Avery (Solicitor, Australian Legal Aid Office, Darwin) Australian Crime Prevention Council

Australian Federation of Police Associations and Unions Bar Association of Queensland (Criminal Law Sub-Committee) Mr N. Barnes

Mr K. V. Borick (Barrister & Solicitor) Central Australian Aboriginal Legal Aid Service Chutzpah, Jewish Homosexual Group Civil Liberties Association of Western Australia Mr J. O. Clarke .

Mr R. Colquhoun (Solicitor) Commonwealth Bank Officers Association Council for Civil Liberties (N.S.W.)

Mr J. S. Cripps, Q.C. Mr J. J. Dainer (Stipendiary Magistrate, A.C.T.) Mr L. A. Davis Mr J. Davis, C.V.O., Q.P.M. (Chief Commissioner, Australia Police) Department of the Capital Territory

Mr Darcy Dugan Mr F. Edney (Inspector, Australia Police, Hobart) Mr J. A. Falconer (retired Superintendent, Metropolitan Police, London) M r J. D. Fine (Lecturer in Law, University of Melbourne) Five (Society for the Rights of Homosexuals) Assistant Professor M. R. Goode (Dahousie Universiu. Canada)

M rG . P. Hayter Mr H. Hird, M.L.A. (A.C.T.) Mr N. L. Houison

Mr F. Hrubros Mr L. M. Hurst Institute of Criminology Mr R. Jackson, Q.P.M. (Chief Commissioner of Police. Victoria)

Mr P. Jansen M rC. F. Kilduff (Chief Stipendiary Magistrate. A.C.T.) Mr E. V. Knowles (Commissioner of Police. Tasmania) Mr F. Lamb

Law Institute of Victoria Law Reform Commission (N.S.W.) Law Reform Commission (Queensland) Law Reform Commission (Tasmania) .

156 / Criminal Investigation

Mrs.D. Lawrie, M L.A., J.P. (Chairman, Northern Territory Branch, Australian Crime Prevention Council) Law Society of N.S.W. (Sub-Committee on Criminal Investigation) Law Society of the Northern Territory Law Society of South Australia Law Society of Western Australia (Crime Sub-Committee) Mr A. Lee (Reader in Law, University of Queensland) Mr F. Leskovic Mr L. L’Estrange (Solicitor) Mr P. Lewis Mr G. Longworth .

Mr D. A. McCann (Chief Magistrate, Northern Territory) Mr W. A. McIntyre (Senior Constable, Australia Police, Alice Springs) The Honourable J. C. McRuer (Ontario Law Reform Commission) His Honour Judge T. Martin, Q.C. (District Court of N.S.W.)

Mr P. Mason Mayne Nickless Limited Mr Η. M. J. Meyer Mr B. Middleton Mrs L. Moore Mr D. Morgan North Australian Aboriginal Legal Aid Service Northern Territory Council for Civil Liberties

Mr K. Novak Mr R. S. O’Regan (Professor of Law, University of Queensland) Police Association of A.C.T. Police Association of N.S.W. Police Association of Northern Territory Police Association of South Australia Police Association of Victoria Prisoners’ Aid Association Privacy Committee of N.S.W. (Mr W. J. Orme and Mr G. W. Greenleaf) Queensland Aboriginal and Torres Strait Islanders Legal Service

Mr R. Ratcliffe (Constable, Australia Police, Victoria Region) Mr P. H. Robson Mrs J. Smith Mr T. Sobolewski South Australian Council for Civil Liberties Mr J. B. Squire Tasmanian Council for Civil Liberties

Vera Institute of Justice (New York) Victorian Bar Victorian Council for Civil Liberties Mr P. K. Waight (Senior Lecturer in Law, A.N.U.) Mr A. G. Watts Mr J. W. Wellard Mr R. W. Whitrod, C.V.O., Q.P.M. (Commissioner of Police, Queensland) Mr K. E. Wild Mrs E. Williams Wollongong Branch of the Council for Civil Liberties (Mr J. Phelan) Women’s Liberation Human Relationships Committee (South Coast)

Submission j 157

Mr M. Youngman

The Commission also received communications from several Judges including the Honourable Mr Justice L. W. Street, Chief Justice of New South Wales, and the Honourable Mr Justice R. W. Fox.

ORAL SUBMISSIONS

Melbourne Sittings, 9 July 1975 Police Association of Victoria (Mr T. Rippon) Mr J. O’Meara Mrs N. Barnes Mayne Nickless Ltd (Mr J. Mullett) Mr L. L’Estrange Mrs M. Schiffer

Mr P. Mason Victorian Council for Civil Liberties (Mr J. Bennett) Mr J. Billington

Hobart Sittings, 10 July 1975 Australia Police Tasmania Region (Mr F. Edney) Perth Sittings, 11-12 July 1975 Australia Police, Western Australia (Mr E. A. Stevens) ,

Civil Liberties Association of Western Australia (Mr A. W. Marshall, President; Mr B. G. Tennant, Secretary; Mr J. A. Kane) Mr E. Leach Law Society of Western Australia (Mr G. Miller, Chairman Crime Sub-Committee;Mr B.

Walsh, Vice-President; Mr P. J. Sharkey, S.M.; Mr R. S. French) Mr B. Middleton Western Australia Police (Senior Inspector W. Connolly) Mr R. K. Larkin

Mr G. Butler Mr J. Doohan Adelaide Sittings, 14 July 1975 Prisoners Aid Society of South Australia (Mr A. Wright)

Australian Federation of Police Association and Unions, and Police Association of South Australia (Mr R. M. Tremethick, Secretary) South Australia Police (Asst Cmr E. L. Calder. B.E.M., Q.P.M.; Supt H. Lockwood, Q.P.M.; Supt L. Brown, Q.P.M.; Inspector C. A. Jones, Officer in Charge)

South Australia Council for Civil Liberties (Dr D. de Bats) Mr K. V. Borick (Barrister & Solicitor) Mr J. Sobolevski

Alice Springs Sittings, 15 July 1975 Central Australian Aboriginal Legal Aid Service (Mr G. Fames; Mr D. Parsons; Mr P. Toyne) Australia Police, Alice Springs (Chief Inspector N. J. Owens. Officer in Charge; Inspector

Taylor) Mr W. Ryan Mr P. Tiffin (Barrister, Crown Law Office) Mr S. Albert

158 j Criminal Investigation

Darwin Sittings, 17-18 July 1975 .

Mr Μ. B. Perron, M.L.A. (Northern Territory) Australia Police (Northern Territory Region) (Mr W. J. McLaren, Commissioner; Superintendent Metcalf, Admin.A District; Superintendent Cossons, Crime Division; Superintendent Chalker, No. 1 Division Operations, C.I.B., Darwin;

Superintendent Grant, Personnel & Relief; Superintendent McNeil, Acting Chief Insp. Darwin Traffic; Superintendent Egan, D. District; Inspector Palmer, Training and Recruitment) .

Northern Territory Council for Civil Liberties (Mr R. Wesley-Smith, Secretary/Convenor; Mr P. Hancock; Mr J. Tomlinson; Mr J. Tokarcyk; Ms L. Finder) Crime Prevention Council of Northern Territory (Mr J. Wellard) Mr A. J. Watts Mrs D. Lawrie, M.L.A., J.P. Mr D. A. Avery (Solicitor, A.L.A.O.)

Mr D. A. McCann, C.M. (Northern Territory) Mr L. H. Kirkman, S.M. (Northern Territory) Mr G. Galvin, S.M. (Northern Territory) Law Society of the Northern Territory (Mr D. Mildren, President; Ms P. Gray,

Secretary) Police Association of the Northern Territory (Sergeant P. V. Salter) North Australian Aboriginal Legal Aid Service (Mr M. Twemlow, Solicitor)

Brisbane Sittings, 19 July 1975 Mr F. Lamb, J.P. Mr J. O. Jerks Aboriginal and Torres Strait Islanders Legal Service (Mr L. Watson; Mr B. Harrison)

Australia Police (Queensland Region) (Superintendent N. Hedland, Officer in Charge) Bar Association of Queensland (Criminal Law Sub-Committee) (Mr D. P. Drummond, Barrister; Mr D. G. Sturgess, Barrister; Mr E. C. Pratt, Barrister) Mr G. Longworth Sydney Sittings, 21 July 1975

Council for Civil Liberties N.S.W. (Mr G. Zdenkowski, Secretary) Prisoners Action Group (Mr A. Green) Commonwealth Bank Officer’s Association (Mr K. Walsh)

Mr F. Leskovic Police Association of N.S.W. (Mr R. W. Page, Gen. Secretary; Mr J. P. McCormick, Assistant Secretary) Mr Martin Law Society of N.S.W. (Mr J. Dean, Chairman, Sub-Committee on Criminal

Investigation) Mr M. Rutherford (Barrister) Mr M. Bosnic Australian Section of the International Commission of Jurists (Mr J. Dowd, M L.A..

President) Mr Η. M. J. Meyer Mr M. Youngman Canberra Sittings, 22-23 July 1975

Police Association of A.C.T. (Mr J. Olroyd, Secretary) Australian Institute of Criminology (Mr B. Swanton)

Submission i 159

Australia Police (A.C.T. Region) (Mr R. Wilson, M.V.O., Q.P.M., Commissioner of Police) ·

Mr J. J. Dainer, S.M. Mr W. J. Nicholl, S.M. Mr A. S. Gillespie-Jones Mr T. J. Higgins (Solicitor) Mr H. Hird, M L.A. Australia Police (Mr J. Davis, C.V.O., Q.P.M., Chief Commissioner; Mr A. J. Watt,

Q.P.M., Asst Commissioner; Inspector W. Antill) Mr N. Harris .

Bar Association of A.C.T. (Mr P. L. Shells, President) Dr D. O’Connor (Reader in Law, A.N.U.) Australian Legal Aid Office, A.C.T. (Ms E. Pennay, Acting Director; Mr G. D. Lavington, Solicitor; Mr J. D. Mawson, Solicitor)

Department of Police and Customs (Mr A. T. Carmody, C.B.E., Secretary) In the Northern Territory the Commission had private discussions with the Honourable Mr Justice J. W. Forster and the Honourable Mr Justice J. H. Muirhead of the Supreme Court of the Northern Territory. In Canberra the Commission had discussions with the

Honourable Mr Justice R. A. Blackburn, O.B.E., and the Honourable Mr Justice X. Connor of the Supreme Court of the Australian Capital Territory.

Appendix B DRAFT LEGISLATION

CRIMINAL INVESTIGATION BILL

TABLE OF PROVISIONS

P art I—Preliminary

Clause 1. Short title 2. Commencement 3. Interpretation 4. W hen person is under restraint and in lawful custody

5. Application generally 6. Application to Police Officers 7. Arrangem ents with States

P art II—A rrest

8. W arrant for arrest 9. A rrest without w arrant by Police Officer 10. Arrest without w arrant by other persons 11. Certain arrests not to be taken to be unlawful

12. Power to enter to make arrest 13. Use o f force in making arrest 14. Person to be informed of grounds o f arrest

Para, in Report

82-6, 325 13-14, 303

13-16, 298-303, 382-5 19, 176, 307

26, 310

34-5. 38-44, 311-13 . 45,47.314

165. 349 60, 320

51-4, 316-17 61. 321

Part III— Powers and D uties of Police Officers when Investigating Offences

Division l — Preliminary

15. Interpretation 89(g), 97

Division 2— Furnishing o f Name and Addless

16. Requirement to furnish names, &c. 79-81.322

Division 3 Duration o f Custodial Investigation hr Police Officers

17. Restrictions on questioning persons. &c. 89. 328

18. When persons not to be taken under restraint 89(g)

19. Periods available for interviewing person 89-98

20. Magistrate may extend basic period available for interviewing person 95

21. C ourt may authorize investigative action 95.98

. Division 4 - Duties when Interviewing Suspects

22. Questioning suspected persons 64-71.324

23. P erson s under restraint to be inform ed o f rights 9 9 -1 0 2 .3 2 6

24. Access to lawyer 105-11.332-4

25. Lists of legal practitioners 110

26. Communication with relative or friend 103. 330

27. Notification of whereabouts o f person under restraint 104. 331

28. Treatment of persons under restraint 135.343

Division 5 Special Duties when Interviewing Certain Persons

29. Aboriginals and Torres Strait Islanders 253-7. 371-3

30. Aboriginal prisoner's friends · 253

162 / Criminal Investigation

31. Persons not fluent in English 262-4, 375

32. Children 266-7, 376-7

33. Application

Division 6— Confessions

34. Admissibility and weight of confessional evidence 35. Records of interviews 36. Statements 37. Verification o f record of interview or statem ent 38. Recordings by means of sound recording apparatus 39. Parts o f interviews 40. Copies o f interviews and statements

Division 7— Other Investigative Action

41. Interpretation 42. Fingerprints, photographs, &c. 112-116, 335-6

43. Identification by means of photographs 126-9, 338-9

44. Identification parades 120-5, 137

45. Search o f arrested person 58-9, 319

46. Medical examination 130-4, 341-2

P art IV—R elease and Bail

47. Interpretation 19, 306

48. Persons charged to be cautioned 49. Release of person in lawful custody 165, 349

50. D uration of custody 175-6, 352-3

51. Police bail 175, 183-5, 355

52. Criteria for granting police bail 178-82, 354

53. Conditions of police bail 183-6, 355

54. Notification o f bail decision and right to review 175(e), 356

55. Magistrates may review police bail 175(e), 356

56. Bail in respect o f several offences 175(i), 358

57. Deposit o f money and security for bail 187, 358

58. Revocation o f bail 175(g)

59. Breaches o f conditions of bail 177, 357

P art V—Search and Seizure

60. Interpretation 61. Search and seizure 62. Search warrants 63. Search warrants may be issued by telephone 64. Searches in emergencies 65. Consent to search 66. Modification o f Acts and Ordinances conferring power to search and seize

Part VI—E ntrapment

67. Entrapm ent 226-9, 366

P art VII—Police Records

68. Accuracy and security of police records 239-40, 369

69. Access to criminal history records 241-2, 370

70. Person not to be required to produce certificate in connection with employment 243, 370

Part VIII—Exclusion of Evidence

71. Exclusion of evidence illegally obtained 288-98, 382

P art XI— R egulations

196-8, 362 200, 360 201-2, 361 203-4, 363

205 209

151-3, 163-4, 298, 347-8, 382 160-1 160-1 162 156-9

72. Regulations

A BILL FO R

AN ACT

Relating to the Investigation of Offences against the Laws of A ustralia or o f certain Territories, by Officers of the A ustralia Police and for Purposes connected therewith.

BE IT ENACTED by the Queen, the Senate and the House of Representatives of Australia, as follows:—

P a r t I— P r e l i m i n a r y

1. This Act may be cited as the Criminal Investigation Act 1975.

2. This Act shall come into operation on the date fixed under sub­ section 2(2) of the Australia Police Act 1975.

3. (1) In this Act, unless the contrary intention appears—

“Aboriginal” means a person who is a descendant of an indigenous inhabitant of Australia but does not include a Torres Strait Islander;

“confession” includes admission;

“interview” , in relation to a person, includes asking the person questions in the course of investigating an offence;

“Justice” means a Justice of the Peace;

“Magistrate” includes a Justice;

“offence” means an offence against a law of Australia or of a Territory;

“Police Officer” means a member of the Australia Police;

“Police Station” means an Australian Police Station or a Police Station of a State;

“private legal practitioner” means a person who is practising as a solicitor or as a barrister and solicitor on his own account or in partnership;

“serious offence” means an offence punishable by imprisonment for a term exceeding 6 months;

“Secretary” means the Permanent Head of the Department of Police and Customs;

“Territory” means an internal Territory;

Interpretation

164 I Criminal investigation

When person is under restraint and in lawful custody.

“Torres Strait Islander” means a person who is a descendant of an indigenous inhabitant of the Torres Strait Islands;

“vessel” includes an aircraft.

(2) In this Act, unless the contrary intention appears—

(a) a reference to a lawyer is a reference to—

(i) a person who has been admitted in a State or Territory to practise as a barrister, a solicitor or as a barrister and solicitor;

(ii) a clerk employed by a private legal practitioner and acting in the course of his employment; or

(iii) a person who is a member of, or is a person included in a prescribed class of persons employed by, a prescribed body formed for the purpose of providing legal assistance to members of the public or a section of the public;

(b) a reference to a person who has committed an offence is a reference to a person who has committed an offence either alone or with another person or other persons; and

(c) a reference to the Police Officer in charge of investigating an offence, in relation to a person under restraint or in lawful custody, is a reference to the Police Officer in charge of investigating an offence in respect of which the person is under restraint or in lawful custody.

(3) For the purposes of this Act a person shall be deemed to have made an application to a Magistrate by telephone if his application, any submissions concerning his application and any information required by the Magistrate in connection with his application are furnished to the Magistrate by means of telex or radio facilities.

4. (1) For the purposes of this Act, a person is under restraint if he is in the company of a Police Officer for a purpose connected with the investigation of an offence and the Police Officer would not allow him to leave if he wished to do so, whether or not the Police Officer has reasonable grounds for believing that he has committed an offence, and whether or not he is in lawful custody in respect of the offence.

(2) For the purposes of this Act, a person is in lawful custody if—

(a) he is under restraint as a result of his having been lawfully arrested; or

(b) he is under restraint in respect of an offence and the Police Officer—

Draft Legislation / 165

(i) believes on reasonable grounds that he has committed the offence; and

(ii) would be authorized under section 8 to arrest him for the offence, and is not under restraint—

(c) in contravention of section 50 or 55; or

(d) as a result of having been taken under restraint in contravention of section 18.

(3) Sub-section (1) does not apply in relation to a person if he is in the company of a Police Officer by the roadside, whether or not he is in a vehicle, for a purpose connected with the investigation of an offence, not being a serious offence, arising out of the use of a motor vehicle.

(4) For the purposes of this section, a person shall be deemed to be in the company of a Police Officer for a purpose connected with the investigation of an offence if the person is waiting at a place at the request of a Police Officer for such a purpose.

5. (1) This Act binds Australia and each State.

(2) Subject to sub-section (3), any provision of a law of Australia or of a Territory in force immediately before the commencement of this Act that is inconsistent with a provision of this Act does not, to the extent of the inconsistency, have any force or effect after the commencement of this Act.

(3) Where, by virtue of a provision of a law of Australia in force immediately before the commencement of this Act, the laws of a State respecting the arrest and custody of offenders or persons charged with offences, and the procedure for holding accused persons to bail, are expressed to apply, whether or not subject to any other provision of that

law, to persons who are charged with offences against a law of Australia, those laws of a State apply, after the commencement of this Act, to the extent only that they are not inconsistent with this Act.

(4) The provisions of this Act insofar as they protect the individual are in addition to, and not in derogation of, any rights and freedoms of the individual, whether under the laws of Australia, of the States or of the Territories, and this Act is not intended to exclude or limit the operation

of any of those laws insofar as they can operate concurrently with the provisions of this Act.

6. (1) It is the duty of a Police Officer to comply with the provisions of this Act in exercising the powers conferred on him as, and in performing his duties as, a Police Officer, whether he is exercising those powers in relation to an offence against a law of Australia or a Territory or in

relation to an offence against a law of a State. -

Application generally.

Application ίο Police Officers.

166 / Criminal Investigation

Arrangements with States.

W arrant for arrest.

(2) Where a Police Officer (including a Police Officer of a State) contravenes or fails to comply with a provision of this Act that is applicable to him, the contravention or failure is not punishable as an offence against this Act unless a penalty is expressly provided in respect of the contravention or failure.

(3) This section does not prevent a contravention of, or a failure to comply with, a provision of this Act by a Police Officer—

(a) constituting, under the Australia Police Act 1975, a breach of discipline by the Police Officer for which he may be dealt with under that Act;

(b) constituting grounds for the exclusion of evidence under section 71; or

(c) constituting grounds for the institution of civil proceedings.

7, (1) The Governor-General may make arrangements with the Governor of a State for the performance by all or any of the persons who from time to time hold office as Magistrates in that State of all or any of the functions of a Magistrate under this Act.

(2) A copy of each arrangement made under this section shall be published in the Gazette.

P a r t I I — A r r e s t

8.(1) Where an information on oath is laid before a Magistrate alleging that there are reasonable grounds for believing that a person has committed an offence—

(a) the Magistrate may, if the person is not then under restraint, but subject to sub-section (3), issue a warrant for the arrest of the person and for bringing him before a court specified in the warrant to answer to the information and to be further dealt with according to law; or

(b) the Magistrate may issue a summons requiring the person to appear before a court to answer to the information.

(2) At any time after a Magistrate has issued a summons requiring a person to appear before a court to answer to an information under sub­ section (1) and before the summons has been duly served on the person, a Magistrate may, subject to sub-section (3), issue a warrant for the arrest of the person and for bringing him before a court specified in the warrant to answer to the information and to be further dealt with according to law.

(3) A Magistrate shall not issue a warrant under sub-section (1) or (2) in relation to an information unless—

Draft Legislation j 167

(a) an affidavit has been furnished to the Magistrate setting out the grounds on which the issue of the warrant is being sought;

(b) the informant or some other person has furnished to the Magistrate such further information (if any) as the Magistrate requires concerning the grounds on which the issue of the warrant is being sought; and

(c) the Magistrate is satisfied that there are reasonable grounds for issuing the warrant.

(4) Where an informant furnishes information to a Magistrate for the purposes of paragraph (3)(b), he shall furnish the information on oath.

(5) Where the Magistrate issues a warrant under sub-section (1), he shall state on the affidavit furnished to him in accordance with sub­ section (3) which of the grounds (if any) specified in that affidavit he has relied on to justify the issue of the warrant and particulars of any other grounds relied on by him to justify the issue of the warrant.

(6) Nothing in this section affects the application of section 19A of the Service and Execution o f Process A ct 1901-1968.

9. (1) Subject to sub-section (2), a Police Officer may, without warrant, arrest a person for an offence if, and only if, the offence is not an offence specified by the regulations as an offence to which this section does not apply and he believes on reasonable grounds—

(a) that the person has committed, or is committing, the offence; and

(b) that the arrest of the person is necessary, and proceedings by summons against the person in respect of the offence would not be effective or appropriate, for any one or more of the following reasons, that is to say:—

(i) to ensure the appearance o f the person before a court o f

com p eten t jurisdiction;

(ii) to prevent a continuation of, or repetition of, the offence;

(iii) to prevent the loss or destruction of evidence relating to the offence.

(2) A Police Officer may, without warrant, arrest a person in a Territory—

(a) if he believes on reasonable grounds that the person has, in a State or other Territory, committed an offence against a law of that State or Territory;

(b) if there is, under the law of the first-mentioned Territory, a corresponding offence that is punishable by imprisonment for a period exceeding 6 months; and ,

Arrest without warrant by Police Officer.

168 j Criminal Investigation

Arrest without warrant by other persons.

Certain arrests not to be taken to be unlawful.

Power to enter to make arrest.

(c) if he believes on reasonable grounds that the arrest of the person is necessary, and proceedings against the person by summons would not be effective or appropriate, for any one or more of the reasons specified in paragraph (l)(b).

(3) Where a person who has been arrested for an offence in accordance with sub-section (1) or (2) is being held under restraint in connection with the investigation of the offence but has not been charged with the offence, it is lawful to continue to hold the person under restraint for so long only as the Police Officer in charge of the investigation believes on reasonable grounds that it is necessary to hold him under restraint for any one or more of the reasons specified in paragraph (l)(b).

10. (1) Any person other than a Police Officer may, without warrant, arrest another person for an offence if, and only if, the offence is not an offence specified in the regulations as an offence to which section 9 does not apply and he believes on reasonable grounds—

(a) that the person is committing, or has just committed, the offence; and

(b) that the arrest of the person is necessary, and proceedings against the person by summons would not be effective or appropriate, for any one or more of the reasons specified in paragraph 9(l)(b).

(2) A person who arrests another person under sub-section (1) shall, forthwith after the arrest, take the other person before a Magistrate to be dealt with according to law or deliver the person into the custody of a Police Officer.

(3) This section does not affect any power to arrest a person without warrant that is conferred by any other law of Australia or by a law of a Territory on a person other than a Police Officer.

11. Where the person who arrests another person for an offence otherwise than in pursuance of a warrant has, in relation to the arrest, the belief referred to in section 9 or 10, whichever is applicable, the arrest shall not be taken to be unlawful by reason only that it subsequently appears, or is found by a court, that the other person did not commit the offence.

12. (1) Subject to sub-section (3), where a Police Officer has, under a warrant, power to arrest a person, he may enter any premises, by force if necessary, at any time of the day or night for the purpose of arresting the person if the Police Officer believes on reasonable grounds that the person is on the premises.

(2) Subject to sub-section (3), where, under this Act, a Police Officer may, without warrant, arrest a person, the Police Officer may enter, by force if necessary, any premises, at any time of the day or night, for the purpose of arresting the person if the Police Officer believes on reasonable

Draft Legislation 169

grounds that the person has committed a serious offence and that he is on the premises.

(3) Sub-sections (1) and (2) do not authorize a Police Officer to enter premises at night for the purpose of arresting a person if the Police Officer has reasonable grounds for believing that it will be practicable to arrest the person either on the premises or elsewhere at a reasonable time of the day.

(4) In this section—

(a) a reference to a time of the day is a reference to a time in a period commencing at 6 o’clock in a morning and ending at 9 o’clock in the next following evening; and

(b) a reference to a time of the night is a reference to any time not in a period referred to in paragraph (a).

13. (1) A Police Officer or other person shall not, in the course of arresting a person, use more force, or subject the person to greater indignity, than is necessary to make the arrest or to prevent the escape of the person after he has been arrested.

(2) Without limiting the application of sub-section (1), a Police Officer—

(a) shall not, in the course of arresting a person, do an act likely to cause the death of the person, or to inflict grievous bodily harm on the person, unless the Police Officer believes on reasonable grounds that the doing of that act is necessary to protect life or to prevent serious injury to some person; and

(b) without limiting the application of paragraph (a), shall not, in the course of arresting a person who is attempting to escape arrest by fleeing, do such an act unless the person has, if practicable, been called upon to surrender and the Police Officer

has reasonable grounds for believing that the person can not be apprehended in some other manner.

14. (1) A person who arrests another person shall inform the other person, at the time of the arrest, of the offence for which he is arrested.

(2) A person who arrests another person shall be taken to have complied with sub-section (1) if he informs the other person of the substance of the offence for which he is arrested, and it is not necessary for him to do so in language of a precise or technical nature.

(3) Sub-section (1) does not apply to or in relation to the arrest of a person—

(a) if that person ought, by reason of the circumstances in which he is arrested, to know the substance of the offence for which he is arrested; or

Use offeree in making arrest.

Person to he informed o f grounds of arrest.

170 j Criminal Investigation

Interpretation

Requirement to furnish names, &c.

(b) if the person arrested makes it impracticable, by reason of his actions, for the person effecting the arrest to inform him of the offence for which he is arrested.

P a r t III—P o w e r s a n d D u t i e s o f P o l i c e O f f i c e r s w h e n

I n v e s t i g a t i n g O f f e n c e s

Division I— Preliminary

15. (1) In this Part, unless the contrary intention appears—

(a) a reference to investigative action is a reference to action of a kind referred to in section 42, 43, 44, 45 or 46;

(b) a reference to a period available for interviewing a person is a reference to a period available for interviewing a person within the meaning of section 19.

(2) Where the Police Officer in charge of investigating the offence in respect of which a person is under restraint has grounds for suspecting that the person has committed another offence, the person shall, for the purposes of this Part, be deemed to be under restraint in respect of both of those offences and to have been taken under restraint in respect of the last- mentioned offence at the time when he was taken under restraint in respect of the first-mentioned offence.

Division 2—Furnishing o f Name and Address

16. (1) Where a Police Officer believes on reasonable grounds that a person whose name and address is unknown to the Police Officer may be able to assist him in his inquiries in connection with an offence that has been, may have been or may be committed, the Police Officer may request the person to furnish to him his name and address.

(2) Where a Police Officer requests a person, under sub-section (1), to furnish his name and address to the Police Officer and informs the person of his reason for the request, the person—

(a) shall not refuse or fail to comply with the request; and

(b) shall not furnish to the Police Officer a name or address that is false in a material particular.

(3) Where a Police Officer who makes a request of a person under sub­ section (1) is requested by the person to furnish to the person his name and place of duty, the Police Officer—

(a) shall not refuse or fail to comply with the request;

(b) shall not furnish to the person a name that is false in a material particular; and

Draft Legislation / 171

(c) shall not furnish to the person as his place of duty an address other than the full and correct address of the place that is his ordinary place of duty.

Penalty: $200.

Division 3— Duration o f Custodial Investigation by Police Officers

17. (1) Where a person is, or has been, under restraint in respect of an offence, a Police Officer may—

(a) ask the person questions; or

(b) take other investigative action, in connection with the investigation of the offence—

(c) during a period available for interviewing the person; or

(d) as authorized by an order made under section 21 (3), but not otherwise.

(2) The provisions of this Act relating to a period available for interviewing a person shall not be taken—

(a) to make lawful the holding of the person under restraint during any period during which it would, but for those provisions, be unlawful to hold him under restraint; or

(b) to authorize the asking of any questions or the taking of other investigative action in relation to the person during a period during which it would, but for those provisions, be unlawful to hold him under restraint.

18. A Police Officer shall not take under restraint in respect of any offence a person who has previously been under restraint in respect of the offence—

(a) unless he does so in consequence of matters that have come to the knowledge of the Police Officer in charge of investigating the offence only after the person last ceased to be under restraint; or

(b) unless a reasonable period has elapsed since the person last ceased to be under restraint.

19( 1) For the purposes of this Act, the period available for interviewing a person who is in restraint in respect of an offence is—

(a) subject to paragraphs (b) and (c). the basic period available for interviewing the person, that is to say, the period of 4 hours commencing at the time when he was taken under restraint in respect of the offence; or

(b) if the basic period available for interviewing the person is extended under section 20, the basic period as so extended: or

Restrictions on questioning persons, &c.

When persons not to he taken under restraint.

Periods available for interviewing person.

172 / Criminal Investigation

Magistrate may extend basic period available for interviewing person.

(c) if the basic period available for interviewing a person as extended under section 20 is further extended under section 21—the basic period as so extended and so further extended.

(2) In calculating a period available for interviewing a person who is under restraint in respect of an offence, there shall not be reckoned as part of that period any time while the Police Officer investigating the offence refrains from interviewing the person, or causing the person to do any act connected with the investigation of the offence—

(a) while the person is, after being taken under restraint, being conveyed to a Police Station or other place for any purpose connected with the investigation;

(b) for the purpose— (i) of enabling the person to arrange, or attempt to arrange, for the attendance of a lawyer;

(ii) of enabling a Police Officer to communicate, or attempt to communicate, with any person with whom he is required by section 29 or 32 to communicate in connection with the investigation of the offence; (iii) of enabling the person to communicate, or attempt to

communicate, with any person with whom he is, under this Act, entitled to communicate; or (iv) of arranging, or attempting to arrange, for the attendance of a person who, under a provision of this Act other than

section 31, is required to be present during an interview with the person under restraint or while the person under restraint is doing an act in connection with the investigation;

(c) while awaiting the arrival of a person referred to in sub­ paragraph (b)(iv); or

(d) while the person under restraint is consulting with a lawyer.

20. (1) Where a person is in lawful custody in respect of an offence during the basic period available for interviewing the person, but has not been charged with the offence, the Police Officer in charge of investigating the offence may, before the expiration of that period, make application to a Magistrate in person or by telephone for an extension of that period.

(2) Where a Magistrate to whom application has been made by a Police Officer under sub-section (1), after having afforded the person, or a lawyer acting on his behalf, an opportunity to make submissions in relation to the application, is satisfied—

(a) that the person is in lawful custody;

(b) that the investigation of the offence by Police Officers has been, and is being, carried out as expeditiously as possible; and

Draft Legislation , 173

(c) that it would be proper, in all circumstances, to extend the relevant period,

the Magistrate may extend that period for such further period, not exceeding 8 hours, as he deems reasonable.

(3) In this section, “Magistrate” does not include a Justice.

21. (1) Where the basic period available for interviewing a person in respect of an offence has been extended under section 20, the Australian Industrial Court or the Supreme Court of a State or Territory may, at any time before he is charged with the offence and before the expiration of that period as so extended, upon application made by the Police Officer in charge of investigating the offence, extend the basic period as so extended for such further period as it thinks fit.

(2) A court to which application has been made under sub-section (1) in relation to the investigation of an offence shall not grant an extension unless it is satisifed—

(a) that the person is in lawful custody;

(b) that the investigation of the offence by Police Officers has been, and is being, carried out as expeditiously as possible; and

(c) that it would be proper, in all the circumstances, to grant the extension.

(3) Where the Police Officer in charge of an investigation of an offence wishes to take investigative action in relation to a person who is, or has been, under restraint in respect of the offence otherwise than during a period available for interviewing the person, the Police Officer may make

application to the Australian Industrial Court or to the Supreme Court of a State or Territory for permission to take that investigative action.

(4) Where a court to which application has been made under sub­ section (3) in relation to the investigation of an offence is satisfied—

(a) that it was not, or would not be, practicable for the Police Officer in charge of investigating the offence to take, or to complete the taking, of the investigative action specified in the application during a period available for interviewing the person; or

(b) that matters have, after the expiration of the period available for interviewing the person, or the last such period, come to his knowledge that make it reasonable for a Police Officer to take further investigative action in connection with the investigation.

and that it would be proper in all the circumstances to do so, the court may, by order, authorize a Police Officer to take the investigative action specified in the order.

(5) An order under sub-section (4) may impose such conditions with

Court may authorize investigative action.

174 / Criminal Investigation

Questioning suspected persons.

Persons under restraint to be informed of

rights.

respect to the taking of the investigative action specified in the order as the court deems proper in the circumstances.

(6) Notice of an application under sub-section (1) or (3) shall be given to the person concerned and he is entitled to appear upon the hearing of the application in person, or be represented by a legal practitioner or, by leave of the Court, by another person.

(7) In this section—

(a) a reference to the Australian Industrial Court is a reference to the Australian Industrial Court constituted by a single Judge of the court; and

(b) A reference to investigative action includes a reference to questioning, or questioning further, the person concerned.

Division 4—Duties when Interviewing Suspects

22. (1) Where a Police Officer suspects that a person may have committed a serious offence, or believes that information has been received by the Australian Police that may implicate a person in the commission of a serious offence, but that suspicion or belief is not such as would, under section 9, justify the arrest of the person without warrant, the Police Officer shall not ask him any questions, or any further

questions, or ask him, or cause him, to go to, or remain at, a place, unless he has first informed him that he may refuse to answer any questions put to him by the Police Officer or that he is not compelled to go to, or remain at, that place, as the case may be.

(2) A Police Officer who informs a person as provided in sub-section (1) shall ask him to sign an acknowledgement, in accordance with the prescribed form, of the fact that he has been so informed and of the date on which, and time at which, he is so informed.

(3) Where it is necessary for a court, in any proceedings, to determine whether a Police Officer has informed a person as required by section (1) and an acknowledgement referred to in sub-section (2) and signed by the person has not been produced in evidence, the court shall assume, unless

the contrary is proved, that the person was not so informed.

23. (1) Where a person is under restraint, a Police Officer shall not ask him any questions, or ask him to do anything, for a purpose connected with the investigation of an offence, unless—

(a) the Police Officer has told him his name and rank;

(b) the person has been informed by a Police Officer, in a language in which the person is fluent, in writing and, if practicable, orally, of the fact that he is under restraint and of the offence in respect of which he is under restraint; and

Draft Legislation / 175

(c) the person has been cautioned by a Police Officer in the following manner, namely, by informing him, or causing him to be informed, in a language in which he is fluent, in writing in accordance with the prescribed form and, if practicable, orally—

(i) that he is not obliged to answer any questions asked of him by a Police Officer, other than a question seeking particulars of his name and address;

(ii) that he may communicate with a lawyer, and, subject to this Act, have the assistance of a lawyer while he is being questioned; and

(iii) that, subject to this Act, he may communicate with a relative or friend.

(2) Where a person is under restraint at, or in the vicinity of, a place in respect of which a list of legal practitioners is kept in accordance with section 25, and has not sought to communicate, or has been unable to communicate, with a lawyer of his choice, a Police Officer shall not ask the person any questions, or ask him to do anything for purposes connected with the investigation of an offence, unless a copy of the list of

legal practitioners that relates to that place has been furnished to him.

24. (1) Where a person is under restraint—

(a) a Police Officer shall, upon being requested to do so by the person, cause him to be provided with such facilities as are necessary to enable him to communicate with a lawyer of his choice, and to arrange for a lawyer of his choice to be present

while any investigative action is being taken by a Police Officer in relation to him;

(b) if the person asks a Police Officer for facilities to communicate with a lawyer—no investigative action shall be taken by a Police Officer in relation to him until he has had a reasonable opportunity to communicate with lawyer of his choice;

(c) if the person arranges for a lawyer to be present while investigative action is being taken by a Police Officer in relation to him—no such action shall, subject to sub-section (2), be taken by a Police Officer in relation to him until the lawyer has arrived;

(d) if a lawyer attends to consult with the person or to be present while investigative action is being taken by a Police Officer in relation to him—

(i) no such action shall be taken by a Police Officer in relation to him until the lawyer has consulted with the person; and

(ii) the lawyer is entitled to be present while any investigative action is taken by a Police Office in relation to him and to

Access to lawyer.

176 l Criminal Investigation

give advice to the person on any matter on which his advice is sought, but so that he does not otherwise interfere with the taking of investigative action.

(2) A Police Officer is not required by paragraph (l)(c) to refrain, for more than 2 hours, from taking investigative action in relation to a person while awaiting the arrival of a lawyer.

(3) Where a lawyer attends at a place at the request of a person who is under restraint for the purpose of assisting the person while a Police Officer is taking investigative action in relation to the person, reasonable facilities shall be made available to the lawyer to consult, in private, with the person before any further investigative action is taken by a Police Officer.

(4) In this section “investigative action” , in relation to a person, includes asking the person questions or further questions.

Lists of legal 25. (1) Subject to the regulations, the Secretary shall, so far as it is practitioners, reasonably practicable to do so, establish and maintain, in accordance

with the regulations and in relation to each place at which persons may be held under restraint by a Police Officer, a list of those lawyers who are willing to assist persons under restraint at, or in the vicinity of, that place.

(2) In establishing and maintaining a list of lawyers who are willing to assist persons under restraint at a particular place, the Secretary shall consult, from time to time, with the professional body or bodies representing private legal practitioners practising at, or in the vicinity of, that place.

Communication 26. (1) Subject to sub-section (2), a Police Officer shall, upon request

by a person who is under restraint, cause reasonable facilities to be provided to enable the person to communicate with a relative or friend of his choice.

(2) A Police Officer may refuse a request under subsection (1) for the provision of facilities for communicating with a person, being a relative or friend of a person under restraint, if the Police Officer believes on reasonable grounds that it is necessary to prevent the person under restraint from communicating with the person for the purpose of preventing—

(a) the escape of an accomplice of the person under restraint; or

(b) the loss, destruction or fabrication of evidence relating to the offence.

27. (1) The Secretary shall establish such regional offices as he considers necessary at each of which the Chief Commissioner shall cause to be maintained records relating to persons who are being held under restraint within the region for which the office is established, and shall

with relative or friend.

Notification of whereabouts

of person under restraint.

Draft Legislation / 177

appoint Police Officers to be officers in charge of records held at each such place.

(2) Where a person is under restraint at a place in respect of an offence, the Police Officer in charge of investigating the offence shall ensure that the officer appointed under sub-section (1) to be in charge of records at the regional office for the region in which the place is situated is notified

that the person is, for the time being, under restraint at that place and whether he had consented to particulars of place at which he is under restraint being furnished to any person referred to in sub-section (3).

(3) A Police Officer shall, upon application by telephone or otherwise by a person, being a relative or friend of a person under restraint, or a lawyer representing a person under restraint, and with the consent of the person under restraint, furnish to the first-mentioned person such information as he has in his possession, or is reasonably able to obtain, concerning the place where the person under restraint is being held under

restraint.

28. (1) A person shall, while under restraint, be treated with humanity and with respect for human dignity.

(2) No person shall, while under restraint, be subjected to cruel, inhuman or degrading treatment.

(3) Where a person under restraint— (a) makes a request to a Police Officer to be provided with medical treatment in respect of illness or an injury; or

(b) appears to the Police Officer to require medical treatment in respect of illness or injury,

the Police Officer shall, forthwith, take such reasonable action as is necessary to ensure that the person is provided with medical treatment.

(4) The cost (if any) of medical treatment provided under subsection (3) for a person under restraint at the request of the person shall be borne by the person.

(5) A person under restraint in respect of an offence shall be provided by the Police Officer in charge of investigating the offence with reasonable refreshments and reasonable access to toilet facilities.

(6) Where a person under restraint in respect of an offence is to be brought before a court while still under restraint and more than 4 hours after he came under restraint, the Police Officer in charge of investigating the offence shall, if it is practicable to do so, cause him to be provided with

facilities to wash or shower, and to shave and change into other clothes, before he is brought before the court.

Treatment of persons under restraint.

178 / Criminal Investigation

Aboriginals and Torres Strait

Islanders.

Division 5— Special Duties when Interviewing certain Persons

29. (1) Where a Police Officer—

(a) suspects that a person may have committed a serious offence or an offence against the person or property, or believes that information has been received by the Australia Police that may implicate a person in the commission of such an offence but the suspicion or belief is not such as would, under section 9, justify the arrest of the person without warrant, and has reasonable grounds for believing that the person is an Aboriginal or a Torres Strait Islander; or

(b) has reasonable grounds for believing that a person under restraint in respect of a serious offence or of an offence against the person or property is an Aboriginal or a Torres Strait Islander,

the Police Officer shall not ask him any questions, and shall not ask, or cause, him to do anything, in connection with the investigation of the offence, unless—

(c) a prisoners’ friend is present while he is being questioned or doing that thing; or

(d) he has expressly and voluntarily waived his right to have such a person present.

(2) Where a Police Officer has reasonable grounds for believing that a person whom he has under restraint in respect of an offence is an Aboriginal or a Torres Strait Islander, the Police Officer—

(a) shall forthwith inform the person that, unless he objects to a representative of the organisation being so notified, a repre­ sentative of a specified organization providing legal aid for Aboriginals and Torres Strait Islanders, being the prescribed

organization providing legal aid for Aboriginals and Torres Strait Islanders that can most conveniently provide legal aid for the person, will be notified that he is under restraint in respect of the offence; and

(b) shall, unless the person has so objected, notify a representative of the organization accordingly.

(3) The onus of proof that an Aboriginal or Torres Strait Islander has waived the right referred to in sub-section (1), or has objected to a notification being given in accordance with sub-section (3), lies, in any proceedings, on the prosecutor, and the onus shall not be taken to have been satisfied unless the court is satisfied that the person voluntarily waived that right, or gave that objection, and did so with full knowledge and understanding of what he was doing.

Draft Legislation / 179

(4) In this section, “prisoner’s friend”, in relation to a person under restraint in respect of an offence who is an Aboriginal or Torres Strait Islander, means—

(a) a relative or other person chosen by the person who is under restraint, not being a relative or other person believed on reasonable grounds by the Police Officer in charge of investigat­ ing the offence to be a person with whom the person under restraint should be prevented from communicating in order to prevent—

(1) the escape of an accomplice of the person under restraint; or

(ii) the loss, destruction or fabrication of evidence of or relating to the offence;

(b) a lawyer;

(c) a representative of an organization referred to in paragraph (2) (a);or

(d) any other person whose name is included on a list kept in pursuance of section 30.

30. (1) Subject to the regulations, the Secretary shall so far as it is reasonably practicable to do so, establish and maintain, in accordance with the regulations and in relation to each place at which persons may be held under restraint by a Police Officer, a list of prisoner’s friends, that is

to say persons who are suitable persons to assist Aboriginals or Torres Straits Islanders under restraint in respect of offences and are willing to assist any such persons who are under restraint at, or in the vicinity of, that place.

(2) In establishing and maintaining, in relation to a place, a list of prisoner’s friends, the Secretary shall consult, from time to time, with any prescribed organization providing legal aid for Aboriginals or Torres Straits Islanders that is operating at, or in the vicinity of, that place.

31. Where a Police Officer has reasonable grounds for believing that a person under restraint is a person who is unable to communicate, orally, with reasonable fluency in the English language, the Police Officer shall not ask the person any questions unless a person competent to act as interpreter is present and acts as interpreter during the questioning.

32. (1) The Police Officer in charge of investigating an offence in respect of which a child is under restraint shall, forthwith after the child becomes under restraint, cause a parent or guardian of the child to be informed that he is under restraint and of the offence for which he is under restraint.

(2) Where—

(a) a Police Officer suspects that a child may have committed a serious offence or an offence against the person or property, or

Aboriginals prisoner's friends.

Persons no! fluent in English.

( luidren.

180 / Criminal Investigation

Application.

Admissibility and weight of confessional evidence.

believes that information that has been received by the Australia Police may implicate a child in the commission of such an offence, but the suspicion or belief is not such as would, under section 9, justify the arrest of the child without warrant; or

(b) a child is under restraint in respect of an offence,

a Police Officer shall not interview the child in connection with the offence, or cause the child to do any act in connection with the investigation of the offence—

(c) unless a person acceptable to the child, being a parent, relative or friend of the child or a lawyer or welfare officer, is present while the Police Officer interviews the child or the child does the act, as the case may be; or

(d) unless—

(i) the Police Officer has taken all reasonable steps to secure the presence of a person referred to in paragraph (a) as a person acceptable to the child during the interview or the doing of an act;

(ii) it has not been practicable for any such person to be present within 2 hours after he was requested to be present; and

(iii) another person (including a Police Officer) who has not been concerned in the investigation of the offence is present during the interview or while the act is done, as the case may­ be.

(3) In this section “child" means a person who has not attained the age of 16 years.

33. The duties imposed on a Police Officer by this Division in relation to a person are in addition to any duties imposed on him in relation to the person by other provisions of this Act.

Division 6— Confessions

34. (1) Evidence of a confession made by a person to a Police Officer is not admissible in evidence in proceedings against the person for an offence unless it was made voluntarily.

(2) For the purposes of sub-section (1), a confession that is obtained from a person in consequence of—

(a) the use of physical violence, or of a threat of physical violence, to any person; or

(b) the making of a promise, threat or other inducement (not being physical violence or the threat of physical violence) likely to cause the person to make a confession that is untrue,

Draft Legislation ' 181

shall be deemed not to be made voluntarily.

(3) A court may, in its discretion, notwithstanding that a confession was made voluntarily, exclude the giving or production of evidence of the confession in proceedings on the ground that a Police Officer has contravened or failed to comply with a provision of section 35, 36, 37 or

38 that was applicable in relation to the confession or on any other ground open to the court.

(4) Where, at the trial of a person before a jury for an offence, evidence of a confession made by the person to a Police Officer is, after objection, admitted or contradictory evidence concerning such a confession has been given, the court shall warn the jury that it may, in deciding whether the confession was made to the Police Officer or was made in the terms in which it is alleged to have been made, as the case requires, have regard, among other matters, to the following matters:—

(a) whether the person has acknowledged, in writing, that he made the confession;

(b) whether the confession was recorded by means of sound recording apparatus and the evidence of the confession consisted of, or included, a transcript or copy of such a recording;

(c) whether the confession was made in the presence of an appropriate witness within the meaning of section 35 and any evidence of the confession was given by such a witness;

(d) whether the confession was verified in accordance with section 37.

(5) Where, in proceedings for the summary conviction of a person for an offence, evidence of a confession made by a person to a Police Officer is, after objection, admitted, or contradictory evidence concerning such a confession has been given, the court shall, in deciding whether the confession was made to the Police Officer, or was made in the terms in which it is alleged to have been made, as the case requires, have regard,

among other matters, to the matters referred to in paragraphs (4)(a), (b). (c) and (d).

35. (1) A Police Officer who interviews a person for the purpose of ascertaining whether the person has committed an offence shall, unless it is, in all the circumstances, impracticable to do so—

(a) cause the interview to be recorded by means of sound recording apparatus; or

(b) interview the person in the presence of a person who is. by virtue of sub-section (4), an appropriate witness.

(2) A Police Officer may refrain from complying with the succeeding

Records o f interviews.

182 I Criminal Investigation

sub-sections if the interview is recorded by means of sound recording apparatus.

(3) Where a person who is being interviewed by a Police Officer for the purpose of ascertaining whether he has committed an offence makes, during the interview, either orally or in writing, a confession relating to an offence, the Police Officer shall, subject to sub-section (3), make, or cause to be made, while the interview is being held or as soon as practicable after the interview is completed, a record, in writing, setting out

(a) so far as it is practicable to do so, the questions asked of the person during the interview and the answers given by the person to those questions;

(b) particulars of any statement made by the person orally during the interview otherwise than in answer to a question;

(c) whether the person wrote out any statement during the interview and, if so, the times when he commenced to write out the statement and completed writing out the statement;

(d) whether a caution was given to the person before he made the confession and, if so, the terms in which the caution was given, the time when it was given and any response made by the person to the caution;

(e) the times when the interview was commenced and completed; and

(f) if the interview was interrupted—the times when it was interrupted and recommenced.

(4) A Police Officer who makes a record of an interview with a person in accordance with sub-section (3) shall write, or cause to be written, at the end of the record a form of certificate, in accordance with the prescribed form, relating to compliance with this Division and shall then, unless the person is unable to read the record in the language in which it is written—

(a) show the record to the person and ask him—

(i) to read the record and make any alteration or correction to it he wishes to make and add to it any further statement that he wishes to make;

(ii) to sign the certificate set out at the end of the record; and

(iii) if the record extends over more than one page—to initial each page that is not signed by him; and

(b) if the person refuses, fails or appears to fail to comply with that request—certify, under his hand, on the record what he has done and in respect of what matters the person refused, failed or appeared to fail to comply with the request.

Draft Legislation / 183

(5) Where a person who is interviewed by a Police Officer is unable to read the record of the interview in the language in which it is written, or refuses to read, or appears to the Police Officer not to read, the record when it is shown to him in accordance with sub-section (4), the Police

Officer shall—

(a) read the record to him, or cause the record to be read to him, in a language in which he is fluent;

(b) ask whether he would like to correct or add anything to the record;

(c) permit him to correct, alter or add to the record, or make any corrections, alterations or additions to the record that he requests the Police Officer to make;

(d) ask him to sign the certificate at the end of the record; and

(e) certify under his hand, at the end of the record, what he has done in pursuance of this sub-section.

(6) Where a record of an interview is made in accordance with sub­ section (2) and an appropriate witness is present during the interview, the Police Officer who makes, or causes to be made, a record of the interview shall—

(a) afford the appropriate witness an opportunity to read the record; and

(b) ask the appropriate witness—

(i) to certify, under his hand, on the record whether the record is a full and correct record of what happened at the interview; and

(ii) to state on the record particulars of any respect in which the record is not, in his opinion, such a full and correct record.

(7) For the purposes of this section, an appropriate witness, in relation to a person who is interviewed by a Police Officer is—

(a) a magistrate;

(b) a person included in a class of persons declared by the regulations to be a class of persons to whom this paragraph applies;

(c) a lawyer who is present at the request of that person: or

(d) a friend or relative of the person who is present at the request of the person and with the permission of the Police Officer.

36. (1) Where a person under restraint informs a Police Officer that he wishes to write out a statement, the Police Officer— Slaiemuntv

184 j Criminal Investigation

Verification of record of interview or

statement.

(a) shall cause him to be furnished with any writing materials he requires for writing out the statement; and

(b) shall ask him, if he has been cautioned as required by paragraph 23(l)(c), to set out at the commencement of the statement the terms of the caution given to him, so far as he recalls them.

(2) Where a person under restraint furnishes to a Police Officer a statement that he has written out, the Police Officer shall write, or cause to be written, at the end of the statement a form of certificate, in accordance with the prescribed form, relating to compliance with this Division and shall then—

(a) show the statement to the person and ask him—

(i) to read the statement and make any alteration or correction to it that he wishes to make and add to it any further statement that he wishes to make;

(ii) to sign the certificate set out at the end of the statement; and

(iii) if the statement extends over more than one page—to initial each page that is not signed by him; and

(b) if the person refuses, fails or appears to fail to comply with that request—certify, under his hand, on the statement what he has done and in respect of what matters the person refused, failed or appeared to fail to comply with the request.

(3) Where a person under restraint refuses to read, or appears to the l! Police Officer not to read, a statement when it is shown to him in j accordance with sub-section (2), the Police Officer shall—

(a) read the statement to him, or cause the statement to be read to him, in a language in which he is fluent;

(b) ask whether he would like to correct or add anything to the statement;

(c) permit him to correct, alter or add to the statement, or make any j corrections alterations or additions to the statement that he requests the Police Officer to make;

(d) ask him to sign the certificate at the end of the statement; and

(e) certify under his hand, at the end of the statement, what he has done in pursuance of this sub-section.

37. (1) A Police Officer who makes a record of an interview with a person in accordance with sub-section 35(3) shall take all such reasonable steps as are practicable to cause a prescribed person to comply with this section in relation to the record unless the interview was also recorded by­ means of sound recording apparatus or an appropriate witness within the meaning of section 35 was present at the interview.

Draft Legislation j 185

(2) Where a statement written out by a person under restraint is furnished to a Police Officer, the Police Officer shall take all such reasonable steps as are practicable to cause a prescribed person to comply with this section in relation to a statement.

(3) A prescribed person shall, as soon as practicable after the record of the interview with the person has been made or after the statement has been furnished to the Police Officer, as the case requires—

(a) show the record or statement to the person and ask him to read the record or statement and make any alteration or correction to it that he wishes to make and add to it any further statement that he wishes to make; and

(b) if the person refuses, fails or appears to fail to comply with that request in any respect—certify, under his hand, on the record or statement, what he has done, and in respect of what matters the person refused, failed or appeared to fail to comply with the request.

(4) Sub-section (3) does not apply to an interview with a person if the person is unable to read the record in the language in which it is written.

(5) Where the person who is interviewed is unable to read the record in the language in which it is written, or the person who is interviewed, or makes the statement, refuses to read, or appears to the prescribed person not to read, the record or statement, the prescribed person shall—

(a) read the record or statement to him, or cause the record or statement to be read to him in a language or manner in which he is fluent; (b) ask him whether he would like to correct or add anything to it; (c) permit him to correct, alter or add to it, or make to it any

corrections, alterations or additions that he requests the prescribed person to make; (d) ask him to sign the certificate at the end of the record or statement; and

(e) certify, under his hand, at the end of the record or statement what he has done in pursuance of this sub-section.

(6) A prescribed person may, before performing the functions conferred on him by sub-section (3) or (5) in relation to a record of an interview with a person, or a statement made by a person, inquire of the person—

(a) whether that person said what, according to the record, he is alleged to have said during the interview7 or made the statement, as the case may be;

(b) whether the matters set out in the record or statement are true; and

186 I Criminal Investigation

Recordings by means of sound recording apparatus.

(c) whether he has any complaint concerning his treatment by a Police Officer or any other person or whether any threat or promise has been made that led him to say any of the matters set out in the record or statement.

(7) A prescribed person who inquires of a person as required by sub­ section (6) in relation to a record of an interview, or of a statement, shall record, in writing, at the end of the record or of the statement, the person’s answers to those inquiries.1

(8) Where a prescribed person is performing functions as provided in sub-section (3) or (5) in relation to a record of an interview with a person or a statement made by a person, and the prescribed person is a person other than a relative or friend of the person, or a lawyer who has been advising the person, a Police Officer shall not remain within hearing while he is performing those functions.

(9) In this section, “prescribed person”, in relation to a person who is interviewed by a Police Officer or furnishes a statement to a Police Officer | means—

(a) a Magistrate;

(b) a person included in a class of persons declared by the | regulations to be a class of persons to whom paragraph 35(7)(b) j applies;

(c) a lawyer who has been requested by the person to assist him in j connection with the interview or with the making of the | statement; or i

(d) a relative or friend of the person, i

or, in a case where such a person is not reasonably available to perform the functions of a prescribed person in relation to an interview or statement, means the senior Police Officer (if any) available who has not j been concerned in the investigation of the offence. I

38. (1) Where, in the course of an interview between a Police Officer and a person that is recorded by means of sound recording apparatus, the person makes a confession relating to an offence, or a written statement containing such a confession, the Police Officer shall, forthwith after the conclusion of the interview, deliver the recording, or cause the recording to be delivered—

(a) if it can conveniently be delivered to an authorized

custodian—to an authorized custodian; or

(b) in any other case—to the senior Police Officer to whom it can conveniently be delivered.

(2) Where a recording is, under sub-section (1), delivered to a Police

Draft Legislation / 187

Officer, he shall deliver the recording, or cause it to be delivered, to an authorized custodian as soon as practicable.

(3) Where a transcript of the record contained in a recording, or a copy of a sound recording, in the possession of an authorized custodian is required in connection with a charge, the custodian shall, upon application made by the prosecutor or the person charged, make and deliver to him a transcript the record so contained certified to be a true transcript of that record, or a copy of the sound recording, as the case may be. .

(4) Where proceedings in respect of an offence are instituted against a person who has made a confession referred to in sub-section (1), the authorized custodian having custody of the recording containing a record of the confession shall, at the commencement of the hearing of the

proceedings by a court, deliver the recording into the custody of the court, and the court shall hold the recording as if it were an exhibit in the proceedings.

(5) Where a recording is held by a court in connection with proceedings, the court may, upon application made by any party to the proceedings, order that a transcript of the record contained in the recording, or of a part of that record, or that a copy of the recording, or of a part of the

recording, be made and delivered to the party.

(6) Where it appears to a Court that a recording referred to in sub­ section (1), or a transcript of the whole or a part of such a recording, may contain matter that affects a person in a manner prejudical to the person and that the matter may not be admissible, or should not be admitted, in evidence in the proceedings, the Court may, upon application being made

to it or of its own motion—

(a) ascertain, in closed court, the contents of the recording or transcript;

(b) determine, in closed court, whether the recording or transcript contains any matter that affects such a person in such a manner and, if it does contain any such matter, whether the matter is admissible in the proceedings, or should, if admissible, be

admitted in the proceeding; and

(c) make an order prohibiting the publication of any such matter that is not admitted in evidence.

(7) Subsection (6) does not authorize a court, when determining a matter referred to in sub-section (6) in closed court, to exclude a party to the proceedings concerned or a legal practitioner representing such a party.

(8) Where proceedings have not been instituted against a person who has made an admission contained in a recording to which this section applies within 12 months after the day on which the recording was made.

188! Criminal Investigation

Parts of interviews.

Copies of interviews and statements.

Interpretation

the authorized custodian having the custody of the recording shall, upon application made by the person, destroy the recording.

(9) Where proceedings have not been instituted against a person who has made an admission contained in a recording to which this section applies within 18 months after the day on which it was made and the recording has not already been destroyed, the authorized custodian having the custody of the recording shall destroy the recording.

(10) A person shall not make a transcript of a record contained in a recording to which this section applies, or a copy of such a recording, except upon application made under sub-section (4) or in accordance with an order of a court made under sub-section (6).

Penalty: $1,000 or imprisonment for 6 months.

(11) The regulations may make provision, not inconsistent with this Act, with respect to the kinds of sound recording apparatus that may be used for the purpose of recording interviews with Police Officers, the procedure to be followed in recording interviews with Police Officers, the custody of recordings by Police Officers, prescribed custodians and courts, the making of transcripts of records contained in recordings, and copies of recordings, and the destruction of recordings.

(12) In this section, “prescribed custodian” means a person appointed by the Minister to be a prescribed custodian.

39. (1) Where part only of an interview to which section 35 applies is recorded by means of sound recording apparatus sections 35, 37 and 38 apply as if a part of the interview that was so recorded and a part of the interview that was not so recorded were each separate interviews.

(2) Where an appropriate witness within the meaning of section 35 is present during part only of an interview' to which section 35 applies, being a part that is not recorded by means of sound recording apparatus, sections 35 and 37 apply as if that part of the interview, and any other part of the interview that was not so recorded, were each a separate interview'.

40. Where a Police Officer makes a record of an interview with a person in accordance with section 35, or a person furnishes to a Police Officer a statement written out by the person in accordance with section 36, a Police Officer shall, upon application by the person, furnish to the person a copy of the record or statement, being a copy containing a copy of any certificate or other matter written on the record or statement in accordance with this Division.

Division 7— Other Investigation action 41. In this Division, unless the contrary intention appears—

“relevant act”, in relation to an offence, means an act done in connection with the commission of the offence or believed by the

Draft Legislation / 189

Police Officer in charge of investigating the oifence to have been done in connection with the commission of the offence;

“relevant person”, in relation to a relevant act, means a person seen doing the relevant act;

“Suspect”, in relation to a relevant act, means a person believed by the Police Officer in charge of investigating the offence to be the person seen by another person to do the relevant act;

“witness” , in relation to a relevant act, means a person who saw another person doing the relevant act.

42. (1) A Police Officer holding the rank of sergeant or a higher rank, or for the time being in charge of a Police Station, may take, or cause to be taken, prints of the hands, fingers, feet or toes of a person, recordings of the voice of a person, photographs of a person or samples of the handwriting of a person if, and only if—

(a) the person is in lawful custody in respect of an offence and the Police Officer believes on reasonable grounds that it is necessary to do so for the purpose of identifying the person as the person who committed the offence or of providing evidence relating to

the offence; or

(b) a Magistrate has, under sub-section (3), approved the taking of the prints, recordings, photographs or samples, as the case may be.

(2) A Police Officer referred to in sub-section (1) may—

(a) make application to a Magistrate in person; or

(b) if it is impracticable for him to make application to a Magistrate in person—make application to a Magistrate by telephone,

for approval to take prints of the hands, fingers, feet of toes of a person under restraint in respect of an offence, or of any other person against whom proceedings have been instituted by summons in respect of an

offence, or to take recordings of the voice, photographs or samples of the hand-writing of such a person.

(3) The Magistrate to whom application is made under sub-section (2) may, if he thinks it proper in all the circumstances, give his approval, in writing, to the taking of the prints, recordings, photographs or samples, as the case may be.

(4) Where a Magistrate gives his approval in relation to an application made to him under sub-section (2) by telephone, the Magistrate shall cause the instrument giving approval to be forwarded to the applicant.

(5) Where— (a) proceedings have been instituted against a person in respect of

Fingerprints, photographs, &c.

190 / Criminal Investigation

Identification by means of photographs.

an offence within 12 months after prints, recordings, photo­ graphs or samples referred to in sub-section (1) have been taken of, or in relation to, the person in connection with the offence but the court does not convict the person of the offence or, without recording a conviction, find that the person committed the offence; or (b) no proceedings have been instituted against a person in respect

of an offence within 12 months after prints, recordings, photographs or samples referred to in sub-section (1) have been taken of, or in relation to, him in connection with the offence,

the person having the custody of the prints, recordings, photographs or samples, and each person having the custody of copies of the prints, recordings, photographs or samples, shall cause them to be destroyed,

(6) A person (including a Police Officer) who, at any time after prints, recordings, photographs or samples referred to in sub-section (1) are required by sub-section (5) to be destroyed, makes, or causes or permits to be made, a copy or record of, or of any part of, those prints, recordings, photographs or samples commits an offence punishable, upon con­

viction, by a fine not exceeding $1,000 or by imprisonment for a period not exceeding 6 months.

(7) In this section “Magistrate” does not include a Justice.

43. (1) A Police Officer investigating an offence shall not show a photograph of a person, or a series of photographs of persons, to a witness to a relevant act for the purpose of ascertaining the identity of the relevant person—

(a) unless the witness has furnished to a Police Officer a description, in writing, of the relevant person and a copy of that description has been signed, for identification, by the witness and the Police Officer; and

(b) in a case where the suspect is being held under restraint, unless—

(i) the suspect has refused to take part in an identification parade; or (ii) the holding of an identification parade would be unfair to the suspect or impracticable in all the circumstances.

(2) Where a Police Officer investigating an offence shows a photograph of a person, or a series of photographs of persons, to a witness to a relevant act for the purpose of ascertaining the identity of the relevant person, the Police Officer—

(a) shall not, in doing so, act unfairly towards a suspect or suggest to the witness that a particular photograph is the photograph of a suspect or a person who is being sought by the police in respect of an offence;

Draft Legislation j 191

(b) shall keep, or cause to be kept, a record of each photograph or series of photographs that is shown to the witness:

(c) shall, upon application by the suspect, provide the suspect with a copy of the record so kept, and of the description furnished by the witness in accordance with paragraph (l)(a); and

(d) shall afford the suspect, upon application, an opportunity to inspect each photograph or series of photographs shown to a witness.

(3) A Police Officer investigating an offence shall not show a picture, of a kind known as “Identikit” picture, or a picture of a similar kind, or a series of pictures of such a kind or of a similar kind, to a witness to a relevant act for the purpose of assisting the witness to describe the features of the relevant person if a suspect is being held under restraint in

respect of the offence.

(4) Where, after a Police Officer investigating an offence has shown a witness to a relevant act a picture, or a series of pictures, referred to in sub­ section (3) for the purpose of assisting the witness to describe the features of the relevant person, a person believed by a Police Officer to be the relevant person is held under restraint in respect of the offence, the Police Officer in charge of the investigation of the offence shall, unless it is impracticable to do so, cause the witness to attend an identification parade in relation to that person or display a series of photographs of persons to the witness for the purpose of ascertaining whether the witness can identify a photograph as a photograph of the relevant person.

(5) Where, after the witness to a relevant act has been shown a picture, or a series of pictures, referred to in sub-section (3) for the purpose of assisting him to describe the features of the relevant person, a person is charged with the offence, a Police Officer shall, upon application by the person, provide the person with particulars of the picture, or series of

pictures, that were shown to the witness and the comments (if any) of the witness concerning those pictures.

44. (1) A Police Officer investigating an offence shall not cause or permit an identification parade to be held for the purpose of ascertaining whether a witness to a relevant act can identify the relevant person unless the suspect has agreed to the holding of the parade and has been informed

both in writing in a language in which he is fluent and, if practicable, orally in such a language—

(a) that he is entitled to refuse to agree to the holding of the parade:

(b) that, if he does not agree to the holding of the parade and take part in the parade, evidence may be given, in any proceedings with respect to the offence, of any identification of him as the relevant person made by the witness as a result of having seen a

Identification parades.

192 / Criminal Investigation

photograph, or a series of photographs, or of having seen him otherwise than during an identification parade;

(c) that, if he does take part in the identification parade, evidence may be given, in any proceedings with respect to the offence, of any identification made by the witness, of any doubts expressed by the witness, of any doubts expressed by the witness during or immediately following the holding of the parade and of any unfairness in the conducting of the parade; and

(d) that he may have present during the holding of the parade a lawyer or other person of his choice if arrangements can be made for the lawyer or other person to be present within a period of 2 hours.

(3) A Police Officer who informs a suspect as provided in sub-section (2) shall ask the person to sign an acknowledgement, in accordance with the prescribed form, of the fact that he has been so informed and of the date on which and the time at which he is so informed.

(4) Where it is necessary for a court to determine in any proceedings, whether a Police Officer has informed a person as required by sub-section (2) and an acknowledgement referred to in sub-section (3), signed by the person, has not been produced in evidence, the court shall assume, unless the contrary is proved, that the person was not so informed.

(5) Where a Police Officer investigating an offence holds an identification parade in relation to a suspect, the Police Officer—

(a) shall arrange and conduct the parade in such a manner as will not unfairly prejudice the suspect; and

(b) shall, as far as he is able to do so, ensure that nothing in the arranging and conducting of that parade, or in what happens during the conducting of the parade, suggests, or is likely to suggest, to the witness which of the persons included in the parade is the suspect;

(6) Before permitting a witness to a relevant act to look at the persons included in an identification parade, the Police Officer conducting the parade shall obtain from the witness a written description of the relevant person, being a description signed, for identification, by the witness and by the Police Officer.

(7) Where an identification parade is held, the Police Officer responsible for conducting the parade shall cause at least one photo­ graph, if practicable in colour, to be taken of the parade while it is being conducted, unless a video-tape recording of the parade is taken.

(8) The Police Officer responsible for conducting an identification parade in relation to a suspect shall cause to be recorded particulars of what happened during the parade (including particulars of any words

Draft Legislation 193

spoken by the witness and of any doubts expressed, and of any gestures made, by that witness) and of the name, address and occupation of each of the persons who are included in the parade and consent to the recording of those particulars.

(9) A suspect in relation to whom an identification parade is held is entitled, upon request to a Police Officer, to be provided with—

(a) a copy of the description referred to in sub-section (6);

(b) a copy of any photograph of the parade taken in pursuance of sub-section (7); and

(c) a copy of the record made in pursuance of sub-section (8).

45. (1) A Police Officer may, upon taking a person into lawful custody in respect of an offence, search his person, the clothing that he is wearing and any property under his immediate control if the Police Officer believes on reasonable grounds that it is necessary to do so—

(a) for the purpose of ascertaining whether there is concealed on his person, in his clothing or in that property a weapon or other article capable of being used to inflict injury upon a person or to assist him to escape from custody; or

(b) for the purpose of preventing the loss or destruction of evidence relating to the offence.

(2) Sub-section (1) does not authorize a Police Officer to require a person to remove any of the clothing that he is wearing for the purpose of a search in pursuance of that sub-section.

(3) A Police Officer may seize—

(a) any weapon or other article referred to in paragraph (1 )(a); or

(b) anything relating to an offence,

found as a result of a search in accordance with sub-section (1).

(4) Nothing in this section shall be taken to prevent the search of the person of a person, or of property under the control of a person, upon his being admitted as an inmate of a goal, lock-up or like place after having been charged with an offence.

46. (1) A Police Officer may arrange for a medical practitioner to examine the person of a person in lawful custody in respect of an offence if, and only if, he has reasonable grounds for believing that the examination would provide evidence relating to the offence and—

(a) the person has given his consent in writing: or

(b) a Magistrate has authorized the examination under sub-section (4).

Search of arrested person.

Medical examination.

194 / Criminal Investigation

(2) A Police Officer may arrange for a medical practitioner to take a specimen from a person in lawful custody in respect of an offence for the purpose of having the specimen analysed or otherwise examined if, and only if, a Police Officer has reasonable grounds for believing that analysis

or other examination of the specimen would provide evidence relating to the offence and—

(a) the person has given his consent in writing; or

(b) a Magistrate has authorized the taking of the sample under sub­ section (4).

(3) A Police Officer who has reasonable grounds for the belief referred to in sub-section (1) or (2), whichever is applicable, in relation to a person who is in lawful custody in respect of an offence may—

(a) make application to a Magistrate in person; or

(b) if it is impracticable for him to make application to a Magistrate in person—make application to a Magistrate by telephone,

for his authorization of the making of arrangements for a medical practitioner to examine the person of the person, or to take a specimen from the person, as the case may be.

(4) The Magistrate to whom application is made under sub-section (3) may, if he is satisfied that the police Officer has reasonable grounds for the belief referred to in sub-section (1) or (2), whichever is applicable, authorize in writing, the making of the arrangements.

(5) Where a Magistrate gives his authorization in relation to an application made to him under sub-section (3) by telephone, the Magistrate shall cause the instrument giving authorization to be forwarded to the applicant.

(6) Before arranging for a medical practitioner to examine a person in lawful custody or to take a specimen from such a person, a Police Officer shall inquire whether the person wishes to have a medical practitioner of his own choice present during the examination or taking of the specimen and, if he states that he does so wish, shall—

(a) provide reasonable facilities to enable the person to arrange for a medical practitioner of his choice to be so present; and

(b) unless it would be impracticable to do so—arrange for the examination to be made, or the specimen to be taken, at a time when the medical practitioner chosen by the person can be present.

(7) Where—

(a) proceedings have been instituted against a person in respect of an offence within 12 months after he has been examined by a

Draft Legislation 195

medical practitioner, or a specimen has been taken from him, in accordance with sub-section (1) but the person is not convicted of the offence or the court does not, without recording the conviction, find that the person committed the offence; or (b) no proceedings have been instituted against a person in respect

of an offence within 12 months after he has been examined by a medical practitioner, or a specimen has been taken from him, in accordance with sub-section (1),

the person having the custody of the records of the examination, or of the analysis or other examination of the specimen, shall cause them to be destroyed.

(8) A person (including a Police Officer) who makes, or causes or permits to be made, a copy of records of an examination carried out under this section or of the analysis or other examination of a specimen taken under this section after the time when the record is required by sub­

section (7) to be destroyed commits an offence punishable, upon conviction, by a fine not exceeding $1,000 or by imprisonment for a period not exceeding 6 months.

(9) Where a person in lawful custody is examined by a medical practitioner in accordance with sub-section (I), or a specimen is taken from such a person in accordance with that section, a Police Officer shall, upon application by the person, provide the person with a copy of the

report of the medical practitioner furnished in respect of the examination or the report of the analysis or other examination of specimen.

(10) Where a medical practitioner—

(a) makes a medical examination of a person; or (b) takes a specimen from a person,

in pursuance of arrangements duly made by a Police Officer under this section, proceedings do not lie against the medical practitioner in respect of anything reasonably done by him for the purpose of the examination, or for the purpose of taking the specimen.

(11) Nothing in this section shall be taken—

(a) to prevent a medical practitioner from examining a person in lawful custody at the request of that person or for the purpose of treating him for an illness or injury; or (b) to affect the power of a court to exclude evidence obtained

through force or inhuman treatment.

112) In this sec! ion

(a) “specimen'', in relation to a person includes sample of. or taken from, the body of the person;

(b) “ Magistrate" does not include a Justice.

196 / Criminal Investigation

Interpretation

Persons charged to be cautioned.

Release of person in lawful custody.

Duration of custody.

P a r t i v — R e l e a s e a n d B a i l

47. (1) In this Part, “relevant period”, in relation to a person who is charged by a Police Officer with an offence while he is under restraint, means the period available for interviewing the person that is, for the purposes of Part III, applicable to that restraint.

(2) Where a person who is charged with an offence asks for facilities to communicate with a lawyer of his choice in connection with an application for bail and the Police Officer investigating the offence refrains, for a period, from bringing the person before a Magistrate, from determining whether to grant or to refuse to grant bail or from bringing the person before a Police Officer authorized to grant bail, as the case requires, for the purpose—

(a) of enabling the person to arrange, or attempt to arrange, for the attendance of a lawyer; (b) while awaiting the arrival of a lawyer; or (c) while the person is consulting a lawyer,

that period shall be disregarded in calculating the relevant period in relation to the person.

(3) For the purposes of this Part, a person shall not be taken to have been charged by a Police Officer with an offence unless or until particulars of the charge have been entered in a Police Station charge book.

(4) Where a person who is charged by a Police Officer with an offence is handed over into the custody of a Police Officer of a State before being granted or refused bail under this Part, the handing of him over into the custody of the Police Officer of the State does not affect the continued application of this Part to and in relation to him and, for the purposes of the continued application of this Part accordingly, a reference in this Part to a Police Officer shall, unless the contrary intention appears, be read as including a reference to a Police Officer of a State.

48. Immediately after a Police Officer charges a suspect with an offence, the Police Officer shall caution the person in writing in a language in which he is fluent, and if practicable orally, in the prescribed manner,

49. Nothing in this Act shall be taken to prevent the release of a person in lawful custody at any time without being charged with an offence and whether or not a summons has been, or is to be, issued against him in respect of an offence.

50. (1) As soon as practicable after a person is taken under restraint by a Police Officer, and within the relevant period, the Police Officer—

(a) shall charge the person, or cause the person to be charged, with an offence; or

(b) shall, whether or not a summons has been, or will be, issued

Draft Legislation / 197

against him in respect of an offence, release the person, or cause the person to be released, without charging him with an offence,

(2) A Police Officer who charges a person under restraint with an offence shall within the relevant period, if it is possible for the person to be brought before a Magistrate forthwith after he is charged, bring the person, or cause the person to be brought, before a Magistrate forthwith to be dealt with according to law.

(3) Where a Police Officer who charges a person under restraint with an offence is unable to comply with sub-section (2) the Police Officer, within the relevant period— (a) shall inform the person, or cause the person to be informed in

writing and in a language in which he is fluent and, if practicable, orally— (i) that he may communicate with a lawyer of his choice in connection with the making of an application for bail; and fii) that he may communicate with any other person of his

choice in connection with the provision of bail,

and, if the person asks for facilities to do so, shall provide the person, or cause the person to be provided, with such facilities as are reaonably necessary to enable him so to communicate with a lawyer or other person;

(b) shall furnish to the person, in writing and in a language in which he is fluent and, if practicable, orally, particulars of the matters that are relevant to the granting of bail and the conditions subject to which bail may be granted; and

(c) shall, if he is authorised to grant bail—determine whether bail should be granted to the person, or, if he is not so authorized, bring the person before a Police Officer authorized to grant bail to the person.

(4) In this section, a reference to a Police Officer authorized to grant bail is a reference to a Police Officer who holds the rank of sergeant or a higher rank or to any other Police Officer who is the Police Officer in charge of a police station.

51.(1) A Police Officer who is required to consider whether to grant bail to a person charged with an offence shall, within the relevant period and after affording the person, or a lawyer assisting the person, and a Police Officer concerned with investigating the offence, opportunities of making

submissions to him concerning matters relevant to the granting of bail specified in section 52, decide whether, having regard only to the information before him concerning those matters and to sub-sections (2) and (4), to grant, or refuse to grant, the person bail.

(2) A Police Officer—

Police hail.

198 j Criminal Investigation

Criteria for granting police bail.

(a) shall not grant bail to a person otherwise than subject to the condition specified in paragraph 53(a); and

(b) may, subject to sub-sections (3) and (4), grant bail to a person subject to such other conditions, being conditions specified in section 53, as he deems appropriate.

(3) A Police Officer—

(a) shall not grant bail to a person subject to a condition specified in paragraph 53(b), (c), (d), (e) or (i), unless he is of the opinion that the fulfilment of the condition is necessary to secure the following purposes, namely, the attendance of the person before the Court to answer the charge, the protection from physical injury of the person charged and of any other persons likely to suffer injury in connection with the charge or the prevention of the person charged from interfering with evidence, intimidating witnesses or hindering inquiries into the charge; and

(b) shall not grant bail to a person subject to conditions that include a condition specified in paragraph 53(b), (c), (d), (e) or (f) unless | he is of the opinion that fulfilment of any conditions that include only conditions specified in the paragraphs of that sub-section j that precede that paragraph would be unlikely to secure the I purposes referred to in paragraph (a) of this sub-section. j

(4) The Police Officer may, at the request of a person charged with an | offence, grant him bail subject to any conditions specified in paragraph 53 { (b), (c), (d), (e) or (f) that he thinks appropriate to secure the purposes j referred to in paragraph (3)(a) of this section notwithstanding the { provisions of paragraph (3)(b) of this section. j

(5) Where a Police Officer decides to grant bail to a person subject to ! conditions that include a condition specified in paragraph 53(b), (c), (d), j (e) or (1), otherwise than at the request of the person, he shall record his j reasons for deciding that fulfilment of any conditions that include only j conditions specified in the paragraphs of that sub-section that precede | that paragraph would not secure the purposes specified in paragraph (3)(a) of this section.

52. For the purpose of sub-section 51(1), the matters relevant to the granting of bail by a Police Officer to a person charged with an offence are—

(a) matters related to the probability of the person appearing in court in respect of the offence in granted bail, that is to say—

(i) the background and community ties of the person having regard to the nature of his residence, employment and family situation and to his police record, if known; and

(ii) the circumstances in which the offence was committed, the

Draft Legislation 199

nature and seriousness of the offence, the strength of the evidence against the person and other information relevant to the likelihood of his absconding;

(b) matters related to the interests of the person, that is to say—

(i) the period that the person may be obliged to spend in custody if bail is refused, and the conditions under which he would be held in custody;

(ii) the needs of the person to be free to prepare for his appearance before the court, to obtain legal advice and for other purposes; and

(iii) the need of the person for physical protection, whether the need arises because he is incapacitated by intoxication, injury or the use of drugs or arises from other causes; and

(c) matters related to the protection of the community, that is to say—the likelihood of the person interfering with evidence, intimidating witnesses or hindering police inquiries;

53. The conditions referred to in sub-section 51 (2) in relation to a person charged with an offence are—

(a) that he undertake, in writing, to appear before a specified court at a specified time and place, or at such other time and place as is notified to him by a Police Officer;

(b) that he undertake, in writing, to observe specified requirements as to his conduct while released on bail, not being requirements with respect to the giving of security, the depositing of money or the forfeiture of money;

(c) that another person acceptable to the Police Officer acknow­ ledge, in writing, that he is acquainted with the person charged and regards him as a responsible person who is likely to appear in court to answer the charge;

(d) that the person charged, or another person acceptable to the Police Officer, enter into an agreement, without security, to forfeit a specified sum if the person charged fails to appear in court to answer the charge;

(e) that the person charged, or another person acceptable to the Police Officer, enter into an agreement, and give security acceptable to the Police Officer, to forfeit a specified sum if the person fails to appear in court to answer the charge;

(f) that the person charged, or another person acceptable to the Police Officer, deposit with the Police Officer a specified sum to be forfeited if the person fails to appear in court to answer the charge.

Conditions of police bail.

200 j Criminal Investigation

Notification o f bail decision and right to review.

M agistrates may review police bail.

54. (1) A Police Officer shall, forthwith after deciding under section 51 whether to grant bail, or to refuse to grant bail, to a person charged with an offence, inform the person of his decision and also inform the person—

(a) that he is entitled to request a Police Officer, at any time before he is brought before a Magistrate in connection with the offence, to provide facilities for him to apply to a Magistrate for bail; and

(b) that he is entitled to communicate with, and have the assistance of, a lawyer in connection with such an application; and

(c) that he is entitled to be furnished, upon request to a Police Officer, with a copy of the reasons (if any) recorded in accordance with sub-section (6).

(2) A Police Officer shall, upon request by a person who is in lawful custody and has been granted or refused bail under sub-section (1), provide the person with reasonable facilities to communicate with'a lawyer in connection with the grant or refusal of bail.

(3) A Police Officer shall, upon request by a person who is in lawful custody and has been granted bail under sub-section (1), furnish to the person a copy of any reasons recorded in accordance with section 51 (5) in relation to the decision to grant him bail.

55. (1) Where a Police Officer refuses, under section 51, to grant bail to a person charged with an offence, or grants bail to such a person but the person is unable or unwilling to comply, or arrange for another person to comply, with any of the conditions (not being the condition specified in paragraph 53 (a )) subject to which bail was granted, the person shall be brought before a Magistrate or Justice to be dealt with according to law as soon as it is practicable to do so and not later than the first sitting of a court at a place to which it is practicable to take the person for that purpose.

(2) A person who is waiting in custody to be brought before a Magistrate or Justice in accordance with sub-section (1) may, at any time, request a Police Officer for facilities to make an application to a Magistrate for bail and, if he does so, the Police Officer shall, within one hour after he makes the request—

(a) bring him before a Magistrate or Justice in person; or

(b) arrange for him to make application for bail to a Magistrate by telephone.

(3) Where a person makes application for bail to a Magistrate by telephone, the Magistrate may, after affording the applicant or a lawyer acting on his behalf and the Police Officer concerned opportunities to make submissions to him, in his discretion, grant, or refuse to grant, the person bail.

Draft Legislation j 201

(4) In this section “Magistrate” does not include a Justice.

56. (1) Where a person is charged with 2 or more offences at the same time—

(a) a Police Officer considering whether to grant bail to the person shall decide, at the same time, whether to grant, or refuse to grant, bail to the person in respect of all the charges;

(b) an application may be made to a Magistrate for bail under sub­ section 55 (2) in respect of all the charges, but not otherwise; and

(c) any bail that is granted to the person shall be granted in respect of all the charges and separate undertakings shall not be required in respect of each charge.

(2) For the purposes of applying sections 51, 52, 53 and 55 in relation to a person who is charged with 2 or more offences at the same time—

(a) references in those sections to an offence shall be read as references to those offences;

(b) references in those sections to a charge shall be read as references to those charges; and

(c) the reference in sub-paragraph 52 (a)(ii) to the circumstances in which the offence was committed shall be read as a reference to the circumstances in which each of the offences was committed.

57. (1) Where bail is granted to a person subject to a condition that a sum be deposited with a Police Officer, the sum may be deposited in cash or, at the discretion of the Police Officer, by cheque.

(2) A person who has given a security to a Police Officer in relation to the release of a person on bail may, at any time, deposit with the Police Officer an amount equal to the sum that he is liable to forfeit if that person does not appear in court to answer the relevant charge and, if the first-

mentioned person does so, he is entitled to have the security returned to him.

58. (1) Where a prescribed Police Officer believes on reasonable grounds that a person who has been released on bail granted under section 51 —

(a) is absconding; or

(b) has failed to comply with, or is about to fail to comply with, an undertaking given by him as a condition of his release. the Police Officer may revoke the bail, and the person may then be arrested by a Police Officer.

(2) Where, under sub-section 57 (1), a sum has been deposited by cheque in relation to the release of a person on bail and the cheque is

Bail in respect of several offences.

Deposit of money and security for bail. '

Revocation of bail.

202 j Criminal Investigation

Breaches of conditions of bail.

Interpretation

Search and Seizure.

dishonoured by non-payment, a prescribed Police Officer may revoke the bail, and the person may then be arrested by a Police Officer.

(3) In this section, “prescribed Police Officer” means a Police Officer who—

(a) is a member of the Australia Police; and

(b) holds the rank of sergeant or a higher rank or is in charge of a Police Station.

59. (1) Subject to sub-sections (2) and (3), where the person who has been released on bail granted by a Police Officer wilfully and unreasonably fails to comply with an undertaking given by him as a condition of his release, the person commits an offence punishable, upon conviction, by a penalty not exceeding the maximum penalty that could

be imposed on him upon conviction for the offence in respect of which he was released on bail.

(2) Where a person who has been released on bail granted by a Police Officer in respect of 2 or more offences wilfully and unreasonably fails to comply with an undertaking given by him as a condition of his release, j sub-section (1) applies as if the reference to the offence in respect of which j he was released on bail was a reference to the offence in relation to which he failed to comply with the undertaking or if he failed to comply with the j undertaking in relation to 2 or more offences, to the more or most serious j of those offences.

(3) A court shall not impose on a person who is convicted of an offence j under sub-section (1) a fine in excess of $1,000 or a period of ! imprisonment in excess of 6 months. 1

P a r t V—S e a r c h a n d s e i z u r e

60. For the purposes of this Part—

(a) anything with respect to which an offence has been, or is suspected on reasonable grounds to have been, committed;

(b) anything as to which there are reasonable grounds for believing that it will afford evidence of the commission of any such offence; and

(c) anything as to which there are reasonable grounds for believing that it is intended to be used for the purpose of committing any such offence. shall be taken to be a thing connected with an offence.

61. (1) A Police Officer may search the person of, the clothing that is being worn by or property in the immediate control of a person, and may seize anything relating to an offence that is found in the course of the

Draft Legislation 203

search if, and only if, the search and seizure is made by the Police Officer—

(a) in pursuance of a warrant issued under this Part;

(b) in accordance with section 45 upon taking the person into lawful custody in respect of an offence;

(c) upon stopping the person in accordance with sub-section 64 (2);

(d) upon obtaining the consent of the person to the search;

(e) in pursuance of an order made by a court; or

(t) under a provision of another law of Australia or of a Territory as modified by section 66.

(2) A Police Officer may enter upon land, or into premises, vessels or vehicles, and seize anything connected with an offence that is found on the land, or in the premises, vessels or vehicles if, and only if, the search and seizure is made by the Police Officer—

(a) in pursuance of a warrant issued under this Part;

(b) in pursuance of the power to stop and enter the vessel or vehicle conferred by sub-section 64 (3);

(c) in circumstances of seriousness and urgency referred to in sub­ section 64 (1);

(d) after obtaining the consent of the occupier of the land or premises or of the person in charge of the vessel or vehicle to the entry;

(e) in accordance with an order made by a court; or

(f) under a provision of another law of Australia or of a T erritory as modified by section 66.

62. (1) Where an information on oath is laid before a Magistrate alleging that there are reasonable grounds for believing that there are in any premises, vessel or vehicle, or upon any land, anything relating to an offence, the Magistrate may issue a search warrant authorizing a Police Officer named in the warrant, with such assistance as he thinks necessary, to enter into the premises, vessel or vehicle, or upon the land, if necessary by force, and to seize any such thing that he may find in the premises, vessel or vehicle or upon the land.

(2) A magistrate shall not issue a warrant under sub-section (1) in relation to an information unless—

(a) an affidavit has been furnished to him setting out the grounds on which the issue of the warrant is being sought;

(b) the informant (or some other person) has given to the

Sea rch warrants.

204 / Criminal Investigation

Search warrant may be issued by telephone.

Magistrate, either orally or by affidavit, such further infor­ mation (if any) as the Magistrate requires concerning the grounds on which the issue of the warrant is being sought; and

(c) the Magistrate is satisfied that there are reasonable grounds for issuing the warrant.

(3) Where a Magistrate issues a warrant under sub-section (1), he shall state on the affidavit furnished to him in accordance with sub-section (2) which of the grounds specified in that affidavit he has relied on to justify the issue of the warrant and particulars of any other grounds relied on by him to justify the issue of the warrant.

(4) There shall be stated in a warrant issued under this section the following particulars—

(a) the purpose for which the entry is authorized;

(b) whether entry is authorized to be made at any time of the day or night or during specified hours of the day or night;

(c) particulars of the nature of the things authorized to be seized; and

(d) the date, not being a date later than 7 days after the date of issue of the warrant, upon which the warrant ceases to have effect.

63.(1) Where it is impracticable for a Police Officer to make application to a Magistrate or a Justice for a search warrant in accordance with section 62, the Police Officer may make application for a search warrant to a Magistrate, by telephone, in accordance with this section.

(2) Before making application to a Magistrate by telephone under sub­ section (1), a Police Officer shall prepare an information of a kind referred to in sub-section 62 (1) and an affidavit setting out the grounds on which the issue of the warrant is being sought, but may, if it is necessary to do so, make the application before the information and the affidavit have been

sworn.

(3) Where a Magistrate is, upon application made under sub-section (1), satisfied—

(a) after having considered the terms of the information and affidavit prepared in accordance with sub-section (2); and

(b) after having had given to him such further information (if any) as he requires and the Police Officer is able to give concerning the grounds on which the issue of the warrant is being sought,

that there are reasonable grounds for issuing the warrant, the Magistrate shall issue such a search warrant as he would issue under section 62 if the application had been made to him in accordance with that section.

(4) Where a Magistrate issues a warrant under.sub-section (3)—

Draft Legislation / 205

(a) the Magistrate shall complete and sign the warrant;

(b) the Magistrate shall inform the Police Officer of the terms of the warrant signed by him, and record on the warrant his reasons for issuing the warrant; and

(c) the Police Officer shall complete a form of warrant in the terms furnished to him by the Magistrate and write on it the name of the Magistrate w7 ho issued the warrant and the date on which and the time at which it was issued.

(5) Where a Magistrate issues a warrant under sub-section (3), the Police Officer shall, not later than the day next following the date of expiry of the warrant, forward to the Magistrate who issued the warrant the form of warrant prepared by him and the information and affidavit duly sworn in connection with the issue of the warrant.

(6) Upon receipt of the documents referred to in sub-section (5), the Magistrate shall attach to them the warrant signed by him and deal with the documents in the manner in which he would have dealt with the information if the application for the warrant had been made to him in

accordance with section 62.

(7) A form of warrant duly completed by a Police Officer in accordance with sub-section (4) is, if it is in accordance with the terms of the warrant signed by the Magistrate, authority for any entry or seizure that it authorises.

(8) Where it is necessary for a court, in any proceeding, to be satisfied that an entry or seizure was authorised by a warrant issued by a Magistrate in accordance with this section,and the warrant signed by a Magistrate in accordance with this section authorising the entry or seizure

is not produced in evidence, the court shall assume, unless the contrary is proved, that the entry or seizure was not authorised by such a warrant.

(9) In this section, “ Magistrate” does not include a Justice.

64. ( 1) A Police Officer may—

(a) search a person suspected by him to be carrying anything connected with an offence; or

(b) enter upon any land, or into any premises, vessel or vehicle, on or in which he believes on reasonable grounds that any thing connected with an offence is situated,

and may seize any such thing that he finds in the course of that search, or upon the land or in the premises, vessel or vehicle as the case may be—

(c) if the Police Officer believes on reasonable grounds that it is necessary to do so in order to prevent the loss or destruction of anything connected with an offence: and

Searches in emerizeneies.

206 / Criminal Investigation

Consent to search.

Modification o f Acts and Ordinances conferring power to search and seize.

(d) the search or entry is made under circumstances of such seriousness and urgency as to require and justify immediate search or entry without the authority of an order of a court or of a warrant issued under this Part.

(2) A Police Officer who believes on reasonable grounds that a person is carrying an offensive weapon or anything connected with an offence (being a serious offence) may stop that person and seize any such weapon or thing that is found on the person.

(3) A Police Officer who believes on reasonable grounds that an offensive weapon, or anything connected with an offence (being a serious offence), is being carried in a vessel or vehicle, may stop and enter the vessel or vehicle and seize any such weapon or thing found in the vessel or vehicle. .

65. (1) Before obtaining the consent of a person for the purposes of section 61, a Police Officer shall inform the person that he may refuse to give his consent, and ask the person to sign an acknowledgement, in accordance with the prescribed form—

(a) of the fact that he has been informed that he may refuse to give his consent;

(b) of the fact that he has voluntarily given his consent; and

(c) of the date on which, and the time at which, he gave his consent.

(2) A search or entry by a Police Officer with the consent of a person is not lawful unless the person concerned volutarily consented to the search or entry as the case may be.

(3) Where it is necessary for a court, in any proceeding, to be satisfied of the matters referred to in paragraphy (l)(a) and (b) in relation to the alleged consent of a person for the purposes of this section and an acknowledgement, referred to in sub-section (2), signed by the person has not been produced in evidence, the Court shall assume, unless the contrary is proved, that the persomwas not informed that he might refuse

to give his consent.

66. Where a provision of another law of Australia, or of a law of a Territory, being a law in force immediately before the commencement of this Act, authorises a Police Officer—

(a) to search any person or property and seize anything; or

(b) to enter upon any land, or into any premises, vehicles or vessels, and seize anything,

and the purpose for which the Police Officer may so act is not express!y stated in the law, the law has effect, on and after the commencement of this Act, as if it authorised a Police Officer so to act only for the purposes of the law in which the provision is included.

Draft Legislation 2d7

P a r t V I — E n t r a p m e n t

67. A Police Officer shall not induce a person to commit, either alone or Entrapment, with the Police Officer or another person, an offence that, but for the inducement, he would not have committed on the occasion on which he committed the offence.

P a r t VII— P o l i c e R e c o r d s

68. (1) It is the dury of the Secretary to take, and to cause to be Accuracy and taken,such reasonable measures as are necessary to ensure the accuracy security of and security of the records of the Australia Police. records

(2) A Police Officer shall not, directly or indirectly, except in the performance of his duties as a Police Officer as provided by this Act or by the regulations-(a) make a copy of, or take an extract from, any of the records of the

Australia Police relating to offences; or

(b) communicate to another person any information acquired by him from any of those records or otherwise acquired by him in the performance of, and for purposes connected with the performance of, his duties as a Police Officer.

Penalty: $1,000 or imprisonment for 6 months.

(3) A person shall not, directly or indirectly, seek to obtain any information from a Police Officer, or cause a Police Officer to communicate any information, knowing that the communication of the information by the Police Officer to the person or to the other person

would contravene sub-section (2).

Penalty: $1,000 or imprisonment for 6 months.

(4) In this section “Police Officer” includes a person other than a Police Officer who has been a Police Officer or whose services are, or have been, made available to the Australia Police in connection with the perfor­ mance of its functions.

69. (1) A person may make application in accordance with this section for a certificate under sub-section (3).

(2) An application under sub-section (1)—

(a) subject to paragraph (b), shall be made by furnishing the application to a Police Officer at a police station or other office of the Australia Police and permitting the Police Officer to take the applicant’s fingerprints for identification purposes in connection with the application: or

Acccns to criminal hislnrx r c e o rd v

208 / Criminal Investigation

(b) if the applicant, by reason of his serving a term of imprisonment or for some other prescribed reason is unable to attend at a police station or other office of the Australia Police, shall be made in the prescribed manner.

(3) A person who makes application under sub-section (1) is entitled, upon payment of the prescribed fee, to have issued to him by the Secretary, within 14 days after the application is made, a certificate—

(a) setting out particulars of any prescribed information concerning the applicant that is contained in the records of the Australia Police; or

(b) stating that there is no prescribed information concerning him contained in the records of the Australia Police,

as the case may be.

(4) A person shall not make a copy of fingerprints taken for the purposes of an application under sub-section (1).

Penalty: $1,000 or imprisonment for 12 months.

(5) A certificate under sub-section (3)—

(a) subject to paragraph (b)—shall be issued to the applicant in person at the Police Station or other office at which the application was made to a Police Officer, and not otherwise, and shall be accompanied by the fingerprints that were taken in accordance with sub-section (2)(a); or

(b) if the application was made in accordance with sub-section (2)(b)—shall be issued to the applicant in the prescribed manner.

(6) In this section, “prescribed information”, in relation to a person, means information prescribed by the regulations for the purposes of this section, being information concerning any arrest of the person for an offence, any proceedings instituted against the person for offences, or any penalties imposed on the person for offences.

Person not to be required to produce certificate in connection with employment.

70. (1) An employer shall not require his employee to produce to any person, for a purpose connected with his employment, a certificate that has been issued to the employee under section 69 or to communicate to any person, for such a purpose, the contents of such a certificate.

(2) A person shall not require another person who has made application for any employment to produce to any person, for a purpose connected with the application, a certificate issued to the applicant under section 69, or to communicate to any person, for such a purpose, the contents of a certificate so issued.

Penalty: $1,000 or imprisonment for 6 months.

Draft Legislation 209

P a r t VIII— E x c l u s i o n o f E v i d e n c e

71. (1) Where, in proceedings in a court in respect of an offence, objection is taken to the admission of evidence on the ground that the evidence was obtained in contravention of, or in consequence of a contravention of, or in consequence of a failure to comply with a provision of this or any other Act, or any rule of the common law, in

relation to a person, the court shall not admit the evidence unless it is, on the balance of probabilities, satisfied that admission of the evidence would specifically and substantially benefit the public interest without

unduly prejudicing the rights and freedoms of any person.

(2) The matters that a court may have regard to in deciding whether, in proceedings in respect of an offence, it is satisfied as required by sub­ section (1), include—

(a) the seriousness of the offence in the course of the investigation of which the provision was contravened, or was not complied with, the urgency and difficulty of detecting the offender and the urgency or the need to preserve evidence of the fact;

(b) the nature and seriousness of the contravention or failure; and

(c) the extent to which the evidence that was obtained in contravention of, in consequence of the contravention of, or in consequence of the failure to comply with the provision might have been lawfully obtained.

(3) The burden of satisfying the court that evidence obtained in contravention of, in consequence of the contravention of, or in consequence of failure to comply with a provision of this Act should be admitted in proceedings lies on the party who seeks to have the evidence

admitted.

(4) This section is in addition to, and not in derogation of, any other law or rule under which a court may refuse to admit evidence in proceedings.

P a r t IX— R e g u l a t i o n s

72. The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which, by this Act, are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, making provision for, or with respect to, the manner in which conditions

referred to in section 53 may be complied with.

Exclusion of evidence illegally obtained.

Regulations.

Appendix C OTHER PROPOSED LEGISLATION

I CUSTOMS LEGISLATION

It is proposed that the Customs Act 1901-1974 be amended in the manner set out below. Where parallel amendments to other Acts conferring powers on customs officers are required those amendments are noted immediately beneath the Customs Act amendment which they parallel.

1. Sections 187 to 190 (empowering customs officers to board and search ships, boats and aircrafts and to secure goods) are to be amended by limiting to specific customs purposes the exercise of the powers conferred by section 187 and making explicit the relationship to section 187 of sections 188, 189 and 190 (Para. 207).

[Amendments parallel to the amendment to section 187 will be required to limit to specific purposes under their respective Acts the exercise of the broad powers of entry given by section 61 of the Distillation Act 1901-1973 and by sub-section 22(1) of the Spirits Act 1906-1973.]

2. Sections 196 and 197 (empowering the detention and search of persons, and the stopping and search of vessels or vehicles) are to be amended by excluding the exercise of these powers by police officers. Section 196 is to be further amended by making clear that the power of a customs officer to conduct a personal search does not enable him to conduct an intrusive body search, by restricting the operation of the section to ‘behind the customs barrier’ situations and by providing that only a justice may authorise a personal search in a case where the person to be searched does not give consent. A further provision enabling intrusive body searches to be carried out only by a medical practitioner, with the consent

of the person concerned or by order of a magistrate, is to be inserted (Para. 207).

3. Sections 198 to 201 (relating to Writs of Assistance and Customs Warrants [i.e. general warrants]) is to be repealed and replaced by provisions empowering customs officers to carry out a search and seizure if, and only if, the search and seizure— (a) is carried out for specified purposes under the Customs Act, in pursuance of a warrant

issued by a justice; (b) is incidental to the arrest of a person under the Customs Act; (c) is carried out in circumstances of such urgency as to justify immediate action without warrant, such as the need to prevent the loss or destruction of evidence; or

(d) is expressly permitted by another provision of the Customs Act (Paras 196-8, 206).

[Parallel provisions will be required to replace sections 88 and 89 of the Excise Act 1901­ 1974, section 65 of the Distillation Act 1901-1973 and section 24 of the Spirits Act 1906­ 1973. Section 64 of the Distillation Act will need a related amendment to make clear that the powers given to customs officers under that section are only to be exercised il authorised by a warrant.]

4. Section 210 (empowering the arrest of a person without warrant) is to be amended by the introduction of criteria similar to the criteria for arrest without warrant under the proposed police legislation and by excluding the exercise of the power by police officers (Para. 45).

Other Proposed Legislation ; 211

[Parallel amendments will be required with respect to the power of arrest without warrant given by section 100 of the Excise Act 1901-1974 and by sub-section 38(1) of the Migration Act 1958-1973.]

5. Section 212 (requiring that arrested persons be taken before a justice) is to be amended to make clearer the obligation upon customs officers to take a person before a justice forthwith after his arrest (cf. Para. 47). [A parallel amendment will be required in respect of section 102 of the Excise Act 1901 -

1974.]

6. Section 213 (relating to the power of a justice to admit an arrested person to bail) is to be amended to permit the imposition of non-monetary bail conditions (cf. Para. 183). [A parallel amendment will be required in respect of section 103 of the Excise Act 1901­ 1974.]

7. Section 214 (relating to the powers, including search powers, of customs officers with respect to importation documents) is to be repealed and replaced by a provision requiring relevant persons to retain importation documents for a period of five years and empowering customs officers to require the production of such documents. The provision

will permit a search only in pursuance of a warrant or in circumstances of such urgency as to justify immediate action without warrant (Para. 206).

II SUMMONS PROCEDURE

There should be enacted a law of general application relating to the procedure for serving summonses in respect of federal and Territorial offences (Para. 62). The main provisions of the law should be as follows:

1. The procedures are to apply to offences committed in the Australian Capital Territory and Northern Territory, and in any State under federal law.

2. Service by post is to be restricted to ‘prescribed offences'.

3. ‘Prescribed offences’ are to mean offences against the traffic or other laws of the Territories or Australia being offences for which a fine not exceeding $200, whether with or without any other penalty, may be imposed.

4. The method of service of summons is to be: (a) upon the person to whom it is directed by delivering a copy to him personally or by leaving it with some person, apparently over 16 years of age. for him at his last or most usual place of abode 14 days before the return date; or (b) by posting it not less than 28 days before the return date by prepaid letter post

addressed to the person to whom it is directed (section 63(2). N.S.W. Justices Act).

5. Proof of service is to be:

(a) by oath of the person who served it. or by affidavit or otherwise (section 63(3). N.S.W. Justices Act), (b) where the summons is posted, by affidavit or deposition stating the address to w hich it was so posted and the time and place of posting. In the absence of any proof to the

contrary, the summons is to be deemed to have been duly served on the person to whom it is directed at the time at w hich it w ould be delivered in the ordinary course of post (section 63(4), N.S.W. Justices Act). .

212 j Criminal Investigation

(c) Notwithstanding service of the summons in accordance with 4(b) the magistrate is to be empowered to order that a further summons in respect to the same offence be served in the manner provided in 4(a) and to be able to adjourn or further adjourn the hearing to enable that summons to be served in accordance with that order (section

63(5), N.S.W. Justices Act) (see also 8(b)).

6. The defendant should be entitled to plead by post (section 116D, A.C.T. Court of Petty Sessions Ordinance). A notice attached to or in the summons should advise: (a) that he is entitled to plead guilty or not guilty by returning the form provided by post so as to reach the Clerk of the Court at least three days before return date; (b) that he may submit a personal explanation on the form provided; (c) that if he fails to plead by post or appear in answer to the summons he may be

convicted ex parte: and (d) that the prosecutor will be entitled to inform the Court of any prior convictions recorded against him.

7. The procedure where a defendant does not appear in answer to summons should be as follows: (a) Where a plea of guilty is entered by post and the defendant does not appear at the hearing, or appears but does not withdraw his plea of guilty, the Court may accept the

plea and determine the proceedings accordingly. Where a personal explanation is submitted the Court should be entitled to have regard to the matters contained therein to the extent that seems proper (section 116E(2), A.C.T. Court of Petty

Sessions Ordinance). (b) Where a defendant pleads not guilty by post (the form provided having been returned to the Clerk of the Court three days before the return date of the summons) and does

not appear at the hearing, or appears but does not withdraw his plea of not guilty: (i) the Court shall fix a time and place for the hearing; (ii) except when the defendant is in Court when the date is fixed for hearing, the Clerk of the Court shall serve on the defendant by prepaid post notice of the time and

place fixed for the hearing; and (hi) if the defendant does not appear at that time and place, the Court may hear and determine the proceedings ex parte.

(c) Where: (i) a defendant does not plead by post; (ii) a summons for the appearance of the defendant to answer the information has been served on the complainant in manner provided by law for such service: and (iii) the defendant does not appear at the time and place fixed for the hearing of the

information, the Court before which the information comes may, if satisfied that the facts as alleged in or annexed to the summons constitute such an offence and that reasonably sufficient particulars thereof are set out in or annexed to the summons, thereon convict and impose on the defendant a penalty to be paid within such time as the Court specified (section 75B, N.S.W. Justices Act).

(d) In dealing with such a matter under (b) (iii) or (c) the Court may take into account:

(i) any report made to it by or on behalf of the informant with respect to any previous convictions of the defendant for any similar or like offences; and (ii) the circumstances of the offence and any information that the defendant causes to be brought to the notice of the Court (section 75B (4), N.S.W. Justices Act).

Other Proposed Legislation 213

8. (a) Where a defendant fails to appear in obedience to a summons and is convicted (whether upon a plea of guilty by post or an ex parte hearing) the Court shall not impose upon the defendant: (i) any disqualification, cancellation or suspension from holding or obtaining a

licence to drive a motor vehicle; or (ii) any sentence of imprisonment (except a sentence that is conditioned upon default being made in the payment of a fine), unless the court has first adjourned the hearing of the information to a time and place appointed and stated by the Court

in order to enable the defendant to appear for the purpose of making submissions on the question of penalty (section 62C (1), Justices Act, S.A.). (b) A summons should be served on the defendant advising him of the time and place appointed and this summons should be served in accordance with 4(a).

9. Where a defendant is, in his absence, convicted of the offence to which the summons was issued, the Clerk of the Court shall serve by prepaid post a notice in writing advising of: (a) the conviction and order of the Court; and (b) except where plea of guilty entered by post, details of the law relating to the setting

aside of convictions or orders made ex parte (section 1161, Court of Petty Sessions Ordinance, A.C.T.).

10. Where the defendant has not paid the fine within the time allowed and/or made application for the conviction or order to be set aside and the Clerk has forwarded a notice in accordance with 9, the Clerk may issue a warrant for non-payment to enforce the penalty imposed.

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Official publications

chief justice’s law reform committee (victoria). Abolition o f the Distinction between Felonies and Misdemeanours.

Govt Printer, M elbourne, 1973. chief justice’s law reform committee (victoria). Powers o f Police A fter Arrest. Govt Printer, Melbourne, 1972. criminal law and penal methods reform committee of south Australia. Second Report: Criminal Investigation. Govt Printer, Adelaide, 1974. criminal law reform committee (n .z .) Report on the Question o f Whether an Accused Person under Arrest should be

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Arrest)Pre-Trial Detention. Queen's Printer, Winnipeg, 1974. morison, w. l. Report on the Law o f Privacy. N.S.W. Govt Printer, Sydney, 1973.

Report of the Committee on Privacy (U.K.) (Younger Committee). Cmnd. 5012, H.M .S.O., 1972. Report of the Privy Counsellors Appointed to Enquire into the Interception of Communications (U.K.). Cmnd. 283, H.M.S.O. 1957. Report of the Royal Commission on Police Powers and Procedures (U.K.) Cmd. 3297, H.M.S.O., 1929. statute law revision committee (victoria). Arrest Without Warrant and Related Matters. Govt Printer, Melbourne.

1968.

statute law revision committee (victoria). Law and Practice in Relation to the Granting and Respital o f Bail. Govt

Printer, Melbourne, 1970. statute law' revision committee (victoria). Bail Procedures. Govt Printer, Melbourne, 1975.

U.s. dept of health, education and welfare. Report o f the Secretary's Advisory Committee on Automated Personal Data Systems, Records, Computers and Rights o f Citizens. U.S. Govt Printer Office, 1973. u.s. senate, committee on the judiciary, Subcommittee on Criminal Laws and Procedures. ‘Hearings into Controlling Crime Through More Effective Law Enforcement’. 90th Congress, 1st Session, 1967 (Superintendent of

Documents Classification Y4.J89/2:C86/6).

Unpublished material

Armstrong, s. Summons and Release. W orking Papers prepared for Law Reform Commission, 1975. aronson, m. Powers of Arrest. Research Paper prepared for Law Reform Commission, 1975.

Australian capital territory police. General Orders. Cameron, a. Identification Procedures. Research Paper Prepared for Law Reform Commission. 1975. carmody, a.t.. National Law Enforcement Authority. Report to Attorney-General from Comptroller-General of Customs. Submitted April 1974. Tabled in Australian Parliament 20 February 1975. carney, t. and epstein, j. Custodial Investigation. Research Paper prepared for Law Reform Commission, 1975.

chisholm, r. Juvenile Interrogation. W orking Notes prepared for Law Reform Commission. 1975. collett, A. c. ‘Aborigines and the Law’. Report to the Law and Poverty Section of the Australian Commission of

Inquiry into Poverty, 1975. committee of inquiry into protection of privacy (Wlialan Committee). Second Interim Report to Attorney-General

of Australia (Medical and Hospital Data), December 1973.

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Harding, R. w. Force in Arrest. Research Paper prepared for Law Reform Commission, 1975. Harding, R. w. Changing Patterns of the Use of Lethal Force by Police in Australia. Paper delivered to ANZAAS Congress, 1975. heydon, l . d. The Exclusionary Rule and the Admissibility o f Confessions. Research Paper prepared for the Law

Reform Commission, 1975. heydon, j . d. Police Powers and the Trial of the Accused: Some M odern Attitudes. A.N.U. History of Ideas Seminar paper, 1975. Howard, c. Search & Seizure and the Right to Silence. W orking papers prepared for Law Reform Commission, 1975.

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and Related Matters. D ept of Y outh, Ethnic and Community Affairs, Sydney, 1975. nash, w. a. (National Council for Civil Liberties) and irving, b. l. (Tavistock Institute o f Hum an Relations).

M em orandum of Evidence to the Devlin Committee on Identification Parades and Procedures. London, 1974. national council for civil LIBERTIES (u .k.). Identification Parades and Procedures. Submission to Devlin Committee on Identification Parades and Procedures, London, 1974. Report of the Committee on Com puterisation of Criminal D ata (Ward Committee). Submitted to Attorney-General,

August 1973. Tabled in Australian Parliam ent 15 April 1975. .

starke, J. G. Police Bail. Research Paper prepared for Law Reform Commission, 1975.

transcript. Submissions made and Evidence given to the Law Reform Commission at Public Sittings, 9-23 July 1975.

victoria police Chief Commissioner’s Standing Orders.

Index

Aboriginal Affairs, D epartm ent of, 256 Aboriginal Legal Services, 110-11, 253, 256-7, 372 Aboriginals, 55, 68, 81, 86, 97, 100, 142, 246, 247, 248-58. 265, 270, 277-9, 285, 371-4

definition of, 246 fear of authority, 251 language problem, 250 notification o f Legal Services, 256-7 police training and, 258 right to prisoner’s friend, 253-5, 371. susceptibility to suggestion, 252 travel problems and, 277-9 Aboriginal Settlements, courts needed at, 285, 381 Acquittal Rates, right to silence and, 149 A.C.T., 3, 33, 111, 138, 139, 171, 176, 191, 195, 202, 204 A.C.T. Police, 7, 13, 15, 88

arrest powers, 22, 25 arrest rate, 24, 111 bail rate, 171 General Orders, 117 Adelaide River, 268

Agents Provocateurs, see Entrapment Aircraft, and N.T. Police, 279-82 Alice Springs, 191, 202, 250, 268, 273, 283 Alexander, P., 149 Allen, J. M., 28 Amsterdam, A. G., 199 Angel, A. R., 41 Anthony Lagoon, 268 Ares, C., 179 Armstrong, S., 179, 180 Arrest

as basis for investigations, 7-10, 71 By W arrant, q.v. Entry Pursuant to, q.v.

Force in, q.v. indignity in, 53 Interstate Offenders, of, q.v. notification of grounds of, 61, 321 Personal Search incident to, q.v. power, of customs officers, 22, 45, 315 power, of other federal officers, 17 power, of private citizens, 21, 47. 314 rates of, 24, 111 records, see Criminal History Records W ithout W arrant, q.v. Arrestable Offences, 30-4, 311 Arrest-analogous Situations, 83, 84 Arrest by W arrant

present law and practice, 25 protection for police officers. 27 recommended procedures, 26, 310 Arrest Without W arrant

present law and practice, 22-5 problems, 28-9

proposed criteria, 38-44 see also Arrestable Offences ‘Assisting with Inquiries’, see ‘Voluntary Co-operation' Attendance Notices, 77, 98 Attorney-General’s Department, 217, 245 Australian Legal Aid Office (A.L.A.O.), 110-11

‘Australian Privacy Commission’, 245 Australian Security Intelligence Organisation (A.S.I.O.) use of listening devices, 212, 216 access to crime records, 235 Australia Police

and State law, 15 and State police officers, 19 organisation of, 1,13, 268 single legislative code for, 14, 51, 196, 303 Avery, D., 171 Avon Downs, 268

Bail advantages of release on, 28 court bail (magistrates, justices and judges), 96, 165-6, 173, 175-6, 351 M anhattan points system, 179, 354 migrants and, 260 Police Bail, q.v. simplification of terminology, 174 Baker, M. A., 233, 238 Barrett, E. L. Jnr, 92 Batchelor, 268

Bathurst Island (Garden Point), 268, 272, 286 Beck Case, 118 ‘Behind the Barrier’ Searches, 18, 207, 364 Bcntham, J., 147 Billington, J., 195 Birtles, W., 118 Black, D. J., 149 Blackburn, M r Justice R. A., 191

Blood tests, 132 samples, 134 Borick, K. V., 134 Border Searches, 18, 207, 364 Borroloola, 268 Brennan, F. G., 6, 10, 15, 72-8, 86. 93, 321 Buckley, B., 113, 246, 260. 261, 264

Campbell, E„ 58, 160, 166, 189 Carmody Report, 230, 235 Carney, T., 92 Cavanagh, W., 246, 265 Central Australian Aboriginal Legal Aid Service, 55 Canada. 28, 54, 173. 222, 291. 294 Canberra, telephone links w ith, 176. 202 Chief Justice's Law Reform Committee (Victoria), 31. 59.

83. 101, 112, 113. 115, 116. 120, 121. 130-2

The reference is in paragraphs ill the report.

Index / 219

Children, 68, 86. 97, 142, 246, 247, 270 'children's offences*, 36, 68 notification of parents, 267, 377 problems of, 265 questioning of, 266-7 right to ‘prisoner’s friend’, 266-7, 377 Citation Release, 63, 98 Citizen’s Arrest, 21, 47, 314 Civil Actions, against police, 11,90,94,287,294,299,300,

384

Clothes, change of, for persons in custody, 135 Cobden Trust Report, 166, 169, 172 Cohn, S. A., 233 Collett, A. C., 246 Committee on Com puterisation of Criminal Data, see

W ard Committee Commonwealth Places, 16 Commonwealth Police, 3, 5, 13, 16, 88 arrest powers, 22, 25

arrest rate, 24, 111 bail rate, 171 General Orders, 23, 39, 88, 117, 139 Complaints Against Police (ALRC 1), 1, 11, 242. 300,

301, 302, 385 Compulsive Powers, criteria for exercise of, 8, 64, 323 Confessional Evidence admissibility of, 69, 138-9, 164, 347

see also Discretion Rule; Exclusionary Rule; Voluntariness Rule incentives to employ safeguards, 163-4, 347 safeguards to ensure reliability, 154-62, 345 weight of, 69, 164, 347 Confessions

corroboration by third party witness, 160 reading over, 162, 218 reduction to writing, 161 Tape Recording of, q.v.

verification by third party, 162 see also Confessional Evidence Confrontation Arrests, see Force in Arrest Corporations and Securities Industry Bill, 206 Counsel, see Lawyer Crime Records

A.S.I.O. access to, 235 Criminal History Records, q.v. dissemination of information in, 235-9 nature of, 230 offence to divulge contents, 299, 369, 383 privacy problems, 231-4 proposed task force, 244-5, 367 security of, 235-9 Criminal History Records, 230, 234

access to, 242, 370 correction of errors in, 241 defined. 241 disclosure of, 71

employers not to require certificate, 243, 370 expunging of, 243 Criminal Intelligence Data, see Crime Records; Criminal History Records Criminal Law Revision Committee IU.K.). 118. 119. 123.

137. 146, 148, 149, 152. 153. 174. 288

Criminal Sanctions, for breach of procedure rules, 11, 287. 299, 383 Cross, R., 147, 149 Custodial Investigation, 9, 30

calculation of period, 89, 97 effect of time limit on 'voluntary co-operation', 65 extensions to period, 89, 95 obligation to take before magistrate on expiry of lawful

p e rio d ,96 present law and practice, 87-88 proposed four-hour time limit, 89-98, 328-9 Custody, meaning of, 83 Customs and Excise, D epartm ent of, 13, 18 Customs Officers

application of recommendations to, 18, 304 arrest powers, 22, 25, 45. 315 search powers, 18, 191-2, 194, 196, 206-8, 364 Customs W arrant, 192

Daly River, 268 Daly Waters, 268 Darvall, A., 212 Darwin, 191, 202. 268, 273, 277, 283 De Facto Custody, 83, 85, 101 Denning, Lord, 41, 87, 193 Dershowitz, A. M., 41 Detention for Questioning, 7-8, 76, 81 Devlin Committee. 118. 126 Discipline Code. 11, 90, 100, 210. 229, 263, 287. 294.

299, 301-2, 366, 385 Discretionary Exclusionary Rule, see Exclusionary Rule Discretion Rule. 132. 136 defined, 139

weaknesses, 143, 210. 287-91, 296 Discrimination, avoidance of, in application oflaw . 99. 107. 1 (0, 183, 185

benign, problems of. 247 Downing, Rex1 . J.. 250. 251. 253 Doyle. M. W.. 105

Eamcs, G.. 55. 252 Eggleston. E. M.. 246. 248 Electronic Surveillance, see Listening Devices Eleventh Report, sec Criminal Law Revision Committee Elurod. S. J.. 149 Elliott. 268. 272 Emmerson. D.. 212

Enderby. K. E.. 1 Entrapment. 188. 227-9. 288. 366 Entry, pursuant to arrest. 60. 320-1 Epstein. .1.. 92 Equality, m application oflaw . 99. 107. 110. 183. 185 Evans. G. J.. 32. 247 Evidence

arrest to prevent loss or destruction of. 41 personal searches for. 58-9 see alsu Confessional Evidence; Discretion Rule; Exclusionary Rule; Voluntariness Rule Excessive Defence. 49. 50. 52 Excise Officers, see Customs Officers Exclusionary Rule. Π .66. 69.70.72.75.90. 100. 102. 140.

The reference is to paragraphs in the report

220 / Criminal Investigation

143, 153, 154, 164, 210, 229, 263, 287, 288-98, 299, 302, 347, 366, 382 recommended rule, 298, 382 Scottish-Irish rule, stated, 293

United States rule, 292, 295, 297

F.B.I., 230, 233 Felonies, as arrestable offences, 31, 47 see also ‘Fleeing Felon’ Rule Fines, and arrestable offences, 33 Fingerprints, 82, 86, 108, 132, 134, 231, 270

taking of, 112-15, 335 destruction of, 116-17, 336 for access to records, 242 Finke, 268, 284, 286 Firearms, 54, 55-7, 249, 318 ‘Fleeing Felon’ Rule, 49, 54, 317 ‘Follow-up’ Investigations, 98 Food and Drink, for persons in custody, 135 Footprints, see Fingerprints Force in Arrest, 48-54, 316-17 confrontation arrests, 48, 50, 52 ‘fleeing felon’ rule 49, 50 fugitive arrests, 48, 49, 50, 54 Forensic Analysis, body samples for, 134, 342 Four-H our Limit, see Custodial Investigation Freed, D., 28 Friedland, M. L„ 28 Friends, communication with, see Relatives and Friends ‘Frisk’ Searches, see Personal Search Fugitive Arrests, see Force in Arrest; Interstate Offenders

Garden Point (Bathurst Is.), 268, 272, 286 Gardiner, Lord, 243 General W arrants, see Search W arrants George, B. J., Jr, 149 Glasbeek, H. J., 140 Gobbo, J. A., 139 G oddard, Lord, 290 Gove (Nhulunbuy), 100, 268, 283, 284 Greenawalt, W., 221 Greenwood, C., 57 Greenwood, I., 217 Groote Eylandt, 268, 272

Haggerty, D. E., 246 Hammelman, H. A., 121 Handwriting Samples, see Fingerprints Harding, R. W „ 49, 54, 57 H arts Range, 268, 272 Harris, B., 243 Heydon, J. D., 99, 146, 148. 229, 294 ‘Holding’ Charges, 36, 42, 68 Holdsworth, Sir W., 189 Hooker Creek, 268, 272, 277, 286 Home Office W orking Party (U.K..), 166, 169

Identification by Identification Parades, q.v. by Identity-Kit Pictures, q.v. by Photograph, q.v. o f police officers, 102, 327

judicial warning as to dangers of, 119, 340 see also Name and Address, furnishing of Identification Parades, 82, 86, 98, 100, 108, 116-25, 336 compulsion and, 125

fairness in conduct of, 120 lawyer’s presence at, 124 photograph required, 121 prior description by witness, 123 record o f conduct, 123 Identity-Kit Pictures, 129, 339 Imprisonment

as arrestable offence criterion, 33 as ‘serious’ offence criterion, 35-7 Inbau, F., 149 Indictable Offences, 35

as arrestable offences, 32 Inducement Rule, see Voluntariness Rule Inform ation, as to rights etc., see Notification Institute for Aboriginal Development, 250, 258 International Commission of Jurists, 100 International Covenant on Civil and Political Rights, 134 Interpol, 230, 235 Interpreters, 262-4, 375

see also Language; Non English-Speakers; Prisoner’s Friends Interrogation, see Questioning Interstate Offenders, 35-7, 313 Interview, records of, 160-2 Irving, B. L., 126 Italy, 113, 260

Jakuvowicz, A., 113, 246, 260, 261, 264 Joint Services Division, 18 Judges’ Rules, 69, 139-40, 229 Justices of the Peace

in N orthern Territory, 284 in States, 19, 307

Katherine, 191, 269, 277, 283, 284 Kay, H., 246 King, M., see Cobden Trust Report Kitch, E. W„ 213 Kulgpra, 268, 284, 286

Lacco Case, 54 Lake Eildon, 208 Lake Nash, 268 Language

Aboriginal difficulties, 250 notification o f right in, 100 simplification desirable. 174 see also Non-English-Speakers Larrimah, 268 Lawful Custody, meaning of, 83 Law Institute of Victoria, 106 Lawrie, D., 55 Law Societies, 3. 110-11, 332 Lawyer, right to, 9, 71, 86, 89, 100, 105-11, 124, 140, 172.

332-4 and right to silence, 107 feasibility of provision, 111 in remote areas, 109, 269-70

Index j 221

justification for, 107-8 lists of willing practitioners, 110, 332 present law and practice, 105-6, 140 role during questioning, 109 Lazarus, J., 90 Leigh, L. H., 48 Leiken, L. S., 99, 149 Lester, J,, 250 Lew, J. D. M., 149 Line-ups, see Identification Parades Listening Devices, 9, 188, 288, 292, 365

A.S.I.O. use of, 212, 216 ■constitutional powers relating to, 223 nature of, 211

police use of, 214, 217, 218 present law, 212-15 present practice, 216-18

recommended provisions, 223-5 use with consent of a party—issues, 221 use without consent of any party—issues, 219-20 Location of Suspect, notification of friends and relatives

as to, 104

McCann, D. A., 55, 286 M cKinna Report, 56, 273 M cLaren, Cm r W. J., 55, 191 Magistrates

in States, 19, 176, 307 more needed in N.T., 286, 381 proposed telephone duty roster, 176, 202 M anhattan Bail Project, points system, 179, 354 Maningrida, 268, 272, 283, 286 M aranboy, 268 M ark, Sir R. 149 M ataranka, 268 Medalie, R. J., 149 Medical Exam inations, 59, 86, 98, 108, 130-3, 207, 270. 288, 341 Medical Records, destruction of, 132 Medical Treatm ent, of persons in custody, 135 Mentally Retarded, 246 Menzies, R. G., 217 Migrants, see Non-English Speakers M igration Officers, 13 Milte, K. L„ 28, 179 M inority Positions, see Brennan, F. G. Miranda Rules, effect of, 149 Misdemeanours

and arrestable offences, 31, 47 and force in arrest, 49 Modus Operandi Records, 67 Morison Report, 245 M uir Report, 246 j Mullett, J„ 182

ί Murphy, M r Justice (formerly Senator) L. K., 154. 216 M urray, B. L., 218

Nam e and Address, furnishing of, 64, 79-81, 249. 322 by police, 80 to police, 79 see also Identification Narcotics Bureau, 13, 195

Nash, W., 126 National Council for Civil Liberties (U.K.), 118 National Crime Inform ation Centre (N.C.I.C.), 230,233 National Security, and listening devices, 212-13, 216, 219,

223

Nettheim, G,, 246, 248, 250 New South Wales Privacy Committee, 245 New Zealand (arrestable offences), 33 Nhulunbuy (Gove), 100, 268, 283, 284 Night, arrests at, 60, 320 Non-arrestable Offences, proclaimed 34

N on English-Speakers, 86, 142, 246, 247, 265 advising grounds of arrest, 61 notification o f rights, 100, 175, 326 problems of, 172, 259-61

questioning of, 262-4, 375 right to interpreter, 262-4, 375 N orth Australian Aboriginal Legal Aid Service, 277 Northern Territory, 3, 33, 55-7,81,96, 100, 139, 176, 190,

191, 195, 202, 204 Aboriginals in, 248-58 special problems of, 268-86 Northern Territory Police, 7, 13, 88

arrest powers, 22, 25 arrest rate, 24, 111 bail rate, 171 use of firearms by, 55-7 Notification

of fact of custody, 100-1 of grounds of arrest, 61, 321 of rights when in custody, 86, 99-102, 326 o f right to silence, 142 o f rights in respect of "voluntary co-operation", 66, 324

of whereabouts of suspect, 104, 331

Offences against the Person or Property, 68, 255 Office of Parliamentary Counsel. 3 Ombudsman, 11, 241, 242, 301, 370 ‘On the Spot’ Summonses. 38 Organised Crime, listening devices and. 219. 222

Owens, Chief Insp. N. J.. 88. 252

Palm-prints, see Fingerprints Papunya, 268. 284. 286 Parker. Lord. 137 Personal Search.

and medical examination. 133 incident to arrest. 58-9. 193. 198. 319 Photographs identification by. 126-9. 338

o f identification parade. 121-2 taking, destruction of. see Fingerprints Pine Creek, 268 Police and Customs. Department of. 5. 18. 45. 230. 239.

240. 245. 274. 369 Police Bail. 9. 86. 249 appeal from refusal of. 175-6. 356

"bail bargaining". 172 breach of conditions, to be criminal offence. 175. 177. 357 conditions of. 175. 183-7. 355 criteria for. 175. 178-82. 3 54

The reference is ίο paragraphs in the report.

222 j Criminal Investigation

distinguished from court bail, 173 duration of, 175, 271, 358 fingerprints for, 114 interests o f accused, as criterion for, 181

lawyer’s role in, 108 magistrate or justice, obligation to take before after refusal of, 96 magistrate or justice, review by, 175-6, 356 multiple offences, for, 175, 358

notification of right to, 100, 175, 352 payment by cheque, 187, 358 present law, 166-9 present practice, 170-1 probability of appearance, as criterion for, 179 problems relating to, 166, 172 procedure—outlined, 175 protection of community, as criterion for, 182 revocation of, 175 '

substitution of cash for security, 187, 358 when to be granted, 165, 175, 353 who may grant, 19, 175, 353 Police Discipline Code, see Discipline Code Police, recruitment and training of, 12, 57, 258, 318, 375 Poverty Inquiry, 260, 261, 264

see also Jakuvowicz, A. and Buckley, B. Prentice, D. D., 140 Presumption of Innocence, and right to silence, 150 Preventive Detention, 41, 182, 354 Protective Custody, 43

‘Prisoner’s Friends’, 68, 89, 97, 270, 371, 373, 377 for Aboriginals, 253-5 for children, 266-7 Privacy

crime records generally, 230-4, 244-5 fingerprint etc. records, 116 listening devices, 219-22 Private Citizens arrest power, 21, 47, 314 Privy Counsellors’ Report on Interception of Communications, 219 Public Order arrests to preserve, 41 offences, 36, 37, 68, 255 Public Sittings, 3, 4, 88, 90, 92, 141, 155, 171, 250, 252, 258, 295, 302

Questioning after charge and release, 98 detention for, 7, 8, 76, 81 evidence derived from, see Confessional Evidence in lawful custody, subject to time limit, 89-97 minority views, 3, 10, 72-8 notification or rights in relation to. 86, 100 of Aboriginals, 68, 250-3, 371 of children, 68, 266, 376 of non English-speakers, 262. 375 o f witnesses. 67 pre-arrest 'voluntary co-operation’, 64, 71

Radio, use in Northern Territory, 272-5 Rankin. A.. 179 Read, F. T., 121, 124

Recording o f Interviews by Mechanical Means, tee Tape Recording Records of Interview, 160-2 see also Confessional Evidence; ‘Verballing’ Rehabilitation of Offenders, 243

Reid, Lord, 151 Reiss, A. J., Jr, 149 Relatives and Friends, communication with, 86, 89, 100, 103, 104, 270, 330 Release

after charge, see Bail, Police Bail time limits for, 89, 94, 329 when arrest criteria fail, 44, 165, 350 w ithout charge, 44, 71, 165, 349 Remedies, for breach of rules, 287-302

see also Civil Actions; Criminal Sanctions; Discipline Code; Exclusionary Rule Remote Areas, special problems, 86, 96, 109,249, 268-86, 379

court sittings, 283-6 oral communications, 272-5 physical communications, 276-82

see also N orthern Territory Repetition of arrests, 96 of offences, arrests to avert, 41 Report

general principles underlying, 6-12 interim character, 2-3 method of preparation, 4-5 Restraint, meaning of, 83 Reverse-Onus Discretionary Exclusionary Rule, see Exclusionary Rule Rights, of persons under restraint notification of, 99-102, 326 summarised, 86 Right to Silence and right to lawyer, 107 arguments for and against, 146-50 in United Kingdom, 149 in United States, 105, 149 Judges’ Rules and, 139-40 nature of, 137 notification of when under restraint, 100, 142 notification of when in ‘voluntary co-operation’, 66 retention recommended, 9, 142. 150 Road Travel, in Northern Territory, 276-9 Robinson, C. D., 149 ‘Rogues' Gallery'. 116, 128 Roper Bar. 268. 277, 286 Rutherford. VI.. 141

Schwartz, H.. 216 Schwartz, L. B.. 221 Scottish-Irish Exclusionary Rule, 290, 293, 294. 298 Search and Seizure

customs officers, by, 18, 192, 194. 206-8 other federal officers, by. 17, 209 Personal Search incident to arrest, q.v. regulatory searches, 194.209 remedies for unlawful, 210, 288. 292 Search W arrants, q.v.

The reference is to paragraphs in the report.

Index j 223

Searches W ithout W arrant, q.v. United States, in, 199 Search W arrants, 197, 198, 225, 270 General warrants, 18, 189, 191-2, 196, 206, 359, 364

present law and practice, 189-92 procedure proposed, 200, 360 reasons to be required, 200 telephone warrants, 201-2, 361 Searches w ithout W arrant

by consent, 195, 197, 205 in emergencies, 197, 198, 203, 363 present law and practice, 193 recommended powers, 197-8, 362

stop and search, 64, 194, 198, 204 Seeburger, R. H., 149 Self-incrimination

and right to silence, 137 by forensic samples, 134 ‘Serious- Offences, 33, 35-7, 60, 66, 67. 68. 70, 204, 224, 255, 313, 320, 324, 363, 371, 376 Shower or W ash, for persons in custody, 135 Silence, right to, see Right to Silence Site Visits, 97

Slater Case, 119 Sobel, N. R., 149 Souris, T., 149 South Australian Committee (Criminal Law and Penal

M ethods Reform Committee), 8, 12, 54, 81, 83, 91, 93. 116, 121, 123-4, 128, 146, 191, 214, 264 South Australian Law Reform Committee, 243 South Australian Police, arrest rate, 24 Special Constables, 15 Statements, to police, 161

see also Confessional Evidence State Law, enforcement by Australia Police, 15-6 State M agistrates and Justices

co-operation in roster system sought, 176, 202 to apply federal law, 19, 176, 307 State Police, application of recommendations to, 19-20, 46, 306 Statute Law Revision Committee (Vic.), 32, 34, 39, 166,

169, 177 Stop, Search and Detain Power, 64, 194, 198, 204 Sturgess, D. G., 141 Sturz, H„ 179

Summary Offences, and arrestable offences, 32 Summons frequency of use, 24 'on the spot’ systems, 63

preferred to arrest, 9, 28-9, 62, 81, 114, 308 relationship to arrest power, 38-44 service by post, 63, 309 single code recommended, 62, 309 Surveillance, see Listening Devices

Tape Recording, 69, 345, 346 custody of tapes, 158 destruction of tapes, 159 ‘drying up’ problem. 156

interference with tapes, avoidance of, 158 of interviews and statements, 156-9 of telephone conversations present law, 21 2

prejudicial material on tapes, 157 Victorian read-over practice, 218 Taylor, Insp., 55, 188 Telephone, 378

applications for search warrants by, 201-2 authorisation o f fingerprinting by, 115 authorisation of medical examinations by, 131

bail appeals by, 176 communication with lawyer by, 106 communication with relative or friend by, 103

interstate applications by, 176 N.T. police facilities, 272-5 relevance for remote areas summarised, 270 Telephone Tapping, see Listening Devices Telex, and N.T. Police, 272-5 Tennant Creek, 191, 268, 283, 284 Terms of Reference, 1, 13, 141. 173, 211, 228, 234, 249,

351

Third Party corroboration of confessions, 160 verification of confessions, 162 Thomas, D. A., 34 Tiffin, P., 252 Ti Tree, 268, 272 Timber Creek, 268, 272 Toe-prints, see Fingerprints Toilet Facilities, 135

Torres Strait Islanders, see Aboriginals Traffic Offences, 36, 68, 255 Treatm ent of Persons in Custody, 343 I remethick, R. M., 106, 295 Tribal Law, 249 Turner, J. W.. 48

United States. 28. 33. 63. 91. 92. 98. 105. 173, 183, 199, 205, 216, 222. 227-8, 231. 254, 265, 290. 292, 294, 295. 297, 298 effect of constitutional rights on law and order in. 149

Vera Foundation, 179 'Verballing'. 141, 155 ‘Victimless’ Crimes, 34, 220 Victorian Chief Justice's Committee, see Chief Justice's

Law Reform Committee Victorian Statute Law Revision Committee, see Statute Law Revision Committee Victoria Police Chief Commissioner’s Standing Orders.

101. 117. 139. 214. 265. 267 Video-tape, of Identification Parades. 122 Violence, confessions induced by. 141. 153 Voice-prints, .see Fingerprints

Voluntariness Rule. 144. 287. 348 arguments for modification. 151-3 defined. 138 recommended formulation. 153 'Voluntary Co-operation’. 7. 8. 9. 64-71. 81. 85. 92. 93.

140. 324 minority views on aeknossledgment requirement. /2-8

Wald. .1. 28 Walsh. K.. 182 .

The reference is U > paragraphs in the report.

224 j Criminal Investigation

W ard Committee (Committee on Com puterisation of Criminal D ata) 230, 233, 237, 241, 243, 245 W arrabri, 268, 283 Warrego, 268 Wash or Shower, for persons in custody, 135 Wave Hill, 268 Weapons, search for, 58-9 Weinberg, M. S., 291 Wesley-Smith, R., 55 Westin, A. F., 233, 238 Wettick, R. S., Jr, 149 W hereabouts o f Persons in Custody, Notification of,

104, 331 Whitmore. H.. 58, 160, 166, 189 Williams, C „ 125 Williams, G ., 118, 121, 147

Witness at Identification Parade, 123 at photographic display, 126-7 questioning of, 67 Witt, J. W., 149 W ollogorang, 268 Whit of Assistance, 192

Younger, E. J., 149 Younger Committee (Report of the Committee Privacy), 211 Yuendemu, 268, 272, 283, 284, 286

Zander, M., 28, 149, 179, 180 Zeitz, L., 149

The reference is to paragraphs in the report.

R 75/443