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Crimes (Investigation of Commonwealth Offences) Amendment Bill 1990



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House: House of Representatives

Portfolio: Attorney-General

Purpose

To provide, for the purpose of investigating whether a person has committed certain Commonwealth offences, a maximum pre-charge detention period of four hours or, in the case of persons under 18, Aboriginals and Torres Strait Islanders, of two hours. The Bill will also provide for the extension of the period by a magistrate and for the tape recording of confessions and admissions.

Background

At common law there is no power to hold a person who is suspected of having committed a crime to question them or complete an investigation into the crime. The common law requires that once a person is arrested they are to be brought before a justice as soon as practicable. These common law rules apply in N.S.W. and are embodied in statutes in Qld, W.A., Tas and the A.C.T. In S.A., police may detain a person before they are brought before a magistrate for four hours, or for such longer period not exceeding eight hours, as may be authorised by a magistrate. In Vic, the position is that a person may be held for `a reasonable time' and in the N.T for `a reasonable period'.

The Commonwealth Crimes Act 1914 does not deal with the powers to hold a person who is suspected of having committed a crime, or to complete an investigation into the crime. Generally, the position is that the law of the State or Territory in which an arrest is made applies, by virtue of the Judiciary Act 1903, to persons arrested under Commonwealth law.

In Williams v. The Queen (1986) 161 CLR 278, the High Court held that a confession obtained from a suspect while in police custody for a period longer than the law allows is unlawful, and may be rejected by a trial judge. The effect of this decision is that a confession obtained in N.S.W., Qld, W.A., Tas or the A.C.T. after the time it becomes reasonably practicable to bring a detainee before a justice, or in S.A. after four hours (or eight hours if the period has been extended), or in Vic, or the N.T after a `reasonable time/period' has elapsed, may be rejected as evidence unlawfully obtained 1. (Note: Unlike the U.S., in Australia there is no fixed rule that evidence obtained unlawfully is inadmissible. The admissibility of the evidence is at the court's discretion.)

The tape recording of interviews of persons arrested has for many years been seen by law reform bodies, civil liberties groups and police as the most reliable and accurate means of ensuring that interviews are properly conducted and that the results of interrogations are honestly reported. Proponents argue that recording protects an accused person from a false claim that a confession was made; protects the police from the assertion that they fabricated a confession; and reduces the duration and cost of criminal trials 2. Critics argue that recording will not eliminate all chances of confessions being fabricated. It will still be open for false confessions to be alleged prior to the formal recorded interview (e.g. at the site of arrest or on the journey to the police station). It may be argued that the knowledge that the interview will be recorded, and the time a suspect may be held will be limited, may encourage the use of such false confessions.

In February 1987, a Review Committee was established by the Attorney-General to review the criminal law of the Commonwealth. In September 1988, the Attorney-General requested the Committee to provide an interim report on the detention of a suspect by investigating officers for the period necessary to complete an investigation and the requirement that confessions be tape-recorded.

The Committee's report, Detention Before Charge, was tabled in Parliament in March 1989.

The Committee's recommendations included that Commonwealth Crimes Act 1914 should be amended to provide for:

*the tape recording of admissions and confessions by persons in custody;

*safeguards for persons in custody, including a right to communicate with a friend, relative or lawyer and to be cautioned on their right to remain silent while being interviewed;

*conditions for the detention of persons in the pre-charge period and the limits of that period (the Committee recommended that the investigation period be limited to a maximum of six hours for offences carrying a penalty exceeding 12 months imprisonment or four hours, for offences carrying a lesser penalty); and

*the right to an interpreter if required 3.

In the July 1990 issue of the Australian Law News, the Law Council of Australia is reported as opposing in principal the enactment of legislation conferring on police officers and other investigating officials a power to detain persons arrested for offences against Commonwealth laws for the purpose of questioning and investigation before charging them. However, while opposing in principle pre-charge detention, the Council said that if this approach is adopted the period during which an arrested person may be detained for questioning before being brought before a justice should be strictly limited and stringent legislative safeguards be introduced to safeguard the rights of arrested persons.

In the Explanatory Memorandum to the Bill, the cost of implementing the proposed tape-recording provisions is estimated to cost $2.625 million in 1990-91 and $804 000 in 1991-92.

Main Provisions

A new Part IB (proposed sections 23A-23W) will be inserted into the Crimes Act 1914 (the Principal Act) by clause 3.

`Tape recording' is defined in proposed section 23B to include audio and video recording.

Proposed section 23C provides that where a person is arrested for a Commonwealth offence they may be held for the purpose of investigating whether they have committed that offence or any other Commonwealth offence, but are not to be held after the end of the `investigation period'. The person is to be released within the `investigation period', or brought before a magistrate within the `investigation period', or if this is not practicable, as soon as is practicable. An `investigation period' will commence when a person is arrested and end, unless extended, in two hours for detainees under 18, Aboriginals and Torres Strait Islanders, and for other persons four hours. Where a person has been arrested more than once in a 48 hour period, the `investigation period' for each arrest will be reduced by the time which has elapsed in the previous `investigation periods'. Certain periods of time are to be disregarded in calculating the duration of an `investigation period', including: travel time to a police station; time spent in arranging or waiting for a lawyer, friend, relative, parent guardian or other person; time spent in arranging or waiting for an interpreter; and any time during which the questioning of a detainee is suspended or delayed because of intoxication. The burden of proof will lie on the prosecution in any proceedings to prove that a person was brought before a magistrate as soon as practicable, or that any disregarded period of time was one that should have been disregarded.

Proposed section 23D provides that if a person is under arrest for a serious offence (`serious offence' is defined to be a Commonwealth offence punishable by imprisonment for more than 12 months) an investigating official may, at or before the end of the `investigation period', apply for an extension of the `investigation period'. The application is to be made to a magistrate, or if one is not available, a justice of the peace. A magistrate or justice of the peace may extend an `investigation period' if satisfied: an offence is a `serious offence'; further detention is necessary to preserve/obtain evidence, or complete the investigation into the offence or into another serious offence; the investigation into the offence is being conducted properly and without delay; and the detainee, or their lawyer, has been given an opportunity to make representations about the application. An `investigation period' will only be able to be extended once, and for a maximum of eight hours.

Before starting to question a person under arrest for a Commonwealth offence, the investigating official is to caution the person that they do not have to say or do anything, and that anything they say or do may be used in evidence. The caution is to be given in, or translated into, a language in which the person is reasonably fluent. These requirements will not apply where another Commonwealth law requires a person to answer questions put by, or do things required by, an investigating official (e.g. a Royal Commission) (proposed section 23F).

Proposed section 23G provides that, subject to proposed section 23L (see below), before starting to question a person under arrest for a Commonwealth offence, an investigating official is to inform the person that they may communicate, or attempt to communicate, with a friend or relative to inform them of their whereabouts and with a lawyer of their choice to arrange for the lawyer to be present during questioning. Questioning of a person is to be deferred for a reasonable time for the above purposes. In addition, if a person under arrest wishes to communicate with a friend, relative or lawyer, the investigating officer is, as soon as practicable, to give the person reasonable facilities to enable them to do so, and in the case of communicating with a lawyer, allow the lawyer or clerk of a lawyer to communicate with the person, as far as practicable, in private. Also, if a person under arrest arranges for a lawyer to be present during questioning, the investigating official is to allow them to consult the lawyer in private; provide reasonable facilities for that consultation; allow the lawyer to be present during questioning; and give advice to their client on any matter on which advice is sought, provided the lawyer does not interfere with the questioning.

Proposed section 23H deals with Aborigines and Torres Strait Islanders. It provides that, subject to proposed section 23L (see below), where an investigating official believes on reasonable grounds that a person arrested, and whom it is intended to question, is an Aborigine or a Torres Strait Islander, then, unless they are aware that the person has arranged for a lawyer to be present during questioning, they are to inform the person that, unless they object, a representative of an Aboriginal legal aid organisation will be notified that they are under arrest and, if the person does not object, notify such a representative. Subject to proposed section 23L (see below), or if the person is under 18, where an investigating official suspects that a person may have committed a Commonwealth offence, or believes that information received may implicate a person in the commission of a Commonwealth offence, and believes on reasonable grounds that the person is an Aborigine or a Torres Strait Islander, the official is not to question them unless an `interview friend' is present during and before the start of questioning. The person must be allowed to communicate with the `interview friend', as far as practicable, in private. The person may expressly waive their right to have an `interview friend' present. An `interview friend' may be excluded from the questioning if they unreasonably interfere with it. In any proceedings, the burden of proof will lie on the prosecution to prove that there has been a waiver to have an `interview friend' present, a detainee has objected to a notification being given to an Aboriginal legal aid organisation of their arrest, or had knowledge that an investigating official arranged for a lawyer to be present during questioning. An investigating official will not have to comply with the above requirements in respect to notification of an Aboriginal legal aid representative and communication with an `interview friend' if the official believes on reasonable grounds that, in light of a detainees level of education, they would not be at a disadvantage during questioning in comparison with members of the general Australian community. `Interview friend' is defined to include a relative or other person chosen by the person; a lawyer; a representative of an Aboriginal legal aid organisation; or a person included in the list of interview friends and interpreters (see below).

Proposed section 23J requires the Minister, so far as is reasonably practicable, to establish and update a list of persons who are willing and suitable to be an `interview friend' or interpreter for Aborigines or Torres Strait Islanders.

Proposed section 23K deals with people under 18 years of age. It provides that, subject to 23L (see below), where an investigating official suspects a person may have committed a Commonwealth offence, or believes that information received may implicate a person in the commission of an offence, and also believes on reasonable grounds that the person, or a person under arrest is under 18, the official is not to question them unless an `interview friend' is present during and at the start of questioning and the official has allowed the person to communicate with the `interview friend', as far as practicable, in private. An `interview friend' may be excluded from the questioning if they unreasonably interfere with it. `Interview friend' is defined to include a parent or guardian of the person, or a lawyer acting for the person, and if none of those people are available, a relative or friend who is acceptable to the person.

Under proposed section 23L, the requirements imposed by proposed sections 23G, 23H, 23K and 23M will not apply if, and for as long as, an investigating official believes on reasonable grounds that compliance is likely to result in an accomplice of a person arrested taking steps to avoid being caught; the concealment, fabrication or destruction of evidence, or the intimidation of a witness; or where the requirement relates to the deferral of questioning, the questioning is urgent because the safety of others is involved. If this results in preventing or delaying a person from communicating with a lawyer, or the lawyer attending, the investigating official is to offer the services of another lawyer, and if the person accepts, make the necessary arrangements. Where an exemption is from a requirement in relation to things done by a lawyer, the exemption will only apply: in exceptional circumstances and the investigating official is to comply with the requirement as soon as the exemption ceases to apply; and authorisation has been given by a police officer of at least Superintendent rank or a prescribed office holder and that person has made a record of the investigating official's grounds for the exemption (proposed section 23L).

Proposed section 23M provides that, subject to proposed section 23L (see above), where a person is under arrest for a Commonwealth offence and a relative, friend or lawyer of the person arrested requests information about the whereabouts of them, an investigating official is to inform the person under arrest of the request and is to provide that information to the person who made the request unless the person under arrest does not want that information provided or the investigating official believes, on reasonable grounds, that the person requesting the information is not a relative, friend, or lawyer of the person under arrest.

Where an investigating official believes on reasonable grounds that a person under arrest is unable, because of an inadequate knowledge of English, or a physical disability, to communicate orally with reasonable fluency, the official is, before starting to question the person to arrange for the presence of an interpreter and defer the questioning or investigation until the interpreter is present (proposed section 23N).

A person who is under arrest is to be treated with humanity and with respect for human dignity and is not to be subjected to cruel, inhuman or degrading treatment (proposed section 23Q).

Proposed section 23U provides that where an investigating officer is required, under proposed Part IB, to give a person under arrest certain information (including a caution), the investigating officer is to tape record, if practicable, the giving of that information and the persons responses. The burden of proof will lie on the prosecution to prove whether it was practicable to make the above recording.

Proposed section 23V deals with the admissibility of confessions and admissions as evidence in proceedings. Basically, a confession or admission from a suspect will only be admissible as evidence against them in proceedings for a Commonwealth offence where it was tape recorded. However, where it is not reasonably practicable to make a tape recording, a written record made at the time of the interview, or as soon as practicable afterward, will be admissible provided certain conditions are met. Where a written record is made, it is: to be either in English or in the language used by the person in the interview; as soon as practicable after the record is made, it is to be read to the person in the language used by them and a copy or record made available to them; the person is to be given the opportunity to interrupt the reading of the written record at any time to point out any error or omission that they claim has been made in, or from, the written record and at the end of the reading, be given the opportunity to state whether there were any errors in or omissions from the written record in addition to any to which they had drawn attention to in the course of the reading; and was given an explanation, in accordance with the form set out in the Schedule to the Bill before the reading back of the written record starts, of their right to interrupt the reading to point out perceived errors or omissions and to make a statement regarding any claimed errors or omissions at the end of the reading.

Where a video or audio tape recording of a confession or admission is made, the person recorded or their lawyer, is to receive from the investigating official, without charge, the recording or a copy of it within 7 days. Similarly, where both a video and an audio recording is made, the audio recording, or a copy, is to be made available within 7 days and the investigating official is to notify the person recorded or their lawyer that the video may be viewed on request. Where a transcript of a tape recording is made, a copy of the transcript is to be made available to the person recorded or their lawyer within 7 days of the transcript being made. A court will have a discretion, in certain circumstances, to admit as evidence confessional material to which the above requirements have not been complied with, or where there is insufficient evidence of compliance, including where the court is satisfied that, in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice, or the court is satisfied that it was not practicable to comply with the requirements.

References

1. Review of Commonwealth Criminal Law, Interim Report-Detention Before Charge, March 1989, p. 14.

2. Ibid., pp. 50 and 51.

3. Ibid., pp. 1-7.

4. Australian Law News, Vol. 25, No. 6, July 1990, p. 18.

Bills Digest Service 18 January 1991

Parliamentary Research Service

For further information, if required, contact the Law and Government Group on 06 2772430.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1991

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Published by the Department of the Parliamentary Library, 1991.