INTRODUCTION - THE CRITICAL NATURE OF THE POLICE ROLE

2.1 This Part of the Discussion Paper considers the general issues affecting all contact between the police and people with an intellectual disability, whether suspects, victims or witnesses. Such general procedures include the role of the Police Commissioner’s Instructions, how the police can identify the possibility of a person having an intellectual disability, and what training is provided to the police about intellectual disability. Part III then discusses the particular procedures applicable to suspects and Part IV similarly considers the position of victims and witnesses.

2.2 This chapter begins with a brief consideration of the importance of the role of the police in the criminal justice system and, in particular, in their contact with people with an intellectual disability. In the Police Powers Report the Commission recommended that this critical area of the criminal justice system should be governed by a comprehensive legislative regime:

addressing the needs of the police for adequate power to conduct criminal investigations while offering proper and realisable safeguards for persons in police custody. It is time to shift the focus away from the jury trial ... to the pre-trial process ...”.¹

The Report referred to the following passage from Sallmann and Willis, which bears repeating:

The perception of the jury trial as the stage where the only really important decisions are made is often accompanied by a view of criminal investigation as exploratory, procedural, mechanical, introductory - relatively unimportant, in other words. Nothing could be further from the truth, and in fact a great many persons’ convictions are signed, sealed and delivered in the police station during the criminal investigation process.²

Police and people with an intellectual disability

Attitudes toward police

2.4 In the Commission’s own consultations with people with an intellectual disability about their experiences in, and suggestions for reform of, the criminal justice system, most of the discussion focused on the role of the police. Participants in the consultations had more contact with the police than with other personnel in the criminal justice system. Most participants identified police in a positive role, although some expressed fear of police stations and believed that police had greater powers than they actually formally possess; for example, that police could place them in institutions against their will. The consultations discussed such areas as: the role of the police; how to contact the police; police knowledge about intellectual disability; police training; and the police caution. Participants’ comments in relation to each of these areas are referred to throughout this Discussion Paper. The Commission concluded from its consultations that, compared to members of the general community, many of the participants in the discussion groups would be at a disadvantage under the present system of police questioning and court processes.³

2.5 A 1987 survey in New South Wales of people with an intellectual disability about attitudes to the police raised similar issues.⁴ Two different questionnaires were prepared for people with an intellectual disability: one for people who had not had any official contact with the police, and the second for people who had been either arrested and charged or interviewed by the police for an offence. The survey questions were answered by a total of 90 people who had differing levels of disability.⁵ Of the 76 people who were interviewed using the first questionnaire, most had a positive attitude towards the police and only a small percentage (13%) said they were afraid of them. Of concern, however, was the fact that most of this group were generally unaware of their legal rights and 77% said that they would sign anything the police requested. A support person who was well known to the person was seen as important, with nearly all respondents (93%) stating that they would like someone, such as parents or their workshop supervisor, to accompany them if they were interviewed by the police.

2.6 The second questionnaire was answered by 14 respondents, 10 of whom had been taken to a police station, while the others had been questioned by the police elsewhere. The results indicated that the majority of the respondents (71%) were alone at the time of questioning or arrest, although most commented that they would have preferred to have had someone with them at this time. Other findings were: 57% found it difficult to talk to the police and the same number said that the police officers involved had difficulty understanding what they were saying; 73% of those taken to the police station had difficulty understanding procedures at the police station; and 78% said that they had signed a document at the police station without understanding what it contained.⁶ Obviously it is difficult to generalise from such a small sample.

Police attitudes on intellectual disability

2.7 Further research is currently being undertaken in Wagga Wagga by Mark Brennan and others in relation to police and people with an intellectual disability through a grant from the Criminology Research Council. The research aims to identify the communication needs of people with an intellectual disability and to develop support materials for police officers. The researchers are undertaking an extensive consultation process with the police (including highway patrol, beat police, detectives and station police), seeking information about police perceptions of intellectual disability. They are looking at, for example, how the police assess whether the person has an intellectual disability; how they attempt to communicate with the victim or suspect if they identify a disability; what extra information about intellectual disability would help them; what training is available and effective (at the Police Academy and at the local level); and comments about what ought to be the relationship between police and people with an intellectual disability. The project will produce curriculum materials which respond directly to the perceived educational needs of police officers.

2.8 The Commission can make some preliminary observations about police attitudes about intellectual disability from its own research and consultations to date, both with the police and others. Despite the statistics on over-representation referred to in Chapter 1, there appears to be a perception amongst some police that there are not sufficiently large numbers of people with an intellectual disability coming into contact with the criminal justice system to warrant the diversion of resources into this issue or to prepare a police policy. At the same time, however, there is a recognition that particular cases involving people with an intellectual disability cause considerable difficulties for the police.

2.9 As in the general community, misunderstanding by the police of the difference between mental illness and intellectual disability appears to be common. Some police have expressed their concern at being expected to judge whether or not a person who may appear to them to be “mentally ill” has a mental illness or an intellectual disability, or both, or neither. There are concerns that sometimes a person with an intellectual disability, who is not mentally ill and therefore cannot be admitted to hospital, still may become extremely distressed in police custody and be a suicide risk or a risk to others.

2.10 Police are often not aware of the specific procedures set out in the Police Commissioner’s Instructions in relation to people with an intellectual disability. It has been suggested to the Commission that, even when police suspect a person has an intellectual disability and are aware of the existing police procedures for questioning such a person, many believe it is either difficult or inappropriate to take action against an offender with an intellectual disability. For example, having to locate a third person for the interview, as required by police procedures, is inconvenient. It may also be difficult to seek outside assistance within existing resources; for example, taking a suspect to a hospital for appraisal will require taking a patrol car off the road. It has been stated that police become frustrated, particularly where the person has a history of offending, by Magistrates’ use of s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW) to dismiss charges and release the defendant on the ground of their disability. There is a perception that, in some cases, offenders are taking advantage of this procedure, and that they have a greater level of understanding of the consequences of their actions than is accepted by the court.

2.11 However, the potential of the police to play an important positive role for people with an intellectual disability also has been commented upon. It has been the experience of at least one service that the police, once the person’s disability has been identified, generally have gone to great lengths to treat the person appropriately and fairly, including contacting appropriate organisations for assistance or to put the person in touch with services. Identification therefore becomes a crucial issue.

Conclusions

2.12 From the Commission’s own research, consultations and submissions it seems clear that there are misconceptions on both sides, whether by the police about intellectual disability or by people with an intellectual disability about the police. Education is likely, therefore, to play a key part in any reforms. The police have a crucial and difficult role. They have to deal with the consequences of a wide range of social and personal problems and are often placed in dangerous, distressing, or “powerless” situations. It is important that any proposals for reform are workable and practical in the course of active duty. The Commission particularly seeks input from members or former members of the Police Service about their experiences, comments about the advantages and disadvantages of the tentative proposals contained in this Paper, and their own proposals for reform.

THE POLICE COMMISSIONER’S INSTRUCTIONS

2.13 The starting point for considering police relations with people with an intellectual disability must be the Police Service’s own existing practices and procedures, as there is no primary legislative consideration of these issues. In New South Wales, police procedures are set out in the “Rules and Instructions” issued by the Commissioner of Police (“the Instructions”). These Instructions cover an enormous range of material, from arrest procedures to police sporting and social functions. The Instructions were discussed in the Commission’s Police Powers Report, which made detailed recommendations for their reform. This Paper will consider, amongst other things, the detail of the Instructions affecting people with an intellectual disability. However, the threshold question of the use of a system of internal Instructions for all police procedures must be reconsidered.

Public availability

2.14 In both the Police Powers Report and the Issues Paper, the lack of public availability of these Instructions and the lack of knowledge about their content and application by both police and the community was commented upon.⁷ This is a matter of concern, considering the critical police procedures covered by the Instructions. The New South Wales Police Service commented in its submission, in relation to the lack of public availability of the Police Commissioner’s Instructions:

This is somewhat misleading as the Instructions are available to any person under the provisions of the Freedom of Information Act. The Instructions concerning the questioning of suspects has appeared in Watson and Purnell, a standard legal text on criminal law.

It is unfair to say that there is widespread ignorance amongst police of their application. It is not expected that police know every Instruction, but rather use them as guidance so that they may carry out their duties ethically and effectively.⁸

Reference to the Instructions in some criminal law texts and availability under freedom of information provisions cannot be considered to equal public availability. The Instructions cannot be purchased, nor are they on display (or even made accessible) at a police station, as is the requirement in England.

Other difficulties

2.15 The Instructions, which consist of four large ring-binder folders, have other difficulties. For example:

• their length means that few police have a working knowledge of all of the areas covered;
• their bulk limits their transportability - it is impractical, for example, to keep a copy in every police car;
• there is no uniformity in terminology; for example, the Instructions use a variety of terms such as “mentally handicapped”, “mentally retarded”, “intellectually disabled” and “developmentally delayed”, usually without definition. This proliferation of terms is likely to increase confusion for police officers;
• they are not a reference tool which is quick and easy to use. The exterior labelling, indexing and cross-referencing makes it difficult to locate topics or specific instructions. For example, there are a number of references to intellectual disability (or the other terms referred to above) throughout the Instructions; however, the only reference in either of the two Indexes is to interviewing intellectually disabled victims of sexual assault. The Commission has been told, for example, of police officers being unable to locate the instructions about intellectual disability, even when informed of their existence;
• there have been legal inaccuracies in the Instructions: for example, in relation to Williams v R,⁹ an important High Court case dealing with police powers of arrest, the judgment of the single dissenting judge (rather than the four-judge majority) was set out for some years as the existing law on that crucial subject until it was finally corrected;¹⁰ and
• they are not issued to all police officers; a set of Instructions will have to be shared by a number of officers, or, in some cases, even a section.

2.16 Most of these practical difficulties are in the process of being overcome. The Instructions have recently been reviewed and substantially rewritten. The new Instructions were launched in December 1991. Since June of this year the Instructions have been computerised so that all Police Stations with on-line facilities (which is now the majority of Police Stations) can access the Instructions electronically and use computer searching techniques. This will allow easier searching and updating. However, this does not overcome the issue of public availability nor public scrutiny in relation to either the promulgation or the adherence to the Instructions, nor the problem of the content of some of the Instructions. The Commission suggests that it may be appropriate to make such on-line access (at least in relation to areas of importance to the public such as arrest and investigation) available to other bodies, such as criminal lawyers or to the public through, for example, the State Library.

2.17 The Deputy President of the NSW Police Association, Senior Sergeant Terry O’Connell, has recently expressed his concern about the role of the Instructions as part of:

greater regulation and heightened scrutiny [of Police]. The Commissioner’s Instructions were recently rewritten. Mercifully, they now comprise a mere 1636 pages, 121 individual instructions and 1052 sub sections. These, of course, increase after every inquiry. Their real value seems to reveal itself following an incident, where they act as a useful checklist to see where police have failed to comply. It seems that police are subjected to disproportionately high standards of accountability when compared to politicians and lawyers who are only too willing to provide prescriptive remedies every time there is a suggestion or complaint about police.¹¹

Obviously, any suggestions for reform which merely result in lengthening the Instructions are unlikely to be effective, unless the police are also assisted, in practical ways, to understand and carry out the recommended procedures.

Breach of the Instructions

Police may be disciplined

2.18 In the Commission’s previous papers it was stated that the Instructions also have the fundamental weakness of not possessing effective legal force, and of being subject to amendment by a decision of the Police Commissioner.¹² This was contrasted with the Police Codes of Practice in England and Wales, which are discussed further below. The legislative basis for the Police Commissioner’s Instructions is found in the Police Service Act 1990 (NSW), which provides for the issuing, amending and revoking of instructions by the Police Commissioner to members of the Police Service “with respect to the management and control of the Police Service”.¹³ Section 97 of that Act states that the regulations made pursuant to the Act may provide for the discipline of police officers, including such penalties as dismissal, demotion, suspension, fines or cautions. The Police Service Regulation 1990 (NSW) provides that one of the general conditions of service is liability to dismissal or other punishment. Clause 9(4) states:

Police officers are liable to dismissal or other punishment ... for disobedience, neglect or omission of duty, incompetence ... or any misconduct punishable by law or contrary to the Act, this Regulation or the Police Instructions. [emphasis added]

2.19 Thus there is provision for breaches of the Police Commissioner’s Instructions to lead to a sanction for the police officer concerned. However, it has been stated that:

there is no established procedure within the police force for ensuring observance of the Instructions and no penalty for breach. Even senior detectives in NSW disclaim any more than rudimentary knowledge of these Instructions.¹⁴

2.20 Consideration of a breach of the Instructions could arise through a complaint, whether from another police officer or a member of the public. A specific complaint referring to a breach of an Instruction is more likely to come from another police officer, as a member of the public is unlikely to be aware of the detail of the Instructions. A member of the public would be more likely to complain in general terms about conduct which may in fact involve a breach of the Instructions.

2.21 Complaints against police are now governed by the Police Service Act 1990 (NSW), following legislative amendments which came into force on 1 July 1993, implementing the 1992 Parliamentary Committee Report Inquiry Upon The Role Of The Office Of The Ombudsman In Investigating Complaints Against The Police.¹⁵ The “watchdog” role of the New South Wales Ombudsman in the investigation of complaints has been largely retained, however. The present procedure for complaints against the police should be briefly summarised. This procedure is available for all complaints about the police, other than complaints in relation to the internal management of the Police Service, not just complaints about a breach of the Instructions.

Complaints about police

2.22 Complaints can be made to a police officer or the Ombudsman. If a police officer receives a complaint it must be forwarded to the Police Commissioner, or nominated officer, who must then forward a copy to the Ombudsman.¹⁶ Complaints can also be made through a Member of Parliament¹⁷ or referred to the Ombudsman by the Minister for Police or the Independent Commission Against Corruption.¹⁸ The Ombudsman, in relation to complaints received, determines whether a complaint should be investigated, and either undertakes that investigation,¹⁹ or refers the matter to the Police Commissioner who is thereby required to undertake an investigation.²⁰ The Police Commissioner also can decide to investigate a complaint at his or her discretion (if that complaint is received by the Police Commissioner at first instance).²¹ If the Ombudsman determines, on certain prescribed grounds,²² that a complaint should not be investigated, he or she must notify the complainant of the reasons and send the Commissioner a copy of the complaint and the response to the complainant.²³ There are also procedures for initial conciliation of certain complaints.²⁴

2.23 Direct investigation by the Ombudsman. Until recently, all investigations initially were carried out by the police and the Ombudsman performed a largely supervisory role. It was only after the police finished their investigation, and any deficiencies were pointed out by the Ombudsman and returned to the police for rectification, that the Ombudsman could undertake any inquiry. Now the Ombudsman also can conduct a direct investigation of a complaint “if satisfied that it is in the public interest to do so”, without waiting first for the internal police investigations to be completed.²⁵ After investigation the Ombudsman must decide whether the complaint is either “sustained” or “not sustained”. The latter category includes complaints where the Ombudsman is neither satisfied that a complaint has been sustained nor satisfied that the complaint has not been sustained.²⁶ There are then reporting, notification and action requirements.

2.24 Requirement of writing. Complaints must still be made in writing, which has obvious difficulties for a complainant with an intellectual disability:

The Ombudsman’s oversight of complaints against police is largely an exercise in examining paper. Complaints must be in writing. Reports on the initial investigations by police often run to hundreds of pages, which are then sent to the complainants, who again respond in writing.²⁷

2.25 Accordingly, complaints against the police involving a person with an intellectual disability would probably need to be made on their behalf by another person. In the New South Wales Ombudsman’s 1992 Annual Report it was stated that the marked increase in complaints against the police without any concurrent increase in resources was having an impact on vulnerable complainants:

It was clearly demonstrated by a number of submissions [to the Joint Parliamentary Committee] that the greatest impact of declining resources falls on people who are least able to articulate and support their complaint. Typically, the system becomes less responsive to Aboriginals, complainants of non-English speaking background and juveniles.²⁸

Adequacy of the present system

2.26 This Paper is not intended to review the present police complaints-handling mechanisms. However, it has been suggested that this mechanism is not sufficient to prevent, or at least discourage, breaches of the Police Commissioner’s Instructions, particularly where the person affected has an intellectual disability and is unlikely to be able to easily access the complaints process. It is difficult to determine, from the statistics kept by the Ombudsman, the number of police complaints which involved a person with an intellectual disability. The Office of the Ombudsman did, however, undertake a description search for the Commission to identify complaints where persons with “intellectual/mental disabilities” were mentioned in the description of the complaint. This search turned up only eight such complaints for 1992-1993, but the Office warned that this figure was not necessarily conclusive as a person’s intellectual disability or otherwise would not necessarily be referred to in the description of the complaint. The Commission seeks further information in relation to police complaints and people with an intellectual disability.

Penalty for breach of the Instructions

2.27 The issue of appropriate penalty for breach of Instructions must also be addressed. It has been suggested to the Commission that many breaches of the Instructions, where they do not also amount to a breach of the law, are not regarded as a particularly serious matter and, if a complaint is sustained, the police officer involved may be “counselled”, rather than receiving a more serious penalty. It is difficult again to discover useful statistics in this regard. The Ombudsman’s own statistics contained in the Annual Report refer to the Ombudsman’s determinations and therefore do not contain information about the sanctions for complaints which were “sustained”. According to the NSW Police Service’s Internal Affairs Branch Annual Report 1992, there were 490 (out of the total of 8,965) “complaint issues” in relation to “Breaches of Instructions” which were the subject of investigation, with an additional 49 (out of 358) complaint issues which were investigated internally, though not required by the Ombudsman.²⁹ There are no figures as to how many of these particular complaints were sustained or what particular sanctions were incurred in relation to a breach of the Instructions. In relation to action against police generally, in 1992 there were a total of 188 charges preferred (121 criminal and 67 traffic), together with 324 departmental charges. A total of 928 other punishment and disciplinary actions were taken for matters found proven. The majority of these 928 actions were in the category of “paraded and counselled” (542) or “reprimanded” (188). Other categories included dismissal (10), the deferral of penalty (118), loss in seniority (6), fines (12), resignations (35), transfers (6) and reductions in rank (11).

Evidence obtained in breach of the Instructions

2.28 Apart from the complaints system discussed above, the person with an intellectual disability who has not been dealt with by the police in accordance with the Instructions may look to the courts to exclude any evidence so obtained. This is obviously a much more important area (than later disciplinary action against a police officer) in terms of protecting the rights of the accused. Breach of police procedures may be raised directly or indirectly as the basis for an objection to the admissibility of evidence, such as a confession. The presumption of exclusion of evidence improperly obtained was recommended by both the Australian Law Reform Commission³⁰ and the New South Wales Law Reform Commission,³¹ but the treatment of such evidence is still governed in New South Wales by judicial discretion. A “voluntary” confession (whether improperly obtained or otherwise) may be excluded on the ground that its reception would be “unfairly prejudicial” to the accused. There is also a second discretion, which exists in relation to unlawfully obtained evidence generally, whether confessional or “real”, which excludes evidence on public policy grounds, usually because of some impropriety involved in how it was obtained.³²

2.29 Australian courts generally have interpreted narrowly the effect of a breach of the Police Commissioner’s Instructions. In R v Robinson,³³ the NSW Court of Criminal Appeal declared that the relevant Instruction (then Instruction 16) relating to records of interview was merely one method of interrogation among many to which the Commissioner “simply gives his blessing ... [and the] fact that the recommended method of procedure has been departed from is not in itself a matter of any relevance at all”. Rather, the Court was interested in whether the procedure adopted cast any doubt on the veracity of the accused person’s answers.³⁴ The High Court has also stated that the Standing Orders of the Victorian Police Commissioner were:

not rules of law, and the mere fact that one or more of them have been broken does not of itself mean that the accused has been so treated that it would be unfair to admit his statement.³⁵

The Court went on to say that the Standing Orders, (equivalent to the Police Commissioner’s instructions in New South Wales):

may be regarded in a general way as prescribing a standard of propriety ... But it cannot be denied that they do not in every respect afford a very satisfactory standard. Their language is in some cases imperative and in others merely advisory: ... and the tendency to take them as a standard can easily develop into a tendency to apply rejection of evidence as in some sort a sanction for a failure by a police officer to obey the rules of his own organisation, a matter which is of course entirely for the executive”.³⁶ [emphasis added]

2.30 More recently, the departure from police guidelines or instructions has been described as a secondary consideration to the consequences which flow from their breach in terms of the fairness of the investigation. The courts have suggested that a departure may, in fact, be warranted depending on the “exigencies of a particular investigation”.³⁷

2.31 An example of a case in which evidence actually has been excluded is R v Warrell³⁸ in which investigating police in Victoria complied technically with police instructions relating to the interrogation of people with an intellectual disability by arranging for an “Independent Third Person” to attend the police interrogation. Although the police had “complied with the letter of the Instructions”, their failure to allow the accused to confer with that person prior to interrogation meant that a statement which was relied on as a confession was held to be wrongly admitted on the ground of fairness to the accused. Although such instructions were said to create only internal standards of conduct, and as such did not have the force of law, they indicated a standard of care to be taken in the particular circumstances to redress the inherent disadvantage of people with an intellectual disability within the investigative process.³⁹

2.32 In the Queensland case of R v W,⁴⁰ where confessions were obtained from a number of young Aboriginal accused in breach of the appropriate police guidelines, it was argued that the judge had:

a residual discretion to reject the [disputed] confessional material because it was obtained illegally, in the sense that certain procedures laid down by the Police Commissioner for dealing with children and Aborigines were not observed, those procedures being prescribed by law. ... The basis of this discretion is, it seems, partly based upon the need to show curial displeasure at illegal conduct in police investigations. ... However, this discretion applies to all illegally obtained evidence including, but not limited to, confessions. It is clear ... that there will be very few cases calling for the exercise of this residual discretion to exclude confessions where the discretion to exclude for unfairness is not also appropriate.⁴¹

2.33 His Honour Justice Dowsett stated it had been conceded that the police are legally bound by the administrative directions of the Police Commissioner and that “a failure to comply with them is an unlawful act.”⁴² The Judge rejected the argument that these directions were only guidelines for the police and did not have the force of law.⁴³ The confessions were excluded on the grounds that they were not voluntary, having regard to the circumstances in which they were said to have been made, and the mental capacities and ages of the accused. Also, it was held that the unlawful failure to comply with the administrative directions of the Police Commissioner attracted the discretion to exclude on two other grounds: (1) unfairness, which cast doubt upon the reliability of the confessional evidence obtained; and (2) public policy, as an expression of “strong curial disapproval” was called for in the circumstances.⁴⁴

Conclusions: breach of the Instructions

2.34 In New South Wales, breach of the Police Commissioner’s Instructions, without more, usually will be insufficient to result in the exclusion of any evidence so obtained. This area may be affected by the discretions to exclude evidence in Part 3.11 of the Evidence Bill 1993 (NSW), which is discussed further at paras 2.40-2.42 below. Generally, however, the Instructions are a weak tool to use to ensure that safeguards for the accused are enforced in the courts or to achieve the less important purpose of providing the basis for a complaint against the police. This leaves two alternatives: either more judicial notice should be taken of the Instructions or some alternative system should be developed, with clear implications for the admissibility of evidence not obtained in accordance with that system.

Codes of Practice

2.35 The need for adequate sanctions to ensure compliance with police guidelines is thus a fundamental issue. The most appropriate and fair set of police procedures will be ineffective if there is no real sanction for their breach, whether involving disciplinary action against individual officers or the exclusion by the courts of evidence obtained without following the authorised procedures. This issue was addressed in relation to all police investigation procedures in the Commission’s Police Powers Report, which suggested that it may be more beneficial to identify precisely those provisions the breach of which should attract external sanctions, by placing them into a separate public and enforceable document.

2.36 As an alternative to the Instructions, the Commission recommended that certain police procedures, particularly those in relation to detention, investigation and arrest, be developed: as a “comprehensive set of rules governing the conduct of criminal investigations, with a basic legislative framework supplemented by detailed Codes of Practice”⁴⁵ with sufficient resources and accountability mechanisms to ensure that these procedural requirements and the protective features and safeguards are regularly available in practice. (See the summary of the recommendations made in the Police Powers Report at Appendix A of this Paper.) The Report recognised that many of the matters in the Instructions refer to internal matters and that it was appropriate that these be retained in an Instruction format, with only those criminal procedures which directly affect the public being contained in Codes of Practice.⁴⁶

2.37 The Commission used the English scheme as a model for its recommendations. That system arose from the 1981 Report of the Royal Commission on Criminal Procedure.⁴⁷ The recommendations of that Report were codified in the Police and Criminal Evidence Act 1984 (UK) and the Codes of Practice established pursuant to s 60, 66 and 67 of that Act. Codes can be issued or amended by the Secretary of State preparing and publishing a draft Code or draft amended Code, considering representations about the draft and, where appropriate, modifying the draft and then seeking the approval of both Houses of Parliament. The Code is brought into operation by order made by statutory instrument once approved by both Houses of Parliament.⁴⁸ Any breach of the Code can lead to disciplinary action against the police involved⁴⁹ and can be taken into consideration by the courts.⁵⁰ In the Police Powers Report the Commission lauded the public process involved in the development of these Codes.⁵¹ This is in marked contrast to the development of the Police Commissioner’s Instructions. There are five Codes of Practice providing guidelines in the following areas:

Code A:	Stop and search;
Code B:	Search of premises and seizure of property;
Code C:	Detention, treatment and questioning of persons by Police Officers;
Code D:	Identification; and
Code E:	Tape recording.

2.38 The Commission’s reasons for preferring a Code of Practice approach over the existing system of Police Commissioner’s Instructions can be summarised as follows:

• the Codes of Practice would have the status of New South Wales regulations, giving them force of law and allowing for “formal, open, legal regulation of the criminal investigation process for the first time”. Such Codes could not be amended by the unilateral decision of the Police Commissioner and would, like the English Codes, carry considerable weight in the courts. This would be a contrast to the position of the NSW Police Commissioner’s Instructions, which are rarely cited by the courts in New South Wales or seen as having significant legal effect;
• developing the Codes should involve extensive community consultation and input, allowing the process of consultation to be an opportunity for legislative scrutiny of policing practices. In England the extensive public consultation created “widespread confidence in the fairness of the proposed Codes of Practice, and their promulgation did not become a party political issue”;
• there can be provision, as in the English Codes, for their periodic review⁵² which allows the Codes to be kept up to date; and
• the Codes could, and should, be available for purchase by members of the public, and displayed and accessible in every police station.⁵³

Breach of a Code of Practice

2.39 The development of such a Code or Codes will be ineffective without clear consequences for breach. The Commission stated in the Police Powers Report that attempts to ensure compliance by punishing errant police officers (administratively or through the criminal justice system) rarely have proved to be effective. The only effective sanction was the exclusion of evidence obtained in contravention of those procedures, subject to a discretion to admit, and the Commission accordingly made the following recommendation:

8.4 Illegally or improperly obtained evidence

8.4.1 Where evidence is obtained improperly or in contravention of a law or code of practice, or in consequence of an impropriety or of a contravention of a law or code of practice, the evidence shall be presumed to be inadmissible.

8.4.2 Such evidence may be admitted only where the desirability of admitting the evidence substantially outweighs the undesirability of admitting the evidence having regard to the manner in which the evidence was obtained. For the purposes of making this balance, the court shall take into account such matters as: the probative value of the evidence; the importance of the evidence in the proceeding; the nature of the relevant offence or defence; the gravity of the contravention or impropriety; whether the conduct concerned was deliberate or reckless; whether the conduct concerned was contrary to, or inconsistent with, the human rights of a person [set out in an earlier recommendation], codes of practice regulating police treatment of persons in custody, or any other applicable human rights legislation; whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the conduct concerned; and whether the evidence could have been obtained in some other, proper way.⁵⁴ [emphasis added]

2.40 A similar recommendation is now contained in the exposure draft of the New South Wales Evidence Bill 1993, released on 27 August 1993. The relevant clause is cl 137, in Part 3.11, which is as follows:

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law,is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.


(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that making the false statement was likely to cause the person who was being questioned to make an admission.


(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence; and

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

2.41 It could be argued that, in light of the prevailing judicial practice of admitting evidence despite its improper or unlawful procurement, stronger wording is needed in cl 137(1) to clearly reverse the legal presumption and the actual practice. Clause 137(1) does specify that improperly or unlawfully obtained evidence “is not to be admitted”, but judicial discretion to admit is maintained where “the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained”. Clause 137(3) lists a number of factors which the court may take into account in making this balance. The Commission is concerned that the balance still will usually come down on the side of admission, and would prefer a clear indication in the legislation that unlawfully or improperly obtained evidence normally should not be admitted, absent a finding that special circumstances exist or where it is imperative in the interests of justice.

2.42 Part 3.11 of the New South Wales Evidence Bill 1993 also:

• provides a general discretion to exclude evidence if its probative value is substantially outweighed by the danger of it being unfairly prejudicial, misleading or confusing, or if it might cause or result in undue waste of time [cl 134];
• allows the court to limit the use of evidence if there is a danger that the particular use might be unfairly prejudicial, misleading or confusing [cl 135]; and
• requires the court to exclude prosecution evidence in criminal proceedings if its probative value is outweighed by the danger of unfair prejudice to the accused. [cl 136]

Implementation of the Police Powers Report

2.43 Key portions of the police detention regime recommended in the Commission’s Police Powers Report have not been implemented, although commentators are still calling for clarification of the such issues in New South Wales. For example, the Chief Justice of New South Wales, the Hon A M Gleeson, recently commented that the law in relation to arrest and detention was:

one important area in which the law imposes stringent requirements upon police officers but in respect of which the legislature could well assist them by defining more precisely their powers and obligations. ... Plainly, the exigencies of arrest and detention and of what might be an ongoing process of police inquiries can, in practice, make it very difficult to know when a police officer passes beyond the area of apprehension and lawful investigation and into the area of unlawful detention. In other places there are statutory provisions and regulations which lay down clearly defined standards in this regard, including time limits for bringing an arrested person before a justice. The law and practice in New South Wales on this subject should, in my view, be clarified in the interests of all concerned. ... ⁵⁵ [emphasis added]

2.44 As discussed in Chapter 1, in August 1993, the Attorney General of New South Wales, the Hon John Hannaford MLC, released a statement proposing legislation to clarify the powers of police to detain persons following their arrest. These measures will be implemented through amendments to the Crimes Act 1900 (NSW) to be introduced in the next session of Parliament. Little detail has been provided about the form these amendments will take, but certain recommendations of the Commission in the Police Powers Report have been specifically rejected, notably fixed periods of detention. The issue of a Codes of Practice regime is not raised in the Attorney’s press release.

“Vulnerable” persons in police custody

2.45 As discussed in Chapter 1, the Commission also recommended that guidelines and practices be developed for police investigations involving people in the community who may be particularly vulnerable or at risk in police custody, for example as a result of language, culture, age or disability, and that these also be formalised in legislation and Codes of Practice.⁵⁶ In the Issues Paper the Commission again sought submissions about the need for the publication of a Police Code of Practice dealing with the arrest, detention and interrogation of people with an intellectual disability. Submissions in favour of such a Code included the Redfern Legal Centre Intellectual Disability Rights Service;⁵⁷ the Law Society of New South Wales;⁵⁸ the Legal Aid Commission of NSW;⁵⁹ the Commonwealth Office of Legal Aid and Family Services⁶⁰ and the New South Wales Council for Intellectual Disability,⁶¹ who commented that:

[s]uch a publication will increase the likelihood that such a code will be both be known to and followed by police. It would also assist people with intellectual disability and their advocates to better understand their rights in relation to contact with the police.

TENTATIVE PROPOSALS FOR REFORM: THE POLICE COMMISSIONER’S INSTRUCTIONS AND CODES OF PRACTICE

Nature of Codes of Practice

1. Codes of Practice which set out the police procedures for conducting criminal investigations should be developed, modelled on those in use in the United Kingdom. The Codes would replace the relevant NSW Police Commissioner’s Instructions in this area. These Codes should contain procedures in relation to police investigations involving people with an intellectual disability, whether as suspects, victims or witnesses, the detail of which will be considered later in this Discussion Paper.

2. The Codes of Practice should be statutory instruments, prepared as regulations under an enabling Act, promulgated only after the public exposure of, and debate over, draft codes, and should be subject to the normal rules of parliamentary disallowance. A Working Group should be established to manage the development of the Codes of Practice. The Group should consist of police representatives, as well as representatives of interested groups and the general community appointed by the responsible Minister or Ministers.

3. The Codes of Practice should be made widely available to the public generally, and readily available at all police stations for consultation by police officers, detained persons and other interested persons.




Breach of Codes of Practice

4. Where evidence is obtained improperly or in contravention of a law or Code of Practice, or in consequence of an impropriety or of a contravention of a law or Code of Practice, the evidence should be presumed to be inadmissible. Such evidence may be admitted only where the desirability of admitting the evidence substantially outweighs the undesirability of admitting the evidence having regard to the manner in which the evidence was obtained.

5. Until such time as proposal 1 is implemented, there must be clear and effective implications arising in relation to evidence obtained in breach of the Police Commissioner’s Instructions, apart from the existing threat of disciplinary action against the police officer involved. As proposed in relation to the Codes of Practice, evidence obtained in breach of certain designated Instructions, including those sections central to investigations, arrest and detention, should be presumed to be inadmissible, although again the courts will retain the discretion to admit the evidence where the desirability of admitting the evidence substantially outweighs the undesirability of admitting the evidence having regard to the manner in which the evidence was obtained.

1. New South Wales. Law Reform Commission Police Powers of Detention and Investigation After Arrest (Report 66, 1990) at para 1.72.

2. P Sallmann and J Willis Criminal Justice in Australia (Oxford University Press, Melbourne, 1984) at 16, cited in NSWLRC Report 66 at para 1.72. See also S C Hayes and G Craddock Simply Criminal (2nd ed, Federation Press, Sydney, 1992) at 47, who similarly commented: “[t]he development of the criminal law has focussed primarily upon the course of the criminal trial to the detriment of the area which can seal the fate of the vast majority of criminal charges - the investigatory phase.”

3. New South Wales. Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Consultations (Research Report 3, 1993), especially Ch 3 - Pt 6, and Ch 4.

4. G Hyson “Police involvement: what are the problems?” (1988) 2 (4) National Council on Intellectual Disability: Interaction 13-14.

5. According to Hyson, at 13: “Participants in this survey were either living independently within the community, or with family, or in supervised accommodation. From the survey population, 53% were given the diagnostic label mild intellectual disability, 41% moderate intellectual disability, and 6% severe intellectual disability.”

6. Hyson at 14.

7. NSWLRC Report 66, in particular, paras 1.65, 6.2, 6.6 and New South Wales. Law Reform Commission People with an Intellectual Disability and the Criminal Justice System (Issues Paper 8, 1992) at para 4.4.

8. New South Wales Police Service Submission (7 September 1992) at 1.

9. (1986) 161 CLR 278.

10. See NSWLRC Report 66 at para 1.41, especially footnote 61.

11. Senior Sergeant Terry O’Connell, Deputy President of the NSW Police Association “Police Authority, Police Responsiveness and the Rights of the Individual: What is the Right Balance”, paper presented at a Panel Session at the conference Keeping the Peace: Police Accountability and Oversight (Royal Institute of Public Administration Australia and NSW Office of the Ombudsman, Sydney, 20-21 May 1993) at 5-6.

12. The New South Wales Police Service Submission (7 September 1992) commented, in relation to the Commission’s comment that the weakness of the Police Commissioner’s Instructions was their lack of legislative force that: “The Instructions have legislative force, given that they are made pursuant to section 8(4) of the Police Service Act 1990 and police are liable for a breach of the Police Service Regulations 1990, should they fail to comply with their provisions.”

13. Section 8(4).

14. Hayes and Craddock at 61.

15. Report of the Joint Committee on the Office of the Ombudsman Inquiry upon the Role of the Office of the Ombudsman in Investigating Complaints Against the Police (April 1992). The Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 (NSW), which came into force on 1 July 1993, repealed the Police Regulation (Allegations of Misconduct) Act 1978 (NSW) and inserted a new Part 8A into the Police Service Act 1990 headed “Complaints about Conduct of Police Officers”. One of the other aims of these amendments was to include all principal legislation governing the police in New South Wales in a single Act.

16. Police Service Act 1990 (NSW), s 125-127.

17. Section 125.

18. Section 129.

19. Section 153.

20. Section 141(1).

21. Section 140.

22. Section 141(2).

23. Section 141(6).

24. Part 8A Division 3.

25. Section 153, which came into effect on 1 July 1993.

26. Section 155(2).

27. Evidence given by the Ombudsman, Mr David Landa, to the Parliamentary Committee: Report of the Joint Committee on the Office of the Ombudsman Inquiry upon the Role of the Office of the Ombudsman in Investigating Complaints Against Police (April 1992) at 13.

28. The Ombudsman of New South Wales Annual Report 1991-1992 at 27.

29. NSW Police Service, Internal Affairs Branch Annual Report 1992 at 12. It is also worth noting that there were a further 49 (out of a total of 358) complaint issues for the offence category of “Breaches of Instructions” which were investigated internally, even though the Ombudsman determined that such investigations were not required: at 13.

30. Australia. Law Reform Commission Criminal Investigation (Interim Report 2, 1975) at paras 164, 298; Australia. Law Reform Commission Evidence (Interim Report 26, 1985) at paras 964-966; Australia. Law Reform Commission Evidence (Report 38, 1987) at para 164.

31. New South Wales. Law Reform Commission Evidence (Report 56, 1988) at para 2.38, adopting s 119 of ALRC draft Evidence Bill; and NSWLRC Report 66 at para 6.45.

32. See, for example, R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; Driscoll v R (1977) 137 CLR 517. For the most recent High Court consideration of these discretions see Foster v R (1993) 67 ALJR 550.

33. R v Robinson [1969] 1 NSWR 229 at 230.

34. At 230.

35. R v Lee (1950) 82 CLR 133 at 154.

36. At 154.

37. Collins v R (1980) 31 ALR 257 at 313, 314, 324 per Brennan J; and Van Der Meer v R (1988) 82 ALR 10 at 15 per Mason C J, citing the statement on the Judges’ Rules made by Chief Justices of the Commonwealth, the Australian States and New Zealand on 1 February 1965. See also R v Olsen (unreported) Supreme Court, NSW, Court of Criminal Appeal, 9 February 1989, CCA 436/1987 at 7.

38. R v Warrell [1993] 1VR 671.

39. At 681.

40. R v W [1988] 2 Qd R 308.

41. At 316.

42. At 319.

43. This situation arises, it was held, because, pursuant to s 11(1) of the Police Act 1937 (Qld), the Police Rules are to be treated as part of the Act. The Rules provide, at r 10(2)(1), that: “Each police officer is subject to and shall comply with these rules and the general Instructions and shall obey all lawful orders from those in authority over him.”

44. At 323.

45. NSWLRC Report 66 at para 1.66.

46. NSWLRC Report 66 para 6.7. See also the Australian Law Reform Commission Report Complaints Against Police (Report 1, 1975) at paras 138-143; which proposed a Police Discipline Code with “housekeeping” matters left to General Orders, though with a provision in the Discipline Code relating to disobedience to Orders.

47. Report of the Royal Commission on Criminal Procedure (HMSO Cmnd 8092, London, 1981).

48. Section 67(1)-(7).

49. Section 67(8).

50. Section 67(11), s 78.

51. NSWLRC Report 66 at paras 6.3, 6.6.

52. Police and Criminal Evidence Act 1984 (UK), s 67(7).

53. NSWLRC Report 66 at paras 6.1-6.7.

54. NSWLRC Report 66, Recommendation 8.4 and paras 6.34-6.45.

55. The Hon A M Gleeson “An Overview”, paper presented at the conference Keeping the Peace: Police Accountability and Oversight (Royal Institute of Public Administration Australia and NSW Ombudsman, Sydney, 20-21 May 1993) at 8.

56. NSWLRC Report 66, Recommendation 6 and paras 5.47-5.52.

57. Submission (16 October 1992) at 6.

58. Submission (24 August 1992) at 3.

59. Submission (24 July 1992) at 2.

60. Submission (28 August 1992) at 3.

61. Submission (September 1992) at 6.