Brief Historical Background
1.1 In order to understand fully the basis and purpose of the existing law of arrest and detention, it is necessary to consider briefly the historical background of the requirement under English law that an arrested person be brought before a justice. Before the emergence of justices of the peace, responsibility for the questioning and investigation of persons suspected of having committed criminal offences lay in the hands of the Star Chamber which, along with the ecclesiastical courts
claimed the power to summon a defendant with no warning of the charge to be made against him, and to examine him on oath.1
1.2 The purpose of such interrogations was to obtain confessions from the accused persons, and torture was sometimes used to this end.2 Where a matter was of public importance, this procedure of preliminary inquiry was also conducted by the Privy Council. According to Stephen
The justice of the peace was at first little more than a constable on a large scale whose power even to issue a warrant for the apprehension of suspected persons was acquired by practice, and was not derived from express parliamentary authority.3
1.3 With the enactment of two statutes in the mid-sixteenth century,4 it became the practice for persons arrested for murder, manslaughter or felony to be brought before two justices who were to examine such persons and to record in writing matters material to the charge before considering bail.5 Glanville Williams writes
the justice of the peace was half magistrate, half police officer, and in the latter capacity acted very much like a police detective at the present time except that he was not so scrupulous, whose purpose during interrogation was to obtain a confession from the defendant.6
1.4 Justices, then, played an important role in the initial investigation of an arrested person: they collected statements from witnesses and interrogated the suspect. The nature of the examination of the suspect conducted by the justices was inquisitorial, resembling the role of magistrates in the civil systems on the Continent. The suspect was not permitted to be present while other witnesses were examined, and had no right to examine or cross-examine any evidence.
1.5 Justices originally received no remuneration for their work, as voluntarism was thought to preserve their independence7 (and the public perception of their independence) from the Crown and the government. In 1792, new legislation occasioned the practice of appointing Stipendiary Magistrates attached to Police Offices (the incipient police forces). These magistrates (who received a stipend from the Crown) had all of the normal judicial duties of the Justices of the Peace (who continue to exist), but also served as directors of the police (and were commonly referred to as “police magistrates”).8
1.6 The development of the modern police force in the common law world is traced to the establishment in 1829 of the London metropolitan police by Sir Robert Peel (and the emergence of the English county constabularies just over a decade later). Prior to this the policing function was carried out principally by the yeomanry, civil militia and the army, with great reliance placed on the ancient institution of Hue and Cry until well into the eighteenth century.9 The standing police forces took over the formal prosecutorial functions of arrest and presentment for charges, and subsequently were in a position to take over from the justices and magistrates the functions of interrogation and investigation.
1.7 In 1826, the statutes governing examination of arrested persons by justices were repealed and re-enacted to include misdemeanours as well as felonies. In 1848, they were again repealed by the Indictable Offences Act (the “Sir John Jervis Act”), which effectively established a kind of committal hearing. This procedure saw a shift towards the idea of the presumption of innocence10 of the accused person. Evidence was given by witnesses in the presence of the accused, and he or she could cross-examine. A justice would then administer a caution to the accused person about the right to remain silent. The accused person also was given the opportunity to call his or her own witnesses, who were subject to cross-examination by the prosecution. After hearing and weighing all of the evidence presented, the justice would then determine whether to discharge the accused or commit the accused to trial upon indictment. These new procedures transformed the institution of justice (and magistrate) from that of public prosecutor to one of preliminary judge.11
1.8 Questioning and investigation of a suspect became a police responsibility in practice, although there was no express legal authority for the newly-created police forces to carry out these tasks. Police officers had only the same rights as ordinary citizens to arrest persons suspected of committing crimes. The police did routinely detain arrested persons for questioning prior to handing them over to a justice, but they did so de facto and not de jure.
1.9 The clear determination of when a person should be brought before a justice following arrest was made in the case of Wright v Court & Ors12
It is the duty of a person arresting any one on suspicion of felony to take him before a justice as soon as he reasonably can, and the law gives no authority even to a justice to detain a person suspected, but for a reasonable time until he may be examined.
In this case the accused person had been arrested by a constable and detained for three days, in order that the party whose goods allegedly had been stolen might have an opportunity to collect his witnesses and bring them to prove the felony. A plea seeking to justify the detention was held bad on demurrer and the charges dismissed.
1.10 Wright v Court was decided 23 years prior to the enactment of the Sir John Jervis Act, at a time when the role of the justice was still prosecutorial. Nevertheless, the principle that an arrested person must be brought before a justice as soon as practicable and may not be detained by police for the purpose of investigation became entrenched in the common law and has survived long after both the role of the justice and the organisation of policing were fundamentally transformed.
1.11 This irregular situation was inherited in Australia through the colonial reception of the English common law and legal institutions, and has persisted in most States, including New South Wales. As a consequence, the courts have consistently made strong statements that the police have no power to detain arrested persons for investigation, notwithstanding any detrimental effects this may have on the proper investigation of allegations of criminal conduct.
The Current Law of Arrest and Detention
1.12 The primary purpose of an arrest is the apprehension of a person suspected of the commission of a criminal offence. However, an arrest should also be seen in context as a preliminary step in the process of the prosecution of a suspected offender. The ultimate purpose of an arrest is to ensure the subsequent attendance of the arrested person before a court in the event that a prosecution is commenced. Arrest is not the only means available to achieve this purpose, of course. Attendance can also be required by a summons (issued by a justice), which states the matter of the information and requires the alleged offender to appear before a justice at a specified time and place,13 or by the more modern procedure of the issue of a court “attendance notice” by a senior police officer.14 The courts in New South Wales have recognised that the appropriateness of the exercise of the discretion to arrest must be measured against the circumstances. In Lake v Dobson, Gault v Dobson, Samuels JA queried the necessity to arrest the defendants for nude sunbathing
[S]ince [nude sunbathing] can scarcely be regarded as ranking high in the criminal calendar, it is to be hoped that police will employ a summons in these cases whenever possible. Arrest, for the great majority of people, is equivalent to an additional penalty. It is a means of setting the criminal process in train which should be reserved for situations where it is clearly necessary, and should not be employed where the issue of a summons would suffice.15 (Emphasis supplied)
1.13 Despite its critical importance in the criminal process, the law of arrest remains an amalgam of common law decisions, scattered statutory provisions, and de facto practice. The usual distinction made in relation to powers of arrest is between those powers which may be exercised without the need for a warrant (issued by a justice), and those which may only be exercised on the basis of a warrant.16
1.14 At common law, a police officer may arrest without warrant a person whom the officer reasonably suspects has committed a felony; a private citizen may arrest without warrant only where a felony has actually been committed.17 Both police officers and private citizens may arrest without warrant a person who commits a breach of the peace18 in their presence, provided that they act promptly. An arrest without warrant is also justifiable if it is reasonably believed that the person is about to commit a breach of the peace. Neither police officers nor private citizens have any power at common law to arrest a person without warrant for the commission of a misdemeanour, other than where the offence also amounts to an actual or apprehended breach of the peace.19
1.15 In New South Wales, various statutory provisions supplement the common law of arrest. The most important of these provisions is s352 of the Crimes Act 1900
(1) Any constable or other person may without warrant apprehend,
(a) any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act,
(b) any person who has committed a felony for which he has not been tried,
and take him, and any property found upon him, before a Justice to be dealt with according to law.
(2) Any constable may without warrant apprehend,
(a) any person whom he, with reasonable cause, suspects of having committed any such offence or crime,
(b) any person lying, or loitering, in any highway, yard, or other place during the night, whom he, with reasonable cause, suspects of being about to commit any felony,
and take him, and any property found upon him, before a Justice to be dealt with according to law.
(Sub-sections (3) and (4) of s352 deal with aspects of arrest pursuant to a warrant.)
1.16 There are certain features of this section which should be noted. Section 352(1) confers certain powers of arrest without warrant on both police officers and private citizens, while section 352(2) confers powers only on police officers. The power under s352(2) may be exercised upon the reasonable suspicion of the police officer, and it is not necessary to show that an offence was actually committed by the arrested person. The powers of arrest conferred on a police officer by s352(1)(a) and (2)(a) are broader than those available under common law, since the arrest may be made not only for felonies but also for misdemeanours and other offences created by statute. The authorisation of warrantless arrests by police officers in the circumstances specified in s352(2)(b) (persons lying or loitering on a highway, etc.) also goes beyond the common law. The arrest powers of private citizens are also somewhat broader than under the common law, since s352(1) extends to all statutory offences and not merely to felonies; however, private citizens still are not empowered to arrest on the basis of reasonable suspicion alone.
1.17 There are other provisions in the Crimes Act which confer powers of arrest without warrant. For example, s352A concerns police powers of arrest in cases of certain offences committed outside the State (but within Australia, and also amounting to an offence against the law of New South Wales); s352AA permits a police officer to arrest on the reasonable suspicion that the person is a prisoner unlawfully at large; s353 provides that a person to whom any property is offered, and who has a reasonable suspicion that an offence has been committed in respect of the property, may (and in some circumstances, must) arrest the person offering the property;20 and s353C gives special powers of arrest to the person in command of an aircraft.21
1.18 Arrests under warrant are usually less problematic, although there may be disputes over such matters as: whether the information which led to the issue of the warrant was accurate or sufficient to constitute a prima facie case; whether the judicial officer involved had jurisdiction to issue the warrant; whether the warrant adequately describes the alleged offender and offences; and whether the warrant was properly enforced.22
1.19 At common law a police officer did not have any power to stop or detain a person unless the officer was exercising the power of arrest. Section 357E of the Crimes Act now provides that a police officer may “stop, search and detain” any person (or vehicle) reasonably suspected of having or conveying stolen property or items used or intended to be used in the commission of an offence.
1.20 It is essential to note, however, that neither the common law nor statute law has ever conferred upon police officers a general power23 to arrest or detain a person merely for the purpose of questioning the person or conducting other investigative procedures.24
1.21 The Australian courts traditionally have taken a fairly strict view of the purpose of arrest. In 1933, in Clarke v Bailey,25 Davidson J of the New South Wales Supreme Court held that s352 of the Crimes Act merely reinforced the common law rule that the duty of an arresting officer is to take the arrested person before a justice
without delay, and by the most direct route ... unless some circumstances reasonably justify a departure from these requirements.
Two years later this decision was followed by the New South Wales Court of Appeal in Bales v Parmeter,26 in which Jordan CJ commented
Any detention which is reasonably necessary until a magistrate can be obtained is, of course, lawful, but detention which extends beyond this cannot be justified under the common law or statutory power. Thus it has been held that if in the course of an arrest which is otherwise for a lawful purpose, the arresting constable takes the arrested person to some place to which it would not be reasonable and proper to take him in the course of bringing him before a magistrate, for the purpose of searching him there, the detention in that place and the search are unauthorised and therefore actionable...27
Jordan CJ added
If a person has been arrested, and is in the process of being brought before a magistrate, questioning within limits is regarded as proper in New South Wales ... but a police officer has no more authority to restrain the liberty of a suspected person for the purpose, not of taking him before a magistrate, but of interrogating him, than he has of restraining the liberty of a person who may be supposed to be capable of supplying information as a witness.28
1.22 Another passage from a judgment delivered by Jordan CJ nearly a decade later emphasises the strength of the New South Wales judiciary’s traditional approach to arrest and detention, and the sense of frustration in failing to secure police compliance with the common law requirements.
It appears, from recent cases that have come before this and other Courts of this State, that this rule of law with respect to arrests is being disregarded, and that arrested persons are being taken, not to a magistrate to be charged, but to a police station, where they are questioned by the police, sometimes for many hours, in the hope of extracting from them something that can be used in evidence against them ... Indeed, there seems to be a growing impression in police circles that so long as a constable, after making an arrest, gives the usual caution, there are no limits to the extent to which he may go, short of violence, threats, promises, or lies, in endeavouring to extract admissions from his prisoner. If these methods are tolerated, it is a short step to the moral, if not physical, tactics of the Gestapo and the Ogpu.29
1.23 Half a century later, in the case of R v Iorlano,30 the High Court of Australia adopted the strict interpretation of the purpose of arrest established by the Supreme Courts in New South Wales,31 Victoria32 and South Australia.33
1.24 The English common law prior to 1965 was in accord34 with the Australian approach. However, in that year the English Court of Appeal handed down its judgment in Dallison v Caffery.35 In that case Lord Denning MR held (and Danckwerts LJ agreed) that
When a constable has taken into custody a person reasonably suspected of felony, he can do what is reasonable to investigate the matter, and to see whether the suspicions are supported or not by further evidence. He can, for instance, take the person suspected to his own house to see whether any of the stolen property is there; else it may be removed and the valuable evidence lost. He can take the suspect to the place where he says he was working, for there he may find persons to confirm or refute the alibi. The constable can put him up on an identification parade to see if he is picked out by the witness. So long as such measures are taken reasonably, they are an important adjunct to the administration of justice. By which I mean, of course, justice not only to the man himself but also for the community at large.36
1.25 Dallison v Caffery was a case in which the appellant, Dallison, sued a police officer for damages for false imprisonment and malicious prosecution. Dallison had been arrested for allegedly stealing from a solicitor’s office. Dallison immediately offered an alibi defence, which was subsequently vindicated at trial. In the civil action which followed, Dallison’s argument was that he was unlawfully detained when he was taken to his place of work to check his alibi and to his home to search for the stolen property prior to being taken before a justice. The Court of Appeal found (confirming the judgment of the trial court) that, as Dallison was protesting his innocence, these procedures were in his own interest and, at least in part, at his own request. Further, he suffered no harm as a result and he would not have been taken before a justice or bailed “one moment earlier” in any event.
1.26 Thus there was no actual delay here in bringing an arrested person before a justice, and there was a strong element of consent and self-interest in the procedures taken by the police. Nevertheless this decision was cited regularly to support the much broader proposition that it is lawful for a police officer to delay taking an arrested person before a justice, for the purpose of conducting further investigations, so long as the delay is reasonable in the circumstances. Subsequent English decisions extended these circumstances. In R v Holmes,37 Donaldson LJ described the requirement that an arrested person be brought before a justice as soon as practicable as a “slightly elastic concept”, considering that "'as soon as practicable' ... means 'within about forty-eight hours at most'." In the 1984 House of Lords decision of Holgate-Mohammed v Duke,38 Lord Diplock expressed the view that it was a proper purpose of arrest to use the time of detention to confirm or dispel the reasonable suspicion upon which the arrest was made. (The English common law in this area was abrogated in any event by the enactment of the Police and Criminal Evidence Act 1984 (“PACE”), which took effect from 1986. PACE expressly authorises detention after arrest for the purpose of investigation. See Chapter 4, below.)
1.27 In the United States, where the courts have tended to be relatively rigorous on questions of police powers and criminal procedure because of the Constitutional Bill of Rights dimension to American criminal law, the courts have nevertheless authorised a reasonable period of “investigatory detention” in certain circumstances, particularly where there is a “reasonable and articulable suspicion” that the person is involved in criminal activity relating to drugs.39 This is an area where the American pre-occupation with drug crime has led the courts and the legislatures to move away from erstwhile fundamental concerns about individual liberty and restraints on the exercise of State power.40
1.28 The decision in Dallison v Caffery had echoes in the Australian courts. For example, in the New South Wales case of R v Kushkarian,41 Street CJ held that it was reasonable and appropriate for the arrested person to have been detained in police custody for twelve hours while the arresting officers followed up the reasonable suspicions which led to the arrest in order to confirm or refute these suspicions. In Clark v The Queen,42 Neasey J of the Tasmanian Court of Appeal wrote
reasonable practicability must permit [police officers] to place themselves in a position to decide whether a charge shall be laid, and if so what charge. In order to do so they must investigate and assess the then presently available evidence, in as thorough a manner as the circumstances permit.
1.29 The issue of detention after arrest for the purpose of investigation was raised squarely in the 1986 High Court case of Williams v The Queen, discussed immediately below.
The Williams Case and its Successors
1.30 In the early hours of 17 May 1984, police in the northern Tasmanian town of Scottsdale received information alleging that Williams was seen in a hotel, apparently in the act of burglary. After a car chase, Williams was arrested at about 6 am and taken to Scottsdale police station. Two officers came up from Launceston, arriving at 8:45 am, to question him about a number of other burglaries. The officers took Williams back with them to Launceston, arriving at the station at about 11 am. After some initial discussion, Williams allegedly indicated his involvement in the other offences. At 1:10 pm the police began to conduct formal interviews, with the last one concluding at 8:30 pm. The records of interview were all unsigned, but at 9:03 pm Williams was brought before a police inspector and allegedly confirmed the correctness of the records. Williams was finally taken to court in Launceston at 10 am the next day (although problems with court administration meant that his case was not actually dealt with by a justice until 2:15 pm).
1.31 At the subsequent trial, on voir dire, the trial judge held that the confessions were all voluntarily made, and admitted the records of interview relating to counts 27-29 of the indictment, which dealt with the Scottsdale burglary. However, the trial judge exercised his discretion to exclude the records of interview relating to the Launceston burglaries (counts 1-26) on the basis that these interviews were conducted while Williams was unlawfully detained. Section 34A(1) of the Justices Act 1959 (Tas) requires the police to take an arrested person “before a justice as soon as is practicable after he has been taken into custody.” Section 303(1) of the Tasmanian Criminal Code also imposes a duty on the person who effects an arrest to take the arrested person “before a justice without delay, to be dealt with according to law.” The trial judge considered that the police could have reasonably completed the investigation and the necessary documentation and brought Williams before the court on the Scottsdale charges at about 2:15 pm on the 17th. Instead, they continued to interrogate him about the other matters for some hours, delaying his appearance in court by about 20 hours. In rejecting the evidence, the trial judge commented that “public policy considerations should induce me to discourage what occurred here”.43
1.32 The Crown then led no evidence on counts 1-26 at the trial and the jury was directed to acquit on those counts. Williams was convicted of two counts of burglary and one of theft (counts 27-29). The Crown appealed successfully against the acquittals to the Tasmanian Court of Appeal, which ordered a re-trial on counts 1-26. Williams then sought leave to appeal to the High Court of Australia.
1.33 In the High Court, four of the five judges expressly declined to follow the lead of Denning MR in Dallison v Caffery and the succeeding English cases, and instead re-affirmed the more strict Australian common law approach of prohibiting detention after arrest for the purpose of further investigation. The joint judgment of Mason J (now CJ) and Brennan J reviewed the Australian authorities44 and agreed with the remarks of Hampel J in R v Larson & Lee45 that the requirement that an arrested person be brought before a justice as soon as is practicable, and without any delay occasioned by police investigations, amounted to a basic safeguard for persons in police custody.
That view is surely right. If a person cannot be taken into custody for the purpose of interrogation, he cannot be kept in custody for that purpose, and the time limited by the words “as soon as practicable” cannot be extended to provide time for interrogation. It is therefore unlawful for a police officer having the custody of an arrested person to delay taking him before a justice in order to provide an opportunity to investigate that person’s complicity in a criminal offence, whether the offence under investigation is the offence for which the person has been arrested or another offence.46
1.34 Mason and Brennan JJ took pains to emphasise the importance of a common law rule which safeguarded personal liberty, even where this impinged upon the effectiveness of police investigations.
The jealousy with which the common law protects the personal liberty of the subject does nothing to assist the police in the investigation of criminal offences47 ...
The jealous protection of personal liberty accorded by the common law of Australia requires police so to conduct their investigation as not to infringe the arrested person’s right to seek to regain his personal liberty as soon as practicable. Practicability is not assessed by reference to the exigencies of criminal investigation; the right to personal liberty is not what is left over after the police investigation is finished.48
1.35 The joint judgment states that if the balance between personal liberty and the exigencies of criminal investigation has been wrongly struck by the common law, then it is a matter for the legislature and not the courts to strike a new balance.
If the legislature thinks it right to enhance the armoury of law enforcement, at least the legislature is able - as the courts are not - to prescribe some safeguards which might ameliorate the risk of unconscionable pressure being applied to persons under interrogation while they are being kept in custody.49
1.36 The joint judgment of Wilson and Dawson JJ is in similar terms.
[A]rrest is the beginning of imprisonment and, whilst it is recognized that imprisonment before trial may be necessary in the administration of criminal justice, it must be justified in accordance with the law. ... The point at which an arrested person is brought before a justice upon a charge is the point at which the machinery of the law leading to trial is put into operation. It is the point from which the judicial process commences and purely ministerial functions cease. This being the purpose of arrest, any delay in bringing a person under arrest before a justice, even if it is to effectuate some other purpose such as the questioning of the person in order to dispel or confirm the suspicion which was the basis of the arrest, is to defeat, however temporarily, the true purpose.50
1.37 Wilson and Dawson JJ also noted that the common law requirement could make things difficult for the police.
It would be unrealistic not to recognise that the restrictions placed by the law upon the purpose for which an arrested person may be held in custody have on occasions hampered the police, sometimes seriously, in their investigation of crime and the institution of proceedings for the prosecution. And these are functions which are carried out by the police, not for some private end, but in the interests of the whole community. Instances of legislative modification of the common law in recent times may be seen as reflecting a need which the common law no longer meets.51
Wilson and Dawson JJ agreed with the joint judgment of Mason and Brennan JJ that the legislature was better placed to modify the common law, to ensure that other safeguards are put in place to replace those that are removed.52
1.38 Gibbs CJ, while joining in the unanimous verdict to allow the appeal,53 took a different approach to the question of custodial interrogation. He agreed with the many Australian cases which have established that there is no power to detain a citizen merely for the purpose of questioning and that the desire to question an arrested person does not in itself justify a delay in bringing the person before a justice.54 However, Gibbs CJ was prepared to give police more latitude, considering that “what is reasonably practicable in a particular case is a question of fact” which depends upon “the conditions under which the arrest was made.”55 Contrary to the views of the rest of the Court, Gibbs CJ considered that
A police officer who has arrested a person reasonably suspected of having committed a crime must be allowed time to make such inquiries as are reasonably necessary either to confirm or dispel the suspicion upon which the arrest was based. It will not be improper to question the arrested person ... and it may be only fair to do so, although it will be improper to persist in questioning such a person after he has indicated that he does not wish to answer any more questions.56
1.39 Gibbs CJ then cited Lord Denning’s remarks in Dallison v Caffery for the proposition that other investigative procedures which may be reasonably necessary before an arrested person can be brought before a justice would include searching the person’s house, taking the person somewhere to support or disprove an alibi, and conducting an identification parade.57
Although a justice may be found to be available, it may not be practicable to bring the arrested person before him until the necessary inquiries have been completed; on the other hand, the discretion which the police must exercise is not unfettered and does not allow them to hold an arrested person in detention until they decide to charge him if the period of detention exceeds what is reasonably necessary to make inquiries to enable charges to be laid, to prepare the necessary papers and to bring the arrested person before the justice. ... The critical question is whether the arrested person was detained any longer than was reasonably necessary ... the fact that he is questioned ... will not necessarily mean that there has been a failure to bring him before a justice as quickly as was reasonably practicable. On the other hand, if he is detained, not for that purpose, but solely for the purpose of questioning him, the detention will be unlawful. The line may be a fine one, as it often is when a discretion has to exercised in sensitive matters.58
1.40 It must be noted that the Australian common law cases, including Williams, do not prohibit questioning or investigation of the arrested person by the police. Rather, they prohibit delaying the processing (taking the person before a justice or granting police bail) of the arrested person in police custody for these purposes. In their joint judgment in Williams, Mason and Brennan JJ stated
There is nothing to prevent a police officer from asking a suspect questions designed to elicit information about the commission of an offence and the suspect’s involvement in it, whether or not the suspect is in custody. But if the suspect has been arrested and the inquiries are not complete at the time when it is practicable to bring him before a justice, then it is the completion of the inquiries and not the bringing of the arrested person before a justice which must be delayed. ... The making of inquiries is not a ground for extending the period of custody and denying the subject an opportunity of securing his release either absolutely or on bail by a justice’s order.59
1.41 Strictly speaking, it could be argued that the High Court’s decision in Williams is not binding in New South Wales, since the court was asked to consider the effect of particular words in the Tasmanian statutes.60 However, the two joint judgments clearly set out to establish (or more precisely, to re-affirm) an Australian common law position. This position is not altered by any legislation in force in New South Wales at this time, and both joint judgments rely on the earlier New South Wales decisions, notably Clarke v Bailey, Bales v Parmeter and Ex parte Evers; Re Leary. Further, the New South Wales Police Commissioner’s Instructions were revised with the (unsuccessful) intention of complying with the High Court’s decision.61 In several recent decisions the New South Wales Court of Criminal Appeal has used Williams as the basis for discussion of the issue of custodial interrogation.
1.42 The first major post-Williams case in New South Wales was R v Burns.62 Burns was arrested at 6:15 pm on 11 November 1985 regarding the alleged possession of amphetamines. He was taken to Newcastle police station, arriving at 6:30 pm. Between 6:30 pm and midnight, Burns was in police custody at the station, but was not questioned as the police officers were making inquiries about the involvement of another person. At about 2:00 am, the police began to interview Burns, and at 3:45 am he allegedly admitted to possession of a quantity of heroin (“I bought it as speed but it is heroin”) which was later found at his home and was sufficient for him to be charged with “deemed supply”. Burns was taken before a magistrate at 10:00 am that morning (the 12th) and released on bail.
1.43 Burns was convicted at trial on the deemed supply of heroin charge, and appealed. At trial, the defence made an unsuccessful submission that the detention of Burns in police custody after about 7:00 pm was illegal, and that the confession was therefore unlawfully obtained and should be excluded in the exercise of the court’s discretion. The key issue on appeal was whether it was practicable to have taken Burns before a justice on the night of his arrest. In the opinion of Street CJ (with whom Allen and Mathews JJ agreed)
the question is not so much the purpose for which the police used that period of detention - that is to say, for the purpose of pursuing further inquiries, and conducting an interrogation. The question rather is, whether it was practicable to bring him before a justice in order to charge him formally, and enable the question of bail to be considered, at a time prior to his making the admission in question.63
1.44 The Court of Criminal Appeal concluded that Burns had not been subjected to an unreasonable delay.
The suggestion that a Justice could have been brought back to the police station in order to open his court, and exercise his judicial function, appears to me to involve some excess of the expectation of the common law that the bringing of the person before a Justice should be as soon as practicable.
The requirement is not absolute. It is a requirement tinged, as are most common law principles, with an element of reasonableness and I see nothing unreasonable in the proposition that the requirement is not offended merely by reason of the failure of the police to go and find a Justice somewhere and bring him back to the police station in order to exercise his function.64
1.45 In passing, the Court also considered the argument that the requirement in s352(1) of the Crimes Act, to bring the arrested person “before a Justice to be dealt with according to law”, could be satisfied by taking the arrested person before a senior officer at the police station who has limited statutory rights (under the Bail Act 1978) to grant bail. The Court rejected this approach, stating that the reference to a “Justice” must be given its ordinary meaning, which is “magistrate”.65
1.46 In R v Zorad,66 the accused was arrested in a motor vehicle at Gosford at about 10:00 pm. He was taken to Gosford police station, and questioned at about 11:30 pm. Admissions allegedly were made. At 3:20 am he was “charged” by police with supplying cannabis and robbery with striking. Zorad was brought before a magistrate later that morning; the matter was adjourned and bail refused. Zorad, still in custody, was questioned by police again the next day. At trial, the accused gave evidence that he was left in police cells for what “seemed like hours” before being interviewed. Zorad was unrepresented at trial, and the Williams point was not expressly raised nor picked up by the trial judge. Zorad appealed from his convictions.
1.47 As in Burns, the Court of Criminal Appeal rejected the arguments that:
(1) the requirement of bringing the arrested person before a justice could be by having a senior police officer make a bail determination; and (2) the common law requires that special efforts be made to find a magistrate outside of normal court hours. The Court also found that even if there was a “delay in compliance of a little over an hour at the time when the first interrogation took place [this] could hardly be regarded as serious”.67 The Court pointed out that the admissions were found to be voluntary by the trial judge, so that a breach of the law did not automatically result in exclusion of the evidence,68 and that “this was not a case for the exercise of a discretion to reject such admissions.”69
The Problem with the Common Law
1.48 The decision of the High Court of Australia in Williams represents a strong restatement of the common law’s traditional concern about the liberty of the individual, even in the face of the practical exigencies of policing in modern, urbanised society. As a matter of practice, however, the decision does little else, since the grand rhetoric of the common law has never been matched by detailed and enforceable rules and procedures which would give real meaning to the “rights” and safeguards. At the same time, it imposes artificial constraints on the police, who are obliged, in their own view, to regularly skirt or breach the law in order to investigate properly allegations of criminal activity.
1.49 Taken at its broadest, the common law guarantee re-affirmed by the joint judgments in Williams is that an arrested person in police custody must be taken before a justice as soon as is practicable, and the person may not be detained beyond this time merely to facilitate police investigations. However, at least as seen through the eyes of the New South Wales Court of Criminal Appeal, “the jealous protection of personal liberty accorded by the common law of Australia”70 is limited to non-holiday weekdays between 10:00 am and 4:00 pm, when the Local Court is sitting. The decisions in Burns and Zorad make clear that the courts will not require the police to seek out the services of a judicial officer “after-hours”, nor has there been judicial pressure on the government to provide 24-hour courts or other institutions or procedures to deal with the large number of cases where magistrates inevitably will not be conveniently available.71 In one recent unreported case, however, the New South Wales Court of Appeal did comment on this issue in passing, although the point was not litigated before the Court.
The Court emphasises the importance of the legal obligation where a person has been arrested and charged that he or she should be taken as soon as practicable before a justice. ... It is highly desirable, for the preservation of the proper relationship between the police and the judiciary, that arrangements should be made for this to be done, where necessary, during weekends and after hours. The obligation is one of abiding importance. It is to be observed at all times and not simply during usual working hours of weekdays. This requirement recognises the right to liberty of the citizen by ensuring that an accused person is transferred as soon as practicable after being charged by the executive branch of government to the judicial branch of government where the question of bail can be independently considered.72
1.50 The decisions also highlight the fact that the common law does not match up with modern criminal procedure, which has dispensed with the necessity for judicial intervention in many cases where matters may be handled administratively with greater speed and efficiency for the benefit of both the police and suspects. For example, in most cases (other than the most serious ones), bail is now granted at the discretion of senior police officers.73 Only where the police refuse bail is there the need to approach a court. Similarly, in the great majority of cases where bail is granted or is not an issue, it is the norm for police to “charge” the person rather than to bring the person before a court for that purpose. Given the limited availability of judicial officers, and the alternative of continued detention in police custody, few would argue that shifting primary responsibility for bail and charging from justices to police has detracted from civil liberties.
1.51 The failure of the common law to match concern with practical application has at least three quite unfortunate results. First, the treatment that an arrested person receives will vary dramatically - and arbitrarily - depending upon the time of arrest. A person arrested at 10:00 am on a Tuesday could expect to be taken before a justice as soon as police complete the necessary paperwork, which should take no more than an hour in most cases. This may well significantly hamper police investigations if they comply with the law, particularly since there is a significant difference between the level of evidence needed to justify an arrest and that (greater) level needed to lay a criminal charge.74 However, a person arrested at 4:00 pm on a weekday need not be taken before a justice until 10:00 am the following morning, and could be subject to many hours of interrogation and other investigative procedures (such as identification parades). A person arrested at the weekend, particularly a long (holiday) weekend, could spend some days in police custody, all the while subject to questioning and investigation.
1.52 The second problem follows from the first: it is in the interests of police, especially in complex cases, to purposely effect an after-hours arrest in order to gain substantially more time to complete their investigations. There is nothing actually unlawful in this gimmickry, but it is not a sound or ethical basis on which to operate a system of criminal investigation. In the course of the recent Royal Commission of Inquiry into the circumstances surrounding the arrest and charging of Insp. Harry Blackburn, it emerged that the arresting officers had received and followed the advice of a senior Crown Prosecutor to stage the arrest at “4:00 pm or so”, rather than the planned 6:00 am, in order to give themselves more time for questioning and to avoid the Williams issue.75
1.53 Finally, there is the problem that police may simply ignore the common law requirement to bring the arrested person before a justice when they see this as substantially interfering with the proper investigation of a case. In the course of its consultations, the Commission learned from numerous senior police officers that police would be willing to “risk it”, particularly in serious cases, rather than lose potentially valuable evidence.76
1.54 There is, in fact, not much risk for police in ignoring the common law requirements. An unlawfully detained person may be able to secure release by applying for a writ of habeas corpus. Such a person may also be able to bring actions for assault, false imprisonment or malicious prosecution.77 For a plaintiff, however, there are grave problems of delay, costs, proof, and quantifying damages. Although abrogated by statute in New South Wales in 1983,78 at common law there was also a rule that the Crown and the Commissioner of Police were not, as employers generally are, vicariously liable for the wrongful act of a police officer exercising an “independent discretion”.79 Consequently, these civil remedies are not commonly used and are even more rarely successful, inviting only “the most intrepid complainant.”80 More commonly, persons who believe that they have been unlawfully detained by police will complain to the Ombudsman or to the Police Board. The Police Regulation (Allegation of Misconduct) Act 1978 requires that where a complaint is investigated the investigation shall be conducted by the Police Internal Affairs Branch (s19). The Ombudsman is given a supervisory role under this regime (ss 24-25), but basically the investigation of complaints against the police is under police control. In 1989 there were 71 formal complaints against police for unnecessary detention or arrest, but only one was sustained.81 The Police Regulation Act 1899 (ss 14-15) also sets out various offences of police misconduct. There are reasonably substantial maximum penalties available for some offences, such as soliciting or taking bribes ($2000 fine or two years imprisonment) or aiding and abetting the escape of a prisoner ($100 or six months). However, breach of a procedural rule or the poor exercise of discretion would come under the “neglect of duty” heading, which attracts a maximum penalty upon conviction of a $10 fine for a first offence and $40 for subsequent offences.
1.55 In practice, the most likely forum for testing the lawfulness of police treatment of an arrested person is at the subsequent trial of that person and, more particularly, on voir dire, when the accused person challenges the admission of any evidence that is a product of the period in police custody, such as a record of interview.
1.56 In the United States, the need to impose discipline on the large number of police forces in that country82 led the Supreme Court to impose a blanket exclusionary rule in respect of unlawfully obtained evidence.83 In Mapp v Ohio, the U.S. Supreme Court reviewed all the other mechanisms suggested for ensuring police compliance with criminal procedures and civil liberties - prerogative writs, ombudsman investigations, internal police disciplinary procedures, and civil suits - and expressly rejected all of them as historically unsuccessful and not likely to succeed in the future. The Court concluded that the only realistic and effective disincentive to police misconduct was to automatically exclude all unlawfully obtained evidence.84
1.57 The Australian common law courts have not developed an exclusionary rule, relying instead on an approach which gives the trial judge in each case a discretion to exclude evidence if its admission would operate unfairly against the accused,85 or if its probative value is outweighed by its prejudicial effect on the accused’s case,86 or (in exceptional circumstances) if admission would not be in the public interest because of the illegal or improper manner in which the evidence was obtained.87 Questions of production and admissibility of evidence are dealt with in Recommendations 7 and 8, which are discussed in more detail in Chapter 6.
1.58 Many of the submissions received by the Commission made the point that it was uncommon for confessional evidence which the trial judge had determined to be “voluntary” to be excluded in the exercise of discretion on the basis of unfairness or prejudice to the accused,88 and that it was even more rare for voluntary evidence to be excluded on the basis of the public interest test.
1.59 Even if this were not so, there are strong arguments against relying upon retrospective judicial consideration as the primary means of monitoring the exercise of police powers and ensuring the proper treatment of suspects in police custody. Dixon and others, in their studies of the legal regulation of policing in England,89 note that the courts: (1) generally view the detailed laying-down of rules of procedure for the police as a legislative function; (2) are reluctant to interfere with “operational” discretion, particularly in emergent circumstances; and (3) tend to approve of the results of police interrogation and investigation, which overshadow the methods. It is the principal concern of the trial judge in a criminal case to ensure that all of the cogent evidence which goes to the guilt or innocence of the defendant is presented to the jury. Any role that trial judges - or indeed judges of appeal - have in maintaining effective police discipline and propriety is clearly seen as secondary. The Commission received many submissions from members of the judiciary which emphasised that there is a compelling community interest in ensuring that accused persons who are factually guilty are found guilty by a court. Thus, there is a real reticence about excluding probative evidence at trial in order to “punish” the police for some wrongdoing.
1.60 Further, the significant informality and uncertainty surrounding most aspects of the law of criminal investigation have meant that the judiciary traditionally has been somewhat tolerant of breaches by police, on the basis that it is difficult for police to ascertain the correct procedures in order to comply with them. Feldman has recently noted that the attitude of the courts in England on this matter has changed markedly since the introduction of legislation (PACE) and detailed Codes of Practice which clearly set out the proper procedures for police to follow in dealing with suspects.
The judges in the Crown Courts and the Court of Appeal seem to have moved away from the traditional notion that it is not the judiciary’s job to discipline the police. They treat the regulation of police practices as being at least as important an objective as procedural fairness in the criminal process. ...the judges now see themselves as having a disciplinary and regulatory role in maintaining the balance between the powers of the police and the protection of suspects.90
1.61 However, even with “a renewed judicial commitment to rule of law principles and the ideal of legal accountability for the exercise of police powers,”91 the courts are not well-placed to be the principal regulators of police conduct.92 The guilty plea is the central empirical fact in our criminal justice system, with over 80 per cent of people charged with indictable offences in New South Wales pleading guilty to the charge(s).93 The guilty plea serves to sanitise police impropriety,94 since the only issue left for the courts is sentencing. In the other cases, there is no guarantee that questions of police conduct will be ventilated at trial. Counsel may believe, for example, that raising such questions would be futile, tactically unwise,95 or might unnecessarily divert attention from the key issue of culpability.
The Need for Reform
1.62 The Commission finds it remarkable that an area of law of such fundamental importance to personal liberty has been left in a state which is so informal, so uncertain and so inconsistent for so long. This is true not only of the law surrounding detention after arrest (Williams), but also of the whole area of criminal investigation, including the safeguards which are meant to be available to suspects and the consequences for breach of procedural rules or for the poor exercise of discretion. It is highly unlikely that an area of law which dealt with the ownership of property would have been allowed to remain in this state without urgent legislative attention. At present we still give police officers
badges of authority, clubs and guns and then leave them without rules to guide and limit them.96
1.63 The unsatisfactory state of the current law is not for the want of major reports, inquiries and recommendations, but rather because of the failure to implement any of these proposals. Justice Michael Kirby, now President of the New South Wales Court of Appeal, has described the reform of criminal investigation as a “graveyard of reports”.97
1.64 The failure to take action may be explained in part by the absence of public clamour for reform of the criminal process, which is itself explained in part by public misconceptions about the true state of the law. The ideology of the rule of law and the associated language of “rights” are strong in Australian society.98 Most Australians probably believe that, if arrested, they have a “right” to make a telephone call to a family member or friend; a “right” to receive a caution about the right to remain silent; a “right” to receive legal advice about their position, and so on. This view is strongly reinforced in popular culture by countless American police drama programs on television, in which suspects are apprised of their panoply of rights and criminals get off on “technicalities” when the police err in some respect.
1.65 Unfortunately, it may well be that most Australians know more about their rights under the American Constitution than under their own system of law. In New South Wales, the Police Commissioner’s Instructions do advise police that suspects should be cautioned, permitted phone calls, and allowed access to legal advice,99 but the Instructions do not have the full force of law and cannot be seen as the source of any legally enforceable “rights”. The gap between the hortatory of the common law in this area and enforceable rights was highlighted by the 1979 case of McInnis v The Queen,100 in which the majority of the High Court of Australia held that it was a bad thing that the accused was put to trial on serious charges without the benefit of a lawyer, but there was no right to legal assistance provided by the common law in the absence of some specific statutory guarantee. There is no New South Wales equivalent of the American Bill of Rights, and there is no legislation which brings into force domestically the International Covenant on Civil and Political Rights, which Australia has signed.101
1.66 The Commission is convinced that there is a pressing need for the development of a comprehensive set of rules governing the conduct of criminal investigations, with a basic legislative framework supplemented by detailed Codes of Practice. The rules must be of practical utility, recognising the operational context in which they are to be used. This means that the rules must be expressed in language and concepts which enable both ease of understanding and certainty in their application. These rules would make it possible for the first time for ordinary citizens to have a clear idea of their position when they become involved in a police investigation, and for police to have clear guidelines on the treatment of suspects in custody. It should not be overlooked that police officers vary greatly according to their age, background, attitude, training and experience. The point was made to the Commission by several senior police officers that the average age of the officers under their command was in the early 20s, and that such officers, although highly capable and increasingly well-trained, need clear guidelines under which to operate. As Lord Devlin has written
It is quite extraordinary that, in a country which prides itself on individual liberty [the definition of police powers] should be so obscure and ill-defined. It is useless to complain of police overstepping the mark if it takes a day’s research to find out where the mark is.102
1.67 The present incoherence in the laws governing criminal investigation also occasions many long arguments over evidence in court. The expense and the delay caused by long voir dire proceedings at trial - and then subsequent appeals from the rulings of the trial judge on points of evidence - are costs borne ultimately, if not directly, by the community as a whole. When the operation of the rules becomes clear, one desirable consequence will be to limit the scope for disputes over the admission of evidence. This will free up valuable resources, reducing court delay, legal costs, and time spent in court by police.
1.68 Related benefits arising from the clarification of police powers will be the improvement in the quality of the evidence which is presented at trial, and the reduction of complaints about police abuses. The reliability of the evidence produced in a criminal trial, and the fairness and propriety of the methods used to gather that evidence, naturally have a crucial impact on the standard of justice achieved in that trial, and on public confidence in the integrity of the criminal justice system as a whole.
1.69 The former Chief Justice of Australia, Sir Harry Gibbs, has identified the importance of the issues which are dealt with in this Report.
I venture to think that no reform of the criminal law would be more important in practice than that which would satisfactorily define the powers of the police to question and search, the rights of the suspect during police questioning and the consequence of a failure to answer questions. The reason why the law on those matters is so important is because confessional evidence plays a dominant part in the majority of trials. In those cases in which it has been suggested that miscarriages of justice have occurred in Australia in recent times it will almost invariably, if not invariably, be found that the trial was conducted with exemplary care and propriety and that all the rules designed to safeguard the accused were faithfully observed. In those circumstances a miscarriage of justice, if it occurred, will usually have resulted from one of two causes. The first is an alleged deficiency in the scientific evidence... The second is that evidence of confessions or other statements made by the accused was fabricated.103
1.70 The judgments in Williams’ Case expressly invite legislative reform. The joint judgment of Mason and Brennan JJ, after remarking that the common law requirement, at its strictest, “does nothing to assist the police in the investigation of criminal offences”, suggests
If the legislature thinks it right to enhance the armoury of law enforcement, at least the legislature is able - as the courts are not - to prescribe some safeguards which might ameliorate the risk of unconscionable pressure being applied to persons under interrogation while they are being kept in custody.104
The joint judgment of Wilson and Dawson JJ agreed on this point, adding
it is better that legislative change should take place against the background of the common law as it has been understood in this country, which has consistently viewed detention for the purpose of investigation as an unwarranted encroachment upon the liberty of the person.105
1.71 Many other jurisdictions have moved in recent years to introduce more comprehensive legislation to replace the uncertain and incomplete common law, as well as the informal Judges Rules, Police Instructions and other sources of guidance on the exercise of police powers. England and Wales now have the Police and Criminal Evidence Act 1984 (PACE); Scotland the Criminal Justice (Scotland) Act 1980; Victoria the Crimes (Custody and Investigation) Act 1988 (which amends the Crimes Act 1958); the Northern Territory the Police Administration (Amendment) Act 1988 (which amends the Police Administration Act 1979); and South Australia the Police Offences Act Amendment Act 1985 (which amends the Summary Offences Act 1953). The Committee for Review of Commonwealth Criminal Law (the “Gibbs Committee”) has recently recommended sweeping changes to the law in this area,106 as has the Law Reform Commissioner of Tasmania.107
1.72 The Commission now also recommends replacement of the common law (and informal) regulation of this critical area with 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, which is used in only a tiny proportion of criminal matters,108 to the pre-trial process, the site which actually determines the fate of most accused persons. As Sallmann and Willis have written
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.109
1.73 Our Recommendations follow in Chapter 2. Chapters 3 to 7 isolate particular aspects of the reform package and provide further commentary.
FOOTNOTES
1. G Williams, The Proof of Guilt (3rd ed, Stevens, London, 1963) 39.
2. See E Peters, Torture (Basil Blackwell Ltd, London, 1985), which argues, inter alia, that torture was much less a feature of English criminal procedure than it was on the Continent (at 85).
3. J R Stephen, A History of the Criminal Law in England (Vol 1, Macmillan, London, 1883) 217.
4. In the reign of Mary I and Philip (of Spain).
5. Stephen, op cit, at 217-219.
6. Williams, op cit, at 44.
7. L Radzinowicz, A History of English Criminal Law and its Administration from 1750 (Vol 2, Stevens and Sons, London, 1956) 406-408.
8. Ibid, at 189-192.
9. Ibid, at 27.
10. Although the presumption only really gained judicial force with the decision of House of Lords in Woolmington v DPP [1935] AC 462.
11. Stephen, op cit, at 216.
12. (1825) 4 B & C 596; 107 ER 1182.
13. See the Justices Act 1902 (NSW), ss 24, 27, 28, 31, 52, 60, 62, 63 and 66.
14. Ibid, at ss 101AA-101AC.
15. New South Wales Court of Criminal Appeal, Unreported Judgment, 19 December 1980. See also D Brown, D Farrier, D Neal and D Weisbrot, Criminal Laws: Materials and Commentary on the Criminal Law and Process of New South Wales (Federation Press, Sydney, 1990) 964-965; and R Gemmill and RF Morgan-Giles, Arrest, Charge and Summons: Current Practice and Resource Implications (U.K. Royal Commission on Criminal Procedure, Research Study No. 9, 1980).
16. See M Aronson, J Hunter and M Weinberg, Litigation: Evidence and Procedure (4th ed, Butterworths, Sydney, 1988) .
17. See W Hawkins, Pleas of the Crown (Vol 2, Professional Books, London, 1973) ch12; Sir M Hale, The History of the Pleas of the Crown (Vol 2, T Payne and others, London, 1978) 78; and the leading case of Christie v Leachinsky [1947] 1 All ER 567, at 572-578.
18. A breach of the peace usually amounts to an actual assault, the creation of public alarm through wrongful conduct, or obstruction of a police officer in the execution of his or her duty. Merely annoying, disturbing or abusive conduct is insufficient to ground a warrantless arrest, absent some element of actual or threatened personal violence. See, e.g., R v Smith (1876) 14 SCR (NSW) 419; Webster v Watts (1847) 11 QB 311; Spilsbury v Micklethwaite (1808) 1 Taunton 146; Baynes v Brewster (1841) 2 QB 375.
19. See R v Howell [1981] 3 All ER 383.
20. This provision appears to be used rarely in New South Wales and has not been the subject of any judicial attention. Cf Chic Fashions (West Wales) Ltd v Jones [1968] 1 All ER 229, at 241 per Salmon LJ.
21. Section 353C(2)(b) authorises the removal of a person from an aircraft if necessary, but sagely provides that this should not be done “in the course of a flight”.
22. See P Gillies, The Law of Criminal Investigation (Law Book Co, Sydney, 1982) 153 et seq.; Justices Act 1902 (NSW), ss 23, 29, 30, 54, 56, 57, and 65; and Police Regulation Act (NSW) 1899, s26.
23. The Motor Traffic Act 1909 contains a number of provisions which permit police officers to detain a person in charge of a motor vehicle for investigation in particular circumstances, such as the administration of a “breath test”. See ss 4E, 5 and 5C.
24. See Nolan v Clifford (1904) 1 CLR 429; Bales v Parmeter (1935) 35 SR (NSW) 182; Ex parte Evers; Re Leary (1945) 62 WN (NSW) 146; John Lewis & Co v Tims [1952] AC 676; R v Banner [1970] VR 240; and Christie v Leachinsky [1947] AC 573. See also New South Wales Police Commissioner’s Instructions 31.10, para 1: “Police should be aware that they do not have any general power to detain a citizen merely for the purpose of questioning him or her.”
25. (1933) 33 SR (NSW) 303.
26. (1935) 35 SR (NSW) 182.
27. Ibid, at 189.
28. Ibid, at 190.
29. R v Jeffries (1946) 47 SR (NSW) 284, at 288. See also R v Bathgate (1946) 46 SR (NSW) 281.
30. (1983) 151 CLR 678, at 680.
31. See also Ex parte Evers; Re Leary (1945) 62 WN (NSW) 146, at 147.
32. R v Banner [1970] VR 240; R v Clune [1982] VR 1; R v Larson and Lee [1984] VR 559.
33. Drymalik v Feldman [1966] SASR 227, at 234; R v Stafford (1976) 13 SASR 392, at 400-401.
34. See, eg, Dumbell v Roberts [1944] 1 All ER 326 at 329; John Lewis & Co v Tims [1952] AC 676.
35. [1965] 1 QB 348.
36. Ibid, at 367.
37. [1981] 2 All ER 612, at 616.
38. [1984] AC 437, at 445.
39. See United States v Knox (1988) 839 F2d 285; L Maxwell, “US v Knox: The Sixth Circuit Expands the Scope of Investigatory Detention” (1989) 21 Toledo Law Review 241.
40. See Florida v Rodriguez (1984) 469 US 1, at 5.
41. (1984) 16 A Crim R 416.
42. (1984) 17 A Crim R 335.
43. Quoted in the judgment of Gibbs CJ in Williams v The Queen (1986) 161 CLR 278, at 282.
44. See fns 24-31 above, and the accompanying text.
45. [1984] VR 559, at 568.
46. (1986) 161 CLR 278, at 295.
47. Ibid, at 296.
48. Ibid, at 299.
49. Ibid, at 296.
50. Ibid, at 306.
51. Ibid, at 312.
52. Ibid, at 313.
53. Gibbs CJ considered that the appeal to the Tasmanian Court of Criminal Appeal was not against the adverse ruling on the voir dire, but against the acquittals. As the prosecution had offered no proof at trial, an acquittal was inevitable and in the circumstances the Court of Criminal Appeal had no power to grant leave to appeal: ibid, at 286-287.
54. Ibid, at 283.
55. Ibid, at 283-284.
56. Ibid, at 284.
57. Id.
58. Ibid, at 284-285.
59. Ibid, at 300-301, citing King CJ in R v Miller (1980) 25 SASR 170.
60. See the canvassing of this argument in S J Odgers, “Police Interrogation: A Decade of Legal Development” (1990) 14 Crim L J 220, at 225.
61. Instruction 31.10 was revised on 1 July 1989, pursuant to the Police Commissioner’s Circular 88/098. Unfortunately, the revised Instruction is based upon the judgment of Chief Justice Gibbs in Williams, which is at odds with the majority of the High Court on this point. Thus the Instruction tells police officers that it is not an unreasonable delay “to question the arrested person or conduct inquiries to confirm or dispel the suspicion on which the arrest was based.” The Law Reform Commission was informed that the Police Service is seeking to have this Instruction redrafted by the Crown Solicitor’s Office to comply with the majority view in Williams.
62. Unreported, New South Wales Court of Criminal Appeal, No 256 of 1987, 19 August 1988.
63. Ibid, at 10.
64. Ibid, at 11.
65. Ibid, at 7. Cf the remarks of Samuels JA in R v Walsh (Unreported, NSW Court of Criminal Appeal, Judgment No 60257/89, 18 October 1990), at 11-13, in which it is stated that the meaning of “a justice”, according to s4 of the Crimes Act 1900, s13 of the Justices Act 1902, Div 2 of the Bail Act 1978, and s8 of the Local Courts Act 1982, includes a “justice of the peace” and is therefore not limited to a magistrate. This point is not picked up by the other members of the Court, however.
66. (1990) 19 NSWLR 91 (NSW CCA).
67. Ibid, at 99.
68. Citing R v Salihos (1987) 78 ALR 509, at 513-515 and 519-520; and R v Mansted, unreported, New South Wales Court of Criminal Appeal, 20 October 1989.
69. (1990) 19 NSWLR 91 at 99.
70. Williams v The Queen (1986) 161 CLR 278, at 299, per Mason and Brennan JJ.
71. See R v Walsh, op cit, per Samuels JA.
72. Attorney General for NSW v Dean (NSW Court of Appeal, Judgment No 40142/90, 11 October 1990) 3, per Gleeson CJ, Kirby P and Priestley JA.
73. See s18 of the Bail Act 1978, and s153 of the Justices Act 1902.
74. See Commonwealth Life Assurance Society v Brain (1935) 53 CLR 343, at 382; Mitchell v John Heine & Son (1938) 38 SR (NSW) 466, at 469; Glinski v McIver [1962] AC 726, at 766-767; and Williams v The Queen (1986) 161 CLR 278, at 300, per Mason and Brennan JJ. Basically, the arresting officer need only have a “reasonable suspicion” of the commission of an offence, while it is necessary to have “reasonable and probable cause” in order to lay a charge.
75. Justice J A Lee, Report of the Royal Commission of Inquiry into the Arrest, Charging and Withdrawal of Charges Against Harold James Blackburn and Matters Associated Therewith (June 1990) 218-220, and App. at 88.
76. See also the remarks of Samuels JA in R v Walsh, op cit, at 9-10, on police arguments about the difficulties of complying with the law “out there” in “the real world”.
77. See J G Fleming, The Law of Torts (7th ed, Law Book Co, Sydney, 1987) ch 2; F A Trindade and P Cane, The Law of Torts in Australia (Oxford University Press, Melbourne, 1985) Part II.
78. Law Reform (Vicarious Liability) Act 1983, ss 6 and 8.
79. See Enever v The King (1905) 3 CLR 969; Fisher v Oldham Corp [1930] 2 KB 364; Attorney-General for New South Wales v Perpetual Trustee Co (1955) 92 CLR 113; and Griffiths v Haines [1984] 3 NSWLR 653. See also M Aronson and H Whitmore, Public Torts and Contracts (Law Book Co, Sydney, 1982) 24-25.
80. See M D Kirby, “Controls Over Investigation of Offences and Pre-trial Treatment of Suspects” (1979) 53 ALJ 626, at 641.
81. New South Wales Police Department, Annual Report of the Police Internal Affairs Branch for 1989, Appendix B.2.
82. There are approximately 40,000 different law enforcement agencies in the United States, including 14,000 police forces: see A Report by Insp CS Ireland, New South Wales Police Service, to the Law Foundation of New South Wales On the Findings of a Travelling Fellowship to Canada, America and the United Kingdom (1988) 41-42.
83. Mapp v Ohio (1961) 367 US 643.
84. There is some doubt, however, whether the exclusionary rule has actually been very effective in this regard. See K C Davis, “An Approach to Legal Control of the Police” (1974) 52 Texas L R 703, at 704.
85. See Kuruma v R [1955] AC 197; King v R [1969] 1 AC 304; Wendo v R (1963) 109 CLR 559; R v Ireland (1970) 126 CLR 321.
86. See R v Stephens (1985) 59 ALJR 477.
87. See Bunning v Cross (1978) 141 CLR 54; Cleland v R (1982) 151 CLR 1.
88. See, eg, R v Zorad and R v Walsh, op cit, as cases in point.
89. D Dixon, K Bottomley, C Coleman, M Gill and D Wall, “Safeguarding the Rights of Suspects in Police Custody” (1990) 1 Policing and Society 115; see also D Dixon, C Coleman and K Bottomley, “Consent and the Legal Regulation of Policing” (1990) 17 J of Law & Society 1.
90. D Feldman, “Regulating Treatment of Suspects in Police Stations: Judicial Interpretation of Detention Provisions in the Police and Criminal Evidence Act 1984” [1990] Crim L R 452, at 468-469. (See also Samuel [1988] QB 615, at 629 per Hodgson J.)
91. Ibid, at 468.
92. See R v Mason [1987] 3 All ER 481.
93. New South Wales Law Reform Commission, Procedure from Charge to Trial: Specific Problems and Proposals (Discussion Paper 14, Vol 2, 1987) 466.
94. D McBarnet, Conviction: Law, the State and the Construction of Justice (Macmillan, London, 1981) 70-73.
95. See J Baldwin and M McConville, Negotiated Justice (Robertson, London, 1977) ch 4. Baldwin and McConville suggest that defence counsel sometimes fear that making allegations of misconduct against the police could turn the judge against the defendant.
96. Davis, op cit, at 705.
97. Kirby, op cit, at 628.
98. See D Weisbrot, Australian Lawyers (Longman Cheshire, Melbourne, 1990) 44.
99. See Instruction 31.
100. (1979) 143 CLR 575; Cf the dissenting judgment of Murphy J. See also Article 14(3) of the International Covenant on Civil and Political Rights.
101. See generally Review Committee of Commonwealth Criminal Law, Human Rights in Relation to the Commonwealth Criminal Law (Discussion Paper 15, 1988).
102. Lord Devlin, “Police Powers and Responsibilities: Common Law, Statutory and Discretionary” (1967) 2:2 Australian Police Journal 122, quoted in Kirby, ibid, at 631.
103. Opening address, Second International Criminal Law Congress, Surfers Paradise, June 1988; reprinted in (1988) 20 Australian J of Forensic Sciences 252, at 258.
104. (1986) 161 CLR 278, at 296.
105. Ibid, at 313.
106. Committee for Review of Commonwealth Criminal Law, Interim Report: Detention Before Charge (February 1989).
107. Law Reform Commissioner of Tasmania, Police Powers of Interrogation and Detention (Report No. 64, 1990).
108. See Brown, Farrier, Neal and Weisbrot, op cit, at 168.
109. P Sallmann and J Willis, Criminal Justice in Australia (Oxford University Press, Melbourne, 1984) 16.
