1. An Integrated Package of Reforms is Required

The replacement of the existing common law regime on the detention of persons by the police for the purposes of investigation with a statutory scheme is aimed at:

(1) providing clear and comprehensive rules of procedure for police to follow in dealing with suspects;

(2) allowing police a realistic opportunity for proper investigation in the period between arrest and charging a person before a court (or release on police bail), within a regulated structure;

(3) enunciating and enhancing the safeguards available to persons in the custody of police, so that such “rights” become meaningful, realisable, and enforceable;

(4) regularising the treatment of persons in police custody, so that this is no longer contingent on the time or day of arrest, the sophistication of the person involved, the location of the custody, or notions of “voluntariness” or “consent” on the part of the person in custody;

(5) increasing confidence in the integrity of police investigative methods and the evidence subsequently produced in court; and

(6) significantly reducing delays and costs in the criminal justice system by reducing the great amount of time currently spent in criminal trials considering challenges (on voir dire) to the admissibility of Crown evidence.

The recommendations which follow have been designed both to meet the needs of proper law enforcement in a democratic society and to safeguard the position of individuals held in police custody, and are presented as an integrated set. The Commission believes that any partial implementation of the package which dispenses with the notional protections afforded by the common law, while increasing police powers to detain persons in custody, would run contrary to the spirit of this Report.

2. Issues Concerning Arrest and Police Custody

2.1 Relationship with existing law of arrest

The general law of police powers of arrest is outside the scope of this Report. However, there are some related issues which require consideration here in order to give effect to the proposed new regime for detention for the purpose of investigation.

2.2 No general power to arrest merely to question


2.2.1 Nothing in these recommendations is intended to confer any power to detain against his or her will a person who is not under arrest. The Commission recommends that arrest still be predicated on a reasonable suspicion that a person has committed or attempted to commit a criminal offence. In the view of the Commission, extension of police powers of arrest merely to facilitate questioning or other forms of investigation would amount to an unwarranted intrusion upon personal liberty.

2.2.2 It shall be the responsibility of the police officer exercising the function of a custody officer to determine in the first instance whether an arrest without warrant was proper (see Recommendations 3.2 and 3.4).

2.2.3 The use of an artificial “holding charge” as a device to outflank the law of arrest should be strongly discouraged (without limiting other avenues of redress for a person who believes that he or she has been unlawfully arrested) in the Police Commissioner’s Instructions or any new Codes of Practice. Again, it shall be the responsibility of the police officer exercising the function of a custody officer to take responsibility for charging a person.




2.3 The scheme commences when the suspect is arrested or held in police custody

2.3.1 A provision should be adopted which states that, in respect of detention for the purpose of investigation, a person is in custody if he or she is -

(a) under lawful arrest by warrant; or

(b) under lawful arrest under section 352 of the Crimes Act or a provision of any other Act; or

(c) in a police station, police vehicle or police establishment in the company of a police officer, or is otherwise under police control, and is - (i) being questioned; or (ii) to be questioned; or (iii) otherwise being investigated - to determine his or her involvement (if any) in the commission of an offence.

2.3.2 Where a person voluntarily attends at a police station or any other place for the purpose of assisting with an investigation, that person shall be informed at the beginning that he or she is entitled to leave at will unless placed under arrest. If a decision is taken at any time by a police officer to prevent that person from leaving at will, the person shall be informed at once that he or she is under arrest.

2.4 Consent or voluntariness no longer an issue

Following upon the previous recommendation, the Commission wishes to emphasise that “consent” to police detention for the purposes of investigation, and the “voluntariness” of that detention and participation, will no longer be the principal determining factors on the question of the lawfulness of the detention. Rather, the test should be based on the notions of fairness and propriety discussed in Recommendation 8, below, and all persons in the custody of the police must be dealt with according to the same regime.

2.5 Cautioning of persons in police custody

2.5.1 An arresting officer must, at the time of making the arrest, and after informing the arrested person of the fact of the arrest and the grounds for it, caution the arrested person in the following or effectively similar terms:

You have the right to remain silent and you are free to exercise that right at any time. In other words, you do not have to make any statement or answer any questions. If you wish to make a statement or answer questions, anything you say will be recorded and may be introduced as evidence in court.

2.5.2 The police officer administering the caution shall inquire whether the services of an interpreter are needed. Where there is a need for an interpreter, the caution must be given to the person in custody in a language which he or she understands before any statement is taken or questioning is commenced. (This applies in respect of deaf and hearing impaired persons and others with profound communications difficulties, as well as those with limited comprehension of English. See Recommendations 2.5.6 and 5.4)

2.5.3 After the caution, the arrested person shall be informed of the rights to communicate with, or attempt to communicate with, a friend or relative, and to get legal advice about his or her position. If the police officer knows or is informed that the person is a foreign national, the person shall also be advised of the right to communicate with a consular officer. (See Recommendation 5, regarding safeguards.)

2.5.4 If the person is to be detained for the purpose of investigation, the caution shall then also include an explanation of the basic rules of custodial investigation, particularly that : the person may be held by the police for a reasonable period of up to four hours, excluding relevant “time-out” periods; certain investigatory procedures are permitted during this period; an extension of the period of custodial investigation for a reasonable period of up to a further eight hours may be possible in special circumstances; and that at the conclusion of the authorised period, the person must be released or taken before a justice as soon as is practicable.

2.5.5 The caution should be produced in a convenient form for police to carry, but in each case must be administered orally by the arresting officer. Immediately afterwards, the officer shall ask the arrested person whether he or she fully understands the warning. If there is any stated or perceived failure to do so, the caution must be repeated.

2.5.6 The caution and the other information about safeguards available for persons in police custody (see Recommendation 2.5.3) shall also be produced in a written form (in English, and also in a wide range of community languages), to be handed to all persons in the custody of the police. This sheet or brochure should be produced by, or in conjunction with, the Language Services Division of the Ethnic Affairs Commission of New South Wales.

2.5.7 Where a person has not been formally arrested, but is in the custody of the police (within the meaning of Recommendation 2.3) for the purpose of investigation or interrogation, the police must also administer the above caution, as well as making clear that the person is not under arrest and is free to leave police custody at any time.

2.5.8 Where more than one hour has elapsed between the caution and the commencement of questioning, the caution must be repeated before the questioning commences. Similarly, if there is a break of one hour or more during an interview, the person must be cautioned again at the re-commencement of questioning.

2.5.9 Where the initial caution has been given outside the police station at the time of the arrest or of the request for presence at the station, the caution must be repeated at the police station by the custody officer (see Recommendation 3.4, below). This caution at the police station must be adequately recorded, preferably by videotape.

2.6 Transmission of an arrested person to a police station

2.6.1 Where it has been determined by a police officer that an arrested person should be detained for investigative purposes on any of the grounds specified in Recommendation 3.2, the person shall normally be taken as soon as is reasonably practicable after arrest to a police station or police establishment. This will usually be the nearest police station, but circumstances may exist where the location of the alleged offence, the nature of the offence, or the need for specialised personnel or facilities require transmission of the person in custody to a different police station or a police establishment.

2.6.2 This requirement does not apply in circumstances where the police officer who has custody of the person decides in the meantime that the person should be released, or where the police officer believes on reasonable grounds that it is necessary for the arrested person to be taken to a medical practitioner or hospital for immediate treatment.

2.6.3 This requirement does not apply in circumstances where the police officer who has custody of the person believes on reasonable grounds that it is necessary for the arrested person to be taken to the scene of the alleged offence or to another place in order to obtain or preserve evidence, or to recover any property or person.

2.6.4 Upon arrival at the police station or establishment, the arrested person must be brought immediately before a police officer who is for the time being exercising the function of the custody officer, as described in Recommendation 3.4.

2.7 Police expressly held responsible for persons in custody

The Commission endorses the recommendation of the Royal Commission of Inquiry into Aboriginal Deaths in Custody that police officers be made expressly responsible for the safety and well-being of all persons in their custody. Specifically, it shall be the duty of the custody officer to ensure that all persons in police custody are treated in accordance with the legislation implementing these Recommendations and any Codes of Practice which are issued under that legislation. Any breach of this duty shall amount to a disciplinary offence.

2.8 Treatment of persons in police custody

A person shall, while in the custody of police, be treated with humanity and with respect for human dignity. No person shall, while in the custody of police, be subjected to torture or to any cruel, inhuman or degrading treatment. (See also Recommendation 5.6.)

2.9 Police required to maintain complete and comprehensive custody records

2.9.1 The Commission recommends that police be required to maintain complete and comprehensive custody records in respect of all arrested persons and all persons otherwise in police custody. It is already the case that the police prepare and maintain computerised charge sheets and property records in respect of each arrested person, so this requirement would involve only an addition to (and preferably a consolidation of) the existing processes. Any form designed for this purpose should, of course, be clear and easy for police officers to fill in. (Consideration should be given to adapting the model form developed by the British Home Office and the Association of Police Officers to New South Wales conditions.)

2.9.2 Responsibility for maintaining the Custody Record should fall upon the police officer who is for the time being exercising the function of the custody officer described in Recommendation 3.4.

2.9.3 The Custody Record shall require the recording of, among other things, the following information in full detail:

• the name, address and other particulars of the person in custody;
• the name, rank and badge number of the arresting officer and any accompanying officers;
• the name and other details of the officer responsible for reviewing the custody and maintaining the Custody Record;
• the time of the arrest (or of the person coming into police “custody” within the meaning of Recommendation 2.3.1) and the time of arrival at the police station or police establishment;
• the reasons for arrest or taking into custody;
• the grounds for detention for the purpose of investigation (see Recommendation 3.2);
• any property taken from the person;
• the giving of the caution(s) to the person in custody;
• communications (or attempted communications) by the person in custody with friends, relatives, legal practitioners, interpreters, consular officials and others, per Recommendation 5, below;
• the arrival at the police station or otherwise of those contacted, and other visitors;
• the nature and time of all investigative procedures involving the detained person, including interrogation, fingerprinting, photographing, obtaining body specimens and other samples, identification parades and so on (see Recommendation 3.5 regarding the range of permitted procedures);
• the precise times of detention, including any “time-out” factors (see Recommendation 3.6);
• any factors which indicate that a high level of observation of the person in custody is required in order to ensure the safety of the person (see Recommendation 2.9.4); and
• any applications for extension of the period of detention beyond four hours (see Recommendation 4);


2.9.4 The Custody Record should also incorporate the current “arrest check-list” (see Police Commissioner’s Instruction 32.04) for use in respect of all persons in detention. The check-list directs police officers to assess whether a person arrested shows any signs of pain, injury, illness, despondency, guilt, or scars which might suggest previous attempts at self-injury, or severe agitation or aggression, in order to determine whether a high level of observation in custody is required.

2.9.5 The Custody Record shall call for the signature of the person in custody to confirm, among other things, that: a caution was given and the person was provided with a copy; an opportunity was given to communicate with family, friends, legal practitioners, etc.; the property seized (and returned) is accurately recorded; and the other material particulars about the detention, such as the time of detention and the investigative procedures used, are accurately recorded.

2.9.6 A copy of the Custody Record shall be made available to the person at the end of the period of detention, or as soon as practicable thereafter.

3. A Fixed Period of Detention Following Arrest To Be Permitted

3.1 Detention for a reasonable period up to four hours

3.1.1 The general rule shall be that a person who has been arrested or is otherwise in the custody of a police officer may, if the conditions laid out in Recommendation 3.2 are satisfied, be detained in the custody of police for the purposes of further investigation for such time as is reasonable in all the circumstances, but for no more than four hours of actual investigation from the time of initial custody.

3.1.2 All persons in custody must be dealt with expeditiously, and released as soon as the need for detention has ceased to apply.

3.1.3 Before the expiry of the four-hour period, application may be made to a judicial officer for an extension of the time within which to continue custodial investigation, up to a maximum of eight additional hours, in accordance with the provisions of Recommendation 4.

3.1.4 Absent such an extension, no person taken into custody for an offence (or group of offences) shall be questioned or subjected to any other investigative procedure for a period longer than four hours from the commencement of the custody. The “consent” of the person to a further period of questioning shall not, of itself, permit an extension beyond four hours, but such “consent” may be considered by the judicial officer in determining whether (and for how long) to grant an extension (see Recommendation 4.3).

3.2 Grounds for detention following arrest

3.2.1 A person who has been arrested or is otherwise in the custody of a police officer may only be detained for the purpose of investigation if it is necessary:

(1) to follow up reasonable suspicions in order to confirm or dispel these suspicions;

(2) to enable such further investigation and inquiries as are reasonably necessary to determine whether a prosecution will be launched and the nature of the charge(s);

(3) to complete any necessary documentation which requires the presence of the detained person;

(4) to establish the identity of the person; or

(5) to conduct other authorised investigative procedures, as detailed in Recommendation 3.5.

3.2.2 The decision whether a person is to be detained for the purpose of investigation, the determination of a “reasonable period” of detention within the maximum of four hours, and the decision whether to apply to a judicial officer for authorisation of a further period of detention, should all be made by the police officer exercising the function of a custody officer (see Recommendation 3.4, below).

3.3 The determination of a reasonable time for detention

3.3.1 What is a “reasonable period” for detention for the purpose of investigation must be determined by reference to all of the relevant circumstances, including:

(a) whether the presence of the arrested person is necessary for the conduct of any investigation which is intended to be conducted after arrest;

(b) the number and complexity of the matters under investigation;

(c) whether the person has indicated a willingness to make a statement or to answer any questions;

(d) whether a police officer reasonably requires time to prepare for any interview of the person in custody;

(e) whether appropriate facilities are available to conduct an interview or other investigations;

(f) the number and availability of other persons (including alleged co-offenders, the alleged victim, and other material witnesses) who need to be interviewed or from whom statements need to be obtained in respect of the offence for which the person is in custody;

(g) any need to visit the place where the alleged offence is believed to have been committed or any other place reasonably connected with the investigation of the offence;

(h) the total period of time during which the person has been in the company of an investigating official before and after the commencement of custody;

(i) the time taken for police connected with the investigation to attend at the place where the arrested person is being held;

(j) the time taken to complete any forensic examinations which are reasonably necessary to the investigation; and

(k) any other matters which are reasonably necessary to the proper conduct of the investigation.


3.3.2 These factors are to be considered in the first instance by the police officer exercising the function of a custody officer in determining a “reasonable period” of detention within the four hour maximum. These matters must also be considered by the judicial officer to whom an application is made for an extension of the period of detention, to determine whether any such extension is justified, and if so, what further period (up to eight hours) should be authorised. (See Recommendation 4.)

3.3.3 In both cases, the determination of a “reasonable period” shall be subject to an overriding concept of proportionality, balancing the period of custodial investigation necessary against the circumstances and seriousness of the alleged offence and the requirement that the investigation be conducted diligently and expeditiously.


3.4 The function of a custody officer

3.4.1 The NSW Police Service should consider the practicability of the introduction of a formal system of “Custody Officers” in New South Wales to operate the proposed custodial detention scheme.

3.4.2 Until such time as a formal system of Custody Officers is introduced, the Commission recommends that someone in each police station at any given time (hereafter referred to as the “custody officer”) must be given specific responsibility for


(1) determining whether detention for the purpose of investigation is warranted (Recommendation 3.2);

(2) determining what a “reasonable period” of detention is in the circumstances of each case (Recommendation 3.3);

(3) ensuring that the required safeguards, such as the giving of a caution and permitting communication with family and legal advisers, are effectively afforded to the detained person (Recommendations 2.5, 2.9, and 5);

(4) ensuring the safety and well-being of all persons in custody (Recommendations 2.7 and 2.9);

(5) determining whether to apply to a judicial officer for an extension of the period of detention, and preparing or assisting in the preparation of such an application (Recommendation 4);

(6) maintaining the Custody Record for each person in police custody (Recommendation 2.9); and

(7) ensuring that the Codes of Practice for police investigations are complied with (Recommendation 7.1).

3.4.3 Where an officer of higher rank than the custody officer gives directions relating to a person in police detention, and the directions are at variance with any decision made or action taken by the custody officer in the performance of a duty imposed on him or her by these recommendations (or with any decision or action which would have been made or taken in the performance of such a duty, but for the directions), the custody officer shall refer the matter at once to a commissioned officer who is responsible for the police station.

3.4.4 The designated custody officer should preferably be of or above the rank of senior constable or be in charge of the police station for the time being. Unless it is unavoidable, the arresting officer should not act as the custody officer. In such cases, the arresting officer must contact a commissioned officer for authorisation, and note this in the custody record.

3.5 Authorised investigative procedures during detention


3.5.1 During the period of detention for the purpose of investigation, it shall be proper for the police to conduct the following investigative procedures (to the extent that these procedures are already authorised by law):

(1) questioning or obtaining a statement from the detained person;

(2) questioning or obtaining statements from witnesses or other persons who may have relevant information for the police;

(3) searching of the arrested person;

(4) searching of premises, a vehicle or other conveyance;

(5) fingerprinting;

(6) photographing;

(7) conducting medical examinations;

(8) obtaining forensic samples;

(9) subjecting physical evidence to scientific analysis; and

(10) holding identification parades.


3.5.2 Where a person in police custody states or otherwise indicates that he or she does not wish to be questioned, police must not persist. If after the questioning has commenced, the person states or otherwise indicates a desire not to answer any further questions, no further questions should be asked. (See Police Commissioner’s Instruction 31.10).

3.5.3 Codes of Practice should be developed to govern the conduct of these investigative procedures (see Recommendation 7.1).




3.6 “Time-outs” during the period of detention

3.6.1 The following periods of time, during which the questioning or investigation of the person is suspended or delayed, shall not be included in calculating the amount of time a person has spent in custody for the purpose of investigation

(1) the direct travel time from the place of apprehension to the police station or police establishment;

(2) any time spent arranging communication with a relative, friend, consular official or lawyer;

(3) any time spent arranging for the services of a qualified interpreter;

(4) any time spent waiting for the arrival at the police station of a relative, friend, lawyer, consular official or interpreter; and later attend a police station for the purpose of conducting an investigative procedure.

(5) any time spent by the detained person receiving medical attention, or resting, or receiving refreshment;

(6) any period in which authorised investigative procedures (per Recommendation 3.5.1) may not be conducted by reason of the person’s state of intoxication (caused by alcohol or drugs); and

(7) any period during which an application for a detention warrant (per Recommendation 4) is in progress.

3.6.2 Any “time-out periods” to be applied to the four hour time limit for detention (or any greater period which is judicially authorised) must be recorded on the Custody Record (see Recommendation 2.9). Responsibility for recording and calculating the time-out periods shall be placed on the custody officer.

3.7 After the detention period has run


3.7.1 At the end of the authorised period of detention the police must either

(1) release the person without any information being laid; or

(2) release the person on the basis that a summons has issued or will issue against the person; or

(3) charge the person with a criminal offence.

3.7.2 If the decision is made to charge the person, then a further decision shall be made with respect to the granting of “police bail” pursuant to the provisions of the Bail Act. If police bail is denied, or granted on conditions which are unacceptable to the accused, then the person must be brought before a justice or magistrate as soon as is reasonably practicable, and in any event no later than the next sitting of the most appropriate court, following arrival at such court after travel thereto by the most direct route. (In determining the most appropriate court, regard should be had to the need for the case to be dealt with expeditiously, so that the timing of the next sitting of the court is more important than the convenience of the location.)

3.7.3 No further period of detention for the purpose of investigation may be authorised. For example, it should not be possible for bail to be granted conditional on the person’s undertaking that he or she will

3.7.4 The term “charge” is used in this Recommendation to refer to the power of the police in practice to “charge” a person with a criminal offence for the purpose of that person attending court. Section 18 of the Bail Act, 1978, specifically refers to the charging of a person by a police officer, and s353A of the Crimes Act does this by implication. It is common practice for the police to “charge” a person upon a determination of bail. However, a strict reading of the common law, and s352 of the Crimes Act, suggests that the power to formally charge a person with a criminal offence lies only with the courts. It is for this reason that the common law requires that an arrested person be brought before a justice as soon as is practicable.

3.8 Provision against expedient re-arrest

Provision shall be made to guard against the expedient re-arrest of a suspect following the expiry of the authorised investigation period, in order to avoid the limitations on detention imposed by this new regime. It is thus recommended that a person who has already been detained for the purpose of investigation, and released pursuant to Recommendation 3.7, shall not be re-arrested without a warrant and subjected to any further period of investigative detention for the offence or offences for which he or she was previously arrested, unless new material evidence justifying a further arrest has come to light since the release.

4. Extension of the Detention Period in Exceptional Cases

The Commission recommends that there be a presumption that a period of not more than four hours of custodial investigation will ordinarily be sufficient for police to complete their inquiries, and to make the decisions called for in Recommendation 3.7. However, the Commission recognises that in a small percentage of cases, owing perhaps to some special logistical problems or the complexity or number of the charges, the police may need more than four hours of custodial investigation to carry out their duties properly. In such cases, the police may apply, within the four hour initial period, for a warrant to extend the period of detention.

4.1 Application to a judicial officer

Before the expiry of the initial four hour period of custodial investigation (taking into account the “time-out” periods), a police officer (preferably the custody officer) may apply to a court for a “detention warrant” authorising an extension of the period of detention. Such an application may only be heard by a Judge of the District or Supreme Court, a Local Court Magistrate or, if none of these judicial officers is available, a justice employed in the administration of the Local Courts who has been specifically empowered to issue detention warrants. (The role previously played by a justice of the peace in the process of criminal investigation should formally cease.)

4.2 Applications by telephone

During all times when the courts are not in session, some judges, magistrates and designated justices should be available by telephone to hear applications for detention warrants. In such circumstances, an application by telephone is acceptable. Police all over the State should be given a central telephone number to ring, with calls diverted to the judicial officer or justice on duty at any given time. (“Telephone” shall be read to include radio, telex, facsimile and any other communication device.)

4.3 The nature of the application and proceedings

The application for a detention warrant is not restricted to the offence for which the initial arrest was made. Where a police officer in the course of the custodial investigation forms a belief on reasonable grounds that the person has committed another offence, the application for authorisation of an additional period of detention may be based on that offence, or on both the offences.

4.3.1 The detained person and his or her legal representative have no affirmative right to be heard on the application; however, it is open to the judicial officer hearing the application to request to speak to the detained person or the person’s lawyer before making any order.

4.3.2 Given the presumption against any further period of custodial investigation, the onus is on the police officer to satisfy the judicial officer that

(1) the investigation is being conducted diligently and expeditiously; and

(2) a further period of detention without charge is reasonably necessary to preserve or obtain evidence, or to complete the investigation; and

(3) there is no reasonable alternative means of obtaining the evidence other than by the continued detention of the person in custody; and

(4) (a)circumstances exist (having specific regard to the matters listed in Recommendation 3.3) in this particular matter which made it impracticable for the investigation to be completed within four hours (excluding “time-outs”); or

(b) other circumstances of emergency reasonably prevented the particular police officers from utilising a significant portion of the four hour period for the purpose of investigating this matter, which made it impracticable for the investigation to be completed within four hours (excluding “time-outs”).

4.3.3 The application for a detention warrant shall be made on oath and supported by an information. Such information shall state

(1) whether any earlier applications have been made in respect of the same, or substantially the same, matter;

(2) the nature of the offence for which the person to whom the application relates has been detained;

(3) the general nature of the evidence on which that person was arrested or detained;

(4) what investigation has taken place and what further investigation is proposed;

(5) the reasons for believing that the continued detention of the person without charge is reasonably necessary for the purposes of further investigation; and

(6) the extent to which the person in custody is cooperating in the investigation.

4.3.4 The Oaths Act 1900, s11A, should be amended to provide specifically for the administration of, and the taking of, an oath by telephone (or other communication device).

4.3.5 Forms shall be developed for applications for detention warrants and supporting informations, and for orders authorising detention warrants, to facilitate convenient preparation.

4.4 Authorisation of further detention

4.4.1 Where a judicial officer hearing an application is satisfied as to the matters set out in Recommendation 4.3.2, he or she may order a further period of detention for the purpose of investigation. This further period shall be that determined by the judicial officer to be the minimum period reasonably necessary for the police to complete their investigations, but in any event for no longer than eight hours.

4.4.2 The order issuing a detention warrant must be reduced to writing (although the order may be conveyed by telephone, radio, telex, facsimile or other communication device, if necessary), and the judicial officer must state the reasons for approving the period of further detention, with specific reference to the matters listed in Recommendation 3.3. The warrant and any other documentation (such as the information on oath) used in the process shall become part of the official record of the court (including the court to which the justice is normally attached, in the case of a telephone application).

4.4.3 The detention warrant must be tendered in court as a condition of the admission of any evidence obtained by the police during the period of further detention. (See Recommendation 8.6) The warrant shall be prima facie evidence of the lawfulness of this detention.

4.5 Refusal to authorise further detention

If the judicial officer refuses the application, the person shall be dealt with according to the procedures in Recommendation 3.7. Where an application is refused, no further application shall be made in respect of the person to whom the refusal relates, unless supported by evidence which has come to light since the refusal.

4.6 Monitoring device for detention warrants

The Commission recommends the establishment of an independent monitoring device to periodically review all detention warrants which have been issued. This function could be carried out by a special Commissioner for Warrants, or another suitable person or agency.

5. Safeguards for the Detained Person

5.1 Right to remain silent not affected

Nothing in this recommended scheme affects the right of a person suspected of having committed an offence to refuse to answer questions or to participate in investigations (except where already required to do so under State or Commonwealth legislation), and no adverse inference may be drawn from such a refusal.

5.2 Right to contact a friend or relative

5.2.1 Before any questioning or investigation commences, the person in custody must be informed that he or she has the right to communicate or attempt to communicate with a friend or relative to inform that person of his or her whereabouts, and the person must be given the opportunity to meaningfully exercise that right.

5.2.2 Where an arrested person is moved from one police establishment to another, he or she is entitled to contact a friend or relative to inform that person of the new place of detention.

5.2.3 The right to contact a friend or relative may be delayed (only for so long as is reasonably necessary) only where the custody officer believes on reasonable grounds that any such communication will probably result in: the escape of an accomplice; the disappearance, fabrication or destruction of evidence; or hindering the recovery of any person or property relevant to the alleged offence.

5.2.4 Where a friend or relative has agreed to attend the police station, the police must delay any questioning of, or obtaining a statement from, the person for a reasonable period until the friend or relative has arrived. However, the police shall not be obliged to wait for more than two hours from the time that the agreement to attend was made.

5.3 Right to communicate with a lawyer

5.3.1 Before any questioning or investigation commences, the person in custody must be informed that he or she has the right to communicate or attempt to communicate with a lawyer, and the person must be given the opportunity to meaningfully exercise that right.

5.3.2 If the person in custody wishes to contact a lawyer, the person must be allowed to communicate with the lawyer or the lawyer’s office over the telephone in such circumstances which enable the conversation to remain private and confidential. When the lawyer arrives at the police station, the police shall permit a private conference for a reasonable period between the person and his or her lawyer.

5.3.3 An arrested person’s lawyer should be entitled to be present during police questioning or other investigations, and should be entitled to give legal advice. Anything which the lawyer says during the questioning should be a formal part of the record of the questioning. The role of the lawyer in the interrogation process and the police power to exclude a lawyer for misbehaviour in limited circumstances should be spelled out in the code of practice relating to police interrogation.

5.3.4 Where a lawyer has agreed to attend the police station, the police must delay any questioning of, or obtaining a statement from, the person for a reasonable period until the lawyer has arrived. However, the police shall not be obliged to wait for more than two hours from the time that the agreement to attend was made.

5.3.5 A duty solicitor scheme should be established by the Legal Aid Commission so that all persons in police custody for the purpose of investigation may have access to a lawyer, at their request. This service would need to have some lawyers available on a 24-hour basis. In more remote areas, it may be necessary for legal advice to be provided by telephone or radio when it is not practicable for lawyers to appear at the police station within a reasonable period. Funding should be made available by the State Government to make effective this fundamental safeguard.

5.3.6 If the person in police custody is not in a position to obtain advice from a lawyer of his or her choice, then the custody officer shall inform the person of the availability of legal advice free of charge through the duty solicitor service and how that service may be contacted. (As discussed in Recommendation 2.5.6, literature to this effect should also be available in English and a wide variety of community languages.)

5.4 Right to an interpreter
If a person in custody requests the assistance of an interpreter, or it is apparent to the police officer that the person does not have a knowledge of the English language that is sufficient to enable that person to understand the questioning, or to answer questions or to make a statement, the police must, before any questioning or investigation commences, make arrangements for the presence of a competent interpreter and defer the questioning or investigation until the interpreter is present. (This applies equally in respect of deaf and hearing impaired persons, and other persons with profound communications difficulties.)

5.5 Right of foreign national to communicate with consular officer

5.5.1 If a person in custody is not a citizen or permanent resident of Australia, the custody officer must, before any questioning or investigation commences, inform the person in custody that he or she may communicate or attempt to communicate with the consular office of the country of which the person is a citizen. Police must defer the questioning or investigation for a reasonable time in the circumstances to enable the person to make, or attempt to make, the communication.

5.5.2 As per paragraph 5.2.3, the right of a person to contact a consular official may be delayed (only for so long as is reasonably necessary) only where the custody officer believes on reasonable grounds that any such communication will probably result in: the escape of an accomplice; the disappearance, fabrication or destruction of evidence; or hindering the recovery of any person or property relevant to the alleged offence.

5.6 Rights to medical assistance, rest, refreshment

5.6.1 Where a person in police custody requests medical treatment in respect of illness or an injury, or it appears to the police that medical treatment is required, the custody officer shall immediately take such reasonable action as is necessary to ensure that the person is provided with appropriate medical treatment.

5.6.2 A person in the custody of the police shall be provided with reasonable refreshments and reasonable access to toilet facilities.

5.6.3 Where a person has been in the custody of police for the purpose of investigation for four hours or more (including any “time-out” periods), that person shall, if it is practicable to do so, be provided with facilities to wash or shower, and to shave and change clothes, before being brought before a justice.

6. Special Rules Regarding Children, Aborigines and Other Vulnerable Persons

The Commission recognises that there are certain groups in the community which are especially vulnerable and may be at particular risk when involved in the process of police investigation. The Commission identifies the following as groups which require special protection in police custody: (a) children; (b) Aborigines and Torres Strait Islanders; (c) mentally ill or mentally disordered persons, and persons with developmental disabilities; (d) persons from non-English speaking backgrounds; and (e) other persons, who by reason of some disability, are unable to communicate properly with the police (such as the seriously visually or aurally impaired, persons who cannot speak, and so on). As a general matter, the Commission recommends that special rules be developed to regulate the custodial investigation of persons in these categories, and that no questioning or investigation take place in respect of such persons unless an appropriate independent person is present. However, detailed consideration of this issue will be the subject of a further Report by the Commission.

7. The Conduct of Custodial Investigation

7.1 The development of codes of practice

7.1.1 Codes of Police Practice should be developed in the manner of those in use in the United Kingdom to replace the Police Commissioner’s Instructions in relation to the detention, treatment and questioning of suspects, as well as other aspects of criminal investigation. The Codes of Practice will serve to provide operational instructions to members of the Police Service at a level of detail unsuitable for legislation.

7.1.2 These Codes of Practice should be statutory instruments, promulgated only after the public exposure of, and debate over, draft codes, and should be subject to parliamentary disallowance.

7.1.3 A Working Group should be established forthwith to manage the development of the Codes of Practice. The Group should consist of the members of the Police Board, as well as representatives of interested groups and the general community appointed by the Attorney General.

7.1.4 The Codes of Practice should be readily available at all police stations for consultation by police officers, detained persons and members of the public.

7.2 Electronic recording of interviews

7.2.1 All police stations should be equipped, as soon as possible, with facilities to electronically record all interviews with persons in police custody for the purpose of investigation.

7.2.2 A caution administered under Recommendation 2.5 shall be electronically recorded at the beginning of any interview. Prior to any questioning for the purpose of investigation, there should be a series of standard questions which establish whether the person in custody understands his or her rights.

7.2.3 The interview of the person by the police should be recorded from beginning to end and, to the extent practicable, any contact between the person and the custody officer should also be recorded.

7.2.4 If an admission was allegedly made prior to the commencement of the electronically recorded interview, the statement shall be put to the person at the interview and the person asked whether he or she agrees that the statement was made. (See also Recommendation 8.5.2.)

7.2.5 A police officer shall have the power to suspend the recording of the interview where this has been requested by the person being interviewed, or where it is necessary for the comfort of the participants, or in order to ensure that the questions asked cover all matters relevant to the investigation. The reason for the suspension shall be recorded just prior to the suspension of the interview and again at the re-commencement of the interview.

7.2.6 Where the person in custody states or otherwise indicates that no questions will be answered or that no statements will be made, or that no further questions will be answered, the fact of these events must be recorded. In these circumstances, police will not persist in questioning. (See also Recommendation 3.5.2) .

7.2.7 The equipment used to record the interview or the procedure adopted shall include a means of continuous verification of the time at which the interview was conducted. There should be safeguards designed to ensure that recordings are safely kept and are neither tampered with nor destroyed.

7.2.8 A copy of the audiotape of a police interview shall be given to the person interviewed or to the person’s lawyer as soon as is reasonably practicable.

7.2.9 A detailed Code of Practice shall be developed to regulate all aspects of, and to ensure the fair and proper conduct of, all electronically-recorded police interviews.

7.2.10 The recording facilities in police stations should not be confined to use for the recording of interviews with suspects. They may also be used for the purpose of taking statements from witnesses or for photographing matters relevant to an investigation.

8. Admissibility of Evidence Obtained in Breach of These Rules

8.1 Admissions influenced by violence, oppression etc

Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by violent, oppressive, inhuman or degrading conduct, whether toward the person who made the admission or toward some other person, or by a threat of conduct of that kind.


8.2 Discretion to exclude admissions on basis of unfairness

In a criminal proceeding, where evidence of an admission is adduced by the prosecution, the court may refuse to admit the evidence, or may refuse to admit the evidence to prove a particular fact, if the court believes that it would be unfair to a defendant to use the evidence, having regard to the circumstances in which the admission was made.


8.3 Discretion to exclude prejudicial evidence

In a criminal proceeding, where the probative value of evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, the court may refuse to admit the evidence.


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 as enunciated in the safeguards proposed above (Recommendation 5), 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.

8.5 Electronic recording or independent verification of any admissions by defendant

This provision applies in relation to an admission made by a person who is under arrest or in police custody for the purpose of investigation (see Recommendation 2.3).


8.5.1 Evidence of the admission is not admissible unless there is available to the court a video or sound recording of the questioning and of the admission.

8.5.2 If it was not reasonably practicable to have made such a recording, evidence of the admission may be admitted only if there is available to the court a video or sound recording in which the defendant freely and expressly adopts the admission which is read back to him or her, or the questioning was conducted and the admission was made in the presence of an independent person of the person’s choosing (such as a lawyer, friend or relative - see Recommendation 5).

8.5.3 Evidence of the admission is not admissible unless, before the admission being tendered was made, the person was given a caution, in accordance with Recommendation 2.5.


8.6 Detention warrant to be tendered in court

A detention warrant issued by a judicial officer under Recommendation 4.4 must be tendered in court as a condition of the admission of any evidence obtained by the police during the period of further detention. The warrant shall be prima facie evidence of the lawfulness of the detention.

9. Detention in Police Custody to Count Towards Sentence

In determining an appropriate sentence, a court shall take into account any period(s) during which the offender was detained in police custody for the purpose of investigation (including any “time-out” periods) of the relevant offence.

10. Need for Follow-up Empirical Study of Custody Records

One year after the coming into force of any legislation which replaces the common law in respect of police detention for the purpose of investigation (whether or not based on the recommendations contained in this Report), the Law Reform Commission shall conduct an empirical study, including but not limited to a survey of police custody records, to consider the fairness and operational effectiveness of the new system and to report its findings, which may include recommendations for changes to the system. Specific regard shall be had to the length of custodial detention for investigation, any mechanisms for extending the initial period of detention, and the effective provision of safeguards for persons in police custody. Sufficient funding should be made available to the Commission to complete the study in a timely fashion.