RECOMMENDATION 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.

COMMENTARY ON RECOMMENDATION 1

3.1 In Chapter 1, it was argued that the common law position on police powers of detention for investigation as enunciated again by the High Court of Australia in R v Williams,¹ and as explicated by the New South Wales Court of Criminal Appeal in R v Burns² and R v Zorad,³ is incomplete and unsatisfactory, and in need of urgent reform by legislation. Such reform must be comprehensive, dealing not only with the narrow issue before the High Court in Williams, but more generally with the whole process of criminal investigation, including the status of evidence obtained in the course of an investigation.

3.2 It is the view of the Commission that the concern shown by the High Court for the fundamental liberty of the citizen is not matched by a regime of sufficiently detailed and enforceable rules and procedures which gives real meaning to the rights and safeguards that citizens are meant to possess when caught up in a criminal investigation. At the same time, the common law position imposes arbitrary constraints on the police in some cases, and causes them to ignore the requirements of the law or to resort to artifice to get around the requirements. The existing remedies for breach of proper procedures by the police are insufficient to ensure compliance or punish wrongful conduct.

3.3 The common law rule - that an arrested person in police custody must be taken before a justice as soon as practicable, and may not have his or her custody extended merely for the purpose of police investigation - is neither consistently applied nor compatible with modern criminal procedures. For one thing, as discussed in Chapter 1, the application of the rule by the New South Wales courts means that police are under no obligation to find a justice outside the normal working hours of the courts. Consequently, the time of arrest becomes a crucial determinant in the length of detention to which a person will be lawfully subject and, in tandem, the amount of time that police will have to interrogate that person and to conduct other investigative procedures, such as forensic tests, identification parades and interviews of witnesses. This leads to: (1) substantially differential treatment of arrested persons, based not on considerations of need or principle but rather on chance; (2) arrests which are contrived in order to gain extra time for investigation; and (3) frequent breaches of the common law requirements, as acknowledged by most of the submissions to the Commission. The submission of the New South Wales Bar Association, for example, stated that it was “the experience of the Bar that suspects are often detained illegally by police officers”.⁴

3.4 The common law rule also fails to appreciate that in the vast majority of cases (other than the most serious ones), the arrested person is now released from police custody after a bail decision by a senior police officer.⁵ In these situations the person is never taken before a justice in the pre-trial process, nor would he or she have any wish to appear before a justice. Similarly, there is now an increasing use of summons and other non-arrest mechanisms (such as attendance and infringement notices) for commencing criminal proceedings.

3.5 The common law prohibition on the further detention in custody of an arrested suspect for the purpose of investigation also fails to recognise that the basis for arrest is not the same as the basis for charge. As discussed in Chapter 1, an arrest may be justified if there was a “reasonable suspicion” that the person had been involved in the commission of a crime. This suspicion may be based on hearsay evidence and other material which would not be admissible in any subsequent criminal proceeding. The laying of a charge, however, requires that there be a belief that there is “reasonable and probable cause” that the person committed an offence.

3.6 In Williams, Mason and Brennan JJ briefly discussed the meaning of the term “reasonable and probable cause” and the distinction between that concept and the notion of “reasonable suspicion” which justifies arrest.

In the ordinary case of an arrest on suspicion, the arresting officer must have satisfied himself at the time of the arrest that there are reasonable grounds for suspecting the guilt of the person arrested ..., although the grounds of suspicion need not consist of admissible evidence ... . If the arresting officer believes the information in his possession to be true, if the information reasonably points to the guilt of the arrested person and if the arresting officer thus believes that the arrested person is so likely to be guilty of the offence for which he has been arrested that on general grounds of justice a charge is warranted, he has reasonable and probable cause for commencing a prosecution ... .⁶

3.7 The problem in practice is raised by the example of police receiving information that an offence was committed by a person, who is roughly described (or perhaps a description is given of a vehicle). The police then arrest a person who is found near the scene of the alleged crime and who matches the description given. In these circumstances, there was probably a “reasonable suspicion” on which to make the arrest, but in the absence of the opportunity to question the person, or to check out an alibi offered by the person, to take a statement from a witness, to conduct an investigation parade, to search the scene for evidence, or to conduct other inquiries or investigative procedures, there may not be “reasonable and probable cause” to charge the person with the offence.

3.8 Providing the police with a realistic post-arrest regime which affords them the opportunity to discharge effectively their legitimate responsibilities, whilst also standardising the treatment accorded to all suspects, represents only part of the concerns of this Report. Of at least as great importance is the need to bring the whole area of criminal investigation under the rule of law, by providing for the first time in this State a framework for the development of clear and comprehensive statutory rules of conduct. As Kirby J has remarked

What is surprising is that we have struggled on for more than a century with a complex body of law made up of a little legislation, much case law (in most jurisdictions), the Judges’ Rules and administrative directions of varying authority issued by Police Chiefs. The argument for collecting, rationalising, simplifying and clarifying the rules seems incontestable.⁷

3.9 The Canadian Law Reform Commission has also noted that the existing law is inadequate to “define the limits of permissible intrusion by agents of the State upon private interests for the purpose of investigating and prosecuting crime”.⁸ That Commission blamed the effective absence of any procedural law in this area, commenting that the only form of regulation is provided by “the rules of evidence, encrusted by ancillary rules, which determine the permissible uses of a statement in court.”⁹

3.10 There are potentially great cost savings in clarifying police powers and procedures and increasing confidence in the integrity of evidence produced at trial by police. Experience elsewhere suggests that guilty pleas are likely to increase, saving the whole cost of trials (as well as the inconvenience to witnesses and the trauma to victims); there is also likely to be a significant decrease in voir dire challenges to the admission of evidence of alleged confessions. A two day voir dire in the District Court - a not uncommon event in trials for serious offences - was estimated to cost about $11,000 in 1986.¹⁰ The Victorian Shorter Trials Committee also concluded that the costs involved in setting up and operating an electronic taping system as a regular part of the criminal investigation process would be greatly outweighed by the savings in trial costs.¹¹

3.11 Clarifying police powers and formally regulating the conduct of criminal investigation would be invaluable contributions to civil liberties. However, there is also the need to enunciate specifically, and in statutory form, the safeguards that are available to persons in police custody, so that these “rights” become more widely known¹² and available.

3.12 The “invitations” to legislatively reform the common law of arrest and detention contained in Williams cautioned that any reform must be careful to ensure that there are satisfactory safeguards for persons in police custody. Mason and Brennan JJ wrote

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.¹³

3.13 While the language of “balance” is common and convenient in this area, the Commission rejects the notion that its task is to properly position a fulcrum between, as one of several submissions put it, “the rights and interests of the general community on the one hand and the rights and interests of the individual offender on the other”,¹⁴ as if there is an inevitable and irreconcilable conflict between concern for individual liberty and protection of the common good. It has been pointed out by the legal philosopher Roscoe Pound that “we must be careful to compare [competing demands] on the same plane. If we put one as an individual interest and the other as a social interest, we decide the question in advance in our way of putting it.”¹⁵

3.14 The better characterisation in this case is to seek to ensure that both of the separate requirements of the public interest in proper law enforcement are met: on the one hand the need to safeguard the fraught position of an individual in police custody who is suspected of a criminal offence; on the other hand the need to preserve the community’s peace and good order by bringing to justice those who are guilty of criminal offences. There is as obvious a general or community interest in the former as in the latter.

3.15 The Commission also cannot accept as proper a characterisation of the issue which suggests that “it is the interests of the community, in having offenders brought to justice, which should prevail over the interests of the individual offender.”¹⁶ In the course of a criminal investigation the police are not dealing with “offenders”. The persons involved are suspected of being offenders. One of the fundamental principles upon which our system of criminal justice is based is that a person is presumed to be innocent unless and until he or she is convicted by a court of law after a fair trial. From a practical point of view it must be remembered that persons who are innocent of any wrongdoing are not infrequently caught up in the process of police investigation.

3.16 In the course of the Commission’s work we have been conscious of those provisions of the International Covenant on Civil and Political Rights which are of significance to the law of criminal investigation. Australia ratified the Covenant on 13 August 1980, and Australian governments should therefore apply, and where necessary supplement, the standards established there for the protection of civil rights.¹⁷ Virtually all of the countries in the Pacific Islands region have already done so,¹⁸ but Australian governments have been slow to follow suit.

3.17 The Commission is confident that the package of recommendations contained in this Report not only addresses the important issues of principle that arise in this sensitive area of the law, but is capable of implementation in practice.

RECOMMENDATION 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 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 is 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 as well as those with limited comprehension of English.)

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 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 should 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 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 should be adequately recorded, preferably by videotape.

2.6 Transmission of the 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, 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 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.

COMMENTARY ON RECOMMENDATION 2

Relationship with the existing law of arrest (2.1)

3.18 In Chapter 1, the general law of arrest (common law and statutory) in New South Wales was outlined briefly, mainly to set the stage for a discussion of the common law requirements after arrest. The detailed reconsideration of the law of arrest is outside the scope of this Report, although it is a matter that the Commission could pursue in future if the Attorney General believes this is appropriate. There are some aspects of arrest law and practice which do require consideration here, however, in order to support our recommendations on custodial investigations.

No general power to arrest merely to question (2.2)

3.19 In our Discussion Paper No. 16, one of our “tentative proposals” was that, as a general matter, “a police officer should not have the power to detain any person against his or her will for any purpose unless that person is either arrested by a police officer or has been taken into custody by a police officer following his or her lawful arrest by a private citizen.”¹⁹ This is, of course, the existing general law, although there are some statutory exceptions.

3.20 There was overwhelming support for this proposition in the submissions received. Only the Police Commissioner’s submission recommended that police be given the power to detain a person found in “suspicious circumstances” for a “short period” in order to decide whether a formal arrest was necessary, as well as the power to detain for a short period any potential witnesses or suspects found at the scene of the crime.²⁰ The remainder of the submissions emphasised the traditional view that the people of New South Wales should be free to conduct their lawful affairs without the threat of being interfered with by the police or anyone else. This freedom is suspended upon arrest, which should be resorted to only where it is justified and necessary. The Review Committee of Commonwealth Criminal Law, chaired by the former Chief Justice of Australia, Sir Harry Gibbs, also agreed with this proposition, concluding that “it is essential to protect a citizen from arbitrary detention”.²¹

3.21 There are some circumstances in which the legislature has authorised, by express statutory provision, a departure from the general rule. The use of the random breath testing procedure is perhaps the best known example.²² In general, people who are driving motor vehicles within the law should not be stopped without reasonable cause. However, there appears to be widespread community acceptance for the rule that drivers may be stopped at random and detained (or at least delayed) briefly while they are subjected to a test for alcohol consumption. The departure from ordinary principles and the inconvenience of the procedure are seen to be overridden by the benefits to public safety, particularly since the intrusion is relatively minor, confined to the one procedure, and is susceptible to immediate “scientific” verification. The arguments which are used to support random breath testing cannot, however, be easily translated to other forms of unlawful conduct.

3.22 Similarly, the Intoxicated Persons Act 1979, s5, permits a police officer to detain (in a proclaimed place) a person found in a public place, who is seriously affected by alcoholic liquor and is behaving in a disorderly or injurious manner or is in need of physical protection. The detention period is a maximum of eight hours, and the person must be released into the care of a responsible person rather than detained if this is possible. This detention power originates not in an attempt to increase police powers in this area, but rather in an attempt to decriminalise the area of public drunkenness and therefore to restrict police powers of arrest.²³

3.23 The Commission agrees that the general prohibition against detention without arrest, which has always been part of the common law, should be maintained.²⁴ Any specific departure from this principle must not only be justifiable, in public policy terms, but absolutely compelling.

3.24 A number of submissions²⁵ were critical of the occasional police practice of using a “holding charge” to arrest a person for one (usually more minor) offence when the real intent was to question the person and conduct investigations about another offence. The Criminal Law and Penal Methods Committee of South Australia has stated that “this practice is to be deprecated” and has recommended that it should be discontinued.²⁶ The Australian Law Reform Commission has also condemned this practice.

The Commission makes it clear that it does not in any way countenance ... the arrest of persons on trivial ‘holding’ charges in order to pursue investigations in respect of more serious offences in respect of which there is no evidence such as would justify arrest.²⁷

Aronson, Hunter and Weinberg have commented

The practice is grossly undesirable as it allows the police to flaunt the spirit of the law (that is, no arrest for the purpose of questioning) while remaining within its doctrinal boundaries.²⁸

3.25 As the preceding quotation notes, the practice of using artificial holding charges may be undesirable but it is not strictly illegal at present. In R v Kushkarian,²⁹ for example, the New South Wales Court of Criminal Appeal failed to condemn the use of a holding charge of possession of a firearm, which was employed by police to justify a 12 hour period of detention (during the day, when a justice would have been readily available) during which time an investigation for armed robbery was conducted.

3.26 The Commission agrees with the Australian Law Reform Commission and other commentators that the practice of using artificial holding charges should not be countenanced in a fair system of criminal investigation. The Commission’s recommendation (2.2.3) is that this practice should be strongly discouraged in the Police Commissioner’s Instructions or a successor Code of Practice, and that the determination of the legitimacy of the arrest and charge be a responsibility for a police officer exercising the powers of a Custody Officer (see Recommendation 3.4).

Arrest and de facto custody (“voluntary attendance”) considered equivalent for purpose of fixed time limits (2.3-2.4)

3.27 There is often a difficult factual question whether a person has been formally “arrested” or is merely at the police station “assisting the police with their inquiries”. In the latter case, the law has regarded such attendance as “voluntary”, even though the person may feel strongly constrained to attend. For example, the courts have said that attendance is “voluntary”, and thus does not amount to a deprivation of liberty, even where the police officer would have arrested the person if he or she had not complied, and the person understood this to be the position.³⁰ Further, the person’s volunteer status may change during the course of the interview with police, when incriminating evidence comes to light.

3.28 The existing law actually places the volunteer at the police station at a considerable disadvantage compared with an arrested person. A person who is arrested should be informed of the charges against him or her; should receive a caution about the right to remain silent; should be permitted to arrange for legal assistance, and so on. However, the case law suggests that a person who consents to attend the police station need not receive these safeguards.³¹

3.29 This situation is quite unsatisfactory, as it provides a judicially authorised loophole by which police may avoid the law of arrest and related procedural requirements. It also fails to take account of the reality of the “consent” and the “voluntary” assistance, which occur against a typical backdrop of uncertainty and implied coercion. The Australian Law Reform Commission, after noting that the “concept of ‘voluntary co-operation’ would appear to be very much stretched in Australian police practice”,³² concluded

The fact that no shoulders may have been touched, or incantations mouthed, does not mean for a minute that a very large number of people indeed who were in the past ‘voluntarily co-operating with the police’ or engaged in ‘assisting the police with their inquiries’ were just as surely arrested as if they had been bound in chains.³³

3.30 The Australian Law Reform Commission also made the point, quite relevant to our report, that a statutory regime which mandates a fixed time for investigation after arrest and before charge could be totally undermined by a police strategy based upon avoiding arrest wherever possible and relying instead on the “consent” of suspects.³⁴ The Scottish experience is instructive.³⁵ The Criminal Justice (Scotland) Act 1980 brought in a regime which permitted police to interrogate or investigate an arrested person for up to six hours before having to bring the person before a justice. There are no “time-out” provisions and no procedures for extending the detention if a further period of investigation is required. What has resulted is a system in which more than half of the suspects questioned at some police stations are regarded as “voluntarily” assisting the police, and thus avoiding the statutory time constraints. This is a case of police creativity in manipulating legal rules (or more precisely the interstices in the rules), although not a gross example, for the police were led to believe, in the parliamentary debates which surrounded the new legislation, that the new detention procedure was a supplement to the old system which was heavily reliant on consent, rather than a replacement. The lesson for New South Wales is that there is a need to address the issue of voluntary attendance directly and fully in any new legislation.³⁶

3.31 The Commission recommends the adoption of a legislative provision which defines “custody” in such a fashion as to remove the problems described above. The specific form of words we suggest in our recommendation (2.3.1) is adapted from s464(1)(c) of the Victorian Crimes Act 1958, as amended in 1988.³⁷

3.32 One of our two modifications to the Victorian provision deletes the last phrase of s464(1)(c), which states that a person is “in custody” if the person is in the company of a police officer and is being questioned or otherwise investigated to determine possible involvement in the commission of a criminal offence “if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence.” The Commission believes that this qualification in the Victorian provision creates more problems than it resolves and is unnecessary. It requires a court, if there is a subsequent challenge to the lawfulness of the custody, to look into the mind of the police officer at various stages of the questioning of a person to determine if and when the officer may have had sufficient grounds to effect an arrest (but did not, or else the issue of custody would be governed by the law of arrest).

3.33 The Victorian definition of “custody” exists in the context of a system in which the police are granted a “reasonable time” to carry out all of their investigations while the person is held in custody. However, the Commission is recommending for New South Wales a system in which the police are given specified time limits for investigation, in order to confine the deprivation of liberty suffered by the person in police custody. In operating a system with fixed time periods, it is obviously critical to ascertain easily and precisely when the clock commences to run. Under our proposal, this is from the moment the person is arrested (with or without warrant) or is “in a police station, police vehicle or police establishment in the company of a police officer, or is otherwise under police control” and is the subject of a criminal investigation. The italicised words in the preceding phrase represent the second modification to the Victorian provision.

3.34 With this change, the Commission wishes to include all of those cases in which the police are, in reality, in control, and have effective custody of the person, regardless of whether the person has been formally arrested. Usually the venue will be a police car or police station (or other police establishment), but the Commission intends that the provision should also cover, for example, a security room in a department store in which a person is detained on the suspicion of larceny, or a hospital room, provided that the other conditions are met. It is also intended to cover the situation in which a police officer seeks to run around the requirements by asking the suspect to “step outside” the police car or station, since we refer to the person being “otherwise in police control”.

3.35 It is the concept of “control” that is crucial, since it is this which amounts to a deprivation of liberty and renders the notions of “consent” and “voluntariness” meaningless in the circumstances. The Federal Court of Australia understood this when it wrote in the recent “Gundy Case”

Elements in the lexical meanings of “custody” include the notion of dominance and control of the liberty of the person, and the state of being guarded and watched to prevent escape. To confine the meaning of “custody” to “that state which follows arrest or similar official act”, as [the police] would have it, is in our opinion, to pay too close a regard to legal forms rather than the substantive character or quality of police activity.³⁸

3.36 By the same logic, the Commission wishes to exclude from the fixed time regime, for example, the situation where police wish to question a person and arrangements are made to meet at the office of the person’s solicitor. Whilst it may not be a pleasant experience for the person concerned, this does not amount to a substantial deprivation of liberty, and as the person’s interests are being looked after by a lawyer and they are free to leave at any time there is no reason to impose an artificial limitation on the time for investigation. Indeed, it is precisely this sort of non-custodial police investigation which the Commission wishes to strongly encourage whenever the circumstances permit.

3.37 Consequently, for reasons of fairness, consistency and precision, the Commission recommends that all persons in the custody of the police - whether or not they have been formally arrested - be dealt with according to the same procedures. This approach has also been recommended by the Australian Law Reform Commission³⁹ and the Review Committee of Commonwealth Criminal Law (the Gibbs Committee),⁴⁰ and is found in cl 23B(2) of the Crimes (Investigation of Commonwealth Offences) Amendment Bill 1990 which is currently before the Commonwealth Parliament.

Cautioning of persons in police custody (2.5)

3.38 One of the “tentative proposals for reform” contained in our Discussion Paper 16 on Police Powers of Arrest and Detention was that the system of issuing a “caution” to suspects about the right to silence and related matters be formalised and standardised.⁴¹ There was much support for, and very little opposition to, this proposition and what concern was expressed related to the right to silence itself rather than to the administration of a caution. (The Commission does recommend the retention of the right to silence and its procedural and evidentiary consequences, and this is discussed below in Recommendation 5.1, Chapter 5.)

3.39 The basis of the caution is simple: to alert a suspect in a criminal investigation to his or her legal position. The Australian Law Reform Commission has put this justification in eloquent terms, with which we agree:

It should not be necessary to argue that if a person has rights he should be made aware of them. Whether, once informed, he has the will, the wit or the wisdom to take advantage of them is probably something no criminal justice system can completely ensure. Perhaps it should not try. But no criminal justice system deserves respect if its wheels are turned by ignorance. Any system which pays lip-service to the existence of rights yet does nothing to ensure that they are known and understood - and indeed which may depend on their not being understood - is a system that discriminates against the weak, the unintelligent and the uncomprehending in favour of the strong-willed, the smart and the linguistically competent.⁴²

3.40 The New South Wales Police Commissioner’s Instructions currently direct police officers to caution a person whom they intend to charge before they begin questioning that person.⁴³ This is in keeping with what is now fairly standard police practice in common law countries. Perhaps the best known caution is the American one arising from the US Supreme Court cases of Miranda v Arizona⁴⁴ and Escobedo v Illinois.⁴⁵ The Codes of Practice on criminal investigation brought in to complement the PACE legislation in England and Wales also require police to administer a brief caution before questioning.⁴⁶

3.41 Years of experience and numerous empirical studies in the United States and elsewhere indicate that there has been no significant impairment of police functions because of the requirement of a caution.⁴⁷ As one commentator has suggested

suspects, whether for reasons of resignation, shock, embarrassment or relief, continue typically to confess and notification of rights has only a marginal effect upon the propensity to assert rights.⁴⁸

Nevertheless, the Commission strongly believes that it is fundamental to a fair and open system of criminal justice that a person in police custody be formally cautioned about his or her rights.

3.42 In New South Wales and much of the rest of Australia, the caution requirement is usually imposed by Police Instructions, Standing Orders and other non-statutory (and largely unenforceable) directions to the police. However, Victoria now has a statutory requirement in its Crimes Act,⁴⁹ and the Gibbs Committee has recommended legislative recognition of the need to caution suspects.⁵⁰

3.43 The Commission recommends that New South Wales should also formalise the requirement of a caution in legislation, to emphasise the importance of informing suspects of their position and to ensure to a greater degree that this happens in practice. At least one change from the current police guidelines in New South Wales is also necessary in our view. This proposed change derives from the fact that the time at which the caution is given under the current practice is not capable of being readily determined. A police officer is asked to administer the caution before questioning a person “whom he/she has made up his/her mind to charge”. We consider that the obligation to caution arises at the time of arrest, or at the time of taking a suspect into police custody (2.5.7),⁵¹ according to Recommendation 2.3.

3.44 The actual terms of the caution have been simplified as much as possible to increase the likelihood that the person who receives it will actually understand it, whilst still conveying the essence of the person’s right to silence and the consequence of waiver. Without formalising the wording or the precise nature of the process, which is better left to a Code of Practice, and without wishing to make the caution too complicated for police to administer, the Commission also recommends that other aspects of the person’s position be clearly explained by the arresting officer or the custody officer, or both. This should include information about the person’s rights to communicate with a friend or relative, a lawyer and a consular official (if the person is a foreign national) (2.5.3), as well as information about the nature of custodial investigation if the person is to be detained (2.5.4). A person detained in police custody should certainly be given a clear idea of how long he or she is likely to be detained, and what procedures may be conducted.

3.45 The caution must be administered orally in each case, but it should be produced in a convenient (perhaps “credit card” style) form to assist the police (2.5.5). Naturally, where an interpreter is required, this must be arranged and there may be no questioning without the administration of the caution in a language the person understands (2.5.2) (and the presence of the interpreter at the interview). The caution and the other information about safeguards should also be produced in written (brochure) form in English and a wide range of community languages to be handed to all suspects in police custody (2.5.6). The Language Services Division of the Ethnic Affairs Commission of New South Wales was consulted, and saw no problem with producing this material, based on its experience with producing other important social service notices. Overseas experience, especially in the United States and the United Kingdom, also suggests that this is both feasible and advisable, assisting both the police and the person in custody.

3.46 The requirement that the caution be repeated by the Custody Officer at the police station (2.5.9) is primarily intended to ensure that there is an opportunity to adequately record the fact that the caution has been given. The requirement that the caution be repeated where there is a break of more than one hour between the initial caution and the start (or re-start) of interrogation (2.5.8) is intended to serve the same purpose, as well as to ensure that the person in custody is clear on his or her position at every stage of the investigation.

3.47 At present, the failure by police to administer a caution, or an effective caution, would be unlikely in practice to result in a subsequent confession being ruled inadmissible. The trial judge would have the power to exclude the evidence, however, on the basis of the “fairness” and “public interest” discretions,⁵² even if the evidence was found to be “voluntary”. Under our proposed regime, the failure to administer a proper caution, as with other significant breaches of procedure by the police, would lead to the presumed inadmissibility of the evidence obtained as a consequence, although this presumption would be rebuttable (see Recommendation 8.4, discussed in Chapter 6).

Transmission of an arrested person to a police station (2.6)

3.48 The normal practice is that an arrested person should be taken as soon as practicable to the nearest police station so that the necessary paperwork may be completed and, if permitted by law, some investigation may take place. There is no express legislative instruction in New South Wales, however, about what to do with an arrested person, other than to take the person “before a Justice” (s352). By contrast, the Police Ordinance 1927 (ACT) s24(1) and the Summary Offences Act 1953 (SA) s78(1) require that a person who is apprehended without warrant must be delivered forthwith into the custody of the officer in charge of the nearest police station.⁵³ The New South Wales Police Commissioner’s Instruction 31.49 does direct police officers to take an arrested person without delay “to the nearest Police Station by the shortest practicable route” with “no deviation from that route for any purpose”. The Instruction does not have the full force of the law, however.

3.49 If a period of detention following arrest is to be permitted (Recommendation 3), subject to compliance with certain procedures, it is desirable if not essential for the law to require that the arrested person be taken to a place where those procedures can be properly observed and where a more reliable record of their observance may be made, preferably by an officer specially charged with this responsibility.⁵⁴ Our recommendations require that certain things be done (such as videotaping of interviews) which can only realistically be carried out in a police station or other police establishment with the equipment and the facilities to perform those functions.

3.50 The Police Commissioner’s submission supported this idea in principle, but raised several situations in which more flexibility would be desirable.⁵⁵ For example, it may be necessary, in order to obtain or preserve evidence or to recover stolen property or to rescue a person in danger, to take the arrested person to the alleged scene of the crime or some other place. The Commission accepts that the police should be able to so respond in circumstances of emergency, and has recommended accordingly (2.6.3).

3.51 The Commission also believes that there are a few other situations which call for flexibility. For example, police should be able to take an arrested person to a doctor or a hospital, if necessary, before going to the station (2.6.2). There are other circumstances in which the nearest police station is not necessarily the most appropriate police station. A slightly more distant police station may have specialised investigative facilities or specialist staff which are needed in a particular case (for example, in the case of a child sexual assault). In country areas a geographically more distant police station may have temporal and other advantages for the arrested person, by providing better opportunities for getting legal advice or offering quicker access to a Justice.

3.52 Thus the Commission sees value in allowing for some flexibility in practice while laying down a rule of general application. Such flexibility is sometimes susceptible to abuse, unfortunately, and the Commission suggests that these procedures be closely monitored. In the first instance it is the responsibility of custody officers and senior police to ensure that suspects are dealt with fairly. As a general matter, this is an issue that should be looked at as part of the overall review of the system after one year of operation (see Recommendation 10, discussed in Chapter 7).

Responsibility for, and treatment of, persons held in police custody (2.7-2.8)

3.53 The Universal Declaration of Human Rights⁵⁶ and The International Covenant on Civil and Political Rights,⁵⁷ ratified by Australia in 1980,⁵⁸ provide that persons in custody shall be treated with humanity and respect for human dignity, and that no person shall be subject to cruel, inhuman or degrading treatment. The Australian Law Reform Commission⁵⁹ and the Gibbs Committee⁶⁰ have both recommended that it is appropriate that these basic human rights provisions be incorporated into any Australian legislation dealing with the position of persons in custody.

3.54 We agree that it is important to state these fundamental propositions in legislative form, to demonstrate a clear institutional commitment to human rights and to provide a backdrop for the interpretation of other rules of criminal procedure. More specific provisions regarding the treatment of persons in custody are included in Recommendation 5 (see especially 5.6), and could be expected from the detailed Codes of Practice which we recommend should be developed in the near future (Recommendation 7.1).

3.55 Consequentially, the Commission also endorses the recommendation of the Royal Commission of Inquiry into Aboriginal Deaths in Custody⁶¹ that the police be made expressly responsible for the safety and well-being of all persons in their custody. This should not be a matter for controversy. The New South Wales Police Commissioner’s Instructions already provide that

Patrol Commanders have overall accountability for prisoners and shall ensure that police under their command carry out the correct custody policies and procedures. Individual police officers will be held accountable for disobeying instructions or failing to properly discharge their duty of care towards prisoners.⁶²

3.56 The Instructions also provide, in considerable detail, rules for the “care, control and safety of persons in police custody.”⁶³ For example, police officers are required to assess the physical, mental and emotional state of a person who is arrested,⁶⁴ and a custody officer is obliged to do the same when the person is taken into custody at the police station.⁶⁵ There are also special rules for the treatment of Aborigines in custody.⁶⁶ In the U.K., s39 of the Police and Criminal Evidence Act 1984 (PACE) imposes considerable responsibility on custody officers to ensure that all persons detained in police custody are treated in accordance with the law and the Codes of Practice, and that special care is taken with respect to juveniles.

3.57 It is worth mentioning in passing that the old common law bar to the vicarious liability of the Crown and the Commissioner of Police for the wrongful acts of police officers who are exercising “independent discretion”, was abrogated by statute in New South Wales in 1983.⁶⁷

Maintenance by police of comprehensive custody records (2.9)

3.58 An essential part of a properly regulated system of custody and custodial interrogation is the maintenance of accurate and complete records. This serves several critical functions: (1) providing in each case the information about time (time of arrest, “dead time”, and so on) which is necessary to operate a fixed-period regime; (2) helping to ensure that suspects are provided with all of the relevant information and procedural safeguards to which they are entitled; (3) standardising and formalising the somewhat haphazard police custody record-keeping system which exists at present; (4) providing an official record for the purposes of subsequent (judicial or administrative) review in each case; and (5) offering a convenient and reliable means for generally monitoring the effectiveness of, and compliance with, the new system of custodial investigation.

3.59 A sound system of record-keeping would benefit the police as much as it would persons in custody, by protecting police from controversies over the lawfulness and length of custody and the treatment of suspects. In England and Wales, police initially were somewhat resistant to the requirement for detailed record-keeping under PACE and the Codes of Practice, but this soon came to be seen as a necessary and proper part of the “new professionalism” of the police force, which “includes acceptance of the need to work within legal procedures rather than reliance on traditional, informal practices.”⁶⁸

3.60 Significant work has been done by the Home Office and the Association of Chief Police Officers in Britain, in connection with the introduction of PACE and the equivalent legislation in Scotland and Northern Ireland, to develop model forms and systems to facilitate record-keeping by the police. These should be considered for adaptation to local needs and conditions. In New South Wales, there are already computerised systems for the preparation of charge sheets and property records in respect of all arrested persons. The new requirements would involve only an addition to (or preferably a consolidation of) existing processes.

3.61 The responsibility for the maintenance of custody records would be placed upon the Custody Officer, or the police officer exercising that function. The custody record should contain full details of all the required information (see Recommendation 2.9.3), and should include the “arrest checklist” currently in use to determine whether a high level of observation of the person in custody is advisable. The person in custody should be asked to sign the record to acknowledge the details of the arrest, the administration of a caution, and the provision of other safeguards. A copy of the custody record should be made available to the person at the end of the detention, or as soon as practicable thereafter.

FOOTNOTES

1. (1986) 161 CLR 278.

2. Unreported, New South Wales Court of Criminal Appeal, No 256 of 1987, 19 August 1988.

3. (1990) 19 NSWLR 91 (NSW CCA).

4. R Gyles, QC, Submission of the NSW Bar Association (1987) 1.

5. See the Bail Act 1978, s18, and the Justices Act 1902, s153.

6. (1986) 161 CLR 278, at 300, citing Mitchell v John Heine & Son (1938) 38 SR (NSW) 466, at 469; Commonwealth Life Assurance Society v Brain (1935) 53 CLR 343, at 382; and Glinski v McIver [1962] AC 726, at 766-767.

7. M D Kirby, “Controls Over Investigation of Offences and Pre-trial Treatment of Suspects” (1979) 53 ALJ 626, at 632.

8. Law Reform Commission of Canada, Report No. 23: Questioning Suspects (1984) 3.

9. Ibid, at 4.

10. Criminal Law Review Division, Attorney General’s Department of New South Wales, A Proposed System of Electronically Recording Police Interviews with Suspected Persons (1986) 2. See also N Stevenson, “Criminal Cases in the NSW District: a pilot study,” in J Basten, M Richardson, C Ronalds and G Zdenkowski (eds), The Criminal Injustice System (Australian Legal Workers Group (NSW) and Legal Service Bulletin, Sydney, 1982).

11. Shorter Trials Committee, Report on Criminal Trials (1985) (the “Sallmann Report”) 30.

12. See Kirby, op cit, at 631-632, on the importance of “educative legislation”.

13. (1986) 161 CLR 278, at 296. See also the joint judgment of Wilson and Dawson JJ at 313.

14. Letter to the Commission from the Chairman of the New South Wales Police Board, Sir Maurice Byers QC, 8 March 1988.

15. See (1943) 57 Harvard Law Journal 2, cited by Samuels JA in Barron v Attorney General for New South Wales (1987) 10 NSWLR 215, at 218.

16. J K Avery (with KJ Drew, CS Ireland and WJ Haran), Response by the Commissioner of Police to the New South Wales Law Reform Commission Consultative Document “Police Powers of Arrest and Detention” (February 1988) 1.

17. See generally Review Committee of Commonwealth Criminal Law, Human Rights in Relation to the Commonwealth Criminal Law (Discussion Paper No 15, July 1988).

18. See D Brown, D Farrier, D Neal and D Weisbrot, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (Federation Press, Sydney, 1990) 1030.

19. New South Wales Law Reform Commission Discussion Paper No 16, Police Powers of Arrest and Detention (1987) 93.

20. Response by the Commissioner of Police to the New South Wales Law Reform Commission Consultative Document “Police Powers of Arrest and Detention” (May 1987) 21.

21. Interim Report: Detention Before Charge (March 1989) 31.

22. Traffic Act 1909, s4E (formerly the “Motor Traffic Act”). See also the stop and search provision in s357E of the Crimes Act.

23. See Brown, Farrier, Neal and Weisbrot, op cit, at 973-985. At the outset most of the detentions were in police cells, but by 1987 about 80% of the detentions were in other proclaimed places, such as hospitals and hostels, as the legislation originally envisaged.

24. Of the Criminal Law and Penal Methods Reform Committee of South Australia, Second Report: Criminal Investigation (1974) 74-76, and s 78(1) of the Summary Offences Act 1953 (SA).

25. See, eg, the Submission of J R Marsden (1987) 3.

26. Criminal Law and Penal Methods Reform Committee of South Australia, op cit, at 82-83.

27. Australian Law Reform Commission, Criminal Investigation (Report No 2, 1975) 19, para 42 (hereafter “ALRC 2”).

28. M Aronson, J Hunter and M Weinberg, Litigation: Evidence and Procedure (4th ed, Butterworths, Sydney, 1988) 358.

29. (1984) 16 A Crim R 416.

30. R v S and J (1983) 32 SASR 174.

31. See R v Leecroft (unreported South Australia Supreme Court judgment no 9675, 1987), cited in D Dixon, C Coleman and K Bottomley, “Consent and the Legal Regulation of Policing” (1990) 17 J of Law & Society 1.

32. ALRC 2, at para 65.

33. Ibid, at 32, para 71. There was a dissenting view on this point from Mr (now High Court Justice) Brennan.

34. Ibid, at 28, para 65.

35. See J H Curran and J K Carnie, Detention or Voluntary Attendance? Police Use of Detention Under s2, Criminal Justice (Scotland) Act 1980 (Scottish Office, Social Research Study, 1986). See also Dixon, Coleman and Bottomley, op cit.

36. Cf s29 of the UK Police and Criminal Evidence Act 1984, which still allows for voluntary attendance, but requires the police officer to spell out clearly the legal position to the person, and to effect an arrest when the evidence compels it. The question of the treatment of volunteers is also dealt with in UK Code of Practice “C”, ss 3.15-3.16.

37. By the Crimes (Custody and Investigation) Act 1988.

38. Eatts v Dawson (unreported, Federal Court judgment no G208 of 1990), at 30-31, per Morling, Beaumont and Gummow JJ.

39. ALRC 2, at paras 9 and 64-71.

40. Review Committee of Commonwealth Criminal Law, Interim Report: Detention Before Charge (1989) 31, para 4.6.

41. Recommendation 29, at 108-109.

42. ALRC 2, at para 99.

43. Instruction 31.09. The recommended caution is “I am going to ask you certain questions. You are not obliged to answer unless you wish to do so, but whatever you say may be used in evidence. Do you understand that?”

44. (1966) 384 US 436.

45. (1964) 378 US 478.

46. Code of Practice C, para 10. See also B Irving and I McKenzie, Police Interrogation: The Effects of the Police and Criminal Evidence Act 1984 (Police Foundation, London, 1989) 15-16.

47. See the studies cited by the Australian Law Reform Commission in ALRC 2, at 66-68.

48. Kirby, op cit, at 639.

49. Section 464A(3), inserted in 1988.

50. Review Committee, Detention Before Charge, op cit, 44-45.

51. The High Court, in Van der Meer v The Queen (1988) 35 A Crim R 232, also seemed to indicate that a caution should be given in this situation. See S J Odgers, “Police Interrogation: A Decade of Legal Development” (1990) 14 Crim L J 220.

52. Ibid, at 247-248.

53. See Miller (1980) 25 SASR 170; Barker (1978) 19 SASR 448.v

54. That is, a custody officer - see Recommendations 2.6.4 and 3.4.

55. Avery, op cit, (Feb 1988) 62.

56. United Nations General Assembly Resolution 217(III) of 10 December 1948, Article 5.

57. United Nations General Assembly Resolution 2200A(XXI) of 16 December 1966, Articles 7 and 10(1).

58. Review Committee of Commonwealth Criminal Law, Human Rights, op cit.

59. ALRC 2, at para 135.

60. Review Committee of Commonwealth Criminal Law, Human Rights, op cit; and Detention Before Charge, op cit, cl 85P(1) of the proposed Crimes (Investigation of Commonwealth Offences) Amendment Bill 1989.

61. Muirhead J, Royal Commission into Aboriginal Deaths in Custody (Interim Report, December 1988) para 6.4, and 34-38, 45-46 and 55.

62. Instruction 32, para 2. See also Instruction 60 and the Police Custody Manual.

63. See generally Instruction 32.

64. Instruction 32.04.

65. Instruction 32.14.

66. Instructions 32.38 and 38.25.

67. Law Reform (Vicarious Liability) Act 1983. Cf Enever v The King (1905) 3 CLR 969.

68. 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, at 138. See also K Bottomley, C Coleman, D Dixon, M Gill and D Wall, The Impact of Aspects of the Police and Criminal Evidence Act 1984 on Policing in a Force in the North of England: Final Report (Centre for Criminology and Criminal Justice, University of Hull, July 1989) 145; and Irving and McKenzie, op cit, at 4 and 246.