In Police Powers of Detention and Investigation After Arrest (LRC 66, 1990), the New South Wales Law Reform Commission proposes a package of legislative and procedural reforms to bring the conduct of criminal investigation under the rule of law.

The Commission believes that the broad common law principles and discretions affecting criminal investigation, as applied in practice, do not meet the needs of modern society. The common law fails to provide police with a realistic opportunity to complete their investigations in some circumstances, while failing to set acceptable limits on police powers and practices in other cases. Despite the law’s stated concern with the liberty of the individual, the common law fails in practice to secure meaningful rights and safeguards for persons in police custody.

In re-affirming the common law position in Williams v The Queen (1986) 161 CLR 278, the High Court of Australia recognised these limitations, and essentially invited legislative reform. Many English-speaking jurisdictions have already replaced the common law with comprehensive statutory regimes.

The Commission’s recommendations aim to provide police with clear, detailed and comprehensive rules of procedure under which to operate. These rules will give police sufficient powers to do their jobs effectively while at the same time protecting the fraught position of persons in police custody. This new regime will serve to increase public confidence in the integrity of police practices and evidence, and have the further benefit of reducing delays and costs in the criminal justice system.

Emphasis is placed on proper management practices and accountability with respect to criminal investigations, encouraging a “new professionalism” on the part of the Police Service. The general approach will encourage a shift from the traditional “arrest and then investigate” style of policing to one of “investigate and then arrest”.

In particular, the Commission’s recommendations provide that:

• Police will have the right to detain suspects for an initial period of up to four hours after arrest for the purposes of questioning or conducting other authorised investigative procedures.


• The four hour period is reserved for actual investigation time and excludes periods (dead-time or “time-outs”) when the police are obliged to suspend or delay the investigation. For example, there is “time-out” while travelling from the point of arrest to the police station, while waiting for the arrival at the police station of a lawyer or interpreter, and while waiting for the person to receive medical attention or refreshments.


• Police may apply to a court or to a justice (after hours) for an extension of up to eight more hours of investigative detention in difficult cases. The application for extension is an ex parte proceeding and may be made after hours by telephone.


• Police are to be made responsible for persons in their custody, who are to be treated with respect for human dignity. Police will be required to maintain detailed and complete custody records. The creation of a specialist “Custody Officer” designation in the Police Service should be considered.


• Specific rights and safeguards for persons in police custody must be enshrined in legislation, including the right to silence, the right to communicate with a friend or family member, the right to legal assistance, and the right to an interpreter.


• Special rules should be developed to regulate the treatment of children, Aboriginal persons and other vulnerable persons in police custody. (Detailed recommendations in this area will follow in the Commission’s next report.)


• Detailed Codes of Practice regulating criminal investigations should be developed by the Police Service after public consultation, to replace the Police Commissioner’s Instructions in this area.


• All police interviews with suspects shall be electronically recorded. Evidence of a confession will not be admissible in court unless it is electronically recorded or there is some other independent verification.


• Evidence obtained illegally or improperly (in breach of the new rules of criminal investigation) will be presumed to be inadmissible, although courts will retain the discretion to admit the evidence in the interests of justice.


• There should be a follow-up study by the Commission of the operation of the new system after one year, to assess its effectiveness and recommend any needed modifications.