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Where am I now? Lawlink > Law Reform Commission > Publications > Terms of Reference and Participants
Report 66 (1990) - Criminal Procedure: Police Powers and Detention and Investigation After Arrest
Terms of Reference and Participants
To the Honourable J R A Dowd LLB, MP,
Attorney General for New South Wales
CRIMINAL PROCEDURE
POLICE POWERS OF DETENTION AND INVESTIGATION AFTER ARREST
Dear Attorney General,
We make this Interim Report pursuant to the reference to this Commission dated 17 January 1982.
Hon R M Hope QC
(Chairman)
Assoc Professor David Weisbrot
(Commissioner)
Professor Brent Fisse
(Commissioner)
Mr Ronald Sackville
(Commissioner)
December 1990
Terms of Reference
On 17 January 1982, the then Attorney-General of New South Wales, the Hon F J Walker QC, MP, made the following reference to the Commission:
To inquire into and review the law and practice relating to criminal procedure, the conduct of criminal proceedings and matters incidental thereto; and in particular, without affecting the generality of the foregoing, to consider -
(a) the means of instituting criminal proceedings;
(b) the role and conduct of committal proceedings;
(c) pre-trial procedures in criminal proceedings;
(d) trial procedures in matters dealt with summarily or on indictment;
(e) practices and procedures relating to juries in criminal proceedings;
(f) procedures followed in the sentencing of convicted persons;
(g) appeals in criminal proceedings;
(h) the classification of criminal offences;
(i) the desirability and feasibility of codifying the law relating to criminal procedure.
The Criminal Procedure reference has generated a major research program at the Commission, and has already resulted in the following publications:
- General Introduction and Proceedings in Courts of Petty Sessions (1982) (Issues Paper 3 and Outline);
- Long Criminal Trials (January 1985) (Background Paper);
- The Jury in a Criminal Trial (September 1985) (Discussion Paper 12);
- Unsworn Statements of Accused Persons (October 1985) (Report 45);
- The Jury in a Criminal Trial (March 1986) (Report 48);
- The Jury in a Criminal Trial: Empirical Studies (June 1986) (Research Report 1);
- Procedure from Charge to Trial: A General Proposal for Reform (December 1986) (Discussion Paper 13);
- Procedure from Charge to Trial: Specific Problems and Proposals, Volumes 1 and 2 (February 1987) (Discussion Papers 14/1 and 14/2); and
- Police Powers of Arrest and Detention (August 1987) (Discussion Paper 16).
The Commission has been asked to examine and report on the subject of police powers of arrest and detention as a matter of priority within the terms of its general reference on Criminal Procedure. That request followed directly upon concern being expressed, by the New South Wales Commissioner of Police and officials from various other law enforcement agencies, about the practical implications of the decision of the High Court of Australia in Williams v The Queen (1986) 161 CLR 278. In Williams the High Court re-affirmed the Australian common law position that, where it is practicable for the police to bring an arrested person before a justice, this must be done without unreasonable delay. Police are not entitled to delay this process for the purpose of questioning the arrested person or for conducting any other form of investigation into the suspected criminal activity of the arrested person.
In a letter to the Commission of 21 January 1987, the then Attorney-General of New South Wales, the Hon T W Sheahan, requested the Commission to consider this matter, but the Attorney-General asked that our inquiry should not be limited to the relatively narrow issue dealt with by the High Court in Williams. Rather, the Commission was expressly asked to “review the whole question of the rights and powers of police following arrest”.
After preliminary research into this subject, the Commission prepared a consultative document which was distributed to all judges, magistrates, crown prosecutors, public solicitors, public defenders, a large number of lawyers in private practice, academic lawyers, and other interested individuals and organisations. The response to this document was of considerable value to the Commission in its work in this difficult and sensitive area. No other topic with which the Commission has dealt under its reference on Criminal Procedure has attracted such keen interest and generated such spirited debate.
The Commission originally intended to produce an early report on this topic. After receiving submissions in response to the consultation paper, however, it was considered that because of the complexity and importance of the issues involved and the largely conflicting approaches taken in the submissions, it was preferable for the Commission to deal with this subject by publishing a discussion paper: Police Powers of Arrest and Detention (DP 16). This paper was completed in August 1987 and was again widely distributed for the purpose of consultation. Discussion Paper 16 contained some 67 tentative proposals for reform covering the following topics:
- a code of arrest and detention
- power to stop and search
- power to demand name and address
- power to set up road checks
- questioning before arrest
- police power to arrest
- power of private citizens to arrest
- power of search on arrest
- procedure following arrest
- services available to an arrested person
- questioning following arrest
- the use of electronic recording equipment
- fingerprinting of arrested persons
- photographing of arrested persons
- obtaining forensic evidence
- the conduct of identification parades
- the role of the court of first appearance
- court attendance notices
- the consequences of breach of procedural rules
- special rules for Aboriginal persons.
The Commission received a large number of submissions in March 1988 in response to the Discussion Paper, including lengthy and carefully considered submissions from the New South Wales Commissioner of Police, the Law Society of New South Wales, the Legal Aid Commission of New South Wales and the Commonwealth Director of Public Prosecutions. This consultation process appeared to be drawing to a close in the middle of 1988, and an interim report was expected in late 1988 or early 1989. Unfortunately, however, this period coincided with a major run-down in the Commission’s financial and staff resources: the budget allocation for 1988-89 was down 31 per cent on the previous year, and the two remaining full-time Commissioners (including the Chairman) left the Commission and were not replaced. (The Commission’s “difficult year” is fully detailed in the Annual Report 1989).
Substantial work in this area recommenced in August 1990 following the appointments of the Hon Justice R M Hope AC CMG QC as Chairman and Associate Professor David Weisbrot as a full-time Commissioner. At the behest of the current Attorney-General of New South Wales, the Hon J R A Dowd QC, the Commission has given special priority to the completion of its work on this aspect of the Criminal Procedure reference, recognising the widely held view that the need for reform is relatively urgent. Because of the two year hiatus in the Commission’s work in this area, a further round of informal consultations were held in August and September 1990, to allow for an updating and “refreshing” of previous submissions. This involved discussions with many senior members of the New South Wales Police Service, the judiciary, the legal profession, officers in the Attorney-General’s Department, academic lawyers, and other members of the community.
Participants*
Division Members
For the purpose of the reference a Division was created by the Chairman in accordance with s12A of the Law Reform Commission Act 1967. The Division comprised the following members of the Commission:
Executive Director
Research Assistance
Ms Marianne Christmann
Ms Alexandra Shehadie
Honorary Consultant
Librarian
Desktop Publishing
Administrative Assistance
* During the long life of this Reference there have been a great many Commission staff, consultants and others involved as participants. It is only possible to list here those responsible for the production of this Report. |
