Purpose of arrest

There is an obligation on police to bring an arrested person before the court as soon as possible, and not merely at a time convenient to them - Williams v R (1986) confirmed in A-G (NSW) v Dean (1990)

Williams (1986)

Facts: In the early hours of the morning of 17 May 1984 police at Scottsdale, a town in the north of Tasmania, received information that the applicant had been seen in hotel premises at Scottsdale apparently in the act of committing a burglary.  The applicant fled from the scene in a motor vehicle and was eventually arrested after his car had run off the road and he had attempted to escape into the bush. The arrest was made at about 6.00 a.m. by Constable Gibson who told the applicant that he was satisfied that he was responsible for several burglaries in the northern area of Tasmania.  The applicant was then taken to the police station at Scottsdale and was kept there until he could be interviewed by officers of the C.I.B. who had to come from Launceston who arrived at arrived at about 8.45 a.m.  The applicant was indicted before the Supreme Court of Tasmania on twenty-nine counts - fifteen of burglary and fourteen of stealing.  At the commencement of the trial counsel for the accused objected to the admission in evidence of a number of records of interview containing confessions allegedly made to the police by the applicant. After a voir dire the learned trial judge ruled that the records of interview which related to twenty-six of the counts should not be admitted in evidence.  The Crown Prosecutor then offered no evidence on those counts and the jury by direction brought in a verdict of not guilty on each of those counts.  The applicant pleaded guilty to the remaining three counts.  Thereafter the Attorney-General for Tasmania applied for leave to appeal.

Held: From what I have said it is clear that the accused was unlawfully detained after 2.15 p.m. on the 17th May.  He was subjected to lengthy questioning about matters other than those for which he was arrested and he was unable to get before the court and ask for legal advice.  It seems to me not to matter whether or not he volunteered certain information, the fact is that he was unlawfully detained about 20 hours longer than he should have been.  This seems to me to be a clear case where I should exercise my discretion to exclude evidence of the confessions made in the records of interview other than those in relation to the Scottsdale matters.  In my view it would be unfair to the accused to admit such evidence having regard to the circumstances in which it was procured. In our opinion special leave to appeal should be granted. Since the trial  judge was not in error in reaching the conclusion that the records of interview were obtained whilst Williams was illegally detained, the submissions made by the respondent in support of the decision of the Court of Criminal Appeal cannot be sustained.  The appeal should be allowed and the verdicts of acquittal upon the twenty-six counts should be restored.

Procedure After Arrest/ Police Interrogation

Part 9 of the LEPAR:  The “investigation period” after arrest before Defendant must be brought before a Justice/Magistrate.

Law Enforcement (Powers and Responsibilities) Act 2002

· Sections 109–132 govern the INVESTIGATIONS AND QUESTIONING process.
Section 115 Investigation period

(cf Crimes Act 1900 , s 356D)

(1) The investigation period is a period that begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances, but does not exceed the maximum investigation period.
(2) The maximum investigation period is 4 hours or such longer period as the maximum investigation period may be extended to by a detention warrant.

Section 117 - sets out the certain times to be disregarded in calculating investigation period i.e. any time spent using facilities or communicating with a friend.

Admissions Made in Official Questioning

Criminal Procedure Act 1986; s281

* Admissions made in official questioning inadmissible unless ERISP (Electronically Recorded Interview with Suspected Person) or “reasonable excuse for no ERISP

Section 281 Admissions by suspects

(1) This section applies to an admission:
(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and
(b) that was made in the course of official questioning, and
(c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.

(2) Evidence of an admission to which this section applies is not admissible unless:

(a) there is available to the court:
(i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or
(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (iii) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or

(b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.

(3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995 ) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2).

(4) In this section: "investigating official" means:
(a) a police officer (other than
a police officer who is engaged in covert investigations under the orders of a superior), or
(b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations.

"official questioning" means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.
"reasonable excuse" includes:
(a) a mechanical failure, or
(b) the refusal of a person being questioned to have the questioning electronically recorded, or
(c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.

"tape recording" includes:
(a) audio recording, or
(b) video recording, or
(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.

Evidence Act 1995 (NSW), ss 84, 85, 86, 89, 90, 137-139

* Sections 84, 89 and 137-139 Evidence Act.  Circumstances in which admissions made by Defendant are not admitted into evidence at trial.

Section 84 Exclusion of admissions influenced by violence and certain other conduct

(1) 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:
(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or
(b) a threat of conduct of that kind.

(2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.

82.     Exclusion of evidence of admissions that is not first-hand
83.     Exclusion of evidence of admissions as against third parties
84.     Exclusion of admissions influenced by violence and certain other conduct
85.     Criminal proceedings: reliability of admissions by defendants
86.     Exclusion of records of oral questioning
89.     Evidence of silence
90.     Discretion to exclude admissions
137.    Exclusion of prejudicial evidence in criminal proceedings
138.    Exclusion of improperly or illegally obtained evidence
139.    Cautioning of persons

McKinney (1991) - Where Defendant disputes record of interview, and no other evidence of admission, Judge must give jury warning on reliability of admission.

Facts: The applicants, Vincent Peter

McKinney and Michael Allan Judge, seek special leave to appeal from a decision of the Court of Criminal Appeal of New South Wales dismissing their appeals from convictions on three charges arising out of the breaking and entering of premises at Dharruk in the western suburbs of Sydney.  The prosecution case was that the premises were entered by three men, one of whom was armed.  The uncontested evidence was that an armed man demanded money from one of the occupants, and, a little later, another occupant was seriously injured when a single shot was fired from a gun.  The prosecution case was that the applicants and a co-accused (who was acquitted of all charges) were each guilty, on the basis of common purpose or joint enterprise, of breaking and entering, assault with intent to rob and assault occasioning grievous bodily harm. The case against the applicants was substantially based on signed police records of interview.  Each of the applicants signed a record of interview in which he stated that he, and he alone, had entered the premises at Dharruk and accidentally discharged the gun. The applicants were directly linked to the events at Dharruk only by their records of interview.  Apart from the applicants' signatures, there was no independent evidence corroborating the making of those records or confirming their contents.  The defence of each of the applicants was conducted on the basis that his record of interview was fabricated by the interviewing police officers and that he had signed the fabricated document only because his will was overborne.  Each now seeks special leave to appeal on the ground that a warning should have been given as to the danger of convicting on the basis of those records of interview.

Held: The accused did not dispute their signatures; in effect, each said that he had been forced to sign, by physical violence or threats, or both. When the directions are taken in their entirety, I do not think that a warning in general terms of the need to look at the confessional evidence with care was necessary for the jury's appreciation of the task they had to perform. Appeal allowed and new trial held.

Foster (1993)

Facts: Foster, was charged in the District Court of New South Wales, Criminal Jurisdiction, with the offence of maliciously setting fire to a public building. The public building in question was the High School building in the town of Narooma on the South Coast of New South Wales.  The prosecution case against the appellant rested on a seven-line typed confessional statement which the appellant had signed while he was held in custody at the Narooma Police Station. That confessional statement constituted the only evidence of the appellant's involvement in the fire.  Indeed, the learned trial judge (Ford DCJ) directed the jury that, without it, the Crown had not succeeded even in proving, as against the appellant, that the fire at the High School had been caused by human intervention.

Held: On the evidence and findings presently before the Court, the conduct of the police officers did not require the exclusion of the statements on public policy grounds.  The trial judge made no finding that the police officers had deliberately broken the law or had pursued a course of reckless conduct, not caring whether or not they were breaking the law in arresting the appellant, holding him in custody and interrogating him. A verdict of acquittal was decided – NOT GUILTY

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