This paper looks first at the current law relating to police powers of
detention after arrest in NSW. It then considers the three key features of the
regulated scheme proposed under the Crimes Amendment (Detention after Arrest)
Bill 1997 (Exposure draft):
(i) the criteria for determining the length of the detention period for
arrested persons and related issues;
(ii) the investigative procedures which can be conducted while the person is
detained; and
(iii) the rights and safeguards available under the Bill, including the
establishment of the position of custody officer. The paper's findings
include:
- Section 352 of the Crimes Act 1900 (NSW) requires a police
officer arresting a person without warrant to take that person before a justice
to be dealt with according to law. That requirement has been interpreted in the
light of the common law as meaning that the police officer must do so without
unreasonable delay, or in as short a time as is reasonably practicable (page 5);
- the leading case is Williams ((1986) 161 CLR 278) (page 6);
- at present the law does not permit the police to arrest a
person solely for the purpose of questioning; nor does it allow any delay for
the purpose of investigating an offence in bringing the detained person before
a justice (pages 6-7);
- the scope for uncertainty in this area of law is notorious,
with one commentator stating that five years after the Williams decision the
NSW police still did not know that they had no power to arrest a person for
questioning (page 7);
- The NSW Law Reform Commission (NSWLRC) has said that the
judgments in Williams expressly invite legislative reform' and in 1990 it
recommended a comprehensive legislative regime, addressing the needs of the
police for adequate power to conduct criminal investigations while offering
proper and realisable safeguards for persons in police custody' (page 13);
- in determining the length of time for which an arrested person
can be detained under such a regulated scheme, the two issues to be addressed
are:
(i) whether a maximum period of detention should be specified; and
(ii) if so, what that maximum period should be. Much of the debate revolves
around the pros and cons of the maximum time approach against the reasonable
time formulation favoured in some jurisdictions (page 14);
- the reasonable time approach was proposed under the Crimes
(Detention after Arrest) Amendment Bill 1994 (page 17);
- the present Bill proposes an investigation period for a
reasonable time but up to a maximum of 4 hours. That can be extended by a
further 8 hours in total under a detention warrant (page 21)
- The Bill will apply to all persons but its operation may be
modified by Regulation with respect to children and other vulnerable people
(pages 21 and 23);
- the present Bill is based largely but not entirely on the
recommendations of the NSWLRC. For the NSWLRC the introduction of its custodial
investigation system was contingent on the establishment of a 24-hour duty
solicitor scheme (page 23);
- a minority view in the debate (at least where governmental
reports are concerned) is that all regulated schemes should be rejected in
favour of minor modifications to the common law. That view is associated with
the Queensland Parliamentary Justice Committee. Among other things, the
Committee was of the view that time out' provisions under a regulated scheme
would be open to abuse and that any such scheme would be inherently at odds
with the right to silence (pages 18-20);
- at common law there is no power to conduct a medical
examination without the consent of the person, either before or after arrest;
under section 353A of the NSW Crimes Act 1900 there is a power to search the
person after arrest and charge. This now authorises the taking of blood samples
from accused persons without their consent, using reasonable force where
necessary (page 26);
- the present Bill would permit a certain investigative
procedures to be carried out before the detained person is charged. However, it
may be the case that the legal effect of the relevant provision would differ
between some procedures and others. It is suggested that these can be separated
into at least three distinct categories: those for which the legal position
will be different if the Bill is passed; those where the position is unclear;
and those procedures for which the Bill would appear to have no legal effect
(page 30);
- the expansion of police powers envisaged under a regulated
scheme must be accompanied by adequate, transparent and effective protective
rights and procedures for the detained person (pages 38-40).
- as a counterweight to the extension of police powers, the Bill
would enshrine a range of protective rights and safeguards, including the
establishment of the position of custody officer'. These proposals are based on
the terminology used under the English Police and Criminal Evidence Act 1984
(pages 32-40); and
- in its Final Report the NSW Police Royal Commission endorsed
the reforms proposed under the present Bill (page 40).
