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Sweeney, Desmond --- "Police Questioning of Aboriginal Suspects for Commonwealth Offences -- New Laws" [1992] AboriginalLawB 5; (1992) 1(54) Aboriginal Law Bulletin 10


Police Questioning of Aboriginal Suspects for Commonwealth Offences – New Laws

by Desmond Sweeney

Introduction

The need to protect the rights of Aboriginal and Torres Strait Islander suspects during police interrogation has been the subject of considerable judicial and academic comment. Despite the Anunga guidelines[1] which provide guidance for police interrogating Aboriginals in the Northern Territory and subsequent police administrative directions in other jurisdictions,[2] significant problems remain with interrogation of Aboriginal suspects.[3]

One problem facing lawyers trying to enforce the Anunga guidelines and police administrative directions is that compliance with them, by police, is not mandatory. Significant steps toward remedying this defect and ensuring Aboriginal suspects are treated fairly are the recent amendments to the Crimes Act 1914 (Cth) by the Crimes (Investigation of Commonwealth Offences) Amendment Act 1991 (Cth).

Overview

The Crimes (Investigation of Commonwealth Offences) Amendment Act 1991 (Cth) creates a statutory regime for the detention and questioning of persons under arrest and contains provisions regarding the questioning of Aboriginal persons.

At common law a person who is arrested must be taken before a justice as soon as practicable and may not be detained for the purpose of questioning.[4] The amendments abrogate this common law right and permit a person who has been lawfully arrested to be detained for a specified period for the purpose of investigating whether the person has committed a Commonwealth offence. However, the amendments do impose strict conditions on questioning.

Police are presently permitted to detain a person after arrest for questioning pursuant to the Crimes Act 1958 (Vic) ss464-464J, Summary Offences Act 1953 (SA) s79a and Police Administration Act (NT) ss137-138. However, the Commonwealth Act contains the most detailed provisions regarding the protection of a suspect's rights and is the only Act to provide an upper limit on the period of questioning[5] and to make special provision for the questioning of Aboriginal persons. The Act adopts many of the recommendations of the Australian Law Reform Commission regarding the interrogation of Aboriginal suspects.[6]

Application of the Act

The new Part 1C of the Crimes Act 1914 (Cth) applies:

(a) to the investigation of all Commonwealth offences (other than a service offence under the Defence Force Discipline Act 1982) whether undertaken by the Australian Federal Police or by State or Territory police;[7] and

(b) to the investigation of offences against the law of the ACT which are punishable by imprisonment for a period exceeding 1 year where the investigating official is a member of the Australian Federal Police.[8]

The provisions of the Part generally apply to a person who is under 'arrest' which is defined widely and includes not only where a person is formally arrested but also where a person is in the company of a police officer and:

(a) the officer believes there is sufficient evidence to establish that the person has committed a Commonwealth offence; or

(b) the officer would not allow the person to leave if the person wished to do so; or

(c) the officer has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.[9]

A person is not under 'arrest' for the purpose of the Part where an official is detaining or searching a person or requiring the person to provide information or answer questions under a law of the Commonwealth.[10] A person ceases to be under arrest in respect of an offence for the purposes of the Part where the person is remanded by a magistrate in respect of that offence.[11]

Certain provisions relating to the questioning of Aboriginal persons apply whether or not the Aboriginal person is under 'arrest'.

Detention for questioning

Where a person is arrested for a Commonwealth offence they may be detained - for the purpose of investigating whether they committed that offence or any other Commonwealth offence - for a 'reasonable' period, which is not to exceed 2 hours in the case of an Aboriginal person or a person under 18 (or 4 hours for other persons).[12]

In the case of investigation of an offence punishable by imprisonment for a period exceeding 12 months, the investigation period, on application to a magistrate[13], may be extended for a further period of 8 hours. If a magistrate is unavailable the application may be made to a justice of the peace employed in a court or a bail justice or, where none of the above persons are available, to any justice of the peace[14] The magistrate may only extend the investigation period once and if satisfied that:

(a) further detention of the person is necessary to obtain evidence or complete the investigation;

(b) the investigation is being conducted properly and without delay; and

(c) the person (or his or her legal representative) has been given the opportunity to make representations about the application.[15]

The Part contains detailed provisions regarding 'dead time' to be disregarded for the purposes of calculating the investigation period. 'Dead time' includes:

(a) the time reasonably required to transport the person from the place of arrest to the nearest premises with facilities stipulated by the Part;

(b) time spent waiting for the arrival of, and the duration of any communication between the person and a legal practitioner, relative, interpreter, interview friend etc.; and

(c) time during which questioning is suspended or delayed because of the person's intoxication, to allow the person to receive medical attention, to allow the person to rest or recuperate or to conduct an identification parade.[16]

Where a person has been arrested more than once in a 48 hour period, the maximum investigation period for each arrest other than the first is to be reduced by the period of the previous investigation periods within the previous 48 hours.[17] Unless during the investigation period the person was brought before a magistrate, at the end of the investigation period the person must be released unconditionally or on bail or brought before a magistrate as soon as practicable.[18]

Though the Part permits detention of a person for questioning after arrest, it does not alter the law as to arrest or permit the involuntary detention of a person who is not under arrest.[19]

Procedure prior to questioning

Prior to questioning the Aboriginal person regarding their involvement in any offence, or carrying out an investigation in which the person participates, an investigating official must:

(1) administer a caution to the person in a language in which the person is able to communicate with reasonable fluency;[20]

(2) where the person is unable to communicate orally with reasonable fluency because of language or physical difficulties, arrange for the presence of an interpreter;[21]

(3) inform the person that he or she may communicate with a friend or relative to inform the friend or relative of his or her whereabouts;[22]

(4) inform the person that he or she may communicate with a legal practitioner and that a legal practitioner may be present during the questioning or investigation;[23]

(5) unless the investigating official is aware that the person has arranged for a legal practitioner to be present:
(a) inform the person that a representative of an Aboriginal legal aid organisation[24] will be notified that the person is under arrest; and
(b) notify a representative of an Aboriginal legal aid organisation that the person is under arrest for the offence;[25]

(6) allow the person to communicate with an interview friend in private;[26]

(7) wait until an interview friend is present, unless the Aboriginal person has waived his or her right to have such a person present;[27]

(8) where the Aboriginal person has arranged for a legal practitioner to be present during the questioning or investigation, permit the legal practitioner to be present during the questioning or investigation and to give advice to the person.[28]

The investigating official must, if practicable, tape record the caution and giving of the above information to the person and the person's response.[29]

Interview friends

The provisions relating to interview friends apply not only where an Aboriginal person is under arrest but also where the investigating official:

(a) suspects the Aboriginal person may have committed an offence; or

(b) is of the opinion that information received by investigating officials may implicate the Aboriginal person in the commission of an offence.[30]

An 'interview friend', in the case of an Aboriginal person 18 years or older, is:

(a) a relative or other person chosen by the person;

(b) a legal practitioner acting for the person;

(c) a representative of an Aboriginal legal aid organisation; or

(d) a person whose name is included on the list maintained under s23J(1).[31]

In the case of an Aboriginal person under 18, an 'interview friend' is:

(a) a parent or guardian of the person or a legal practitioner; or

(b) where none of these persons are available, a relative or friend of the person who is acceptable to the person; or

(c) where none of the previously mentioned persons are available, a person whose name is included on the list maintained under s23J(1); or

(d) where none of the previously mentioned persons are available, an independent person.[32]

The Minister must establish and maintain, in consultation with any Aboriginal legal aid organisation in each region, a list for each region of persons who are suitable to help Aboriginal persons under arrest and investigation.[33] These persons can be 'interview friends'; however interview friends are not limited to persons on this list.

The provisions regarding interview friends, though positive steps, are flawed for two main reasons. Firstly, they apply only where the investigating officer "believes on reasonable grounds that the person is an Aboriginal person or a Torres Strait Islander".[34] This subjective test permits police to circumvent the purpose of the section. Whether a person is identifiable as an Aboriginal or Torres Strait Islander should be an objective test or, at minimum, require the investigating official to be satisfied that the person is not an Aboriginal or Torres Strait Islander, prior to dispensing with the requirement for an interview friend. In this regard the judgement of Kelly J in The Queen v Clevens (1981) 55 FLR 453 has much to commend it. Kelly J held that in relation to the Police General Instructions the Federal Police should enquire as to whether a person is Aboriginal where there is any doubt as to whether the person is Aboriginal, even though the police officer may believe the person is not.

Secondly, the provisions regulating interview friends for adult Aboriginals do not require the investigating official to permit the Aboriginal person to choose the interview friend. An investigating official could reject a person selected by an Aboriginal adult and choose instead another person from one of the four classes of persons specified in s23H(9) who the person may not know or feel supported by.

This is to be contrasted with the observations by the Full Federal Court in Gudabi v The Queen (1984) 1 FLR 187. The Court stated (at 201):

"The overriding consideration must always be that the prisoner's friend is a person selected by the Aboriginal in the exercise of a free choice."

Where a police officer ignores an Aboriginal suspect's request for an interview friend and chooses another person a Court has a discretion to exclude any subsequent confession under the general common law rules relating to the admissibility of confessions if it considers the refusal to permit the Aboriginal suspect's choice of an interview friend resulted in unfairness to the accused. Nevertheless, the provisions of the Part in this regard are dearly unsatisfactory and should be amended so an Aboriginal person is permitted to choose the interview friend, so long as the person chosen is able to attend in a reasonable period of time.

Confidentiality of statements made to an interview friend

An issue arises as to the admissibility in evidence of admissions or confessions made by a suspect to an interview friend. Section 79a(1)(b) of the Summary Offences Act 1953 (SA), which provides that where an arrested person "is apprehended on suspicion of having committed an offence ... he shall be entitled to have a solicitor, relative or friend ... present during any interrogations", was considered by the Court of Criminal Appeal in R v Musico (1991) 55 SASR 274.

The Court held that privilege did not attach to statements made by the accused to a relative who was present at the police station as an interview friend. The Court also rejected a submission that the admissions should be excluded at the Court's discretion on the grounds of unfairness to the accused, stating (at 276) that:

"there is nothing unfair to an accused person in admitting into evidence statements which he has made to a person in the expectation that the person will not disclose them, provided there has been no trickery or impropriety on the part of the police."

If the same principles are applied to statements made by Aboriginal persons under arrest to an interview friend entitled to be present at the interview under Part 1C of the Crimes Act (Cth) the whole rationale of s23H will be undermined. The primary purpose of an interview friend for Aboriginal persons is to provide support and assurance. (See R v Anunga [1905] ArgusLawRp 117; (1975) 11 ALR 412 at 414; Gudabi v The Queen (1984) 1 FLR 187 at 198-200; R v W (198812 QdR 308 at 322). For this to happen there must be a relationship of trust which will be destroyed if the interview friend can be compelled to give evidence under subpoena. Further, the ludicrous situation arises that where an interview friend is called, the Aboriginal person under arrest should be cautioned that anything said to the interview friend may be used in evidence. Failure to do so may result in some persons under arrest incorrectly assuming that the interview friend is 'on their side' and is a person in whom they can confide.

The provisions of Part 1C of the Crimes Act (Cth,) unlike s79A of the Summary Offences Act (SA), specifically provide that a suspect must be permitted to communicate with an interview friend in private.[35] It may be argued that the provision for privacy indicates an intention by the legislature that the communication be confidential. However, the words of King CJ in R v Musico (at 276) that;

"if it had been intended [that privilege would apply to communication with the interview friend] one would have expected the legislature to have expressly provided for it",

still give rise for concern.

Exceptions

Certain exceptions apply to the above provisions. An investigating official is not required to notify a representative of an Aboriginal legal aid organisation that the person is under arrest or permit an interview friend to be present (except for persons under 18) if the official believes on reasonable grounds, having regard to the Aboriginal person's level of education and understanding, that the person is not at a disadvantage in respect of the questioning or investigation in comparison with members of the Australian community generally.[36] The onus of proof regarding this belief is on the prosecution[37] and "...[the investigating official] should bear in mind that cultural as well as purely linguistic factors may contribute to disadvantage."[38]

The special limit of 2 hours for the detention of Aboriginal persons is mandatory (subject to extension of the investigation period).

An exception also applies where the investigating official believes on reasonable grounds that compliance with the requirements is likely to result in an accomplice of the person taking steps to avoid apprehension; is likely to result in the concealment, fabrication or destruction of evidence or the intimidation of a witness; or the questioning is urgent, having regard to the safety of other people.[39]

Tape recording of interviews

A confession or admission made during an interview with a suspect is generally inadmissible in evidence against the suspect unless the questioning of the person was tape recorded.[40] Where this is impracticable a written record of the interview made may be deemed admissible provided that the reading of that record of interview to the person is tape recorded.

Failure to comply with the provisions relating to the tape recording of record of interviews will render the confession or admission inadmissible unless the Court is satisfied that the admission of the confession or admission would not be contrary to the interests of justice or that it was not practicable to comply with the provisions.[41]

Effect of non-compliance

The effect of non-compliance with the provisions of the Part, other than the provisions regarding tape recording of interviews, is not specified. Police who breach the provisions contravene the law and could be charged with a disciplinary offence under the relevant Police Act.

Where a confession is obtained as a result of non-compliance with the Part, the admissibility of that confession will be determined by the ordinary rules relating to confessions. In summary, these are as follows. Firstly, a confession will be excluded if it was not voluntary in the sense of being made in the exercise of a free choice to speak or remain silent.[42] Secondly, where the confession was voluntarily made, it may be excluded in the exercise of the Court's discretion if the circumstances surrounding the making of the confession make it unfair to admit the confession in evidence against the accused.[43] Thirdly, a confession that was unlawfully obtained may be excluded notwithstanding that it was voluntarily made and there was no unfairness to the accused in the exercise of the Court's discretion to exclude unlawfully obtained evidence.[44]

The breach of the Part is particularly relevant to ground two but not in the breach itself but rather whether failure to comply with the provisions make it unfair for the confession to be used against the particular accused.[45] A further consequence of a breach of the Part is that it enlivens the Court's discretion to reject a confession on the third ground. In exercising this discretion a Court must weigh the competing public interests in convicting criminals and the protection of the individual from unlawful treatment.[46]

It is hoped that in assessing unfairness to the accused and in balancing public policy considerations Courts view a breach of the Part seriously - a relevant factor being that the provisions are specifically designed to protect the confessionalist.[47] Further, in abrogating the common law right not to be detained for questioning after arrest, the Part aims to balance the need for law enforcement against the need to adequately protect suspect's rights. In doing so the legislature has carefully considered an appropriate set of checks and balances. Failure to rigorously enforce them would only further erode the basic rights of citizens under investigation.

Conversely, compliance with the provisions of the Part will not automatically render confessions obtained admissible[48] - the question remains whether the confession was voluntary and if so, whether there was unfairness to the accused.[49]

Conclusion

The amendments are an important step towards ensuring that Aboriginal persons are treated fairly while under police investigation. However, there are a number of limitations, the major one being that the safeguards in the Part generally only apply to the questioning of a person after that person has been 'arrested'. Some provisions have wider application, namely, provisions relating to interview friends for Aboriginal persons and the requirement that interviews be tape recorded. However other significant provisions, such as the notification of the Aboriginal Legal Service, only apply to police questioning after a person is 'arrested'. It is perhaps ironic that the amendments, while taking away the common law protection not to be detained for the purpose of questioning after arrest and acknowledging the need to protect Aboriginal persons during police questioning, offer no significant additional protection to questioning of Aboriginal suspects prior to arrest. The special provisions relating to Aboriginal persons should be extended to apply to all situations where Aboriginal persons, suspected of an offence, are questioned by police.

As the Courts retain their discretion to exclude statements that were obtained in circumstances unfair to the accused, the mandatory requirements of the part in relation to questioning of persons following arrest are likely to be adopted as a minimum 'defacto' standard in relation to the questioning of Aboriginal persons prior to arrest. For example, it will be hard for police to justify why they failed to explain to a person the person's right to communicate with a friend or relative or to notify the Aboriginal Legal Service when the police officer knew that such requirements would have been mandatory for any questioning carried out subsequent to arrest.

Similarly, though the amendments are restricted to the investigation of Commonwealth offences they are likely to have an impact on the manner of investigation of non-Commonwealth offences. As State police are required to comply with the provisions of the Part when investigating Commonwealth offences they will be aware of the special procedures designed to ensure that Aboriginal persons are not overborne by the circumstances surrounding the interview. As such, the safeguards specified in the Part are likely to become the benchmark against which conduct by State police is judged. It will be hard for police to argue that the standard of fairness varies depending on whether the offence is a Commonwealth or State offence. It will be interesting to see the approach the Courts adopt in these circumstances.


[1] R v Anunga (1975)11 ALR 412.

[2] See (Australian Federal Police) General Instruction 1; (NT) Police General Order A12 paras 50-53 and Police General Order Q2; (QLD) Police Manual General Instruction 5.45A; (SA) Police General Order 3015; (WA) Police Manual parts 1-1.4 to 1-1.6; 33.42.

[3] For an examination of principles relating to the admissibility of confessional statements by Aboriginal persons see Hatsbury's lands of Australia, Butterworths, 1991, Volume 1, chapter on Aboriginals and Torres Strait Islanders at paras [5-1815] – [5-1855].

[4] Williams vThe Queen (1986)161 CLR 278.

[5] Victoria provided a upper limit of 6 hours for questioning between 1984 and 1988. However, like South Australia and Northern Territory, the Crime; Ad 1958 (VIC) now specifies that the person not be detained for longer than a 'reasonable period'.

[6] See Australian Law Reform Commission: The Recognition of Aboriginal Customary Laws, (Report No 31), AGPS, Canberra, pare 1008 and section 29 in Draft Aboriginal Customary Laws (Recognition) Bill contained in Appendix A. See also Australian Law Reform Commission Report No 2: Criminal Investigation, AGPS, Canberra, 1975 at pare 371-5.

[7] See definition of Commonwealth offence' in s 23B(1).

[8] Crimes Ad 1914 (Cth) s23A(6).

[9] Ibid s23B(2)(a)-(c).

[10] Ibid s23 B(2)(d)-(e).

[11] Ibid s23B(3).

[12] Ibid s23C(2) and 23(C)(4).

[13] Ibid s23D(1) and 23D(5).

[14] Ibid s23D(2).

[15] Ibid s23D.

[16] Ibid s23C(7).

[17] Ibid s23C(6).

[18] Ibid s23C(3). The burden of proof is on the prosecution to prove that the person was brought before a magistrate as soon as practicable: s23C(8)(a).

[19] Ibid s23A(5) and s23A

[20] Ibid s23F.

[21] Ibid s23N.

[22] Ibid s23G(1)(a).

[23] Ibid s23G(1)(b).

[24] An Aboriginal legal aid organisation is an organisation that provides legal assistance to Aboriginal persons and which is identified in the regulations: aid s23B(1).

[25] Ibid s23H(1).

[26] Ibid s23H(2)(c).

[27] Ibid s23H(2)(d). Where this right is waived, the onus of proof is on the prosecution to prove that the Aboriginal person waived the right voluntarily and with full knowledge and understanding of what he or she was doing: s23H(4).

[28] Ibid s23(3).

[29] Ibid s23U.

[30] Ibid s23H(2)(a).

[31] Ibid s23H(9).

[32] Ibid s23K(3).

[33] Ibid s23G(3(b), 23H(3) and 23K(2).

[34] Ibid 623H(1}(2).

[35] Ibid s23H(2)(c); 23K(1).

[36] Ibid 623H(8).

[37] Ibid s23W.

[38] Second reading speech (of the Attorney-General), Hansard, House of Representatives, 15 November 1990, p4227.

[39] Ibid s23L.

[40] Ibid s23V(1)(a).

[41] Ibid s23V (5) and (6).

[42] McDermott v R (1948) 76 CLR 501; Collins v R (1980) 31 ALR at 307-8 per Brennan J.

[43] R v Lee [1950] HCA 25; (1950) 82 CLR 133.

[44] R v Ireland (1970)126 CLR 321.

[45] R v Lee, above; Cldand v The Queen (1982) 151 CLR I at 32-33 per Dawson J; Collins v R, above, at 312-314.

[46] R v Ireland, above, at 335; Bunning v Cross (1978)141 CLR 54 at 74-5; Cleland v The Queen, above; Collins v R, above, at 316-317.

[47] See Cleland v The Queen, above; Collins v R, above, at 317 per BrennanJ.

[48] Section 23S expressly preserves the common law rules relating to the admissibility of confessional evidence.

[49] See Collins v R above, at 312-314 per Brennan J.


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