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WHAT YOU THOUGHT YOU KNEW ABOUT THE LAW

WHAT YOU THOUGHT YOU KNEW ABOUT THE LAW

Caveat

The information contained in this document is not legal advice and should not be treated as such or relied on as being such.

Fundamentals of the legal system

The Australian legal system sits on a three-legged stool.  The Rule of Law, Justice, and the Independence of the Judiciary.[1] It considers that all persons have the right to being treated fairly.

Right to freedom

Generally people have the right to the freedoms coveted within the community, although such rights are not guaranteed by the Commonwealth Constitution or within Western Australia’s laws in the form of a Citizens’ Charter or similar instrument.  These include to go about their lawful business without interference from authorities and to associate with other persons.  So just when can police interfere with those rights?

Being detained and arrested

When a person is detained, as opposed to being arrested, police must inform the person that they are not under arrest, that they do not have to accompany the officer, and they are free to leave when they wish to do so.  However, that does not apply to a request made in relation to drinking and driving, or driving under the influence of drugs[2].

Police may arrest, without warrant, in relation to an offence which carries imprisonment for five years or more, or for breaching a restraining order if it is suspected the offence has been committed, is being committed, or is about to be committed.  For other offences, police may arrest, without warrant, where it is suspected that identify cannot be confirmed, the offence will be continued or repeated, another offence will be committed, safety will be endangered, witnesses will be interfered with, or evidence will be lost[3].

Right to be in a place

Yes, you have a common law right to be in a place, but that has been modified by legislation.

Section 27 of the Criminal Investigation Act 2006 (WA) empowers police to issue move-on orders where there is reasonable suspicion that the person may use violence or incite another to use violence, is breaching the peace, obstructing a lawful activity, is committing, has committed, or is about to commit an offence.  An order lasts for up to 24 hours.

If a ‘protected forensic area’ is established you, your vehicle, or an animal do not have the right to enter or remain within it.  Penalty $12,000 or 12 months imprisonment[4].

You and your vehicle can be prevented from entering a ‘target area’ (i.e. an area specified in a Commissioner’s Warrant), or if you are in such an area, can be required to leave it or remain within it and a vehicle can be removed[5].

Giving identification information

Name and address

It is a legal requirement that a person gives identification information (e.g. their full name, date of birth, current residential address, and usual residential address) when requested by a police officer.  But, it is also a legal requirement that the requesting police officer has a reason for asking for the information, for example they have committed or are about to commit an offence, they can assist in the investigation of an offence, and their identity is unknown to the police officer[6].

Further it is suspected the person has been in, or is about to enter, a target area established under the Terrorism (Extraordinary Powers) Act 2005 (WA), or that the person is a target person, is in company of a target person, or is in a target vehicle[7].

In effect, this stops police asking information of just anyone on a whim and fancy.

If the police reasonably suspect that the information given is false, they can request production of confirmatory information[8].  Penalty, 12 months imprisonment.

In addition, police have to provide their surname and rank if in uniform and proof of their status if not[9].

Fingerprints, photographs, DNA, etc

Once charged, but before being dealt with by a court, a person’s prints may be taken of the person’s hands, feet, and ears, photographs can be taken (including of identifying marks), measurements may be taken of identifying features, and a DNA profile may be obtained but only in relation to a serious offence[10].

Further, a person who has been subjected to an offence against the person of the person (e.g. a sexual assault) is treated as if they are a crime scene, meaning that samples can be taken from them, but not without their consent or in the absence of a legal order[11].

Such identifying information is not always destroyed or disposed of even if the person is not convicted of an offence.  It is destroyed only after a request for such has been made.  But, destruction does not always mean physical destruction, however connecting information must be destroyed[12].  Thinking about DNA information, there are liable to be many places in which the person’s profile information is stored, accordingly, it cannot be guaranteed that all the information has been destroyed but it must be rendered unusable.

Search and entry

People

Police may search, without warrant, a person reasonably suspected of possessing anything related to an offence, but cannot enter a dwelling to do so, but can enter the area around a dwelling if the person has no authority to be there[13].

Even if you are a victim of an offence, police may obtain a warrant from a magistrate to perform a forensic procedure on you if it is in the interest of justice to do so[14].

A forensic procedure on a suspect may be conducted without consent when a warrant has been obtained from a justice of the peace (for an adult) or a magistrate (for a protected person)[15].

Persons reasonably suspected of being in, recently have been in, or about to enter a target area established under the Terrorism (Extraordinary Powers) Act 2005 (WA) may be subjected to a basic or strip search.  Similarly, target persons, those in company of such persons or within a target vehicle may also be searched[16].

Premises

A police officer can request consent to conduct a search of premises[17].

A search warrant can be obtained from a Justice of the Peace and remains in force for the period specified in the warrant.  A warrant can be executed only between 6 am and 9 pm unless a person is likely to be endangered or its effectiveness may be jeopardised.  On execution a search for the ‘target thing’ can be made, and any person may be subjected to a basic search (electronic means, removal of headwear, gloves and outer clothing to permit a frisk search by a person of the same gender if possible or strip search (by person of same gender and in presence of persons of same gender, in private, and with minimal people present, involves removal of all clothing and inspection of oral cavity.  Other things found during the course of the search can be seized and forensically examined.  People may be prevented from leaving the ‘target place’, photographs may be taken, equipment at the place may be employed (including requiring people to assist), people may be detained, required to leave or not enter[18].

When a warrant is used to authorise entry, a copy must be given to the occupier (i.e. the person who appears to have management or control of the premises) and give the person the opportunity of giving consent to the entry and search.  The occupier must be allowed to observe the search unless to do so might endanger that person, or they obstruct, or it is impractical[19].

If the place is unoccupied when entry is made a notice showing the police officer’s details and that the place was entered must be displayed in a prominent position together with a copy of any warrant.  If reasonably practical, an audiovisual recording of the search must be made[20].

When a police officer can conduct a search, others may assist in that search and may use an animal that has been trained and it is necessary to use it[21].

In order to affect a search or overcome resistance, police may use any force against a person or thing as is reasonably necessary in the circumstances to overcome the resistance[22].

Vehicles

Police can stop vehicles without a warrant if they reasonably suspect the vehicle is carrying stolen goods or an offence is being, or about to be, committed in relation to the vehicle[23].

Vehicles recently in, in, or about to enter target areas established under the Terrorism (Extraordinary Powers) Act 2005 (WA) or which are target vehicles or may contain a target person may be searched for things connected to terrorism.  Terrorism is defined as being an act done with the intention of advancing a political, religious or ideological cause; with the intention of coercing, or influencing by intimidation, the government of, or of a part of, any jurisdiction; or intimidating the public, or a section of the public, of any jurisdiction.  Unless it is advocacy, protest, dissent or industrial action; and is not intended  to cause a person’s death or serious physical harm to a person or endanger life, other than the life of the person doing the act or create a serious risk to the health or safety of the public[24].

Out of control gatherings

What is an out of control gathering?  Is of 12 or more people of which two or more are trespassers, disorderly, causing damage, being violent, doing obscene acts within public view, creating unreasonable noise, driving to cause excessive noise or smoke, lighting fires or using fireworks, throwing objects, obstructing traffic or pedestrians, littering or breaking glass, or are intoxicated.  The conduct must cause fear or alarm to those not associated with the gathering, interfere with a lawful activity.  But that does not apply to gatherings on licensed premises, public meetings for which a permit has been issued, political, industrial or protest rallies[25].

Police can enter places in relation to which authorisation has been given by a senior officer in relation to an out of control gathering, or a gathering likely to become out of control.  Once entered police may order people to leave the place for up to 24 hours, and take measures to restore the peace.  Penalty $18,000 or three years imprisonment[26].

Roadblocks and stopping vehicles

We have seen the television shows where trucks are lined-up across a road to stop a vehicle.  In Western Australia the law standardises how such roadblocks can be established.  Firstly, a senior officer must ‘reasonably suspect’ that one is necessary and then may give an authorisation relating to a specific road, all vehicles or any class of vehicle, and it expires after a maximum of six hours but can be renewed.  If the matter is urgent any police officer can establish a roadblock for up to three hours[27].

When stopping a vehicle, police may use ‘any means reasonably necessary’ as long as they are not intended or likely to cause death or grievous bodily harm and may detain or move the vehicle once stopped[28].

Police can enter a place or vehicle in which they reasonably suspect that a person has died, or is gravely ill or injured[29].

Right to remain silent during questioning

United States of America

We have all heard the American police shows where a person is ‘Mirandarised’ meaning they are given their ‘rights’ under the criminal law in force.  This right is drawn from the USA Constitution via the Fifth Amendment which provides against self-incrimination.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” [30]

In essence the suspected person is told that they have the right to remain silent and to an attorney and that if they cannot afford one, one will be appointed for them.  That is they cannot be compelled to incriminate themself.

Britain

We have also seen the British police shows where a similar caution is given to the suspect, except there is nothing about legal counsel and the right to remain silent is conditioned:  Adverse inferences may be drawn where a suspected person

  • fails to mention any fact later relied upon and which in the circumstances at the time the accused could reasonably be expected to mention;
  • fails to give evidence at trial or answer any question;
  • fails to account on arrest for objects, substances or marks on his person, clothing or footwear, in his possession, or in the place where he is arrested; or
  • fails to account on arrest for his presence at a place.

That has applied since 1994.  This is a departure from what has become known as the Judges’ Rules which first appeared in 1912.

Australia

In Australia the right to remain silent exists but is not enshrined in the Constitution.  It is recognised in each of the jurisdictions whether by legislation or as a common law right.  For example in Western Australia, Section 138 of the Criminal Investigation Act 2006 provides that before a suspect is questioned they must be cautioned.

In Australia the caution is generally “You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?”

However, since March 2013 in New South Wales, by virtue of legislative enactment juries can now drawn adverse inferences if a person does not cooperate during police questioning and then raises a defence at trial that would have been available.[31] This operates only in respect of adults who are legally represented and who are charged with an indictable offence punishable by five or more years imprisonment. Accordingly the caution there is now “You are not obliged to say or do anything unless you wish to do so. But it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say and do may be given in evidence. Do you understand?”

One interesting point though is not whether a suspected person says anything, perhaps even after being cautioned, but rather there reaction to questions.  In the USA Supreme Court appeal case of Salinas V. Texas [32] it was decided that evidence of a suspected person’s response to questioning (i.e. he looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, and began to tighten up when questioned whether shotgun cartridges found at a murder scene would match his shotgun) before he was reminded of his right to silence, did not infringe on his right against self-incrimination because he did not expressly invoke his right.

Is it always the best policy to remain silent?

There is a widely held misunderstanding that police will want to interview a suspect because they do not have enough evidence to prefer a charge.[33] In reality, the suspect’s interview is sometimes a formality.  It would be a very rare event that police will arrest for an offence (unless it is one that police themselves witnessed and which called for an immediate arrest) without affording the opportunity to the suspect to put their side of the story.

On other occasions a person might be interviewed because whilst they might have committed an offence, they also might not have done so.  Hence the interview is a search for facts which of course can be inculpatory or exculpatory.

Perhaps a short case example will demonstrate the difference between giving an account and not doing so.  A burglary occurs on a house in West Perth.  A witness sees a person they believe to be you entering the premises at about the time of the offence.  Police interview you.  At that point you have two courses of action.  Firstly, say nothing.  Given that the investigating officers have a witness who has identified you as being at the scene at the time there is a real probability that you will be arrested and charged with burglary.  The other alternative is to tell the investigating officer your account of what happened which may be that you were not at the place and have persons who can vouch for you (a case of mistaken identity).  In the face of that information it is highly unlikely that you will be arrested and charged.

Of course as one website says, “Having said nothing in the police station, you can then look at the evidence and work out your alibi, your side of the story. This is how you will get off.”[34] Personally I find that to be fantastic (as in fantasy) advice.  Get up in court and commit perjury when perhaps the matter with which you have been charged is much less serious.

So is it always the best policy to remain silent?

Police gain promotion because of the number of people they charge and convict

There is a widely held thought that police gain promotion because of the number of people they arrest and convict.[35] All I can say about that is that in my 40 years as a law enforcement officer I never came across anyone who gained promotion because they were a ‘good thief catcher’ and in the several promotion interview situations in which I was involved I was never asked how many people I had charged.

In short – crap!

Police can legally tell lies

One website suggests that, “Since police can legally lie in order to use a suspect’s words against them, silence is always the best option.”  I love these websites, they provide a continuous source of enjoyment; the sad part about this particular quote is that it is attributed to at least one of three law enforcement experts attending the 2011 Drug Policy Alliance conference in Los Angeles.  The fact is police who give false evidence in a court are just as amenable to perjury charges as are any other citizen and can receive up to life.  Police who fabricate evidence are liable to be charged with a serious criminal offence (e.g. perverting the course of justice) and can go to prison for up to seven years[36].

Right to make contact with another person during questioning or after arrest

After arrest, a person has the right to medical treatment, reasonable privacy from the mass media, an opportunity to communicate with a relative or friend to pass on the person’s whereabouts, the right to an interpreter when necessary[37].

After being arrested on suspicion of having committed an offence a person has the right to be told the nature of the offence for which they have been arrested and any other offence of which they are suspected, to make, or attempt to make, contact with a legal practitioner, and communicate through an interpreter.  All of the person’s rights may be nullified if it is thought that by allowing them an accomplice may escape, evidence may be concealed and the like, or a person may be endangered[38].

The right to bail after arrest

In general terms an adult does not have the right to bail after they have been arrested, but to have their case for bail considered (Section 5 Bail Act 1982 (WA)).

However, consideration of bail may be delayed to allow a search to occur, further investigation of the offence for which they person has been arrested, interviewing the arrested person, and making the decision whether or not to charge.  Under these circumstances the person cannot be placed into a lockup and can be detained only for a reasonable time (i.e. no more than six hours unless an extension by a senior officer has been granted for a further six hours, for a further eight hours by a magistrate)[39].

A person’s release can be further delayed when it is necessary to perform a forensic procedure on them under the Criminal Investigation (Identifying People) Act 2002 (WA)[40].

Right to remain silent at trial

In most cases there is no requirement for a defendant to give evidence at trial.  And when a defendant exercises that right, juries or other finders of fact are not entitled to draw any adverse inference.

Right to remain silent at inquest

During the course of an inquest a coroner may order a witness to answer questions. If a witness refuses to answer a question on the ground that such will criminate, or be likely to criminate, the witness a coroner can require the person to answer if it is in the interests of justice.  In such a case a certificate is issued the evidence is rendered inadmissible in any other proceeding, except for perjury.[41]

Right to not incriminate oneself

Before charge

It is a principle of Westminster legal system that a person does not have to incriminate themself; that is they do not have to do or say anything that might place them in legal jeopardy.  In a number of cases, this principle has been displaced by statute law.

For example, in drink driving matters a person can be required to provide a breath or blood sample for analysis.  Obviously if the person has consumed enough alcohol to push the blood-alcohol concentration above the legal limit, they are providing evidence against themself.

Before charging a person police have the legal right to take fingerprint and palm prints, feet and toe prints, and ear prints, photographs (including of identifying features), impressions of identifying features (e.g. dental impressions), a hair sample for other than DNA analysis, a DNA profile but only for the purpose of affording evidence relating to the serious offence that the person is suspected of having committed[42].

Before the Corruption and Crime Commission

In general terms, evidence given to the Crime and Corruption Commission in response to a requirement of the Commission is not admissible against the witness in a criminal prosecution.  However, such evidence may be raised as being inconsistent evidence in a criminal matter[43].

Citizen’s arrest

Any person may arrest another if they ‘reasonably suspect’ that the person is committing or has committed an ‘arrestable offence’ (i.e. one for which the penalty includes imprisonment).  Once arrested the person must be taken before a police officer and may be detained or transported for that purpose.  A person cannot enter premises to effect an arrest[44].

 


[1] http://www.dfat.gov.au/facts/legal_system.html

[2] Section 28 Criminal Investigation Act 2006 (WA)

[3] Section 128 Criminal Investigation Act 2006 (WA)

[4] Section 47 Criminal Investigation Act 2006 (WA)

[5] Sections 7 to 11 Terrorism (Extraordinary Powers) Act 2005 (WA)

[6] Section 16 Criminal Investigation (Identifying People) Act 2002 (WA)

[7][7] Section 12 Terrorism (Extraordinary Powers) Act 2005 (WA)

[8] Section 16 Criminal Investigation (Identifying People) Act 2002 (WA)

[9] Section 11 Criminal Investigation Act 2006 (WA); Section 16 Criminal Investigation (Identifying People) Act 2002 (WA)

[10] Section 47 Criminal Investigation (Identifying People) Act 2002 (WA)

[11] Section 23 Criminal Investigation (Identifying People) Act 2002 (WA)

[12] Sections 69 and 70 Criminal Investigation (Identifying People) Act 2002 (WA)

[13] Section 68 Criminal Investigation Act 2006 (WA)

[14] Sections 88 to 90 Criminal Investigation Act 2006 (WA)

[15] Sections 99 and 100 Criminal Investigation Act 2006 (WA)

[16] Section 13 Terrorism (Extraordinary Powers) Act 2005 (WA)

[17] Section 30 Criminal Investigation Act 2006 (WA)

[18] Section 43, 44, 63 and 72 Criminal Investigation Act 2006 (WA)

[19] Section 31 Criminal Investigation Act 2006 (WA)

[20] Sections 31 and 45 Criminal Investigation Act 2006 (WA)

[21] Sections 15 and 17 Criminal Investigation Act 2006 (WA)

[22] Section 16 Criminal Investigation Act 2006 (WA)

[23] Section 39 Criminal Investigation Act 2006 (WA)

[24] Sections 5 and 14 Terrorism (Extraordinary Powers) Act 2005 (WA)

[25] Section 75A of The Criminal Code (WA)

[26] Sections 23B and 38C Criminal Investigation Act 2006 (WA)

[27] Section 18 Criminal Investigation Act 2006 (WA)

[28] Section 19 Criminal Investigation Act 2006 (WA)

[29] Section 36 Criminal Investigation Act 2006 (WA)

[30] http://www.law.cornell.edu/wex/fifth_amendment

[31] http://www.globalpost.com/dispatch/news/regions/asia-pacific/130320/australia-new-south-wales-ends-right-silence (20 March 2013)

[32] Court Of Criminal Appeals of Texas, No. 12–246. Argued April 17, 2013—Decided June 17, 201; http://www.thenewamerican.com/usnews/constitution/item/15787-supreme-court-bombshell-no-right-to-remain-silent

[33] http://www.darkpolitricks.com/a-guide-to-no-comment-police-interviews/

[34] http://www.darkpolitricks.com/a-guide-to-no-comment-police-interviews/

[35] http://www.darkpolitricks.com/a-guide-to-no-comment-police-interviews/

[36] http://www.rawstory.com/rs/2011/11/05/flex-your-rights-the-top-3-things-to-do-in-every-police-encounter/; Sections 125, 129, 131 and 143 of The Criminal Code

[37] Section 137 Criminal Investigation Act 2006 (WA)

[38] Section 138 Criminal Investigation Act 2006 (WA)

[39] Sections 139 and 140 Criminal Investigation Act 2006 (WA)

[40] Section 142 Criminal Investigation Act 2006 (WA)

[41] Sections 46 and 47 Coroners Act 1996 (WA)

[42] Sections 34 and 35 Criminal Investigation (Identifying People) Act 2002 (WA)

[43] Section 145 Corruption and Crime Commission Act 2003 (WA); Section 21 Evidence Act 1906 (WA)

[44] Section 25 Criminal Investigation Act 2006 (WA)

© Hadyn R Green 2013

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