Part 9 Investigations and questioning
(cf Crimes Act 1900, s 354)
The objects of this Part are:(a) to provide for the period of time that a person who is under arrest may be detained by a police officer to enable the investigation of the person’s involvement in the commission of an offence, and(b) to authorise the detention of a person who is under arrest for such a period despite any requirement imposed by law to bring the person before a Magistrate or other authorised officer or court without delay or within a specified period, and(c) to provide for the rights of a person so detained.
(cf Crimes Act 1900, s 355)
(1) In this Part:detention warrant means a warrant issued under section 118.
investigation period means the period provided for by section 115.
permanent Australian resident means a person resident in Australia whose continued presence in Australia is not subject to any limitation as to time imposed by or in accordance with law.
(2) A reference in this Part to a person who is under arrest or a person who is arrested includes a reference to a person who is in the company of a police officer for the purpose of participating in an investigative procedure, if:(a) the police officer believes that there is sufficient evidence to establish that the person has committed an offence that is or is to be the subject of the investigation, or(b) the police officer would arrest the person if the person attempted to leave, or(c) the police officer has given the person reasonable grounds for believing that the person would not be allowed to leave if the person wished to do so.(3) A person is not taken to be under arrest because of subsection (2) merely because the police officer is exercising a power under a law to detain and search the person or to require the person to provide information or to answer questions.(4) For the purposes of this Part, a person ceases to be under arrest for an offence if the person is remanded in respect of the offence.
111 Persons to whom Part applies
(cf Crimes Act 1900, s 356)
(1) This Part applies to a person, including a person under the age of 18 years, who is under arrest by a police officer for an offence. It is immaterial whether the offence concerned was committed before or after the commencement of this Part or within or outside the State.(2) This Part does not apply to a person who is detained under Part 16.
112 Modification of application of Part to certain persons
(cf Crimes Act 1900, s 356A)
(1) The regulations may make provision for or with respect to the modification of the application of this Part to:(a) persons under the age of 18 years, or(b) Aboriginal persons or Torres Strait Islanders, or(c) persons of non-English speaking background, or(d) persons who have a disability (whether physical, intellectual or otherwise).(2) Without limiting subsection (1), the regulations may provide for an investigation period for a person or class of persons referred to in that subsection that is shorter than the period provided for by section 115.
113 Effect of Part on other powers and duties
(cf Crimes Act 1900, s 356B)
(1) Existing powers relating to arrest and other matters
This Part does not:(a) confer any power to arrest a person, or to detain a person who has not been lawfully arrested, or(b) prevent a police officer from asking or causing a person to do a particular thing that the police officer is authorised by law to ask or cause the person to do (for example, the power to require a person to submit to a breath analysis under Division 3 of Part 2 of the Road Transport (Safety and Traffic Management) Act 1999), or(c) independently confer power to carry out an investigative procedure.(2) Certain evidentiary matters and rights not affected
Nothing in this Part affects:(a) the operation of:(i) the following provisions of the Evidence Act 1995:section 84 (Exclusion of admissions influenced by violence and certain other conduct)
section 85 (Criminal proceedings: reliability of admissions by defendants)
section 90 (Discretion to exclude admissions)
section 138 (Exclusion of improperly or illegally obtained evidence)
section 139 (Cautioning of persons), or
(ii) any other provision of that Act, or(b) any law that permits or requires a person to be present at the questioning of another person who is under arrest (for example, the presence of a parent at the questioning by a police officer of the parent’s child), or(c) the right of a person to refuse to participate in any questioning of the person or any other investigative procedure unless the person is required by law to do so, or(d) the right of a person to leave police custody if the person is not under arrest, or(e) the rights of a person under the Bail Act 1978.
Division 2 Investigation and questioning powers
114 Detention after arrest for purposes of investigation
(cf Crimes Act 1900, s 356C)
(1) A police officer may in accordance with this section detain a person, who is under arrest, for the investigation period provided for by section 115.(2) A police officer may so detain a person for the purpose of investigating whether the person committed the offence for which the person is arrested.(3) If, while a person is so detained, the police officer forms a reasonable suspicion as to the person’s involvement in the commission of any other offence, the police officer may also investigate the person’s involvement in that other offence during the investigation period for the arrest. It is immaterial whether that other offence was committed before or after the commencement of this Part or within or outside the State.(4) The person must be:(a) released (whether unconditionally or on bail) within the investigation period, or(b) brought before an authorised officer or court within that period, or, if it is not practicable to do so within that period, as soon as practicable after the end of that period.(5) A requirement in another Part of this Act, the Bail Act 1978 or any other relevant law that a person who is under arrest be taken before a Magistrate or other authorised officer or court, without delay, or within a specified period, is affected by this Part only to the extent that the extension of the period within which the person is to be brought before such a Magistrate or officer or court is authorised by this Part.(6) If a person is arrested more than once within any period of 48 hours, the investigation period for each arrest, other than the first, is reduced by so much of any earlier investigation period or periods as occurred within that 48 hour period.(7) The investigation period for an arrest (the earlier arrest) is not to reduce the investigation period for a later arrest if the later arrest relates to an offence that the person is suspected of having committed after the person was released, or taken before a Magistrate or other authorised officer or court, in respect of the earlier arrest.
(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.
116 Determining reasonable time
(cf Crimes Act 1900, s 356E)
(1) In determining what is a reasonable time for the purposes of section 115 (1), all the relevant circumstances of the particular case must be taken into account.(2) Without limiting the relevant circumstances that must be taken into account, the following circumstances (if relevant) are to be taken into account:(a) the person’s age, physical capacity and condition and mental capacity and condition,(b) whether the presence of the person is necessary for the investigation,(c) the number, seriousness and complexity of the offences under investigation,(d) whether the person has indicated a willingness to make a statement or to answer any questions,(e) the time taken for police officers connected with the investigation (other than police officers whose particular knowledge of the investigation, or whose particular skills, are necessary to the investigation) to attend at the place where the person is being detained,(f) whether a police officer reasonably requires time to prepare for any questioning of the person,(g) the time required for facilities for conducting investigative procedures in which the person is to participate (other than facilities for complying with section 281 of the Criminal Procedure Act 1986) to become available,(h) the number and availability of other persons who need to be questioned or from whom statements need to be obtained,(i) the need to visit the place where any offence concerned is believed to have been committed or any other place reasonably connected with the investigation of any such offence,(j) the time during which the person is in the company of a police officer before and after the person is arrested,(k) the time taken to complete any searches or other investigative procedures that are reasonably necessary to the investigation (including any search of the person or any other investigative procedure in which the person is to participate),(l) the time required to carry out any other activity that is reasonably necessary for the proper conduct of the investigation.(3) In any criminal proceedings in which the reasonableness of any period of time that a person was detained under this Part is at issue, the burden lies on the prosecution to prove on the balance of probabilities that the period of time was reasonable.
117 Certain times to be disregarded in calculating investigation period
(cf Crimes Act 1900, s 356F)
(1) The following times (to the extent that those times are times during which any investigative procedure in which a person who is detained under this Part is to participate is reasonably suspended or deferred) are not to be taken into account in determining how much of an investigation period has elapsed:(a) any time that is reasonably required to convey the person from the place where the person is arrested to the nearest premises where facilities are available for conducting investigative procedures in which the person is to participate,(b) any time that is reasonably spent waiting for the arrival at the place where the person is being detained of police officers, or any other persons prescribed by the regulations, whose particular knowledge of the investigation, or whose particular skills, are necessary to the investigation,(c) any time that is reasonably spent waiting for facilities for complying with section 281 of the Criminal Procedure Act 1986 to become available,(d) any time that is required to allow the person (or someone else on the person’s behalf) to communicate with a friend, relative, guardian, independent person, Australian legal practitioner or consular official,(e) any time that is required to allow such a friend, relative, guardian, independent person, Australian legal practitioner or consular official to arrive at the place where the person is being detained,(f) any time that is required to allow the person to consult at the place where the person is being detained with such a friend, relative, guardian, independent person, Australian legal practitioner or consular official,(g) any time that is required to arrange for and to allow the person to receive medical attention,(h) any time that is required to arrange for the services of an interpreter for the person and to allow the interpreter to arrive at the place where the person is being detained or become available by telephone for the person,(i) any time that is reasonably required to allow for an identification parade to be arranged and conducted,(j) any time that is required to allow the person to rest or receive refreshments or to give the person access to toilet and other facilities as referred to in section 130,(k) any time that is required to allow the person to recover from the effects of intoxication due to alcohol or another drug or a combination of drugs,(l) any time that is reasonably required to prepare, make and dispose of any application for a detention warrant or any application for a search warrant or crime scene warrant that relates to the investigation,(m) any time that is reasonably required to carry out charging procedures in respect of the person,(n) any time that is reasonably required to carry out a forensic procedure on the person under the Crimes (Forensic Procedures) Act 2000, or to prepare, make and dispose of an application for an order for the carrying out of such a procedure.(2) In any criminal proceedings in which the question of whether any particular time was a time that was not to be taken into account because of this section is at issue, the burden lies on the prosecution to prove on the balance of probabilities that the particular time was a time that was not to be taken into account.
118 Detention warrant to extend investigation period
(cf Crimes Act 1900, s 356G)
(1) A police officer may, before the end of the investigation period, apply to an authorised officer for a warrant to extend the maximum investigation period beyond 4 hours.(2) The person to whom an application for a detention warrant relates, or the person’s legal representative, may make representations to the authorised officer about the application.(3) The authorised officer may issue a warrant that extends the maximum investigation period by up to 8 hours.(4) The maximum investigation period cannot be extended more than once.(5) An authorised officer must not issue a warrant to extend the maximum investigation period unless satisfied that:(a) the investigation is being conducted diligently and without delay, and(b) a further period of detention of the person to whom the application relates is reasonably necessary to complete the investigation, and(c) there is no reasonable alternative means of completing the investigation otherwise than by the continued detention of the person, and(d) circumstances exist in the matter that make it impracticable for the investigation to be completed within the 4-hour period.(6) As soon as reasonably practicable after a detention warrant is issued, the custody manager for the person to whom the warrant relates:(a) must give the person a copy of the warrant, and(b) must orally inform the person of the nature of the warrant and its effect.
(1) An application for a detention warrant may be made by the applicant in person or by telephone.Note. For provisions relating generally to applications for detention warrants and other matters, see section 59.(2) In any criminal proceedings, the burden lies on the prosecution to prove on the balance of probabilities that the warrant was issued.(3) In the case of an application made for a detention warrant by telephone, the applicant for the warrant must, within one day after the day on which the warrant is issued, give or transmit to the authorised officer concerned an affidavit setting out the information on which the application was based that was given to the authorised officer when the application was made.
120 Information in application for detention warrant
(cf Crimes Act 1900, s 356I)
(1) An authorised officer must not issue a detention warrant unless the application for the warrant includes the following information:(a) the nature of any offence under investigation,(b) the general nature of the evidence on which the person to whom the application relates was arrested,(c) what investigation has taken place and what further investigation is proposed,(d) the reasons for believing that the continued detention of the person is reasonably necessary to complete the investigation,(e) the extent to which the person is co-operating in the investigation,(f) if a previous application for the same, or substantially the same, warrant was refused, details of the previous application and of the refusal and any additional information required,(g) any other information required by the regulations.(2) The applicant must provide (either orally or in writing) such further information as the authorised officer requires concerning the grounds on which the detention warrant is being sought.(3) Nothing in this section requires an applicant for a detention warrant to disclose the identity of a person from whom information was obtained if the applicant is satisfied that to do so might jeopardise the safety of any person.
121 Detention after arrest for purposes of investigation may count towards sentence
(cf Crimes Act 1900, s 356W)
In passing sentence on a person convicted of an offence, a court may take into account any period during which the person was detained under this Part in respect of the offence and may reduce the sentence it would otherwise have passed.
Division 3 Safeguards relating to persons in custody for questioning
122 Custody manager to caution, and give summary of Part to, detained person
(cf Crimes Act 1900, s 356M)
(1) As soon as practicable after a person who is detained under this Part (a detained person) comes into custody at a police station or other place of detention, the custody manager for the person must orally and in writing:(a) caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence, and(b) give the person a summary of the provisions of this Part that is to include reference to the fact that the maximum investigation period may be extended beyond 4 hours by application made to an authorised officer and that the person, or the person’s legal representative, may make representations to the authorised officer about the application.(2) The giving of a caution does not affect a requirement of any law that a person answer questions put by, or do things required by, a police officer.(3) After being given the information referred to in subsection (1) orally and in writing, the person is to be requested to sign an acknowledgment that the information has been so given.
123 Right to communicate with friend, relative, guardian or independent person and Australian legal practitioner
(cf Crimes Act 1900, s 356N)
(1) Before any investigative procedure in which a detained person is to participate starts, the custody manager for the person must inform the person orally and in writing that he or she may:(a) communicate, or attempt to communicate, with a friend, relative, guardian or independent person:(i) to inform that person of the detained person’s whereabouts, and(ii) if the detained person wishes to do so, to ask the person communicated with to attend at the place where the person is being detained to enable the detained person to consult with the person communicated with, and(b) communicate, or attempt to communicate, with an Australian legal practitioner of the person’s choice and ask that Australian legal practitioner to do either or both of the following:(i) attend at the place where the person is being detained to enable the person to consult with the Australian legal practitioner,(ii) be present during any such investigative procedure.(2) If the person wishes to make any communication referred to in subsection (1), the custody manager must, as soon as practicable:(a) give the person reasonable facilities to enable the person to do so, and(b) allow the person to do so in circumstances in which, so far as is practicable, the communication will not be overheard.(3) The custody manager must defer for a reasonable period any investigative procedure in which the person is to participate:(a) to allow the person to make, or attempt to make, a communication referred to in subsection (1), and(b) if the person has asked any person so communicated with to attend at the place where the person is being detained:(i) to allow the person communicated with to arrive at that place, and(ii) to allow the person to consult with the person communicated with at that place.(4) If the person has asked a friend, relative, guardian or independent person communicated with to attend at the place where the person is being detained, the custody manager must allow the person to consult with the friend, relative, guardian or independent person in private and must provide reasonable facilities for that consultation.(5) If the person has asked an Australian legal practitioner communicated with to attend at the place where the person is being detained, the custody manager must:(a) allow the person to consult with the Australian legal practitioner in private and must provide reasonable facilities for that consultation, and(b) if the person has so requested, allow the Australian legal practitioner to be present during any such investigative procedure and to give advice to the person.(6) Anything said by the Australian legal practitioner during any such investigative procedure is to be recorded and form part of the formal record of the investigation.(7) An investigative procedure is not required to be deferred under subsection (3) (b) (i) for more than 2 hours to allow a friend, relative, guardian, independent person or Australian legal practitioner that the person has communicated with to arrive at the place where the person is being detained.(8) An investigative procedure is not required to be deferred to allow the person to consult with a friend, relative, guardian, independent person or Australian legal practitioner who does not arrive at the place where the person is being detained within 2 hours after the person communicated with the friend, relative, guardian, independent person or Australian legal practitioner. This does not affect the requirement to allow an Australian legal practitioner to be present during an investigative procedure and to give advice to the person.(9) The duties of a custody manager under this section owed to a detained person who is not an Australian citizen or a permanent Australian resident are in addition to the duties of the custody manager owed to the person under section 124.(10) After being informed orally and in writing of his or her rights under this section, the person is to be requested to sign an acknowledgment that he or she has been so informed.
124 Right of foreign national to communicate with consular official
(cf Crimes Act 1900, s 356O)
(1) This section applies to a detained person who is not an Australian citizen or a permanent Australian resident.(2) Before any investigative procedure in which a person to whom this section applies is to participate starts, the custody manager for the person must inform the person orally and in writing that he or she may:(a) communicate, or attempt to communicate, with a consular official of the country of which the person is a citizen, and(b) ask the consular official to attend at the place where the person is being detained to enable the person to consult with the consular official.(3) If the person wishes to communicate with such a consular official, the custody manager must, as soon as practicable:(a) give the person reasonable facilities to enable the person to do so, and(b) allow the person to do so in circumstances in which, so far as is practicable, the communication will not be overheard.(4) The custody manager must defer for a reasonable period any investigative procedure in which the person is to participate:(a) to allow the person to make, or attempt to make, the communication referred to in subsection (2), and(b) if the person has asked any consular official so communicated with to attend at the place where the person is being detained:(i) to allow the consular official to arrive at that place, and(ii) to allow the person to consult with the consular official.(5) If the person has asked a consular official communicated with to attend at the place where the person is being detained, the custody manager must allow the person to consult with the consular official in private and must provide reasonable facilities for that consultation.(6) An investigative procedure is not required to be deferred under subsection (4) (b) (i) for more than 2 hours to allow a consular official that the person has communicated with to arrive at the place where the person is being detained.(7) An investigative procedure is not required to be deferred to allow the person to consult with a consular official who does not arrive at the place where the person is being detained within 2 hours after the person communicated with the consular official.(8) After being informed orally and in writing of his or her rights under this section, the person is to be requested to sign an acknowledgment that he or she has been so informed.(9) This section does not apply if the custody manager did not know, and could not reasonably be expected to have known, that the person is not an Australian citizen or a permanent Australian resident.
125 Circumstances in which certain requirements need not be complied with
(cf Crimes Act 1900, s 356P)
(1) A requirement imposed on a custody manager under section 123 relating to a friend, relative, guardian or independent person need not be complied with if the custody manager believes on reasonable grounds that doing so is likely to result in:(a) an accomplice of the detained person avoiding arrest, or(b) the concealment, fabrication, destruction or loss of evidence or the intimidation of a witness, or(c) hindering the recovery of any person or property concerned in the offence under investigation, or(d) bodily injury being caused to any other person.(2) Further, in the case of a requirement that relates to the deferral of an investigative procedure, a requirement imposed on a custody manager under section 123 relating to a friend, relative, guardian or independent person need not be complied with if the custody manager believes on reasonable grounds that the investigation is so urgent, having regard to the safety of other persons, that the investigative procedure should not be deferred.
126 Provision of information to friend, relative or guardian
(cf Crimes Act 1900, s 356Q)
(1) The custody manager for a detained person must inform the person orally of any request for information as to the whereabouts of the person made by a person who claims to be a friend, relative or guardian of the detained person.(2) The custody manager must provide, or arrange for the provision of, that information to the person who made the request unless:(a) the detained person does not agree to that information being provided, or(b) the custody manager believes on reasonable grounds that the person requesting the information is not a friend, relative or guardian of the detained person, or(c) the custody manager believes on reasonable grounds that doing so is likely to result in:(i) an accomplice of the detained person avoiding arrest, or(ii) the concealment, fabrication, destruction or loss of evidence or the intimidation of a witness, or(iii) hindering the recovery of any person or property concerned in the offence under investigation, or(iv) bodily injury being caused to any other person.
127 Provision of information to certain other persons
(cf Crimes Act 1900, s 356R)
(1) The custody manager for a detained person must inform the person orally of any request for information as to the whereabouts of the person made by a person who claims to be:(a) an Australian legal practitioner representing the detained person, or(b) in the case of a detained person who is not an Australian citizen or a permanent Australian resident, a consular official of the country of which the detained person is a citizen, or(c) a person (other than a friend, relative or guardian of the detained person) who is in his or her professional capacity concerned with the welfare of the detained person.(2) The custody manager must provide, or arrange for the provision of, that information to the person who made the request unless:(a) the detained person does not agree to that information being provided, or(b) the custody manager believes on reasonable grounds that the person requesting the information is not the person who he or she claims to be.
(cf Crimes Act 1900, s 356S)
(1) The custody manager for a detained person must arrange for an interpreter to be present for the person in connection with any investigative procedure in which the person is to participate if the custody manager has reasonable grounds for believing that the person is unable:(a) because of inadequate knowledge of the English language, to communicate with reasonable fluency in English, or(b) because of any disability, to communicate with reasonable fluency.(2) The custody manager must ensure that any such investigative procedure is deferred until the interpreter arrives.(3) However, the custody manager need not:(a) arrange for an interpreter to be present if the custody manager believes on reasonable grounds that the difficulty of obtaining an interpreter makes compliance with the requirement not reasonably practicable, or(b) defer any such investigative procedure if the custody manager believes on reasonable grounds that the urgency of the investigation, having regard to the safety of other persons, makes such deferral unreasonable.(4) If an interpreter is not available to be present for the person in connection with any investigative procedure in which the person is to participate, the custody manager must instead arrange for a telephone interpreter for the person.(5) The custody manager must ensure that any such investigative procedure is deferred until a telephone interpreter is available.(6) However, the custody manager need not:(a) arrange for a telephone interpreter if the custody manager believes on reasonable grounds that the difficulty of obtaining such an interpreter makes compliance with the requirement not reasonably practicable, or(b) defer any such investigative procedure if the custody manager believes on reasonable grounds that the urgency of the investigation, having regard to the safety of other persons, makes such deferral unreasonable.
129 Right to medical attention
(cf Crimes Act 1900, s 356T)
The custody manager for a detained person must arrange immediately for the person to receive medical attention if it appears to the custody manager that the person requires medical attention or the person requests it on grounds that appear reasonable to the custody manager.
130 Right to reasonable refreshments and facilities
(cf Crimes Act 1900, s 356U)
(1) The custody manager for a detained person must ensure that the person is provided with reasonable refreshments and reasonable access to toilet facilities.(2) The custody manager for a detained person must ensure that the person is provided with facilities to wash, shower or bathe and (if appropriate) to shave if:(a) it is reasonably practicable to provide access to such facilities, and(b) the custody manager is satisfied that the investigation will not be hindered by providing the person with such facilities.
131 Custody records to be maintained
(cf Crimes Act 1900, s 356V)
(1) The custody manager for a detained person must open a custody record in the form prescribed by the regulations for the person.(2) The custody manager must record the following particulars in the custody record for the person:(a) the date and time:(i) the person arrived at the police station or other place where the custody manager is located, and(ii) the person came into the custody manager’s custody,(b) the name and rank of the arresting officer and any accompanying officers,(c) the grounds for the person’s detention,(d) details of any property taken from the person,(e) if the person participates in any investigative procedure, the time the investigative procedure started and ended,(f) details of any period of time that is not to be taken into account under section 117,(g) if the person is denied any rights under this Part, the reason for the denial of those rights and the time when the person was denied those rights,(h) the date and time of, and reason for, the transfer of the person to the custody of another police officer,(i) details of any application for a detention warrant and the result of any such application,(j) if a detention warrant is issued in respect of the person, the date and time a copy of the warrant was given to the person and the person was informed of the nature of the warrant and its effect,(k) the date and time the person is released from detention,(l) any other particulars prescribed by the regulations.(3) The custody manager is responsible for the accuracy and completeness of the custody record for the person and must ensure that the custody record (or a copy of it) accompanies the person if the person is transferred to another location for detention.(4) The recording of any matters referred to in this section must be made contemporaneously with the matter recorded in so far as it is practicable to do so.(5) As soon as practicable after the person is released or taken before a Magistrate or authorised officer or court, the custody manager must ensure that a copy of the person’s custody record is given to the person.
(cf Crimes Act 1900, s 356X)
The regulations may make provision for or with respect to the following:(a) guidelines to be observed by police officers regarding the exercise of functions conferred or imposed on police officers (including custody managers) by this Part,(b) police officers who may act as custody managers,(c) the keeping of records relating to persons who are detained under this Part, including the formal record of the conduct of investigative procedures in which such persons participate.