Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Current version for 1 December 2014 to date (accessed 23 December 2014 at 03:19)
Part 9Division 2

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 2013 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.

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.

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.

119   Detention warrants

(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.
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