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#8523 - Investigations And Questioning - Litigation - Criminal Procedure Rules

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4 Investigations and Questioning 1

A Was the arrest unlawful? (See class 3) 2

B Lawful arrest, but undue delay taking arrested person to magistrate: s 99(4) LEPRA unreasonable delay? (Michaels ) 2

C Lawful arrest, but suspect detained longer than investigation period (ss 115-117) with no extension (s 118) 4

D Extension of investigation period but detention warrant invalid? (s 118(5)) 10

E Lawful arrest, lawful detention for questioning/under detention warrant: but then unreasonable delay in releasing them after that? 13

F Lawful arrest but breach of Pt 9 rights of detained perios (s 122-131) with no exception under s 125? 14

i. Custody manager to caution detained person and give summary of Part 9 as soon as reasonably practicable, and request person to sign: s 122(1) 14

ii. Right to communicate with friend, relative, guardian, AND legal representative: s 123 14

iii. Right of non-citizen or permanent resident to communicate with consular official: s 124 16

iv. Provision of information to friends, relative guardian: s 126 18

v. Provision of information to certain other persons who request s 127 18

vi. Provision of interpreter if detainee doesn’t have reasonable fluency s 128 19

vii. Right to medical attention if needs it or requests on reasonable grounds s 129 20

viii. Right to reasonable refreshments, toilet facilities, washing/showering facilities s 130 20

ix. Right to be given a custody record under s 131(5) LEPRA that complies with LEPRRegulations cl 19-22 20

x. Vulnerable person as defined by cl 24 LEPRR? More rights under LEPR Regulations 2005 Div 3. (Campbell) 22

G When detaining without arresting intoxicated persons - 24

Appendix: CB Rondo - problem with detention warrant 25

H Then consider whether any admissions made when questioned are admissible – class 10/11 25

Appendix: CB Edgar Michaels v Queen 26

4

Investigations and Questioning

Law: Part 9 LEPRA ss 109-132 (Howie and Johnson pp 1732-1745) Div 3 Regulations – H&J 1812-1817 Detaining a person after arrest – SM 44-50 Requirements of part 9 – LEPRA: SM 50-51 Breach of Part 9: SM – 52-59

cases: Edgar, Rondo, NEAL, Campbell

Certain procedures are essential after a person is arrested: s 99(4) LEPRA

  • A person is to be taken as soon as is reasonably practicable before an authorized person (usually a magistrate) to be dealt with according to law: s 99(4) LEPRA

  • This means: charges will be laid by the police, D entitled to legal representation if they cannot afford their own lawyer, the bail will be granted/denied.

Note: Edgar Michaels means that the kind of rule that undue delay only becomes enlivened when can’t take benefit of investigation sections or if max investigation period ran out or when arrest was unlawful.

What is an unreasonable delay between arrest and bringing D before magistrate?

  • Undue delay = ‘as soon as is practicable= ‘ without delay’ = ‘as soon as is reasonably practicable’

  • Unlawful detention can become lawful again:

    • In Michaels the accused was arrested but then detained for questioning, but after a while the police had an intention to take him to a justice without undue delay and by that time the detention was lawful again: Michaels

    • Significance of this: any consequences arising from the unlawful detention, such as the admissibility of a confessional statement or a liability in damages for false imprisonment – are not affected by the fact that the detention then became lawful.

    • In terms of escaping legal custody: conduct of accused is judged at the time and asking whether detention was lawful, and if at the time, there is an intention on part of police to take the accused before justice without delay then there is an escape from lawful custody. (it was not clear to th accused that he was free to leave. He was told that he was about to get charged with offences, and there were two police officers in the room with him – his actions in smashing a window with a chair intdicate that he understood he was in lawful custody)

  • Example: no unreasonable delay in Michaels v R: where he had been arrested and arrived at station at 10:45am, placed in guard while Detective briefed superintendent, then interviewed from 11:45am-12:20pm while after obtaining admissions told appellant that he would get papers ready and then charge him, two police officers remained with Michaels while Det set about preparing online charge sheet, brief superior, asked about outcome fo inquiries instigated earlier – intention was to get him to appear before a magistrate at 2pm since the court was closed from 1-2pm. At 1:20pm appellant escaped. Held that he was only interviewed for more than 30 mins before being told charged, true that there as a period of 1 hour before questioning began but that was explained and jury was entitled to accept that (briefing and arranging for other officers to carry out duties in relation to the suspected offences). He intended to take him before a justice at 2pm when one would be available.

Effect of Part 9 LEPRA: New period during which police may legitimately hold arrested persons for investigation prior to bringing them before a court. At the conclusion of this period, the CL obligation to bring a person before a court as soon as practicable resumes (s 114(4) LEPRA)

Big Issue: was the detention of X for Y amount of hours lawful?

  • Rule: A police officer may detain a person who is under arrest or taken to be under arrest under s 110(2)(a)-(c) LEPRA, for the investigation period provided by s 115 (s 114(1) LEPRA).

  • Rule 2#: However, police officers are required under s 114(4) LEPRA to and either (a) release the person with or without bail within investigation period (s 114(4)(a)) OR bring person before court/officer within that period, or if not practicable to do within that period, as soon as practicable after the end of that period: s 114(4)(b) LEPRA.

Issues:

  1. Did PO have power to detain X for investigation period provided by s 115? Does LEPRA Part 9 (in particular ss 115-117) apply to X? Ie has X been arrested or detained under s 110 (in company where (a) police either have sufficient evidence that X did offence (b) would arrest X if tried to leave or (c) X has reasonable grounds to think they can’t leave)?. If so then PO had power to detain under s 114(1)

  2. Was X detained for an investigation period? (Possibly if cops already had all information then no reason to detain): s 114(2)

  3. What offences can the police investigate during the detention period? Ie can either investigate offence for which they are arrested, or If forms reasonable suspicion as to another offence can investigate involvement in that other offence as well

  4. How long was X arrested / detained for questioning? (Look at the facts).

  5. How long should the investigation period have been? Ie what was reasonable having regard to all the circumstances under s 115(1) LEPRA.

  6. Requirements

1 Does part 9 apply to X – was he under arrest under s 110(2) def.?

Under LEPRA s 110(2), Part 9 applies to people who have been arrested and also people in the company of police officer for purpose of participating in an investigate procedure even if they haven’t yet been arrested if:

  1. Police believes sufficient evidence to establish that person has committed an offence (s 110(2)(a))

  2. Would arrest person if they attempted to leave ( s 110(2)(b) OR

  3. Have given reasonable grounds to believe they would not be allowed to leave if they wished to do so: s 110(2)(c)

(Note that a person isn’t under arrest merely because PO is exercising a power under law to detain and search the person or to require the person to provide information or to answer questions: s 110(3) LEPRA)

2 det for investig?

Was X detained for an investigation period (ss 114, 115 LEPRA)?

(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: s 114(2).

  • Note: Legg says that its possible that the police shouldn’t have detained someone when they had all the evidence, and they just detained him for 4 hours for any arbitrary reason.

3

Were the police officers empowered to investigate the offences that they investigated? (the police were able to detain X to investigate whether he had committed the offence for which he was arrested. and also any other offences if reasonable suspicion is formed as to X’s involvement in another ofence while investigating the first offence).

  • 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: s 114(2) LEPRA

  • Issue: were the police able to detain X to ask him about the second offence? Can investigate other offences if reasonable suspicion formed while investigating offence arrested for: 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: s 114(3) LEPRA

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Litigation - Criminal Procedure Rules