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Law Notes Litigation - Criminal Procedure Rules Notes

Investigations And Questioning Notes

Updated Investigations And Questioning Notes

Litigation - Criminal Procedure Rules Notes

Litigation - Criminal Procedure Rules

Approximately 238 pages

These notes aim to set out the relevant legal principles, and material facts from cases in order to demonstrate how those legal principles have been applied. Because of how heavily statute-focused this topic is, in some places I've extracted the relevant statute in the text or in a 'comment'.

At the beginning of each document on each topic, there is a table of contents (hyperlinked so you can navigate easily through the document), and also 'checklists', which you can use during revisions or ex...

Available here

The following is a more accessible plain text extract of the PDF sample above, taken from our Litigation - Criminal Procedure Rules Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

4 Investigations and Questioning

Table of Contents

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

A Was the arrest unlawful? (See class 3)

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

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.

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

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...

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