POLICE POWERS OF CRIMINAL INVESTIGATION: PRINCIPLE OR ... · POLICE POWERS OF CRIMINAL INVESTIGATION: PRINCIPLE OR PRAGMATISM By TERRY CARNEY· and JUDD EpSTEIN·· This article will

POLICE POWERS OF CRIMINAL INVESTIGATION:PRINCIPLE OR PRAGMATISMBy TERRY CARNEY· and JUDD EpSTEIN··

This article will examine the divergence between law and practicein criminal investigation by police and consider the degree to whichit may contribute to an imbalance between the interests of theindividual and the public interest in the efficient detection andinvestigation of crime. It will be argued that the imprecision of theexisting law and the failure by the legislature to accord new, tightlydefined, specific-purpose powers to the police have made a majorcontribution to the pressure on police to misuse existing (and oftenmore intrusive) powers or to exercise de facto powers not authorisedby law. It is contended that this pressure often arises from a desireby police to find a more practical means of attaining agreed community objectives than that provided by the artificial standards ofthe existing law. A strong case can therefore be advanced in favourof refurbishing police powers to accord (more closely) with presentconditions, while at the same time strengthening the safeguards castaround those powers. This article will argue that case.

A. INTRODUCTION

The law relating to the powers and responsibilities of the police (andthe public) in the investigation of an alleged criminal offence is offundamental importance to the preservation of a proper balance betweenindividual rights and freedoms and the public interest.1 Despite theimportance of the issues, a wide divergence between the law and itsadministration by the police has long been the hallmark of this branchof the law.2 The present law might also be characterised as providingbut a partial coverage of the area and as setting rather general andimprecise standards, thereby leaving considerable scope for discretionaryor extra-legal powers to be exercised or assumed by the police.

1. The present position

At the moment, the investigation of criminal offences is carried outby police in the absence of any overall legislative framework. Whilelegislatures may pass certain enactments dealing with isolated phases ofthe process such as arrest or bail,S there has been no co-ordinated

* LL.B., Dip.Crim. (Melb.), Ph.D. (Monash); Senior Lecturer, Faculty of Law,Monash University.

** A.B. (Syr.), LL.B. (Stan.); Senior Lecturer, Faculty of Law, MonashUniversity.

1 Ashworth, "Some Blueprints for Criminal Investigation" [1976] Criminal LawReview 594, 594-595.

2 Ibid.; Australia Law Reform Commission: Report No.2. An Interim Report:Criminal Investigation (1975) (hereafter cited as ALRC 2) para. 7.

3 E.g. Crimes (Powers of Arrest) Act 1972 (Vic.), Bail Act 1977 (Vic.), BailAct 1978 (N.S.W.).

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284 Federal Law Review [VOLUME 11

approach to criminal procedure. The principal source of standards hasbeen the Standing Orders of the Commissioners of Police, whichprescribe, inter alia, police conduct in relation to citizens and proceduresto be followed during investigation. These rules, not issued pursuant todelegation by the legislature, create several difficulties.

The police have insisted that the rules not be circulated publicly, butbe kept secret from all but the police, allegedly because they are intendedonly for police, not citizens, and the populace might "misunderstand"their provisions. As a result no one can comment upon their drafting,comprehensiveness, cohesiveness, or, indeed, their general appropriateness to criminal investigation. They are bulky and not easily understood.4

Perhaps most importantly, they are not generally accorded the force oflaw. Violation of their provisions normally merely results in a policedisciplinary matter, and only very rarely in any advantage for theaccused in a criminal trial.G

2. The deficiencies of the present position

The common law and statutory enactments to date provide the policewith few or no investigative powers, with the consequence that theyseize extra-legal powers or rely upon bluff, "voluntary co-operation"and the like. From the citizen's viewpoint, the legal rules are difficult tofollow and offer few "rights"; the courts appear readily to acceptadmissions and other damaging evidence obtained in breach of theserules. Many of the currently available powers of the police in criminalinvestigation operate only when a sufficient degree of suspicion has arisenin the mind of the policeman to justify interfering with a citizen. Sucha degree is described in legislative language by "suspicion", "has reasonable grounds to believe" or "that it is more probable than not" (that,say, the person committed the offence). Such legislative qualificationsare clearly meant to balance police needs with individual liberties, but

4 Criminal Law and Penal Methods Reform Committee of South Australia:Second Report: Criminal Investigation (1974) 3; Lyons and Tanner, "LegalDocuments: Can anyone understand them?" (1977) 2 Legal Service Bulletin 283,283 where, using The Flesch Reading Test, the Police Standing Orders (Vic.)were characterised as "extremely difficult to understand, often demanding thereading skills expected of a university graduate".

Ii The most recent authoritative statement of the principles governing theexercise of the discretion to exclude evidence is in the High Court judgments inDriscoll v. R. (1977) 51 A.L.I.R. 731 and Bunning v. Cross (1978) 19 A.L.R.641. In exercising the discretion to exclude evidence obtained by unfair or impropermeans, the Australian courts have rejected a test relying exclusively on "reliability"and instead balance the public interest in obtaining convictions based on truthfuland -reliable evidence against the conflicting public interest in maintaining therights of the individual not to be subjected to unlawful or unfair treatment: R. v.Ireland -(1970) 126 C.L.R. 321, 335; R. v. Eyres (1977) 16 S.A.S.R. 226, 230-232;Bunning v. Cross (1978) 19 A.L.R. 641, 651 per Barwick C.l., 659-661 perStephen and Aickin JJ. However, as the Commission pointed out, "(t)he discretionis in practice a narrow one. It is often mentioned but rarely acted on. It is farmore common for police misconduct to be criticised by the court than for evidenceobtained as a result to be excluded" (ALRC 2, para. 288).

1980] Police Powers of Criminal Investigation 285

they rarely lead to satisfactory results. A court which has to reconstructthe state of mind of a member of the police at the time that he took the.action can do no more than guess. These indefinite standards contributeto a deterioration of police-citizen relationships and have little to dowith either party's legitimate expectations.6

The divergence between law and practice is, at least in part, attributable to the very different perceptions held by the police, the lawmakers,and the citizen of the aims to be achieved and the stages -in aninvestigation.

3. Police and citizen objectives in criminal investigation

From the police viewpoint, the objects of criminal investigation arerelatively straightforward. Police are responsible for the identificationand apprehension of alleged offenders and need ample powers toaccomplish that task. Basically, such powers must enable them toidentify a person by name and address, and later to obtain evidencewhich will both link the suspect to the offence and help to assembleproof for the court, enabling the prosecution to obtain a conviction.

Two factors that play a relatively minor role from the police point ofview are the severity of the offence, and the degree of certainty that apoliceman may have in his own mind at the initial stages of the process.Naturally, the police will devote less energy to the identification andapprehension of a minor offender, and would expect to process suchminor offenders in less time. -

The police would, in general, expect to have similar powers to callon in each instance, and leave to good Judgment and proper allocatIonof time the determination of which powers should actually be used. Theywould regard each individual investigator as responsible for the decisionto involve a citizen in an investigation, based in part upon the likelihoodthat the citizen could aid in the inquiry, and for the decision to determinethe stage at which contact should be made.

Not surprisingly, the citizen's perspective on the investigatory processraises rather different factors. The law must delineate clearly two diversegroups of potentially affected persons,: those who co-operate voluntarilyand those who do not. Most police investigation will depend upon thewillingness of the citizenry at large to volunteer their time and assist thepolice with their inquiries. This group ought to be identified and noimpediments placed in their way in co-operating with the police in theinterests of the community. Those who do not wish to offer theirvoluntary co-operation or who, after an initial period of willingness, nolonger wish to, should be able to ascertain their legal obligations withexactitude, and ought to know how to manifest their desire to endfurther participation.

6 Infra pp. 304-305.


There are several other basic principles which should guide legislativeformulation of police powers of criminal investigation. Speedy progresstowards concluding investigation, minimal extension of powers beyondthe group of genuine suspects, delimiting the kind and extent of intrusionsto ~hich any individual may be subjected, maximum reliance onco-operation rather than compulsion, and accuracy and integrity in theresult of investigations are all crucial objectives. Investigations shouldalso be subject to an overreaching concern for fairness and respect forhuman integrity and dignity. These principles can fairly readily betranslated into legislative form, and if carefully drawn the law aspromulgated will conform sufficiently closely to the practical administration of the law to retain public confidence and support for the systemof administration of criminal justice. This article is concerned withevaluating various ways of giving statutory effect to these principles.

4. Recent reform proposals and beyond

Because of the complexity of the area, commissions have been assignedthe task of recommending legislation to rationalise the law. Since themiddle of 1974 there have been no less than seven reports by lawreform bodies or inquiries in Australia and other common law jurisdictions':' This plethora of reports began to bear fruit with the introductionin the Australian Parliament of a comprehensive set of reform proposalsin tile form of the Criminal Investigation Bill 1977.8 Despite delayscaused by the dissolution of Parliament and the restructuring of the

7 The most pertinent reports are: Criminal Law and Penal Methods ReformCommittee of South Australia: Second Report: Criminal Investigation (1974),hereafter cited as the Mitchell Report; American Law Institute, Model Code ofPre-arraignment Procedure (Official Draft, April 1975), hereafter cited as A.L.I.Model Code,· ALRC 2 (supra n. 2); Report of the Committee appointed by TheSecretary of State for Scotland and the Lord Advocate, Criminal Procedure inScotland (Second Report) Cmnd. 6218 (1975), hereafter cited as the ThomsonReport; Addenda to the Report of the Board of Inquiry into Allegations AgainstMembers of the Victoria Police Force (1976), hereafter cited as the Beach Report;Report of the Committee of Inquiry into the Enforcement of the Criminal Lawin Queensland (1977), hereafter cited as the Lucas Report.

The British Government has announced the appointment of a Royal Commissionto review "the whole criminal process, from investigation to trial": [1977] CriminalLaw Review 441. Several other reports on more specialised areas have beenhanded down during the same period which have resulted in limited reforms inBritain (the Police Act 1976, which set up an independent tribunal to deal withcitizen complaints against the police) and Victoria (the Bail Act 1977).

8 The Criminal Investigation Bill 1977 arose from a reference from the thenAttorney-General to the Australian Law Reform Commission. The report of theCommission was published in 1975 and included a Draft Bill. The Governmentof the day substantially accepted the Commission's recommendations and usedthem as the basis for the Criminal Investigation Bill 1977, introduced into Parliament on 24 March 1977. It differed in a number of respects from the CommissionReport and Draft Bill, most importantly in endorsing the minority view ofCommissioner Brennan that there should be no pre-arrest period of investigationfor those individuals unwilling to co-operate voluntarily.

1980] Police Powers 0/ Criminal Investigation 287

Commonwealth police force,9 the Government remains committed tothe introduction of legislation, albeit in revised form to accommodatepublic criticism and views expressed on the original Bill. This articleanalyses some of the more important and creative provisions of theCriminal Investigation Bill and the solutions it would achieve in theoverall context of criminal procedure.

The most substantive criticism which can be directed at the 1977 Bill,and the Report on which it was based, is that too few strategies weredeployed in the attempt to close the gap between the law and the routinepractice of criminal investigation. Adjustment of the relationship betweenpolice powers and the correlative set of rights to be accorded to thecitizen was provided for in the Bill.tO But the principal thrust of thelegislation was to enact what is generally understood to be the commonlaw position,!1 together with new procedures for establishing the accuracyof what transpires during the course of a police investigation12 andrevamped discretionary sanctions for any departure from those rules.1s

It will be argued that what the Bill failed to do was to remove animportant source of pressure on the police to modify the rules andprocedures laid down. This pressure arises from the inadequate or undulycumbersome nature of the powers available to the police.

It is contended in this article that the pressure to disregard properprocedures or to misuse powers stems largely from the failure to providethe police with a period of time during which to undertake investigations.This is exacerbated by the absence of options for speedily institutinglegal action against suspects, without the need to resort to timeconsuming station-house procedures for the issue of a summons or theconsiderable infringement of liberty associated with an arrest. Theabsence of a power to require a person to remain in the company of thepolice (short of arrest) while investigations are carried out has led thepolice most commonly to resort to extra-legal practices. At worst it hasled to malpractice and pressure tactics and at best to an absence offrankness and openness on the part of the police.

9 The Criminal Investigation Bill 1977 had received its second reading at thetime that Parliament was dissolved in late 1977. At the time of writing it had notyet been re-introduced into Parliament but the Government proposes to re-introducea modified Bill once the new Federal police force is in a position to review theBill. The Government position is stated in S. Deb. 1979, Vol. 80, 1358. See alsoAustralia Law Reform Commission Annual Report 1979 para. 63.

10 H.R. Deb. 1977, Vol. 104, 565. Criminal Investigation Bill 1977, s.20 (accessto a lawyer), s.9 (arrest without warrant), s. 13 (the use of force in making anarrest), ss.39-40 (identification procedures), ss.31-34 (recording of interviews),SSe 25-28 (questioning of special groups such as aborigines), s. 50 (police bail),s.62 (abolition of general search warrants), s. 16 (requirement to give name and

- address).11 This is particularly the case with respect to, police powers following restraint,

where the common law position of the judges' rules have been given statutoryforce: H.R. Deb. 1977, Vol. 104, 564. Criminal Investigation Bill 1977, SSe 18-19.

12 Criminal Investigation Bi111977, ss.31-34.IS Id. s.73.


In the absence of any monitoring devices to control the abuse, somepolice have obtained evidence in illegal ways, secure in the knowledgethat only rarely would the evidence proffered in court be rejected by thejudiciary. Citizens who have voluntarily offered to aid police in theirinquiries have sometimes seen this offer abused by lengthy and inconvenient interrogation, the inaccurate recording of their statements andthe lack of any effective recourse for such abuse. This failure to providesafeguards for the citizen has led to a deterioration of police-citizenrelations, the common occurrence in the courts of allegations of "verbals"(statements allegedly concocted by the police), and pressure in severalStates to hold inquiries into police practices.

On the basis of these major premises, we contend that the principalstrategy of reform should involve an overhaul of police powers, aconcurrent strengthening of safeguards to protect the citizen involved ininterrogation or other vulnerable stages of an investigation, and theimposition on police of a duty to ensure that citizens involved be informedof the existence and the parameters of these safeguards. Almost withoutexception, recent reports of law reform bodies have advocated thisapproach. But in our opinion only the proposals of the American LawInstitute come close to success in the difficult task of balancing theconflicting objectives of community and individual interests and ofdevising a practicable reform package.

B. THE INVESTIGATORY PROCESS

The investigatory process is the area in which the rules of criminalprocedure at present provide the least satisfactory balance of interests,yet are most essential, and the Law Reform Commission and theCriminal Investigation Bill focus on it. Several inter-related topics maybe isolated for discussion and analysis. Four substantive questionsconcerning the proper balance between police powers and citizen rightsduring the investigation of an alleged offence will be taken up in thisarticle. The issues covered are: the principle of voluntary co-operation,the scope and content of the powers of police in the initial "contact/exploratory" stages of an investigation, police powers to arrest anindividual or conduct more extended investigations and, finally, thepower to question people during a period of custody or restraint.

1. V oluntary Co-operation

One of the essential aims of any system of law is to encourage thecitizen to co-operate with the police in the prevention and investigationof crime. Under present law, there is no general legal obligation cast onthe citizen to co-operate. Most reforms have not attempted to write anysuch provision into the law, on the basis that to do so would confusea moral obligation with a legal obligation.

At the same time, most commentators are clear that nothing at allshould be placed in the way of genuine voluntary co-operation, and are


very wary of endangering the degree of co-operation currently prevailing.For this reason, a requirement that persons be cautioned early, orpromptly be handed a printed statement of their rights, has not receivedsupport.

The problem remains, however, that a failure to clarify a citizen'slegal rights and obligations allows for the deliberate overriding of theperson's will or intention, and creates an atmosphere ripe for the use ofcoercive action. People can broadly be characterised as those who, formoral or other reasons, wish to co-operate with the police in theirinquiries and those who do not wish to co-operate. Each of these groupsclearly ought to be aware of the legal limits on their actions, and thoseof the police. The present system of legal regulation does nothing tocreate that awareness. As a result, the police may, with impunity, utilisebluff, colour of ,authority, inertia or superior knowledge to extract"co-operation" in the form of responses to their inquiries.14

Another problem in this area is the duration of co-operation. Aperson may well initially volunteer to co-operate with the police but thelength of time, the nature of the questions, or the location of thequestion:ing may be so intrusive or intimidating that he may wish towithhold further co-operation. It may well be that it is only desirableto separate the two categories of persons-the true volunteer and theunwilling-at a particular stage in the proceedings. This may best beachieved on initial contact, or after a period of time, say 20 minutes,or at the police station, or even only after a charge is made.

What then were the recommendations of the Law Reform Commission? The fear of creating a false impression that the citizen was under alegal obligation to co-operate apparently led the Law Reform Commissionto omit any statutory provision codifying the common law propositionthat a police officer may seek to obtain the co-operation of a member ofthe public. The Criminal Investigation Bill, however, included a ratherunsatisfactory clause clarifying the power of a police officer "who isinvestigating an offence" to put questions to any person whom he"believes ... may be able to furnish information that may assist".15 Theclause went on to provide that a person shall not be obliged to answerquestions by virtue of this section if he would not otherwise be undera duty to do SO.16 But there was no obligation placed on the policeofficer to make sure that the citizen was aware that he was under noduty to answer questions. As it stood, the Bill was seriously deficient onthis point.

-In-our-upinion-the Bilt leant far too heavily- on the side of placing noimpediment in the path of police investigation, and tolerated a situation

14 Glanville Williams, "The Authentication of Statements to the Police" [1979]Criminal Law Review 6, 9-15.

15 Criminal Investigation Bill 1977, s. 17 ( 1) .16Id. s. 17(2).


in which the more gullible and less self-reliant of citizens could bemisled into believing that they must answer questions. We prefer thesolution of the American Law Institute Model Code, which wouldauthorise the police to request information or other co-operation froma citizen, subject to the very important proviso that the officer notindicate that a person is under a legal obligation in this regardI1 and thathe be subject to a positive duty to disclose the correct legal positionbefore a person he "suspects or has reasonable cause to suspect" of havingcommitted a crimet8 is questioned, or requested to attend or remain ata police station.11

The importance of ensuring that contacts between the police and thecitizen take place on a (genuinely) voluntary, rather than a coercive,basis should not be underestimated. Promotion of that objective to themaximum extent provides one of the most effective guarantees of theintegrity and liberty of the individual. In, our view, the potential forsituations in which a person would be under "restraint" without beingin lawful custody could best be minimised by the inclusion of a provisoalong the lines of the A.L.I. Model Code.

2. Preliminary Contacts

Under the present law, the police have the power to seek the assistanceof any citizen and to question anyone whom they believe may be ableto assist them with their inquiries. Unless persons are willing to co-operate,however, police powers are very limited.

There is no power to compel anyone to answer any question whatever,nor to deter a person's lawful progress, short of making an arrest basedupon probable cause. There is no lawful authority by which the policecan even compel a person to identify himself by name.%O Similarly, policehave no authority to undertake a search of a person or his possessionswithout a warrant, except searches incidental to a valid arrest. Someauthority21 exists that, in certain circumstances, a search without awarrant can take place. The common law has thus continued to regarda person's right to silence and to liberty as inviolable, subject only toarrest upon reasonable cause. Just as clearly, practice has varied mostmarkedly from the law in this area. Individuals are often said to "consent"to identify themselves and to submit to questioning. Searches of personand premises are undertaken by police officers without warrant, andwithout reliance upon any common law or statutory right.

The Law Reform Commission attempted to rectify this situation butit succeeded only in part.

17 A.L.I. Model Code, s. 110.1 (1).I8Id. s. 110.1 (2).191d. s. 110.1(3).20 Statutes dealing with road traffic matters may grant police this power in

limited circumstances: Australia Law Reform Commission: Report No.4:Alcohol, Drugs and Driving (1976) paras 26, 84.

21 E.g. Ghani v. lones [1970]1 Q.B. 693, 706-709 per Lord Denning M.R.


(a) The power of the police to require the name and address of acitizen

The Commission recommended that the police be empowered toobtain the name and address of a person provided that the police officerin question could, within the scope of his responsibility as a law enforcement officer, establish a nexus linking the person to be the subject ofthe proposed power with suspected criminal activity. The ParliamentaryDraftsman sought to achieve this by providing that a name and addresscould be sought only where "a Police Officer believes on reasonablegrounds that [the] person ... may be able to assist him in his inquiriesin connexion with an offence ...".22 A reciprocal right was granted tothe person asked to identify himself to request of the police officer hisname or the address of his place of duty.

The Commission argued that their proposed power would not be"exercisable on the merest whim of a policeman", due to the requirements that there be "some nexus with an actual or possible offence",and that "the police officer will be required to identify the reason forwhich the name and address is sought".~ The Bill ran these twopropositions together, by focussing on the reasonableness of the beliefheld by the officer that a person is in a position to assist with inquiries.This is perhaps as acceptable as any formulation,24 though it could beargued that in practice it will be extremely difficult to impugn thereasonableness of the justifications which will be offered by the policeofficers who exercise this power.

Ultimately this power must stand or fall by reference to the degree towhich, if exercised, it infringes the right to be left alone, and theconsequences which follow from abuse of the provision. Anonymity maybe a precious quality,25 but absolute respect for this value cannot beeasily defended in a modem urban environment. Paradoxically, theprocess of urbanisation has destroyed the validity of the underlyingpremise on which the common law rules were founded. The villageatmosphere created a situation where most members of the community,including the police, regularly interacted and thereby built up a considerable store of information about the identity, characteristics and habits

22 Criminal Investigation Bill 1977, s. 16(1) •23 ALRC 2, para. 80.H It must be conceded that probably no clearer formula can be devised to guide

the decision, which must therefore be left to an individual policeman in the courseof his duty. Perhaps guidelines, either in the form of legislative regulations or,more desirably, police-designed rules, could supply criteria upon which to basethe "reasonable belief". These might be expressed in probability terms (e.g. morethan 60% likely), by reference to the number of possible suspects, or by incorporation of the basis for belief (information from reliable sources) but in the endthis must remain a subjective decision. While that may give an aggrieved citizenlittle recourse for complaint to, say, a police disciplinary board, other formulaewould not improve the situation. In view of the lesser degree of intrusion thisconnotes, and the safeguards mentioned infra, the clause may be acceptable.

25 A.L.I. Model Code, Commentary 269.


of most members of the population. This has been replaced by theanonymous, alienating environment of the modem city. Whereas in thevillage environment the citizen was too easily recognised for there to beany practical advantage to be gained by refusing to volunteer informationrelevant to his possible involvement as a participant or witness to acrime, there is now a practical choice between voluntary co-operation,and attempting to melt away into the anonymity of the city.

For a person who is able to produce satisfactory evidence of identityin the form of credit cards or driver's licence, the incursion by a nameand address power into the right of anonymity is arguably comparativelyslight and, if this were the sole consideration, there would be fairlywidespread support for the contention that such a power is now justified.But complications arise in those situations where it is claimed by apolice officer that inadequate evidence of identity was provided onrequest, or the police officer claims that there were grounds for suspectingthat a false name had been given. Whatever the true position might bein these cases, it is highly unlikely that it will be possible to reconstructthe incidents and distinguish those where the power has been abused toharass an individual from those where a police officer has deliberatelybeen misled. As the Bill stood, however, failure by the citizen to complywith the terms of the section would justify an arrest.26

It cannot be said that harassing questions as to identity are of thesame order of seriousness as the misuse of compulsory powers of restraintfor the purpose of harassing individuals, but the two issues are inextricably linked. There is no solution to this dilemma (short of preservingthe even less satisfactory existing rules) other than to trust the processesfor controlling the exercise of discretion by the officers invested withthis responsibility. Quite obviously, failure to comply with the sectionmust carry the prospect of arrest without warrant. No other practicalprocedure can be used against a person whose identity has not satisfactorily been established. It must be accepted as a regrettable, butinevitable, cost of achieving a more effective system of control overcriminal investigation.

The scope of the power in the Bill is certainly intended to be quitewide, however, as it is not confined to those suspected of committingan offence, but extends to those whom the police officer believes maybe able to assist him in his inquiries. Again this extension appears to beinevitable if an effective power is to be provided, despite the potentialfor misuse. Although it can be argued that there is less justification forextending this power to cover witnesses, there is a correspondingly muchlower risk of the power being misused to "harass" this group. Again, itappears to be justified.

The power to obtain a name and an address should, of course, beviewed in the overall context of an investigation. The power of itself

26 Criminal Investigation Bill 1977, SSe 9(1), 16(2) .


can only be useful to the police as a stage or phase. In so far as itpermits them to locate a person for further investigation at a later date,or when further independent investigation has implicated the personidentified, it may be valuable. Without more, however, it cannot beseen as an important tool for law enforcement.

(b) Search without warrant

The right to require identification when combined with a furtherpower to search for evidence connecting a person with a crime may,however, further the ends of police investigation in a material way. Thepower to conduct a search is undoubtedly a proper and necessary policepower. At various times, a search of a person's body, possessions, orpremises may be necessary to secure evidence, seize instruments ofcrime or stolen goods, or to ascertain the presence of dangerous offensiveweapons. Both the Law Reform Commission and later the Bill haveimproved the methods of securing a search warrant by clarifying theprocedures and by providing for warrants to be issued by telephone.21

The Commission was also aware that there are occasions upon whicha search must be conducted without a warrant. Such instances arelabelled "searches in emergencies" and authorisation is found in section63 (1) of the Bill, which provides that a police search of the person andany clothing or property under the immediate control of that personmay be conducted:

(c) if the Police Officer believes on reasonable grounds that it isnecessary to do so in order to prevent the loss or destructionof any thing connected with an offence; and

(d) the search or entry is made in circumstances of such seriousnessand urgency as to require and justify immediate search or entrywithout the authority of an order of a court or of a warrantissued under this Part.

The danger in such a provision is clear. It is a clause which is opento abuse by police who may use it as a means of harassment. Atthe time it is invoked it represents a degree of intrusion considerablyhigher than that of an inquiry regarding identity. But, in retrospect, anyevidence of a crime which is found (whether it be relevant to the offenceunder investigation or not) supplies justification for the search that maynot have existed at the time it was conducted.

The power to search contained in the Bill was conditional only upona determination that circumstances of seriousness and urgency justifiedan immediate search or entry. The individual officer was left to ascertainwhat constituted such conditions. In so far as he would otherwise begiven no power to question -or detain people who possessed unexplainedparcels, or were present at a location at an unusual time or at the sceneof a suspected offence, the policeman might well determine that, in the

2'1Id. SSe 61, 62.


absence of explanation, those circumstances would be conditions ofseriousness or urgency. Difficult though it undoubtedly is to specifywhat is meant by such terms in advance of events, it is nevertheless amatter of some concern that the scope of this proposed power wouldremain to be determined by the slow and often erratic accumulation ofa body of judicial decisions.

(c) The power to stop and question a person on the street

Other than the power to require a citizen to disclose his name andaddress, the Bill did not seek to regulate on-the-street contacts orquestioning by the police short of arrest. The American Law InstituteModel Code, by contrast, adopts a very different approach, extendinga power not only to require identification, but also, in proper circumstances, to permit a person to be stopped on the street for a period ofquestioning not to exceed 20 minutes. Additional restrictions relating tothe class of offence, the degree of suspicion surrounding the person tobe questioned and the availability of other more reasonable alternativeswere written into the draft section in an attempt to keep the new powerwithin reasonable bounds.1S

The power as outlined in the American Law Institute Model Code isconfined to offences involving injury to the person or to property, thusexcluding most public order and street offences. Additionally, the poweris confined to questioning suspects or witnesses who were "in the vicinityof and roughly contemporaneous (sic) with the crime" and to suspectsor witnesses who are "reasonably suspected" of being involved in thatoffence or "reasonably believed" to have knowledge relevant to theinvestigation of that offence.29 Where the person is not associated withwhat the American Law Institute describes as the res gesta of the crimeso

(because he was not in the geographical vicinity at the time of theoffence) the power to stop would require that an officer be satisfied first,that there was reasonable cause to believe an offence had taken place(the arrest standard), and secondly, that there were grounds for reasonably "suspecting" that the person to be questioned was involved in thatoffence.31 The lower standard of reasonable suspicion in the nexusbetween the citizen and the offence strikes a fair balance betweenprotection of the civil rights of the individual and the needs of thepolice officer faced with very limited information at the commencementof an investigation. Finally, the power might be lawfully invoked onlyif there was no other reasonable altemative.32

On balance, we believe that such a power, carefully drawn, would bedesirable. We are convinced that a controlled opportunity to put ques-

18 A.L.I. Model Code, SSe 110.2(1) (a) (i) (class of offence and degree ofsuspicion), 110.2(1)(a)(ii) (reasonable alternatives), Commentary 9-10, 277.

-Id. SSe 110.2(1) (a) (i), 110.2(1) (b) (i), Commentary 10, 262-263.30 Id. Commentary 10, 263, 270.I1Id. Commentary 282-283.DId. Commentary 262.


tions to persons suspected of involvement in a serious offence is anecessary step in the identification and apprehension of offenders. Webelieve that society as a whole, the police and the courts regard such apractice as legitimate. As such, we prefer to see it regulated rather thantolerated. It is better that a minimum intrusion, involving a limitedperiod without transportation to another location and conducted in theless coercive setting of the street (compared with the police station), bepermitted than to hope that de facto powers will not be abused. If suchcontact leads to increased formal handling, in that the police gain throughquestioning sufficient grounds to justify an arrest, that result cannot beconsidered undesirable. If formal contact continues without arrest, thensuch developments may be regulated or eliminated by further provisions.

3. Police Powers of Arrest and Lengthier Investigations

The period in which, arguably, the most difficult decisions must bemade in criminal investigation is when a suspicion has hardened in aninvestigating officer's mind and he has focussed upon one or moresuspects. In many instances it would be premature to arrest and chargeas further investigation is needed or further evidence must be securedto justify a decision to prosecute.

In order to complete the next phase of an investigation, a longerperiod of questioning or investigative procedures may be required.From the individual's viewpoint, this period of "assisting the police withtheir inquiries" becomes more intrusive, and the atmosphere moreintimidating or coercive. An individual who may well have genuinelyextended voluntary co-operation when asked to identify himself, or havewillingly agreed to answer some questions on the street without majorinconvenience, may be far less willing to undergo further disruption ofhis routine.

(a) Lengthier interrogation: the dilemmas

The problems presented by the common law in this phase of investigation must be clearly understood before evaluating any proposal foraltering the law. From the police viewpoint of identifying and apprehending offenders, the present law provides inadequate powers tocomplete the investigation. From the individual's viewpoint, the problemswith present law and practice are more varied. First, because there isno other power, persons are being arrested unnecessarily. This use ofthe formal arrest power is lawful where persons are sufficiently undersuspicion to satisfy existing threshold criteria. In many instances,however, neither the characteristics of the offence nor the offenderjustify an arrest.33

33 This is the problem which the inclusion of a statutory presumption in favourof the use of summons procedures, reserving arrest for cases of last resort, wasdesigned to overcome: Crimes Act 1958 as amended (Vic.), s.458; CriminalInvestigation Bi111977, s. 9(2) (c). See also ALRC 2, paras 39-44.


A second problem is that persons whose arrest could not be supportedat law are nonetheless being interrogated against their will by the police.This occurs in at least two ways. In some instances the lack of legalknowledge of individuals is exploited and persons are bluffed intocoming to the police station to answer further questions by pressure ofauthority, appeals to their "civic duty" and so on.34 Another method,clearly illegal, is for the police to purport to arrest a person even thoughinsufficient grounds exist to justify an arrest. The less scrupulouspoliceman engages in such a practice in the hope that further investigation will turn up admissions or evidence to "regularise" the arrestafter the event, or, if not, that the person will be released and nothingfurther will be heard of the incident. Each of these aspects of the presentsituation raises issues which require separate treatment.

(b) The overreach of formal arrest and the problem of de factorestraint

Undue reliance on the power of arrest is almost universally regardedas an outcome to be avoided. The substantial incursion into the libertyof the subject which is inextricably associated with an arrest35 is bothwell known and well documented. This is undoubtedly the mostimportant factor from the perspective of basic rights and freedoms in aliberal democratic society, but there are also more pragmatic considerations. At the level of the efficient use of scarce resources, the weaknessin the common law at the present time might be described as the absenceof adequate police powers to enable police resources of time and manpower to be matched efficiently with the diverse needs of witnesses,suspects and'alleged offenders.

This inefficiency manifests itself in a number of ways. First, there isthe potential for the threshold of suspicion required to justify an arrestto be manipulated or ignored or for blllff to be relied on to achieve ade facto arrest, simply to provide the police with at least the appearanceof a colour of right when they need to conduct further investigations.These inquiries may be required in order to establish the correct statusof an individual with respect to a particular offence, where the factsinitially available place that individual under minimal suspicion. Secondly,the present law places unnecessary pressure on the policeman on the

34 Police are willing to admit privately that they will use artifice, cajolery,pressure or persuasion to induce an individual to accompany them: ALRC 2,para. 7. This was expressly conceded in one submission to the Commissionreceived from a police source where it was stated that the existing law"... forcespolice officers to adopt methods which are of doubtful or obscure legality. Amongthese methods are: (i) stretching and bending the concept of 'voluntaryco-operation'; (ii) engaging in subterfuge or deceit to ensure a person's detention..." (ibid.). See also Glanville Williams, op.-cit. 6, -9-1-1; Driscoll-v. R. (1977)51 A.L.J.R. 731, 741 per Gibbs J.

30 ALRC 2, para. 28. As Dr Eggleston points out (Fear, Favour or Affection(1976) 28), this consideration is more pressing in the absence of proper provisionsto ensure speedy bail subsequent to arrest"


street by failing to provide any measures between non-intervention andarrest, except where the police officer is sufficiently familiar with theidentity of the individual to proceed by way of summons.

For the inexperienced policeman, an arrest of doubtful legality or thede facto assumption of a power of restraint, enables him to obtain asecond opinion from a more senior officer and avoid reproach by hissuperiors for releasing or proceeding by way of a summons in a casewhich, it is later determined, justified more substantial action. Thesetwin pressures are matters of real concern to the working police officer.The law should accommodate those pressures in an acceptable manner.Neither the present law nor the proposals of the Commission nor theCriminal Investigation Bill meet the challenge of that reality.

(c) Reducing unnecessary reliance on arrests

The practice of making an arrest when a less intrusive action willaccomplish the same objective is not an intractable problem and shouldbe amenable to reform. It was in this direction that the Law ReformCommission Report moved, in the hope that the gap between law andpractice could be closed to within tolerable limits. The Commission, andsubsequently the Criminal Investigation Bill, recommended that thepurpose of arrest be specified and that a power be granted to designatecertain offences as non-arrestable other than by warrant.36 While this isa move in the right direction, it cannot be accepted as a completesolution even for the problem of the lawful but unnecessary arrest. Wewould contend that unnecessary reliance upon arrest can more effectivelybe mitigated by providing police officers with a number of attractive, butmore precisely defined, alternative powers as a supplement to theexisting choice between arrest and summons procedures.

Several questions for any proposed reform arise. To what degreeshould any proposed power vest in the police rather than in a judicialofficer? At what stage of the investigation should these powers becomeavailable-on the street or as late as upon arrival at the police station?Finally, and perhaps most importantly, should the new powers be asubstitute for arrest, or for the power to compel a person to appear incourt (a "summons") or even extend to compelling a person to appearat a police station (a "citation")? Throughout the discussion it shouldbe borne in mind that the powers discussed infra are predicated upon thenotion that any person given a "summons" or "citation" should be liableto be arrested. We would firmly endorse the stand taken by the Commission that "compulsory powers . . . ought only to be exercised . . .when the police officer can satisfy the criteria which would justify anarrest of that person".37

36 ALRC 2, para. 34; Criminal Investigation Bill, ss. 9(2) (b) (the purpose ofarrest), 9(1) (the non-arrestable offences).

37 ALRC 2, para. 8..


We contend that new powers are required. Because these new powersare intended to be confined to a narrow specific purpose, it is necessaryto use precise terminology to describe them. To that end, the terms"summons" and "citation" will be given a specialised meaning. A"summons" as that term is used in the discussion would be issued toorder a person to appear before a court; a "citation" would order aperson to a police station. To make the terms even clearer, both theperson entitled to exercise the power and the particular stage of theinvestigation can be incorporated in the description of the power. Thus,a "police street citation" describes a power available to a policeman,exercisable on the street, and requiring attendance at a police station;while a "police station summons" refers to a summons to attend court,which would be issued by a police officer at a police station. We advocateprovision of three additional powers, namely, "police street" and "policestation" summons powers (operating as alternatives to existing powersof arrest) and "police station citations" (confined to people lawfullyrestrained in a police station), as set out in Table A.

TABLE ARecommended Powers for Police Investigations

PERSONISSUING

SUMMONS

POLICE JUDICIAL

CITATION

POLICE JUDICIAL

PLACEISSUEDStreet RecoInmended Not necessary;

as an alternative power alreadyto the power exists to arrestto arrest. on warrant.

Notrecommendedsince it extendspowers of arrest.

Notrecommended.

Station Recommendednew power.

Not necessary;notrecommended.

Recommendedpower tofragment ordefer proceduresbut only forpersons lawfullydetained.

These new powers should be exclusively confined to early stages inthe investigation (where the power of arrest might otherwise be invoked).We further suggest that a summons ought to have a contingent orinchoate character. There should be a responsibility placed on thepolice to inform the court of the precise nature of the charge or towithdraw the "summons" not less than 24 hours before the time setdown for the hearing.S8 The police summons should be available in lieu

38 A.L.l. Model Code, SSe 120.2(3), 130.2(1) (c), 130.3(2).


of formal arrest for any crime for which the individual in question couldlawfully be arrested whether with or without a warrant,39 following any"street" contact which would support a lawful arrest (thus avoiding anappearance at a police station),40 or following arrival at a police station.Both summons and citation should be subject to a proviso that thepolice officer be satisfied that there was "reasonable cause to believethat the person had committed an offence".41 Finally, the proposedpolice citation (requiring later attendance at the station) would allowthe period of detention for questioning-as outlined infra-to befragmented. As indicated previously, each of the three new powersshould incorporate criteria designed to prevent these new powersextending beyond the category of people presently liable to lawful arrest.

A scheme such as that outlined would, in our opinion, be much morelikely to provide a solution to the problem of unnecessary reliance onformal powers of arrest than the course adopted by the Australian LawReform Commission and in the Criminal Investigation Bill. Positiveinducements in the form of more attractive alternatives to arrest powerswould, it is contended, have a more substantial impact on the problemthan would legislative exhortations and prohibitions. In short, we preferthe carrot to the stick. The present authors urged the Australian LawReform Commission to recommend that new powers be granted tothe police which would have enabled a person to be released or tocontinue on his way, subject to a "police summons" to appear in courtat a later date.42

The Commission was not prepared to make this recommendation.The Commission preferred to place its faith in improvements to existingcourt summons provisions. This, it thought, could be brought about bythe consolidation of the "myriad clauses presently located in existingState and Territorial legislation" in a single all-embracing section43 andby improving the efficiency of the process for serving a summons.44

(d) Alternatives to formal arrest or retention of the status quo?

The Commission raised four objections to the introduction of policesummons powers, none of which was completely convincing. First, itcontended that existing court summons procedures could be improved

39Id. s. 120.2(1).4() Id. s. 120.2(2).41 Id. s. 120.2(1).42 Carney and Epstein, "Custodial Investigation" (1975) unpublished consultants'

paper to ALRC, para. 104 [held at Monash University Law Library]. ct. A.L.I.Model Code, SSe 120.2(1), 120.2(2), 130.2(1), Commentary 338-341.

43 ALRC 2, para. 62.44 The Commission confined these remarks to "minor" offences, and did not

elaborate on this reform in the body of the report, other than to make a referenceto permitting service of a summons by post in the summary of recommendations,and in a brief appendix (where traffic offences and offences carrying a fine of upto $200 were identified as the "minor" offences). Neither the draft Bill nor theGovernment Bill went any distance towards achieving this reform, which thereforeremained nothing more than a statement of intent: ide para. 309 and Appendix C.


to match the speed and efficiency of the proposed new powers but atthe same time avoid their alleged drawbacks. The Commission alsoargued that the proposed new powers would leave less room for thebenevolent exercise of prosecutorial discretion and would overtaxinexperienced officers in the field, thus causing them to respond withpoor decisions. Further, it was claimed that the police summons wouldprove to be impractical because of the difficulty of specifying the timeor location of the court hearing at the time it was issued.45

The first objection is disingenuous in that it inaccurately characterisesthe primary advantage of police summons procedures to be the speedand efficiency of delivering a summons. This is not the principal objective.Police summons procedures are advocated because they would avoid, orshorten, the duration of police-citizen contacts, not by reducing the totalamount of paperwork required, but instead by reducing the amount oftime or paperwork required to be expended by the police officer on thestreet and on patrol.46 Contacts would be shortened by dispensing withthe necessity for so many people to be requested, or required, to attendat a police station or to spend an inordinate length of time there. Thecontingent character of a police summons to appear would achieve thisobjective by removing some of the pressure on the inexperienced officerto formulate charges in a precise form at short notice. It would transferthis task, and much of the follow-up paperwork, to experienced seniorofficers, who would develop special expertise in this area, and be ableto carry out the function with the full support of facilities at local orregional stations.

It is apparent that the remaining three objections were also predicatedon a misunderstanding of the essential character of the police summonspowers. The inchoate nature of the police summons procedure is welladapted to the introduction of a review process aimed at refining orwithdrawing some or all of the charges.47 Prosecutorial discretion wouldtherefore be preserved, or possibly enhanced, under these arrangements.The reference to abuse of the new power by inexperienced officers alsolacks substance. Inexperience on the part of officers in the field is afactor of modem policing which cannot easily be remedied by manpower or organisational strategies. The danger that an incorrect orimproper decision will be taken on the street in an emergency or instress-filled circumstances is therefore a real one, which exists equallyin the exercise of the existing powers of arrest. By transferring the moresensitive aspects of the decision to institute proceedings from the officeron the street to a more senior officer, the police summons proceduresmay not entirely eliminate mistakes and errors of judgment by inexperienced officers but must ameliorate the present situation to some degree.

4lS Id. para. 63.46 Carney and Epstein, Ope cit. para. 109.41 Ibid.


The final objection, that it might be practically difficult for an officerto specify the time and place of a court sitting, is of little weight orconsequence: the greater part of a policeman's working day is spentin close proximity to two-way radio, linking him with a central controlpoint, and it is but a small step to adapt these facilities to communicateinformation from a court listing service to the officer on patrol;48 and,even in the absence of such facilities, the police summons is a contingentdocument and the necessary information could be forwarded at a laterstage after the case had been reviewed and a decision taken to proceed,or to refine or withdraw particular charges.49

(e) A covert extension of police powers?

The Commission did not advert to the potentially more seriousobjection that procedures of this character can lead to the expansion ofthe class of people subject to police powers, or to the intensification ofthe degree of formality of those contacts. This unintended "recruitingeffect" is raised by Morris and others who contend that there is a strongpossibility that informal discussions between police and citizens will beupgraded to formal questioning during an on-the-street stop and, due tothe momentum built up during the questioning, lead to a higher proportion of police contacts which result in formal action.50

The first of these points can be met quite easily. The ambit of thestop power-which involves the choice between permitting an individualto continue on his way and taking steps to secure voluntary co-operation-can be controlled by introducing and enforcing the criterion that therebe no other reasonable alternative to this course.51 Inertia as a cause ofincreased reliance on restraint (whether a lawful arrest or extra-legalrestraint) or a higher proportion of formal charges is more difficult tocontain. Two techniques are available.

Provided the concept of restraint is realistically defined so that itturns on objective factors which enable the situation to be accuratelyreconstructed after the event-a goal which the American Law Institutepartially attains but the Australian Law Reform Commission and theBill totally fail to achieve62-restraint, whether subject to arrest orotherwise, can be made conditional on the provision of a cautiondesigned to counteract the damage which might otherwise be caused bythe psychologically coercive atmosphere of questioning under restraint.53

48 A scheme of this kind has already been introduced in Contra Costa County,California: The President's Commission on Law Enforcement and Administrationof Justice, Task Force' Report: The Courts (1967) 41.

49 A.L.I. Model Code, s.120.2(3) includes this inbuilt safeguard.so Morris, The Future of Imprisonment (1974) 10.51 E.g. A.L.I. Model Code, SSe 110.2(1) (a) (i) (class of offence and degree of

suspicion), 110.2(1)(a)(ii) (reasonable alternatives), Commentary 9-10, 277.52 This criticism was put in strong terms by a Government back-bencher,

Mr Neil, during the second reading debate on the Bill: H.R. Deb. 1977, Vol. lOS,1493.

63 ct. ALRC 2, para. 10.


Provisions can also be written in to ensure that a person under restraintis speedily brought to a police station, questioned for no more than adefined period and, if charged, speedily considered for bail.54 Indeed, itis at this point that suspects ought to be divided into those prepared toco-operate voluntarily and those not so prepared. Ideally there oughtto be a formal written record created, which would be prima facieevidence of the provision of the information and the suspect's election(or response to that choice).50

The majority recommendations by the Australian Law Reform Commission went part of the way towards meeting some of these objectivesby proposing that where a person suspected of committing a "serious"offence was being questioned by the police, a caution informing him ofhis right not to answer questions would be required, and his signature ofan acknowledgment form to this effect would be prima facie evidenceof compliance with the section.06 That provision was dropped from theBill, along with the time limits on the duration of questioning for peopleunder restraint (which in turn were confined to the higher threshold ofarrest).S1 Submissions in favour of an across-the-board waiver form asa precondition to any restraint, and proposals for speedy presentationof people at a police station, received fairly cursory attention,SS so thateven the original package of proposals put up by the majority of theCommission was less than satisfactory. Certainly it was less compellingthan the American Law Institute proposals. The proposals contained inthe 1977 Bill were based on the dissenting views expressed by Commissioner Brennan59 and in practice it is doubtful whether they wouldbe any more effective than the present controls which, it is widelyagreed, permit too much scope for extra-legal assumption of powers ofrestraint and questioning.

The "recruiting effect" over people who would not otherwise becomeinvolved under present powers cannot be denied. But it is necessaryto assess the magnitude of this effect and the degree of invasion sufferedby these individuals, and counterweigh the benefits gained by the group

MId. paras 89-98, (especially 94), 173-187. A requirement that a person betaken to a police station without delay was written into the A.L.I. Model Code(s.120.9(1) and Commentary 315) and recommended to the Commission by theauthors (Carney and Epstein, Ope cit. para. 111); but the Commission choseinstead to rely on the incentive created by the proposed four hour limit oncustodial investigation which would commence to run immediately upon the personbeing placed under de facto restraint on the street, although travelling time on adirect route to the station was not to be counted in the four hour period (ALRC 2,paras 89(e), 92).

65 Carney and Epstein, Ope cit. paras 82-86.06 ALRC 2, paras 66-71 and Draft Bill, cl. 22.51 It was still required by the Bill that a caution be given in certain circum

stances but this right to a caution would depend on the highly unsatisfactorycriterion of subjective belief by the police officer in question.

58 Proposals to this effect were advanced by the authors: Carney and Epstein,Ope cit. paras 82-86, 111. ALRC 2, paras 66-71, 92.

aD ALRC 2, paras 10, 72-78.


for whom the new procedures would bring a reduction in the degree ofrestraint or inconvenience. If the new powers were drafted in conformitywith the principles underlying the A.L.I. Model Code, so that the powerto summons were conditioned on the existence of grounds for arrest,and the document issued were subject to a review process as outlinedsupra, it would be unlikely that there would be much substance to thisobjection.

(f) Overcoming bluff

The second and more difficult problem is that of the arrest made onless than the requisite grounds, or the use of bluff or intimidation toovercome the will of the person being questioned. As mentioned supra,this often transpires because the police feel frustrated in carrying outtheir duties with inadequate powers. One method of limiting the useof illegitimate activity is to broaden the powers of the police to conductmore extended investigations. That will be canvassed shortly.

The present practice permits the police to take advantage of thelimited knowledge of most individuals in Australia of their dutiesand rights when confronted by the police. As long as police do notallege that they have a power to detain for questioning (which they donot have), they can utilise whatever strategy they choose to encourageor "stampede" an individual into accompanying them to a police stationor to continue an extensive period of questioning. The most desirablelong-term method by which to attack this problem may be through legaleducation in primary and secondary schools. More directly, however,the person who is about to undergo intensive interrogation, or a majorintrusion on his liberty and right to proceed, ought to be made awarein clear and definite terms of his precise rights. The Law ReformCommission and the Bill, however, remained more mindful of theproblems of impeding "voluntary co-operation" than of ensuring that theindividual, even at this late point of the investigation, was unequivocallyinformed of his rights.

The Criminal Investigation Bill did not attempt to prevent a situationof a person who cannot be lawfully arrested coming under restraint.It did, however, provide that once a person was under restraint, inconnection with an offence, that person should not be (further) questioned until an oral caution had been administered. He was to beinformed that he was not obliged to answer any questions asked of him,and that, at any time, he might consult a lawyer or communicate with afriend or relative.oo

It would appear that the Bill envisaged that a person under restraint,and unwilling to co-operate, could be brought to a police station orother venue without being informed that he need not go along, and beinformed only after he reached that venue that he had certain rights. It

60 Criminal Investigation Bill 1977, s. 18(2) (a), (b).


should also be noted that the caution envisaged by the Bill would beadministered orally. This would make it difficult to ascertain in a caseof later dispute whether it was effectively administered. A much moreeffective method of ensuring that bluff and colour of authority are notused to justify extended periods of interrogation in situations short ofarrest would be to require administration of a written caution at anytime where a person being interrogated is asked to accompany policeanywhere, or to undergo extensive (beyond, say, 20 minutes) questioning.

(g) A case for enhancing police powers?

(i) Lowering the belief threshold

A recurring theme of the article has been the recognition that thepolice, in an urban setting, will regularly require a period of investigationbetween the time suspicion arises and the moment at which they havesufficient grounds to justify an arrest. Any suggestion of an increase inthe de jure powers of the police raises images of reversing fundamentalrights and assumptions upon which our legal system has been based. Asa result, any period of custodial interrogation has been scrutinisedseverely by law reformers and civil liberties organisations. The need topreserve the liberty of the citizen against unnecessary detention orinconvenience must conflict with the reality that policing in a complexurban setting precludes a police officer from acquiring sufficient information to connect reliably a particular individual with a given offence.

This dilemma is concealed by the threshold preconditions placed onthe power of arrest at common law. Although the common law standardof "reasonable cause for believing that an individual has committed anoffence" is higher than "mere suspicion" and lower than the "moreprobable than not" standard advocated by some American commentators,61 it remains an artificial compromise. It may be that this is arealistic position and that any attempt to incorporate the more preciselanguage of the mathematician, by stating levels of probability, wouldcreate a misleading and artificial appearance of precision in what isinevitably an imprecise art, but this is of small comfort to the workingpoliceman or the citizen.

It fails to satisfy the working policeman who is regularly confrontedwith situations which, at the highest, place an individual under "meresuspicion", leaving him with the options of taking no action, relyingentirely on voluntary co-operation, or resorting to an inappropriatereliance on formal arrest (or even the more demeaning resort to bluff)in order to acquire a de facto period of restraint to continue investigationand questioning. Equally, the law fails to protect the interests representedby civil rights groups, due to the difficulty of enforcing a standard whichis so heavily dependent on a subjective state of mind of the individual

61 These alternative formulations are discussed in A.L.I. Model Code, Commentary 290-296.


police officer, and because the simple assumption of powers through theuse of bluff and minor deception remains a very attractive solution forthe hard-pressed working police officer.

Most commentators concede that the problem cannot be satisfactorilyresolved by reforming the criteria governing arrest. A standard of "meresuspicion" would meet the needs of working policemen, but at theexpense of any concept of individual rights. In practice, it would not bepossible for a court to conclude that a police officer had made more thanan error of judgment in arresting a person in a public place unless thatofficer admitted improper motives. In the absence of such an admission,there would almost invariably be some aspect of a person's behaviourwhich could legitimately attract suspicion until the facts were fullydisclosed. The requirement of a nexuS between a particular offence anda "suspected" offender would be destroyed, enabling the power of arrestto be invoked with almost equal ease against all citizens. Such a result isincompatible with the fundamental assumptions of our society and musttherefore be rejected.

The "more probable than not" standard enshrines the ideal that noperson ought to be deprived of liberty by the state unless, on theinformation available at the time, the probability that he is involved ina particular crime is higher than the probability that he is innocent, butpursuit of that mathematical ideal during the preliminary stages of aninvestigation would simply exacerbate the problem of de facto assumptionof powers. It would add to the pressures on the conscientious honestpoliceman to find a practical means of discharging his responsibilities.The elimination of the illegal arrest cannot be accomplished by reformingthe grounds for arrest.

(ii) A statutory U belief standard" to limit powers or triggerspecial protections

The Commission and the Criminal Investigation Bill relied veryheavily on statutory formulations of a standard of belief as a way ofdefining the limits of police powers or of enhancing the rights of thecitizen.

Those provisions of the Bill which adopted a standard of suspicionor belief as a key criterion to their operation served two distinct purposes.Some sections relied on this criterion to set a threshold below whichcertain powers would not legally be available to the police.62 Others

62 Criminal Investigation Bill 1977, ss.4(2)(a)(ii), 9(2)(a), (b), 9(3), 10(1),12(1), 16(1). The criterion was used to define "arrest analogous" situations, tolimit the use of arrest and encourage the use of summons procedures, to avoidunnecessary detention once the original justification had disappeared, to delimitpowers of entry incident to a power to arrest on warrant, and to define the scopeof the new power to require a person to reveal his name and address. In eachcase the legislation required a belief that the restraint or arrest is "necessary" toachieve statutory purposes, or a belief that the person requested to supply hisname "may be able to assist ... in ... inquiries".


adopted it as a means of conferring protections and rights on the citizenin certain circumstances.63 From a law enforcement perspective, complaint can be directed at the vagueness and uncertainty of the standardand the unrealistically high levels of suspicion required." On the otherhand, commentators concerned about the preservation of the rights ofthe individual point to the fact that the standards are extraordinarilydifficult to monitor because they turn on the state of mind of the lawenforcement officer. It can also be objected that the threshold is too lowin practice, thus permitting powers to be used against too large a classof the community, or that it may be used on a speculative basis, or thatrights may be capriciously withheld.65

The Commission Report failed to come to grips with these problems.In a passage commendable only for its bluntness, the Commissionconceded that a dispute in court about the degree of suspicion held by apolice officer at a particular point in an investigation would be equallyas "arid" as the present "swearing (or credibility) contests" betweenpolice and accused, which are common when the sole or principal itemof evidence is an unsigned statement disowned by the accused asa fabrication (or "verbal").66 The majority proposals, subsequentlyomitted from the Bill, did provide a partial solution.

The Commission placed its faith in the requirement that people beinformed of their rights and that their signature on an acknowledgmentform be sought where they \vere in "arrest analogous circumstances"and they were under investigation for major crimes. The flaws in thatsystem were twofold: the room for dispute about whether the situationwas "arrest analogous" (which in tum re-introduced all the uncertaintyand ambiguity surrounding the concept of "restraint" with subjectiverather than objective criteria), and the scope for a person who signed

63 Thus, the right to be cautioned would arise when an officer "decides tocharge •.. to summons ... or to recommend [such action]": ide s. 19(1). Theright to be granted facilities to communicate with a lawyer (and not to befurther questioned until that right has been exercised) was to be triggered notonly by a specific request from the person in restraint, but also where an officerformed "reasonable grounds for believing [the] person ... wishes to consult alawyer": s. 20 (1). Parallel responsibilities arose to facilitate communication witha relative or friend (but not to suspend questioning). In each case, the obligationsincluded people who, although not under restraint, had been warned that theyneed not answer questions and advised of their right to communicate with alawyer or friend at any time: s. 19(2). Where the person wished to communicatewith a lawyer but did not know the name of a lawyer (or appeared not to havethis information), there was to be a duty to provide a printed list of availablelawyers and questioning was to be suspended until this had been done: SSe 21(3)(c)(ii),21 (4) (b). There was to be an exemption from the duty to facilitate communicationwhere the officer believed on reasonable grounds that the escape of an accompliceor the loss, destruction or fabrication of evidence might be facilitated by suchcommunication: s. 22(2). Also SSe 20(7), 22(3), 22(7).

64 A.L.I. Model Code, Commentary 272-273, 282.65 This point was brought out during the second reading debate on the Bill:

H.R. Deb. 1977, Vol. 105, 1485-1494.GG ALRC 2, para. 69. CI. Ashworth, Ope cit. 606.


an acknowledgment to claim that he later sought to re-assert some ofthe rights initially foregone but was prevented from exercising that rightby police action.

(iii) Strengthening the Commission proposals

The first weakness in the majority proposals could be overcome byadopting the American Law Institute's draft provision defining "arrestanalogous" situations in more objective terms, assisted by enactment ofthe Law Institute's presumption that failure to advise a person that hewas free to leave would automatically bring him within the category ofpersons under "restraint".61 The second objection-involving assertionsby suspects of a denial of rights following their withdrawal of voluntaryco-operation-could quite readily be met by introducing a "sign off"procedure to complement the "sign on" form proposed previously. Thissolution was rejected by the majority of the Commission on the unconvincing ground that this procedure would add unnecessary red-tape.68

Again, the American Law Institute Model Code provides an attractiveadministrative arrangement for enacting such a requirement, by linkingthis protection to provisions designed to ensure that people underrestraint are taken to a police station with all practicable speed and,once at the station, provided with further information about their rightsand again requested to acknowledge receipt of this information.69

(iv) Granting the right to issue a citation for questioning

While neither the Law Reform Commission nor the Government wereprepared to grant any period for questioning, an interesting suggestionwas advanced by Commissioner Brennan. He made this proposal, notas an integral part of his dissenting report, but by way of a tentativeproposal to stimulate further debate on the issue of pre-arrest restraintfor questioning which had been rejected by the rest of the Commission.In contrast to the position adopted by the majority of the AustralianLaw Reform Commission, Commissioner Brennan was prepared toconcede that "there is a case for the grant of a right to question", buthe made a plea for further public discussion on the scope of the power,the pre-conditions to the exercise of the power, and the choice of thepolice or the courts as the body to be invested with the power.70

As a contribution to that debate, Brennan suggested that the policemight be granted the power to direct a person to attend at a policestation for questioning at a specified time. This document, known as acitation, would be issued to persons who did not arouse as yet the kindof belief required for arrest. The citation would be contingent on theofficer recording his reasons for believing that the person was sufficiently

67 A.L.I. Model Code, s. 120.5.68 ALRC 2, para. 69 D. 100.69 A.L.I. Model Code, SSe 130.1, 130.2(1).10 ALRC 2, para. 76.


under suspicion and that the circumstances were appropriate for theadoption of this procedure. Enforcement, however, would be exclusivelyin the hands of the courts.'71 Failure to comply with the directive contained in the citation would constitute only a non-arrestable offence, thusproviding an opportunity for the citizen who chose not to co-operate totest the standard of suspicion and the supporting reasons in court beforeany coercive power might lawfully be exercised against him.'12

This proposal is analogous in certain respects to police summonsprocedures adopted in some American jurisdictions, though none couldreally be described as a model for this suggestion. It is thereforeparticularly unfortunate that this Australian contribution to the resolutionof the tension between the law and the practice of criminal investigationreceived scant consideration.

The primary objective of any new power in this area ought, webelieve, to be reduction of the number of people subject to extra-legalrestraint. Inevitably this means less restraint for persons who have beensatisfactorily identified, but who remain under suspicion. The additionalpaperwork involved in issuing the citation and recording reasons, andthe interruption to the spontaneity and freshness of the discussions wouldbe disadvantageous from the police perspective. But since the procedurewould only be invoked by the police when it led to more leisurely,better-planned questioning, and would result in less disruption of routinefor the citizen, these disadvantages would arguably be outweighed.

Clearly, the Brennan proposal would have a less substantial impacton the problem than the American Law Institute recommendation,which lacks these procedural disadvantages. But the added convenienceto the citizen under the Brennan proposal (which avoids immediaterestraint, compared to that of the American Law Institute which requiresit) 73 might have overcome this potential limitation. In any case, a lesssubstantial impact on the evil of extra-legal restraint might, on balance,be more than compensated for by the opportunity provided in theBrennan scheme for a court review. This would eliminate the mostserious objection to the power to stop, in that such a power could notthen be used to harass individuals or subject them to a short, butunjustified, period of restraint under cloak of a lawful stop. These issuesdeserve more careful consideration.

4. Questioning Under Restraint

Concern about the inherently coercive nature of certain forms of policeinvestigation where a person is deprived of his freedom of action in asignificant way moved the United States Supreme Court in its landmarkdecision of Miranda v. A rizona74 to hold that the constitutional guarantee

711d. para. 77.72 Ibid.13A.L.I. Model Code, 8.110.2.74 (1966) 384 U.S. 436.


against self-incrimination required a warning to be given conveying theright to silence and to counsel. Voluntary waiver of those rights wasmandatory before questioning might proceed.75 An identical concerncaused Commissioner Brennan to reject the majority proposal of theAustralian Law Reform Commission-modelled on the American LawInstitute Code of Pre-Arraignment Procedure76-that questioning bepermitted for a defined period of time and under strict controls followingarrest. Brennan argued that:

when a person is arrested, he is thereby affected by physical andpsychological constraints. He is neither legally nor actually freeand he is conscious of the power which authorities then have overhim. In such a situation, he ought not to be subject [sic] involuntarily to the exercise of the interrogator's powers.'77

In moving the second reading of the Criminal Investigation Bill, thethen Attorney-General, Mr Ellicott, informed the House that the "common law" approach advocated by Brennan had been accepted by theGovernment.78

(a) The Commission proposals

The majority view of the Commission on the issue of the right toquestion was a compromise between the common law position, whichpermits a person to be questioned only with his consent and to berestrained only following lawful arrest (after which questions can onlybe directed to clearing up ambiguities in any prior statement) ,79 andsubmissions which argued for a power to restrain a person for a setperiod of questioning either beforeso or after arrest, and with or withoutconsent.81

The majority were not prepared to entertain the possibility of questioning commencing or continuing other than on a voluntary basis or inother than the post-arrest situation. But they were concerned to makemore difficult the transformation in practice of the theoretical notion of"voluntary co-operation" into involuntary interrogation (though onlywhere the person being questioned was potentially a party to an offencepunishable by more than six months' imprisonment) .82 The Commissionproposed to achieve this by coupling the duty to advise a person in this

'16Id.444.16 A.L.I. Model Code, s. 130.2, Commentary 333-337.'1'7 ALRC 2, para. 10.18 H.R. Deb. 1977~ Vol. 105, 564.'19 Mitchell Report 88.80 Carney and Epstein, Ope cit.81 Proposals along these lines were advanced in South Australia: Mitchell

Report 74.82 ALRC 2, para. 67. Separate protection in the form of third party "prisoners'

friends" was provided for at the pre-arrest stages of investigation for all aboriginesor children questioned in respect of offences punishable by more than six months'imprisonment, and for any offence against the person or against property: ideparas 253-255, 266.


category of his right to refuse to answer questions or to accompany apoliceman (which duty was to arise once the police officer "suspectedthat the person may have committed" the offence or believed thatinformation that might implicate that person had been received by thepolice) with a requirement that the suspect be so informed and berequested to sign an acknowledgment in the prescribed form. Absenceof an acknowledgment would have been prima facie evidence of noncompliance with the section.83 This aspect of the Report has beencanvassed supra.

The second modification proposed by the majority was predicatedon the lawful exercise of the power of arrest, or the existence of groundswhich would justify such an arrest.84 Since no variation was proposedwith respect to the precondition for lawful arrest at common law-thatis, that the officer "have reasonable grounds for believing that a personhas committed an offence"80-the reform was intended to regulate thepost-arrest (or period of "lawful custody") situation leaving the prearrest situation untouched.86 The proposal was that there should be abasic four hour period during which a person might be asked questionsor during which other investigative actions might be undertaken.87 Thiswas qualified by a proviso that the provision of such a period of timewould not extend existing powers to detain people in lawful custody orauthorise questioning of people without their consent.88

(b) The minority report and the Bill

The minority report prepared by Commissioner Brennan, and adoptedby the Government in the Criminal Investigation Bill, opted for theretention of the present common law rules. It simply recommended thatthese be codified.89 The original draft clause to implement the majorityview was confined to people suspected of committing a "serious offence".It required questioning and other action to be terminated until theperson had been informed of his right not to answer questions and untilhe had been requested to sign an acknowledgment to that effect.DO Thatdraft clause was not included in the Government Bill. It was replacedby a provision linked to the concept of "restraint in respect of anoffence" which limited questioning or other action, if it was "for thepurpose of investigating the offence", by requiring that it be terminateduntil the person had been verbally warned that he was not obliged toanswer questions and that he might consult with a lawyer or friend at any

83 Id. para. 66, Draft Bill, cl. 22.M Draft Bill, cl. 4(2), adopted in cl. 17(2) as a limitation on the proposed

period of "custodial investigation".80 Id. cl. 8(1).86 ALRC 2, paras 89-93.87Id. Draft Bill, cl. 17(1).88 Id. Draft Bill, cl. 17(2) (a) and (b).89Id. para. 74.90 Id. Draft Bill, cl. 22(1), (2).


time.91 The Bill also permitted the benefits of this provision (and otherprotections, such as access to a lawyer, which are dependent on thatprovision) to be conferred on people not under restraint," but theconcept of restraint remained the key element in triggering the availability of those rights. The utility of that concept must therefore beexamined.

The definition of restraint in the Government Bill failed to avoidsome of the ambiguities which have arisen under the Miranda ruling,including the issue of whether the actions and perceptions of the policeofficer or of the citizen (or both) ought to be relied on and whetherthese ought to be measured by reference to the particular facts at handor by the more objective standard of the reasonable citizen or policeofficer. Incorporation of the phrase "restraint in respect of an offence'"further compounded this complexity by incorporating the concept of thedegree to which an investigation has "focussed" on a particular individual,that is, risen from the routine and general level to the accusatorial andspecific level. The litnitation of the protection to questions and actions"for the purpose of investigating the offence"94 reinforced this interpretation. In America, commentators dealing with lower court decisionshave been unable to reconcile the authorities95 to determine whetherthe perception (real or imputed) of a police officer, of the person "underrestraint", and the objective circumstances of the place and nature of therestrictions constitute cumulative or alternative criteria."

( c) Strengthening the Bill

The Criminal Investigation Bill emasculated the provisions of the draftBill; this in tum was nothing more than a mild protection for somesuspects, irrespective of restraint, and then only for those suspected ofa serious offence. The American Law Institute Model Code, by contrast,imposes a responsibility to inform all suspects that they are under noobligation to co-operate and to refrain from questioning a person at apolice station until he is informed that he may consult with counselorfriends.97 Should it not be made clear to a person requested to attend,or remain at, a police station that he need not do so, then, in addition,a right to be informed of the right to silence, to consult with or have alawyer in attendance, and to suspend questioning until a lawyer isprovided would also be attracted.9,s

91 Criminal Investigation Bill 1977, s. 18(2).92 Id. SSe 20(7), 21 (3), 22(3).93 Id. s. 18(2).941d. s. 18(2) (a) (emphasis added).D:i Ghent, "What Constitutes 'Custodial Interrogation' Within Rule of Miranda

v. Arizona" (1970) 31 American Law Reports 3d 559, 565-696.96 Smith, "The Threshold Question in Applying Miranda: What Constitutes

Custodial Interrogation?" (1974) 25 South Carolina Law Review 699, 709-710,732-735.

97 S. 110.1 (2), (3).98 S. 120.5(2), 120.8(1), (2).


Those provisions are substantially superior to either the original draftclause or the provision of the Bill. The latter substituted a rather obscureand complex set of criteria confining protection to a much narrowerclass-people not free to leave the company of a police officer-thanthose caught by Miranda as suffering a substantial infringement of theirfreedom. And it conferred a more limited guarantee-an oral warning ofa right to consult a lawyer or friend and not to answer questions. TheBill should be amended by at least reinstating the draft clause originallyproposed, or by copying the American Law Institute draft.

(d) Alternative approaches

The Commission Report rejected the various alternative proposalsfor reform. The first, and more radical, suggestion was that advocatedby the Mitchell Committee of South Australia, which proposed settingaside a period of two hours during which it would be lawful for thepolice to detain a person for questioning prior to an arrest. The soleproviso was that the police have a reasonable belief that the personcould assist them with their inquiries."

In submissions put by the authors,! it was contended that, in additionto requirements that people be fully informed of their rights on thestreet, they should be given the election of answering police questionsvoluntarily or electing not to do so, and be requested to sign a pro-formadocument recording that election. People electing to answer questionsmight be questioned for a maximum period of three hours without anyfurther formalities being required. Those not electing to answer questionsvoluntarily might, provided police had reasonable grounds for suspectingtheir involvement in an offence,2 lawfully be questioned for graduatedmaximum periods which would vary with the nature of the offence andthe class of suspect, but only provided that one or more of the meansfor verifying the nature of the questioning was employed (such as taperecording, presence of a lawyer or third party) .3

Subsequently, the Lucas Committee in Queensland recommended theimplementation of a variant of this proposa1.4 The three major variationswere that no restrictions were to be placed on the duration of questioningof people who agreed to answer police questions voluntarily, and, whilethe exercise of the power would be confined to senior police officers, itwould be available only in respect of more serious offences.5 Otherwisethe elements of the scheme would be quite similar in that the powerwould be conditional on employment of tape recording to verify the

99 Mitchell Report 74.1 Carney and Epstein, Ope cit.2Id. paras 77-81. The Criminal Investigation Bill 1977 relied on a somewhat

similar intermediate threshold to set the limits of the name and address power(s. 16).

3 Carney and Epstein, Ope cit. paras 82-86, 160.4 Lucas Report paras 169-188.5Id. para. 188.


nature of questioning and on recognition of a right to legal advice.6

Both proposals would, unlike the Australian Law Reform Commissionmodel, lead to a modification of the nexus established at common lawbetween the criteria governing arrest and powers of detention.

The principal point of departure of these proposals was the methodadopted to close the gap between the law and practice. The Mitchell andLucas Reports and the submissions by the authors took the view thatin this area the law should be modified to accord more closely with theexisting practice of police questioning, subject, however, to the introduction of effective procedures for verifying the nature of the questioningand to reforms aimed at ensuring access to counsel and provision ofinformation on the rights of a person during questioning. The Commissiontook the view that the practice of detaining people for questioning whenthe formal criteria for arrest were not satisfied should not be tolerated.In short, the Commission opted for a strategy of bringing practice intoline with the law.

Neither the Mitchell Committee nor the Commission canvassed therespective merits of the two approaches. Ultimately, each rested on avalue judgment. This is particularly clear in the Commission Report.The Commission very properly stated that "bringing law and practiceinto closer alignment is not an end in itself. The point at which law andpractice meet is at least as important as the fact that they meet ...".7However, after noting that the Mitchell Committee proposal for a periodof pre-arrest restraint for questioning, even where police suspicions fellshort of the standard to justify an arrest, would at least preserve the"law's traditional insistence on formal arrest as the culmination, ratherthan the beginning, of the investigative process", the Commission simplyasserted that compulsory powers of any kind should be reserved to thepoint when the arrest criteria can be satisfied.s In short, it adopted thevalue position inherent in the formal statement of the law of arrest.

The Mitchell Committee also relied on a bald statement of a valueposition. It asserted that a police power of detention for up to twohours' questioning should be provided to meet police requirements.9 Inreturn, however, the detention would be deemed not to constitute anarrest and detainees would be granted a right to have counsel present.10

The Lucas Committee briefly canvassed arguments on this centralissue. Three arguments were put in opposition to the proposal for alimited power of detention for questioning. First, it was argued that themagnitude and extent of the discrepancy between law and practice )ladnot been documented. Secondly, it was objected that the alternativeshad not received adequate public debate and finally, it was contended

6 Ibid.'1 ALRC 2, para. 8.8Ibid. (emphasis added).9 Mitchell Report 74-75.

10Id.75.


that the new power would be abused in that it would be invokedroutinely and the prescribed maximum period utilised to the full extent.11

The first objection runs counter to the weight of evidence received by,and the considered judgment of, recent reports and inquiries.12 In theabsence of credible evidence that the law and practice are in reasonableharmony, this argument cannot be accorded significance. The absenceof a reasonable opportunity for public debate would be a proper groundfor caution, but the recent spate of reports and the discussion of theterms of the Criminal Investigation Bill 1977 reduce the force of thisobjection. The debate therefore turns on the last objection, which inessence questions the validity of the strategy which Ashworth describesas "control throughpermission",13 and on the more fundamental questionof the optimal point for striking a reconciliation between the law andpractice.

We regard these two issues as interrelated and of equal importance.In our view, the Mitchell Committee correctly identified the mostcompelling arguments in favour of the strategy of "control throughpermission" and in support of reform proposals to bring the formallaw into closer conformity with the prevailing practice. The Committeewrote that

it is necessary to stress that no advantage is to be gained by formulating rules of conduct for police investigation . . . which fail totake account of the realities of police work. The inevitable resultof such a failure is formal police compliance with the law butsubstantial evasion of it, which subverts the very values sought tobe protected.14

Acceptance of this view requires that the strategy of reforming the lawto accord more closely with practice be preferred to the Commissionapproach of bringing practice into line with the existing law. However,it does not compel acceptance of the view that existing practice representsthe appropriate point of reconciliation. Nor does it require that acriterion of standard of belief should be the exclusive prerequisite to theavailability of the new power.

It is, we believe, reasonable to select the standard of "reasonablegrounds for suspecting involvement in an offence" as the appropriatepoint of reconciliation between existing law and practice. But, incontrast to the Mitchell and Lucas Committees, which adopted thisstandard (or the Commission which adopted the arrest standard),15 wecontend that it must not stand alone. And the proposed new powermust not be viewed in isolation from the procedures governing voluntaryelection to attend a police interview.

11 Lucas Report paras 180-182.12 E.g. ALRC 2, para. 7; Mitchell Report 73; Lucas Report paras 28, 68; Beach

Report 63-65; Thomson Report para. 2.03; Glanville Williams, Ope cit. 9-11.13 Ashworth, Ope cit. 607.14 Mitchell Report 3, para. 3.2.16Id. 75; Lucas Report para. 188; ALRC 2, paras 8, 93.


As outlined supra we would argue that time limits should also apply tovoluntary contacts. The proposed three hour maximum on such contactsprovides ample time for the "guilty" to confess or for the "innocent"to volunteer an explanation. Questioning beyond that period shouldproperly raise doubts about the continued validity of the assumptionthat the relationship is voluntary. That limit and the procedure for asigned statement recording the election either to volunteer or be subjectto the new power of restraint for questioning should remove theopportunity for the protections afforded under the new procedures(counsel and recording) to be circumvented under the guise of voluntaryco-operation. At the same time the "suspicion" threshold would beenforced, since officers would be required to record brief reasons forforming the requisite belief before a person not electing to volunteermight be detained for questioning.

Finally, we would argue against the introduction of the limitations onthis power proposed by the Lucas Committee. In theory, the case forconfining the power of restraint to senior officers or to "serious" offencesis attractive.16 But, as the Lucas Report itself disclosed, senior officersare not necessarily more sensitive or more responsible in the exercise ofsuch powers. On balance, the inconvenience of such a restriction islikely to be productive of either evasion of the restriction or reversionto the abuse of "voluntary co-operation". It therefore cannot be supported.

The limitation to serious offences is analytically sound, but thearbitrary nature of the division, the absence of a rational system forallocating levels of penalty (or categorising offences as indictable) andthe scope for the controls to be avoided by the device of holding peopleinvolved with serious charges on "non-serious" offences which wouldbe investigated pursuant to the existing unsatisfactory practices, allcombine to render such a partial reform open to excessive levels ofabuse. We would accept the validity of the concern expressed both bythe Lucas Committee and by the Commission17 that the new powersmight be unthinkingly invoked and exercised to the maximum timelimits. This concern can, however, be met by drafting the legislation sothat people must be released as soon as reasonably practical and notlater than the defined maximum time. Selection of time periods whichvary in accordance with the seriousness of the charge and the characteristics of the detainee would also assist.

C. CONCLUSION

1. The limitations of legislative solutions

Pursuit of the objective of equality by and through the law has longbeen accepted as an important function of law reform. But it is onewhich has all too rarely been carried through to ensure that the law in

16 Lucas Report paras 186, 188.17Id. para. 182; ALRC 2, para. 94.


operation reflects the formal equality of the reform proposals. In largepart, such failure of reform proposals can be associated with inadequateattention to the role and mix of discretion and rules in the legislativepackage. Unfortunately, the Criminal Investigation Bill appears to be noexception.

A large proportion of the clauses are directed at ensuring that suspectsreceive full information at an early stage concerning their right tosilence, to receive legal advice or to obtain bail and to be providedwith improved access to facilities necessary to exercise these rights.I8 Asindicated previously, these formal protections are, however, underminedto the extent that they depend on the imperfect methods adopted totrigger the duty to provide that information and to the extent that theyrely on the limited capacity of the less experienced or less self-reliantsuspects to invoke the protections or to avail themselves of the opportunities provided.

The first deficiency in the Bill was brought out very clearly by aGovernment back-bench member, Mr Neil, during the second readingdebate. Commenting on one of several provisions laying down theconditions under which the caution is to be administered he said:

the rights of persons change dramatically at the time a police officerdecides to charge a person. . . . But how does one tell when apolice officer has decided to charge a person? One cannot lookinto his head.... It leaves too much up in the air for the subjectivedecision of the police officer to be taken.19

In a Bill which tends to prefer provisions which clearly delineate thelimits of police powers by setting objective criteria and relies uponcourt supervision to control police powers, such provisions provide asharp contrast. They are predicated on the premise that there are someareas of police conduct which must necessarily be left almost exclusivelyto the responsible exercise of a broad discretionary power, subject onlyto ex post facto review by internal (and possibly also external) policecomplaints procedures or scrutiny by the courts in the course of theexercise of the discretion to admit or exclude evidence.20

It is rather unfortunate that the debate has polarised on this questionwith the advocates of objective rules marshalled on one side and theadvocates of unregulated (and therefore perhaps also unthinking)exercise of discretion on the other. For there is some force in the arguments of each side. No doubt, as Mr Neil contends, it is difficult totolerate a situation where the law might permit substantial rights to be

1,8 Criminal Investigation Bi111977, SSe 18, 20-22, 26.19 H.R. Deb. 1977, Vol. 105, 1493.20 E.g. the discussion by the High Court of the effect of a failure by the police

to permit a suspect to consult his lawyer prior to the commencement of a policeinterview and the omission to provide the suspect with a copy of the record ofinterview subsequently obtained: Driscoll v. R. (1977) 51 A.L.I.R. 731, 734 perBarwick C.l., 741 per Gibbs l. See also n. 5 supra p. 284.


granted or withheld according to the subjective state of mind of a policeofficer. Inevitably the state of mind must prove to be virtually impossibleto reconstruct after the event. On the other hand, there is persuasion inthe argument that the variations between individual investigations are sogreat, and the factors which finally tip the balance in favour of a decisionto lay a charge so intangible, that discretion is not only essential as amatter of policy to the smooth operation of the process, but, on purelypragmatic grounds, this stage of the process is too amorphous to becapable of reduction to objective criteria easily monitored by an externalagency.

While much of the criticism directed at the Bill may have made anunduly simplistic assumption that a legislative solution might be foundto overcome the problem, it does not follow that the concern expressedabout the excessive room provided for subjective discretionary action ismisplaced. On the contrary, the objective of promoting the responsibleexercise of discretionary powers ought properly remain uppermost inthe minds of reformers and commentators alike. Other approaches havebeen advocated which would permit discretion to be exercised within theconfines of the rule of law by finding the middle ground betweenunfettered discretion and overtight regulations. Davis, for example,has suggested various techniques which might achieve this "structuring"of discretion and thus provide some guarantee that it will be exercisedresponsibly, free of individual prejudice or unjustifiable discrimination.21

Seven techniques were suggested, including the introduction by thedecision-makers of open plans, policy statements and rules.22

In the present context, the implementation of these proposals wouldrequire the police force to prepare and circulate to the public descriptivematerial setting out the policy of, and the purpose to be served by,investing the police with a discretion. For example, it would specify thepoint at which charges will be laid and the purpose of the variousprotections triggered by that decision. In addition, there might be fulldocumentation of the procedural framework within which the discretionto charge is exercised, together with any internal directives for theguidance of individual police officers.

Revision and publication of Police Standing Orders on this subjectwould go part of the way towards achieving this objective. The introduction of specific training programmes to assist new officers to acquireexperience in the correct exercise of this discretion, together with theinstitution of internal procedures for monitoring the day-to-day administration of these provisions, would also do much to strike a fair compromisebetween the two more extreme positions. The Bill itself cannot becriticised for failing to achieve that balance, but it is perhaps unfortunatethat the Report on which the Bill is based gave only passing attention to

21 Davis, Discretionary Justice (1969) 54-55, 97-98.22 Id. 98.


these matters and that debate in the Parliament and the public arena hasto date overlooked these aspects. Debate on methods of structuringdiscretion is particularly pertinent to the consideration of measures toreduce the extent of extra-legal restraint, particularly the proposals fora police summons power which would not be tied to existing criteriafor arrest.

Although the original proposals of the Commission and those of thepresent authors pursued fundamentally different strategies, in that theCommission opted for improving existing powers of arrest and courtsummons while we prefer to recommend a series of new alternatives toarrest or summons powers, both schemes leave considerable scope fordiscretion and adopt similar methods for regulating that discretion. Atthe statutory level, both schemes eschew the enactment of rules unlessthey are absolutely necessary, preferring instead to rely on some of themethods to "structure" discretion. Following the American Law InstituteModel Code, we would advocate enactment of regulations which encouragepolice officers to use the alternative procedures rather than existingarrest/summons powers.23 The Commission also proposed a broad powerto issue regulations24 and in the related area of bail recommended anexperimental trial of an objective "points system" as a means of improvingthe administration of this discretionary power.25

The major attraction of such an approach is its flexibility. It permitsseparate methods to be applied at each stage of the investigation andalso permits the degree of structuring to be intensified or relaxed overtime in response to experience gained under the new system. Proceduresdesigned to be exercised on the street should be free of formal requirementswhich would complicate the practical administration of the powers. Onthis count, the method adopted by the Californian legislation whichrequires an officer to record his reasons for adopting existing arrest/summons powers and for rejecting a police street summons seems to bethe most desirable approach.26

At the point of admission to a police station, the disincentives posedby a requirement of documentation or a similar formality become lesspressing because facilities exist for an officer to comply with suchrequirements without undue inconvenience. At this stage, the interestof the citizen in avoiding unnecessary restraint or inconvenience becomesmore acute, thus increasing the pressures to promote a speedy completionof the investigation and to prefer release subject to issuance of asummons to continued attendance at the station. The case for adopt~g

23 A.L.I. Model Code, s. 120.2(4), Commentary 340-341.24 Criminal Investigation Bill 1977, s.76.25 ALRC 2, para. 180. The police officer would administer to the arrested person

a prescribed questionnaire to test on a point scale the probability of the latter'sabsconding. The object is to bring objectivity and system to the exercise ofdiscretion in granting bail.

26 California Penal Code (1974) Ch.SC, s. 8S3.6(a)-(j).


an objective points system at this stage is correspondingly much morecompelling. These more flexible arrangements for structuring discretionmight be preferred to the scheme of the Bill which leaves these importantnlatters entirely at large.

2. An overview

The issues canvassed in this article echo the two questions originallyposed by Kadish in 1962 when he wrote:

A primary issue to be faced in resolving the dilemma of makingdiscretionary judgments in the administration of criminal justicecompatible with the values of the rule of law is to determinespecifically the areas of choice in which primary reliance mayacceptably (or must) be vested in the discretionary judgments ofpublic officials.... The second issue to be faced is the developmentof structures and arrangements which tend to maximize in particularareas of choice the guidance and control of law without selfdefeating rigidity and, at the same time, the wisdom and flexibilityof individualized judgment without oppression or folly.27

Kadish made two other telling comments; first, pointing out that thesetwo issues merely illustrate "an aspect of the larger challenge to ademocratic community of making accountable those who exercise powerin the name of the state"28 and secondly, rejecting the argument thatdiscretion will necessarily be more sensitively exercised if placed in thehands of "experts".29 This last remark isolates the controversial issue.

The choice is between the view that faith must be placed in the ability,expertise and honesty of frontline decision-makers,30 bolstered by theargument that incursions into that autonomy would be counter-productivesince they would create pressures for more arbitrary decisions and leadto the re-emergence of the covert exercise of discretionary powers inanother part of the system,31 and the view that a policy of non-interferenceconceals malfunctions, arbitrariness and injustice, or avoids the necessityto grapple with hard or complex policy issues.32

Neither position provides an acceptable evaluative precept. There issome substance in each argument, and some force to the suggestionthat the point of reconciliation may differ according to the context. Insome situations, the discretion may be susceptible to definition andstructuring by administrative techniques. Illustrative examples of the

27 Kadish, "Legal Norm and Discretion in the Police and Sentencing Processes"(1962) 75 Harvard Law Review 904, 929.

28 Id. 929-930.29 Id. 926-929.30 Wexler, "Discretion: The Unacknowledged Side of Law" (1975) 25 University

of Toronto Law Journal 120.31 Rosett, "Discretion, Severity and Legality in Criminal Justice" (1972) 46

Southern California Law Review 12, 19.32 Vorenberg, "Narrowing the Discretion of Criminal Justice Officials" [1976]

Duke Law Journal 651, 652.


application of these techniques to improve the quality of discretionarydecision-making by police have been canvassed in the final part of thisarticle. In most cases, however, clear, objectively-framed rules arerequired. To ensure that such basic principles as speedy conclusion ofinvestigations, minimal extension of powers beyond the group ofgenuine suspects, maximum reliance on co-operation, and accuracy andintegrity of investigations are honoured in practice, we contend thatpolice powers must be re-drawn and refurbished.

The major part of this article has been concerned with evaluatinglegislative proposals which might supply the clearly framed rules to giveeffect to these principles in two areas of police powers-dealing withpeople on the street and conduct of custodial investigations. The suggestedstrategies, taken in combination, would, we believe, establish an acceptable balance between rule and discretion and, by closing the gap betweenlaw and practice, make the exercise of police power more accountable.