Williams v The Queen

Williams v The Queen - [1986] HCA 88 - HCA 1984 case summary — Zoe

[4]

In the early hours of the morning of 17 May 1984 police at Scottsdale, a town in the north of Tasmania, received information that the applicant had been seen in hotel premises at Scottsdale apparently in the act of committing a burglary. The applicant fled from the scene in a motor vehicle and was eventually arrested after his car had run off the road and he had attempted to escape into the bush. The arrest was made at about 6 a.m. by Constable Gibson who told the applicant that he was satisfied that he was responsible for several burglaries in the northern area of Tasmania. The applicant was then taken to the police station at Scottsdale and was kept there until he could be interviewed by officers of the C.I.B. who had to come from Launceston. Those officers, Detective Sergeant Otley and Detective Canning, arrived at about 8.45 a.m. Sergeant Otley told the applicant that he wanted to speak to him about matters that had occurred at Scottsdale that morning or on the evening before. In the circumstances the learned trial judge concluded that the applicant was taken into police custody only for those crimes which he had committed at Scottsdale - namely, the crimes the subject of counts 27 to 29 in the indictment. The applicant was later taken in a police vehicle to Launceston, where he arrived at about 11 a.m. After he had been shown a number of police reports, he indicated that he had been involved in a number of offences during the previous month in other parts of Tasmania - these were the crimes that were the subject of counts 1 to 26. At about 1.10 p.m. the detectives commenced to conduct a series of interviews with the applicant and to make records of the interviews, in the course of which the applicant confessed to the various crimes. The interviews, which related to different counts, were conducted in no particular order. The first record related to counts 1 and 2 and was completed by about 1.45 p.m.; the second related to counts 27 to 29 (the Scottsdale matters) and was completed by about 3 p.m. None of the records was signed. The last of the interviews concluded at about 8.30 p.m. At about 9.03 p.m. the applicant was taken before a police inspector to whom he confirmed the correctness of each of the records of interview. He was taken before a magistrate at 10 a.m. on the following day. Due to some problem with the court administration he was not dealt with until 2.15 p.m. on that day, but that is not material. The learned trial judge took the view that an accused cannot be held in custody for the purpose of enabling the police to conduct inquiries into matters other than those in respect of which he has been arrested. He concluded that in the circumstances the applicant was unlawfully detained at Launceston after such time as an investigation into the crimes committed at Scottsdale could reasonably have been completed and the documents necessary to have him brought before the court on charges relating to those crimes could have been prepared. He said that that time was reached at 2.15 p.m. on 17 May and that the applicant should then have been brought before a magistrate. He had no doubt that a magistrate would have been available at Launceston at that time.

[9]

Nevertheless, what is reasonably practicable in a particular case is a question of fact. The answer to that question will depend on, amongst other things, the time when, the place in which and the conditions under which the arrest was made. It will be necessary to consider when and where a justice could have been found, whether police officers and transport were available and how long it would reasonably have taken for the necessary paperwork to be completed. Those, however, are not the only considerations. A police officer who has arrested a person reasonably suspected of having committed a crime must be allowed time to make such inquiries as are reasonably necessary either to confirm or dispel the suspicion upon which the arrest was based. It will not be improper to question the arrested person (Hough v. Ah Sam [10] ) and it may be only fair to do so, although it will be improper to persist in questioning such a person after he has indicated that he does not wish to answer any more questions: Reg. v. Ireland [11] . The investigation necessary to be made before an arrested person can be brought before a justice may include searching his house, taking him to persons who may support or disprove an alibi and conducting an identification parade: see Dallison v. Caffery [12] . More recent cases in England, under different statutory provisions, have supported the view that practicability is "a slightly elastic concept" which has to take account of an unavoidable delay in obtaining sufficient evidence to charge the arrested person: see Reg. v. Sherman and Apps [13] ; Reg. v. Houghton and Franciosy [14] ; cf. Malcherek and Steel [15] . Professor Zander in The Police and Criminal Evidence Act 1984, (1985) p. 53, has said that "the police tended to interpret the phrase "as soon as practicable" [in s. 43 of the Magistrates' Court Act 1980 U.K.] to mean "as soon as we have decided whether to charge him", rather than "as soon as a court can be found that is sitting" ". Neither of those phrases would correctly express the meaning of the words "as soon as is practicable" in s. 34A(1) of the Justices Act Tas.. Although a justice may be found to be available, it may not be practicable to bring the arrested person before him until the necessary inquiries and paperwork have been completed; on the other hand, the discretion which the police must exercise is not unfettered and does not allow them to hold an arrested person in detention until they decide to charge him if the period of detention exceeds what is reasonably necessary to make inquiries to enable charges to be laid, to prepare the necessary papers and to bring the arrested person before the justice. The power given by the common law, and by statutes in the form of those in force in Tasmania, to arrest a person reasonably suspected of having committed a crime is given for the purpose of enabling that person to be brought before a justice as soon as reasonably practicable so that he may be dealt with according to law. If the arrested person is detained for any longer period or for any other purpose the detention will be an unlawful infringement of his civil liberties.

[12]

The learned trial judge misdirected himself if he thought that the fact that the applicant was questioned about matters other than those for which he was arrested made his detention unlawful. It is, however, unnecessary to consider whether he nevertheless was correct in concluding that the applicant was not brought before a justice as soon as was practicable, for it seems clear that when he came to exercise his discretion with respect to the admission of the confessions, he applied too strict a test. The case was not one in which it was unfair to use the confessions against the applicant, even if it was right to say that they were obtained improperly or unlawfully and in that sense unfairly. This distinction was explained by Dawson J. in Cleland v. The Queen [17] : the unfair methods by which evidence has been obtained may not affect the reliability of the evidence, and in consequence it may not be unfair to admit it against the accused. In that case the Court discussed the discretion which is allowed to the courts in Australia (but not in England) to exclude evidence which has been unlawfully or improperly obtained. The majority of the Court made it clear that it will only be in a most exceptional case that a voluntary confession, which it would not be unfair to admit against the accused, will be rejected on the ground that it was illegally obtained [18] . A similar view had been expressed by Brennan J. in Collins v. The Queen [19] , in a passage approved in Cleland v. The Queen [20] . The learned trial judge thought it clear that he should exclude the confessions once they were shown to have been unlawfully obtained. That approach was erroneous; the fact that a confession was unlawfully obtained does not lead to the automatic rejection of the evidence, although evidence of the confession may, most exceptionally, be rejected for that reason by the judge in the exercise of his discretion. In the present case, the confessions were made voluntarily, and the applicant confirmed their correctness to a police inspector, and there is nothing that suggests that their reliability was affected by the fact, if it was a fact, that the applicant was not brought before a justice as soon as was practicable.

[14]

Since the learned trial judge exercised his discretion on a wrong principle, the Court of Criminal Appeal would have been entitled to review the exercise of that discretion if an appeal had lain to that Court. And since the members of the Court of Criminal Appeal in Tasmania are in a much better position than are the members of this Court to know whether local conditions in Tasmania are such as to require the rejection of confessional evidence for the purpose of discouraging unlawful conduct by the police, I would be disposed to defer to their decision upon such a question. However, the applicant had been acquitted, and under s. 401(2)(b) of the Criminal Code leave could be granted to the Attorney-General to appeal only "on a question of law alone". The learned members of the Court of Criminal Appeal considered that there was at least one question of law alone which arose in the present case, namely, whether the learned trial judge, in ruling that the records of interview should be excluded, misdirected himself as to the proper application of s. 34A(1) of the Justices Act. However, that question did not stand alone - ultimately the question was whether the confessions were rightly rejected, and that depended on the making of a discretionary judgment which depended in part on the facts of the case. In Reg. v. Jenkins [21] , Crisp J. correctly pointed out that a "question of law alone" does not include a question of mixed fact and law and went on to say that "there would seem to be great difficulties in the way of entertaining an appeal by the Crown against the exercise of a judicial discretion where the question involved is not so much the existence of a discretion but the question of its exercise in relation to the facts of a particular case". In the present case the Court of Criminal Appeal acted upon the view taken in certain Canadian cases and accepted by Nettlefold J. in Reg. v. Jessop [22] , that a conclusion of mixed law and fact may be challenged under a provision in the terms of s. 401(2)(b) where that conclusion proceeds from a misdirection of law, or, as Neasey J. put it in the present case, there is "a question of law alone" if the question of law can be stated and considered separately from the facts with which it may be connected in a given case. In the present case the grounds stated by the Attorney-General in the notice of appeal were (1) that the learned trial judge erred in law in refusing to admit as evidence for the prosecution seven records of interview, and (2) that the learned trial judge erred in law in exercising a discretion in refusing to admit as evidence for the prosecution the seven records of interview. These two grounds raised one question the answer to which, as has been said, depended in part on the facts of the case; neither ground raised a question of law alone. In the circumstances the Court of Criminal Appeal had no power to grant leave to appeal. In any case, the appeal was not from the decision of the learned trial judge on the voir dire but from the acquittal. The prosecution, having received an adverse ruling on the voir dire, offered no evidence on the trial. An acquittal in those circumstances was inevitable and if an appeal had been available it would necessarily have been dismissed.

[18]

In the circumstances set out in the judgment of the Chief Justice, the Attorney-General sought and obtained leave to appeal against the acquittal of the applicant on thirteen counts of burglary and thirteen counts of stealing. The appeal was allowed, the verdicts of acquittal were set aside and a new trial was ordered. The learned trial judge (Brettingham-Moore J.) had excluded confessional statements relating to those twenty-six matters made by the applicant to police officers during interviews which occurred after his arrest for three other offences which the applicant had committed at Scottsdale. He had been arrested at about 6 a.m. on 17 May 1984 near Scottsdale and his Honour found that "the completion of the necessary investigation about the Scottsdale matters and the laying of appropriate charges and the court documentation could have reasonably been carried out in time for the accused Williams to have been brought before the Court at 2.15 p.m. on 17 May 1984". The interviews about the three Scottsdale matters and the other twenty-six matters were not completed until about 8.30 p.m. on 17 May, and the applicant was then charged with the twenty-nine offences. He was brought before the Magistrate's Court in Launceston the next day. His Honour held that the police were not entitled to detain the applicant for the purpose of conducting inquiries "except in relation to the Scottsdale matters". As the applicant could have been brought before a court and charged with the Scottsdale matters at 2.15 p.m. on 17 May, his Honour held that his detention after that time was unlawful. In the exercise of his discretion, his Honour excluded evidence of the interviews with respect to the twenty-six matters - i.e., the matters other than the Scottsdale matters. In fact the interviews before 2.15 p.m. on 17 May related to some of the twenty-six matters and the interviews with respect to the Scottsdale matters occurred after that time, but the discretion to exclude was not based on the time when the particular interview occurred: it was based on the unlawfulness of keeping the applicant in police custody in order to question him on the twenty-six matters. The principal factor which led his Honour to reject evidence of the interviews with respect to the twenty-six matters was his view that s. 34A(1) of the Justices Act 1959 Tas. had not been complied with and that the applicant had thus been "unlawfully detained about twenty hours longer than he should have been". This view led his Honour to hold that it would be unfair to the applicant and contrary to public policy to admit the confessional evidence relating to the twenty-six matters. The appeal from the acquittal which followed upon his Honour's ruling - the Crown offered no other evidence - was allowed because the Court of Criminal Appeal held that his Honour had misconstrued the requirement of s. 34A(1). That sub-section reads:

[43]

the statute, like the common law, authorises him only to take the person so arrested before a justice to be dealt with according to law, and to do so without unreasonable delay and by the most reasonably direct route: Clarke v. Bailey [30] . Any detention which is reasonably necessary until a magistrate can be obtained is, of course, lawful, but detention which extends beyond this cannot be justified under the common law or statutory power. Thus, it has been held that if in the course of an arrest which is otherwise for a lawful purpose, the arresting constable takes the arrested person to some place to which it would not be reasonable and proper to take him in the course of bringing him before a magistrate, for the purpose of searching him there, the detention in that place and the search are unauthorised and therefore actionable His Honour spelt out the limitation on the police officer's authority to keep a person in custody for the purpose of interrogation. He said [31] : If a person has been arrested, and is in process of being brought before a magistrate questioning within limits is regarded as proper in New South Wales ; but a police officer has no more authority to restrain the liberty of a suspected person for the purpose, not of taking him before a magistrate, but of interrogating him, than he has of restraining the liberty of a person who may be supposed to be capable of supplying information as a witness. His Honour speaks not of authority to arrest but of "authority to restrain the liberty" of the person in custody. The purpose of interrogation is not only insufficient to warrant an arrest; it is insufficient to warrant the retention of the arrested person in the custody of the arresting officer. The authority of Bales v. Parmeter [32] led Maxwell J. to say in Ex parte Evers; Re Leary [33] : It is now thoroughly well established that arrest and imprisonment cannot be justified merely for the purpose of questioning 1. (1935) 35 S.R. (N.S.W.) 182, at p. 189. 2. (1933) 33 S.R. (N.S.W.) 303. 3. (1935) 35 S.R. (N.S.W.), at p. 190. 4. (1935) 35 S.R. 182. 5. (1945) 62 W.N. (N.S.W.) 146, at p. 147.

[64]

Practicability is obviously a slightly elastic concept which must take account of the availability of police manpower, transport and magistrates' courts. It will also have to take account of any unavoidable delay in obtaining sufficient evidence to charge, but this latter factor has to be assessed in the light of the power of the police to release on bail conditioned by a requirement to return to the police station when further inquiries have been completed and a power to release and re-arrest when the evidence is more nearly sufficient. Any such release may involve a risk that the arrested person will abscond, commit further crimes or interfere with witnesses, but this risk has to be balanced against the vital consideration that no man is to be deprived of his liberty save in accordance with the law. "As soon as practicable" still means "within about 48 hours at most". (Emphasis added.) In Clark , Neasey J. found these considerations (apart from the reference to forty-eight hours) "particularly useful". With respect, the approach taken in Reg. v. Holmes [61] departs from the principle expressed in Bales v. Parmeter and Reg. v. Banner. The English courts have now formally abandoned the principle. In Holgate-Mohammed v. Duke [63] , it was held that an arrest on reasonable suspicion of guilt of an arrestable offence may be lawfully made for the purpose of using the ensuing period of detention to dispel or confirm the suspicion by questioning of the suspect or seeking further evidence with his assistance. That proposition is opposed to the view which has been taken of the common law in this country. The jealous protection of personal liberty accorded by the common law of Australia requires police so to conduct their investigation as not to infringe the arrested person's right to seek to regain his personal liberty as soon as practicable. Practicability is not assessed by reference to the exigencies of criminal investigation; the right to personal liberty is not what is left over after the police investigation is finished. 1. [1981] 2 All E.R. 612. 2. [1981] 2 All E.R., at p. 616. 3. [1981] 2 All E.R. 612. 4. [1984] A.C. 437, at p. 445.

[95]

But suspicion that a person has committed a crime cannot justify an arrest except for a purpose which that suspicion justifies; and arrest and imprisonment cannot be justified merely for the purpose of asking questions. No person is entitled to impose any physical restraint upon another except as authorised by law. This rule applies as much to police officers as to any one else, although the law allows them somewhat greater powers in this respect than it allows to other citizens. Where the imposition of physical restraint is authorised by law it may be imposed only for the purpose for which it is authorised it may be imposed by a police officer in the course of arresting and bringing before a magistrate a person for whose arrest no warrant has issued, but whom the officer, with reasonable cause, suspects of having committed a crime or an offence punishable whether by indictment or summarily under any Act. This authority existed with respect to felonies at common law. It was extended to other offences by statute - now s. 352(2)(a) of the Crimes Act 1900. But the statute, like the common law, authorises him only to take the person so arrested before a justice to be dealt with according to law, and to do so without unreasonable delay and by the most reasonably direct route: Clarke v. Bailey [7] . Any detention which is reasonably necessary until a magistrate can be obtained is, of course, lawful, but detention which extends beyond this cannot be justified under the common law or statutory power. Thus, it has been held that if in the course of an arrest which is otherwise for a lawful purpose, the arresting constable takes the arrested person to some place to which it would not be reasonable and proper to take him in the course of bringing him before a magistrate, for the purpose of searching him there, the detention in that place and the search are unauthorised and therefore actionable [7] . And Jordan C.J. answers the very question posed in this case [8] : If a person has been arrested, and is in process of being brought before a magistrate questioning within limits is regarded as proper in New South Wales - indeed, within very narrow limits, it is regarded as proper in England; but a police officer has no more authority to restrain the liberty of a suspected person for the purpose, not of taking him before a magistrate, but of interrogating him, than he has of restraining the liberty of a person who may be supposed to be capable of supplying information as a witness. 1. (1935) 35 S.R. (N.S.W.) 182, at pp. 188-189. 2. (1933) 33 S.R. (N.S.W.) 303. 3. (1933) 33 S.R. (N.S.W.) 303. 4. (1935) 35 S.R. (N.S.W.), at p. 190.

[103]

In my view, the only question (and it was one for the judge, not for the jury) was whether the defendant acted reasonably. It cannot be credibly suggested that Dallison would have been brought before a magistrates' court or bailed by the police at Dunstable one moment earlier if he had been taken direct to Dunstable. This, of course, is a relevant consideration. Seeing that he was protesting his innocence, it was in Dallison's own interest, and it was, in part at least, at his request, that he was taken to his place of work to see if his alibi was verifiable, for had it been credibly confirmed, he would have been released. He suffered no harm by being taken to his own house, and it was in his own interest, if he was innocent, that the search of his house, which he knew would have negative results, should take place without delay and in his presence. Furthermore, the defendant as a police officer had a duty to seek to recover the proceeds of the theft and for that purpose to search the house of the suspected thief as soon as possible. In all the circumstances the judge was quite right in holding that he acted reasonably. Dallison v. Caffery was not, therefore, a case in which there was any actual delay in bringing an arrested person before a justice or, if there was, it was not solely for the purpose of enabling the police to carry out their investigations having regard to the interest of Dallison in, and his consent to, the course taken. Nevertheless it is advanced as authority for the proposition that a policeman may delay bringing an arrested person before a justice in order to further his investigations into the commission of the offence in question provided his conduct is in all the circumstances reasonable. It may be asked in passing whether the conduct must be reasonable from the point of view of the person deprived of his liberty or from the point of view of the policeman under a duty to investigate the crime, for they may be quite different points of view, or whether what is reasonable represents some kind of compromise between the competing interests. 1. [1965] 1 Q.B., at p. 374.

[110]

It would be unrealistic not to recognize that the restrictions placed by the law upon the purpose for which an arrested person may be held in custody have on occasions hampered the police, sometimes seriously, in their investigation of crime and the institution of proceedings for its prosecution. And these are functions which are carried out by the police, not for some private end, but in the interests of the whole community. Instances of legislative modification of the common law in recent times may be seen as reflecting a need which the common law no longer meets. Nevertheless, we are not persuaded that the common law can be or ought to be modified in a way which appears to have been accepted in England following the decision in Dallison v. Caffery. That is not how the law has developed in this country. In the absence of precise limits upon the suggested power of the police to detain an arrested person for questioning, it would be an unsatisfactory development, swinging altogether too far, in our view, in favour of increased investigative powers at the expense of individual freedom. There is no real protection for the individual in any formula which says that the police may not detain an arrested person longer than is necessary to enable them to prefer a charge. Obviously there must be reasonable time to formulate and lay appropriate charges for the purpose of bringing a person before a justice. The common law allows time for this and it is covered by the words "as soon as is practicable". But it is something quite different to say that the police should be able to detain an arrested person to enable them, by further investigation, to gather the evidence necessary to support a charge. Such a power, without limits, might in some cases, particularly where the evidence is complex, be used to detain persons for longer periods than could be justified having regard to their basic right to freedom - a view which is reflected in the time limits provided in the legislative provisions to which we have referred.

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