Criminal Investigation & Procedure in Victoria - (Pages 321 to 360) PDF

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Chapter 5: Questioning

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suspect. It really consists of two parts. First the investigating official informs the suspect of his or her right to remain silent. Second, the investigating official warns the suspect that if the suspect chooses to waive his or her right to silence and say or do anything, then he or she will be exposed to the risk that what is said or done may be used in evidence against him or her. (CA s 464A does not apply to a person who is in custody for breach of parole: Corrections Act 1986 (Vic) s 78D.) If a police interview is suspended, then upon resumption the caution should be given again, as a matter of fairness and prudence (VPM:P&G “Interviews and Statements” s 2.2). At common law the obligation to provide the caution arises when the police have sufficient evidence to justify charging the suspect (Van der Meer v The Queen (1988) 62 ALJR 656 at 661; 35 A Crim R 232 at 240; [1988] HCA 56 at [26] (Mason J)). The caution should be given even if the police do not want to lay a charge at that stage (R v Trotter (1992) 58 SASR 223 at 238).

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The right to silence was considered at [5.80]. Section 464J(a) expressly recognises the right and states that “[n]othing in this subdivision [namely (30A)] affects … the right of a person suspected of having committed an offence to refuse to answer questions or to participate in investigations except where required to do so by or under an Act or a Commonwealth Act”. Investigators should not question a suspect as to why he or she refuses to answer questions. Barr J in R v Hoi (unreported, New South Wales Supreme Court, 18 April 1997) stated (at p 2) that: [p]ersons being interrogated are not required to explain to police why they choose not to answer questions. To permit questions and answers consisting of and based upon such requirements would be, in my opinion, to permit an invasion of the right not to answer questions.

If a suspect refuses to answer questions, then in principle the questioning should not continue (R v Ireland (1970) 126 CLR 321 at 333; [1970] HCA 21 at [23]; Harris v Samuels (1975) 5 SASR 439 at 452). If the questioning continues and the suspect eventually makes admissions, those admissions could be held to be inadmissible on the basis that the admissions were extracted by coercive and unfair questioning. However, it is not always clear that a suspect who has initially answered some questions, but who then becomes uncooperative after a certain point, has definitively refused to answer any more questions. In such cases it will be harder for the defence to argue that the trial judge’s discretion should be exercised to exclude the whole or even parts of the ROI. (See R v Robinson [1998] 1 VR 570 at 580–581.) Where a person exercises the right to silence and refuses to answer police questions, this is often referred to as a “no comment” interview, though there is no formula for the words a person must use to convey to the investigating official that he or she is exercising that right. Very importantly, juries should be instructed not to infer guilt from an accused’s silence when being

Christopher, Corns. Criminal Investigation & Procedure in Victoria, Thomson Reuters (Professional) Australia Pty Limited, 2018. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/vu/detail.action?docID=5602214. Created from vu on 2020-08-03 01:00:46.

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questioned (Petty v The Queen (1991) 173 CLR 95 at 99; [1991] HCA 34 at [3] (Mason CJ, Deane, Toohey and McHugh JJ)). If, however, the suspect exercises the right to silence selectively (ie answers some questions but not others), then may a consciousness of guilt be inferred by the jury? Comments by Windeyer J in Woon v The Queen (1964) 109 CLR 529 at 542; [1964] HCA 23 at [4] seem to indicate that such an inference is permissible. However, in R v McNamara [1987] VR 855 at 868, in a unanimous judgment of the Full Court, it was held that Woon does not in fact provide authority for that proposition, and the Full Court reaffirmed that no adverse inference may be drawn from the mere fact that the accused answered some questions and not others. (See also Yisrael v District Court (NSW) (1996) 87 A Crim R 63 at 67.) In any case, it now appears that EA 2008 settles this issue: s 89(1)(a) prohibits adverse inferences from a refusal to answer “one or more questions”. R v Kerr & Anor (Ruling No 1) [2015] VSC 64 at [127], Forrest J held the police had breached CA s 464A(3) by not providing a full and proper caution. His Honour nevertheless admitted the admission pursuant to EA 2008 s 138. Inform suspect of right to contact lawyer, friend or relative

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[5.320] A further obligation to be met before an investigating official may question or investigate a person is that he or she must, under CA s 464C(1(a)(b)), inform the suspect that he or she “may communicate or attempt to communicate with a friend or relative to inform that person of his or her whereabouts” and “may communicate with or attempt to communicate with a legal practitioner”. The police can refer here to simply “a lawyer” (CA s 464C(1) (b)). Further, the investigating official must defer the questioning and investigation for a reasonable time to allow such communication to be attempted (s 464C(1)) and must also provide facilities for that to occur (s 464C(2)). The consequences of a breach of s 464C are discussed at [5.560]. A breach of s 464C can result in the exclusion of admissions made by the accused (R v Dunlop [2016] VSC 676 at [5]). The Victoria Police, the Law Institute of Victoria and the Victorian Bar Council have produced guidelines in respect to the role of a lawyer attending a police station to assist a person in custody (see VPM “Persons in Custody: Guidelines for Police and Legal Practitioners at Police Stations”.) In relation specifically to the communication with a lawyer, the conversation should, as far as practicable, be allowed to occur without being overheard by the investigating official (s 464C(2)(b)). The right to communicate belongs to the suspect. The right is not fulfilled if the investigating official does the communicating on the suspect’s behalf (R v Crupi (1995) 86 A Crim R 229 at 235). The importance of s 464C is discussed by the High Court in Pollard v The Queen (1992) 176 CLR 177; [1992] HCA 69, and is discussed further at [5.660].

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However, s 464C provides for exceptions to the requirement to defer the questioning or investigation to enable these communications to be attempted. There need be no deferral if the investigating official believes on reasonable grounds that “the communication would result in the escape of an accomplice or the fabrication or destruction of evidence” or “the questioning or the investigation is so urgent, having regard to the safety of other people, that it should not be delayed” (s 464C(1)(c) and (d)). In these limited circumstances, the investigating official can question the suspect after he or she has been cautioned without having to allow the suspect to communicate or attempt to communicate with another person. In R v Frugtniet [1999] 2 VR 297; [1999] VSCA 58 the Court of Appeal held (at 318; [56]) that it was permissible for the police not to allow the suspect to contact his office or his wife at the time he was arrested because to do so would probably result in the destruction of evidence (ie the printer and fake travellers cheques). In R v Saxon [1998] 1 VR 503 at 516, the Court of Appeal held it was permissible for the police not to permit Saxon to contact his girlfriend on the basis that key paperwork could be destroyed. In R v Kerr & Anor (Ruling No 1) [2015] VSC 64 at [127], Forrest J held the police had breached CA s 464C by not deferring all questioning once the suspect had stated he wished to communicate with a lawyer. His Honour nevertheless admitted the admission pursuant to EA 2008 s 138.

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(Section 464C also applies to questioning under s 464B(5) and to questioning under s 464B(11), unless Crimes Act 1914 (Cth) Pt IC applies.) Also, CA s 464C(4) states the requirements under s 464C do not apply to questioning and investigations for offences under Road Safety Act 1986 (Vic) s 49(1) (ie drink driving offences). For federal matters the defendant must be advised that they have a right for the lawyer to be present during the questioning (see Crimes Act 1914 (Cth) s 23G(1)(b)). Provide interpreter

[5.330] Section 464D(1) requires that if the person in custody “does not have a knowledge of the English language that is sufficient to enable the person to understand the questioning”, then the investigating official must arrange for an interpreter and defer the questioning or investigation until the interpreter is present. Similarly, EA 2008 s 139(3) provides that the cautioning of a suspect must be “given in or translated into a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately”. Under the VPM, the police must obtain an interpreter for any person who appears or claims to have difficulty understanding English, presents an “interpreter card” (indicating that he or she requires an interpreter) or is deaf or mute (VPM:P&G “Interviews and Statements”: s 6). Interpreters can be

Christopher, Corns. Criminal Investigation & Procedure in Victoria, Thomson Reuters (Professional) Australia Pty Limited, 2018. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/vu/detail.action?docID=5602214. Created from vu on 2020-08-03 01:00:46.

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obtained from the Telephone Interpreter Service or the Victorian Interpreter Translation Service.

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The requirement in CA s 464D is put objectively; it is not the investigating official’s belief that an interpreter is needed that forms a pre-condition. Similarly, there is no need for the suspect to ask for an interpreter. This puts the onus on the investigating official to turn his or her mind to whether the suspect in fact comprehends the questioning, and to ensure that he or she is provided with an interpreter if needed. The rationale for this requirement is fairly obvious: the suspect must actually understand his or her rights and what is happening to him or her. It is not sufficient for the investigating official simply to read out the rights regardless of the suspect’s comprehension. If the suspect does not understand English, then the process is a sham and a court could exclude any admissions made. This is well illustrated by the ruling of Coldrey J in R v Li [1993] 2 VR 80. Li was in custody in relation to a murder. He was born in East Timor in 1974 and emigrated to Australia when he was eight years old. Until then, he had not received any formal education and did not speak English. Li was aged 17 years 4 months at the time of the police interview. On a voir dire, Coldrey J ruled that while Li had a basic grasp of English, he did not understand abstract concepts (at 83) and that he did not understand that he had a choice whether to answer the police questions (at 87). His Honour accordingly excluded evidence of the interview on the basis that it was not voluntary (at 87) and that the trial would be unfair if the interview was admitted into evidence (at 88). (Section 464D also applies to questioning under s 464B(5) or any questioning under s 464B(11) unless Crimes Act 1914 (Cth) Pt IC applies.) The requirement to provide an interpreter is expressly exempted by CA s 464D(3) from applying to drink driving offences under the Road Safety Act 1986 (Vic). Inform foreign national of right to communicate with consul

[5.340] Section 464F(1) requires that if the suspect in custody is not an Australian citizen or permanent resident, then the investigating official must inform the person of his or her right to communicate with the relevant consular office, must defer the questioning for a reasonable time to enable this to happen, and must provide reasonable facilities for this to be done. Again, the investigating official is excused from having to defer the questioning if he or she believes on reasonable grounds that “the communication would result in the escape of an accomplice or the fabrication or destruction of evidence” or “the questioning or the investigation is so urgent, having regard to the safety of other people, that it should not be delayed” (s 464F(1) (a) and (b)).

Christopher, Corns. Criminal Investigation & Procedure in Victoria, Thomson Reuters (Professional) Australia Pty Limited, 2018. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/vu/detail.action?docID=5602214. Created from vu on 2020-08-03 01:00:46.

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(Section 464F also applies to questioning under s 464B(5) or any questioning under s 464B(11) unless Crimes Act 1914 (Cth) Pt IC applies.)

Consequences of breach of obligations [5.350] There is nothing in the CA providing for sanctions if the investigating official fails to caution a suspect or otherwise breaches the above-mentioned duties. However, EA 2008 s 139(1) now provides that the failure of an investigating official to caution the arrested person (where the official is empowered to arrest the suspect) means that any admissions made by the suspect will be taken to have been obtained improperly and, under s 138(1), improperly obtained evidence is not to be admitted unless “the desirability of admitting the evidence outweighs the undesirability of admitting the evidence”. Similarly, under EA 2008 s 139(2) where the investigating official carrying out the questioning does not have a power to arrest the suspect, and the admission was made after the investigating official formed a view that there was sufficient evidence that the suspect had committed the offence, then a failure to caution will mean that the admission is taken to have been obtained improperly. Again, under EA 2008 s 138(1) the admission can be excluded in the exercise of the above discretion.

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In deciding whether to exclude or admit evidence obtained in breach of CA s 464, much depends upon the circumstances of the individual case. Common law principles will still apply in the application of the above discretion and for this reason will now be briefly examined. At common law, if no caution is issued or there is failure to inform of the various “communication rights” (under CA ss 464C, 464D and 464F), then any subsequent admission or confession may be ruled inadmissible, particularly if the later confession might not have been given if the suspect had been cautioned or informed of his or her rights. However, rejection is not automatic. As Gleeson CJ put it in Carr v Western Australia (2007) 232 CLR 138 at 141; [2007] HCA 47 at [2]: It is not a principle of the common law that evidence of an admission, or a confession, to a police officer is inadmissible unless a caution is first administered. … The true position is that failure to administer a caution may enliven a judicial discretion as to whether to receive or reject the evidence.

In the same vein, it was said in R v Swaffield (1998) 192 CLR 159 at 202; [1998] HCA 1 at [95] that though the absence of a caution “triggers the exercise of a discretion to exclude what was said”, it “does not require exclusion”. Regarding a breach of s 464C (duty to inform a suspect of communication rights), again the exclusion of evidence is not automatic. Rather, the trial judge must assess the seriousness of the breach in order to decide whether the evidence ought to be excluded on the grounds of unfairness or public policy (R v Percerep [1993] 2 VR 109 at 120, expounding Pollard v The Queen

Christopher, Corns. Criminal Investigation & Procedure in Victoria, Thomson Reuters (Professional) Australia Pty Limited, 2018. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/vu/detail.action?docID=5602214. Created from vu on 2020-08-03 01:00:46.

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(1992) 176 CLR 177; [1992] HCA 69; see also R v Crupi (1995) 86 A Crim R 229 at 235–236). Nonetheless, it is rare for a judge not to take very seriously a failure by investigating officials to inform a suspect of his or her rights before questioning. In Pollard v The Queen (1992) 176 CLR 177; [1992] HCA 69, McHugh J stated that a breach of s 464C would make it “prima facie unfair to the accused to admit the evidence obtained as a result of the breach” (at 236; [35]). All seven judges in Pollard held that s 464C had been breached and a result, the confession obtained should have been excluded. A failure to caution, or other breach of pre-questioning obligations, can be evidence of a lack of voluntariness. The onus is on the prosecution to prove any confession or admission was voluntary. This is recognised in CA s 464J(b) which states that nothing in Subdiv 30A affects “the onus on the prosecution to establish the voluntariness of an admission or confession made by a person suspected of having committed an offence.” (Voluntariness of confessions is discussed in Chapter 8 (at [8.10]).) The court also has other grounds on which to exercise discretion to reject evidence. For example, evidence may be rejected if to admit it would be unfair to the accused or against public policy or if the prejudicial effect of the evidence is greater than its probative value. (These discretions are also discussed in Chapter 8 (at [8.10]).) Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Other investigations while person in custody [5.360] Within the “reasonable time” that a suspect may be held in custody, investigations other than questioning may also be conducted. Section 464A(2)(b) permits the investigating official to question the suspect “or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence” (ie the offence for which he or she is in custody). There are, of course, other forms of investigation that can be conducted in which the detained suspect does not need to “participate”, eg search of premises. Section 464(2)(b) is referring to investigations that require some degree of participation or at least compliance on the part of the suspect. Among these other kinds of investigation are fingerprinting and forensic procedures. Very commonly, after the questioning, the suspect will be asked for his or her fingerprints and/or to participate in a forensic procedure. These are both discussed in detail in Chapter 6 (at [6.10]). Another type of investigation in which the suspect participates can be a re-enactment of the crime (possibly videorecorded) or simply accompanying investigating officials to a relevant place and assisting with searches or observations. For example, in R v Heaney [1992] 2 VR 531, Heaney participated in a videotaped re-enactment in an attempt to locate the body of the deceased and the murder weapon. Such re-enactment, however, was unlawful in that case. This was because Heaney had already been remanded in custody when

Christopher, Corns. Criminal Investigation & Procedure in Victoria, Thomson Reuters (Professional) Australia Pty Limited, 2018...