DETENTION AND INTERROGATION; RIGHTS OF SUSPECTS Detention: Keeping someone at the police station Interrogation: Questioning

DETENTION AND INTERROGATION; RIGHTS OF SUSPECTS After a suspect is arrested, the police can hold them for up to 4 HOURS* after which they have to either CHARGE THE PERSON WITH A CRIME or RELEASE THEM * Of course there are exceptions… 1. The police can apply to a Magistrate (Local Court Judge) for an 8-hour extension 2. There are certain periods of time that don’t count towards those hours (e.g. waiting for a lawyer to show up; transporting the suspect to the police station; when the suspect has a break to eat or drink; etc) 3. The Terrorism (Police Powers) Amendment (Preventative Detention) Act 2005 allows a person NOT charged with ANY offence to be kept in prison up to 14 days (similar to the Commonwealth law used in the Haneef case). Some safeguards are in place to avoid the abuse of these powers… Police have to caution the suspect (warn them that anything they say or do may be used in evidence), verbally AND in writing The suspect also has to be told that they have a right to silence Children under 18 also have a right to have a responsible adult with them during any interrogation (questioning) Interrogations are recorded (BOTH video and audio recordings are made, and a copy of the audio tape is given to the suspect)

DETENTION AND INTERROGATION; RIGHTS OF SUSPECTS This process can make it difficult for police to achieve justice for the victims of crime (e.g. suspects having the right to silence is very frustrating for police trying to find out what happened)… … and suspects who would have been found guilty (or have been found guilty) may still escape punishment if this process is not followed exactly (causing victims of crime, and society, to feel that justice was not served)… … but the safeguards are there to try to ensure that the process is fair and just for those who are accused of crimes (who, after all, may not be guilty at all)…

DETENTION AND INTERROGATION; RIGHTS OF SUSPECTS Police now have to tell people that, while they are not obliged to say anything (they don’t HAVE TO talk), it may harm their defence if they fail to mention, when questioned, something they later rely on in court. The change only applies to people arrested for an alleged crime and not to the witnesses who are frustrating police with their silence during police inquiries.

DETENTION AND INTERROGATION; RIGHTS OF SUSPECTS BAD CHANGE for the rights of suspects: The Evidence Amendment (Evidence of Silence) Act 2013 The NSW government has passed a law that has taken away the right to silence. If you don’t explain what happened to police when you’re arrested… … then you say you’re not guilty in court… … the judge will tell the jury that you should have said something and that you’re probably lying!

DETENTION AND INTERROGATION; RIGHTS OF SUSPECTS PERSPECTIVES on this change: FOR: The NSW Police: Anything that helps break down the “wall of silence” is a good change to the law (in cases like the shootings in South-West Sydney in 2012).

DETENTION AND INTERROGATION; RIGHTS OF SUSPECTS PERSPECTIVES on this change: But this change to the law was criticised from the day that it was announced (Right to remain not quite so silent (SMH, 2012)) AGAINST: The Bar Association: The change to the right to silence will "provide great benefits to the prosecution at the expense of long-held rights held by accused persons". "It is saying to a jury you can conclude a person is guilty because they didn't say something," he said. "This is a back-door way of changing the burden AND standard of proof which has for CENTURIES been on the prosecution to prove its case beyond reasonable doubt”

DETENTION AND INTERROGATION; RIGHTS OF SUSPECTS PERSPECTIVES on this change: But this change to the law was criticised from the day that it was announced (Right to remain not quite so silent (SMH, 2012)) AGAINST: People could be “traumatised, inarticulate, panicky, have difficulty speaking English or be affected by drugs when arrested and questioned by police. They could also be trying to hide something they’re ashamed of (e.g. adultery, which isn’t illegal) or hide a minor crime”. The NSW Law Society: The prosecution will no longer have to prove its case beyond a reasonable doubt, but could force the person accused of a crime to prove their innocence.

For you… For both the Preventative Detention and Evidence of Silence rules, explain both the positives and negatives of these rules. (Use notes here as well as Handout on Seesaw and two articles on Seesaw) Police perspective Accused’s perspective Preventative Detention +ve – allows police to protect and interrogate (more chance of cracking a case) -ve – takes away requirement to be charged. Evidence of Silence +ve – allows for more chance of a conviction -ve – waters down the requirement of proof beyond reasonable doubt

Questions How long can a suspect be held before charge and when can this change? (slide 2) What are some safeguards that are in place to ensure the rights of suspects? (bottom of slide 2) How do these safeguards negatively affect police investigation? (slide 3) Why do the police now have something new to say to offenders? (slide 4 and 5) How does this change help police officers? (slide 6) How is this change fought against by society? Who in society have commented against this change and what have they said? (slide 7 and 8)