NCJ Number
88017
Date Published
1981
Length
11 pages
Annotation
Procedures in Australia surrounding arrests and pretrial detention should invoke certain criteria for arrest, for investigations while a person is in custody, for the right against self-incrimination, and for rules and recommendations regarding confessions.
Abstract
Since arrest is costly to the State and eliminates a person's freedom of movement, the criteria to be used in invoking the power to arrest are crucial. The three criteria should be the existence of genuine suspicion on reasonable grounds that a person has committed a crime, the belief that using a summons would be ineffective, and the need to preserve evidence relating to the offense for which the person is arrested. The person arrested should be taken before a judicial officer as soon as possible after the arrest. The Australian Law Reform Commission recommended in 1975 that persons in custody also be told that they are in custody, why they are in custody, their right to refuse to answer questions, their right to access to relatives and friends, their right to access to a lawyer, and, if relevant, their rights related to identification lineups and bail. The right to silence consists of the right not to incriminate oneself and applies to accused persons, witnesses, and any citizens. Citizens of Australia are also protected by the Judges' Rule against having to make confessions when questioned by the police, although some believe that this protection is illusory. The Australian Law Reform Commission recommends statutory recognition of the suspect's right to silence and the requirement that suspects be permitted to obtain counsel to ensure that right. Legislation to implement these and other recommendations is still under consideration. Eleven reference notes are provided.