HIGH COURT OF AUSTRALIA
Gibbs C.J., Mason, Wilson, Brennan and Dawson JJ.
WILLIAMS v. THE QUEEN
(1986) 161 CLR 278
26 August 1987
Criminal Law—Arrest—Arrested person to be taken before a justice as soon as practicable—Delay—Desire of arresting officer to question arrested person—Justices Act 1959 (Tas.), s. 34A(1)—Criminal Code 1924 (Tas.), s. 303(1).
Criminal Law (Tas.)—Practice—Appeal by Attorney-General to Court of Criminal Appeal from acquittal—Right of appeal on question of law alone—Wrongful rejection of evidence in exercise of discretion—Whether question of law alone—Criminal Code 1924 (Tas.), s. 401(2)(b).
GIBBS C.J.: The applicant was indicted before the Supreme Court of Tasmania on twenty-nine counts - fifteen of burglary and fourteen of stealing. At the commencement of the trial counsel for the accused objected to the admission in evidence of a number of records of interview containing confessions allegedly made to the police by the applicant. After a voir dire the learned trial judge ruled that the records of interview which related to twenty-six of the counts should not be admitted in evidence. The Crown Prosecutor then offered no evidence on those counts and the jury by direction brought in a verdict of not guilty on each of those counts. The applicant pleaded guilty to the remaining three counts. Thereafter the Attorney-General for Tasmania applied for leave to appeal, under s.401(2)(b) of the Criminal Code 1924 (Tas.), as amended, against the acquittal of the applicant on each of the twenty-six counts. The Court of Criminal Appeal granted leave to appeal, allowed the appeal and ordered that the applicant be retried on the twenty-six counts. The applicant now applies to this Court for special leave to appeal against that decision.
2. 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 6.00 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 twenty-seven to twenty-nine in the indictment. The applicant was later taken in a police vehicle to Launceston, where he arrived at about 11.00 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 one to twenty-six. 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 one and two and was completed by about 1.45 p.m.; the second related to counts twenty-seven to twenty-nine (the Scottsdale matters) and was completed by about 3.00 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 10.00 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.
3. The learned trial judge was satisfied that the confessions were voluntarily made but in the exercise of his discretion rejected the evidence of them. He gave his reasons as follows:
"From what I have said it is clear that the accused
was unlawfully detained after 2.15 p.m. on the
17th May. He was subjected to lengthy questioning
about matters other than those for which he was
arrested and he was unable to get before the court
and ask for legal advice. It seems to me not to
matter whether or not he volunteered certain
information, the fact is that he was unlawfully
detained about 20 hours longer than he should have
been. This seems to me to be a clear case where I
should exercise my discretion to exclude evidence
of the confessions made in the records of interview
other than those in relation to the Scottsdale
matters. In my view it would be unfair to the
accused to admit such evidence having regard to the
circumstances in which it was procured.
Furthermore it seems to me that public policy
considerations should induce me to discourage what
occurred here ..."
The finding that the applicant was unlawfully detained for about twenty hours longer than he should have been is over-emphatic; if, as the learned trial judge found, the unlawful detention commenced at 2.15 p.m. on 17 May, the period of unlawful detention relevant to the confessions ended at about 9.03 p.m. on the same day when the applicant was taken before the inspector. The finding that it would be unfair to admit the evidence is a corollary of the finding that the detention was unlawful; the unfairness suggested is that if the applicant had been taken before a magistrate at 2.15 p.m. on 17 May he would have been informed of his right to seek legal advice and would no doubt have been advised that he need not respond to police questioning. The issues that now arise are (1) whether the applicant was unlawfully detained and, if so, (2) whether the confessions were rightly rejected and (3) whether, if the learned trial judge was wrong in rejecting the confessions, the appeal to the Court of Criminal Appeal was "on a question of law alone" within s.401(2)(b) of the Criminal Code.
4. The duty of any person, including a police officer, who has arrested another on a charge of an offence, is laid down by two statutory provisions in Tasmania. Section 34A(1) of the Justices Act 1959 (Tas.), as amended, provides as follows:
"Where a person has been taken into custody
for an offence, he shall, unless he has been
released under section 34, be brought before a
justice as soon as is practicable after he has been
taken into custody."
Section 34 deals with the procedure to be followed where a person, other than a person arrested on warrant, has been taken into custody for a simple offence and is of no materiality in the present case. Section 303(1) of the Criminal Code provides:
"It is the duty of any person who has arrested
another on a charge of any offence to take him, or
cause him to be taken, before a justice without
delay, to be dealt with according to law."
These provisions are not inconsistent. They require the person making the arrest to bring the arrested person before a justice in as short a time as is reasonably practicable. That, in effect, is the same as the common law rule discussed in John Lewis &Co. Ltd. v. Tims (1952) AC 676; see especially at p 691. Many cases in Australia have established that there is no power to detain a citizen merely for the purpose of questioning him and that the desire to question an arrested person does not in itself justify a delay in bringing him before a justice: see Bales v. Parmeter (1935) 35 SR(NSW) 182, at pp 188-189; Ex parte Evers; Re Leary (1945) 62 WN(N.S.W.) 146; Drymalik v. Feldman (1966) SASR 227, at p 234; Reg. v. Banner (1970) VR 240, at p 249; Reg. v. Stafford (1976) 13 SASR 392, at pp 400-401; Reg. v. Clune (1982) VR 1, at pp 10-11, 17-19; Reg. v. Larson and Lee (1984) VR 559, at pp 568-569. There is a decision of this Court to the same effect: Reg. v. Iorlano (1983) 151 CLR 678, at p 680.
5. 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 (1912) 15 CLR 452) 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 (1970) 126 CLR 321, at p 333. 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 (1965) 1 QB 348, at p 367). 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 Re Sherman and Apps (1980) 72 Cr App R 266, at p 271; Houghton and Franciosy (1978) 68 Cr App R 197, at p 205; cf. Malcherek and Steel (1981) 73 Cr App R 173, at pp.186-188. Professor Zander in The Police and Criminal Evidence Act 1984 (1985), at 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 Tasmanian Justices Act. 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.
6. In considering the scope of the questioning that may be permitted before the accused is taken before a justice, it is not right to draw an arbitrary distinction between questions which relate to the crime for which the arrest was made and questions which relate to other crimes. The investigations which the police may make subsequent to an arrest may reveal that the person arrested has committed a different crime from that for which he was arrested - for example, murder and not manslaughter, or vice versa - or that he has committed crimes additional to those for which he was arrested - e.g., a man arrested for robbery may be found to have committed murder as well or a man arrested for one burglary may be found to have committed many others. There is no rule that artificially restricts the nature of the investigations which the police may conduct. It is not wrong to arrest and detain a man upon a charge, of which he is reasonably suspected, with a view to further investigations of a second charge upon which information is incomplete: Christie v. Leachinsky (1947) AC 573, at p 593. The critical question is whether the arrested person was detained any longer than was reasonably necessary to enable him to be brought before a justice. If he is detained for the purpose of enabling him to be brought before a justice, the fact that he is questioned, whether about the offence for which he was arrested, or about other offences, will not necessarily mean that there has been a failure to bring him before a justice as quickly as was reasonably practicable. On the other hand, if he is detained, not for that purpose, but solely for the purpose of questioning him, the detention will be unlawful. The line may be a fine one, as it often is when a discretion has to be exercised in sensitive matters.
7. 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 (1982) 151 CLR 1, at pp 32-33: 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: see at pp.9, 17, 35-36. A similar view had been expressed by Brennan J. in Collins v. The Queen (1980) 31 ALR 257, at p 317, in a passage approved in Cleland v. The Queen, at pp 9, 35. 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.
8. 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 (1970) Tas.SR 13, at p 15, 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 (1974) Tas.SR 64, at p 89, 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.
9. For these reasons special leave should be granted, the appeal allowed and the judgment and order of the Court of Criminal Appeal should be set aside.
MASON AND BRENNAN JJ.: Section 401(2)(b) of the Criminal Code of Tasmania provides that the Attorney-General may appeal to the Court of Criminal Appeal -
" by leave of the Court or upon the certificate of
the judge of the court of trial that it is a fit
case for appeal, against an acquittal on a
question of law alone".
2. 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 26 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 6.00am 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 the 17th of May,
The interviews about the three Scottsdale matters and the other 26 matters were not completed until about 8.30pm on 17 May, and the applicant was then charged with the 29 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 2.15pm 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 26 matters - that is, the matters other than the Scottsdale matters. In fact the interviews before 2.15pm on 17 May related to some of the 26 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 26 matters. The principal factor which led his Honour to reject evidence of the interviews with respect to the 26 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 20 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 26 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:
" Where a person has been taken into custody for
an offence, he shall, unless he has been released
under section 34, be brought before a justice as
soon as is practicable after he has been taken
3. Section 34A(1) is one of a series of provisions relating to the apprehension, custody and bailing of offenders. Section 33 provides for the issuing by a justice of a warrant for the apprehension of a person. Section 34 provides for the conditional release of persons in custody who have been arrested without warrant for a simple offence. Section 34A(1) relates to any person who "has been taken into custody for an offence", whether the arrest has been with or without a warrant and whether the offence is a simple or an indictable offence. Thus it relates also to any person to whom s.34 applies who has not been released from custody under that section. Section 34A(2) provides:
" Where a defendant is brought before a justice
as provided in subsection (1), the justice shall
first satisfy himself that there is alleged
against the defendant an act or omission that
would constitute an offence, and -
(a) if there is not, he shall release him; or
(b) if there is, he shall, except in a case
to which section 67 applies, proceed as
provided in section 35."
Section 35 requires the justice before whom a defendant is brought pursuant to s.34A to ask the defendant whether he wishes to apply for bail and provides for the grant or refusal of bail. Section 36 relates to sureties and s.36A provides for a review of orders granting or refusing bail. Section 34A is not directed to the interrogation of persons in custody or to the admissibility of confessions made by persons in custody. Plainly it prescribes the procedure to be followed to allow a person who has been taken into custody for an offence the earliest practicable opportunity to seek a judicial order for his release - either absolutely or on bail. It is concerned with personal liberty, not with the exigencies of police investigation. The Court of Criminal Appeal, however, following what Neasey and Cosgrove JJ. had said in Clark v. The Queen (unreported, Serial No.50/1984), held that the exigencies of criminal investigation may be relevant to what is "practicable".
4. In Clark, Neasey J. held that if the police have arrested a person lawfully under the provisions of the Criminal Code -
" on the basis of reasonable grounds for belief
that the arrested person has committed a crime
specified in Appendix 'A' ... reasonable
practicability must permit them to place
themselves in a position to decide whether a
charge shall be laid, and if so, what charge. In
order to do that they must investigate and assess
the then presently available evidence, in as
thorough a manner as the circumstances permit.
The law requires, however, that they perform this
duty in as short a time as is reasonably
practicable, so as to preserve the rights of the
defendant as a citizen and to uphold the
principle of the liberty of the subject."
Cosgrove J. held that before the duty imposed by s.34A on a justice can be carried out -
" the officer in charge of the arrested person must
satisfy himself that he has, in his possession or
available to him, evidentiary material which
would establish at least a prima facie case of
the guilt of the arrested person in respect of
the charge to be preferred."
Where that material is not in the possession of the police at the time of arrest, his Honour thought that it would sometimes be permissible to use the period of detention to dispel or confirm the reasonable suspicion of the offence by questioning the suspect or seeking further evidence with his assistance.
5. In the present case, Brettingham-Moore J. understood the comments by Neasey and Cosgrove JJ. in Clark to support the view that "as soon as is practicable" in s.34A means that -
" (a) Police must be given a reasonable time to
complete their investigations into the
offence or offences in respect of which the
accused has been taken into custody. The
law requires that they should perform this
duty in as short a time as is reasonably
(b) A reasonable time must also be allowed for
the laying of appropriate charges and the
documentation necessary to have him brought
before the court.
(c) Subject to the above requirements, an
accused must be brought before the first
available sitting of a court within a
reasonable distance of the place where he is
(d) An accused cannot be held in custody for the
purpose of enabling the police to conduct
enquiries into matters other than those in
respect of which he has been arrested."
As his Honour found that the applicant was in police custody only for the Scottsdale offences and not for the 26 matters he held that the police could not lawfully refrain from bringing him before a justice once a reasonable time for the investigation of the Scottsdale offences and for the laying of charges of those offences had expired: that is, by 2.15pm on 17 May.
6. In the Court of Criminal Appeal Neasey J., harking back to passages in the judgments in Clark, said:
" In my view, performance of the requirement
under s.34A does not necessarily require that the
police may carry out and complete their immediate
investigatory needs in respect only of offences
for which the person has been arrested, before
taking him before a justice. Circumstances of
cases may of course differ widely, but the
police, having commenced to question an arrestee
who was willing to be questioned and to answer,
may be given evidence of the commission of other
crimes by the arrestee than those for which he
was arrested. It would be their right and their
duty, in my opinion, to pursue their questioning
for some reasonable time in order to receive from
the arrestee information as to the commission of
other crimes which he was willing to give them."
Cox J., also following Clark, said:
" The test seems to be whether or not the arrest
or detention is used solely or primarily for the
purposes of furthering police enquiries. If on
the other hand those enquiries occur not by
virtue thereof but concurrently with a detention
of which the prime purpose is the bringing of an
alleged offender before the court to be dealt
with according to law for the crime for which he
was arrested, the detention remains lawful. Even
if the making of such enquiries has the effect of
delaying his presentation to the court it does
not automatically follow that his detention will
then become unlawful."
7. Underwood J. referred to what Cosgrove J. had said in Clark and proceeded:
" It must therefore be lawful to continue detention
for a reasonable period to enable investigating
officers to establish with some precision the
charge or charges upon which the accused is to be
presented to the justice and what evidence there
is to support any such charges."
The Tasmanian Court of Criminal Appeal thus appears to have accepted the proposition that when a person, having been lawfully arrested, is in the custody of a police officer, s.34A(1) does not require the police officer to bring him before a justice before the police officer has had a reasonable opportunity to question the person arrested about the offence for which he has been arrested and other offences about which the person is willing to provide information to the police.
8. That proposition is contrary to principle and is inconsistent with the unanimous judgment of this Court in Reg. v. Iorlano (1983) 151 CLR 678. In that case, the statute which authorized detention of an arrested person was s.212 of the Customs Act 1901 (Cth). It provides:
" Every person arrested may be detained until such
time as he can without undue delay be taken
before a Justice."
In Iorlano, the Court said (at p.680):
" It is unnecessary for present purposes to
decide whether s.212 is intended to give a wider
power to detain an arrested person than that
which exists at common law. There is simply
nothing in the provisions of s.212, or in the
context in which that section appears, that
suggests that the fact that the arresting officer
desires to question the arrested person affords
any legitimate reason for delay in taking him
before a justice. The section gives no power to
question an arrested person, and does not make
justifiable a delay which resulted only from the
fact that the arresting officer wished to engage
The Court's statement of the principle does not depend on the particular language of s.212 of the Customs Act nor on the particular character of the officer who might be exercising the power to detain the person arrested. The principle is of general application to all statutory powers to detain a person after arrest for an offence although it can, of course, be excluded by statute.
9. The right to personal liberty is, as Fullagar J. described it, "the most elementary and important of all common law rights" (Trobridge v. Hardy (1955) 94 CLR 147, at p 152). Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England "without sufficient cause" (Commentaries on the Laws of England (Oxford 1765), Bk.1, pp.120-121, 130-131). He warned:
" Of great importance to the public is the
preservation of this personal liberty: for if
once it were left in the power of any, the
highest, magistrate to imprison arbitrarily
whomever he or his officers thought proper ...
there would soon be an end of all other rights
That warning has been recently echoed. In Cleland v. The Queen (1982) 151 CLR 1, at p 26, Deane J. said:
" It is of critical importance to the existence and
protection of personal liberty under the law that
the restraints which the law imposes on police
powers of arrest and detention be scrupulously
The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes. The issue in this case is the extent of the power of the police to detain in their custody for questioning a person who has been lawfully arrested.
10. The common law conferred on constables a power to arrest without warrant on suspicion of felony, but the authority to keep the person arrested in custody was limited "till he can be brought before a justice of the peace" (Comyns' Digest, vol.IV, "Imprisonment" (H.4)). The time could not be extended to allow for the collection of witnesses: see Wright v. Court (1825) 4 B &C 596, at p 598 (107 ER 1182), where it was said:
" it is the duty of a person arresting any one on
suspicion of felony to take him before a justice
as soon as he reasonably can, and the law gives
no authority even to a justice to detain a person
suspected, but for a reasonable time till he may
11. A statutory power, applicable in respect of statutory offences as well as in respect of felonies, was created in New South Wales by s.352 of the Crimes Act. That section required the arresting constable to take the person arrested "before a Justice to be dealt with according to law". In Bales v. Parmeter (1935) 35 SR (NSW) 182, Jordan C.J. observed (at p 189) that -
" 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 (33
SR 303). 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 (at p.190):
" 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 led Maxwell J. to say in Ex parte Evers; Re Leary (1945) 62 WN (NSW) 146, at p 147:
" It is now thoroughly well established that arrest
and imprisonment cannot be justified merely for
the purpose of questioning ..."
12. In R. v. Bathgate (1944) 46 SR(NSW) 281, the Court of Criminal Appeal held to be unlawful the detention for questioning of a person lawfully arrested when the person arrested could have been brought before a magistrate. In R. v. Jeffries (1946) 47 SR(NSW) 284, at p 288, Jordan C.J., after reiterating the rule laid down in the New South Wales cases, condemned in strong terms the taking of arrested persons not to a magistrate to be charged but to a police station to be questioned in the hope of extracting something that can be used in evidence against them.
13. In Victoria, the authority of an arresting constable to detain the person arrested in custody has been held to be limited in the same way. In Reg. v. Banner (1970) VR 240, at p 249, the Full Court said that police officers -
" have no power whatever to arrest or detain a
citizen for the purpose of questioning him or of
facilitating their investigations ... It matters
not at all whether the questioning or the
investigation is for the purpose of enabling them
to ascertain whether he is the person guilty of a
crime known to have been committed or is for the
purpose of enabling them to discover whether a
crime has or has not been committed. If the
police do so act in purported exercise of such a
power their conduct is not only destructive of
civil liberties but it is unlawful."
Their Honours held (at pp.249-250) that a police officer's power to detain a person in custody -
" merely authorized a detention for the purpose of
taking the applicant before a magistrate to be
dealt with according to law. And it is well
established that a detention under this power
becomes unlawful if there is unreasonable delay
in taking the suspect before a magistrate ..."
14. In Reg. v. Clune (1982) VR 1, at pp 10-11, Crockett J. held that the power to arrest cannot be used for the purpose of facilitating police inquiries and that the taking of an arrested person before a magistrate cannot be deferred so that inquiries into the offence can be carried out. McGarvie J., citing Reg. v. Banner and Bales v. Parmeter, said (at p 18):
" An arrest and detention which is originally
validly made, becomes unlawful if at a later
stage the person is being detained for a purpose
other than the purpose of being brought before a
justice or magistrates' court. Thus the
detention becomes unlawful if there is
unreasonable delay in taking the suspect before a
justice or magistrates' court: R. v. Banner ...,
at p 250."
15. The provisions of s.460(1) of the Crimes Act 1958 (Vic.) correspond with the provisions of s.34A(1). In Reg. v. Larson and Lee (1984) VR 559, Hampel J. said, at p 568:
" The words 'as soon as practicable' in the section
refer to the time required to bring the person
arrested before a justice and not to the time
which the police may choose to take after arrest
to make further enquiries or conduct further
investigations. The section is designed to
safeguard persons in custody after arrest from
being held by the police for questioning or
further investigations or otherwise."
That view is surely right. If a person cannot be taken into custody for the purpose of interrogation, he cannot be kept in custody for that purpose, and the time limited by the words "as soon as practicable" cannot be extended to provide time for interrogation. It is therefore unlawful for a police officer having the custody of an arrested person to delay taking him before a justice in order to provide an opportunity to investigate that person's complicity in a criminal offence, whether the offence under investigation is the offence for which the person has been arrested or another offence.
16. In Drymalik v. Feldman (1966) SASR 227, the Full Court of the Supreme Court of South Australia construed s.78 of the Police Offences Act 1953-1961 (S.A.) as requiring an arrested person to be brought "forthwith" before a justice. So construing the section, their Honours were able to distinguish Dallison v. Caffery (1965) 1 QB 348 - a case to which further reference must be made - and to follow Bales v. Parmeter and Ex parte Evers; Re Leary. And their Honours said (at pp 234-235):
" If the view is accepted that the appellants were
empowered, under s.75, to make the arrest, for
the purpose of bringing the plaintiff before a
justice, they still had no justification in law
in detaining the plaintiff in custody for a
lengthy interrogation before complying with
(And cf. per Bray C.J. in Reg. v. Stafford (1976) 13 SASR 392, at pp 400-401). In Reg. v. Eyres (1977) 16 SASR 226, at p 231, Walters J., citing the speech of Lord Wright in McArdle v. Egan (1933) 150 LT 412, at p 413, held that deprivation of liberty could not be justified merely for the purpose of asking questions.
17. The jealousy with which the common law protects the personal liberty of the subject does nothing to assist the police in the investigation of criminal offences. King C.J. in Reg. v. Miller (1980) 25 SASR 170, in a passage with which we would respectfully agree (at p 203) pointed out the problems which the law presents to investigating police officers, the stringency of the law's requirements and the duty of police officers to comply with those requirements - a duty which is by no means incompatible with efficient investigation. Nevertheless, the balance between personal liberty and the exigencies of criminal investigation has been thought by some to be wrongly struck: see, for example, the Australian Law Reform Commission Interim Report on "Criminal Investigation", Report No. ALRC 2, Ch.4. But the striking of a different balance is a function for the legislature, not the courts. The competing policy considerations are of great importance to the freedom of our society and it is not for the courts to erode the common law's protection of personal liberty in order to enhance the armoury of law enforcement. It should be clearly understood that what is in issue is not the authority of law enforcement agencies to question suspects, but their authority to detain them in custody for the purpose of interrogation. If the legislature thinks it right to enhance the armoury of law enforcement, at least the legislature is able - as the courts are not - to prescribe some safeguards which might ameliorate the risk of unconscionable pressure being applied to persons under interrogation while they are being kept in custody.
18. The rule adopted in the Australian cases was not followed by the English Court of Appeal in Dallison v. Caffery. In that case, Lord Denning M.R. decided that the time had come to ensure that justice might be done not only to the person arrested "but also to the community at large". He said (at p.367):
" When a constable has taken into custody a person
reasonably suspected of felony, he can do what is
reasonable to investigate the matter, and to see
whether the suspicions are supported or not by
further evidence. He can, for instance, take the
person suspected to his own house to see whether
any of the stolen property is there; else it may
be removed and valuable evidence lost. He can
take the person suspected to the place where he
says he was working, for there he may find
persons to confirm or refute his alibi. The
constable can put him up on an identification
parade to see if he is picked out by the
19. In Reg. v. Clune, McGarvie J. said, at p 21, "(t)here has been a want of enthusiasm for Dallison v. Caffery in Australia" and in Jones v. Harvey (1983) 1 MVR 111, at p 119, Mahoney J.A. noted that:
" There may well be, in this area of the law, a
difference of principle or of approach between
the English law, as illustrated in Dallison v.
Caffrey, and the Australian decisions."
20. In our respectful opinion, the observations of Lord Denning M.R. in Dallison v. Caffery ought not be followed. They are at odds with the speech of Lord Porter in John Lewis &Co.Ld. v. Tims (1952) AC 676, at p 691:
" Those who arrest must be persuaded of the
guilt of the accused; they cannot bolster up
their assurance or the strength of the case by
seeking further evidence and detaining the man
arrested meanwhile or taking him to some spot
where they can or may find further evidence."
That principle is of general application. Lord Denning's special rule for police officers would confer on them an authority to detain for questioning and investigation which is inconsistent with Wright v. Court and the Australian line of authority. The principle that detention for questioning and investigation is unlawful clearly applies when the statute requires the arresting officer to bring the person arrested before a justice "without undue delay" (see Iorlano) or "forthwith" (see Reg. v. Conley (1982) 30 SASR 226, at p 241, where King C.J., with the concurrence of White and Cox JJ., said that the observations of Lord Denning in Dallison v. Caffery were inapplicable in South Australia having regard to the terms of s.78(1) of the Police Offences Act 1953-1979 (S.A.)). And there is no reason why the principle should not apply when the relevant statute uses general words such as "as soon as practicable". Those words are not intended to deny the operation of a principle which protects the liberty of the subject, and to construe those words as authorizing detention for interrogation and investigation runs counter to the rule that any statute which authorizes the detention of a person must be strictly construed: Smith v. Corrective Services Commission (N.S.W.) (1980) 147 CLR 134, at p 139.
21. The principle that the police should not have the power to detain an arrested person in custody in order to question him or to have him provide information has not been maintained in England. In Clark, Neasey J. undertook a survey of the English developments since Dallison v. Caffery, noting that -
" a more flexible attitude, permitting continued
investigation of the alleged crime for a period
of up to two days after the arrest of the
suspected person, has developed in England along
with the formulation and acceptance of the
revised Judges' Rules in 1964. That position is
confirmed and extended by the Report of the Royal
Commission in 1981 and by the later authorities
referred to; but no such development has taken
place in Australia. The relevant common law for
our purposes should be taken, in my view, to be
as laid down in John Lewis &Co.Ltd. v. Tims
However, John Lewis &Co. Ld. v. Tims gives no support to the view adopted in Clark. In John Lewis &Co. Ld. v. Tims it was held that suspected shoplifters might be detained for a reasonable time until a superior official can decide whether to prosecute, but that case gives no support to the proposition that the obligation to take an arrested person before a justice "as speedily as is reasonably possible" (to adopt Lord Porter's phrase at p.691) is satisfied when the arrested person is detained for questioning. Reasonable time must be allowed for making a decision to prefer a charge and preferring it, but that case does not decide that time should be allowed for questioning a suspect or for investigating the available evidence. Indeed, Lord Morton of Henryton (at p.692) said that, although it was reasonable to take the suspected shoplifter to an office for the purpose of getting authority to prosecute, the "case would have been a different one if they had gone there for the purpose of filling in gaps in the evidence".
22. Nevertheless, in Clark and in the present case, the Court of Criminal Appeal conceived it to be the duty of a police officer to investigate at least to some extent the evidence available to support a charge against an arrested person before taking that person before a justice. This approach was based in part upon English cases which had followed or been influenced by Dallison v. Caffery. One of those cases was Reg. v. Holmes (1981) 2 All ER 612, where Donaldson L.J. (at p 616) said:
" 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 48 hours) "particularly useful". With respect, the approach taken in Reg. v. Holmes 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 (1984) AC 437, at p 445, 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.
23. The Court of Criminal Appeal perceived in s.27 of the Justices Act a reason to permit the police to question an arrested person and to conduct some investigation into the evidence available to support a charge against him before bringing that person before a justice. Section 27 requires proceedings before justices to be commenced by a complaint but, where a person has been arrested without warrant, an oral information will suffice until the person charged is required to plead. It was thought that the arresting police officer had to have an opportunity to question and to investigate the available evidence in order to decide whether to make a complaint or prefer an oral information. Whatever a police officer should do before making a complaint or preferring an oral information, s.34A casts no obligation on him to make the complaint or prefer the information when an arrested person is brought before a justice pursuant to that section. Section 34A(2)(a) expressly covers the case where no complaint is made and no information is preferred. As a matter of mere statutory construction, s.27 furnishes no ground for so construing "as soon as is practicable" in s.34A as to permit detention for interrogation and investigation.
24. Nor is there any reason to think that, in general, an arresting police officer would be unable properly to make a complaint or to lay an oral information until he had had an opportunity to question the person arrested. In the ordinary case of an arrest on suspicion, the arresting officer must have satisfied himself at the time of the arrest that there are reasonable grounds for suspecting the guilt of the person arrested (Dumbell v. Roberts (1944) 1 All ER 326, at p 329), although the grounds of suspicion need not consist of admissible evidence (see Hussien v. Chong Fook Kam (1970) AC 942, at pp 948-949). If the arresting officer believes the information in his possession to be true, if the information reasonably points to the guilt of the arrested person and if the arresting officer thus believes that the arrested person is so likely to be guilty of the offence for which he has been arrested that on general grounds of justice a charge is warranted, he has reasonable and probable cause for commencing a prosecution (see Mitchell v. John Heine &Son Ltd (1938) 38 SR(NSW) 466, at p 469; Commonwealth Life Assurance Society Ltd. v. Brain (1935) 53 CLR 343, at p 382; Glinski v. McIver (1962) AC 726, at pp 766-767). There is no practical necessity to construe the words "as soon as is practicable" in s.34A(1) so as to authorize the detention by the police of the person arrested for the purpose of questioning him or conducting inquiries with his assistance.
25. The same general observations may be made in reference to s.303(1) of the Criminal Code which provides:
" It is the duty of any person who has arrested
another on a charge of any offence to take him,
or cause him to be taken, before a justice
without delay, to be dealt with according to
For present purposes, there is no distinction to be drawn between "as soon as is practicable" in s.34A(1) and "without delay" in s.303(1). The latter phrase is no less demanding than the phrase "without undue delay" considered in Iorlano.
26. There is nothing to prevent a police officer from asking a suspect questions designed to elicit information about the commission of an offence and the suspect's involvement in it, whether or not the suspect is in custody. But if the suspect has been arrested and the inquiries are not complete at the time when it is practicable to bring him before a justice, then it is the completion of the inquiries and not the bringing of the arrested person before a justice which must be delayed - as King C.J. pointed out in Reg. v. Miller. The making of inquiries is not a ground for extending the period of custody and denying the subject an opportunity of securing his release either absolutely or on bail by a justice's order. It is not necessary to consider here whether and in what circumstances it would be proper for the justice to order a remand of an accused person into the custody of a police officer. In this case, no remand was sought: the applicant was simply kept in police custody. The detention was unlawful.
27. The importance of the question requires the granting of special leave to appeal. The conclusion that the applicant's detention for questioning was unlawful requires that the appeal be allowed and the applicant's acquittal on the 26 charges be restored. It is strictly unnecessary, therefore, to examine the jurisdiction of the Court of Criminal Appeal to allow an appeal against acquittal on the ground that prosecution evidence was wrongly excluded. However, the jurisdiction is of so exceptional a character that it is desirable to examine its exercise on this occasion. Section 401(2)(b) trenches upon what Deane J. described as "the right to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction" (Thompson v. Mastertouch T.V. Service Pty.Ltd. (No.3) (1978) 38 FLR 397, at p 413; 19 ALR 547, at p 560, approved by this Court in Davern v. Messel (1984) 155 CLR 21).
28. Section 401(2)(b) of the Code does not expressly confer power to set aside a jury verdict on which the impugned judgment of acquittal is based, but such a power is conferred by necessary implication. A verdict of acquittal, even if it be a verdict by direction, requires the court to "enter formal judgment in pursuance of the verdict, or to discharge the defendant as if such judgment had been entered": per Gavan Duffy and Rich JJ. in R. v. Snow (1915) 20 CLR 315, at p 361. It is not necessary in this case to consider whether s.401(2)(b) authorizes the substitution of a verdict of guilty for a verdict of acquittal, but the provision does appear to authorize an order for retrial consequent upon the setting aside of the verdict of acquittal: see Vallance v. The Queen (1961) 108 CLR 56.
29. An appeal lies on "a question of law alone". An appeal does not lie on a ground which involves a mixed question of fact and law: that is a ground available to a person convicted of an offence (s.401(1)(b)(ii)) but not to the Attorney-General. An appeal on the ground of the wrongful rejection of evidence by a trial judge in the exercise of a discretion is not an appeal on a question of law alone. The manner in which a discretion is exercised depends upon the judge's appreciation of all the facts of the case, so that an error of law which leads the judge wrongly to hold that he has a discretion is not the only factor which contributes to his decision to reject the evidence (cf. Reg. v. Gillis (1966) 2 CCC 219, at p 222; Reg. v. Lachapelle (1972) 8 CCC (2d) 120, at p 123).
30. In the present case, evidence of the interviews with the applicant after 2.15pm on 17 May 1984 was rejected not only because the learned trial judge thought that there was a breach of statutory duty by the police officers concerned in the questioning of the applicant but also because "it would be unfair to the accused to admit such evidence having regard to the circumstances in which it was procured". Even if his Honour was in error in his construction of s.34A(1) of the Justices Act, that error was not the only factor contributing to the decision which the Attorney-General attacked on the appeal. The decision to reject the evidence of the interviews depended also on his Honour's appreciation of the facts of the case. The rejection of the evidence was not attributable to "a question of law alone".
31. Moreover, the verdict of acquittal on some or all of the 26 charges may have been dictated by the absence of evidence even if the confessional evidence had been admitted. Where, as in the present case, the Crown tenders no evidence at all after a trial judge rejects the tender of an accused person's confession, the jury's verdict cannot be set aside merely because the confessional evidence was not admitted if that was the only evidence tendered and it would not have established all the elements of the offence. The court cannot assume that on a retrial evidence will be tendered to prove the elements of the offence which the confession does not prove. In the present case, there was no examination of the rejected confessional evidence to determine whether, if that evidence had been admitted, there would have been evidence sufficient to establish each of the elements in the offences charged.
32. Even where a rejection of prosecution evidence may be attributable to a question of law alone, a particular caution should be exercised in giving leave to the Attorney- General to appeal against an acquittal on that ground. Where the prosecution bears the onus of proof of the issue to which the rejected evidence is relevant, it is not enough for the Attorney-General to show that the evidence ought to have been admitted. Regard must be had to the standard of proof in a criminal trial and to the likelihood that, had the rejected evidence been admitted, the jury would have convicted: see per Kitto J. in Vallance, at p.66.
33. In this case, the only evidence tendered against the applicant was an unwritten confession allegedly made to police officers. Though the circumstances might not have led the Court of Criminal Appeal to think that it would be unsafe to convict on the confessional evidence alone (cf. McKay v. The King (1935) 54 CLR 1, at pp 9-10; Whitehorn v. The Queen (1983) 152 CLR 657, at pp 660,690-691), it would have been open to the Court of Criminal Appeal to consider whether in their judicial experience that evidence alone would be likely to be accepted and acted upon by a Tasmanian jury to convict the applicant on the 26 charges.
34. However, for the reasons earlier stated, it is unnecessary to pursue further the questions which arise under s.401(2)(b). It is sufficient that the appeal be allowed on the ground that the learned trial judge was, in the result, right in holding that after 2.15pm on 17 May the applicant was being unlawfully detained. The order for his retrial should be set aside and judgment of acquittal on the 26 charges should be restored.
WILSON and DAWSON JJ.: At common law a police constable's powers of arrest extend to the apprehension, without warrant, of anyone whom he reasonably suspects of having committed a felony, whether or not the crime has actually been committed. Nowadays similar powers are usually prescribed by statute and in Tasmania such a prescription is to be found in s.27 of the Criminal Code 1924 (Tas.). Sub-section (2) of that section provides that in any case where a police officer believes on reasonable grounds that any of the crimes specified in Appendix A has been committed it is lawful for him to arrest without warrant any person whom he believes on reasonable grounds to have committed such crime and, under sub-s.(9), it is his duty to do so. Appendix A includes burglary and stealing, which are the relevant offences in this case.
2. At common law it is the duty of a constable arresting anyone on suspicion of a felony to take him before a justice as soon as he reasonably can. In Tasmania this requirement is also statutorily expressed. Section 34A(1) of the Justices Act 1959 (Tas.) provides that where a person has been taken into custody for an offence, he shall, unless it is a simple offence for which he can be and has been released by a police officer, be brought before a justice as soon as is practicable after he has been taken into custody. Other provisions of the Justices Act authorize the justice to grant bail or, if there is no offence, to release the alleged offender: ss.34A(2), 35. Section 303(1) of the Criminal Code provides that it is the duty of any person who has arrested another on a charge of any offence to take him, or cause him to be taken, before a justice without delay, to be dealt with according to law. It is not suggested that there is any difference or, at any rate, any relevant difference between the effect of s.34A(1) of the Justices Act and s.303(1) of the Criminal Code.
3. This case turns upon what is meant by the words "as soon as is practicable". That question, although ultimately one of statutory construction, must necessarily be considered against the background of the common law which provides in this instance the spirit if not the letter of the law. The presumption which requires clear words to override fundamental common law principles has an obvious application in a matter as basic as the liberty of the person: Nolan v. Clifford (1904) 1 CLR 429, at p 444.
4. The respondent, Williams, was convicted upon two counts of burglary and one of theft in Scottsdale in Tasmania. There is no appeal against these convictions, Williams having eventually pleaded guilty to them. He was acquitted upon twenty-six other counts of burglary or theft in other parts of northern Tasmania and it is against these acquittals that the Attorney-General sought leave from the Court of Criminal Appeal to appeal under s.401(2)(b) of the Criminal Code. Leave was granted, the appeal was allowed and a new trial was ordered upon those counts. It is against that decision that special leave to appeal is now sought.
5. Williams was alleged to have confessed to the offences charged in the twenty-six counts, but the trial judge held a voir dire and concluded that the records of interview containing the confessions were obtained at a time when Williams was being illegally detained by the police. In the exercise of his discretion, the trial judge refused to admit the records of interview in evidence. The prosecution led no further evidence upon these counts and Williams was acquitted by direction. Upon the three other counts he changed his plea and, as we have said, was convicted.
6. It is unnecessary for us to set out in detail the circumstances in which Williams was held in custody at the time he is said to have confessed to the offences in question. That has been done elsewhere and it is sufficient to refer to the ultimate findings made by the trial judge. Williams was arrested on 17 May 1984 shortly before 6 a.m. for the offences committed at Scottsdale. It was practicable for him to have been charged with those offences and brought before a magistrates' court by 2.15 p.m. on 17 May 1984. He was not in fact dealt with by a magistrates' court until 2.15 p.m. on the following day, 18 May 1984, although the delay from 10 a.m. on that day until 2.15 p.m. was apparently due to some problem with court administration rather than any fault upon the part of the police. In the result Williams was held in police custody for some twenty-eight hours before being brought before a justice or a magistrate, and he was questioned for about seven and a half hours during this period.
7. The question which confronted the trial judge was whether the police were acting consistently with the requirement that Williams be brought before a justice as soon as was practicable, having regard to the fact that they postponed doing so in order to interrogate him about the various offences, including offences for which he was not arrested. The trial judge concluded that the police had not acted in accordance with the requirements of s.34A(1) of the Justices Act.
8. It is beyond question that at common law no person has power to arrest a person merely for the purpose of questioning him: Beckwith v. Philby (1827) 6 B &C 635; 108 ER 585; Mathews v. Biddulph (1841) 3 Man &G 390; 133 ER 1195; Hadley v. Perks (1866) 1 QB 444; Nolan v. Clifford (1904) 1 CLR 429; Walters v. W.H. Smith &Son, Limited (1914) 1 KB 595; Christie v. Leachinsky (1947) AC 573. The question in this case is whether a policeman has any power to defer bringing before a justice a person whom he has arrested in order to use the time to question the person or to investigate in some other way the offence or offences upon suspicion of which the arrest was made or any other offence or offences which the arrested person may have committed. Apart from the decision in Dallison v. Caffery (1965) 1 QB 348, to which we shall refer in a moment, we should have thought that the answer to that question was clear. A person who is arrested may be detained only for the purpose of bringing him before a justice (or nowadays before some other person with power to deal with him) to be dealt with according to law. For arrest is the beginning of imprisonment and, whilst it is recognized that imprisonment before trial may be necessary in the administration of criminal justice, it must be justified in accordance with the law. There must be a charge and if the person charged can establish his entitlement to bail and can furnish it, the law requires that he be released subject to any conditions which might be imposed upon him. The function of the justice in granting or withholding bail is an ancient one: 1, 2 Philip and Mary c.13; Holdsworth's History of English Law, 5th ed. (1931), vol.I, p.296. The point at which an arrested person is brought before a justice upon a charge is the point at which the machinery of the law leading to trial is put into operation. It is the point from which the judicial process commences and purely ministerial functions cease.
9. This being the purpose of arrest, any delay in bringing a person under arrest before a justice, even if it is to effectuate some other purpose such as the questioning of that person in order to dispel or confirm the suspicion which was the basis of the arrest, is to defeat, however temporarily, the true purpose. Where no delay is involved, there can, of course, be no objection to the occasion of the arrest and subsequent detention being used for the purpose of further investigation of the offence in question or, for that matter, any other offences, provided the investigation is properly carried out and any necessary caution is given: see Hough v. Ah Sam (1912) 15 CLR 452. But to conduct an investigation which does not cut across the purpose for which a person is held under arrest is one thing; to disregard that purpose in order to carry out an investigation is another thing, however much the further investigation may be otherwise necessary or desirable. A person is not to be imprisoned otherwise than upon the authority of a justice or a court except to the extent reasonably necessary to bring him before the justice to be dealt with according to law. That, as we conceive it, is one of the foundations of the common law.
10. It is by writ of habeas corpus that the immediate restoration to freedom of a person illegally detained may be achieved. That is a remedy as old as the law and was declared by the Bill of Rights 1688 to be so. We know of no authority whereby the writ may be refused upon the basis that a person, having been arrested, is required for further questioning. The imprisonment of a person can be justified only by lawful warrant or in the limited circumstances where he is held under lawful arrest for the purpose of obtaining the warrant of a justice for any further detention.
11. Because the extent of the power of arrest and the deprivation of freedom which it involves are such important matters, it is not surprising that the law has been expressed in an uncompromising way. In Bales v. Parmeter (1935) 35 SR (NSW) 182, in a passage which has frequently been cited with approval in this country, Jordan C.J. put it as follows at pp.188-189:
"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 (33
SR 303). 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: ibid."
And at p.190 Jordan C.J. answers the very question posed in this case:
"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."
12. In Reg. v. Banner (1970) VR 240, at p 249, the Full Court of the Supreme Court of Victoria reiterated that police officers "... have no power whatever to arrest or detain a citizen for the purpose of questioning him or of facilitating their investigations". See also Ex parte Evers; Re Leary (1945) 62 WN (NSW) 146; Reg. v. Clune (1982) VR 1, at pp 10-11, 18; Reg. v. Larson and Lee (1984) VR 559, at p 569; Drymalik v. Feldman (1966) SASR 227, at p 234.
13. There is also the recent decision of this Court in Reg. v. Iorlano (1983) 151 CLR 678. In that case it was held that s.212 of the Customs Act 1901 (Cth) did not authorize, for the purpose of enabling an arrested person to be questioned, any delay in taking him before a justice. The section provides that every person arrested may be detained until such time as he can without undue delay be taken before a justice. The words "as soon as practicable" do not appear in the section, although they did appear in a previous section. The Court said at p.680, "(t)here is simply nothing in the provisions of s.212, or in the context in which that section appears, that suggests that the fact that the arresting officer desires to question the arrested person affords any legitimate reason for delay in taking him before a justice. The section gives no power to question an arrested person, and does not make justifiable a delay which resulted only from the fact that the arresting officer wished to engage in questioning". We cannot regard that passage, or the decision itself, as proceeding upon any other basis than that neither the section nor the common law authorized the delay in that case, which was found by the trial judge to be solely for the purpose of enabling the accused to be questioned.
14. Whilst recognizing the curb which the law, expressed as it is in these cases, places upon otherwise quite proper investigation by the police and conceding that its requirements may not always have been as strictly observed in practice as they ought to have been, we, for our part, would have had no doubt that the passages which we have cited correctly state the relevant principles were it not for certain remarks made by Lord Denning M.R., with whom Danckwerts L.J. agreed, in Dallison v. Caffery. They appear at p 367 as follows:
"When a constable has taken into custody a person
reasonably suspected of felony, he can do what is
reasonable to investigate the matter, and to see
whether the suspicions are supported or not by
further evidence. He can, for instance, take the
person suspected to his own house to see whether
any of the stolen property is there; else it may be
removed and valuable evidence lost. He can take
the person suspected to the place where he says he
was working, for there he may find persons to
confirm or refute his alibi. The constable can put
him up on an identification parade to see if he is
picked out by the witnesses. So long as such
measures are taken reasonably, they are an
important adjunct to the administration of justice.
By which I mean, of course, justice not only to the
man himself but also to the community at large.
The measures must, however, be reasonable."
15. Dallison v. Caffery was a case in which the appellant, Dallison, sued a policeman for damages for false imprisonment and malicious prosecution. Dallison had been arrested for allegedly stealing from a solicitor's office. He had been identified by a typist in the solicitor's office from a photograph. He maintained throughout an alibi which eventually appeared sufficiently strong to cause the Crown to lead no evidence against him on his trial. Confined to the facts of the particular case the comments made by Lord Denning M.R. are the more readily understandable. This emerges from the following passage from the judgment of Diplock L.J. at p.374:
"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.
16. Perhaps Dallison v. Caffery did no more than recognize, and give qualified approval to, a common practice of using a period of detention following arrest at least to dispel or confirm the reasonable suspicion upon which the arrest was made. The Royal Commission on Criminal Procedure in England and Wales (1981) (Cmnd. 8092) at par.3.66 expressed the view that this was "well established as one of the primary purposes of detention upon arrest". See Holgate-Mohammed v. Duke (1984) AC 437, at p 445. The Police and Criminal Evidence Act 1984 (U.K.), which followed the report of that Royal Commission has in England validated, with safeguards, including Codes of Practice, the use of detention of arrested persons as an aid to interrogation, thereby rendering lawful police practices which are said to be of long standing: see Leigh, Police Powers in England and Wales 2nd ed. (1985), p.100. The debate in that country has, as a consequence, now taken a different course.
17. Nevertheless, before the enactment of the Police and Criminal Evidence Act, it is apparent that in England a shift had occurred away from the common law as it has been expressed in this country and as we have expressed it. There is the decision in Holgate-Mohammed v. Duke, to which we have referred, which accepts that inquiries of a suspect in order to dispel or confirm the reasonable suspicion upon which he has been arrested are a legitimate cause for detention. This conclusion was influenced by the view that recognition of such a practice was implicit in s.38(2) of the Magistrates' Courts Act 1952 (U.K.) which was substantially reproduced in s.43(3) of the Magistrates' Courts Act 1980 (U.K.). But before that decision views had been expressed in the cases to the effect that the police, whilst they cannot arrest without at least reasonable suspicion of the commission of an offence and may not detain a person merely for questioning, may hold an arrested person in custody without further authority in order to gather the evidence required to prefer a charge. See Houghton and Franciosy (1978) 68 Cr App R 197, at p 205; Re Sherman and Apps (1980) 72 Cr App R 266, at p 271, where Donaldson L.J. referred to the phrase "as soon as practicable" as "a slightly elastic concept"; cf. Malcherek and Steel (1981) 73 Cr.App.R. 173, at p.187. The inevitable result was that the police tended to interpret the phrase "as soon as practicable" (which under the Magistrates' Courts Act 1980 (U.K.) still set the time limit for serious offences for bringing an arrested person before a court) as meaning "as soon as we have decided whether to charge him", with the result that some suspects were held for long periods under arrest. See Zander, The Police and Criminal Evidence Act 1984, (1985) p.53.
18. Obviously that situation must have been somewhat unsatisfactory. To countenance a period of detention in police custody after arrest, without specific limits, for such time as might be reasonably necessary to enable the police to obtain the evidence upon which to charge the suspect, is unacceptably open-ended and quite contrary to what was (and in Australia, in our view, still is) the law. The outcome was, it seems, the provision of specified time limits by the Police and Criminal Evidence Act.
19. Development in England has not been without its parallel in Australia. In Victoria it appears that before 1984 the police tended to operate upon the principle that "as soon as practicable" in s.460 of the Crimes Act 1958 (Vict.), which was the section fixing the period during which persons taken into custody must be brought before a justice, meant "as soon as their usual investigative procedures were completed". See Report on Section 460 of the Crimes Act 1958 by a Consultative Committee on Police Powers of Investigation, April 1986, p.21. This, as we have explained, has never been regarded as permissible as a matter of law in this country and trial judges, perhaps with a somewhat expansive view of the effect of the decision of this Court in Cleland v. The Queen (1982) 151 CLR 1, began, in the exercise of their discretion, to exclude confessions obtained from a suspect whilst in police custody for a longer period than was allowed by the law. The consequence in Victoria was the enactment, after an inquiry, of the Crimes (Criminal Investigations) Act 1984, which had the effect of substituting a new s.460 of the Crimes Act for the existing one.
20. The new section provides that every person taken into custody for an offence shall be brought before a justice, an authorized officer or a magistrates' court within the prescribed period unless he is sooner released, whether on bail or otherwise. The prescribed period is a period of six hours immediately after the person has been taken into custody. Any voluntary statement made by a person in custody and any inquiries or investigations carried out with the consent of a person in custody within the prescribed period or within any further time that he has been remanded in the custody of a police officer shall not be inadmissible in evidence by reason only of the fact that the person was in custody. A police officer may from time to time make application to an authorized officer for a person who is in custody to be remanded in the custody of a police officer for a further period of up to six hours for the purpose of enabling that person to be questioned or to take part in any other inquiries or investigations relating to a criminal offence. The application may be granted subject to conditions. An authorized officer is a stipendiary magistrate or a clerk of a magistrates' court authorized for the purposes of the section. And in South Australia the present s.78 of the Police Offences Act 1953 (S.A.) was introduced in 1985 to provide that where a person is apprehended, without warrant, on suspicion of having committed a serious offence, a member of the police force may, for the purpose of investigating the suspected offence, detain that person for so long as may be necessary to complete the investigation of the suspected offence or for the prescribed period, whichever is lesser, and may take that person during the course of the detention to places connected with the suspected offence. The prescribed period means a period of four hours or such longer period (not exceeding eight hours) as may be authorized by a magistrate.
21. 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.
22. If the law requires modification then it is better done, as Mason J. and Brennan J. have pointed out, by legislation. For there must be safeguards, if necessary in the form of time limits, and they must be set with a particularity which cannot be achieved by judicial decision. Moreover, it is better that legislative change should take place against the background of the common law as it has been understood in this country, which has consistently viewed detention for the purpose of investigation as an unwarranted encroachment upon the liberty of the person. The experience of the common law is something which, in our opinion, should be borne steadily in mind if and when the changing needs of society appear to require statutory adaptation of the existing rules.
23. As we have said, ultimately this case turns upon the proper construction of the words "as soon as is practicable" in s.34A(1) of the Tasmanian Justices Act. Those words must be given a construction which, so far as is possible, is in accordance with the common law and it cannot be suggested that there is any difficulty in doing so. The common law requires an arrested person to be taken before a justice as soon as is reasonably possible and the words "as soon as is practicable" should be taken to mean the same thing. Neither the common law nor the statute permits delay merely for the purpose of further investigation either of the offence for which the person was arrested or of any other offence or offences. What is reasonable will depend upon all the circumstances, including the availability of a justice, but it does not encompass delay of that kind. If we were incorrect in our view of the common law, a real question would arise whether it was possible, notwithstanding the rule of construction to which we have referred, to interpret the words "as soon as is practicable" so as to permit the period of custody during which a person is under arrest to be prolonged beyond the time reasonably required to take him before a justice in order to afford time to investigate the offence or offences upon which he was arrested or any other offences. In Drymalik v. Feldman the Full Court of the Supreme Court of South Australia concluded that the use of the word "forthwith" in the then s.78 of the South Australian Police Offences Act, which governed the obligation of the person arresting a suspect to relinquish custody of him in order that he might be brought before a justice, did not permit delay for the purpose of interrogating him. Upon that basis it distinguished Dallison v. Caffery. The view which we have expressed does away with the need for such an approach in this case.
24. In our opinion special leave to appeal should be granted. Since the trial judge was not in error in reaching the conclusion that the records of interview were obtained whilst Williams was illegally detained, the submissions made by the respondent in support of the decision of the Court of Criminal Appeal cannot be sustained. The appeal should be allowed and the verdicts of acquittal upon the twenty-six counts should be restored.
25. Provision for an appeal against a verdict of acquittal is exceptional. Under s.401(2)(b) of the Criminal Code it lies by leave upon "a question of law alone". The grounds of appeal to the Court of Criminal Appeal raised a question of mixed fact and law which did not fall within the section. We agree with the view expressed upon this aspect of the matter by the Chief Justice. We also agree with him that the appeal was not from the decision of the trial judge on the voir dire, but from the acquittals which were inevitable when the prosecution led no evidence on the trial. For these additional reasons we think that this appeal should succeed.
26. We would grant special leave and allow the appeal.
Application for special leave to appeal granted.
Order that the judgment of the Court of Criminal Appeal of the Supreme Court of Tasmania be set aside and that the appeal to that court be dismissed.