Holding A Suspect Without Charge: Advice Your Criminal Lawyer Should be Able to Give

As criminal lawyers in Perth, we often get asked for legal advice about what powers the police have to detain a suspect without charge.  The best criminal lawyers in Perth will be able to give you clear and accurate advice about police powers and what the criminal law says they can and can’t do. The top criminal lawyers in Perth will be able to tell you pretty quickly if the police have exceeded their powers under Western Australia’s criminal law.

Police powers in Western Australia are mostly governed by the Criminal Investigation Act 2006. The rights of people placed under arrest are considered to be a cornerstone of the criminal law. Under section 128 of the Act, the police have power to arrest a person suspected of having committed a serious criminal offence. Under section 139 of the act, police can detain and arrest the suspect for the purposes of:

  1. conducting a search;
  2. investigating any breach of the criminal law suspected to have been committed by the suspect;
  3. interviewing the suspect in relation to any offence they are suspected of committing;
  4. deciding whether or not to charge the suspect with an offence.

The detention of a suspect for the above purposes must be in accordance with section 140. Section 140 states that an arrest a suspect may only be detained for a period of up to 6 hours from the time of their arrest. This period of six hours can be extended by an additional six hours upon an application being made to a “senior officer” who is not involved in the investigation into the arrested suspect. An order made by a senior officer extending the detention of arrested suspect must be one of the four reasons listed above. West Australian criminal law states this can only be done once.

Extending the detention of an arrested suspect must be for a “reasonable period” having regard to the factors in section 141. In determining what a reasonable period is, regard must be had to the following factors:

  1. the number and complexity of the offences under the criminal law to be investigated;
  2. travel time needed by officers involved in the investigation;
  3. time needed to transport the suspect to a place where there are appropriate facilities to conduct an interview or other investigation;
  4. time needed to conduct identification procedures such as the taking of fingerprints or DNA;
  5. time needed to conduct an identification parade;
  6. time needed to afford the suspect their rights under the act, such as receiving legal advice from a barrister or solicitor or informing family or friends of the whereabouts;
  7. then time needed to interview potential witnesses, whether before, during or after any interview with the suspect;
  8. the time needed to interview any people who are suspected of being involved in an offence suspected of also having been committed by the suspect;
  9. the time needed to allow a suspect to receive medical treatment;
  10. the time needed to complete any searches, interviews with the suspect, investigations or deciding whether or not to charge the suspect.

After a senior officer has extended the detention of arrested suspect, the continued detention of that suspect can only be extended upon an application be made to a magistrate. Upon an application to a magistrate, the detention of an arrest suspect can be extended for a period of up to 8 hours. Unlike detention authorised by a senior officer, a Magistrate can authorise more than one extension.

When the detention of an arrested suspect is extended either by a senior officer or by magistrate: a written record must be made of:

  1. the senior officer or magistrate making the authorisation;
  2. the arrest suspect to whom it relates;
  3. the further period of detention being authorised;
  4. the date and time of the authorisation;
  5. the reasons for the authorisation.

If practical, the arrested suspect must be provided with a copy of the written record.

The consequences of not complying with these provisions is that any evidence obtained by the police as a result is likely to be held to be illegally obtained. If that is the case, then the police or the DPP will need to apply to the relevant court to have the illegally obtained evidence admitted, unless the accused person does not object.

In determining whether illegally obtained evidence should be admitted, the court is required to weigh a number of competing factors. The court must take into account:

  1. any objection to the evidence being admitted;
  2. the seriousness of the offence in respect of which the evidence is relevant;
  3. the seriousness of any illegality which resulted in the evidence being illegally obtained;
  4. whether the illegality was intentional or reckless and whether it arose from an honest and reasonable mistake;
  5. the probative value of the evidence;
  6. any other matter the court sees fit.

In this regard, the West Australian law operates differently from the United States where illegally obtained evidence is usually inadmissible.

It is important that your criminal lawyer knows about the limits of police powers and the importance of identifying evidence that has been illegally obtained. A criminal law specialist is best placed to identify the sorts of things. The exclusion of illegally obtained evidence by criminal defence lawyer can dramatically alter the outcome of any case.

If you feel that you have been illegally detained by the police in the course of an investigation: give us a call today. Our team of criminal lawyers and barristers based in the Perth CBD are criminal law specialists and experienced in providing sound legal advice to clients. If you’re looking for a criminal defence lawyer in Perth to assist with your case: give us a call today on 1300 274 692 or fill out an online enquiry and one of our experienced criminal lawyers will be happy to assist you.

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