INTRODUCTION: SUMMONS OR ARREST?

8.1 It was suggested in the Issues Paper that a person with an intellectual disability should not be arrested unless this course is absolutely necessary in the circumstances, and that proceedings should be initiated by means of a summons or court attendance notice. Such a proposal does not only have merit in relation to people with an intellectual disability, of course. The Commission has already commented, in its Police Powers Report that the:

primary purpose of an arrest is the apprehension of a person suspected of the commission of a criminal offence. However, an arrest should also be seen in context as a preliminary step in the process of the prosecution of a suspected offender. The ultimate purpose of an arrest is to ensure the subsequent attendance of the arrested person before a court in the event that a prosecution is commenced. Arrest is not the only means available to achieve this purpose, of course. Attendance can also be required by a summons (issued by a justice), which states the matter of the information and requires the alleged offender to appear before a justice at a specified time and place, or by the more modern procedure of the issue of a court “attendance notice” by a senior police officer. The courts in New South Wales have recognised that the appropriateness of the exercise of the discretion to arrest must be measured against the circumstances.¹ [footnote references deleted]

The Commission quoted, in this connection, the judgment of Samuels J A who queried the necessity to arrest for nude sunbathing and commented that:

[a]rrest, for the great majority of people, is equivalent to an additional penalty. It is a means of setting the criminal process in train which should be reserved for situations where it is clearly necessary, and should not be employed where the issue of a summons would suffice.²

8.2 For Commonwealth crimes, this issue is governed by s 8A of the Crimes Act 1914 (NSW) as follows:

Any constable may, without warrant, arrest any person, if the constable has reasonable ground to believe:

(a) that the person has committed an offence against a law of the Commonwealth; and

(b) that proceedings against the person by summons would not be effective. [emphasis added]

The Commission believes a similar requirement, that a police officer must consider whether a summons would be effective before making an arrest, would be appropriate in New South Wales. This would require an amendment to s 352 of the Crimes Act 1900 (NSW).

8.3 It has also been suggested that:

there may be an even greater obligation on police officers effecting an arrest to ensure understanding of the grounds for an arrest if there is any suspicion of mental disorder or retardation.... It is quite unconvincing to apply principles that excuse the arresting officer from communicating the grounds for arrest because of some failure of a suspect to understand communicated grounds due to the suspect’s mental disorder. The correct means for addressing the issue is to inquire whether the officer did all that was reasonable in the circumstances to inform the suspect of the grounds for his arrest.³

One submission⁴ agreed that it was preferable to charge people with an intellectual disability by summons as an alternative to arrest. However, it has been suggested to the Commission that a summons sometimes may be inappropriate if it is possible that it will not be understood by the person it is addressed to, and if it removes the possibility for police intervention which may prevent future crimes. The Commission seeks submissions about ways in which the procedure in relation to summons may be improved to increase understanding by the recipients. The Commission does not believe, at this stage, that it should make any specific proposals in regard to the use of arrest or summons for people with an intellectual disability other than to encourage the use of summons for all suspects unless the police believe that commencing proceedings by this means would be ineffective.

TENTATIVE PROPOSALS FOR REFORM: SUMMONS OR ARREST?

34. An amendment should be made to s 352 of the Crimes Act 1900 (NSW) in terms that a police officer should only arrest a person if that officer has reasonable grounds to believe that proceeding against the person by way of a summons or court attendance notice would not be effective.

BAIL

8.4 If an arrest is made, it has been suggested that bail for people with an intellectual disability should be virtually automatic. Bail may be granted at various times throughout criminal proceedings, from the time of charging or the initial court appearance through to appeal bail following conviction. The defendant, the police, the informant or the Attorney General may at any time appeal any decision to grant or refuse bail.⁵ An “authorised officer” (an officer “of or above the rank of sergeant” or “for the time being in charge of the police station”⁶) must, as soon as reasonably practicable after a person is charged, make a determination as to bail or cause that person to be brought before a court.⁷ If the police refuse bail or otherwise do not release the person on bail, that person is to be taken before a court as soon as reasonably practicable, where a bail determination is then made.⁸

8.5 In practice, the majority of bail determinations are made by police. Julie Stubbs⁹ found that of a sample of 943 accused persons, 819 involved bail being determined by police (43 persons had bail determined by the court, and 69 were taken by police directly to court where the charge was heard immediately, so no bail was required). Of the police bail determinations, 53 (or 7.3%) resulted in refusal of bail.¹⁰ A police prosecutor has estimated at 90% the proportion of persons arrested in South Australia who are released on bail by police, with more than half of the remaining 10% remaining in custody for the sole reason that arrest was pursuant to a warrant of apprehension, which precludes release on bail prior to a court appearance.¹¹

8.6 The allocation of the power to determine bail to both the police and the courts does not affect most of the issues touching on that determination, and many of the factors involved may work to the disadvantage of a person with an intellectual disability in either case. The Commission sought information about the practical effects of existing bail procedures on people with an intellectual disability. The submissions received are discussed below.

Understanding of the bail process

8.7 As discussed in the Issues Paper, a police officer is required to “give the accused person such information in writing respecting his entitlement to or eligibility for bail as is prescribed by the regulations”.¹² Depending upon the offence concerned, this information is provided either by Form 1: “Information as to Right to Release on Bail in Respect of Minor Offences”, or Form 2: “Information as to Entitlement to Bail”.¹³ The information in these forms is couched in the legal terminology of the Bail Act 1978 (NSW) (the “Bail Act”) itself, and so “is difficult for persons with no legal background to understand, and may be totally incomprehensible to less educated persons and to young offenders”.¹⁴ A person with an intellectual disability is highly unlikely to be able to read and comprehend such information.

8.8 Also, prior to the making of a bail determination, an accused person may be required to fill out a police questionnaire (Form 4: “Background and Community Ties Questionnaire”) to provide information as to his or her domestic and employment situations, and prior criminal record.¹⁵ This information is rated according to a prescribed scale of points and the interviewing officer’s own observations of the accuracy and completeness of answers, and is used to assess the person’s suitability for bail.¹⁶ The length and complexity of Form 4 is likely to render it incomprehensible to most people with an intellectual disability,¹⁷ raising the possibility that favourable information will be excluded or unfavourable information unnecessarily disclosed to the disadvantage of the accused. It is said that in practice the rating test is carried out rarely, if ever.¹⁸ However, as there is nothing in the Act, Regulations or Commissioner’s Instructions specifying that the test is mandatory, nor any requirement for an accused to be informed that compliance is voluntary, there may be confusion about when and whether the information should be sought and/or given. In any event, a person with an intellectual disability is less likely than others to refuse to complete the questionnaire if requested by police to do so.

8.9 Difficulty of understanding may disadvantage the accused with an intellectual disability in the determination process, an example of which was provided by the Kingsford Legal Centre:

One of our solicitors was involved with a number of matters regarding intellectually disabled people and police whilst working as a duty solicitor at a suburban Local Court. On one occasion an intellectually disabled client had been refused bail by the police officer because of the intellectually disabled client’s inability to understand the requirements for entering bail and the information that the police officer required in order for bail to be granted.¹⁹

The determination of bail

8.10 There is a right to bail (with or without conditions) for certain minor offences defined by the Act.²⁰ This right is negated where, among other reasons, there has been a previous failure to comply with a bail undertaking or condition imposed in respect of the offence; or the person is, in the opinion of the authorised officer or court, incapacitated by intoxication, injury or use of a drug, or is otherwise in danger of physical injury or in need of physical protection.²¹ With specified exceptions (for which bail nonetheless may be sought) there is a presumption in favour of bail for all other offences.²²

8.11 People with an intellectual disability who fail to comply with a bail undertaking may do so because of poor organisational skills and understanding rather than deliberate avoidance. Also, the behaviour of a person with an intellectual disability, such as a failure to understand simple questions, is sometimes mistaken for that of a person who is under the influence of alcohol or a drug.²³ In such a case the person with an intellectual disability may unfairly lose the right to release on bail. Where the presumption of bail applies, bail is granted or refused according to criteria set out in s 32 of the Act. Many of these criteria may act to the disadvantage of an accused with an intellectual disability. Considerations relating to prior failure(s) to appear and perceived incapacitation by intoxication or drugs again become relevant. Others, such as those relating to the person’s background, community ties, employment and residence,²⁴ may mean that a person with an intellectual disability is less likely to receive bail:

[i]f the applicant has an intellectual disability, the employment and accommodation history may be adversely affected by the factor of the disability. An intellectually disabled person’s opportunities for employment are restricted. A lower income has ramifications for the quality and circumstances of the applicant’s accommodation. Perhaps the applicant’s only accommodation option is boarding house-type accommodation, and thus he or she automatically would score lowly in those two categories, suggesting, perhaps quite erroneously, that he or she is not a good candidate for bail.²⁵

8.12 The Legal Aid Commission of NSW agreed that people with an intellectual disability often “do not have good family and community support to enable them to meet bail conditions and, as a consequence, are often unnecessarily held in custody.”²⁶ Further, given that an intellectually disabled person’s social ties and supports “may be especially fragile” and that their disability can be a disadvantage in their finding employment and accommodation, the negative effects of a period in remand may be substantial and long-term: “a far longer period of time may be required to replace the applicant in his pre-remand position”.²⁷ These disadvantages also could act to hinder the funding and preparation of a defence.

8.13 Other determination criteria under the Act include those relating to the time which the person may be obliged to spend in custody if bail is refused, the conditions of that custody, and the needs of the person in preparing for court and/or obtaining legal advice.²⁸ In custody the accused with an intellectual disability is especially vulnerable to discrimination and sexual assault.²⁹ Further, the special difficulties for lawyers in obtaining instructions from persons with an intellectual disability are exacerbated under custodial conditions by security measures, a lack of privacy, and the impossibility of a trusted friend or relative attending any conference.³⁰

Understanding and complying with bail conditions

8.14 The conditions, if applicable, under which bail may be granted are set out in the Act,³¹ and may act to the disadvantage of the accused with an intellectual disability. Although the philosophy of the Act is to reduce reliance upon monetary conditions, only two of the possible eight conditions are non-monetary, and the system operates primarily on a financial basis.³² Julie Stubbs found that of 198 police bail determinations, only 59 (30%) were granted under non-monetary conditions (although 93 (47%) involved the accused and/or an acceptable person agreeing, without security, to forfeit a sum of money in the event of non-compliance).³³ Many people with an intellectual disability rely on social security benefits or have low incomes, and so any sort of monetary condition may be difficult, if not impossible, to meet. Where monetary conditions cannot be met, an accused may need to rely on family or friends who may be similarly impecunious.

8.15 Of the non-monetary conditions which may be imposed, one involves the accused entering into an agreement to observe specified requirements as to conduct when at liberty. The other involves an “acceptable person” who is acquainted with the accused satisfying the court that they consider him or her to be responsible and likely to comply with any imposed conditions.³⁴ “Acceptable person” is not clearly defined: there is no definition in the Act; the Regulation only provides that a determination may be withheld until the acceptable person’s name and address is verified;³⁵ and the Commissioner’s Instructions provide that a person need only be similar in name, age and description to a person with an active criminal record in order to be unacceptable.³⁶ A lack of community ties and an unwillingness to disclose intellectual disability may restrict the number of persons that an accused with an intellectual disability would be willing to nominate as an acceptable person. Even if a welfare worker or “citizen advocate” is available, their role often is limited to giving support: “it may be unrealistic to expect them to make themselves available as an acceptable person, or surety”.³⁷ Indeed, it has been stated that some government departments specifically disallow their welfare worker employees from acting as surety or as an “acceptable person” for their clients.³⁸

8.16 Bail conditions, for example reporting weekly to a police station or limitations on a person’s movements, may be more onerous for the accused with an intellectual disability to understand and comply with. Misunderstanding of bail conditions also may increase the possibility of a breach of the bail undertaking. A failure to appear pursuant to a bail undertaking is an offence under the Act,³⁹ prejudices future bail determinations, and potentially exposes the accused to additional and perhaps harsher penalties than would have applied otherwise. Submissions to the Commission have suggested, for example, that:

[m]ore effort needs to be taken in cases where a person with an intellectual disability is granted bail with conditions to ensure that the person understands and can comply with those conditions. For example if the person is required to report to the police, does the person understand the reporting requirements and does the person have access to the resources required to comply with the requirements such as access to transport and money?.⁴⁰

8.17 Under the Act, any bail undertaking must be given by the accused in writing,⁴¹ as must any agreement and/or acknowledgment regarding conditions imposed.⁴² Usually, the conditions are merely read out and “a cursory acknowledgment sought” by the officer.⁴³ An accused with an intellectual disability may appear to comprehend the conditions, but may not in fact understand them.⁴⁴ Apart from requirements relating to the provision of written information before and after the bail determination,⁴⁵ and the requirement for an acceptable person to be warned of penalties for giving a false acknowledgment,⁴⁶ there is no requirement in the Act, Regulation or Commissioner’s Instructions that any conditions imposed on an accused be clearly explained before an undertaking is entered or acknowledgment sought.

8.18 To overcome the difficulty for people with an intellectual disability in understanding bail conditions, it has been suggested that:

[i]t would be of some assistance if a court official or police officer had clear responsibility to explain any conditions attached to bail to the person, and to make sure that the person understood them. Magistrates, solicitors and police also need to be made more aware of difficulties which some individuals may experience in trying to comply with conditions, such as limited ability to obtain or use transport, reliance upon others for assistance in fulfilling conditions and any costs associated with this.⁴⁷

The continued presence of the Support Person (referred to in relation to police questioning in Chapter 6, above) should be required to assist the accused in this way.

8.19 The South Australian position, where a Magistrate may request a bail assessment by a court probation officer, has been suggested as one way to overcome problems relating to bail. According to the Office of Legal Aid and Family Service’s submission, the role of the probation officer is as follows:

That officer interviews the applicant and makes enquiries by telephone following up any information which has been supplied by the applicant. This may involve details of accommodation, relatives, potential guarantors, etc. The probation officer presents an oral report to the court as soon as enquiries have been completed, which is usually later on the day of appearance, hence avoiding long periods of detention in custody. Duty solicitors have some capacity to perform a similar function, but the independence of the probation officer tends to give more credibility to the information presented to the court. A further advantage is that probation officers often have a greater range of resources available to conduct relevant enquiries.⁴⁸

This suggestion is perhaps more applicable to the court environment than to the police station. However, the concept of a specialist bail officer within the police station has merit. Although not restricted in its application to persons with an intellectual disability, the potential disadvantages faced by this group may suggest that specialised services are required, and that police should be required to take an accused’s intellectual disability into account when assessing the likelihood of the accused understanding and complying with bail conditions, their residential and employment status, and the burden upon the accused of any conditions. This role could be fulfilled by General Duties Disability Officers or other specially trained police (see Chapter 5) within each station or across a given locality, and should be set out clearly in the proposed Code of Practice.

Guardianship issues

8.20 The issue of whether a suspect has, or should have, a guardian may be raised at the bail stage, if it has not already been raised in the police interview. In circumstances where the police are uncertain of the person’s capacity to understand or comply with bail conditions, they may be willing to release a person into the custody of a guardian appointed for this purpose, pursuant to the Guardianship Act 1987 (NSW). A guardian’s role is limited, both by the terms of the order and by the fact that a guardian cannot make decisions about services which do not exist. An appropriately appointed guardian could, however, authorise heightened supervision at the suspect’s place of residence. A guardian could also assist in arranging for legal advice. The appointment of a guardian should not be seen, however, as a convenient solution, and should not be considered for a person who does not require such an intrusion into his or her life.

Denial of bail due to inadequate services

8.21 The Commission has been told that even where a person has been bailed, their residential facility may refuse to take them back. This may occur when police intervention and charging arises only at the end of a history of petty offending by a person with an intellectual disability, where those offences have previously gone unpunished by the police or the residential facility: that is, when the course of behaviour exceeds an “ ‘acceptable social nuisance’ level”.⁴⁹ In such a case, the accused with an intellectual disability is left without accommodation or services and it has been stated that very clear guidelines about whose responsibility it is to provide accommodation and services for these people must be developed.⁵⁰

8.22 One organisation has commented that:

[i]t is noted that some individuals do not have anyone or any service who can be requested to assist them with accommodation and other support while on bail. People are therefore being denied liberty due to lack of services.⁵¹

It has been suggested that:

[i]n the case of intellectually disabled people who are denied bail on the basis of being homeless or without sufficient community/family ties the use of ‘bail hostels’ with support workers should be considered. Such an arrangement would enable intellectually disabled people to meet and maintain bail conditions as a reasonable alternative to custody. It is hard to know at this point how many intellectually disabled people are denied bail in this way and therefore how useful a proposal this would be. However a pilot service could be set up to begin with ie attach the service (bail hostel) to an already existing hostel or institution.⁵²

The Legal Aid Commission of NSW made a similar submission, stating that a bail hostel system similar to that recommended in the Royal Commission into Aboriginal Deaths in Custody may be appropriate for the following reasons:

This would provide for controlled accommodation and some supervision which would enhance the probability of the person attending court and reduce the possibility of offences being committed whilst on bail. At the same time it would avoid the trauma and risk of abuse that bail refusal and incarceration poses for people with an intellectual disability.⁵³

8.23 Further, hostels also may provide some limited practical and social work assistance to residents, by encouraging them to use remand time to establish employment and/or residential ties, or to provide exposure to beneficial programs and services.⁵⁴ These benefits also might flow on to affect positively a later determination of sentence. On an administrative level it has been estimated that the cost of maintaining a person in a bail hostel is less than a third of the cost of keeping them on remand in prison.⁵⁵ The Commission suggests that a pilot scheme for a bail hostel for people with an intellectual disability should be established.

8.24 The adoption of bail hostels as an appropriate option would require consideration of several issues. One concern might be whether or not hostels should be “open” or “mixed”, or specialised according to the perceived needs of the resident type (such as a hostel for Aborigines or for people with an intellectual disability). An open hostel may fail to cater to any specialised needs of persons with an intellectual disability - yet a specialised approach may be contrary to the normalisation principle. A second concern would be that the existence of hostels as a form of “halfway-house” of remand may result in some offenders with an intellectual disability being refused bail when they would otherwise have been granted it. Lastly, any issues of public concern as to the operation, geographic placement, and occupants of the hostels would need to be addressed.

Special bail provisions

8.25 A further consideration is whether special provisions of the Bail Act should be developed to counter the disadvantages faced by persons with an intellectual disability. There exists various provisions, and recommendations for provisions, which are concerned specifically with juvenile and Aboriginal offenders in relation to the determination of bail and procedures when bail is refused. In New South Wales the Bail Act provides that when determining bail for a juvenile, the authorised officer is to ignore the fact that the accused does not reside with a parent or guardian.⁵⁶ Victorian legislation currently provides that bail cannot be refused to a young person because he or she has no or inadequate accommodation.⁵⁷ The Burdekin Inquiry recommended that legislation should establish a general presumption in favour of bail for children and provide that a lack of accommodation should not be a sufficient criterion for refusing bail.⁵⁸ These provisions and recommendations recognise that the residential status of a child often is not a factor within the child’s control, and so should not work to the child’s disadvantage in a bail application. The Queensland Law Reform Commission has recommended that juveniles should be released into the custody of an appropriate person or organisation when the only reason for denying bail is to protect the child’s welfare, and that the legislation should be amended to place onto police a duty to release children on bail.⁵⁹

8.26 In relation to Aboriginal offenders, the NSW Police Commissioner’s Instructions provide that detention by police is to be avoided where other procedures or facilities are available or where the accused is in custody “for intoxication or other minor offences”; and that where appropriate, bail procedures are to be instituted as soon as possible.⁶⁰ Responding to the recommendations of the Royal Commission into Black Deaths in Custody, the Queensland Law Reform Commission has recommended that: the practical operation of bail legislation be closely monitored to ensure that bail entitlements are being recognised;⁶¹ communication with, and access for, the Aboriginal Legal Service be provided when police bail is denied to Aborigines;⁶² and bail legislation be reviewed in relation to “any criteria which inappropriately restrict the granting of bail to Aboriginal people” - including those relating to employment and residential status, and bail history.⁶³

8.27 Where bail is refused, the Law Reform Commission of Victoria recommended that a power exist under the State’s bail provisions to remand a person aged 17-21 years to a Youth Training Centre, in appropriate circumstances.⁶⁴ The Burdekin Inquiry recommended that alternatives to custody before trial be established for children.⁶⁵ In New South Wales, legislation and the Police Commissioner’s Instructions provide that juveniles refused bail by police are to be taken to a nominated detention centre appropriate to the class of person to which that person belongs, and can be detained within the police station during the period after charging but before the first court appearance only if detention in such a centre is impracticable.⁶⁶ Where an Aboriginal accused is detained, the Police Commissioner’s Instructions provide that the police are to make every effort: to contact the accused’s relatives, friends or the Aboriginal Legal Service (ALS); to allow access to these parties; and to follow set procedures regarding how the accused is to be detained and observed.⁶⁷

8.28 It may be that the extra burden placed upon police when a juvenile or Aboriginal accused is refused bail is sufficient to affect, indirectly, the bail determination in favour of the accused, although there is no data to this effect. However, the very existence of these options helps to alleviate the disadvantages faced by these two groups of vulnerable persons within the bail process. Similar provisions could be added to a Code of Practice (or the NSW Police Commissioner’s Instructions) and the Bail Act, to ensure that persons with an intellectual disability are not disadvantaged either in obtaining bail, or coping with the burden imposed either by conditional bail or remand. Of particular relevance are criteria relating to residential and employment status; financial considerations; and any particular difficulties in the understanding of, or participation in, the bail process. The inclusion of special provisions would not offend the normalisation principle, as their object is not to favour persons with an intellectual disability, but to redress the disadvantages faced by those persons within a system which focuses upon specific criteria and processes. The Commission seeks further comments about other special bail provisions which may assist the person with an intellectual disability.

TENTATIVE PROPOSALS FOR REFORM: BAIL

35. A Code of Practice should include provisions (or the NSW Police Commissioner’s Instructions should be amended) to:

• ensure that the Support Person (present during the questioning of a suspect with an intellectual disability) is present to assist in the bail procedure, whether or not a lawyer also is present; and
• confer on police a positive duty to take an accused’s intellectual disability into account when assessing the likelihood of the accused understanding and complying with bail conditions, the importance of the accused’s residential and employment status in that assessment, and the relative burden upon the accused of any conditions imposed.
36. A pilot scheme for a bail hostel for people with an intellectual disability should be established (along the lines proposed by the Kingsford Legal Centre, namely attached to an existing hostel or institution).

37. The forms in Schedule 1 of the Bail Regulation 1979 (NSW) should be amended to provide comprehensive plain English explanations of the bail process, bail conditions, and the accused’s rights and obligations in relation to bail.

38. The Bail Act 1978 (NSW) and the Bail Regulation 1979 (NSW) should be amended to specify whether the provision of information by an accused through the Background and Community Ties Questionnaire (Form 4) is mandatory or voluntary, and in what circumstances it is required.

POLICE CUSTODY

Time limits

8.29 The Commission’s Police Powers Report dealt with the issue of imposing time limitations on the detention of suspects in police custody for the purposes of questioning and other forms of investigation. The common law position is governed by the High Court’s decision in Williams v R,⁶⁸ which reaffirmed that police must bring an arrested person before a Justice “as soon as practicable”. In particular, police are not entitled to delay this process for the purpose of questioning the arrested person or conducting any other form of investigation into the suspected criminal activity of the arrested person.

8.30 It is interesting that in Williams the High Court invited legislative review of the current common law system. Legislative alteration of the common law rule has taken two basic forms in Australia: the “fixed period” and the “reasonable period” of time for detention in police custody. In 1985, South Australia introduced a “fixed period” system of investigative detention, limited to an initial period of up to four hours. This followed the recommendations of the Australian Law Reform Commission⁶⁹ and accords with the later report of the Gibbs Review of Commonwealth Criminal Law Committee.⁷⁰ Federal law also provides for a fixed period of detention: see Part 1C of the Crimes Act 1914 (Cth),⁷¹ which commenced on 1 November 1991. This Part deals with the investigation of Commonwealth offences and sets out procedures relating to the period of arrest and the rights of the arrested person. In England and Wales the Police and Criminal Evidence Act 1984 (UK) (usually referred to as “PACE”) provides for a fixed period system, although the permissible periods of detention far exceed what is generally considered acceptable in Australia. The fixed period system was also in operation in Victoria for a time before a change, in 1988, to the “reasonable period” for detention, following strong lobbying by the police.

8.31 A “reasonable period” of detention is the main alternative to the fixed period approach: for example, the Northern Territory also has a “reasonable period system”.⁷² The position since 1988 in Victoria requires that every person taken into custody for an offence must be either released unconditionally, released on bail, or brought before a bail justice or the Magistrate’s Court “within a reasonable time of being taken into custody”.⁷³ Section 464A(4)(a)-(l) sets out the factors which may be considered in “determining what constitutes a reasonable time”, which factors include:

(h) Any time taken by a legal practitioner, interpreter, parent, guardian or independent person to arrive at the place where questioning or investigation is to take place; [emphasis added]

8.32 In the Police Powers Report, the Commission rejected the “reasonable period” approach, which effectively gives the police an enormous lawful discretion to detain suspects in custody for lengthy periods, legitimising the current practice to act in breach of the common law and detain a person for the purpose of questioning. The Commission considers that this approach provides insufficient guidance for the police and offers little in the way of accountability mechanisms. In its recommendations, however, the Commission did not recommend that evidence obtained outside the time limit should be automatically excluded, but rather recommended, as discussed in Chapter 2, that such evidence be presumed to be inadmissible, subject to judicial discretion to admit for a variety of listed reasons.

8.33 At the present time, New South Wales, Queensland, Tasmania, and Western Australia are still governed by the common law (that is, the Williams case) in relation to post-arrest investigative detention. As mentioned above, however, the New South Wales Attorney General recently announced that proposed amendments to the Crimes Act 1900 (NSW) will mean that police can only detain suspects for a “reasonable time”, thus rejecting the Commission’s proposal for a fixed period for detention after arrest before a person must be brought before a Justice or bailed. No details have yet been provided about the proposed guidelines for the determination of “reasonable time” by the police.

A special rule for suspects with an intellectual disability?

8.34 The Issues Paper suggested that a strict time period should be considered for the period of interrogation and detention in custody of suspects with an intellectual disability. The Redfern Legal Centre Intellectual Disability Rights Service argued that people with an intellectual disability should only be held in police custody in exceptional circumstances, because:

[s]ome people with an intellectual disability have no concept of time or the criminal process at all and may suffer greatly emotionally during this time. We are also aware of cases where a person with an intellectual disability held in custody has been harassed by others. These pressures may cause the person to react in an inappropriate way further reducing the possibility of release.⁷⁴

The Commission has been told of other people with an intellectual disability who become particularly agitated when locked up and who therefore may be more at risk in police custody than the general population. The New South Wales Council for Intellectual Disability has recommended that strict time periods for police questioning would be of assistance for people with an intellectual disability, though commenting that such issues are relevant for all people being questioned by the police.⁷⁵

8.35 Victoria Police commented in relation to length of custody:

Whilst Victoria Police agree that there should be limits on periods of interrogation and custody for persons with an intellectual disability, it is not considered that such should be a strict legislative requirement. Checks and balances within the current Victorian legislation are seen as adequate, as are Victoria Police practices and policy in relation to dealing with an intellectually disabled person. Presence of independent third parties when an intellectually disabled person is a witness, victim or suspect does much to assist Victoria Police in relation to reasonable time frames for the person concerned.⁷⁶

8.36 The Crimes Act 1914 (Cth) provides special procedures for Aboriginal persons and Torres Strait Islanders⁷⁷ and for persons under 18.⁷⁸ No special procedures, however, are provided for a person with an intellectual disability suspected of committing a federal offence.⁷⁹ The Act limits the time during which a person can be held for questioning to two hours for Aboriginal persons, Torres Strait Islanders and children,⁸⁰ and to four hours for any other suspect (including, necessarily, adults with an intellectual disability).⁸¹ The period of detention can be extended to eight hours through an application to a magistrate or justice of the peace where the subject offence carries a term of 12 months imprisonment or more.⁸² The factors to be taken into account are listed at s 23D(4), but do not include factors such as the suspect’s intellectual disability. The Commonwealth Act also provides the right to an interpreter for a person whom an investigating officer believes is unable, because of an inadequate knowledge of the English language or a physical disability, to communicate orally with reasonable fluency in that language.⁸³ However, this is unlikely to be of much assistance to most people with an intellectual disability.

8.37 The Commission has already expressed its preference for a limited period of detention for all suspects. If, as appears likely, a “reasonable period” approach is adopted as the general regime for New South Wales, the Commission suggests that the criteria for the determination of what is “reasonable” should take into account the vulnerability of the suspect, for example as a result of his or her youth, Aboriginality, physical or intellectual disability, or mental illness.

Other custody issues

Custody Officers

8.38 In the Police Powers Report, the Commission recommended that the New South Wales Police Service consider the practicability of the introduction in New South Wales of a formal system of “Custody Officers”, based upon the PACE system in England and Wales, whose duties would be statute based (and which would extend beyond those of the present informal “custody officers”).⁸⁴ Custody Officers would be senior officers responsible for the supervision of suspects in custody, both before charging and while on remand. The Commission summarised their role in England and Wales as follows:

When a person is brought to the police station, the custody officer must review the lawfulness and propriety of the arrest, and review the sufficiency of the available evidence to determine if the person should be discharged. The custody officer then determines whether or not a period of custodial investigation is necessary. The custody officer is responsible for the suspect’s treatment and well-being for the period of detention, including ensuring that the person receives all of the appropriate safeguards provided by law and the Codes of Practice, and that the custody records are diligently maintained. If disputes arise between the custody officer and the investigating officers ... they are referred upwards to more senior officers for resolution.⁸⁵ [footnote references deleted]

The Commission still believes that there is merit in the Custody Officer system and that this issue is of particular importance for people with an intellectual disability.

The NSW Police Commissioner’s Instructions

8.39 Instruction 155 deals with people in police custody. Section 1, “Screening Prisoners”, deals with the importance of identifying pain, illness, injury or the signs of potential suicide in a person arrested, but provides no specific guidance as to identifying intellectual disability. The “Apprehending Officer” is required to make an initial assessment of the arrested person and take note of the prisoner’s physical condition and mental or emotional state.

Medical issues

8.40 In the Issues Paper, the Commission commented that due to communication difficulties, police officers may be unaware that a person with an intellectual disability is taking some form of medication and may require continual medical attention and regular supervision for their own welfare. The New South Wales Council for Intellectual Disability commented that:

[n]ot all people with intellectual disability take medication, however those who do so may have difficulty requesting it, or explaining what it is for or when they need to take it. Council is aware of a case where a young man was placed in custody and had his epilepsy medication taken from him. He was greatly agitated by the whole event, and disoriented - circumstances in which he was more likely to experience a fit.⁸⁶

8.41 In the NSW Police Commissioner’s Instructions the “Custody Officer” is given the following guidelines in relation to “Mentally ill/handicapped/retarded prisoners”:

As soon as practicable inform the appropriate adult of the grounds for detention, and whereabouts, of a prisoner who is suffering from mental illness or is mentally handicapped. Ask the adult to come to the station to see the prisoner.

In these circumstances, the appropriate adult means, either:

• a relative, guardian or some other person responsible for the care or custody of the mentally ill person
• someone who has experience of dealing with mentally ill or mentally handicapped persons but is not a police officer or employed by the Police Service
• failing either of the above, some other responsible adult who is not a police officer or employed by the Police Service.

Be aware that mentally retarded people may have difficulty understanding questions or comments because of a slowness in reacting, short attention span, weak memory, or language problems. Exercise close supervision to ensure they are not victimised by other prisoners. ... ⁸⁷

8.42 In the Issues Paper, the Commission also sought further information as to the effectiveness of this Instruction and as to other necessary protective measures for people with an intellectual disability in police custody. Few submissions addressed this issue in any detail. The Commission still seeks submissions about the difficulties faced by police when a person is detained in police custody after charging and any particular amendments which need to be made in this regard. The Commission believes that there should be special procedures for people with an intellectual disability detained on remand in police custody, but does not wish to make any detailed proposals in this regard until it has had the opportunity to consult further.

39. The NSW Police Service should consider the introduction of a formal system of “Custody Officers” in New South Wales to operate the proposed custodial detention scheme.

Time limits for detention before charging

40. If the common law safeguards in relation to detention after arrest are abrogated by legislation and a “reasonable period” approach for police detention of suspects is adopted, as proposed, the criteria for the determination of what is “reasonable” must take into account the vulnerability of the suspect, for example as a result of his or her youth, Aboriginality, physical or intellectual disability, or mental illness.

1. New South Wales. Law Reform Commission Police Powers of Detention and Investigation After Arrest (Report 66, 1990) at para 1.12.

2. Lake v Dobson, Gault v Dobson (unreported) Supreme Court, NSW, Court of Criminal Appeal, 19 December 1980, cited in NSWLRC Report 66 at para 1.12. The footnotes to that paragraph list further relevant sources.

3. I G Campbell Mental Disorder and Criminal Law in Australia and New Zealand (Butterworths, Sydney, 1988) at 5.

4. The Division of Intellectual Disability Services, Department of Family Services and Aboriginal and Islander Affairs, Queensland Submission (18 August 1992) at 2.

5. D Brown, D Farrier, D Neal and D Weisbrot Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales (Federation Press, Sydney, 1990) at 226.

6. Bail Act 1978 (NSW), s 17.

7. Section 18.

8. Section 20. Also Williams v R (1986) 161 CLR 278.

9. J Stubbs Bail Reform in New South Wales (Bureau of Crime Statistics and Research, Sydney, 1984) at 52.

10. Stubbs at 11.

11. F McAvaney “The Police (Prosecutors’) perspectives on bail” in D Challinger (ed) Bail or Remand? (Australian Institute of Criminology, Canberra, Conference Proceedings 6, 1991) at 74.

12. Bail Act 1978 (NSW), s 18(1)(a).

13. Bail Regulation 1979 (NSW), Schedule 1.

14. Stubbs at 37.

15. Bail Regulation 1979 (NSW), Schedule 1; NSW Police Commissioner’s Instructions, Instruction 155 at 7.05.

16. Bail Act 1978 (NSW), s 33; Bail Regulation 1979 (NSW), reg 8.

17. M Ierace Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing, Sydney, 1989) at 31; Stubbs at 38.

18. Ierace at 31.

19. Kingsford Legal Centre Submission (29 October 1992).

20. Bail Act 1978 (NSW), s 8. Minor offences are defined in s 8 as those not punishable by imprisonment (except in default of payment of a fine), those arising under the Summary Offences Act 1988 (NSW) which are punishable by imprisonment, and various offences nominated by the Act and regulations.

21. Section 8.

22. Bail Act 1978 (NSW), s 9.

23. Ierace at 29.

24. Bail Act 1978 (NSW), s 32(1).

25. Ierace at 29-30.

26. Legal Aid Commission of New South Wales Submission (24 July 1992).

27. M Ierace “Acting for the intellectually disabled offender” in D Challinger (ed) Intellectually Disabled Offenders (Australian Institute of Criminology, Canberra, Seminar Proceedings 19, 1987) at 75-76.

28. Bail Act 1978 (NSW), s 32(1).

29. Ierace (1989) at 27.

30. Ierace (1989) at 31.

31. Bail Act 1978 (NSW), s 36(2).

32. F Devine “Bail in Australia” in Challinger (1991) at 32.

33. Stubbs at 16-17.

34. Bail Act 1978 (NSW), s 36(2).

35. Bail Regulation 1979 (NSW), reg 10A.

36. Instruction 155 at 7.15.

37. Ierace (1989) at 34.

38. Ierace (1989) at 34.

39. Bail Act 1978 (NSW), s 51.

40. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992).

41. Bail Act 1978 (NSW), s 34.

42. Bail Act 1978 (NSW), s 36(5).

43. Ierace (1989) at 34.

44. Ierace (1989) at 34.

45. Bail Act 1978 (NSW), s 18(1), s 54; Bail Regulation 1979 (NSW), reg 4, 9; NSW Police Commissioner’s Instructions, Instruction 155 at 7.05.

46. Bail Act 1978 (NSW), s 57.

47. New South Wales Council for Intellectual Disability Submission (September 1992) at 7-8.

48. Office of Legal Aid and Family Services Submission (28 August 1992) at 3.

49. B Bodna “People with an intellectual disability and the criminal justice system” in Challinger (1987) at 19.

50. New South Wales Sexual Assault Committee Submission (August 1992) at 4.

51. New South Wales Council for Intellectual Disability Submission (September 1992) at 7.

52. Kingsford Legal Centre Submission (29 October 1992) at 2.

53. Legal Aid Commission of New South Wales Submission (24 July 1992) at 4.

54. K White and S Brody “The use of bail hostels” [1980] Crim Law Review 420.

55. Queensland. Law Reform Commission To Bail or Not to Bail - A Review of Queensland’s Bail Laws (Discussion Paper 35, 1991) at 30.

56. Bail Act 1978 (NSW), s 32(4).

57. Children and Young Persons Act 1989 (Vic), s 129(7).

58. Human Rights and Equal Opportunity Commission Our Homeless Children: Report of the National Inquiry into Homeless Children (AGPS, Canberra, 1989), Recommendation 21.3.

59. Queensland. Law Reform Commission The Bail Act (Report 43, 1993), Recommendation 29.

60. Instruction 155 at 11.04.

61. Queensland. Law Reform Commission The Bail Act (Working Paper 41, 1993), Recommendation 89.

62. QLRC WP 41, Recommendation 90; QLRC Report 41, Recommendation 27.

63. QLRC WP 41, Recommendation 91.

64. Law Reform Commission of Victoria Review of the Bail Act 1977 (Report No 50, 1992) at 15, Recommendation 7.

65. Human Rights and Equal Opportunity Commission, Recommendation 21.4.

66. Children (Detention Centres) Act 1987 (NSW), s 9; NSW Police Commissioner’s Instructions, Instruction 155 at 9.02.

67. Instruction 155 at 11.04.

68. (1986) 161 CLR 278.

69. Australia. Law Reform Commission Criminal Investigation (Interim Report 2, 1975) paras 89-98, 328-329.

70. Review of Commonwealth Criminal Law Committee (Australia) Detention before Charge (Interim Report, AGPS, Canberra, 1989).

71. Inserted by Crimes (Investigation of Commonwealth Offences) Amendment Act 1991 (Cth), s 3.

72. Police Administration Act 1978 (NT); s 137-138.

73. Crimes Act 1958 (Vic), s 464A(1).

74. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 8.

75. Submission (September 1992) at 7.

76. Victoria Police Corporate Planning and Review Department Submission (31 August 1992) at 3.

77. Crimes Act 1914 (Cth), s 23H.

78. Section 23K.

79. A proposed amendment to this effect, moved by the Australian Democrats in the Senate, did not succeed.

80. Section 23C(4)(a).

81. Section 23C(4)(b).

82. Section 23D.

83. Section 23N.

84. NSWLRC Report 66, Recommendation 3.4.1. See also paras 4.28-4.32 of that Report.

85. NSWLRC Report 66 at para 4.29.

86. Submission (September 1992) at 8.

87. Instruction 155 at 1.02.