How Long Can Police Keep an Arrested Person in Custody?


By Zeb Holmes and Ugur Nedim

The Law Enforcement (Powers and Responsibilities) Act 2002 (the LEPRA) sets out police powers in New South Wales as well as many of the rules officers are required to follow when exercising those powers.

Can police arrest me without a warrant?

Section 99(1) of the LEPRA empowers a police officer to arrest a person without a warrant if he or she:

  • Suspects the person on reasonable grounds of committing or having committed an offence, or
  • Is satisfied the arrest is reasonably necessary because of the nature or seriousness of the charge, or to:
  • stop the person committing a continuing to commit or committing another offence,
  • stop the person fleeing,
  • ascertain or verify the person’s identity,
  • ensure the person appears in court,
  • obtain property in the person’s possession that is connected with the offence,
  • preserve evidence of the offence,
  • prevent the fabrication of evidence,
  • prevent potential witnesses from being harassed or interfered with, or
  • protect the safety or welfare of any person (including the person arrested),

The section provides that an arrested person can be detained in accordance with other provisions of the Act.

How long can I be detained after arrest?

Before politicians began their concerted effort to erode civil liberties in favour of state control, the rules relating to detention after arrest were very different in our state.

Common law

Under the common law, police were prohibited from detaining a suspect while investigating whether to charge them.

In the words of Davidson J in Clarke v Bailey (1933) 33 SR (NSW) 303, it was “compulsory for a constable, in order to justify an arrest, to shew that he had taken the arrested person without delay, and by the most direct route, before a justice, unless some circumstances reasonably justify a departure from these requirements”.

This rule was reaffirmed by the High Court of Australia in Williams v The Queen [1986] HCA 88, during which Mason and Brennan JJ stated, “if a person cannot be taken into custody for the purpose of interrogation, he cannot be kept in custody for that purpose.”

“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… if the legislature thinks it is right to enhance the armoury of law enforcement, at least the legislature is able to prescribe some safeguards.”

However, politicians have since enacted legislation to permit the detention of suspects after arrest without a warrant for the purpose of investigation, including questioning.

Legislation

Part 9 of the LEPRA now sets out the rules relating to investigations and questioning after arrest.

Section 114 of the Act empowers police to detain a person after arrest for the applicable investigation period.

It provides that a person must be:

  • released (whether unconditionally or on bail) within the investigation period, or
  • brought before a court within that period, or, if it is not practicable to do so within that period, as soon as practicable after the end of that period.

The section also provides that where a person is arrested more than once within a 48 hour period, the earlier investigation period is taken into account for the later arrest unless the later arrest relates to an offence suspected of having been committed after the person’s release.

Section 115 sets the maximum investigation period at six hours, which begins at the time of arrest and ends at a reasonable time having regard to all of the circumstances. The period was increased from four hours in 2014.

However, section 118 allows police to apply to an authorised officer (such as a local court magistrate or registrar) for a ‘detention warrant’ which extends the investigation for up to six hours more.

The authorised officer is not to grant such a warrant unless satisfied that:

  • the investigation was being conducted diligently and without delay, and
  • a further period of detention is reasonably necessary to complete the investigation, and
  • there is no other reasonable way of completing the investigation, and
  • It was not practicable to complete the investigation within six hours.

Only one such warrant may be granted.

Under section 116 police are supposed to have regard to a range of factors when determining any relevant investigation period (not exceeding six hours), including the suspect’s age, physical state and mental ability, the nature and complexity of the incidents under investigation, and other work required such as questioning witnesses or undertaking searches.

‘Time-outs’

It is important to note that under section 117, the relevant investigation period does not take into account the time it takes to:

  • Get to the police station;
  • Await the arrival of someone with particular knowledge or skills relating to the investigation;
  • Await the availability of facilities for the recording of official questioning;
  • Communicate with a friend, relative, interpreter or lawyer on the phone, or await their arrival, or speak with them once they arrive;
  • Obtain medical attention;
  • Organise and perform an identification parade;
  • Rest, have refreshments and access a bathroom or other facilities;
  • Recover from the effects of drugs or alcohol;
  • Apply for a detention warrant, search warrant or crime warrant that relates to the investigation;
  • Go through the charging procedure; or
  • Carry out forensic procedures, or prepare, make or dispose of an order for such a procedure

Clearly, these ‘time-outs’ can significantly increase the time spent in police custody.

Terrorism offences

It should also be noted that different rules apply to those who police say are suspected of terrorism offences. In these cases, police can apply for preventative detention orders which allow them to keep suspects in custody for up to 14 days without bringing charges against them.


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