Criminal Law (Detention and Interrogation) Act 1995 (Tas)

Criminal Law (Detention and Interrogation) Act 1995

An Act to provide for certain procedures relating to the detention and interrogation of persons lawfully arrested and to consequentially amend other Acts [Royal Assent 14 November 1995]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1. Short title This Act may be cited as the Criminal Law (Detention and Interrogation) Act 1995 .

2. Commencement This Act commences on a day to be proclaimed.

3. Interpretation (1) In this Act, unless the contrary intention appears – Commissioner means the Commissioner of Police; correctional officer has the same meaning as in the Corrections Act 1997 ; designated police station means a police station which is designated by the Commissioner under section 13 ; legal practitioner means an Australian legal practitioner; reception prison means a prison, in any of the following areas, in respect of which a proclamation has been made under section 9(2) of the Corrections Act 1997 : (a) Hobart; (b) Launceston. standing orders means standing orders or policy documents issued by the Commissioner under section 12 . (2) For the purposes of this Act, a person is in custody if he or she is – (a) under lawful arrest by warrant; or (b) under lawful arrest under section 27 of the Criminal Code or a provision of any other Act.

4. Detention of person in custody (1) Subject to subsection (2) , every person taken into custody, other than under a warrant issued by a judge of the Supreme Court, must be brought before a magistrate or a justice as soon as practicable after being taken into custody unless released unconditionally or released under subsection (3) or subsection (5) or under section 34 of the Justices Act 1959 . (2) Every person who has been taken into custody may be detained by a police officer – (a) for a reasonable time after being taken into custody for the purposes of questioning the person, or carrying out investigations in which the person participates, in order to determine his or her involvement, if any, in relation to an offence; and (ab) if the police officer believes on reasonable grounds that the person – (i) is under the influence of alcohol, another drug or a combination of drugs (in this section referred to as being intoxicated); and (ii) is behaving in a manner likely to cause injury to himself, herself or another person or cause damage to any property, or is incapable of protecting himself or herself from physical harm – until the person may be released under subsection (5) ; and (b) during the period reasonably required to arrange to bring the person before a magistrate or justice and to transport the person to a magistrate or justice. (3) Where the reasonable time referred to in subsection (2) (a) expires, the person in custody may be admitted to bail by a person mentioned in section 34 of the Justices Act 1959 . (4) In determining what constitutes a reasonable time for the purposes of subsection (2) (a) , consideration must be taken of, but is not limited to, the following matters: (a) the number and complexity of the offences to be investigated; (b) any need of the police officer to read and collate relevant material or to take any other steps that are reasonably necessary by way of preparation for the questioning or investigation; (c) any need to transport the person from the place of apprehension or detention to a place where facilities are available to conduct an interview or investigation; (d) the number of other people who need to be questioned during the period of custody in respect of the offence for which the person is in custody; (e) any need to visit the place where the offence is believed to have been committed or any other place reasonably connected with the investigation of the offence; (f) the time during which questioning is deferred or suspended to allow the person to communicate with a legal practitioner, friend, relative, parent, guardian or independent person or, in the case of a child, a person called by the police officer conducting the investigation to accompany the child; (g) any time taken by a legal practitioner, friend, relative, parent, guardian, independent person or interpreter or, in the case of a child, a person called by the police officer conducting the investigation to accompany the child to arrive at the place where the questioning or investigation is to take place; (h) any time during which the questioning or investigation of the person is suspended or delayed to allow the person to receive medical attention; (ha) any time during which the questioning or investigation of the person is suspended or delayed to facilitate the use of a witness intermediary, within the meaning of the Evidence (Children and Special Witnesses) Act 2001 , in respect of the person or in respect of a witness in a proceeding; (i) any time during which the questioning or investigation of the person is suspended or delayed to allow the person to rest or receive refreshment; (j) the period of time when the person cannot be questioned because of his or her intoxication, illness or other physical condition; (k) the need to detain the person whilst an identification parade is being arranged or conducted; (l) the need to detain the person whilst searches or forensic examinations are carried out; (m) any other matters reasonably connected with the investigation of the offence. (5) A person referred to in subsection (2)(ab) may be admitted to bail by a person mentioned in section 34 of the Justices Act 1959 if he or she believes on reasonable grounds that the person – (a) is no longer intoxicated; or (b) although still intoxicated, can safely be released into the care of a person who is capable of taking adequate care of him or her; or (c) although still intoxicated, can safely be released into the care of a hospital or a charitable institution, or other facility, capable of caring for an intoxicated person; or (d) although still intoxicated – (i) is not likely to cause injury to himself, herself or another person; and (ii) is not likely to damage property; and (iii) is capable of protecting himself or herself from physical harm. (6) A person referred to in subsection (2)(ab) who is being detained only because a police officer believes on reasonable grounds that the person may not be released under subsection (5) must be admitted to bail by a person mentioned in section 34 of the Justices Act 1959 on being in custody for a period of 8 hours or such extended period as may be determined under subsection (7) . (7) If – (a) the 8-hour period referred to in subsection (6) is close to expiration; and (b) a commissioned police officer believes on reasonable grounds that, at the expiration of that period, the conditions for release of the person set out under subsection (5) will not be met – the person may be detained for such further period, not exceeding 4 hours, as the commissioned police officer determines necessary to enable the person to meet the conditions for release specified in subsection (5) .