RIGHTS OF DETAINED PERSON

Each police station authorized to receive detained individuals has a designated “custody manager,” who is a senior officer, typically holding the rank of sergeant or higher. The custody manager is responsible for maintaining accurate custody records and ensuring that detained individuals receive appropriate advice regarding their rights.

Upon the arrival of an arrested individual at the police station for investigative detention, the custody manager must:

• caution the person orally and in writing that he or she does not have to say or do anything, but that anything that he or she does say or do may be used in evidence;
• if the matter is for a serious indictable offence and official questioning is to take place, give the person a special caution;
• inform the person before any investigative procedure starts that he or she has the right to communicate with, or attempt to communicate with, a legal practitioner of their choice to:

1. obtain advice;
2. ask the legal practitioner to attend the police station for consultation; and

• be present during any investigative procedures.

A detained person has the right to communicate, or attempt to communicate, with a friend, relative, guardian, or independent person. However, this communication may be withheld if the custody manager has reasonable grounds to believe that it would hinder the investigation of an accomplice, result in harm to another person, lead to the concealment, fabrication, destruction, or loss of evidence, or intimidate a witness. Additionally, communication may be restricted due to the urgent nature of the investigation.

There is no entitlement to free legal advice upon arrest, nor an automatic provision of legal aid services for detainees. To obtain legal counsel, the suspect must independently identify and establish contact with a legal practitioner. In general, providing facilities for this purpose includes making a phone book and a telephone available in a location where, if practicable, the conversation should not be overheard.

Exceptions to this requirement exist in cases where the detainee is:

• an Aboriginal person or a Torres Strait Islander, in which case the custody manager must immediately inform the person that a representative of the Aboriginal Legal Service (NSW/ACT) will be notified of their detention for an offence and the place of detention, and must so notify an Aboriginal Legal Service representative.
• a foreign national who has the right to communicate with a consular official.

The custody manager must postpone any investigative procedure involving the detained individual for a reasonable period to allow them to communicate with a legal practitioner and facilitate the practitioner’s arrival at the police station for consultation. However, the investigation need only be deferred for a maximum of two hours to enable the legal practitioner’s arrival.

The custody manager must also provide reasonable facilities to ensure that, to the extent practicable, the consultation remains private and must permit the legal practitioner to be present during any investigative procedure.

About Post Author

Mark Racca

Principal Solicitor & Director
LLB, GradDipLegPrac, MPA

See author's posts