Police interviews – a scenario familiar to many through gripping portrayals in TV shows and movies. The tense atmosphere, the probing questions, and the pressure to reveal information can be overwhelming. Yet, when faced with such a situation in real life, understanding your rights becomes not just a legal nicety but a crucial shield against potential consequences.
In Western Australia, the right to silence stands as a fundamental protection. We've all witnessed the dramatic scenes where suspects are put on the spot, and the police employ various techniques to extract confessions. It's essential to know that, fundamentally, you have the right to remain silent. In the legal landscape of Western Australia, there are only three questions you are obligated to answer: your full name, your birthdate, and your address, as stipulated in section 16 of the Criminal Investigation (Identifying People) Act 2002.
At common law, it is established that it is unlawful to take a person into custody solely for the purpose of interrogation, as affirmed in Michaels v The Queen (1995) 184 CLR 117; 130 ALR 581. Additionally, under common law principles, it is deemed unlawful for a police officer to postpone taking an arrested individual before a justice for the purpose of interrogation, as upheld in Williams v The Queen (1986) 161 CLR 278.
Picture this: you find yourself in a recorded interview, the tension is palatable, understanding your rights in this crucial moment can significantly impact the trajectory of the entire interaction. Join us in this article as we navigate through the intricacies of police interviews in Western Australia, shedding light on your right to silence and the specific obligations that surround it. Let's unravel the legal nuances together, empowering you with the knowledge needed to navigate this potentially daunting experience with confidence and informed decision-making.
THE RIGHT TO REMAIN SILENT
Opting not to participate in a police interview doesn't indicate a lack of cooperation. It's crucial to understand that refusing to respond to police inquiries or declining to visit a police station when not under arrest doesn't imply guilt. You retain the right to decline a voluntary interview with the police, and at times, it's prudent to exercise this option. It's noteworthy that police interviews are often conducted to bolster their case, rather than to genuinely seek your perspective on the matter. This broader notion of the right to silence transcends mere refusal to answer questions; it stipulates that your decision not to respond should not be construed as evidence against you in any legal proceedings.
Section 138 of the Criminal Investigation Act 2006 confers several rights upon a suspect who has been arrested, including the right 'to be cautioned before being interviewed as a suspect'. This cautionary procedure is designed to ensure that individuals are informed of their rights and obligations before any formal interrogation takes place, thereby safeguarding their legal interests during the interview process. The caution given to the accused must unequivocally convey that there is no obligation to answer any questions posed during the interview. A typical caution is as follows:
"You are not obliged to say anything unless you wish to do so, but whatever you do say will be recorded and may later be given in evidence."
It serves as a crucial reminder of the rights afforded to individuals during police interviews and is typically delivered at the outset before any detailed discussion ensues. This initial introduction aims to establish the identities of those present at the interview, with the accused often asked to provide their full name and address "just for the tape."
The right to silence is deeply ingrained in the legal framework, stemming from common law principles. Despite statutory obligations outlined in the Criminal Investigation (Identifying People) Act 2002, which compel individuals to answer specific questions regarding their identity—namely, their full name, birthdate, and address—the broader right to remain silent persists.
Furthermore, Section 139(2)(c) of the Criminal Investigation Act 2006 grants law enforcement specific powers of detaining a person who is under arrest "for the purposes of … interviewing the suspect in relation to any offense." This provision introduces a complex interplay between statutory authority and common law rights. While police possess the express right to detain individuals for the purpose of conducting interviews, individuals maintain the inherent right to decline to answer questions throughout the interrogation process.
RECORD OF INTERVIEW
When undergoing an interview, it's customary for proceedings to be routinely recorded, regardless of whether the nature of the offenses being investigated necessitates such recording for admissibility in evidence. However, there are instances where conversations are not recorded, with statutory exceptions outlined in Section 118 of the Criminal Investigation Act 2006.
Section 118 of the Criminal Investigation Act 2006 mandates that evidence of any confessional material is deemed inadmissible unless it meets certain criteria:
· It is audio visually recorded, or;
· There exists a reasonable excuse for its absence of audiovisual recording.
Furthermore, Section 123 of the Criminal Investigation Act 2006 mandates that recordings be retained by the police or CCC (Corruption and Crime Commission). Specifically, if an audiovisual recording is made during an interview, the Commissioner of Police or the CCC must securely retain the recording or a copy for a minimum of 5 years.
COMMON POLICE INTERVIEW TECHNIQUES
Fundamentally, it's crucial to recognise that police interviews are conducted with the primary aim of obtaining admissible evidence, which is why they are videotaped. Essentially, these interviews can be likened to a trap set by the police. They anticipate that individuals will deny the charges, but their objective is to elicit responses that may later be used against them in court. It's important to remember that police officers are skilled interrogators who employ various psychological strategies during interviews. Therefore, individuals should approach these interactions with caution and an awareness of their rights to protect themselves from potential pitfalls.
The police employ various interrogation tactics, many of which are outlined in their handbooks. Some of these techniques include:
The Reid Technique: This method involves interpreting a suspect's physical reactions, such as signs of anxiety or irregular blinking of the eyes, to determine if they are lying.
Good Cop and Bad Cop Technique: This classic approach involves one officer adopting a friendly and empathetic demeanour (the "good cop") while another takes on a harsh and confrontational attitude (the "bad cop"), aiming to elicit information through psychological manipulation.
Encouraging the Suspect's Viewpoint: Police may encourage suspects to share their perspective on the events under investigation, aiming to gather information and potentially detect inconsistencies in their account.
Discrediting the Suspect: Officers may ask peripheral questions that they know the suspect is likely to lie about, allowing them to discredit the suspect and undermine their credibility during the interrogation process.
The PEACE Method: This method is a structured approach to interviewing suspects, focusing on Preparation and Planning, Engaging and Explaining the account, Closure, and Evaluation. The PEACE model emerged in the UK following a notorious wrongful conviction case, which prompted a significant overhaul of interrogation procedures. Developed in collaboration with legal practitioners and psychologists, the PEACE model represents a structured approach to interviewing suspects. This method emphasises Preparation and Planning, Engaging and Explaining the account, Closure, and Evaluation.[1] Psychological research has demonstrated that the PEACE method relies heavily on effective conversation management and can be particularly useful when dealing with non-cooperative interviewees. [2] By employing cognitive interviewing techniques, such as active listening, maintaining a non-biased stance, and asking open-ended questions, the PEACE method aims to facilitate a productive exchange of information between the interviewer and the interviewee. [3] This approach not only enhances the likelihood of obtaining accurate and reliable information but also fosters a more collaborative and transparent interview process. By incorporating these cognitive interviewing strategies, the PEACE method seeks to optimize the investigative process while upholding principles of fairness and respect for individual rights.
These tactics are indeed aimed at gathering information from suspects, but it's imperative for individuals to be cognizant of their rights and proceed with caution during police interviews to mitigate the risk of manipulation or coercion. Unfortunately, Australia has a regrettable history of eliciting false confessions, with false confessions being made for 17% of all known wrongful convictions in the country.[4] This phenomenon is largely attributed to the use of interrogative questioning methods rather than investigative interviewing techniques.
Historically, police have employed interrogative tactics, particularly on individuals with lower cognitive abilities or from disadvantaged backgrounds, such as Aboriginal and Torres Strait Islanders. This highlights systemic issues within the criminal justice system and underscores the importance of reforming interrogation practices to ensure fairness and accuracy in obtaining evidence. It's crucial for authorities to prioritize the adoption of investigative interviewing methods that uphold ethical standards and respect the rights of all individuals, regardless of their background or circumstances.
CASE EXAMPLES
A Kelly v The Queen [2004] HCA 12
In the case of Kelly v The Queen [2004] HCA 12, the High Court of Australia unanimously dismissed an appeal from a Tasmanian man. The appellant, Mr. Kelly, had argued that an alleged confession was inadmissible at his trial for murder. The case revolved around unsolicited statements made by Mr. Kelly after the conclusion of a video-recorded interview. During the interview, Mr. Kelly agreed that he had made an earlier admission to police, but only because they had threatened to deny him bail and “stitch him up.” Later, while getting into a police car, he said, “Sorry about the interview — no hard feelings, I was just playing the game. I suppose I shouldn’t have said that, I suppose you will make notes of that as well.” The police officers did not respond to this statement or make any note of it. The trial judge ruled that the statement was not made during official questioning and admitted it as evidence. The Tasmanian Court of Criminal Appeal upheld this ruling. However, the majority judgment of the High Court held that the appellant’s statement was not made during official questioning and, therefore, its admission was not contingent on being video taped. The phrase “in the course of official questioning” demarcates the period when questioning begins and when it concludes. In this case, it ended when the police officer stated, “We’ll conclude the interview.” No question asked by the police triggered Mr. Kelly’s subsequent admission.
While Justices McHugh and Kirby concluded that the statement was made during official questioning, they still concurred in the dismissal of the appeal, considering it fit for the application of the proviso. This case highlights the miscarriage of justice that can occur when police use intimidatory tactics in police interviews to extract a confession.
B Button v The Queen - [2002] WASCA 35
In the case of Button v The Queen, 39 years after John Button was convicted of the manslaughter of his fiancé, Rosemary Anderson, his conviction had been overturned by the Western Australian Court of Criminal Appeal. Button's interaction with the police illustrates the complexities and potential pitfalls of police questioning in criminal investigations. Initially, Button's statements to the police aligned with his earlier account to a doctor, suggesting that Anderson's injuries may have been the result of a 'hit and run' incident. However, under the weight of police advice regarding Anderson's death, Button's demeanour shifted dramatically. In a moment of distress, he exclaimed, "What have I done — it’s all my fault," and subsequently confessed to striking Anderson with his car when asked directly by the police.
Later, Button expressed regret over his final statement, suggesting that he felt compelled to confess due to a belief that the police would not believe his innocence. Despite facing pressure to plead guilty to manslaughter, Button maintained his innocence.
This case underscores the importance of ensuring that police questioning is conducted ethically and in accordance with legal standards. It highlights the potential for coercion and the impact of psychological pressure on suspects during interrogation. Additionally, Button's experience raises questions about the reliability of confessions obtained under duress and the need for safeguards to prevent wrongful convictions.
C Mallard v The Queen [2005] HCA 68
The case of Mallard v The Queen [2005] HCA 68 stands as a stark reminder of the potential for miscarriages of justice within the criminal justice system. Mr. Andrew Mark Mallard was convicted exactly a decade earlier for the murder of Perth jeweller Pamela Suzanne Lawrence, who was tragically found dying in her shop in Mosman Park, having been struck repeatedly on the head with a heavy instrument that was never recovered.
Mr. Mallard's conviction was marred by serious irregularities in the investigative and legal processes. Crucially, undisclosed material in the possession of the police came to light, prompting Mr. Mallard to petition for clemency. Throughout the case, it emerged that Mr. Mallard allegedly made various admissions during police interviews, though only one of these sessions, lasting 30 minutes, was recorded. Shockingly, one interview took place over eight hours while Mr. Mallard was a patient at Graylands Mental Hospital, and another occurred after he had spent a sleepless night at a nightclub and had been assaulted. Despite frequently denying involvement in Mrs. Lawrence's murder, Mr. Mallard made highly fanciful and bizarre statements during these interviews, often speaking in the third person, and providing inaccurate details about the crime scene.
Further complicating matters were discrepancies between Mr. Mallard's statements and the evidence, such as inaccuracies regarding Mrs. Lawrence's attire and the type of weapon used in the attack. Police attempts to replicate the victim's wounds using a wrench, as described by Mr. Mallard, were unsuccessful, casting doubt on the veracity of his confessions. Additionally, crucial witness statements were tampered with by law enforcement, omitting material favourable to Mr. Mallard's defence, and certain evidence, including a scientist's report with missing pages, was not properly disclosed.
Ultimately, the High Court of Australia determined that Mr. Mallard's confessions were unreliable, and the failure to present key evidence rendered his conviction unsafe. Consequently, the Court ordered that his conviction be quashed, and a new trial be conducted, underscoring the importance of upholding procedural fairness and transparency in the pursuit of justice.
CONCLUSION
In conclusion, navigating police interviews as a suspect in Western Australia requires a thorough understanding of your rights and a cautious approach to interactions with law enforcement. By asserting your right to silence and refraining from speaking with the police unless legally required to do so, you can safeguard yourself against potential manipulation and protect your legal interests. Remember, silence is not a sign of guilt but rather a fundamental aspect of protecting your rights in the face of police questioning.
Disclaimer: The information provided here is for educational purposes only and should not be considered legal advice. If you need legal assistance, we recommend contacting Carter Dickens Lawyers or consulting a qualified attorney. Legal matters can vary based on laws and regulations, and it's important to seek professional advice for your specific situation.
[1] See, Clarke, C., and R. Milne. "National evaluation of the PEACE investigative interviewing course. Home Office." (2001).
[2] Shepherd, Eric. "Ethical interviewing." Policing 7.1 (1991): 42-60.
[3] Geiselman, R. Edward. "The cognitive interview for suspects (CIS)." American Journal of Forensic Psychology (2012).
[4] Dioso-Villa, Rachel. "A repository of wrongful convictions in Australia: First steps toward estimating prevalence and causal contributing factors." Flinders Law Journal 17.2 (2015): 163-202.