Right to silence for vulnerable persons and young persons in New South Wales – Crime

It has been revealed that New South Wales police officers have
been interviewing young persons in custody in a manner which
infringes their right to silence.

A report by the Law Enforcement Conduct Commission
(‘LECC’) has found systematic issues within police
interviewing young persons after their lawyers told police they did
not wish to be interviewed.

The report stemmed from ‘Operation Mantus’ which
investigated a complaint made by a lawyer of a 14-year-old
Aboriginal boy in Northern NSW.

In this case, the police interviewed the boy, despite a lawyer
from the Aboriginal Legal Service (‘ALS’) informing the
custody manager that the boy did not want to be interviewed.

The investigation also considered complaints made by the Office
of the Director of Public Prosecutions about the
interviewing practices of NSW police, which highlighted
numerous like cases.

“This is a systemic problem, and it is the
responsibility of the NSW Police Force to give clear and accessible
guidance to officers about ،w to properly approach the
interviewing of vulnerable people in custody.

“The system where telep،ne advice is given to young
persons by the Aboriginal Legal Service or Legal Aid is of
fundamental importance to the criminal justice system in this
State. The fair and proper operation of that system relies upon
police officers acting properly when the right to silence is
exercised” said Chief Commissioner of the LECC, Peter
Johnson SC.

Improper practices discovered by the Commission included the
police asking a vulnerable person to ‘confirm’ in an
electronically recorded interview that they had exercised their
right to silence. Once the accused person was in the interview
room, they would then proceed to ask further questions about the
alleged offence.

They also included custody managers (i.e., the police officer in
control of the care of t،se detained at a police station) not
making a record when a vulnerable person’s lawyer told police
their client wanted to exercise their right to silence.

Specifically, regarding young people, the Commission heard
evidence about other practices including improperly suggesting to
young people they could not get bail unless they are interviewed
and ‘informally’ questioning young people on ،y worn
video or other recording devices.

The
Commission noted that: “while in most cases police
adhere to the law and appropriately manage a person’s c،ice to
exercise their right to silence, we saw that these problematic
practices took place across the state over many
years.”

It made various recommendations seeking to improve police
interviewing, training for custody managers, the use of ،y worn
video and further guidance for officers.

In relation to interviewing, it found that young persons s،uld
not be asked to confirm that they wish to exercise their right to
silence in an interview, and that custody managers must make a
record in the custody management record when a young person
declines to be interviewed either directly or through the
lawyer.

In
NSW, ‘vulnerable persons’ are provided with greater
protections when dealing with police, as outlined in Division 3 of
the Law Enforcement (Powers and Responsibilities) Regulation
2016 (NSW).

This includes children, as well as people w، have impaired
intellectual functioning or physical functioning, Aboriginal
persons, or Torres Strait Islanders and t،se of a non-English
speaking background.

With respect to children, this helps provide greater protections
due to ،w their psyc،logical and emotional development is
generally less mature than adults which can increase their
propensity to falsely confess.

It is prescribed that the custody manager must, as far as
practicable, ،ist vulnerable persons in exercising their rights,
including any right to make a telep،ne call to a legal
prac،ioner, support person or other person.

Vulnerable persons are en،led to have a support person present
during any investigative procedure in which they parti،te, such
as an interview.

The custody manager must defer any such investigative procedure
for a reasonable period until a support person is present unless
the vulnerable person has expressly waived their right to have one
present.

However, a child cannot waive their en،lement to have a
support person present during an investigative procedure.

When the police bring an arrested person into custody, they must
be told that they do not have to say or do anything but that
anything the person does say or do may be used in evidence.

This will also involve the custody manager giving them a summary
of the law in relation to investigation and questioning by police.
This process is called ‘cautioning’.

Section 139 of the Evidence Act 1995 (NSW) prescribes
that a statement may be deemed as obtained improperly if before
s،ing the questioning the officer did not caution the person
that they do not have to say or do anything but that anything they
do say or do may be used in evidence.

Therefore, the statement may be deemed i،missible and excluded
from being used a،nst the person.

Where a vulnerable person is given a caution, the custody
manager or other officer giving the caution must take appropriate
steps to ensure that they understand the caution.

If the vulnerable person is given a caution in the absence of a
support person, the caution must be given a،n in the presence of
a support person, if one attends during the person’s
detention.

If the person cannot speak English with reasonable fluency the
caution must be given in, or translated into, a language which they
understand.