The police in Western Australia have broad powers to arrest a person and then hold them in custody without being charged with a criminal offence.

The police can only hold an arrested person in custody without charge for the purposes of:

• doing a search of the person or a place or vehicle belonging to the person;
• investigating any offence the person is suspected of having committed;
• interviewing the person about any offence that they are suspected to have committed; and
• deciding whether or not to charge the person with an offence.

If the detention is not for any of the above purposes, the detention is unlawful. This can have significant consequences for any evidence that is obtained while the suspect is unlawfully detained, such as admissions in a police interview.

The police can only hold an arrested person in custody without charge for a set period of time. There are three main time periods permitted by the relevant legislation (the Criminal Investigation Act 2006 (CIA)).

Time periods police may hold an arrested person in custody without charge

6 hour initial period of detention without charge

The police are permitted to detain an arrested person in custody for an initial maximum period of 6 hours from the time of arrest.

This period cannot be exceeded unless a senior officer has authorised a further period of detention.

Further 6 hour period of detention with senior officers’ approval

At any point during the initial 6 hours of detention without charge, a police officer may apply to a senior officer for an authorisation to extend the period of detention beyond the permitted 6 hours.

The senior officer may authorise a further period of not more than 6 hours, if satisfied that detention of the suspect for the further period is justified. There must be a written record of any further detention period that is authorised by a senior officer.

That makes a total permitted period of 12 hours of detention in police custody without charge, which can occur without any involvement or review by the courts.

Subsequent 8 hour period of detention with Magistrates’ approval

At any time during the further 6 hour period authorised by a senior officer, an officer investigating the offence concerned, with the prior written approval of a senior officer, may apply to a Magistrate for authorisation to extend the detention period by a further 8 hours from the conclusion of the second 6 hour period. That is, after 12 hours of detention without charge, a Magistrate may approve a further 8 hours of detention, making a total of 20 hours in police custody without charge.

The only requirement for a Magistrate to approve the further 8 hours is that it is ‘justified’. There must, again, be a written record of the authorisation.

There is no requirement to actually appear in court before a Magistrate and the approval can be granted by remote communication.

Detention without charge must be ‘reasonable’ in any event

Notwithstanding the allowable periods of custody without charge outlined above, any detention of an arrested person without charge must be for a period that is ‘reasonable’ having regard to the relevant factors in the legislation. These include:

• the number and complexity of the offences to be investigated;
• the time needed to interview potential witnesses;
• the time needed to interview the suspect and afford them their rights, including medical attention;
• the time needed to visit any place connected with the offence; &
• the time needed to complete any searches and any forensic procedures of the suspect.

Accordingly even if a person is held in custody within the allowable periods, this may still be unlawful if it was for an unreasonable period having regard to some of the above factors.

If the detention of a person without charge is unlawful, either because it was outside the allowable time period, was not for a purpose permitted by the legislation, or was for an unreasonable period, this can have significant consequences for the admissibility of evidence in a given case. It could for example render inadmissible:

• anything seized pursuant to a search of the arrested person, their vehicle or their place may be inadmissible (Ie searches not conducted pursuant to a search warrant); &
• any admissions the arrested person made (Ie in a police interview or otherwise) while unlawfully in police custody.

Conclusion

While police have significant powers to detain a person without charge, these are subject to fairly strict limits. A breach of which in a given case may render significant parts of the case against an accused person inadmissible. If you require advice about an unlawful period of detention in your case, don’t hesitate to contact James Jackson Criminal Defence today.