Civil Trials Bench Book — Evidence

The international instruments which Australia has either recognised, ratified or adopted as relating to human rights and freedoms for the purposes of the Human Rights and Equal Opportunity Commission Act 1986 (HREOC Act) are the UN International Covenant on Civil and Political Rights (ICCPR) (the terms of which are set out in Sch 2 of the HREOC Act), the Convention on the Rights of the Child (available at http://www.unhchr.ch/html/menu3/b/k2crc.htm — the earlier Declaration on the Rights of the Child set out in Sch 3 of the HREOC Act is no longer relevant), the Declaration on the Rights of Mentally Retarded Persons (set out in Sch 4 of the Act), the Declaration on the Rights of Disabled Persons (set out in Sch 5) and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (available at http://www.unhchr.ch/html/menu3/​b/d_intole.htm).

The text writers draw attention also to Article 3 of the European Convention on Human Rights, which provides: “No-one shall be subjected to torture or to inhuman or degrading treatment or punishment”: http://www.echr.coe.int/Documents/Convention_ENG.pdf. One benefit of the European Convention is that it has a readily accessible body of case law produced by the European Court of Human Rights, which is available on the same link.

The Bench Book deals with this subject at [4-0850], Obligation to caution.

The NSW Police Code of Practice (the Code) for CRIME (Custody, Rights, Investigation, Management and Evidence) (known by the acronym CRIME), to which reference was made in Em v The Queen (2007) 232 CLR 67, also deals with this subject, although perhaps incompletely. It says (at p 10) that it “might be necessary to caution before arrest” but, once an arrest is made, an oral caution must be given “as soon as possible”. The Code states (at p 49, under the heading “Questioning suspects”) that all persons have the common law right to silence, except where the law requires persons to provide information (for example, pursuant to a Road Transport Act), and that before such questioning police officers must be satisfied that such persons understand the caution “and implications of actions following it”. Greater detail of the time when a caution is to be given (at p 50): that is, when the police officer believes there is sufficient evidence to establish that an offence has been committed, or would not allow the person to leave if that person wanted to or has given the person reasonable grounds to believe that he or she would not be allowed to leave. The basic caution to be given is in the following terms:

The Code states (at p 51) that the police officer need not follow that as a formal script, but a record must be kept of what is said. The Code stresses (on the same page) that the police officer communicate to the person to be questioned that he or she does not have to say or do anything in response to the questions and that anything said or done may be used in evidence.

Status of CRIME: The Foreword to the Code states that it provides “a succinct reference to the powers of the police when investigating offences”, and it asserts that “[t]he Code is not, however, a comprehensive set of requirements which must be followed by police in exercising the powers of their office” (the emphasis is supplied in the original); rather, the Foreword says, “[i]n exercising these powers and in their treatment of suspects and members of the public, police must be aware of the obligations and responsibilities imposed on them by legislation, NSW Police policies, procedures and other documents …”.