Skinner, Rowan --- "The police suspect" [1997] LawIJV 42; (1997) 71(2) The Law Institute Journal 31

• The police suspect Where to draw the line
• ATTENDANCE AT THE POLICE STATION
• ADVICE TO THE SUSPECT
• CONCLUSION

The police suspect Where to draw the line

by ROWAN SKINNER

It is a rule of legal procedure that no prisoner may be questioned by police unless he is cautioned against the risk of so doing and no statement may be used in evidence against him unless it is made voluntarily; in consequence, every such statement begins with a caption to the effect that the prisoner has been warn¬ed that he is not obliged to say anything but if he does, his statement may be used against him at his trial. In spite of this warning, the prisoner proceeds to pour out a long rigmarole in the optimistic belief that it is going to be of some use to him, which is later the despair of his legal ad¬visers upon his subsequent trial. I have seen dozens of these statements and the effect of them on my mind is always the same; how in the world was the prisoner so foolish as to talk?"'

Although written in England in 1949, Sir Patrick Hastings KC's comments are still very relevant today. Unfortunately, the answer to Sir Patrick's question is not an easy one, but it is one for which the solic¬itor frequently has some responsibility.

The solicitor performs an absolutely vital function when he or she advises a suspect who is to be interviewed by police, whether at the police station or elsewhere. Sadly, it is an economic reality that suspects who demand legal representation will not al-ways receive it. At best, they will often re¬ceive legal advice by telephone, only seconds before the interview is to commence. Con¬sequently, the suspect is frequently left in an invidious position, which is again best summed up by Sir Patrick:

"It is quite easy to picture the scene: the prisoner is probably seated in a police stat¬ion, surrounded by policemen, one of whom is taking short-hand notes; he is being comforted by a cup of tea and a cigarette, notwithstanding which, he is certainly terrified out of his life and ready to clutch at any straw; he may even hope that if he talks to the kind policeman, they may let him go."'

This article proposes to deal with two old chestnuts: firstly, should the solicitor attend at the police station interview? Secondly, what sort of advice should be given to the suspect who is under arrest pending an interview? I do not propose to deal in any detail with the provisions of s464 of the Crimes Act 1958 (Vic), although, of course, any practitioner who advises a sus¬pect in this jurisdiction ought to be thoroughly aware of them. The scope of this article is primarily tactical.

ATTENDANCE AT THE POLICE STATION

Invariably, I consider that practitioners ought to attend if physically able to do so. Solicitors and counsel who practise in the criminal jurisdiction tend to have hard and fast rules about attending police stations. More often than not, the advice given to suspects is that the practitioner ought not to attend because he or she runs the risk of being called as a prosecution witness at the trial if the suspect is subsequently charged, brought to trial, and then challenges the admissibility of any confession made by him or her on a voir dire. There is also the risk that, if the practitioner is called, a conflict of interest might arise which would ethically bind him or her to withdraw from the case. While there are still instances where practitioners are called to give evi¬dence on a voir dire, the use of tape and video recording of interviews has naturally reduced the chances of concoction of ad-missions by police. In spite of this, there is still an ingrained and unjustifiable fear among practitioners about physically attending the police station.

It is my view that practitioners ought not to have these hard and fast rules about attending police station interviews.

It is well known among practitioners that experienced police will use subtle tactics to obtain confessions from unsuspecting accused and, on occasions, less subtle forms of persuasion. It is more often than not a terrifying experience to be a suspect, even for the criminally exper¬ienced. As a practitioner your role is not limited to providing legal advice; you should also provide moral support.

In every instance the personal charact¬eristics of the accused ought to be borne in mind before the decision is made to attend; for instance, are they likely to be over-borne? Is it possible that a practitioner's presence might actually avoid the instit¬ution of charges or at least the procuring of evidence adverse to the client's case?

ADVICE TO THE SUSPECT

The more time you can spend with your client prior to interview the greater the likelihood of a favourable outcome for him or her at trial.

You ought never advise your client on the course to be adopted in interview witho¬ut having at least:

• attempted to establish the case for the prosecution; and
• established the defence in general terms.
• You ought not be dogmatic in advising a suspect whether to make admissions or "no comment" to an allegation. Each sit uation must be judged on its merits. How-ever, a "no comment" record of interview might be advised in circumstances where: 1: r complex allegations of fact are being
• presented which you are not able to
• properly understand and therefore
• advise on before interview;
• you consider that there is insufficient evidence to mount a case to answer against the suspect;
• the informant will not supply details of the allegations, or provides sketchy or insufficient details. In such circum¬stances, it is usually hoped by the informant that the suspect will be taken by surprise, in a "kafkaesque" type of examination;
• you consider that the suspect is either emotionally or mentally unstable, and therefore is likely to be overborne, or would gratuitously concur with the investigating official.

There is a prevailing view among trial lawyers that juries and some magistrates equate the failure to provide an explan¬ation with a guilty mind: if the suspect had done nothing wrong, then why hide be-hind such legal rights? It is often a quest-ion of balancing whether the suspect risks arousing the suspicion of the jury by this so-called hiding behind rights against the difficulty he or she may face in explaining away false denials and inconsistencies.

It is essential that the suspect answers "no comment on legal advice" to each and every question, rather than answering selectively "no comment" to some quest-ions and not others.' On occasion, it is apparent from the evidence relied on by the informant that there is a case to answer and the suspect instructs that he or she is responsible for the alleged crimes, or some part of them. In such a case there is merit in advising the suspect to place an explan¬ation on record at the earliest opportunity in anticipation of a plea of guilty. This can ultimately serve as strong mitigation as a demonstration of remorse.

If the advice from the practitioner is that the suspect ought to place an explan¬ation on record at the earliest opportunity, he or she should consider preparing a statement for the suspect, to be handed to the investigating official during the record of interview. The statement should address the suspect's reasons for committing the offences, the effect that it has had on the suspect and his or her family, and the suspect's current financial circumstances. Of course, such a statement should only be used if all the available evidence has been carefully considered and the client's state of mind at the time of the alleged offences clarified. The more complicated the case, the greater will be the risk the client faces in exculpating him or herself at a later time, particularly if more evidence emerges during the course of the investigation. There is, of course, an inherent danger in furnishing a statement which is design¬ed to exculpate the suspect; it gives the investigators notice of the defence, and therefore an opportunity to call evidence either in rebuttal, or to bolster an other-wise weak case.

Situations will arise when you decide to attend the police station to advise the suspect at short notice. In these circum¬stances you should be aware of the provis¬ions of s464C of the Crimes Act 1958 (Vic), under which the informant must delay the commencement of the interview until the suspect has received legal advice. If the suspect requests the practitioner to attend the police station, then the informant is required to await the practitioner's arrival.

It is the practice of some members of the Victorian police to caution practition¬ers that if they take part in the record of interview or interrupt in any way, that they face a risk of being ejected or of being called as a witness for the prosecution, or both. It has been my experience that fed¬eral police and other federal investigative agencies do not employ such tactics. How-ever, the purpose of such threats is to deter practitioners from taking part in inter-views, thereby giving the investigating official a better chance of securing a confes¬sion.

The latter caution is illegal as it is an effective denial of your client's right to a legal practitioner; it ought not be toler¬ated. In any event, such threats are hollow if your client maintains his or her right to silence. However, the atmosphere in records of interview is rarely conducive to con¬sistent, reliable human behaviour from suspects. Your client begins to break down through persistent pressure and import-unity; it becomes apparent to you while sitting in the interview that your clear advice is being disregarded. In this scen¬ario you are, in my view, obliged to con-firm your previous advice that the suspect ought to make "no comment on legal advice". Such an interjection will possibly place you at risk either of ejection at the hands of the informant, or of being called as a witness on a voir dire where either the voluntariness of the interview or its fairness or illegality is challenged. How-ever, you are bound to fearlessly protect your client's rights and to disregard your own interests. You will do so if you main¬tain your ground politely and respectfully.

There is always the prospect, if you do not interject, that the accused will make a confession, or make false denials, which will clearly be adverse to his or her case. If you are ejected, the suspect may well make a confession in any event. However, in Watkin's case,' the court held that it would be unfair to admit into evidence admis¬sions made by the accused in the course of an interview after the accused's solicitor was ejected from the interview by the informant.

CONCLUSION

There is undoubtedly an economic ele¬ment to a solicitor's attendance at a police station interview. It is unfortunate that there is such in this country; in England and the United States, all suspects placed under arrest, whether of means or not, are entitled to a lawyer. This is, of course, a reflection of the English and US govern¬ments' high prioritisation of justice and individual rights within the criminal justice system. Australia lags behind the rest of the Western world in respect of this important safeguard of the individual against the state. The purpose of this article is to remind practitioners of the importance of their role, in this context, within the criminal justice system.

Notes

1. P Hastings KC, Case in Court, 1950, Heinemann. 2. At pp247-248. 3. See R v Woon (1964) CLR 2. 4. (1989) 42 ACR 255.