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Lessons for criminal lawyers from Reeves v NSW
A judge recently ruled that a man held in an interview room by NSW Police despite repeatedly telling them he did not want to be questioned had an established legal claim for false imprisonment — something criminal lawyers have welcomed.
Lauren Croft
Earlier this month, a legal claim was brought against NSW Police by Benjamin Reeves for wrongful arrest, battery, false imprisonment and malicious prosecution. While the Honourable Judge Alister John Abadee dismissed the majority of these claims, he did find that police held Mr Reeves in an interview room, despite him asserting that he did “not wish to participate in this interview” 90 minutes after being arrested.
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According to the Law Enforcement (Powers and Responsibilities) Act 2002, police powers relating to questioning do not affect “the right of a person to refuse to participate in any questioning of the person or any other investigative procedure unless the person is required by law to do so”.
Justice Abadee, therefore, found that “it was unreasonable for police to have detained Mr Reeves in the interviewing room” for approximately 15 minutes.
“For this discrete period, Mr Reeves’ action of false imprisonment is established,” he said in his judgment.
Following this judgment, director at J Sutton Associates Andrew Tiedt said that in his experience, police continuing to question someone after they have declined to be interviewed is a “common occurrence”.
“After telling police they do not wish to be interviewed, a person will still be taken to an interview room, either so that ‘the refusal can be recorded’ or so that ‘the allegation can be put to them’,” he wrote on a LinkedIn post last week.
“In most cases, it is a fairly transparent attempt to pressure the person to answer questions, notwithstanding their initial refusal.”
According to the judgment, the police officer interviewing Mr Reeves said the following after Mr Reeves said he did not wish to be interviewed.
“That’s fine, Sir. As, uh, police, cah, have a common, raw [sic] right, law right to ask questions whether an, investi [sic], uh, when, uh, conducting of an investigation.”
“You are in, not obliged to say anything or do anything. OK. But, I am gunna [sic] ask you a number of questions. Because, that’s my job, and I would be lacking in it if I did not.”
From a policing perspective, more education may be needed for both investigators and custody managers, Armstrong Legal criminal law senior associate Liam McKibbin told Lawyers Weekly.
“In my previous experience as a police officer, and current experience as a criminal defence lawyer, the practice of corralling an accused person into an interview room after they have indicated they don’t wish to participate or wish to exercise their right to silence is commonplace. To me, this demonstrates a lack of appreciation, consideration, or education in the nuances of LEPRA from the NSW Police, with particular regard to Division 2 of that Act,” he explained.
“Mr Reeves and his lawyer repeatedly articulated that he wanted to exercise his right to silence. He should not have been taken into a room for an interview at all, let alone being then subjected to persistent questioning within that interview room by the investigating officer. The custody manager should have also monitored this breach of LEPRA and counselled the officer in charge against engaging in this conduct.”
Therefore, criminal lawyers should be advising clients who wish to exercise their right to silence that if asked to participate in an interview, they should “politely but firmly refuse” and that if they are “then asked to ‘have that refusal captured on camera’ (i.e. in an interview room), politely but firmly refuse”.
“A criminal lawyer in this situation should be speaking with the custody manager, informing them that their client will not be participating in an interview, making a request that that information is recorded in the custody management record, and then of course, the lawyer emailing the officer in charge and/or custody manager to that effect. They should also make a detailed file note of that conversation themselves, making sure to make note of the registered number and name of the custody manager,” Mr McKibbin added.
“I welcome judgements such as Reeves v NSW, as reminders like these seem to be necessary for police to realise that they should not force a person to engage in an interview or persist with questioning over their clear exercise of their right to silence, and that the maximum six-hour investigation period for a person under arrest as per s 115 (2) of LEPRA is exactly that, a maximum. Taking away a person’s liberty is an extreme action, the duration of which should always be, as s 115(1) states, reasonable in all the circumstances.”
