Police Interviews (NT)
When the NT police charge a person with offences, they may ask them to participate in an electronically recorded interview. A person is not obliged to take part in an interview with police, but they may choose to do so. The police are required to comply with certain procedures and to give the suspect an effective caution prior to attempting to interview them. If these procedures are not followed it may result in any admissions the person makes being inadmissible as evidence against them. This article deals with police interviews in the NT.
The procedures that police must follow when arresting and interviewing suspects are set out in the Police Administration Act 1978. Under section 137 of that act, the police may hold a person they have taken into custody for a reasonable period in order to interview the person, carry out investigations and obtain evidence.
A person must not be interviewed in relation to a criminal offence unless they have been effectively cautioned. A caution is a warning that the person is not obliged to answer any questions and that anything they do say may be used as evidence against them.
A caution must be given in a language and in a format that the suspect can understand. If the police are unsure whether a person understands a caution, they must ask them to paraphrase it.
If a person is interviewed without an effective caution being delivered, the interview they give and any admissions they make may be found to be inadmissible in proceedings against them.
If a person is interviewed when they are sick, injured, tired, hungry, intoxicated or intimidated, any admissions they make during the interview are likely to be viewed as involuntary. This is because a person who is not sober and in good health is not considered capable of making a rational decision as to whether or not to engage in a police interview.
A person interviewed when they are sick, drunk or under some other form of pressure is more likely to feel pressured to agree to answer questions and make admissions. The common law requires that a person not be pressured to answer questions when they are a suspect in a criminal investigation. This is based on the principle against self-incrimination. A person is not required to assist the prosecution to prove them guilty of an offence as the burden of proof rests on the prosecution.
If a person is interviewed under conditions that render any admissions they make involuntary, it is likely that those admissions will be found to be inadmissible as evidence against them. This is because questioning a suspect when they are indisposed can amount to a human rights violation and because the police need to be held accountable for disregarding procedures when interviewing suspects.
Police interviews with young persons
When the police interview a person who is under 18 in relation to an offence, they must provide the young person with access to legal advice and inform them that they may contact a friend, relative or support person to be present with them while the police interview them. The police must not interview a young person if the young person does not have a support person or responsible adult present with them (Youth Justice Act 2005, section 18).
If a suspect is prosecuted for an offence, the electronic record of interview (EROI) that they completed with the police is tendered in evidence and played in court as part of the prosecution case.
If a suspect denies the offence and offers a plausible explanation during their interview, the police may not proceed with the prosecution. However, this will depend on what other evidence is available.
If a person has been interviewed by the police and the defence believes that the admissions they made were inadmissible because of the conditions under which they were interviewed, a voir dire may be conducted on the EROI.
A voir dire is a pre-trial proceeding held to determine whether a piece of evidence should be admitted into evidence or excluded. Both defence and prosecution may call evidence and make submissions as to whether the EROI should or should not be admitted into evidence.
If the court finds that the interview was improperly conducted, it may exclude the EROI from evidence. Depending on what other evidence against the accused is available, this may mean that the prosecution is discontinued or that the trial goes ahead without the EROI.
If the court finds that the interview was properly conducted, or that the impropriety was not serious enough to warrant excluding the EROI from evidence, it will admit it into evidence.
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