Police Jo Nesbø

[Kenneth Larson]

This paper does not consider issues relating to court processes and the admissibility of evidence; nor does the paper explore the literature in relation to child witnesses (eg see Powell, Wright & Clark 2010) or the specific issues of vulnerable witnesses as victims, for example, in the context of sexual assault matters (eg see Powell & Wright 2009), although these are all important linked areas of research.

Gibbons (2003) found in a study of NSW police officers that they were reluctant to call an interpreter for a number of reasons, including budgetary considerations, concerns the interpreter would serve as an advocate for the suspect and practical issues. In particular, interpreter availability can be a challenge, especially in rural or remote areas, or in relation to those belonging to less common language groups. Bull (2010: 18) also observed recently that there had been

almost no published research...[on] the role that interviewee or interviewer ethnicity is likely to play (eg witnesses from various ethnicities may well differ in their willingness to talk about sexual/familial matters) nor the related issue of the use of interpreters.

guidelines for police interrogation of Indigenous Australians in each state and territory be amended to include a requirement that a hearing assessment be conducted on any Indigenous person who is having communication difficulties, irrespective of whether police officers consider that the communication difficulties are arising from language and crosscultural issues (SCARC 2010: Rec 31).

The provisions in Division 3 of the Police Powers and Responsibilities Act 2000 (Qld) are more extensive than most Australian jurisdictions, although they only apply in relation to indictable offences.

In addition, the detainee may waive their right to a support person, with any such waiver to be recorded electronically or in writing (s 420(5)). If the police officer considers it necessary to notify a representative of a legal aid organisation as set out in s 420(2) of the Act, they must inform the person of this in a way which substantially complies with the terms set out in the regulation, namely

Section 422 of the Queensland Act applies where the police officer reasonably suspects a person has impaired capacity, although there is no definition of what is meant by this. In such circumstances, a police officer must not start to question a person suspected to be of impaired capacity until they have, if practicable, allowed the person to speak to a support person without being overheard (s 422(2)(a)); and the support person is present during questioning (s 422(2)(b)). It is unfortunately not clear how it is to be determined whether it is practicable for the police officer to allow the impaired person to confer with their support person. Subsection (3) requires that a police officer suspend questioning and comply with subsection (2) if it becomes apparent that the person is of impaired capacity.

As set out above, the only specific provision on this issue in the Tasmanian legislation relates to the provision of an interpreter. However, the Tasmania Law Reform Institute (TLRI) is currently finalising a review on consolidation of powers of arrest. In its issues paper (2006: v), it sought comment on the following issues:

[t]he problems of vulnerability and susceptibility both for group members and for police suggests that the interests of vulnerable groups, the police and the wider community would be served with the advent of some pragmatic solutions or rules related to vulnerable groups in a code of arrest.

(2) That a vulnerable person must be informed at the time of the arrest of his or her right to communicate with a friend, relative, parent/guardian, responsible person, legal practitioner and/or interpreter (relevant person) as is appropriate;

(b) When an Aborigine or Torres Strait Islander is arrested the Aboriginal Legal Service should be notified via the on-call Field Officer in accordance with Tasmania Police requirements (Aboriginal Strategic Plan).

[i]t may also be appropriate for the legislation to focus on people who may be disadvantaged for a range of reasons, such as intellectual incapacity or lack of proficiency in spoken English (ACT Government 2010: 50).

Submissions on the discussion paper were due by 30 June 2010, with further work in this area currently underway (V Martin personal communication 7 January 2011; see also Mayfield 2011 for discussion).

Part IC, Division 3 of the Crimes Act 1914 (Cth) relates to the obligations of investigating officials. Special provision is made for ATSI persons under s 23H, which requires the investigating official to notify the representative of an Aboriginal legal aid organisation where they believe on reasonable grounds that a person who is under arrest or is a protected suspect is of ATSI status, unless they are aware the person has arranged for a legal practitioner to be present (s 23H(1)).

There is a wide disparity in the level of detail in police policies in relation to the questioning of vulnerable persons and the extent to which such policies are publicly available. The policies for New South Wales and Tasmania were available on the internet, as was the WA Code of Conduct. The relevant policies for Queensland, Victoria, South Australia, Western Australia and the Northern Territory were kindly provided by police representatives and these policies are also discussed in this section.

The NSW Police website also has a wealth of relevant information available under Community Issues, including in relation to Aboriginal Issues, Cultural Diversity, Disabilities and Mental Health. Finally, although not generally available to the public, police are also subject to the Guidelines for police when interviewing people with impaired intellectual functioning, which was developed in response to the recommendation of the NSW Law Reform Commission (1996) that NSW Police develop guidelines for police when interviewing people with an intellectual disability. The guidelines aim to improve communication between police and people with impaired intellectual functioning, particularly those with intellectual disability, mental illness, acquired brain injury, learning difficulties and dual diagnosis (Urquhart 2000).

In October 2010, Victoria Police released a revised version of its police manual, following a major revision of the rules for responding to mental health and disability (Victoria Police 2010). A copy of the policy Interviewing Specific Categories of Person, which is subject to change and is updated regularly, was kindly provided by Victoria Police (2011). The policy relates to a broad range of people, including children and those outside of Victoria, as well as people affected by a mental disorder, alcohol or drugs and those who are deaf and mute and/or non-English speaking. Indigenous people are not mentioned in the policy.

The section on interpreters sets out in considerable detail the different levels of classification by the National Australian Association of Translators and Interpreters and the policy for selecting an appropriate interpreter, including where an Australian Sign Language interpreter is required. The manual also considers the process of arranging an interpreter and the process of conducting interviews with interpreters. In addition, the Queensland manual is the only one sighted which makes special provisions in relation to homeless people, including that the officer refer the person to an agency for assistance and ensure the person is not recorded as a missing person.

note the distinction between procedures affecting people who are mentally ill and those affecting people who are intellectually disabled. Where an officer is unclear if a person is intellectually disabled, advice should be sought from an appropriate source (QPS 2010: 31).

Prior to commencing an interview with a person, if the member doubts the ability of that person to understand or speak English, or if the person requests it, the member must arrange for an interpreter to be present before continuing with the interview. The interpreter must be independent of the people involved, professionally trained and formally qualified. Do not use a fellow employee of the suspects, victims or witnesses or a member of their family.

The Tasmania Police Manual (TDPEM 2010), which was revised in November 2010 and is available to the public online, is very detailed in relation to the needs of vulnerable persons. For example, it includes general information about the existence of a register of disability service providers to assist police in their interactions with people with intellectual impairment or cognitive disability. The manual also sets out examples of questions officers should ask to determine if a person is has a reduced capacity for comprehension, noting that

[i]f the person has difficulty in communicating or comprehending speech, an interpreter should be arranged (if being interviewed as an offender, an independent interpreter should be sought) (TDPEM 2010: [2.37.4]).

should not hesitate to seek the advice or assistance of the ALS. The ALS can be expected to respond positively and helpfully. Contact telephone numbers should be displayed in all stations, Charge Rooms and Watch-Houses (TDPEM 2010: [7.10.2]).

Other issues considered in the manual include the need for consistency when dealing with recurring behaviour by an individual, the suitability of access to facilities and the need to record any illness, injury or treatment provided. As noted above, the TLRI is currently finalising a review which considers the protections for vulnerable witnesses.

[w]here a person who is apparently a vulnerable suspect, that is, they may have limited mental capacity or by reason of age, education or ethnicity are disadvantaged, measures must be taken to ensure a fair interrogation. Such measures will include engaging a support person while the suspect is in police custody (NT Police 1998a: 3).

A brief overview has been presented of the key issues police may encounter when questioning suspects who may be vulnerable due to their Indigenous status, cultural and linguistic diversity and/or physical, mental or intellectual disabilities. In addition, the relevant Australian legislation in relation to police interviewees was examined, which revealed significant differences in approach. The need for more comprehensive and compatible legislation should accordingly be explored.

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