Friday, 11 September 2009

Cross-border questioning

Dr Manhattan posted earlier this week about Wallace v Debs & Anor [2009] VSC 355, dealing with an application made by Victorian police on behalf of NSW police to interview a suspect already in custody.

A comment there gave me the idea of discussing the status of various investigators who aren't from Victoria.

Crimes Act 1958 Part 3, Div 1, Subdiv 30A (section 464 on) prescribes investigation processes for investigating officials.

Investigating officials means Victorian investigating officials: R v Frugtniet [1999] 2 VR 297. If interstate police come here to interview a suspect, they need to comply with the legislative and evidentiary procedures for admissibility of interviews in their home jurisdiction. (But of course, there will also be local requirements for gaining access to a suspect.)

A West Australian police officer is not an investigating official under these Victorian provisions (R v Weston, FC V, 05/08/1992), and nor is a Queensland police officer (R v Bartlett, FC V, 14/09/1994. Similarly, an Australian Federal Police officer is not an investigating official: R v Gionfriddo [2000] VSCA 152; R v Frugtniet [1999] 2 VR 297. National Crime Authority operatives are also not investigating officials: WF1 v National Crime Authority (1993) 44 FCR 524; WF1 v National Crime Authority (1993) 44 FCR 533. That probably means Australian Crime Commission operatives (which replaced the National Crime Authority in 2003) wouldn't be considered investigating officials too.

When police want to interview a person interstate, they have several options.

If the person is under sentence, they can be transferred interstate under the Transfer of Prisoners Act 1983 (Cth). But that won't ordinarily apply for investigation purposes, only trials of charges.

A person under restraint as defined in the Service and Execution of Process Act 1992 (Cth) can be extradited under Part 5 of that Act, but (logically enough) only if they are not in prison.

Or, the police can cross the border and attempt to interview the suspect, as the NSW police tried in Wallace v Debs & Anor [2009] VSC 355. That's probably the most practical option (aside from waiting to see if the person eventually returns to the jurisdiction where they're wanted).

1 comment:

Anonymous said...

Interesting stuff.

In fisheries law enforcement this is a regular issue, with offences occuring in Victoria and alleged offenders crossing jurisdictional boundaries. Similarly, a large number of Victorian licensed commercial lobster boats operate out of Port MacDonnell in South Australia. Under their Victorian licence conditions they are required to do certain things on landing (in South Australia!) such as weighing the catch and completing paperwork. This has often resulted in Victorian officers conducting interviews and investigating offences in South Australia.

As an example of novel legislation to aid cross border law enforcement, the recent Primary Industries Legislation Amendment Act 2009 of Victoria is interesting. That Act amended the Fisheries Act 1995 (Vic) and inserted a new section 138A which effectively provides that a South Australian fisheries officer may exercise or perform the law enforcement powers of a Victorian officer under the Fisheries Act 1995(Vic) within South Australia.

To provide for this extraterritorial extension of powers, the South Australian Fisheries Management Act has a corresponding provision that allows Victoria to legislate and provide powers to fisheries officers.

What this means in practice is that a South Australian Fisheries Officer can use powers under the Victorian Act to investigate offences under that Act, while in South Australia. As Victorian fisheries officers located near the border are also appointed as SA officers, they are effectively able to enforce Victorian law in South Australia with the same powers they have in Victoria.

Of course in doing so, as your posts point out, they would have to apply the Victorian law in respect of interviews etc., as any prosecution would occur in Victoria.