The Exercise of Police Powers in Queensland: The Defendant's Perspective
| Author | Anne Edwards |
| Published date | 01 December 1997 |
| Date | 01 December 1997 |
| DOI | http://doi.org/10.1177/000486589703000302 |
| Subject Matter | Articles |
The Exercise of Police Powers
in Queensland:
The Defendant's Perspective'
Anne Edwardst
This
paper
presents the findings
of
a survey
of
489 defendants appearing in
Queensland Magistrates Courts. The survey was designed to colleet
information about police arrest, questioning
and
searching practiees from
the perspective
of
people who
had
been subject to the exerclse
of
these
powers. Theprimary objectives
of
the study were to identity any problems
with currentpolice powers
and
to establish baseline measures to assist in
monitoring the implementation
and
impact
of
any
new
legislation. It was
found that the results
of
the study generally align with the results
of
other
research,
and
withanecdotalevidence. It is argued that a study
of
this nature
is a valuable supplement to other information
and
could be employed
elsewhere to provide jurisdietion-relevant data. When the regulation
of
police
powers is reviewed, data
of
this nature are a potentially rich souree
of
information for legislators.
Introduction
Recently in both New South Wales and Queensland, extensive reviews have
been conducted into arrangements regulating the exercise of police powers
(CJC 1994b; Queensland Government 1997; Griffith 1997; Royal
Commission into the New South Wales Police Service 1997). While the police
perspective on police powers is often forcefully presented, it is often left to
more politically marginalised stakeholders to voice concerns about the rights
of the policed. Despite the substantial attention and public debate which these
controversial issues continue to attract, no large-scale, systematic research has
been conducted to provide information about how those powers are actually
exercised on the ground. Instead, most of the information regarding police use
and exercise of powers has been gained through official complaints and their
subsequent investigation, anecdotal information provided by police and
lawyers, or through inquiries into particular aspects of police powers
conducted by various law reform bodies.
The absence of reliable information makes it difficult to measure the extent
of any problems with the way in which existing powers are exercised, assess
the impact of reforms, or monitor changes in police behaviour. A little used
strategy is to obtain such information directly from those who have been
subject to the exercise of these powers: that is, persons who have been arrested
and charged by police. While this method of collecting data is logistically
difficult, and attracts some resistance from police, properly used it can provide
valuable additional information. This paper describes
arecent
study of this
*Received: 22 August 1997; accepted in revised form:
200ctober
1997.
tResearch Officer, Queensland Criminal Justice Commission, PO Box 137, Albert Street,
Brisbane, Queensland 4002.
217
218 (1997) 30 The Australian and New Zealand Journal of Criminology
nature undertaken in Queensland by the Criminal Justice Commission (CJC)
and reports on key findings (for a more comprehensive discussion see
CJC 1996).
The research problem
Knowledge about how police powers are actually exercised is quite limited.
Research which has been conducted in order to gain relevant information has
suffered from various methodological limitations inherent in studying this
area. This section will briefly review such research and identify the main
shortcomings.
Two factors make it extremely difficult to obtain an accurate picture of how
police actually exercise their powers. First, and most importantly, police
powers are most frequently exercised and are most at risk
ofbeing
misused 'in
the field' , in unsupervised and essentially private encounters. Despite the long
tradition
of
observational studies of policing which have reported police
behaving in sometimes remarkably indiscreet ways, no one would claim that
observed behaviour was unaffected by the overt presence
of
a researcher.
Second, in jurisdictions like Queensland, only very limited information is
required to be recorded by police conceming the exercise of powers, in
marked contrast to the quite elaborate recording regime which applies in
England and Wales under the Police and Criminal Evidence (PACE) Act 1984.
For
example, Queensland Police are currently required to keep records of
searches conducted pursuant to the Drugs Misuse Act 1986, but not details of
searches relating to other types
of
offences. Police also have to maintain a
Custody Index in cases where a suspect is in custody or is being questioned
in relation to an indictable offence, but the Index does not record the length of
any questioning conducted, information about warnings given, or whether a
lawyer was present. In any case, the limitations of relying
solelyon
records
compiled by police officers are weIl known.
Faced with the difficulties of collecting first-hand information, bodies
which have examined issues relating to the exercise of powers by Australian
police have relied largely on submissions, anecdotal evidence and case law
(see for example: Australian Law Reform Commission 1975; Beach 1976;
Victorian Consultative Committee on Police Powers of Investigation 1986;
New South Wales Law Reform Commission 1990; Cosgrove 1990;
CJC 1994b, Blagg &Wilkie 1995). In these inquiries the experiences of
arrestees themselves have either been included by way
of
'case studies', or
have not been included at
alle
The experiences of police, on the other hand,
have tended to be weIl represented through the submission process.
There is a small body
of
research which has attempted to document the
experiences of the policed. Three British studies have included sampies of
suspects in their various descriptions of the criminal justice system. Maguire
and Corbett interviewed asampie of complainants to obtain adescription of
their experience of the police complaints system (Maguire &Corbett 1991).
Paddy Hillyard interviewed a group of people who had been arrested under
prevention of terrorism legislation and presented their accounts of their
treatment by police (Hillyard 1993). Finally, Carole Adams' work on police
detention under the PACE Act has also included the experiences of arrestees
(Adams 1996).
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