The Section 460 Controversy in Victoria
| Published date | 01 September 1984 |
| Date | 01 September 1984 |
| DOI | http://doi.org/10.1177/000486588401700301 |
| Subject Matter | Editorial |
AUST
&NZ
JOURNAL
OF
CRIMINOLOGY
(September 1984) 17 (129-132)
EDITORIAL
129
The
Section 460 Controversy in Victoria
For
some
time
there
has
been
aconsiderable controversy in Victoria
over
s 460
of
the
Victorian Crimes Act. This is a provision of
fundamental
importance
to
the
Victorian criminal process. It deals with
the
question of what time is to elapse
between
the
point
when
acrime suspect is
taken
into custody
and
when
he is
taken
before
acourt. It is a crucial section to be
examined
by a
judge
or magistrate
when
called
upon
to exercise
the
discretion to exclude evidence, especially confessional
evidence, which has allegedly
been
obtained
when
the
suspect was being unlawfully
detained.
More
broadly, it is, of course, of crucial significance because
upon
its
interpretation
depends
the
answer to
the
question how much time do police have
to conduct
their
investigative activities. Section 460 is,
therefore,
in
many
respects
the
fulcrum for
the
whole Victorian criminal investigative
apparatus.
Over
the
past
couple of years acomplex combination of
developments
has
resulted in
the
very
recent
amendment
of s 460.
Before
amendment
the
section
read
as follows:
"Every
person
taken
into custody for an offence
(whether
committed
in
Victoria
or
elsewhere) shall be
brought
before ajustice or magistrates'
court
as
soon
as practicable
after
he is so
taken
into custody".
For
agood
number
of years it
appears
to have
been
accepted by
the
courts
and
assumed by
the
police
that
the
law was to be
interpreted
to allow a
reasonable
period
of time to elapse, during which police could conduct a
range
of
investigations,
before
asuspect was to
appear
before
acourt.
But
as in so
many
areas
of this highly unsatisfactory province of
the
law practice
depended
upon
long-usage, conventions, assumptions
and
tacit understandings
rather
than
any
specific
and
detailed legal provision or
interpretation.
During
1982
and
1983 a series of judicial decisions
brought
about
a
rapid
and
profound
change to
the
meaning
and
complexion of s 460, caused aserious political
storm
in Victoria
and
threatened
wholesale disruption of
the
flow of indictable cases
through
the
courts.
The
net
result of these decisions was to drastically restrict
the
scope for police
interrogation
of suspects
and
other
investigative steps eg
identification
parades
and
re-enactments of alleged crimes.
In RvClune [1982]
VR
1
the
Victorian
Court
of Criminal
Appeal
said
that
the
police
had
no
power
to compel
the
accused to
take
part
in an identification
parade.
McGarvie
J
took
the
matter
further
when
he said:
It is difficult to see how legal power to use compulsive force to detain aperson for the purpose of
bringing him before aJustice or Magistrates'
Court
as soon as practicable can be used to compel aperson
against his will to participate in an identification parade. An arrest and detention which is originally
validly made, becomes unlawful, if at a later stage the person is being detained for a purpose
other
than
the purpose of being brought before aJustice or Magistrates' Court.
Until
recently it
had
also
been
assumed by
the
Victoria Police
that
after
being
charged
and
remanded
to a prison a
prisoner
could be
kept
in a police watchhouse
for
the
purposes
of
further
interrogation
and
investigation of
the
circumstances
surrounding
the
alleged offence. In R v Curran and Torney [1983] 2
VR
133
McGarvie
J
held
that
the
Melbourne
City
Watchhouse
was
not
aprison. As a result
of
that
decision police now
appear
to
take
the
view
that
prisoners
are
unavailable
for interview, or at least available for interview only
under
circumstances
unpalatable
to
them.
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