There is no absolute legal right to have an independent witness or a lawyer present during questioning. However, the courts have decided that a lawyer should be allowed to be present if requested by the suspected person and the interrogation should be delayed a reasonable time for the suspect to try to get legal advice. In Tasmania, there is a right to communicate with a friend, relative or legal practitioner (s6, Criminal Law (Detention and Interrogation) Act 1995 (Tas)).
The denial of access to a lawyer, in some circumstances, may lead a judge to exercise their discretion in rendering a confession inadmissible if they think that this denial amounts to unfair treatment of the accused.
Further, the Tasmanian Police Standing Orders say that a person should be given access to a lawyer. These standing orders are a set of recommendations from the Commissioner of Police to police concerning proper procedures. Although these are not legally enforceable rules and are only a general guide of the appropriate standard of propriety a judge may exercise a discretion to exclude a confession if there has been a breach of these rules. Failure to warn a suspect of their right to remain silent is regarded as a serious breach and has warranted the exercise of this discretion on occasions. However, a breach of these rules will not in itself always result in exclusion of this evidence.
If a person has gone to a police station voluntarily and is not under arrest, they can refuse to supply information or even to remain at the police station until a lawyer or independent witness is present. If under arrest, a person can still refuse to answer questions but this will not necessarily prevent them being asked.
If a lawyer requests access to a person in custody and is refused, the fact that they made such a request and the names of all persons spoken to should be noted down. It can then be used as evidence casting doubt on the truth and voluntariness of any record of interview.
If access is denied, a written or verbal complaint can be made to the superior of the officer concerned or to the Commissioner of Police. In addition, the Register of Persons Interviewed procedure now provides a suspect with an opportunity to complain at an early stage, as does the video interview itself.
Children are in a special position. Police Standing Orders say that they should not be questioned without a parent or guardian present, or failing that, a child welfare officer. Police should attempt to contact an appropriate adult. If this procedure is not followed the admissibility of any statement, confession or admission may later be challenged in court.
The Police Standing Orders provide that after a person has been charged, facilities should be made available to allow that person to telephone a friend, relative, solicitor or doctor. A request should be made. It is advisable to be circumspect when telephoning from a police station where what is said may be overheard and can be used later in evidence.
Once again, it should be noted that the Police Standing Orders are not legal rules and do not confer rights. If they are not obeyed, however, a complaint should be made, and the conduct of the police could then cast doubt on the voluntariness of any admission or confession. It may also provide a basis for challenging the admissibility of any statement on grounds of unfairness to the accused (see below).