There is no absolute legal right to have an independent witness or a lawyer present during questioning – but in Tasmania you are generally entitled to have a lawyer present. The courts have decided that police must tell the arrested person that they have a right to communicate. In addition, any police questioning must be delayed a reasonable time for the suspect to try to get legal advice. In Tasmania, there is a legislated right to communicate with a friend, relative or legal practitioner (s6, Criminal Law (Detention and Interrogation) Act 1995 (Tas)).
The only circumstance in which police are justified in denying you a right to communicate is when a police officer reasonably believes that the communication is likely to result in the escape of an accomplice or the fabrication or destruction of evidence, or if there is an urgent need to ensure the safety of others such that the questioning should not be delayed (section 6(3), 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.
The Tasmania Police Manual confirms and supports the requirements of the law. Failure to warn a suspect of their right to remain silent is regarded as a serious breach and has warranted the exercise of the court’s discretion to exclude evidence obtained in interview 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, they can also leave at any time. If they are prevented from leaving, they are under arrest and all the rights attendant on arrest will become available.
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. It should also be reported on the Tasmania Police complaints system, Abacus.
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.