[LINK] It's Queensland - (sorry to Qlders)

[Richard Chirgwin]

On 26/05/11 6:26 PM, Steven Clark wrote:
> from Steven via Bandersnatch, a frumious iPad
>
> On 26/05/2011, at 5:05 PM, rene<rene.ln at libertus.net>  wrote:
>
>> On Thu, 26 May 2011 11:44:17 +1000, Jan Whitaker wrote:
>>
>>> At 03:28 PM 19/05/2011, Mailing List wrote:
>>>
>>>> Perhpas he needs to watch this video. It is American but I would
>>>> guess much of it would still apply here.
>>>> <http://www.youtube.com/watch?v=6wXkI4t7nuc>
>>> Just got around to watching this. I'm not sure it would apply here in
>>> all circumstances. For example, if a transit officer on the tram in
>>> Vic asks you for your ID or perhaps your name and address, you must
>>> provide it or you will be arrested. And these guys are BIG. So just
>>> saying your name and address is I believe a requirement under some
>>> administrative law at least. Not sure about criminal law.
>> Given this thread is still titled "It's Queensland", I'd remark that Qld
>> Police in questioning 'suspects' (at the least in relation to indictable
>> offences) are required to inform such persons of their right to remain
>> silent and to have a lawyer present and also about various other rights and
>> things, as set out in the Qld Police Responsibilities Code, section 33 and
>> subsequent sections (Sch. 10 Police Powers and Responsibilities Regulation
>> 2000).
>> http://www.austlii.edu.au/au/legis/qld/consol_reg/pparr2000456/sch10.html
> this is *technically* true, but police often use the grey area between asking a 'potential witness' about a matter, and questioning a 'suspect'. while we have the right to silence in both cases, police usually 'suggest' that cooperation will 'help' them (the police) with their inquiries - and they're usually very careful not to suggest that you are a suspect. in fact, anytime a police office asks *any* questions (beyond, perhaps, 'can you direct us to the pub') you ought to be concerned. from a 'catching criminals' perspective, the difference between a witness and a suspect is a matter of perspective. always assume that an officer is, or will, record the details of your conversation. ask direct questions. and if a police officer gives you vague or evasive or reflective answers, *assume* you're being 'questioned'.
>
> i am not suggesting that police are malicious in using this approach; their job requires them to suspect anyone and everyone connected to an event. otherwise they may overlook important evidence, or worse, focus on the wrong suspect(s).
Yes; as I think I said on Link, a journalist should have been taught 
that a policeman asking about a story is trouble, and the only course of 
action is to forget that you speak English until the lawyer arrives. 
Where I get hot under the collar is that Ben has worked for three 
publishers, and nobody seems to have given the "Law and journalism" talk.
> the interview in question here is of interest to me because of the conduct of *both* parties. the police were not entirely upfront about who they were - name and rank is not enough: it *does* matter that a senior criminal investigator was floating around an event in plain clothes, where he (and those with him) could be confused with police media relations people. if i recall correctly, when he approached a possible witness/suspect he didn't identify himself as an active investigator.
>
> his interview technique was carefully designed to put the subject at ease: as any experienced interviewer will do. this strategy is known to elicit voluntary disclosures. it's very often successful. but can stray into misleading conduct.
>
> the journalist reveals his lack of experience, and perhaps naivety, in assuming the police officer was just asking for background info. police and media *do* help each other out, and that is to be commended. i'd have rot read the transcript again to remind myself of the language the journalist used when explaining what he knew of what had been done to get access to the photograph(s) in question. did he speak in the first or third person?
>
> all that said, i am still bemused by the clear fumble here by the qld police. you'd think they'd go after the guy who actually *did* the deed, rather than the guy reporting it - unless, of course, they were just catching up with what was going on and grabbed the guy they could get (still in qld and right in front of them).
That one confuses me as well. But it's hard to reason out any of the QPS 
behaviour: they went after the wrong person, in circumstances where it 
wasn't clear that a crime had been committed under their jurisdiction.
> i have met the supt in charge of fraud in qld police. he seems to have a good grasp of the lay of the land regarding offences involving ict. though he did make a point of say that he was open to guidance from the ict profession as policing 'in this domain' is still very formative. but so too is the legislation involved - it's very often written very broadly, with little guidance regarding interpretation or thresholds. the police are still looking for guidance there, and i suspect, in the end, they see an opportunity here to get some clarification.
>
> i think the journalist was doing his best to take advantage of an opportunity to build a bridge to senior police. good clear communication between police and media is a good thing, and both sides do want - and need - that.
This is a great danger to journalists. You have to balance the 
essentially adverserial nature of the job with the need to ingratiate 
yourself with people who can give you information. When, however, the 
adversary starts to peddle the line about "media as partners": beware! 
It means the "outsider" aspect of journalism is being eroded. This is 
never to the journalist's advantage, because there are so many resources 
deployed to try and manage us.
> the big concern here, for the future, is whether qld policed have seeded district amongst journalists. journalists sources do still have some protections. by retaining the entire contents of his ipad, the police have an opportunity to learn about other contacts, and other possible leads that they would not otherwise have any right to learn. i can imagine some journalists may reconsider how they use such devices in the future to avoid the possibility of such a collateral revelation.
Indeed. But here was a mistake made by an inexperienced journalist who 
didn't know quite what to do. If he had said "don't touch", the police 
would have had to bring him before a magistrate - but in the meantime, 
they would not have been allowed to do anything to the iPad except seal 
it and wait for the decision. And in front of a magistrate, with a good 
lawyer backing the journalist, the police would have lost.
>
>> The transcript published by Fairfax shows that the Qld police complied with
>> the 'letter of the law' in that regard.
>>
>> In addition s35(3) states: "If the person confirms that he or she does not
>> want to answer any questions, the police officer must not question or
>> continue to question the person."
> this protects both parties.
>
>> If the journalist had exercised his right to remain silent, of which he was
>> informed, it iseems highly unlikely the police would have been able to form
>> a "reasononable suspicion" sufficient to allegedly give them power to
>> arrest him for the purpose of seizing his iPad. While much has been said by
>> various commentators about Qld police powers to "arrest for questioning",
>> the transcript indicates they did not question him after arresting him. Qld
>> Police also have the power to arrest without a warrant for the purpose of
>> preserving 'evidence'. According to the transcript, the journalist had
>> voluntarily told them there was information on the iPad that the police
>> presumably considered was/would be evidence.
>>
>> Also, I think it is far more likely than not that all AU police have
>> similar powers, but probably in some or many AU jurisdictions it's called
>> power to "detain", not "arrest".
> detaining a person is not the same as arresting them. a person detained for questioning is not necessarily under arrest, and there is a clear limit to how ling such detention can be prolonged. detention has softer requirements: arrest requires physical control over the suspect, detention can exist with mere inference that you 'have' to stay and/or 'have' to answer questions.
However, the Qld code allows for "arrest for questioning". But the 
circumstances in which Grubb was questioned did not *fit* "arrest for 
questioning": there was no suspicion that he had committed any crime. 
Merely being in possession of something that might-or-might-not have 
evidence is not enough. To "arrest for questioning", the suspicion has 
to rest directly on the person arrested. This was, IMO, misconduct by QPS.

RC
> the law regarding arrest and detention is pretty settled, those of the of fences for which one might be detained, or arrested, are often less so. whether arrested or detained, a person as the right to ask for a lawyer to be present; and to remain silent. silence on its own cannot be used as evidence of anything beyond a desire not to speak (in the usa, 'the fifth' is a right against self-incrimination). not speaking here does not imply guilt (though the police may well suggest as much in the hope that the suspect/witness will make voluntary admissions ...)
>
> Steven
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