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s 139 – Cautioning of persons

139 Cautioning of persons

(1) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if—

(a) the person was under arrest for an offence at the time; and

(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and

(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(2) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if—

(a) the questioning was conducted by an investigating official who did not have the power to arrest the person; and

(b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence; and

(c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.

(4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.

(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if—

(a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or

(b) the official would not allow the person to leave if the person wished to do so; or

(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.

(6) A person is not treated as being under arrest only because of subsection (5) if—

(a) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth; or

(b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.

Expressions defined in the Dictionary are identified in bold print. Click here to access the Dictionary.

Continuity and change – moderate change

  1. Section 139 is a deeming provision that applies in civil and criminal proceedings (Em v R (2007) 232 CLR 67; [2007] HCA 46 at [105] per Gleeson CJ; [117]-[118] per Gummow and Hayne JJ).
  2. It provides that, if a person was ‘under arrest’ for an offence at the time an investigating official conducted questioning and that official failed to caution the person in the ordinary way, then evidence of a statement made or an act done by the person during that questioning is taken to have been obtained improperly for the purpose of s138(1).

    Application

  3. A court must determine whether s139 is engaged on the basis of the facts and circumstances before it. If s139 is engaged (with the result that s139(1) and (2) require the court to find that an impropriety in accordance with s138(1) has occurred), then this is so notwithstanding that, on the facts and circumstances before it, the court might not have considered that the evidence was improperly obtained or obtained as a result of an impropriety.
  4. If by s139, a statement is taken to have been improperly obtained, s138 operates so that the evidence is only admitted if the court is persuaded that the desirability of admitting it outweighs the undesirability of doing so.
  5. Section 139 does not exhaustively state when a caution must be administered – for instance, a failure to establish that evidence was improperly obtained under s139 does not preclude such a finding under s138. (Nor does it preclude a finding that it would be unfair to admit evidence of an admission pursuant to s90 (Discretion to exclude admissions)).

    ‘Investigating official’

  6. Investigating official is defined (see UEA Dictionary) to include police officers (other than those engaged in lawful covert investigations) and persons appointed by or under an Australian law whose functions include preventing or investigating offences (other than those engaged in lawful covert investigations).

    ‘Questioning’: s139(1), (2)

  7. The obligation to ‘caution’ under these subsections arises only when there is ‘questioning’.
  8. Subsection (2) was recently amended by changing from ‘official questioning’ to ‘questioning’ (see Evidence Amendment Act 2008 (Cth) and Evidence Amendment Act 2007 (NSW)). Clause 65 of the Explanatory Memorandum to the former Act describes this amendment as consequential to the amendment to s85. It explains that it is designed to address the majority’s in Kelly v R (2004) 218 CLR 216; [2004] HCA 12, which interpreted ‘official questioning’ in s8 of the Criminal Law (Detention and Interrogation) Act 1995 (Tas) narrowly.
  9. Nevertheless, despite the widening from 'official questioning' to 'questioning', in R v Naa (2009) 76 NSWLR 271; [2009] NSWSC 851, Howie J thought that 'questioning' would not extend to general conversation. In respect of 'questioning', His Honour stated that:

    I do not believe that the word means 'a conversation during which questions are asked'. Clearly to my mind the section was aimed at formal or informal interrogation of a suspect by a police officer for the purpose of the officer obtaining information ... (R v Naa (2009) 76 NSWLR 271; [2009] NSWSC 851 at [98]).

    ‘Under arrest’: s139(1)(a),(b); and see (2), (5), (6)

  10. There is a distinction between an investigation official who has arrest powers (s139(1) and one who does not (s139(2)).
  11. Section 139(1) deems that evidence of a statement will be taken to have been improperly obtained when an investigating officer with arrest powers had a person under arrest (see s139(5) and (6)), but did not caution that person prior to questioning.
  12. Section 139(5) deems arrest to have occurred in a range situations, while s139(6) provides a limitation with respect to questioning about Commonwealth offences.
  13. Section 139(2) deems evidence of a statement to have been improperly obtained when an investigating officer without arrest powers had formed the belief there was sufficient evidence to establish the person had committed an offence but did not caution that person prior to questioning.
  14. Section 139(2) requires the court to consider whether the investigating official had a subjective belief that there was sufficient evidence to establish the person committed an offence. The question is not whether there was evidence on which an investigating official could reasonably form that belief (Moir v Stokes & Anor [2016] VSC 218).
  15. Section 139 does not mean it is improper for police to fail to caution a person who they reasonably believe to be a crime victim and who claims to have shot himself (R v Hinton [1999] ACTSC 20 per Higgins J).
  16. In R v Patsalis; R v Spathis (No 3) [1999] NSWSC 718, Patsalis attended a police station and handed over notes about a murder he claimed to have witnessed before he was cautioned (for which murder he was subsequently charged). Kirby J held, on the facts, that the absence of a warning may have amounted to an impropriety in four circumstances:

    Communicating the caution: s139(3)

  17. This section is ‘purposive’. It:

    operates on the ability to understand the concept underlying the caution and the function of a caution. The caution is meant to convey to an arrested person that he/she has the right to choose to speak or to remain silent. It is meant to ensure that the person is aware that if he/she speaks, what he/she says may be given in evidence (R v Deng [2001] NSWCCA 153 at [17] per Greg James J).

  18. However, s139(3) does not refer to a requirement that the person understand or comprehend the caution. This raises the question of whether the section requires the court to be satisfied the person understood the caution or merely that the caution accorded with the terms of the section.
  19. In R v Taylor [1999] ACTSC 47, Higgins J observed that ‘the caution will fail to satisfy s139(3) if the circumstances are such that the officer knows, or ought to know, that the caution has not been understood’ (at [19]). This supports the conclusion that the caution must be understood.
  20. However, his Honour also noted that:

    there is no such failure if a reasonable person in the position of the officer, acting with proper respect for the rights of suspects, did not and could not reasonably have been expected to perceive that the suspect did not understand the caution (R v Taylor [1999] ACTSC 47 at [19]).

  21. Higgins J also notes that there may be circumstances requiring further investigation than merely obtaining the suspect’s acknowledgement, in order to establish whether they have heard and understood the caution (R v Taylor [1999] ACTSC 47 at [20]).
  22. Such circumstances may include whether the person is Aboriginal (see R v Anunga (1976) 11 ALR 412) or, for example, intoxicated or cognitively impaired.

    Significant other sections that are or may be relevant

Other sections include:

Last updated: 4 July 2017

See Also

Part 3.11: Discretionary and Mandatory Exclusions (ss 135 – 139)

s 135 – General discretion to exclude evidence

s 136 – General discretion to limit use of evidence

s 137 – Exclusion of prejudicial evidence in criminal proceedings

s 138 – Exclusion of improperly or illegally obtained evidence