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6.15.5. Rights of arrested and detained persons

  1. Sections 21(4)-(8) set out a number of specific rights that apply to persons who have been deprived of their liberty through arrest or detention.
  2. Section 22 ‘Humane treatment when deprived of liberty’ also specifically protects persons who have been deprived of liberty. For more information, see 6.16. Humane Treatment when Deprived of Liberty (s 22).

    Section 21(4): right to be informed of the reason for arrest or detention

  3. Section 21(4)states:

    A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her.

  4. Section 21(4) modifies the equivalent ICCPR right under art 9(2) by extending the requirement to detained as well as arrested persons.
  5. The Supreme Court has stated that s 21(4) supplements the common law requirement of reasons being given on arrest (Slaveski v State of Victoria [2010] VSC 441 [111]-[119]).
  6. Under the common law, a person must be informed of the facts that are said to constitute the offence, for which the person has been arrested. The sufficiency of the communication is to be judged as a matter of substance, and the arrester need not communicate the reason for arrest in technical or precise terms (Slaveski v State of Victoria [2010] VSC 441 [111]-[119], citing Christie v Leachinsky [1947] UKHL 2 [587], [591], [593], [598]).
  7. The common law right to be informed of the reasons for arrest is subject to a number of limitations. Recognised circumstances under which the arrestor is exempted from immediately informing the arrestee of the reason for the arrest include:

    (a) the arrestee prevents the arrester from doing so, for example, by violently resisting the arrest or absconding;

    (b) the circumstances are such that the arrestee must know the general nature of the offence for which the arrest is effected, such as where he or she has been given prior notice of the proposed arrest and the reason for it or has been ‘caught red-handed and the crime is patent to high Heaven’; and

    (c) the arrestee is unable to understand the reason because of a disability, an inability to speak English or intoxication, provided that the arrester does all that a reasonable person would do in the circumstances (Slaveski v State of Victoria [2010] VSC 441 [116]).

  8. For example, the Supreme Court has held that a police officer discharged the obligation to inform the arrestee in circumstances where it was satisfied that the police officer had informed the plaintiff he was under arrest for breach of an intervention order, and the angry, abusive behaviour of the plaintiff prevented him from communicating any more (Biddle v State of Victoria [2015] VSC 275 [246]).
  9. Where the circumstances set out in (a)–(c) above apply, the arrestee must be informed of the reason for their arrest at the soonest reasonable opportunity (Slaveski v State of Victoria [2010] VSC 441 [117]).
  10. These common law exceptions to the right to be informed of the reasons for arrest may inform the scope of the right to s 21(4), or a general limitations analysis relating to limits of that right.
  11. This s 21(4) right to be informed applies to persons who have been detained for any reason; they are not limited to persons arrested or detained on remand or in prison. For example, these rights apply to persons suffering from a mental disability who are detained under protective or treatment orders. See ‘Relationship with other Charter rights’ in 6.15.2. Scope of the Right to Liberty and Security.

    Section 21(5): Delay

  12. Section 21(5) states:

    A person who is arrested or detained on a criminal charge—

    (a) must be promptly brought before a court; and

    (b) has the right to be brought to trial without unreasonable delay; and

    (c) must be released if paragraph (a) or (b) is not complied with.

  13. The right to be brought to trial without unreasonable delay in s 21(5) appears to overlap with the ‘minimum guarantee’ ‘to be tried without unreasonable delay’ in s 25(2)(c). For more information, see 6.19. Rights in criminal proceedings (s 25).
  14. The Supreme Court has stated that because the meaning of ‘unreasonable delay’ is not defined, s 21(5)(b) should be regarded as ‘descriptive given the particular circumstances’. For a delay to be considered unreasonable, it should not have occurred through the fault of the arrestee or detainee (Re Dickson [2008] VSC 516 [13]).
  15. The Court has also noted that if an accused is held in custody for a longer time than he or she is likely to serve upon a sentence, that is likely to be an ‘unreasonable delay’.With regard to s 21(5)(c), as well as the minimum guarantee to be tried without unreasonable delay in s 25(2)(c), the Court said:

    The only remedy the Court can provide an accused for a failure by the Crown to meet its Charter obligations in this regard (or to ensure that it does not breach those obligations so as to prejudice the applicant), is to release him on bail - at least the only remedy short of a permanent stay of proceedings (Gray v DPP [2008] VSC 4 [12]).

  16. Delay may be unreasonable even when time spent on remand is unlikely to be greater than time upon a custodial sentence. For example, in R v Niazi the prosecution had a strong case on a charge of drug trafficking for which the defendant was likely to serve a significant custodial sentence. Despite this, the Charter rights in ss 21 and 25 were found to enact the common law right to be tried without unreasonable delay, and the delay in the case of over 2 years before the charges would be heard, informed the meaning of the ‘exceptional circumstances’ that led to bail being granted (R v Ahmad Niazi [2008] VMC 22 (14 August 2008) [12]-[14]; Re Raffoul [2020] VSC 848 [84]-[90]).
  17. The Court of Appeal has stated that the Charter does not require a departure from the existing approach to assessing bail applications under s 4 of the Bail Act 1977 (DPP (Cth) v Barbaro (2009) 20 VR 717; [2009] VSCA 26 [38]-[41]; Re Dickson [2008] VSC 516 [22]). Section 4 of the Bail Act is discussed below.

    Section 21(6): Bail

  18. 21(6) states:

    A person awaiting trial must not be automatically detained in custody, but his or her release may be subject to guarantees to attend—

    (a) for trial; and

    (b) at any other stage of the judicial proceeding; and

    (c) if appropriate, for execution of judgment.

  19. In Victoria, the Bail Act sets out the relevant legal regime relating to whether a person is granted bail or is remanded in custody. Section 4 of the Bail Act provides that bail shall be granted for any accused, other than those charged with certain offences:
  20. For accused persons charged with treason, murder, and certain drug offences, the court may only release the accused on bail if it satisfied that ‘exceptional circumstances exist which justify the grant of bail’ (Bail Act 1977, s 4(2)).
  21. These provisions of the Bail Act appear to reflect the rights in s 21(6).
  22. Under international law, pre-trial detention may be justified for a number of reasons, including to ensure the presence of the accused at the trial, to prevent interference with witnesses or evidence, and to prevent the commission of other offences (UN Human Rights Committee,, Views: Communication No 1887/2009 (Peirano Basso v Uruguay),100th sess, UN Doc CCPR/C/100/D/1887/2009, (19 October 2010),; UN Human Rights Committee, Admissibility: Communication No. 432/1990 (WBE v The Netherlands),UN Doc. CCPR/C/46/D/432/1990 (23 October 1992) [6.3]).
  23. These reasons are reflected in s 5(3) of the Bail Act:

    A court considering the release of an accused on bail may only impose a condition in order to reduce the likelihood that the accused may—

    (a) fail to attend in accordance with his or her bail and surrender into custody at the time and place of the hearing or trial; or

    (b) commit an offence while on bail; or

    (c) endanger the safety or welfare of members of the public; or

    (d) interfere with witnesses or otherwise obstruct the course of justice in any matter before the court.

  24. In addition, s 5 of the Bail Act includes a note, which reads as follows:

    Note

    Sections 12 and 21 of the Charter of Human Rights and Responsibilities set out a right of freedom of movement and a right to liberty and security of the person.

    Sections 23 and 25 of the Charter of Human Rights and Responsibilities set out the rights of children in the criminal process and the rights of an adult in criminal proceedings.

    Section 7(2) of the Charter of Human Rights and Responsibilities sets out how a human right may be limited after taking into account all relevant factors, including any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

  25. The Note to s 5 of the Bail Act was inserted by the Bail Amendment Act 2010. The Victorian Law Reform Commission recommended inclusion of this note to ensure that the Charter provisions (including s 21) were considered when bail conditions were imposed, when deciding applications to vary and when reviewing conditions (Explanatory Memorandum, Bail Amendment Bill 2010, 5).
  26. Referring to this note, the court in Woods v DPP stated that the Bail Act obliges the bail authority not to impose conditions which violate the human rights of the accused (Woods v DPP (2014) 238 A Crim R 84; [2014] VSC 1 [82]-[84]).

    Section 21(7): Review of arrest or detention

  27. Section 21(7) states:

    (7) Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must—

    (a) make a decision without delay; and

    (b) order the release of the person if it finds that the detention is unlawful.

  28. Although this Charter right has not been the subject of any litigation in Victoria, a number of existing avenues of review or appeal give effect to it. For example:

    Section 21(8): Imprisonment for Failure to Perform a Contractual Obligation

  29. Section 21(8) states:

    A person must not be imprisoned only because of his or her inability to perform a contractual obligation.

  30. Section 21(8) is modelled on art 11 of the ICCPR, which has generated little jurisprudence. It was primarily designed to combat so-called ‘debtors prisons’, and was intended to apply to private law civil obligations rather than statutory obligations (Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford University Press, 2nd ed, 2000) [10.14]).
  31. For example, an applicant under the ICCPR, who failed to pay his ex-wife court-ordered monthly child maintenance, was convicted of ‘abandonment of the family’ under the Spanish Penal Code. The UN Human Rights Committee rejected his claim for relief under art 11 because the obligation to pay maintenance derived from Spanish law, not the divorce settlement agreement between the applicant and his wife (UN Human Rights Committee, Admissibility: Communication No 1333/2004 (Ràfols v Spain), 84th sess, UN Doc CCPR/C/84/D/1333/2004, IHRL 1808 (UNHRC 2005), (25 July 2005).
  32. The right in s 21(8) applies when a person has been, or is being threatened with, imprisonment ‘only’ because of an ‘inability’ to perform a contractual obligation. It therefore does not apply to persons who are simply unwilling to perform the obligation, or to those who have committed some other offence as well as the contractual breach (Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford University Press, 2nd ed, 2000) [10.14]).

Last updated: 25 March 2022

 

See Also

6.15. Right to liberty and security of the person (s 21)

6.15.1. Introduction

6.15.2. Scope of the right to liberty and security

6.15.3. Specific limitations (ss 21(2)-(3))

6.15.4. Reasonable and justified limits under s 7(2)