A Little Knowledge is a Dangerous Thing or When is an Arrest Not an Arrest?

SummaryThe decision of the High Court in Williams v the Queen generated considerable concern amongst law enforcement agencies that its practical application would effectively throttle the effective investigation of crime. A number of Australian legislatures responded by reforming the law to permit the police to question suspects held in detention. Recently, in its decision in Sammak v The Queen, the Tasmanian Court of Criminal Appeal provided the police with another mechanism for evading the constraints placed upon their powers of interrogation by Williams. It did so by recognising a distinction between being under arrest and being in police custody in a general sense that is less than arrest. This decision is of relevance in most other Australian jurisdictions, even those where the law has been reformed to partially abrogate the effect of Williams. This is because it potentially provides the police in those jurisdictions with a means for evading even the lesser constraints imposed on them by that reforming legislation. The implications of this decision for suspects' rights are troubling. The decision in Sammak, however, is open to challenge on a number of grounds. These are considered in this paper as are its implications for suspects' rights.The Court in Sammak also decided that a person could only be found to be under arrest if he was aware that he was not free to leave. This aspect of the decision is also criticised in this paper.