Victorian Current Acts Victorian Current ActsS. 464B(1) amended by Nos 56/1989 s. 286(Sch. 2 item 7.5), 57/1989 s. 5(1)(b)(i), 86/2000 s. 4(1)(a).
(1) An investigating official may apply to the Magistrates' Court or, if the application is in respect of a child, the Children's Court for an order that a person—
S. 464B(1)(a) substituted by No. 86/2000 s. 4(1)(b).
(a) who is—
(i) held in a prison or police gaol; or
S. 464B (1)(a)(ii) amended by No. 23/2006 s. 236(5).
(ii) a forensic resident or a security resident within the meaning of the Disability Act 2006 ; or
S. 464B(1)
(a)(iii) substituted by No. 26/2014 s. 455(Sch.
item 7.3), amended by No. 39/2022 s. 814.
(iii) a forensic patient or a security patient within the meaning of the Mental Health and Wellbeing Act 2022 ; and
S. 464B(1)
(a)(iv) repealed by No. 26/2014 s. 455(Sch.
item 7.3).
* * * * *
S. 464B(1)(b) amended by Nos 86/2000 s. 4(1)(c), 72/2013 s. 4(1).
(b) reasonably suspected of having committed an offence (being, in the case of an application in respect of a child, an indictable offence), whether in Victoria or elsewhere, other than the offence for which he or she is being held—
be delivered into the custody of the investigating official for the purpose of questioning or investigation in respect of the first-mentioned offence.
(2) An application under subsection (1) must—
(a) be in writing; and
(b) state the grounds on which the application is made; and
S. 464B(2)(c) amended by No. 86/2000 s. 4(2)(a).
(c) be served on the person who is the subject of the application by delivering a true copy of the application—
(i) to the person personally; or
S. 464B(2) (c)(ii) substituted by No. 86/2000 s. 4(2)(b).
(ii) to the person in charge of the place where the person is being held or detained.
S. 464B(3) amended by Nos 56/1989 s. 286(Sch. 2 item 7.6), 86/2000 s. 4(3).
(3) At any time after the filing of an application under subsection (1), the Magistrates' Court or Children's Court (as the case may be) may order that the person who is the subject of the application be brought before the court for the hearing of the application under subsection (1).
(4) While an order made under subsection (3) is being carried out, the person is to be taken to be in the legal custody of the person acting under the order.
S. 464B(4A) inserted by No. 86/2000 s. 4(4).
(4A) The Magistrates' Court or the Children's Court (as the case may be) must not hear or determine an application under subsection (1) unless the person who is the subject of the application is before the Court.
S. 464B(4B) inserted by No. 86/2000 s. 4(4).
(4B) If the person who is the subject of an application under subsection (1) is not legally represented in a proceeding on the application, the Magistrates' Court or the Children's Court (as the case may be)—
(a) must adjourn the hearing of the proceeding to enable the person to obtain legal representation unless satisfied that the person has had, or has refused to have, legal advice provided to him or her in relation to the application; and
(b) must not resume the hearing unless the person is legally represented or the Court is satisfied that he or she has had, or has refused to have, legal advice provided to him or her in relation to the application.
S. 464B(4C) inserted by No. 86/2000 s. 4(4).
(4C) The Magistrates' Court or the Children's Court (as the case may be) may order Victoria Legal Aid to provide legal assistance (of a kind to which section 26(1) of the Legal Aid Act 1978 applies) to the person who is the subject of an application under subsection (1) and, despite anything to the contrary in that Act, Victoria Legal Aid must provide legal assistance in accordance with the order.
S. 464B(5) amended by Nos 56/1989 s. 286(Sch. 2 item 7.7), 57/1989 s. 5(1)(b)(ii), substituted by No. 86/2000 s. 4(4).
(5) On an application under subsection (1), the Magistrates' Court or the Children's Court (as the case may be) may, if satisfied that it is in the interests of justice to do so but subject to subsection (5C), order the transfer of the custody of the person who is the subject of the application to the applicant for the purpose of questioning or investigation for a maximum period of time specified in the order, being a reasonable period within which the questioning or investigation may take place.
S. 464B(5A) inserted by No. 86/2000 s. 4(4).
(5A) In determining what constitutes a reasonable period for the purposes of an order under subsection (5), the Magistrates' Court or the Children's Court (as the case may be) must have regard to—
(a) the matters specified in section 464A(4), with any necessary modifications; and
(b) if the person is a child, his or her age.
S. 464B(5B) inserted by No. 86/2000 s. 4(4).
(5B) The Magistrates' Court or the Children's Court (as the case may be), on making an order under subsection (5), may make any further order that it thinks fit as to where, and the circumstances under which, the questioning or investigation may take place but it must not order that the questioning or investigation take place somewhere other than the place at which the person who is the subject of the order was held or detained at the time of the application for the order under subsection (5) unless it is not practicable for the questioning or investigation to take place there.
S. 464B(5C) inserted by No. 86/2000 s. 4(4), amended by No. 29/2020 s. 9(1).
(5C) The Magistrates' Court or the Children's Court (as the case may be) must not make an order under subsection (5) in respect of a person referred to in subsection (1)(a)(ii) or (iii) unless—
(a) having considered any known likely psychological effect of the questioning on the person; and
(b) having received evidence (whether oral or written) on the fitness of the person to be questioned given by a medical practitioner—
it is satisfied on the balance of probabilities that the person is fit to be questioned.
S. 464B(5D) inserted by No. 86/2000 s. 4(4).
(5D) A person is unfit to be questioned for the purposes of subsection (5C) if, because the person's mental processes are disordered or impaired, the person is or, at some time during the questioning, will be—
(a) unable to understand the nature of the questioning (namely that it is questioning to ascertain his or her involvement in the commission of an offence); or
(b) unable to follow the course of questioning; or
(c) unable to give instructions to his or her legal practitioner; or
(d) unable to understand that he or she does not have to say or do anything but that anything he or she does say or do may be given in evidence.
S. 464B(5E) inserted by No. 86/2000 s. 4(4), amended by No. 29/2020 s. 9(1).
(5E) On making an order under subsection (5) in
respect of a person referred to in subsection (1)(a)(ii) or (iii), the
Magistrates' Court
or the Children's Court (as the case may be)—
(a) must include in that order a condition that—
(i) subject to subsection (5F), an independent person is to be present while any questioning or investigation takes place in accordance with the order; and
(ii) before the commencement of any questioning or investigation, the investigating official must allow the person to communicate with the independent person in circumstances in which as far as practicable the communication will not be overheard; and
(b) may include in that order any other condition that it thinks fit in the interests of the well-being of the person during any questioning or investigation.
S. 464B(5F) inserted by No. 86/2000 s. 4(4).
(5F) The Magistrates' Court or the Children's Court (as the case may be) is not required to include in an order under subsection (5) a condition referred to in subsection (5E)(a)(i) if the person who is the subject of the order applies to the Court for that condition not to be included and the Court is satisfied that, in all the circumstances, it is appropriate not to include it.
S. 464B(5G) inserted by No. 86/2000 s. 4(4).
(5G) On making an order under subsection (5), the Magistrates' Court or the Children's Court (as the case may be) must inform the person who is the subject of the order—
(a) that he or she does not have to say or do anything but that anything he or she does say or do may be given in evidence; and
S. 464B(5G)(b) amended by No. 41/2004 s. 9(1)(a).
(b) that the investigating official must give him or her the information required to be given by subsection (6) and section 464C(1); and
S. 464B(5G)(c) inserted by No. 41/2004 s. 9(1)(b).
(c) if the person was held in a prison or police gaol at the time of the application, that the making of the order does not prevent a senior police officer from authorising the conduct of a non-intimate compulsory procedure on the person under section 464SA.
S. 464B(5H) inserted by No. 86/2000 s. 4(4), amended by No. 27/2006 s. 17(2).
(5H) An audiovisual recording must be made of the following—
(a) the giving of any information required to be given by subsection (6) and section 464C(1);
(b) any response of the person in custody to the giving of that information;
(c) any questioning that takes place in accordance with an order made under subsection (5) and anything said by the person questioned.
S. 464B(6) amended by No. 86/2000 s. 4(5).
(6) If an order is made under subsection (5), before any questioning or investigation commences, an investigating official must inform the person who is the subject of the order that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence.
(7) An order under subsection (5) has effect as a suspension of a direction in a warrant of commitment to deliver a person to the place of detention specified in the warrant or to hold a person in that place (as the case may be).
S. 464B(8) amended by Nos 56/1989 s. 286(Sch. 2 item 7.7), 57/1989 s. 5(1)(b)(iii), 86/2000 s. 4(6)(a).
(8) The Magistrates' Court or the Children's Court (as the case may be) may, subject to subsection (8A)—
(a) extend a period of custody ordered under subsection (5); or
S. 464B(8)(b) amended by No. 86/2000 s. 4(6)(b).
(b) on a subsequent application under subsection (1), make orders whether in respect of the same or a different offence reasonably suspected of having been committed by the person.
S. 464B(8A) inserted by No. 86/2000 s. 4(7).
(8A) The Magistrates' Court or the Children's Court (as the case may be) must not extend a period of custody ordered under subsection (5) or, on a subsequent application under subsection (1), make an order against the same person in respect of the same offence unless satisfied that there is a reasonable prospect that further questioning or investigation will assist in determining the involvement (if any) of the person in the commission of the offence.
S. 464B(8B) inserted by No. 86/2000 s. 4(7).
(8B) In determining the length of any extension of a period of custody ordered under subsection (5), the Magistrates' Court or the Children's Court (as the case may be) must have regard to—
(a) the matters specified in section 464A(4), with any necessary modifications; and
(b) if the person is a child, his or her age.
S. 464B(9) amended by No. 86/2000 s. 4(8)(a)(b).
(9) At—
(a) the end of the period, or any extended period, specified in an order under subsection (5); or
(b) the cessation of questioning or investigation—
whichever is the earlier, the investigating official must deliver the person who is the subject of the order to the place of detention at which the person was held or detained at the time of the application for the order.
S. 464B(9A) inserted by No. 41/2004 s. 9(2).
(9A) The making of an order under subsection (5) does not prevent a senior police officer from giving an authorisation under section 464SA.
S. 464B(10) inserted by No. 86/2000 s. 4(9), amended by No. 72/2004 s. 26(a)(b).
(10) In this section—
S. 464B(10) def. of
child amended by No. 72/2013 s. 4(2)(a).
"child", in relation to a person suspected of having committed an offence, means a person who at the time of the suspected commission of the offence was under the age of 18 years but does not include any person who is of or above the age of 19 years at the time of the making of an application in respect of him or her or the giving of informed consent by him or her under this section;
S. 464B(10) def. of investigating official inserted by No. 72/2013 s. 4(2)(b).
"investigating official", in relation to an offence committed outside Victoria, includes a person (other than a person who is engaged in covert investigations under the orders of a superior) who is—
(a) a member of—
(i) the Australian Federal Police; or
(ii) the police force of another State or a Territory; or
(b) a person appointed by or under an Act of the Commonwealth or another State or a Territory whose functions or duties include functions or duties in respect of the prevention or investigation of offences;
Note
Part IC of the Crimes Act 1914 of the Commonwealth applies if the investigating official is a member of the Australian Federal Police.
S. 464B(10) def. of offence inserted by No. 72/2013 s. 4(2)(b).
"offence" includes an offence against a law of the Commonwealth or another State or a Territory.
S. 464B(11) inserted by No. 72/2013 s. 4(3).
(11) An investigating official may question a person (other than a child) who is held in a prison or police gaol and is reasonably suspected of having committed an offence (whether in Victoria or elsewhere) other than the offence for which he or she is being held about his or her involvement (if any) in that offence if—
(a) the investigating official is satisfied that the person is not incapable of giving informed consent by reason of mental impairment; and
(b) the person gives informed consent in accordance with subsection (13).
Note
Section 41 of the Corrections Act 1986 provides for visits by the police to prisoners, which may include questioning to which this section does not apply.
S. 464B(12) inserted by No. 72/2013 s. 4(3), amended by No. 29/2020 s. 9(2).
(12) A person must not be removed from the prison or police gaol in which he or she is being held for the purpose of questioning under subsection (11) unless subsection (16) applies.
Note
Questioning or investigations involving removal from prison or police gaol may be authorised by a court order under subsection (5).
S. 464B(13) inserted by No. 72/2013 s. 4(3).
(13) A person gives informed consent to be questioned if the person consents after an investigating official informs the person, in language likely to be understood by the person, of the following matters—
(a) the nature of the offence which the person is suspected of having committed;
(b) that the person may refuse to be questioned;
(c) that if the person gives consent, he or she does not have to say or do anything but that anything the person does say or do may be given in evidence;
(d) that if the person gives consent, he or she may withdraw that consent at any time before the questioning is completed but anything the person says or does before withdrawal of consent may be given in evidence;
(e) that if the person refuses to be questioned, an application may be made to the Magistrates' Court for an order under this section;
(f) that if the Magistrates' Court makes an order under this section, the person may be delivered into the custody of the investigating official for the purpose of questioning;
(g) the person's rights under sections 464C, 464D and 464F, unless Part IC of the Crimes Act 1914 of the Commonwealth applies.
S. 464B(14) inserted by No. 72/2013 s. 4(3).
(14) A person may exercise any applicable right under section 464C, 464D or 464F before deciding whether or not to consent to be questioned.
S. 464B(15) inserted by No. 72/2013 s. 4(3).
(15) An audiovisual recording must be made of—
(a) the giving of the information referred to in subsection (13); and
(b) any response of the person in custody to the giving of that information; and
(c) any questioning of the person that takes place and anything said by the person questioned; and
(d) any withdrawal of consent to the questioning.
S. 464B(16) inserted by No. 29/2020 s. 9(3).
(16) An investigating official may remove a person being held in a police gaol for the purpose of questioning under subsection (11) if—
(a) the police gaol is located in the same building as a police station; and
(b) the person is to be removed to a room in the police station; and
(c) the person is not to be taken outside the building; and
(d) the person consents to being removed to a room in the police station; and
(e) the officer in charge of the police gaol gives approval under subsection (17).
S. 464B(17) inserted by No. 29/2020 s. 9(3).
(17) An officer in charge of a police gaol may approve the removal of a person to a room in a police station under subsection (16) if satisfied that the use of the room—
(a) is in the best interests of the person to be questioned, having regard to privacy and confidentiality; or
(b) enables an audiovisual recording required by subsection (15) to be made; or
(c) for any other reason is preferable to conducting the questioning in the police gaol.
S. 464B(18) inserted by No. 29/2020 s. 9(3).
(18) A person removed under subsection (16) from a police gaol to a room in a police station is in the custody of the investigating official.
S. 464B(19) inserted by No. 29/2020 s. 9(3).
(19) The removal of a person from a police gaol to another part of the same building under subsection (16) has effect as a suspension of a direction in a warrant of commitment to deliver the person to the place of detention specified in the warrant or to hold the person in that place.
S. 464B(20) inserted by No. 29/2020 s. 9(3).
(20) At the cessation of questioning, the investigating official must deliver the person to the police gaol from which the person was removed.
Note to s. 464B inserted by No. 25/2014 s. 15.
Note
Section 78D of the Corrections Act 1986 provides for the application of section 464B in relation to persons detained under that Act.
S. 464C inserted by No. 37/1988 s. 5.