Why hasn’t the man in custody for Cleo’s abduction been charged by WA Police yet?

The decision to arrest

WA Police have taken into custody a 36-year-old Carnarvon man who is to be questioned in relation to the suspected abduction of Cleo Smith. This man (‘the suspect’) was likely arrested without a warrant by police in the early hours of yesterday morning. Any police officer can arrest a person without a warrant if they reasonably suspect the person has committed a serious offence, which includes offences such as child stealing, kidnapping and deprivation of liberty. It is unknown what led police to suspect this man. The officer’s suspicion cannot be based on mere conjecture or speculation, rather there must have been some objective facts that existed to support the suspicion. However, facts that support a suspicion do not have to be based on admissible evidence in a Court, hearsay evidence (such as comments overheard by others), and a suspect’s prior criminal record can be considered in forming a reasonable suspicion. The media has reported the suspect’s neighbour saw him purchasing nappies at the local Woolworths even though he did not have any children. That in isolation would be insufficient to form a reasonable suspicion. However, if the suspect owns or resides in the property where Cleo was found, that may in combination with the reports of the neighbour and any other evidence collected could amount to a reasonable suspicion. However, in saying that, it is impossible to know at this stage what police have based their decision to arrest on.

What rights does an arrested suspect have?

Any person who is an arrested suspect in Western Australia is entitled to:

  1. any necessary medical treatment;
  2. a reasonable degree of privacy from the mass media;
  3. a reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of their whereabouts;
  4. be informed of the offence(s) for which they have been arrested and are suspected of having committed;
  5. be cautioned before being interviewed;
  6. a reasonable opportunity to communicate or attempt to communicate with a lawyer; and
  7. a qualified interpreter if they are unable to speak or understand English.

It is likely WA Police are still providing the suspect with these rights, given the reports that the suspect required medical treatment and was in Carnarvon Hospital.

The decision to charge

For a police officer to ‘charge’ a person with an offence, they must have collated sufficient evidence that would be admissible in a Court to prove the essential elements of the offence and the prosecution must be in the public interest. The public interest involves considering some of the personal characteristics of the offender and victim, any mitigating and aggravating features of the offending and the need for general deterrence, amongst other things. The public interest test is wide-ranging. It is unlikely, from what we know, that the public interest is preventing the suspect from being charged. It is more likely that at this point, WA Police are still collating sufficient evidence which is admissible in a Court to charge Cleo’s abductor, who may or may not be this suspect. We know the suspect is not on a list of known sex offenders in Carnarvon or was present at the home where Cleo was found, and so WA Police will continue to conduct enquiries until they are satisfied that they have sufficient evidence to charge the suspect.

When will a decision be known as to whether the man in custody will be charged?  

The suspect can be detained for the purposes of the police conducting a search on the suspect’s place or vehicle where they were arrested, to investigate the offence, interview the suspect, and decide whether to charge the suspect. However, the period the suspect can be detained must be reasonable. In general, the period cannot exceed 6 hours. However, a police officer with the rank of sergeant or above can authorise an additional period of up to 6 hours, and the investigating officer can, with the approval of a senior officer, request a Magistrate to authorise additional periods of up to 8 hours. Given that it has been reported that the suspect has not yet been interviewed, has been taken to hospital on at least two occasions and has not yet been charged or released, it is likely that this process has been followed and the suspect remains detained by order of a Magistrate.   

If the police decide not to charge the suspect, he must be released unconditionally unless the officer reasonably suspects that he would commit another offence, continue or repeat the offence for which he was arrested, endanger another person’s safety or property, interfere with witnesses, otherwise obstruct the course of justice or their own safety would be endangered. If they charge the suspect, he can be released on bail by a police sergeant or other senior officer or be brought before a Court for bail to be considered by a Magistrate. In any event, the decision will need to be known in the coming days, as ongoing detention of the suspect will not be permitted.

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