Surprisingly, many people do not know what their legal rights are if they are questioned
by a police officer. It is important for everybody to understand these rights, particularly
teenage children, young adults or those who may be vulnerable. The way a person
reacts to police questioning can have a significant impact on how the case proceeds,
and his or her future.
The following information is general and not intended to represent legal advice. You
should always consult a lawyer for advice specific to your circumstances and before
deciding on a course of action.
What are my legal rights if the police want to question me?
Apart from specific situations, a person has a right to silence and need not answer
questions. Generally, unless a police officer believes you have committed an offence, or
are about to commit an offence, you do not have to tell him or her your name and
address. Exceptions to this rule include when you are the driver of a motor vehicle and /
or being charged with a traffic offence, when you are using public transport, or if you are
at a licensed premises.
A person may also be required to disclose their identity to a police officer who suspects
on reasonable grounds that the person can assist with enquiries regarding an indictable
offence.
What if you are being arrested?
A valid arrest enables a suspect to be questioned and identified by police. However,
unless a formal arrest is made a person is not obliged to accompany a police officer.
Arresting a person for investigatory processes only is prohibited. Generally, you can be
arrested if a police officer reasonably believes you have broken a law, has a warrant for
your arrest or knows that you are a risk to a family member.
If you are being arrested the arresting officer should inform you that you are being
arrested and tell you why you are under arrest. You must go with the police officer and
provide your name and address. It is an offence to resist arrest and even pulling your
arm away or resisting in the slightest way could result in being charged with a further
offence.
Your rights after being arrested
It is fundamentally important to know that you have the right to silence. You do not need
to say anything after giving your name and address. A police officer must inform you of
these rights. He or she must state that you do not have to say anything and anything
that you do say may be used in evidence against you during court proceedings.
In most cases, you are entitled to contact your lawyer. You also have the right to contact
a friend or relative and must be given reasonable time to do this.
If you have been arrested and need medical treatment, you have the right to receive
that treatment.
If you cannot understand English, you have the right to be provided with an interpreter
or other qualified person.
If you are Indigenous the police must notify the Victorian Aboriginal Legal Services and
a client services officer will be appointed to speak to you.
If you have been arrested, it is recommended that a lawyer be contacted and that you
decline to participate in an interview until you have received legal advice. Often,
admissions are freely made by people when otherwise the offence may not have been
proven if they had remained silent. If you proceed and take part in a police interview,
then anything you say on or off camera can be used against you in court.
Do I have to submit to a search?
Yes, if you have been charged with an offence the police are allowed to search you and
take your photograph, and fingerprints. A DNA sample can be taken in some
circumstances, however would usually require a court order if you refuse to consent.
Strict procedures must be followed, and special rules apply for minors and persons with
a cognitive disability or mental illness.
What do I do if the police want to search my home or car?
In some circumstances the police can search your home or car without a warrant. Some
of these occasions are:
Minors
There are certain protective provisions in place for minors (persons who are under 18
years) who are confronting the criminal justice system. Minors must have a parent,
guardian or independent person (adult) with them when being questioned while in
custody to ensure the interrogation is conducted fairly, assist with communication
problems and help the child assert their rights.
A statement or admission made by a minor to a police officer during an interview is
inadmissible in court unless the person was accompanied by an independent adult
when making that statement.
Conclusion
The rules for investigating and progressing an actual or alleged crime are aimed at
balancing the need for enforcement of the law with the protection of an individual’s civil
rights.
If the police decide to prosecute the charges laid, a competent lawyer can assist by
applying for bail (if you are detained), negotiating with police for a lesser charge and / or
representing a case in court with the aim of achieving a reduced penalty or even
avoiding a criminal record.
This information is provided as a general overview only. If someone you know is
concerned about their rights and obligations in the criminal justice system or needs help
or advice, please contact us on 03 8415 5600 or email us at
reception@hartleyslawyers.com.au.