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?

Apart from limited situations a person has a right to silence and need not answer questions. Generally, if a police officer asks, you do not have to tell him or her your name and address. However, there are cases when you are required to, for example, when you are the driver of a motor vehicle and / or you are being charged with a traffic offence.

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 alleged offence due to the fact that the person was within the vicinity of the alleged crime.

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.

If you are being arrested the arresting officer should tell you that you are being arrested and tell you why you are under arrest.

If this happens remember that it is an offence to resist arrest, pulling your arm away or resisting in the slightest way could result in being charged with a further offence.

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. Often, admissions are freely made by people when otherwise the offence may not have been proven if they had remained silent.

You are entitled to contact your lawyer.

If you have been arrested and need medical treatment, you have the right to receive that treatment.

You also have the right to contact a friend or relative and notify them of your whereabouts.

If you cannot understand English you have the right to be provided with an interpreter, or other qualified person.

Do I have to submit to a search?

Yes, if you have been arrested the police are allowed to search you and take your photograph, fingerprints and a DNA sample.

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 (but not all) of these occasions are:

  • if the owner, occupier or operator consents; or
  • if the police enter the property to make an arrest; or
  • if you, or an occupant, are under arrest, or
  • if the police have reasonable suspicion to believe that a crime is being committed or has been committed or will be committed; or
  • if the police suspect terror related activities.

What do I do if the police want to interview me?

The police may request that you attend or accompany them to a police station to answer questions however you are not required to go with them unless you have been arrested in relation to an offence.

You do not have to answer any questions (other than to provide the police with your personal details) and you are not required to participate in a video recording of the interview.

At this point, it is recommended that a lawyer be contacted and that you decline to participate in an interview until you have received legal advice from your lawyer.

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.

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 ‘support person’ with them when being questioned while in custody. The role of a support person is to ensure the interrogation is conducted fairly, assist with communication problems and help the child assert their rights. A support person may include the child’s parents, guardian or a lawyer.

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 (02) 9818 2888 or email info@dsplawyers.com.au.