Understanding your legal rights when questioned by a police officer is crucial. This knowledge is particularly vital for teenagers, young adults, and vulnerable individuals, as it can significantly influence the direction of a case and your future.
The following information is general and not intended to be legal advice. For advice specific to your circumstances and before deciding on a course of action, it is always best to consult a lawyer.
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 them 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.
There are circumstances when a person is required to disclose their identity to a police officer. This is when the officer suspects, on reasonable grounds, that the person can assist with enquiries regarding an alleged offence because the person was within the vicinity of the alleged crime.
What if you are being arrested?
A valid arrest enables police to question and identify a suspect. However, unless a formal arrest is made, a person is not obliged to accompany a police officer. Arresting a person for investigatory purposes only is prohibited.
If you are being arrested, the arresting officer should inform you that you are being arrested and explain why you are under arrest.
If this happens, remember that resisting arrest is an offence. Pulling your arm away or resisting in the slightest way could result in a further charge.
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.
Just to remind you, you are entitled to contact your lawyer. This professional can provide you with the necessary legal advice and support, ensuring you make informed decisions during this challenging time.
If you’ve been arrested and need medical treatment, you have the right to receive that treatment. Your health and well-being are a priority, even in the midst of a legal situation.
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 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 specific 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. Police may contact a private solicitor, Legal Aid Youth Hotline or the Aboriginal Legal Service ‘ALS’ for assistance and advice.
When interviewing a young person, police are required to adhere to specific procedures, which include the presence of a support person. The support person may be:
- A parent or guardian
- An independent adult selected by the young person (if aged 14 or older) or their parent
- A lawyer nominated by the young person (if aged 14 or older)
- An individual who is not connected to the investigation and has no vested interest in its outcome
- A Justice of the Peace, utilised only as a last resort
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 prosecuting an actual or alleged crime aim to balance the need to enforce 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 to achieve a reduced penalty or even avoid a criminal record.
If you or someone you know is concerned about their rights and obligations in the criminal justice system or needs help or advice, don’t hesitate to contact us on 0407 534 594 or 0407 171 626 or email info@catronsimmons.com.au.