This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Police Questioning


When exercising police powers, an officer must comply with some basic principles and ensure you have been provided with your rights. You cannot be arrested for questioning, and unless you have been arrested for an offence, you do not have to accompany police to a police station for questioning. You should insist that you be allowed to contact a lawyer and should ask for a lawyer or independent witness to attend the questioning.

How long can you be held at a police station?

Police only have a reasonable time to interview you and carry out further investigations once you have been detained, before they must either charge or release you. A reasonable time is less than 4 hours, unless you are, or appear to be, under 18, or are an Aboriginal person or a Torres Strait Islander, when the reasonable time is only 2 hours. The police can apply for the period to be extended (by detention warrant) up to a further 8 hours.

In reality, there are a number of procedures that are not included in the reasonable time period. These include time to allow you to communicate with a lawyer, to recover from intoxication or to wait for recording facilities.

Your right to silence

The right to silence of a suspected person is a long-standing tenet of our criminal law, seen by courts as a “fundamental rule”. A suspect does not have to agree to an interview with police. However, if the interview relates to the use of a motor vehicle, you are required to provide your name and the driver’s identity.

Should You Be Interviewed?

Advantages

Your denial, if accepted, may mean that police do not charge you with a criminal offence. Your version may be more readily accepted by a court because you told the police what you knew at the time of your arrest and before seeing the witness statements. The court must take into account your remorse when sentencing you and remorse can be demonstrated at interview.

Disadvantages

Police often do not have enough evidence against you to prove the offence when they question you. You may say something that may help the police prove the case against you. There is no certainty that providing your version of events to police will influence the police officer to decide not to issue a summons.

The interview process can be stressful and this may lead you to be confused or mistaken about what actually occurred. Sometimes suspects who are interviewed will give an incorrect version of events and, after reading the witness statements, remember what occurred. It is always difficult for an accused person to convince a court that they were mistaken about the facts and have not changed their evidence to support their case.

Interviewing children and young people

Police must not interview a suspect child or young person about an offence, or cause the child or young person to do anything in relation to the investigation of an offence, unless they have appropriate adult support. Support can be in the form of a parent, someone who has daily or long-term care responsibility, a family member acceptable to the child or young person, their lawyer or another suitable person (for example, someone trained by the Public Advocate to attend such interviews).

However, police can interview a child or young person if they believe on reasonable grounds that it is necessary to avoid a risk of death or serious injury of a person, or serious damage to property.

Police must not charge a child or young person with an offence at a police station unless satisfied that proceeding by summons would not achieve one or more of the following:

  • ensuring the person appears in court;
  • preventing the person from offending;
  • preventing the concealment, loss, destruction or fabrication of evidence;
  • preventing harassment of, or interference with, a potential witness;
  • preserving the person’s safety or welfare.

Police must promptly take all reasonable steps to tell a parent or responsible person about the restraint or arrest of a child. If a child or young person is charged with an offence at a police station, the charging officer must promptly take all reasonable steps to tell a parent of responsible person the terms of the charge, where the child or young person is and when the child or young person will be brought before the Children’s Court.

For advice or representation in any legal matter, please contact Armstrong Legal.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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