Police Questioning and Right to Silence
When exercising police powers, an officer must comply with the basic safeguards outlined here.
- You cannot be arrested for questioning .
- You are not required to accompany police to a police station for questioning unless you have been arrested for an offence.
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.
- 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. A reasonable time may be up to 6 hours, unless the police apply for the period to be extended (by detention warrant) up to a further 6 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.
When Is It An Offence To Refuse To Answer A Police Question?
It is an offence to refuse to answer a police question if you are concealing information about a serious indictable offence that would lead to a prosecution.
A serious indictable offence is an offence that has a maximum term of imprisonment of 5 years or more. The maximum term of imprisonment for refusing to answer is 2 years or 5 years if you gain some benefit from the information. A common example of this is when a family member of a drug dealer turns a blind eye to the supply of prohibited drugs.
The police may also require you to disclose your identity and provide proof of your identity in the situations below. It is an offence in these circumstances to fail or refuse to comply with this requirement without reasonable excuse. It is also an offence to give a false name, or an address other than your full and correct address.
You will Have to Provide Your Identity if:
- The officer suspects on reasonable grounds that you may be able to assist in the investigation of an alleged indictable offence because you were at or near the place where it occurred. Maximum fine for non-compliance: $200.
- If the officer suspects on reasonable grounds that an AVO has been made against you. Maximum fine for non-compliance: $200.
- You were a driver, passenger or owner of a vehicle and the officer suspects on reasonable grounds that it is associated with an indictable offence. Maximum fine of for non-compliance $5500 or 12 months imprisonment, or both.
- You are involved in a car crash where:
a. Someone is injured or killed.
b. You forgot or choose not to give your details to the other driver that was involved in the crash.
c. Any of the vehicles are towed away; or
d. A police officer asks for your details.
The details that you are required to give within 24 hours of a car crash include your name and address, the owner’s name and address and vehicle registration details. You will also be required to provide an explanation of the circumstances of the crash. If you find yourself in this situation it would be wise to talk to a lawyer before giving your explanation. The maximum fine for non-compliance is $2200.
Should you be Interviewed by Police?
The decision as to whether to take part in an interview is a difficult one to make as there are often advantages and disadvantages of doing so. Each case is unique and our advice often varies from case to case. If you would like specific advice, we would be happy to speak with you on either 1300 038 223 or send an email to email@example.com
No unfavourable inference can be drawn from a person refusing or failing to answer questions in the course of official questioning.
Advantages and Disadvantages of Taking Part in an Interview
- Your denial, if accepted, may mean that police do not charge you with a criminal offence.
- Your version may be more readily accepted by the 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.
- Failure to answer a question may be an offence.
- 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.
- Providing your version of events to police often will not influence the police officer in deciding whether to issue a court attendance notice.
- The interview process can be very stressful and this may lead you to be confused or mistaken about what actually occurred. Often 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.
- If you are going to implicate others in the crime, there may be repercussions.
Four Important Questions to Ask Before Agreeing to an Interview
Before agreeing to an interview with police, you or your lawyer should ask the police officer investigating your matter these four questions:
- Will participation in a record of interview affect the police’s decision regarding issuing a court attendance notice?
- What evidence do the police have against me? (ask them to show you the evidence)
- Am I likely to be granted bail?
- Is it an offence to fail to provide an answer to any question?
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.