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 the basic safeguards. A person cannot get into trouble for refusing to answer the police’s questions. It is generally advisable not to take part in an interview as 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 ask for a lawyer or independent witness to attend the questioning.

Our lawyers are available to advise you if you have been arrested or asked by police to take part in an interview.

What are my rights?

Before any questioning (apart from asking for you name and address) begins, police must inform you that:

  1. You do not have to say anything
  2. Anything you do say may be given in evidence in court proceedings against you
  3. You may contact a friend or relative to tell them where you are
  4. You may contact a lawyer for advice before the interview proceeds

Police must give you a reasonable time to contact a friend, relative or lawyer. They must also do as much as possible to ensure you can talk with your lawyer without being overheard.

Failure to comply with these requirements could result in the police not being able to use your responses as evidence in court.

How Long can you be Held at a Police Station?

If arrested, police only have a reasonable time to interview you and carry out further investigations once you have been detained. In Victoria, there is no set time limit for what is a “reasonable time”. This will vary from case to case depending on factors including but not limited to:

  • the number and complexity of offences being investigated;
  • any time taken by you to speak with a lawyer, friend or relative;
  • any time taken by your lawyer, friend or relative to come to the interview;
  • any need to transport you from where you were arrested to somewhere with the facilities to interview you.

The situation is different if you are suspected of committing an offence against Commonwealth law. In that case, police generally have four hours from the time of arrest to carry out their investigations and either release you or take you before a court or bail justice. This period excludes certain activities, such any time taken to speak with your lawyer.

When is it an Offence to Refuse to Answer a Police Question?

You must give your name and address when asked by a police officer. The maximum penalty for not complying with this requirement is a fine of about $700.

You must answer any questions if you have been given a witness summons to be examined by the Chief Examiner under the Major Crime (Investigative Powers) Act 2004 in relation to an “organised crime offence”. The maximum penalty is 5 years imprisonment.

Otherwise, you do not have to answer any other police questions. This is commonly known as the right to silence. You can simply say “no comment” when asked a question.

Should you Take Part in an Interview?

The decision to take part in an interview is a difficult one. There are advantages and disadvantages of doing so. Each case is unique and our advice often varies from case to case.

No unfavourable inference can be drawn by a court from a person refusing or failing to answer questions in the course of official questioning.

Advantages and Disadvantages of Taking Part in an Interview

There can be advantages as well as disadvantages to doing a police interview.

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 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.

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.
  • Providing your version of events to police often will not influence the police officer in deciding whether to charge you.
  • 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 to charge me?
  • 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?

If you require legal 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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