Your Rights When Approached by Police (Vic)

Being approached by police can be intimidating. What the police are allowed to ask you, whether they can arrest you, what your rights are and the process that will be followed all depend on the situation and why the police are approaching you. 

If I am approached by police can they take my details? 

Police cannot take a person’s name and address without a reason. Police will generally only request that a person provide these details if they believe the person has committed an offence or is about to do so. If police approach you and do not provide you with the reason why they need your details, then you should ask them to tell you the reason.

If you fail to comply with a lawful request by police or a Protected Services Officer to provide them with your details then you may be found guilty of a summary offence punishable by a fine.

If I am approached by police can they take me back to the station?

You cannot be arrested for the purpose of questioning. The police cannot require a person to go with them to a police station for questioning unless they have lawfully arrested the person in relation to an offence.

If a person is approached by police and questioned in relation to an indictable offence, they must be cautioned and told their rights.

This means that police must convey to the person that:

• They do not have to say anything (right to silence);
• If they do answer questions, their answers may be used in evidence against them;
• They may contact a friend or a family member to tell them their whereabouts; and
• They may contact a lawyer for advice before the interview starts.

Failure to comply with these rules could result in police not being able to use an interview as evidence in court. However, failure to comply does not always mean that the interview will not be admitted into evidence.

Summary vs indictable offences

A person will only be asked to participate in a recorded interview if they are suspected of an indictable offence. An indictable offence is an offence that carries a maximum penalty of more than two years imprisonment or a fine of more than 240 penalty units or an offence prescribed to be an indictable offence in legislation.

If a person is suspected of a summary offence, they will generally be approached by police and questioned informally, so that police can consider whether they should issue a warning, an infringement notice or a summons. A summary offence is a less serious offence that is finalised in the Magistrates Court and carries a maximum penalty of less than two years imprisonment.

Summary offences are different from indictable offences, particularly in relation to admissions made by the accused and the police powers to arrest a person.

Participating in a recorded interview

Before participating in a recorded interview with the police, you should seek legal advice to determine whether it is in your interests to do an interview or to give a ‘no comment’ interview, as this decision can make a significant difference to how the matter progresses and the case being made.

Should you decide to participate in a police interview, you should answer all of the police’s questions. Do not answer some questions and say ‘no comment’ to other questions.

If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Armstrong Legal.