It can be extremely intimidating to deal with police, particularly if you have been questioned or detained on suspicion of a crime. While the police have many powers, all governed by legislation, you also have many rights that are designed to protect you
It is important to obtain legal advice at the earliest possible opportunity. Ideally this should be before you participate in a record of interview with the police.
Police are equipped with many powers to help them enforce the law and protect the public. Police powers are set out under legislation, such as:
When dealing with the police, some of your rights extend to:
Prior to police questioning, you have the right to communicate with lawyers, family or friends, (unless the police believe, on reasonable grounds, that these communications may lead to the escape of an accomplice, the destruction of evidence, the fabrication of evidence or the lives of others being placed in danger if the questioning is delayed).
You have the right to an interpreter.
If you have been charged by police for an offence, this does not mean that you will be found guilty of this offence. Police sometimes make mistakes, and sometimes they may be compelled to take action against somebody that they would prefer not to take action against (such as in the case of false claims), or they may act illegally or with bias.
In NSW, there are many defences that may apply in Court, such as self-defence, duress, necessity, intoxication and defences to murder. There are also many other reasons that you may not be found guilty in Court, such as if the police do not hold enough evidence against you, the police have acted illegally or improperly, or there may be a lack of witnesses. The police may have charged you with the wrong offence, or you may be able to rely on a recognised defence in court.
By law, you are not under obligation to stop and answer questions posed by a Police Officer. An exception to this is if they suspect you have committed, or are about to commit, a crime, you are required to provide your name, date of birth and address. Further, unless you are suspected of a crime, and the police feel they have enough evidence to charge you for it, then the Police do not have general power to arrest you purely for questioning.
If you are an owner or driver of a vehicle, Police do have the right to be advised of who was driving the vehicle at the time of an incident, and who the passengers were. Similarly, if you are in an area that is named under court order under terrorism laws, or you are suspected of being named in a court order under terrorism laws, then the police may ask for your name and address details, without needing to suspect you of a crime.
If you have been placed under arrest, you have the right to silence. You do not, and should not, answer any questions before consulting a legal representative. Police are intelligent and they know what they are doing, so while they will advise you of, and work within, the rights of the law, they will probably not warn you if you inadvertently waive your right to silence. There is no such thing as an interview that is ‘off the record’, so assume that everything you say will be recorded.
Your best bet is to remain silent until your legal representative had advised you to answer. Regardless of what you may think, an early admission of guilt will not make you seem more innocent or honest in the eyes of the law.
As with questioning, you have the right to silence during an interview. Anything you say to the police whilst under arrest is recorded, and they can use this information to mount a case against you. Contrary to popular belief, you do not have to have your refusal to participate in an interview recorded. No matter how much you feel compelled to do so, do not say or do anything that may incriminate you until you have spoken to your legal representation.
You are not required to attend a Police Station for any purpose, unless you have been placed under arrest. It is generally advisable to attend a police station if you become aware of a warrant for your arrest; however, it is advisable to seek legal advice under these circumstances.
If you have been placed under arrest, police must only detain you for a maximum of four hours (not including timeouts), unless they refuse bail or have been granted an extension by a Judicial Officer. If, within the four-hour window, the police decide not to charge you, they must release you as soon as possible.
You should never resist arrest, even if you know you are innocent of a crime. It would be terrible to be cleared of the crime you were arrested for, only to then be charged with resisting arrest! Being polite and cooperative with police, to the extent that you are not having your right infringed, will work in your favour.
You are under no legal obligation to participate in a police line-up; however, they are obliged to offer it to you, and it is your choice as to whether you want to participate. Once again, it is highly advisable to consult legal representation before participating in a line-up.
By law, the police generally have the right to take photographs of you and obtain your fingerprints upon you being charged. Your consent is usually required to obtain a DNA sample, and you should probably refuse consent until you have first spoken to a legal representative.
Police bail can be applied for by a person charged with an offence, or a person who has been charged or released from detention, and who had previously been detained for investigation of an offence. Applications for bail may be made to any other Officer above the rank of sergeant.
Bail is not available where a person has been arrested on a warrant that specifically contains a no bail clause; however, for a person that is either prohibited from obtaining bail, or not granted bail, they must be brought before a court as soon as reasonably possible on the day after arrest, or a bail justice if the court is closed. Bail may then be applied for in Court.
Due to the complicated nature of bail, it is vitally important to contact a criminal lawyer, if you have been arrested or called in for a police interview. A criminal lawyer can advise you of your rights, explain your charges, apply for bail on your behalf and have conditions varied if needed, and represent you at court.