The law dealing with arrest and interrogation in Victoria is complicated. It is designed to strike a proper balance between individual rights on the one hand, and the community's need for effective law enforcement on the other.
Situations where a person's rights are not observed are common, and it is difficult to do anything about this. The best way to make sure your rights are observed is to know what they are and to speak out if a problem arises. Remember, many people are convicted because of admissions they have made to police.
When dealing with the police,in most cases, you do not have to:
- answer any questions or make any statements.
- go to a police station unless you have been arrested (taken into custody) and have been told what you will be charged with;
- participate in an identification line-up;
- undergo a forensic procedure unless a court orders you to do so.
You have the right to make a telephone call to a friend and a lawyer from the police station. The police have the power to take your fingerprints if they believe you have committed a serious offence and you are aged 15 or over. If you are aged from 10 to 14, the police need a court order. You must give your name and address if the police ask you. The police must tell you their reason for asking, and give their name, rank and place of work if you ask for it.
The powers of arrest are set out in the Crimes Act 1958 (Vic). You can be arrested and taken to a police station to be questioned if the police think that you have committed a crime. A person should only be arrested if it is necessary to:
ensure the appearance of the offender in court;
to preserve public order;
to prevent the continuation or repetition of the offence; or
for the safety or welfare of the public or the offender.
The police do not have to arrest a person found committing an offence, if they believe the case can be dealt with by summons. A summons is a notice, issued by the court, telling a person that they must go to court on a specified date.
If you identify as an Aboriginal or Torres Strait Islander, then under their operating procedures, the police must notify Victorian Aboriginal Legal Service. This ensures that you have access to support and legal representation.
Arrests by warrant are the exception rather than the rule. The warrant names the person to be arrested and should be read and shown to that person at the time of arrest. It does not have to be handed to the person. A warrant is normally used in situations where a person on bail or summons has failed to attend court as required, there is a hunt for an offender, or in the case of an escapee from prison. A Magistrate or Registrar should not issue an arrest warrant where a summons would be just as effective in making sure the person goes to court.
An exception to these rules exists in the case of arrests by ASIO (Australian Security Intelligence Organisation), where a person can be detained for up to seven days for questioning if it is 'reasonably' believed that person can provide information in relation to a terrorism offence.
There is no specified amount of time the police can detain you. The law says you must be either released on bail or brought before a judge within a reasonable time. What a "reasonable time" is will depend on the facts of each particular case. A number of factors determine how long this may be including the time needed to bring you to the court; the number of offences and how complicated they are; time you spend talking to a lawyer, friend, relative or an independent third person; and time spent while you receive medical attention.
Police can only search you or your car if they have reasonable grounds to suspect they will find illegal drugs, weapons or stolen goods OR to preserve evidence. For any other purpose they will need a search warrant.
Police can search a house without a warrant if they believe they will find someone who has committed a serious indictable crime or who has escaped custody. If police come to your house to search, ask to see the warrant.
In December 2009 the Victorian State government introduced new street laws. The Summary Offences and Control of Weapons Acts Amendment Act 2009 gave police new powers to move people on, to stop and search, and charge people with a new disorderly conduct offence and give on the spot fines starting at $234. In August 2010 the passed further changes to the Control of Weapons Act including:
1. Removing the requirement for an independent third person to assist young people or people with intellectual disabilities in relation to unplanned searches – only another police officer need be present.
2. Penalty of 25 penalty units for a young person purchasing a prohibited weapon;
3. Removing the requirements for police to maintain records of the people searched (other than for strip searches).
4. Requiring designation of searches only for ‘events’ therefore train stations and other locations can be subject to undesignated ‘surprise’ searches;
5. In determining the ‘likelihood’ of violence occurring, the test is now that the “likelihood is less than ‘more likely than not’.”
If the suspect is under 18 police must not question or carry out an investigation unless the suspects parents or guardian or an independent third person is present.
The legal system often has difficulty in dealing with people who have disabilities, particularly where those disabilities involve some form of mental impairment. If a person with a mental illness or intellectual disability has been charged with a crime, specific laws and procedures may be available from the time of the police interview to sentencing. Police are required to have an Independent Third Person present when interviewing a suspect who has a psychiatric or intellectual disability. If you have questions about how someone with a disability has been treated, you should speak to a lawyer.
Complaints can be made to the Victorian Ombudsman, Office of Police Integrity or the Ethical Standards Department of Victoria Police. Ask your lawyer to help you if you want to make a complaint against the police. Write down everything that happened as soon as possible, including the names of police, the time and date. If you have been hurt see a doctor as soon as possible and make sure you take photographs of your injuries.
As of the 10th of February 2013 the Office of Police Integrity’s functions and role has been transferred to the Independent Broad-based Anti-corruption Commission (IBAC). The IBAC website can be found at: www.ibac.vic.gov.au. Following proclamation of the Independent Broad-based Anti-corruption Commission Amendment (Investigative Functions) Act 2012, IBAC is fully operational from 10 February 2013.
For more information on this subject refer to:The Law Handbook Chapter 3.2 Arrest and Interrogation.
|Federation of Community Legal Centres(for referral to your nearest service)Tel: 9652 1500 Web: www.communitylaw.org.au||Victorian Aboriginal Legal Service (VALS)24 HOUR SERVICETel: 9419 3888 or Toll Free: 1800 064 865Web: www.vals.org.au|
|Victoria Legal AidTel: 9269 0120Web: www.legalaid.vic.gov.au||Victoria Police Ethical Standards Dept. Tel: 1300 363 101 Web: www.police.vic.gov.au|
|Independent Broad-based Anti-corruption Commission (IBAC). The IBAC website can be found at: www.ibac.vic.gov.au||Law Institute of Victoria(for referral to a private lawyer)Tel: 9607 9550Web: www.liv.asn.au|