BEING ARRESTED OR QUESTIONED BY POLICE

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 you do not have to:

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 offence 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.

A parent, guardian or independent adult must be with you before the police question you. The independent adult is there to help you and the police understand each other. They help you understand your rights. They do not give legal advice. Any information you give police, without an independent adult present, cannot be used in court.

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.

For more information on this subject refer to The Law Handbook chapter 2.2.