The Crimes Act (Vic) (s.464A) requires that anyone taken into custody for an offence must be:
- released (whether on bail or not); or
- brought before a justice or the Magistrates' Court within a reasonable time.
What a "reasonable time" is will depend on the facts of each particular case, but the following things will be taken into account:
- the time needed to bring the person to the court;
- the number of offences and how complicated they are;
- any need for police to read and collate material and for other steps in preparing for questioning;
- the time needed to take a person from where they are arrested to where they can be interviewed (usually the nearest police station);
- the number of other people who have to be interviewed;
- any need to visit the scene of an incident;
- time spent to allow a suspect to talk to a lawyer, friend, relative or an independent third person and in waiting for such people to get to the police station;
- time spent while the suspect receives medical attention or is allowed to rest;
- the total time the suspect spends with police; and
- other matters reasonably connected with the investigation.
If police want to interview a person who is already being held in a prison or police gaol on other charges, then they have to apply in writing to a Magistrates' Court (or a Children's Court if the person to be questioned is less than 18 years old at the time of the offence, but not 19 or older at the time the court proceeding is commenced). The person must be brought before the court for the hearing of the application, and be given the opportunity to obtain legal representation. The court may, if satisfied that it is in the interests of justice to do so, order the person to be transferred to the custody of the police applicant, and the court must set a maximum period of time during which the questioning can take place. An audiovisual recording must be made of the giving of cautions and the subsequent questioning.
There are special requirements in respect of people who have intellectual disabilities or mental health problems and who are a security, forensic or involuntary resident or patient: see: s.464B Crimes Act (Vic); Chapter 3*1 Disability and Criminal Justice.
The position is different where the person is suspected of having committed an offence against Commonwealth law. Once a person is arrested, police generally have a maximum of four hours in which to carry out their investigations and either release the suspect or take the suspect before a court to decide whether the suspect should be released. The period is reduced to two hours if the suspect is under 18, an Aborigine or a Torres Strait Islander (s.23C(4) Crimes Act (Cth)).
In calculating the investigation period, time spent on the following is not included:
- getting the suspect to where they can be interviewed;
- allowing the suspect to speak to a lawyer, friend, relative or doctor;
- allowing a lawyer, relative, friend or interpreter to arrive at the interview place;
- arranging and conducting an identification parade;
- waiting for a suspect to receive medical attention or become sober enough to be interviewed or to rest or recuperate; and
- applying for orders for and subsequently carrying out a forensic procedure (s.23C(7) Crimes Act (Cth)).
If police require more investigation time, they must apply to a Magistrate for an extension of the investigation period. This period can be extended by only eight hours, and only one extension can be obtained. Further, the period can only be extended if the Magistrate is satisfied that:
- the offence is a serious one;
- further detention is needed to preserve or obtain evidence or complete the investigation;
- the investigation is being conducted properly and without delay; and
- the suspect or the suspect's lawyer has had the opportunity to make representations about the application for extension (s.23D Crimes Act (Cth)).
Special provisions apply with respect to persons arrested for terrorism offences (ss.23CA & 23DA Crimes Act (Cth)).
Any person, whether under arrest or otherwise and no matter where they may be, is entitled to rely on the common law privilege against self-incrimination. While there are an increasing number of legislative provisions which remove this privilege (e.g. undertaking breathalyser tests), the "right to silence" may be used by a suspect at all stages of the criminal justice process.
At law, the accused is presumed innocent from beginning to end. It follows that not only may suspects rely upon the right to silence but they also cannot be made to provide the police with any evidence whatsoever which may later be used against them unless an exception to this rule is specifically provided for in an Act of Parliament.
Some existing exceptions are the need, in certain situations, to provide name and address and/or fingerprints; to be photographed for the purpose of identification; and, if you are driving a motor car, to submit to a breathalyser test.
Suspects are not obliged to take part in any type of identification parade, to re-enact any alleged crime for filming, or (without a court order) to submit to any forensic procedures or sobriety tests (e.g. balancing on one leg, walking in a straight line, drawing diagrams, etc.). However, a person may be required to undergo an assessment of drug impairment under section 55A of the Road Safety Act 1986 (Vic) where they have been required to furnish a breath sample and the police member is of the opinion the person may be impaired for a reason other than alcohol alone.
A significant reduction in the right to silence in Victoria is contained in the Major Crime (Investigative Powers) Act 2004 (Vic). Coercive powers to require a person to answer questions in relation to organised crime offences (the definition of which is very broad) are created under this Act.
The general rule (subject to certain statutory exceptions), as stated above, is that a person does not have to answer questions or make a statement to the police. When police are trying to find the person suspected of having committed a particular crime, they can put questions to any person, whether suspected or otherwise, from whom they think useful information can be obtained. It is commonly accepted that ordinary members of the community should assist the police in their task as much as possible. Nevertheless, a person who declines to answer any question cannot be forcibly compelled to answer. This applies to non-suspects as well as suspects.
The fact that an accused person refuses to answer questions or does not mention something which would establish their innocence should not be held against the person. However, the reality is that a jury, being made up of ordinary people, may hold this against the accused person even though the Judge directs them not to.
While this basic principle applies, a suspect's selective refusal to answer certain questions may show what is called a consciousness of guilt and, therefore, may be self-incriminatory. In other exceptional cases (e.g. caught "red-handed") a suspect's failure to offer an explanation may provide some evidence against them, although the strength of that evidence will have to be decided in court.
Whether someone should give an answer or make a statement to police will depend on a number of factors. If there is an explanation which will quickly and clearly show the police that their suspicions are wrong, it should be given. If the suspect has an alibi which is reliable, it ought to be given. Note that sections 51 and 190 of the CP Act provide that notice of alibi particulars must be given to the informant, prosecutor or Director of Public Prosecutions prior to trial, subject to certain conditions.
A suspect should never try to answer just some questions and not others. If it is decided not to answer any questions at all, the suspect should state their age, name and address and then state: "I do not wish to say anything at this stage", or "I have received legal advice not to answer any questions at this time", and continue to make this answer to every question.
Where the interview relates to an indictable offence, it must be recorded by audio or audiovisual recording by the police whenever this is practicable. Police are required to provide the suspect or their legal adviser with a copy of the recording within seven days of the interview. It will usually be provided at the end of the interview. The police must also provide a copy of a transcript of the recording if one is made. The "if practicable" requirement is designed to allow the police to go ahead with investigations if a recording cannot be made.
As a general rule, in the absence of good reason, a person should not make any statement or admission about any offence to police or any other person.
In the majority of cases, the material which convicts people is the evidence of their own admissions to police.
There will be times, however, when it will be in the interests of the accused to answer questions or make a statement. For example, if a client instructs a lawyer that in a case of theft the accused had the consent of the owner (except in the case of a motor vehicle, boat or aircraft) or had no intent to deprive the owner permanently, then the police should be told. Courts generally take the response of an accused person more seriously where that response is given shortly after the accused is detained by police. The timing of an accused person's responses will also be important in relation to claiming legal costs from the police if all charges brought against the person are successfully defended (see: "Reclaiming the legal costs of defence", below). This must be borne in mind when advising a client whether to make a statement to police.
Clients who clearly have no defence and desire to plead guilty ought to make admissions that reflect their lesser role, or explain the difficult circumstances they may have found themselves in at the time of committing the offence.
The use of unsigned statements as evidence is becoming far less frequent because of the requirement for audio or audiovisually recording of interviews relating to indictable offences.
In the case of McKinney v The Queen [1991] HCA 6, the High Court raised serious questions about the reliability of confessions where the only evidence of the confession is given by police and is not corroborated by any other evidence. The court said that confessions should be tape recorded, and that if they were not taped then this could of itself raise questions about whether or not the confession was actually made.
In Victoria, the position is that interviews involving indictable offences under either state or Commonwealth law must be audio or audiovisually recorded. If such an interview is not recorded, its contents can only be admitted as evidence if the court believes that on the balance of probabilities (i.e. that it is more likely than not) there are exceptional circumstances that mean the evidence should be allowable (state offences), or if recording was not reasonably practicable (Commonwealth offences). This does not protect people charged with "street" offences and the like, who will continue to face evidence of the kind criticised by the High Court in McKinney's case, above.
Never rely on an "off the record" conversation with the police, or other inducements such as the granting of bail, dropping charges, possibility of a bond, or similar such offers.
Sometimes a client will come to a lawyer knowing or suspecting they are wanted by police for questioning. In these circumstances, much can be gained by way of credit if they voluntarily "give themselves up" to the police by either being available for arrest or presenting at a police station with a lawyer. The decision to do this, however, must rest ultimately with the suspect.
When a client has chosen to do this, it can be very useful to go to the police station with a prepared statement about the alleged events. There is no reason why the accused person cannot be assisted in the preparation of a statement, which should preferably be handwritten by the person in their own style of expression. The person should be advised which points to emphasise and which points may go against them. There can be no objection to the deletion of damaging remarks, as a person is under no obligation to furnish evidence for the police. A person should be advised against the use of legal terminology, as this may cast doubts on the authentic nature of the statement. The statement should be brief, and include only those points favourable to the person.
If the person maintains innocence, that should be stated clearly. Note that such a statement may bind a person to a later course of action in the conduct of defence and great care should be taken. (For example, the false denial of a fact that the prosecution is later able to prove before a court may be very damaging, even though it might not have seemed very significant at the time the statement was made.) It should conclude by stating that the person has been advised of their legal rights and does not wish to say anything further at this time. It should be dated and signed. Where appropriate, it should also state that a signed copy has been lodged with a solicitor or some other person for safe keeping.
When a person presents a prepared statement to police, it is common for the police to conduct an audio or audiovisual record of interview. They will generally require the person to read their prepared statement onto the recording and ask them to confirm the truth and accuracy of the statement. It can be expected that police will then ask further questions about the content of the statement and other aspects of the allegations arising from their investigation. The police maintain that in fairness to the person the allegations against them should be put to them, even though they have made a prepared statement. The person should not generally answer such questions; however, the allegations put by the police can be valuable information if the person ends up defending charges before a court.
When questioned by police, the suspect should reply by stating: "I have nothing further to say and refer to my statement." Apart from providing evidence of a response made close to the time of the incident, it may enable the accused to avoid having to give evidence on oath, which would be subject to cross-examination.
There are various rules which set out how police shall question suspects. Again, the law tries to strike a balance between the suspect's rights and the need for law enforcement.
The steps to be followed by police are set out in the Crimes Act (Vic) and in the Operating Procedures section of the Victoria Police Manual – Operations 112-3 "Suspects and offenders: interviews and statements". Operating Procedures are administrative guidelines set out by the Chief Commissioner of Police and they do not have the same effect as laws. Failure to comply with the Police Standing Orders will not always make a statement inadmissible in court, but it can affect the weight the court gives to the evidence.
The court has an overriding discretion to exclude any material which is improperly obtained if it would be unfair to the accused if allowed in as evidence. Confessions that are not voluntary, i.e. obtained by force or if an inducement has been made to try to cause an untrue admission, can be rejected by a court (ss.84 & 85 of the Evidence Act 2008 (Vic) ("Evidence Act").
Section 464H of the Crimes Act (Vic) requires police who are questioning a suspect in relation to one or more indictable offences to record by audio or audiovisual recording any confession or admission made by the person. If the confession or admission is made before questioning commenced then, if in a subsequent recording the substance of the confession or admission is confirmed by the person making it, the evidence of the confession or admission is admissible.
Where no recording is made, the confession or admission can only be admitted in evidence if the court believes there are exceptional circumstances which justify it being admitted (state offences) or if recording was not reasonably practicable (Commonwealth offences).
The police must also give the person who has been interviewed (or their lawyer) a copy of the recording within seven days of the interview and provide them with a copy of the transcript of the recording if one is made.
It is an offence to possess, play or offer to supply an audio or audiovisual recording to another person unless certain criteria are satsified: s.464JA Crimes Act (Vic). It is also an offence to copy, tamper with, modify, erase or publish an audio or audiovisual recording unless authorised by law: s.464JA.
If the suspect's knowledge of English is not good enough to enable understanding of the questions asked by the police, the police must arrange for an interpreter to be present and must not question the suspect until the interpreter arrives.
It is for police to decide whether an interpreter is required. However, if it were later shown that an interpreter should have been present but wasn't, the contents of the interview might be made inadmissible as evidence.
Under the Crimes Act (Vic), police must, before any questioning starts, tell suspects that they do not have to say or do anything. They must also warn that anything that is said or done may be given in evidence (s.464A(3)). Suspects must also be told that they have a right to attempt to speak to a friend or relative and to a lawyer, and then be asked whether they wish to exercise that right (s.464C(1)).
A person in custody who is not a citizen or permanent resident of Australia must be told that the consulate office can be contacted (s.464F). Similar requirements exist in the Crimes Act (Cth).
Where the offence involved is indictable, the police, if practicable, must record giving these warnings and information to the suspect and the suspect's responses by way of an audio or audiovisual recording. As noted above, the "if practicable" requirement is designed to allow police to go ahead with investigations if recording facilities cannot be made available.
The object of police when interviewing a suspect is to clear the innocent as well as to establish an offender's guilt. Police must not use force or threats or make any promises to get an admission of guilt. Police also must not subject a suspect to prolonged questioning or insist that a question be answered.
When interviewing a person, police are allowed to invite comment on a statement, written or verbal, made by some other person in relation to the same incident. If the person being interviewed is actually shown a written statement made by another person, police must warn that the suspect is not obliged to say anything. However, over zealous use of the statements of witnesses in an interview could lead to the sections of the interview being excluded if it amounts to putting the witnesses' written statements before the jury. Police cannot require any comment on a statement to be made. Police should not cross-examine a suspect in an interview.
To ensure fairness in interviewing, police must consider a person's intelligence and literacy and physical and mental state. Section 6 of the Victoria Police Manual – Operations 112-3 "Suspects and offenders – interviews and statements" sets out special requirements which police must follow when they are interviewing either a child (see: "Arrest and interrogation of children", below), an intellectually or mentally impaired person, an Aborigine or a person who is deaf and mute, as well as non-English-speakers.
Special arrangements exist for questioning suspects with a mental impairment. For details of these arrangements, and the role of the Independent Third Person (ITP), see: Chapter 3*1 Disability and Criminal Justice.
Before starting any questioning or investigation, police are required to tell a suspect that they may communicate or attempt to communicate with a lawyer, relative or friend. There is no right to have a lawyer attend at the police station and give you advice. Rather, the right that a suspect has is to try to communicate with a lawyer. Obviously, if a lawyer can be contacted and indicates that they will come to the police station, the police should not start the interview until the lawyer has arrived and has had a chance to speak to the suspect in private.
As noted before, the giving of this information must be audio or audiovisually recorded, as must the responses of the suspect. The police must then defer their questioning and investigation to give the suspect time to try to speak to a lawyer.
There are two exceptions to this rule:
- where communication would result in the escape of an accomplice or in evidence being fabricated or destroyed; and
- where the safety of others makes the questioning or investigation so urgent that it should not be delayed.
Police must give a suspect the opportunity to speak to their lawyer in private. Where a state offence is involved, the requirement is that police allow communication with the lawyer in circumstances which, as far as practicable, prevent it being overheard. This privacy requirement does not exist for conversations between the suspect and a friend or relative.
If a person requires access to lawyers or relatives and this is denied, consideration should be given to the status that person retains. Anyone who has voluntarily co-operated with the police, has come to the station and is not under arrest may leave at any time unless the police develop reasonable grounds for suspecting them of having committed an offence.
The practicalities of exercising such rights are clearly frustrated in practice and may lead to other charges being laid. Nevertheless, a suspect who has consented to being interviewed in a voluntary capacity may stipulate that, short of arrest, they will only permit the interview if a lawyer is present throughout questioning. A person may, of course, make it a condition of their response that a legal adviser is present whether or not they are under arrest. It should be remembered that anyone who is present at such an interview will possibly be called as a witness for the prosecution against the client if some dispute arises as to the content of or conduct of the interview. This sometimes makes people, especially lawyers, quite reluctant to sit in on interviews.
The spirit of the law in this area requires that a person is entitled to receive legal advice from time to time and to give a lawyer instructions in private. To facilitate this, a lawyer must remain in close proximity to the client. The Law Institute Journal gives the following advice:
In acting as solicitor for any person in de facto police custody always:
- Be courteous and remain calm and detached. The proper observance of your client's rights is your task, and not to "score off" the police.
- Make contact with the policeman directly concerned (the man who takes the client to the police station). He will be the informant if a charge is laid. He makes the decisions. It is "his case".
- If the policeman concerned denies access tell him you wish to discuss the matter with his superior or the Duty Inspector. If he ignores that request or says that "he is not available", contact the Duty Inspector at Police Headquarters immediately. Tell him of the circumstances and lodge a formal complaint. Request the Duty Inspector to immediately require that the policeman concerned comply with the requirements of Police Standing Orders.
- The policeman will rarely acknowledge before any charge is laid that there has been "an arrest". The person concerned will not be allowed to leave the Police Station. To formally prove "a detention" it may be wise to try and get an acknowledgement from the police:
- that the person is in the Police Station; and
- that the person is not permitted to leave.
- Remember that what occurs may be put in evidence in later proceedings for the issue of a writ of habeas corpus[the process of seeking a court order that the person be delivered from illegal confinement] and you should therefore make accurate notes, if not at the time as soon as possible after the occurrence. (As to a writ of habeas corpus, see: Supreme Court (General Civil Procedure) Rules 2005 (Vic), Order 57.)
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INTERROGATION :: Last updated: Thu Jul 1st 2010