Arrest, search, interrogation and your rights

The Crimes Act 1958 (Vic) (‘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 depends 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 their degree of complication;
• 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 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 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.

Note that the meaning of ‘reasonable time’ was considered in DPP v Hollis & Hull [2019] VSCA 110.

Interviewing a person already in custody

If police want to interview a person who is already being held in a prison or police cell 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 commences). 

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 for people who have intellectual disabilities or mental health problems and those who are a security, forensic or involuntary resident or patient (see s 464B Crimes Act (Vic) and Chapter 8.3: Disability and criminal justice).

The position is different when 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 years old and/or an Aboriginal or Torres Strait Islander person (s 23C(4) Crimes Act 1914 (Cth) (‘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. 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 (ss 23D, 23DA Crimes Act (Cth)).

Special provisions apply with respect to persons arrested for terrorism offences (ss 23DB–23DF 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 that remove this privilege (e.g. undertaking breathalyser tests – see ‘Know your rights’), 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 the beginning until (if) they are found guilty by a court. It follows that not only may suspects rely upon the right to silence, but they also cannot be made to provide the police with evidence that 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 obligation, in certain situations, to provide name, address and fingerprints; to be photographed for the purpose of identification; and, if you are driving a motor car, to submit to a breathalyser or oral fluid 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). 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 give 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). This Act creates coercive powers that require a person to answer questions in relation to organised crime offences (the definition of which is very broad). However, answers obtained cannot be used as evidence against the person, except for the limited purposes set out in the 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 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. A significant exception to the general rule, contained in sections 60 and 60A of the Road Safety Act 1986 (Vic), is the obligation on the owner of a motor vehicle or trailer to provide information about the driver or person who had possession of the motor vehicle or trailer on a specified occasion.

The fact that an accused person refuses to answer questions or does not mention something that would establish their innocence should not be held against them. This basic principle is confirmed by section 89 of the Evidence Act 2008 (Vic) (‘Evidence Act’) but applies only to questions by an investigating official in the course of an investigation. 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. In other exceptional cases (e.g. being 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 depends on a number of factors. If there is an explanation that will quickly and clearly show the police that their suspicions are wrong, it should be given. If the suspect has an alibi that is reliable, it ought to be given. Note that sections 51 and 190 of the Criminal Procedure Act 2009 (Vic) provide that the details of the alibi 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.

When the interview relates to an indictable offence, it must be recorded (audio or audiovisual) 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 to any other person.

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 when 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 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 who want 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.

Unsigned statements

The use of unsigned statements as evidence is becoming far less frequent, because of the requirement for audio or audiovisual recording of interviews relating to indictable offences and the increasing use of body-worn cameras by operational police officers.

In the case of McKinney v The Queen [1991] HCA 6 (‘McKinney case’), the High Court raised serious questions about the reliability of confessions where the only evidence of the confession is given by police officers and is not corroborated by any other evidence. The court said that confessions should be recorded, and that if they were not taped, then this could 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 recorded (audio or audiovisual). 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 making a recording was not reasonably practicable (Commonwealth offences). This does not protect people charged with ‘street’ offences and the like, who will continue to potentially face evidence of the kind criticised by the High Court in the McKinney case. However, note that it is becoming common for Victorian police officers to make audio recordings of their conversations with people they intercept (e.g. motorists) by using mobile recording devices, such as mobile phones and body-worn cameras. Police officers will make greater use of body-worn cameras and cameras fitted to police vehicles as the technology of these devices improves.

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.

Prepared statements

Sometimes a client will come to a lawyer knowing or suspecting they are wanted by police for questioning. In these circumstances, it is potentially very much in the interests of the client 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 client.

If a client has chosen to do this, it can be very useful to prepare a statement about the alleged events when attending the police station. There is no reason why the accused person cannot be assisted in the preparation of a statement, but it 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 might go against them. There can be no legal objection to the deletion of damaging points in the statement, as the person is under no obligation to furnish evidence for the police. The person should be advised against the use of legal terminology, as this may cast doubts on the authenticity 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 the person to a later course of action in how their defence is conducted, and so this must be carefully considered. For example, the false denial of a fact that the prosecution is later able to prove before a court might be very damaging, even though it might not have seemed very significant at the time the statement was made.

The statement 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 safekeeping. 

When a person presents a prepared statement to the police, it is common for the police to record the interview. They will generally require the person to read their prepared statement, and ask them to confirm the truth and accuracy of the statement. The police are likely to 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 that person, even if the person has made a prepared statement. The person should not generally answer such allegations in the interview. However, knowing what allegations are made 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 that was made close to the time of the incident in question, the accused’s statement may enable them to avoid having to give evidence on oath, which would be subject to cross-examination.

There are rules that govern how police officers must question suspects. The law tries to strike a balance between the suspect’s rights and the need for law enforcement. The steps to be followed by the police are set out in the Crimes Act (Vic) and in the Victoria Police Manual (operations 112–13: 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 that is improperly obtained if it would be unfair to the accused if allowed 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 Evidence Act).

Recording the interview

The Crimes Act (Vic) (s 464H) requires the police officers questioning a suspect about an indictable offence to record (audio or audiovisual) any confession or admission made by the person. If the confession or admission is made before questioning commenced – and then if the substance of the confession or admission is confirmed by the person in a subsequent recording – then 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 that justify it being admitted (state offences), or if recording was not reasonably practicable (Commonwealth offences).

The police must give the person who has been interviewed (or their lawyer) a copy of the recording within seven days of the interview, and 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 satisfied (see 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 (see s 464JA).

Access to an interpreter

If a suspect’s knowledge of English is not good enough to enable understanding of the questions asked by the police, a police officer must arrange for an interpreter to be present, and must not question the suspect until the interpreter arrives (s 464D Crimes Act (Vic)). Police officers are not required to arrange an interpreter to be present for drink-driving and drug-driving offence investigations under the Road Safety Act 1986 (Vic) (see s 464D(3) Crimes Act (Vic)).

It is for the 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 inadmissible as evidence.

Information to be given to suspects

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 suspects 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 (audio or audiovisual) both giving these warnings and information to the suspect, and the suspect’s responses. As noted above, the ‘if practicable’ requirement is designed to allow police to go ahead with investigations if recording facilities cannot be made available.

Police conduct during the interview

The object of police when interviewing a suspect is to clear the innocent as well as to establish an offender’s guilt. Police officers must not use force or threats or make any promises to get an admission of guilt. Police officers also must not subject a suspect to prolonged questioning or insist that a question be answered.

When interviewing a person, police officers 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 officers must warn the suspect that they are not obliged to say anything. Overzealous use of witnesses’ statements 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 officers can invite, but cannot require, a suspect to comment on a witness’ statement. Police officers should not cross-examine a suspect in an interview.

To ensure fairness in interviewing, police officers must consider a person’s intelligence, literacy, and physical and mental state. Section 6 of the Victoria Police Manual (operations 112–13: suspects and offenders – interviews and statements) sets out special requirements that police must follow when they are interviewing:

• a child (see ‘Arrest and interrogation of children’);
• a person with a mental illness or disability or impairment;
• an Aboriginal or Torres Strait Islander person;
• a person who is deaf and mute; or
• a person who does not speak English.

Special arrangements exist for questioning suspects with a ‘mental impairment’ – defined under the Crimes Act (Vic) as including a mental illness, intellectual disability, dementia or brain injury. For more information, including on the role of the independent third person, see Chapter 8.3: 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 suspect’s right 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, 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:

1. where communication would result in the escape of an accomplice, or in evidence being fabricated or destroyed; and
2. 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 police must allow communication with a lawyer in circumstances that, 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, the police should clarify whether that person is under arrest. Anyone who has voluntarily cooperated 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. In practice, it is not always easy for a person to exercise these rights. 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 make it a condition of their response that a legal adviser is present, whether or not they are under arrest. However, anyone who is present at an interview can be called as a witness for the prosecution against the client, if some dispute arises as to the content or conduct of the interview. This fact sometimes makes people, especially lawyers, reluctant to sit in on interviews. However, these issues are less significant now that audiovideo technology is used to record 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:

1. 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.
2. Make contact with the police officer directly concerned (the officer who takes the client to the police station). They will be the informant if a charge is laid. They make the decisions. It is ‘their case’.

3. If the police officer concerned denies access, tell them you wish to discuss the matter with their superior or the Duty Inspector. If they ignore that request or say that ‘they are not available’, contact the Duty Inspector at police headquarters immediately. Tell them the circumstances and lodge a formal complaint. Request the Duty Inspector to immediately order the police officer concerned to comply with the requirements of police standing orders.

4. The police officer 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:

a that the person is in the police station; and

b that the person is not permitted to leave.

5. 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 2015 (Vic), order 57.) 

Law Institute Journal