The Law Handbook 2024

180 SECTION 3: Fines, infringements and criminal law 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). Period allowed for questioning: Commonwealth offences 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 (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)). The right against self-incrimination 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’, above), 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.