The Law Handbook 2024

Chapter 3.5: Arrest, search, interrogation and your rights 181 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. Questioning and statements 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 CP Act 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. NOTE In the majority of cases, the material that 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 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.