The Law Handbook 2024

Chapter 3.5: Arrest, search, interrogation and your rights 183 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. Rights before and during interrogation 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 for them to understand the police’s questions, 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.