The Law Handbook 2024

184 SECTION 3: Fines, infringements and criminal law 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 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’, below); • 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. Questioning people with a ‘mental impairment’ 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. Presence of lawyers and relatives at the interview 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