Arrest and interrogation law
The law dealing with To seize a person suspected of breaking the law and hold them in custody. Police have powers to arrest and charge suspected offenders and bring them before a court. and The asking of questions. In criminal cases, the questioning of suspects by police. In civil proceedings, a pre-hearing process in which one party asks the other party a series of written questions, called interrogatories, which must be answered on oath. in Victoria is complicated. It is designed to strike a proper balance between individual rights on the one hand, and the community’s need for effective law enforcement on the other.
Your rights when dealing with the police
Situations where a person’s rights are not observed are common, and it is difficult to do anything about this. The best way to make sure your rights are observed is to know what they are, and to speak out if a problem arises. Remember that many people are convicted because of admissions they have made to the police.
Particular problems may be encountered by people who have an intellectual disability or impairment, or a mental illness. See Chapter 8.3: Disability and criminal justice.
In dealing with the police, your major rights and obligations are:
- you do not have to answer any questions (in most cases); however, police can ask you to give your name and address if they believe you have committed an A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). or could assist with the investigation of a serious offence;
- you do not have to go to a police station, unless you have been arrested and have been told what you A document that sets out what a person wants to happen to their money and other property after they die. be charged with;
- you do not have to make any statements;
- you do not have to participate in an identification line-up;
- you can make a telephone call to try to contact a friend and a lawyer from the police station;
- you can be required to have your fingerprints taken. Police may use reasonable force to take your fingerprints, if they believe you have committed a serious offence and you are aged 15 or over; if you are aged from 10 to 14, the police need a An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. order to take your fingerprints; and
- you can refuse to undergo a A method of collecting evidence, such as taking fingerprints or getting a DNA sample, from a person suspected of committing an offence, or by examining a crime scene and collecting samples. Samples may also be taken in a civil action to prove or disprove a paternity claim. (giving a sample from any part of your body) unless a court orders you to do so.
Your right to not do or say anything
An important rule in this area is the ‘privilege against self-incrimination’ – the right to not do or say anything that might provide Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. that could later be used against you. However, this rule’s importance is diminishing, due to an increasing number of Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. exceptions, including:
- giving your name and address;
- being subjected to reasonable force in the taking of fingerprints;
- the conduct of forensic procedures if ordered by a court;
- the conduct of non-intimate forensic procedures and non-intimate physical examinations when authorised by a senior police officer;
- breathalyser tests, blood samples, oral fluid sample, urine samples or an assessment of drug impairment under the Road Safety A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1986 (Vic);
- the exercise of coercive powers in relation to organised crime offences.
Although the An accused person’s right in criminal cases, subject to certain limits, not to do or say anything that could be used as evidence against them in a court case. should always be kept in mind, there are some situations in which it is nonetheless sensible for a suspected person to cooperate with police.