Arrest and interrogation law
The law dealing with arrest and interrogation 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 offence 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 will 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 court order to take your fingerprints; and
- you can refuse to undergo a forensic procedure (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 evidence that could later be used against you. However, this rule’s importance is diminishing, due to an increasing number of statutory 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 Act 1986 (Vic);
- the exercise of coercive powers in relation to organised crime offences.
Although the privilege against self-incrimination should always be kept in mind, there are some situations in which it is nonetheless sensible for a suspected person to cooperate with police.