When the police are investigating a criminal offence or a crime they go looking for suspects and when they find them the investigation process requires them to asks questions and to receive answers. Unfortunately for many suspects they do not have the presence of mind to refuse the police and therefore as a consequence they provide information which is pregnant with admissions allowing the police to charge either them or someone with whom they were acting in concert. Being arrested and charged with a criminal offence is extremely intimidating and before this occurs any suspect should exercise their right to silence and indicate they wish to seek legal advice.
The police have no general power to arrest a person for the purpose of questioning. Unless the police are exercising a specific power they must either charge the person or release them immediately. The police have no general power to arrest a person for questioning. Any person who is suspected of a criminal offence has a right to silence and this should be respected by the police at all times. No suspect can be forced to participate in an identification parade however where a suspect so refuses this may allow the police to conduct a photographic identification. In most cases it always better to err on the side of caution and to remain silent rather than to participate in a police record of interview and/or identification parade.
The police must have reasonable grounds to believe that the person has or is about to commit an offence. When police decide to arrest or charge someone they should inform them of this and the grounds for the arrest and caution the person that they do not have to answer any questions. A person in lawful custody may be searched. The police have wide powers to obtain forensic samples under which may include external and internal body searches. Internal searches can only be carried out by order of a magistrate or other authorised justice after a hearing at which the suspect must normally be present.
Where police do enter premises to arrest a person they can of course search the suspect but it does not include the whole premises. The police need a warrant to search premises, if they do not have one you may refuse them entry.
After all a person who has been arrested has lost a significant advantage and these admissions may operate to prejudice the accused being subject to heavy fines, community service orders, or even imprisonment. In all cases either before or after arrest you need the services of an experience criminal lawyer to mitigate the prospects of arrest, which may lead to a committal hearing and a trial. After being arrested and taken to the police station the police custody manager should inform you that you have a right to be represented. Where you are arrested at night the ability to obtain legal representation is greatly restricted. Do not expect any criminal lawyer to disturb themselves to assist you unless you can demonstrate that you have the ability to pay their fees when seeking advice.
Once you have secured a lawyer they will be able to advise you of your rights, explain the alternatives and what you can expect from the criminal justice system at this stage. Your lawyer will be able to ensure that your rights are not violated and are properly protected. Should the police charge with an offence then your lawyer will make a bail application for you. If the matter constitutes a summary offence then it will be dealt with by the Local Court and where it is more serious and amounts to an indictable offence their will be a committal hearing before a magistrate who will determine whether or not it should be referred to the District or Supreme Court.
In order to minimise any possible damage to yourself where you are suspected of having committed a crime the first question you should ask yourself is:
Q. Do I need to answer police questions?
A. No, if the police want to record an interview with you on tape or video always say that you want to speak to a lawyer first. A police officer can request a person to provide their name and address where those details are unknown to them. It is an offence to refuse to supply a name and address.
Stop and Search
The police may stop and search anyone whom they reasonably suspect has something stolen or otherwise unlawfully obtained or anything used in an indictable offence. A reasonable suspicion involves less than a belief but more than a possibility. The police can search a suspect immediately after they have been arrested and can seize any property which they find on them.
Where a person is the driver of a motor vehicle police can ask for that persons name and address and where they suspect that motor vehicle was or may have been used in the commission of an indictable offence they can ask the owner, the driver or the passenger to supply details of the driver and passengers present in the vehicle at the relevant time.
Investigation Period
A person under arrest can be detained by police for the investigation period i.e. for no more than a reasonable time and no more than 4 hours or such longer period as extended by investigation. The period can be extended by a further period of 8 hours by a Magistrate or Clerk of the Local Court.
The investigation period of 4 hours is subject to specific time out periods and can be extended by the police by means of a detention warrant. Time out is a period in which the clock does not run in determining the maximum investigation period.
Suspect's Rights
The custody manager at the police station is required to caution the suspect and summarise the provisions about detention. The custody manager is required to inform the suspect before any investigative procedure starts that the suspect can contact a friend, relative or lawyer to inform them of his/her whereabouts, consult them or in the case of a lawyer be present during the investigative procedures. The custody manager is required to provide facilities for the suspect to communicate with a friend, relative or lawyer.
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