Your Rights in Victoria
If you are suspected of committing an offence, you may come into contact with police prior to seeking legal advice and as such police may obtain crucial evidence from you that they would not have otherwise obtained if you knew your rights. It is therefore very important that you have at least some knowledge of your rights when dealing with police. Below is a summary of some of the more relevant aspects of the law in this regard that will assist you in protecting your interests when approached by police. Please note, that what follows is not exhaustive and you should contact our office immediately it comes to your attention that you will be implicated in police investigations.
Right against self-incrimination
Subject to a few statutory exceptions, you may rely on your common law right against self-incrimination when dealing with police. This right enables you to refuse to answer police questions or make a statement (whether you are a suspect or not), accompany police to the station (unless you are under arrest), participate in an identification parade and refuse to allow police to take a photo of you or any part of your body.
Exceptions: The only exceptions to the common law right are specifically provided for in legislation. These exceptions include:
• you must provide police with your name and address if they reasonably believe:
º you have committed, or are about to commit, any offence; or
º you may be able to assist the investigation of an indictable offence.
• you must submit to a breathalyser test if you are driving a motor vehicle
• if you have been arrested (see below), a police officer can search your body, clothing and property (by frisk or 'pat down' methods) if such a search is reasonably believed to be necessary either:
º for the purpose of discovering a concealed weapon or any article which might be used by you to injure yourself or used by others to assist you to escape; or
º to secure or preserve evidence with respect to the offence for which you are in custody.
• police can use reasonable force to fingerprint you if you are aged 15 or over and have been charged with, or you are reasonably suspected of having committed, an indictable or specified summary offence. If you are under the age of 15 but older than 10, police can still fingerprint you, however they must satisfy the additional requirement that either - the child and their parent or guardian consent to the procedure, or the Children's Court orders the procedure.
• police can obtain a forensic sample from you if:
º you give informed consent to the procedure; or
º the police have a court order; or
º a senior police officer authorises the taking of the non-intimate sample.
If you are aged between 10 and 17 (inclusive), police can obtain a forensic sample from you only if the Children's Court orders the procedure.
Arrest
If you are arrested by a police officer, it is important that you exercise your rights in a manner that best represents your interests.
Following your arrest, the police will interview you in an endeavor to obtain valuable evidence against you.
Before a police officer questions you in an interview, they must inform you that -
1. you do not have to say or do anything;
2. anything you say or do may be given in evidence; and
3. you have a right to attempt to speak to a friend or relative and a lawyer.
Your right against self-incrimination means that police cannot make you answer questions (other than those directed at your name and address) in an interview. If you duly exercise this right, the police will not be able to obtain admissions or a confession, which may leave the police with insufficient evidence to prosecute you.
It is also important that you are aware of police powers and obligations in respect to arrest, because if police act outside of their power or do not comply with their obligations, evidence obtained by them in so doing may be rendered inadmissible by a court.
A police officer has the power to arrest you if:
1. they have a warrant; or
2. they have found you committing an offence and the arrest is necessary for any of the following reasons:
• to ensure the appearance of you before court;
• to preserve public order;
• to prevent the continuation or repetition of the offence or the commission of a further offence; or
• for the safety or welfare of the public or offender; or
3. they believe on reasonable grounds that you have committed an indictable offence.
If a police officer places you under arrest, they must inform you of the offence that they suspect you of committing and that you are no longer at liberty. Police can use reasonable force to arrest you if it is necessary in the circumstances; however they cannot use a degree of force that is not in proportion to the degree that you are resisting.
Anyone arrested and taken into custody for an offence, must be released (whether on bail or not); or brought before a Justice or the Magistrates' Court within a reasonable time.
If you are not under arrest, you are free and not obliged to accompany police to the station, and if at the station, you are not obliged to remain there. The situation is the same if the police have acted outside of their powers of arrest and you may use reasonable force to resist the arrest. Also, subject to a few statutory exceptions, police cannot search your body, clothing or property if you have not been arrested.
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