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Are you being questioned by police? Call your lawyer before the interview

Police interview

What is a police caution?

A police officer must read you rights before the interview begins. This is called a police caution which is as follows:

“I must inform you that you do not have to say or do anything but anything you say or do may be given in evidence against you (section 464A(3)). Do you understand that? I must also inform you of the following rights:

  1. You can communicate with or attempt to communicate with a friend or relative to inform that person of your whereabouts;
  2. You may communicate with or attempt to communicate with a legal practitioner (section 464C(1)(b)

Section 464A of the Crimes Act 1958 gives the power to police to question a person that has been arrested about the offence for which that has person has been arrested.

Section 456AA of the Crimes Act 1958 requires you to provide your name and address to police. The police have a right to ask for this if they suspect that you have committed an offence.

Your right to legal advice before a police interview

You have a right to seek legal advice before the police interview. A person taken into police custody for an offence must be afforded a reasonable opportunity to communicate with a legal practitioner (Section 464C).

If speaking to your legal practitioner on the phone, you should make sure that police are outside the room and cannot hear what you say. If this is not the case ask the police officer to allow you to speak to your legal practitioner in private. Police officers should allow all communication between client and legal practitioner to occur in private without being overheard.

You can ask you to interrupt a police interview that has already commenced if you think you need additional legal advice.

Police do not legal have to allow a legal practitioner to be present during the interview. The Law Institute of Victoria (LIV) has published guidelines, in cooperation with Victoria Police, which states that, “if a legal practitioner requests to be present at the interview and/or the suspect requests his or her presence, the investigating member should allow the legal practitioner to be present”

What are the Law Institute of Victoria (LIV) guidelines?

After years of negotiation, police and lawyers have come to an agreement on guidelines when attending police stations. The guidelines are divided into numerous categories:

  • Visits by legal practitioners
  • Communication between a suspect and a legal practitioner
  • Legal practitioners being present at police interviews
  • Non- provision of legal advice by police
  • Complaints against police
  • Complaints against legal practitioners
  • Identification parades

Bail or remand applications at police premises

Your right to remain silent

You have the right to remain silent. By making a “no comment” interview, you are not assisting the police to prove that you have committed an offence. It is generally better for you to tell your legal practitioner your version of events, rather than tell the police on the record.

The right to remain silent in an interview was recognised in Azzopardi v The Queen [2001] HCA 25 as one of a number of “immunities” which enable an accused person to remain silent and not incriminate themselves.

Section 42 of the Jury Act 2015 guides parties and the trial judge in regards to this as follows:

  • The trial judge, the prosecution and defence counsel must not say, or suggest in any way, to the jury that, because an accused did not give evidence, the jury may-
    • Conclude that the accused is guilty from that fact; or
    • Use the failure of the accused to provide an explanation of facts, which must be within the knowledge of the accused, to more safely draw an adverse inference bases on those facts which if drawn, would prove the guilt of the accused; or
    • Draw an inference that the accused did not give evidence because that would not have assisted his or her case.

In criminal proceedings, no unfavourable inference can be drawn from a person’s failure or refusal to answer questions put to them by an investigating office (Section 89 of the Evidence Act 2008).

You do not need to prove your innocence and it is the police and the prosecution who have the onus to prove the allegations they make beyond reasonable doubt.

What is a “no comment” interview?

The safest option to is to answer “no comment” to every question.

By making a “no comment” interview you are not making any admissions that the prosecution might use to prove that you have committed an offence.

Please make sure you answer “no comment” to every question. There can be no adverse inference drawn from a person choosing to answer some questions and answering “no comment” to others: R v McNamara [1987] VR 855; Evidence Act 2008 s89(1)(a).

In addition to refusing to answer questions, you have a right to refuse to sign police notes, refuse to sign CCTV stills, photos, and refuse to participate in a line-up.

When you should NOT give a “no comment” interview?

  • In a case of rape, if you wish to argue that the consent was provided to sex;
  • If you wish to argue that you acted in self-defence;
  • If you wish to obtain a Diversion. Your early cooperation with police might increase your chances of being recommended for Diversion. Diversion can be obtained with a “no comment” interview as well;
  • When you are certain that the evidence is overwhelming, early cooperation with police and admissions may mitigate sentence (Power [2016] VCC 226)

Noting the above the safest option is still to provide a “no comment” interview.

What is inadmissible evidence?

Anything that you may have told police prior to an interview is likely to be inadmissible (Section 464H). You may have made admissions to police on the way to the police station or at the scene of the alleged crime.

What is police duress?

Police may pressure you such as repeating the same question many times, or telling you that it is in your best interest to answer a question.

However, police are not allowed to use inducements so that you make admissions during the interview. A promise of bail maybe an example of such an inducement.

Do you need an interpreter?

If you think you need an interpreter, raise this with the police officer investigating your case. Police must provide an interpreter when required. If you requested an interpreter and the police do not arrange one, an application exclude any admissions can be made.

When does silence amount to an offence?

In certain circumstances choosing not to answer police questions may be an offence:

  • When an owner of a motor vehicle fails to provide information within their power which may lead to the identification of the driver of the motor vehicle (Section 60(1) and 60A(1) of the Road Safety Act 1986);
  • Name and address if stopped while driving (Section 59 of the Road Safety Act 1986).

Do you need to provide fingerprints?

If you are over the age of 15 police will ask you for fingerprints at the end of the interview. Police can use reasonable force to obtain fingerprints if you refuse. It would therefore be appropriate to comply with any such request. Fingerprints will be destroyed as long as you are not charged with an offence within 6 months or are fond not guilty of that offence (Section 464K).

Do police have the power to request a forensic procedure?

Police do have the power to request a suspect to undergo a forensic procedure where there are reasonable grounds to believe that the result of that procedure will confirm or disprove the suspect’s involvement in an indictable offence.

You should refuse to undergo any forensic procedure unless the police have a court order compelling you to do so.

Need legal advice now?

Call 03 8590 8390 to book a consultation with a criminal lawyer in Melbourne today!

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

Last updated: 16 November 2021 Article by: Halil Gokler

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