FREQUENTLY ASKED QUESTIONS

This information is intended to provide a basic summary of your rights and obligations when involved in a criminal investigation. The information below is not a substitute for receiving comprehensive legal advice from a solicitor, nor does it cover every possible situation. You should always exercise your legal right to contact a lawyer and obtain advice from our office on (03) 9605 3250.

WHAT SHOULD I DO IF I AM ARRESTED BY POLICE?

1. You are required to provide your name and address. It is an offence to provide a false name or address.

2. Stay calm and do not resist arrest.

3. At the first opportunity, ask to use a phone to contact a solicitor at Tony Hargreaves & Partners for Legal Advice.

4. Ask why you are being arrested.

5. You may be required to attend a Police Station with the arresting officer/s for the purpose of an Interview.

6. DO NOT make any statements or sign anything.

7. DO NOT speak with the arresting officer/s about what you are alleged to have done. There is no such thing as an “off the record” conversation.

WHAT HAPPENS DURING A POLICE INTERVIEW AND WHAT ARE MY RIGHTS?

1. In a criminal interview you have a right to silence, and you cannot be compelled to answer questions. Before you choose to answer questions in a police interview, you should consider your options  very carefully.

2. You will be cautioned and read your rights by the interviewing police officer, which includes your right to speak with a family member and/or a legal practitioner. You must be given a reasonable opportunity by the police to contact a family member and/or a lawyer.

3. If you have not already done so, you should always exercise your right to contact a legal practitioner when your rights are read to you.

4. As a general rule, you should exercise your right to silence in a criminal interview. You can do so by answering “No Comment” to all questions asked of you.

5. If there is sufficient evidence to constitute a case against you, you will probably be charged in any event. Answering questions will, as a general rule, not detract from the police case that already exists - it will only put your opposing view.

6. If there is not enough evidence to warrant you being charged, then refusing to answer questions cannot provide more evidence. As a matter of law, a Court cannot draw any adverse inference against you as a result of you exercising your right to silence.

7. Whether you answer questions or not should not affect your chances of being charged. Either there is sufficient evidence to charge you or there is not. A competing version from you will not detract from the evidence which already exists. It may however provide the foundation for further investigations to be undertaken.

8. The contents of your record of interview will in normal circumstances be admissible evidence against you. If you make admissions in the interview (even if you do not realise that you have), those admissions may provide enough evidence for you ultimately to be found guilty of the offence for which you are being investigated.

9. For the reasons set out above, as a general rule you should exercise your right to silence by refusing to answer questions unless you have had the opportunity of consulting a Solicitor and obtaining legal advice. If you decide to refuse to answer questions you should ensure that each and every question is answered, "No Comment". You should never answer questions on a selective basis.

10. Participation in re-enactments and identification parades should not be contemplated under any circumstances.

11. You will be requested to provide your fingerprints. If you refuse, the police can use reasonable force to take your fingerprints

12. The police may ask to take your photograph. There is no obligation to submit to a photograph being taken by the police. The police do not have the power to compel you to submit to a photograph.

13. You might be advised by a Police officer that unless you cooperate and answer their questions you will not be given bail. Do not be intimidated into answering questions on that basis.

14. You should also remember that any person that you speak to about the circumstances surrounding a possible offence has the capacity to make a statement to the investigating police members relaying the contents of the conversation. It is quite possible that the contents of any conversation that you have with any person may be lead against you in evidence, and accordingly you should be cautious about talking to other people about the matter.

WHAT SHOULD I DO IF I RECEIVE A SUMMONS TO GO TO COURT?

1. The summons contains important information about the charges issued against you, and when and where you are required to attend court. You need to provide the summons to a lawyer for further advice immediately.

2. You should immediately seek legal advice.

3. If you fail to attend court on the date specified in the summons (or do not arrange for the matter to be adjourned by a solicitor) a warrant will be issued for your arrest.

WHAT SHOULD I DO IF THE POLICE CHARGE ME AND REFUSE TO GIVE ME BAIL?

1. In most instances, the police will agree to grant bail at the police station.

2. You will be required to provide an undertaking (or promise) to appear at court on a specified date and additional conditions may be imposed requiring you to report on a regular basis to a police station or to reside at a particular address.

3. If the police refuse to give you bail, you have the right to apply for bail before the court or a bail justice.

4. Bail may be opposed by the police on the grounds that:-

(a) you will fail to appear in court;

(b) you pose a risk to the public;

(c) you will threaten or interfere with witnesses;

(d) you will commit further offences.

5. For most charges there is a presumption in favour of granting bail. In the case of murder, serious drug trafficking and serious offences involving firearms, there is a presumption against bail.

6. If the police refuse you bail outside court hours, you may apply for bail to a bail justice. If you are refused bail by a bail justice, the police must then bring you before the Magistrates’ Court as soon as possible. You will then have the right to apply for bail in Court before a Magistrate.

7. If applying for bail before a court, your application must be carefully and properly prepared. If you are refused bail by a Magistrate while represented by a lawyer, you can only bring another application for bail in the Magistrates’ Court if you can establish new facts or circumstances.

8. You should always seek legal advice and representation before applying for bail before a court. A properly prepared bail application requires care and time. In serious cases, a rushed application may increase the risk of bail being refused.

THE POLICE ARE AT MY PROPERTY WITH A SEARCH WARRANT - WHAT DO I DO?

1. The police ordinarily require a search warrant to enter and search private premises unless:-

(a) you consent to the search;

(b) the police have reasonable grounds for suspecting that a serious offence is or has been committed and entry is necessary to make an arrest;

(c) the police have reasonable grounds for believing that illegal drugs are located on the premises;

(d) the police have a warrant for the arrest of a person located on the premises;

(e) there has been a breach of an intervention order.

2. If the police attend at your premises requesting entry and you are unsure of your rights, you should immediately seek legal advice.

3. A search warrant does not require you to assist the police in locating items.

4. You should read the warrant carefully and ensure that you understand what the police are seeking.

5. If the warrant states that the police are authorised to search for particular things, this does not entitle them to seize other items not specified in the warrant. If you are in any doubt as to the scope of the warrant, you should immediately seek legal advice.

6. You should remain present during the search to ensure that you see what is identified and taken away by the police. You should retain a copy of a list of items seized by the police. If you are not given a list, ask for one.

7. You will normally be cautioned prior to the commencement of a search. Anything that you say or do may be used in evidence against you

8. DO NOT make any statements or speak to the police during the search in relation to what it is that you are alleged to have done. There is no such thing as an “off the record” conversation.