This is a general and simplified overview of your legal rights written to assist you with a basic understanding of this important but complex area of practice. Nothing in it should be taken as legal advice or as a comprehensive statement of the law.
If you require expert legal advice that is specific to your circumstances you must contact us at Rawlings Criminal Law.
You are entitled to ask police officers for their name, rank and station. If you have concerns about the way you have been treated by the police, it is important to memorise and write this information down immediately. If the person claiming to be a police officer is not in a police uniform, they must show you identification if you ask to see it.
You have the legal right to film the police if it is in a public place and does not interfere with the performance of the officer’s duties. If you are approached by the police while recording them, you should calmly explain what you are doing and state you have a legal right to do so.
One of the most important things to consider when speaking with police is to remain calm, polite, and say as little as possible.
Police can ask you questions at any time however, you have the right to silence and don’t have to answer their questions. In most circumstances the only question you are obliged to answer is your name and address and, in most situations, you shouldn’t say any more than that. When a police officer says that they just want to ask you a couple of questions so that they can clear something up or eliminate you from enquiries – this is often not what they actually have in mind. Also, there is no such thing as “off the record!”
The main reason for using your right to silence is that anything damaging you say will almost certainly be used against you in court.
It may seem unfair but the way the system frequently works is that:
Further, if you mistakenly get any details of your account wrong or fail to mention things that may seem irrelevant at the time, this has the potential to be used against you as evidence of lies. You might make mistakes when explaining where you were at the time of a crime, there may be a miscommunication, the interview may start about a specific matter but move on to something more serious, or you might be tricked into saying the wrong things. The consequences of making any mis-steps in a stressful and highly emotive police interview can be devastating. It is not an exaggeration to say that your statement to police could, in combination with faulty eyewitness accounts, shoddy “expert” testimony, and sheer bad luck, lead to you being convicted of a serious crime. “I do not wish to answer any questions until I have spoken with a lawyer” should be your mantra.
For urgent advice, Rawlings Criminal Law can be contacted 24/7 on 0476 799 965.
As above, in many situations the police have the right to ask for your name and address, including when they:
If police legitimately request your name and address in any of the above circumstances and you refuse, they will warn you that it’s an offence to refuse to do so. In some drug matters you are also required to state your place and date of birth. If you continue to refuse and you have no reasonable excuse for refusing, you’ll be committing an offence and could be charged. In the vast majority of situations it is best to tell the officer your name and address and no more than that.
It should be kept in mind that giving a false name or someone else’s name may result in more serious charges.
Other than in specific circumstances, police do not have the right to search you or your personal property. Sometimes police will say something like “Do you mind if I look in your bag/car/pockets/house”. If you allow them to do so, then you are consenting and have given them the legal right to go ahead with a search. Regardless of whether or not you have anything you don’t want them to find it is best to say no.
If you do not consent to a search but the police officer insists, you should remain calm and ask them what legal power they are relying on. A search without your consent needs to be done either under a warrant or without warrant and under a police power. If the search is being done under the authorisation of a warrant, the police are obliged to show you the warrant and will give you a copy to keep. If the search is being done without warrant and under a police power, then immediately write down the details of what they say that power is.
A police officer can stop and search you if they reasonably suspect that you may have:
A police officer can also stop and search you if they reasonably suspect you are a participant in a criminal organisation.
The police must follow certain rules when they search you, including:
Once police start a search without your consent, you should not be abusive or physically resist or they may then charge you with an offence relating to obstructing or resisting a police officer.
The police can enter and search your home without a warrant to:
Once police start a search without your consent, you should not be abusive or physically resist or they may then charge you with an offence relating to obstructing or resisting a police officer.
A police officer can stop, detain and search a vehicle and its occupants if they reasonably suspect that there is something in the vehicle, including (but not limited to):
A police officer can also stop, detain and search a vehicle:
If it’s not practical to search the vehicle where it’s been stopped, the police can take it somewhere else to complete the search.
Once police start a search without your consent, you should not be abusive or physically resist or they may then charge you with an offence relating to obstructing or resisting a police officer.
A search without a warrant will be justified by the police under a claim of “reasonable suspicion”. The place to challenge “reasonable suspicion” is not at the time the police enact their search power but later in court. The legality of a search (either by warrant or under a police power) is fundamental to our criminal system as it has at its core our right to privacy along with the message it sends to the police force regarding the occasions and way in which they can conduct a search. Rules and regulations are in place to protect you and prohibit the police from abusing their powers. When the facts and circumstances allow, we can argue in court that a search was conducted illegally, and for any evidence discovered to not be used against you.
Importantly, in any interaction with the police, you have the right to be treated with dignity and respect. If police have failed to do so, then make detailed notes about exactly what occurred and contact us.