YOUR rights

OBTAINING POLICE DETAILS

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.

FILMING THE POLICE

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.

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:

• if what you say is exculpatory (I’m not guilty) then the prosecutor will refuse to play it as evidence in court; but
• if your statement is inculpatory (I’m guilty) then the prosecutor will happily play it as evidence against you in court.

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.

• Find you committing an offence
• ‘Reasonably suspect’ that you have committed an offence
• Think you can help them investigate an indictable offence or act of domestic violence
• Give you an order to stop making noise or being a nuisance
• Stop you while you are in control of a vehicle
• Are trying to enforce another specific law
• It is reasonable in the circumstances

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.

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.

SEARCHING A PERSON

A police officer can stop and search you if they reasonably suspect that you may have:

• a weapon
• a dangerous drug
• stolen property
• tools to break into a house or car
• something that you plan to use to hurt yourself or somebody else
• evidence that someone has committed an indictable offence (and this evidence may be hidden or destroyed)

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:

• respecting your dignity
• ensuring any personal search only causes minimal embarrassment
• limiting any public search to a frisk search, if possible
• conducting any more thorough search away from public view, if possible
• having a police officer of the same sex carry out the search, unless an immediate search is required

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.

SEARCHING PRIVATE PROPERTY

The police can enter and search your home without a warrant to:

• prevent domestic violence
• investigate traffic offences (eg to take a breath test for alcohol)
• catch someone who has escaped from prison or from being arrested
• search for evidence if they reasonably suspect there is evidence that may otherwise be hidden or destroyed
• arrest someone
• reach a crime scene
• shut down or prevent an “out-of-control event”

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.

SEARCHING VEHICLES

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 weapon
• a dangerous drug
• stolen property
• tools to break into houses or cars
• something that you plan to use to hurt yourself or somebody else
• evidence that someone has committed an indictable offence (and this evidence may be hidden or destroyed)

A police officer can also stop, detain and search a vehicle:

• to arrest someone in the vehicle
• if they reasonably suspect the vehicle is being used unlawfully
• if they reasonably suspect that the vehicle is being used by or is in the possession of a participant in a criminal organisation

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.

DEFENDING ILLEGAL SEARCHES

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.