Everyone who has watched television for more than five minutes has seen a criminal with the cuffs slapped on and the police officer reading them their rights, lines that most of us can recite from memory just from TV: “You have the right to remain silent…”
But how close is Law & Order to the real world?
In America, these rights are known as Miranda Rights, after the 1966 case that demanded their establishment. After this time, in the states, as soon as reasonably possible after a suspect was arrested, they must be allowed to assert their right to remain silent and to counsel. While on TV, the suspect often frustrates the police by asserting this right and forcing them to withdraw, it’s not quite accurate. If you are only a suspect, or being interrogated on the street or at home in suspicion or as a witness, you do not have to these rights told to you. In the states, the Police must cease interrogating a suspect completely if they assert this right and are under arrest.
In Australia, the same law is quite different. It varies widely state to state, depending on the type of offence they believe you have committed. Australia does not have a federal bill of rights, which means you need to pay attention to where you are, and what the police believe you did. In most states, the police have the responsibility to give you these rights as soon as reasonably practical, after you under arrest. Police always have the right to ask you questions and record your answers, so be careful about what information you give if you are not under arrest or haven’t been given these rights. Although your rights may not have been given during questioning when you are under suspicion or a witness, the statements you give to the police in this time can still be used against you later in court.
In Queensland, the police must only give you your rights when you are suspected of an indictable (serious) offence, and you are under arrest. If they are conducting an undercover investigation or wire-tapping with a warrant, this provision does not apply.
Police also do not have to withdraw when you have asserted this right, as you may have seen on television. They may continue to ask questions, so you should prepare an answer to all questions with your lawyer before the interview. You must also be allowed to contact a friend or family member to let you know where you are. Depending on what state you are, the police may or may not be in the room with you when you make this call. They have the right to not allow you to contact someone they reasonably expect will destroy evidence or commit an offence if you contact them. You also have the right to contact and consult with a legal representative in private.
Australian Police also do not have the responsibility to give you these rights if you are not under arrest or in custody. The police must arrest you within a reasonable time frame (this time is not defined by law in some states, in others, it is 4 hours) of detaining you. You ought to ask if you are free to leave, and exercise this right if you are not under arrest. You must willingly go with the police if you are under arrest, and it is an offence to not do so. Always go with the police, and ask to contact your lawyer as soon as you are under arrest.
If you are from a special population, make sure the police know this. If you have a language barrier, or an intellectual disability, you are subject to special rules about under what circumstances the police may interrogate you. If you of Aboriginal or Torres Strait Island descent, also make this known to police, as they must contact certain services to assist you in navigating the legal system.
While you can answer “no comment” to all the police questions, you are also required to answer certain questions about:
- Your identity
- Your date and place of birth
- The identity of a driver of a vehicle
- Whether or not you witnessed an accident
You do not have to allow the police to take any images of you or take any biological samples. If you are reasonably suspected of an offence, they are allowed to take your fingerprints whether or not you agree to it. They will be allowed to use reasonable force if you do not comply. Unlike some now famous scenes in Making of a Murderer, police may not use promises or threats to get information from you. If you are under arrest, you will not be allowed to leave, and you should immediately consult with a lawyer. If you are not under arrest, do not continue speaking even if promised you can leave after answering more questions, and exercise your right to leave the police station. There are limits to how long police can interview you in one sitting that also vary state to state.
Unlike American Crime Shows, real world laws and rights are unbelievably complex. If you are asked to speak to police in any circumstance, it is best to seek legal advice first. Only lawyers can effectively advise you on how to speak to police before and after arrest, due to the complicated nature of criminal law in Australia. At Le Brun & Associates, we are committed to the best outcomes for our clients, and we are experts in criminal law. If you have to deal with police, contact us for advice on how best to navigate the system.