Australian Civil Liberties Union
Your Rights 2005
THE POLICE AND THE CITIZEN
Questioning. Making Statements. Searches. Procedure at Police Station. Court
See also: The Police and the Motorist—Chapter 17, Anti terrorism laws—Chapter 20.
As the ACLU pointed out in a letter to Police Life, the police, unlike civil libertarians and journalists, often have to make split second decisions in dangerous situations, and deserve public support and understanding. It is easy to be an armchair critic of the police.
This chapter sets out the rights of the normal law-abiding citizen who might on occasion find himself in trouble with the police. Good relations between the police and the public depend on mutual confidence and knowledge of the rights and powers of both.
The police have a difficult and responsible task, which is not made easier if members of the public refuse to co-operate because they are unsure of their position. While every care has been taken to ensure the accuracy of the advice, it is only a general guide to your rights and cannot provide a substitute for legal advice on the facts of each case.
ARREST AND QUESTIONING
Proceeding by Summons. You may be charged with an offence either by receiving a summons or pursuant to being arrested. In relation to some minor offences, the police can proceed only by a summons. You will be told you will be charged with an offence and you will then receive a summons notifying you to attend court on a certain day. In other cases the police have a discretion either to arrest you or to proceed by summons. In relation to most serious offences the police can proceed only by way of arrest. It is most important to retain your composure and refrain from abusive language and disorderly conduct when being questioned by the police. Where police have a discretion either to arrest you or proceed by summons, your conduct will often influence the course they adopt. In relation to many minor offences, polite conduct towards the police may prevent you being charged at all. It is easy to “talk yourself” into being charged with a minor offence. It is essential to remain calm and polite when talking to a policeman.
Types of Arrest. A policeman may make an arrest after first obtaining a warrant, which names the person to be arrested, and which should be read or shown to you at the time of arrest. But there is a wide range of offences for which a policeman can arrest you without a warrant. Generally speaking a policeman may arrest you without a warrant if you are found by the policeman in the act of committing or immediately after having committed an offence; if the policeman suspects with reasonable cause that you have committed an offence; or if you are found by the policeman loitering and he suspects with reasonable cause that you are about to commit an offence, or if you are a driver of a motor vehicle and refuse to give your name and address to police on request. In most serious cases ordinary citizens can also lawfully make arrests.
Mode of Arrest. An arrest is made when a person is detained or his body is touched with a view to his detention. If you are arrested, you have a right to be informed immediately of the charge. However, if you run away or resist lawful arrest, or bring about a situation in which it is not possible for the policeman to inform you of the reason for arrest, you cannot later complain that you were not given this information at the time of arrest.
If you resist a lawful arrest, the policeman can use all necessary force to arrest you.
You are advised not to offer any resistance, for, if the arrest should be lawful, you render yourself liable to the offence of assaulting, resisting, or obstructing a constable in the execution of his duty. It is important to note that it is lawful for a policeman and any person helping him to use force in making an arrest, even though he is acting under an irregular warrant or has made a mistake of identity so that he is arresting the wrong person, so long as the policeman is acting in good faith and on reasonable grounds. Even if you think you have been wrongfully arrested it is best not to resist arrest. You can bring an action against the policeman for damages for assault and false imprisonment if he has in fact made an arrest without justification.
Accompanying the Police. No police officer has power to detain you against your will merely to question you. If a policeman asks you to “accompany him to the station” and you don’t want to go, ask him whether he is arresting you. He may be uncertain whether an arrest would be lawful or not. If he says he is arresting you, ask him “What for?” as he is bound to tell you. Note carefully what he says, note his number if he is in uniform, ask for his identity card if he is in plain clothes, and “go quietly”. If his action is unlawful your remedy comes later. If he says you are not under arrest you may walk away. However, it is advisable not to exercise this right unless independent witnesses are present. More often than not it will save you subsequent trouble if you co-operate and go to the police station if requested to do so. If you are in a situation where you think you may be arrested you should ask friends or bystanders to come near you, or you should move over to them.
If you are arrested you should ask them to contact your lawyer or relatives. If policemen come to your home merely to ask questions and you are disposed to answer them, you may prefer to be interviewed in the familiar surroundings of your home in the presence of your family rather than at a police station.
Entering and Searching Premises. Policemen may enter your premises without a warrant to effect a lawful arrest or to recapture someone who has escaped from lawful custody.They cannot enter your premises without your permission to question you.They cannot search your premises without your permission unless they have a warrant. If the police enter your premises to effect an arrest, they should not search the premises without a search warrant. Police may also obtain wide powers to search premises and seize property under “general warrants”. Federal and State police also can tap telephones if appropriate approval is given by a court.
Answering Questions. A policeman, when investigating an offence, is entitled to ask questions of any person whom he considers may be able to assist him. A citizen should as part of his civic duties, be prepared to give full co-operation to the police in their task of preventing crime and bringing criminals to justice. However, he should resist any attempt to trade upon that co-operation by officious enquiries or requests of intimidating nature.
Whether you have been arrested or are merely under suspicion you are not obliged to answer questions or provide information to the police. (Motor traffic cases are a little different and are dealt with later.) This applies whether the police enquiries are part of a routine check-up, whether they arise in the course of a police visit to your home to ask questions, or whether they are made after you have been arrested. It is quite possible unwittingly and incorrectly to incriminate yourself or your friends by hasty or careless words spoken in the heat of the moment, which are later given a meaning you never intended. Every word spoken to a policeman no matter how casually, can be used in court just as readily as a signed statement. No word once spoken can be withdrawn or erased. There is ordinarily no such thing as speaking “off the record” or confidentially to a policeman.
As a rule, if you consider yourself to have been wrongfully arrested or to be wrongfully under suspicion, you should tell the police that you will consider making a statement only after consulting a solicitor You should then continue to request a solicitor to be present, deny your guilt and ask for bail.
If questioned by a policeman in circumstances where it appears you may be under suspicion, it is advisable to give your name and address, and also (if requested) to produce evidence of identity such as a drivers’ licence or other document. If you decide to answer no questions, it is better to declare—”I do not wish to say anything at this stage” or “until I have seen my solicitor”, than to remain absolutely silent. In court, silence may sometimes be regarded as having signified agreement with or acceptance of something the police or other witnesses were saying at the time. And it can (though it shouldn’t) make the case against you seem stronger by creating an atmosphere unfavourable to you, in which it is much easier for the prosecution witnesses to appear franker than yourself. It is only in limited circumstances that an innocent person under suspicion can derive benefit from supplying information to police in the absence of a legal adviser. If there is an explanation which will quickly and clearly show the police that their suspicions are wrong it should be given.
Thus, if you are charged with being on property without lawful excuse, and you were looking for a party or a friend, you should say so. If you have an alibi you should say so. It will appear suspicious if explanations of this nature are withheld. If you give a frank explanation at once without waiting for legal advice (even though you are entitled to wait for such advice) you may make a favourable impression on the police and perhaps prevent a charge. If you are charged, the fact that you gave the explanation at the earliest opportunity may create a better impression on the court.
Statements. A statement may either be written personally or dictated to a police officer, who must write down the exact words spoken, may not prompt, and may only ask such questions as are necessary to make the statement coherent. It should be signed as being quite voluntary and true, and all police officers present should countersign it. If you decide to make a statement you may prefer to write it yourself to ensure that it accurately states what you want to say. A short rather than a long explanation is less likely to be misunderstood in court. Police commonly write what purports to be a record of an interview. If you read it through and acknowledge it to be correct that makes such a record admissible in evidence against you.
Cautioning. A police officer should caution you concerning questioning and the making of statements as soon as he has sufficient evidence to suspect you of having committed an offence. The caution should be in words to the effect that you are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. A second caution on being charged is much the same. A failure to give a caution does not necessarily make an accused’s statement inadmissible at his trial. The use of a caution adds weight to any damaging admissions that he may have made; its omission may not destroy their value.
PROCEDURE AT THE POLICE STATION
You are taken to a police station, where the charge against you must be formally made and recorded without unnecessary delay. You should immediately ask for bail and request that your solicitor and relatives be notified.You may be questioned in the station, in which case you should bear in mind the remarks made above. Above all, do not lose your temper or allow yourself to get rattled. Do not try to be smart or rude. You are not in a good position to score verbal points. Any suggestion from a policeman that by making a statement you will make things easier for yourself or anyone else should be regarded with suspicion.
Presence of Lawyer and Relatives. If you are uncertain as to your position you should ask for your solicitor to be notified and refuse to answer questions or make a statement until you have consulted him. When he comes you are entitled to talk to him out of anyone’s hearing. Police are required to do everything possible to allow an accused person to communicate with his solicitor and relatives, and to advise the accused person of his rights.You should insist on using the telephone at the police station or on having a message sent by other means such as by telegram or by a policeman, to give any essential message to your solicitor or relatives. Quite often criminal proceedings become straightout contests between policemen on one side and the accused on the other and the outcome of the case will depend largely on which side the court believes. For this reason it is very important that any dealings which take place with police should, if possible, take place in the presence of an independent third person who will be available to give evidence of them should the need arise. This is why it is wise to have a solicitor or other independent person present if the police attempt to question you.
Bail. If you are arrested you should apply for bail to secure your release. Bail may be granted by the police (for minor offences), by a Justice of the Peace, and by a magistrate (with right of appeal to a judge). The police will release you on bail for some minor offence upon your paying or promising to pay a sum of money. But generally you will need to ask a relative or friend to come to the police station with a Justice of the Peace. Bail may be money, or title deeds to a house, or a bank passbook, to cover the amount fixed as bail. If you do not attend court, bail will be forfeited, and if you have been charged with a serious offence a warrant may be issued for your arrest.
Examination of the Person. Once you have been charged, the police may search your pockets, bags, etc., for articles that may have some bearing on the offence charged against you, or with which you might do some injury to yourself or others while in police custody.
You are entitled to retain other articles in your possession. You will be asked to sign a list of things taken from you and to sign it again when they are returned to you. They may also take body samples such as blood if they obtain a court order. The police may also wish to take your fingerprints and photograph you. If you are eventually found not guilty you should request that the fingerprints and photographs be destroyed. The police have no right to force you to enter an identification parade.
Complaints Against the Police. If you believe the police are exceeding their powers, you should make a note of the names and numbers of the officers concerned. If you are forced to go to a police station without being arrested; if you are not told why you have been arrested; if you are not permitted to communicate with your relatives and solicitor, if you are obstructed in obtaining bail; or if you have been ill-treated you should ask the senior officer of the police station to record your complaint. At a later stage you can take the matter up with the magistrate, and, if necessary, with the Commissioner of Police, a C.C.L. or a Member of Parliament.
THE COURT HEARING
Collecting Evidence. As soon as practicable you should make a note of conversations with the police using as nearly as possible the exact words spoken. You may later be entitled to refresh your memory from such notes in court if your recollection fails you there. Contact any possible witnesses immediately, tell them that you have been charged, and ask them to remember any relevant facts, but do not suggest to them what evidence you would like them to give. If you have been physically ill-treated, go straight to a doctor and ask him for a report on injuries, have any visible injuries photographed by a competent photographer, and contact persons who saw you not long before you were arrested and ask them to look at your injures and state whether they observed them before you were taken into custody.
Legal Representation. Everyone has a right to obtain legal assistance before being called upon to answer a charge in court. If you have any doubts about your position, you should ask the magistrate for an adjournment to give you time to consult a solicitor. Such a request should never be refused. Representation by a lawyer will reduce the risk of miscarriage of justice. Choose your own solicitor rather than any that may be recommended by the police.
Legal Aid. If you cannot afford to pay for a lawyer there are other ways of obtaining legal advice. Trade Unions and other organizations often give assistance. In many cases legal aid may be obtained from organizations listed in Chapter 1.
Types of Court Hearing. When an arrested person comes before the court there are a number of things which can happen to him, depending upon the circumstances and the type of charge. Some cases will be dealt with by the magistrate himself; in other cases the magistrate has a discretion either to deal with the case himself or to hold a preliminary hearing, known as committal proceedings, to decide whether the case should be referred for trial to a judge and jury; in still other cases the accused person may choose to be dealt with either by the magistrate or by a judge and jury; finally the magistrate may be obliged to hold committal proceedings to see whether or not there is a case to be considered by a judge and jury.
How to Plead. When brought before a court, you are entitled to plead not guilty. The prosecution is then required to prove its case. As a general rule you should never plead guilty unless so advised by a solicitor. This holds good even if you yourself think you are guilty; the law can be highly technical and you may be entitled to an acquittal without knowing it. Do not plead guilty on police advice. You may be told by the police that if you plead guilty or make a confession they will play down the case and you will get off with a lighter sentence. Such promises are not binding and should be disregarded. It is important to remember that in our criminal courts an accused person is presumed to be innocent until proven guilty, and the onus of proving guilt is, with a few isolated exceptions, always on the prosecution. That is to say, an accused person does not have to prove his innocence, nor is he obliged to provide the police or other authorities with information which may lead to his conviction.
Evidence in Court. You are not bound to give evidence at the hearing. You will probably be told in court that you are entitled either to make a statement without going into the witness box, in which event no one may ask any questions about what you say; or to go into the witness box and give sworn evidence, in which event you can be questioned. If you conduct your own defence you can question any witnesses against you, and call witnesses for yourself and people who can give evidence about your good character. (See chapter 13)
The Police and the Citizen—Points to Remember
You should give your name and address. You should be polite and calm when talking to a policeman.You don’t have to answer questions. If in doubt, don’t answer questions and then obtain legal advice. Don’t resist arrest. If arrested, ask for bail and obtain a solicitor.
RIGHTS OF SHOPPERS
The best advice in relation to shoplifting is—don’t do it. Shoppers are under increasing surveillance. If you are detected shoplifting, you will be prosecuted, and a conviction could affect you in many serious ways, including limiting your future employment prospects. You have a right to refuse to allow your bag or person to be searched, but if there are reasonable grounds to suspect you of theft of items in the shop, staff may detain you and call the police.The staff should allow you to open and empty the bag or other container yourself. Personal handbags should not be searched unless the staff have reasonable grounds to believe they contain stolen items.
Ordinary members of the staff or a store detective may wait until you have left the shop to establish that you had no intention to pay for the goods, but you can also be detained in the shop. You may also be detained if you return a defective item and take another item in good condition, or if you swap price tags in an attempt to pay less. If you are suspected of shoplifting you would be approached by a salesperson or store detective and asked to go to the manager’s office. You don’t have to answer questions but if you have made an honest mistake or there is an explanation exculpating you, you should explain your position. If there is a prominent sign stating that it is a condition of entry, that customers submit to a bag search, you should allow your bag to be searched.
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Australian Civil Liberties Union