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The Australian legal system grants certain rights and protections to individuals when interacting with law enforcement. One crucial aspect of this interaction is police questioning or interrogation. Understanding your legal rights when being questioned by the police is essential for ensuring a fair and just process.
In general, police are not allowed to lie to you in Australia. However, it is not uncommon for police to employ tactics to obtain admissions or false confessions from you.
One of the fundamental rights individuals have when interacting with the police in Australia is the right to remain silent. This right is embedded in the common law and is also supported by legislation in various jurisdictions. It means that you have the option to refuse to answer questions when interrogated by police. You can exercise this right at any stage of the interaction, including during informal conversations, formal interviews, or even in a courtroom.
In criminal law, while you have the right to remain silent, you should be respectful and polite in your refusal to answer questions. Being hostile or confrontational may not work in your favour and could potentially complicate the situation.
In Australia, police officers have the authority to question individuals in a variety of situations. These can include:
Another important right individuals have during police interrogation in Australia is the right to legal representation. You have the right to have a lawyer present during questioning. This is particularly important if you are being interviewed in relation to a serious offense. A lawyer can provide you with legal advice, ensure your rights are protected, and help you navigate the complexities of the legal process.
It’s worth noting that if you cannot afford a lawyer, you may be eligible for legal aid, which provides free or low-cost legal assistance to those who cannot afford to pay for a lawyer.
Detainment and Arrest
If you are detained or arrested by the police, they must inform you of the reason for your detention or arrest. They must also inform you of your right to remain silent and your right to legal representation. It is crucial to cooperate with the police in a calm and respectful manner.
Law enforcement possesses a range of authorities for probing into criminal activities. Under specific circumstances, they hold the capability to conduct searches on your person or property, make arrests, collect your fingerprints or DNA, or issue directives. Frequently, these actions can be taken without the necessity of a warrant.
Should the police instruct you to perform a certain action and you’re uncertain about your obligation, it’s permissible to inquire, ‘Am I obliged to comply?’ In the event that the police affirm that you are required to comply and you choose not to cooperate, you may face charges for non-compliance.
Recording of Interviews
In many jurisdictions in Australia, police interviews are recorded, either through audio or video recording. This is done to ensure transparency and to provide an accurate record of the interview as evidence in court. Moreover, It is your right to request that the interview be recorded, and you should be informed if it is being recorded.
In a “no comment” interview, the accused provides their name and address details and subsequently responds with “no comment” to all ensuing questions. It is of utmost importance that if you choose to adopt this approach, you consistently maintain the “no comment” stance throughout the interview. You cannot selectively respond to certain questions while invoking “no comment” for others. This is because a partial “no comment” interview may potentially be utilised in a manner that is detrimental to your case.
The interview is documented on a DVD, making it advisable to take common-sense measures like grooming and wearing suitable attire before the interview. This step is significant in the process and may be observed by multiple individuals.
Youth and Vulnerable Persons
Special provisions exist for young people and vulnerable persons when it comes to police questioning. These individuals may require additional protections and support during interviews. They must have a parent, guardian, or independent person present during the interview.
While you have the right to remain silent, it’s important to be aware of potential consequences. In certain situations, where the lawyer is present, a court may draw an adverse inference if you choose not to answer questions. This means that the court may consider your silence as an indication of guilt. However, this is a complex legal area and should be discussed with an experienced criminal lawyer.
If you do not comply with police directions or resist arrest, they can do lay a criminal offence charge of hinder police or resist arrest against you.
This offence, often referred to as “resist arrest” in NSW, encompasses a wider range of situations beyond just the act of arrest itself. It is the most commonly encountered police-related offense. This charge can be contested if it can be successfully argued that the police officer was not acting within their lawful duty.
Hindering a police investigation is the least severe among the three offences. It is relatively straightforward for police to lay this charge, as it doesn’t require a significant amount of evidence. On occasion, one may be able to effectively convince the police to downgrade a “resist police” charge to an “obstruct police” charge.
Understanding your rights and police powers when facing police interrogation in Australia is crucial for ensuring a fair legal process. The right to remain silent, the right to legal representation, and the right to be informed of the reason for your detention or arrest are all fundamental aspects of the legal system.
If you find yourself in a situation where you are being questioned by the NSW police, it is strongly recommended to seek legal advice and representation to ensure that your rights are protected. Remember, knowledge of your rights is an essential part of upholding the principles of justice in any legal system.
Accordingly, if you have been charged with a serious offence or the police have made an avo application against you, contact our avo lawyers. We will provide you with free legal advice for 15 minutes.