What To Do If Arrested (Vic)
What is an “arrest”?
An arrest occurs when a person is detained or the body of the person is touched with a view to detaining that person.
What is the purpose of an arrest?
An arrest aims to stop someone who is committing, about to commit an offence, or about to attempt suicide. It also serves to:
make sure the person appears in the proper court;
keep public order;
stop the offence continuing or happening again, or prevent another offence;
protect the safety or welfare of the public or the person arrested.
Your rights when arrested
Silence
A detained suspect being questioned need only give name and address and can refuse to answer other police questions: ss 456AA(3) and 464J(a), CA. Section 464J(a) protects a suspect’s right to stay silent or not take part in an investigation unless a law expressly requires cooperation. No negative inference may be drawn from remaining silent.
Must give name and address and not give false information
Police may ask you to state your name and address if they reasonably believe that you have committed, or are about to commit, an offence. Police may also ask for your name and address if they reasonably believe you may be able to assist with the investigation of an indictable offence.
If police make this request, they must tell you the grounds for their belief in enough detail so that you understand the nature of the offence or suspected offence. If the request is properly made, refusing to provide your name and address, giving a false name, or giving an incorrect address may be a criminal offence.
The right to a caution
A “caution” warns a person that anything they say could be used as evidence if they are later charged. If a caution isn’t given, a court may decide the evidence was improperly obtained. Except for giving their name and address, a suspect can remain silent and refuse to answer questions.
Can you resist an arrest?
As a general rule, no one cannot resist an arrest unless the person doing the arresting does not have reasonable grounds for believing the arrest is necessary for the following reasons:
make an offender attend court
keep public order
stop the offender from repeating the crime or committing new ones
protect the safety or welfare of the public or the offender.
Your rights during questioning
Right to communicate with friend or relative and solicitor
If you are taken into police custody in Victoria, police must generally tell you before questioning starts that you may contact, or try to contact, a lawyer and a friend or relative. This allows you to obtain legal advice and let someone know where you are before any police interview or investigation begins.
If you ask to contact a lawyer, police must provide reasonable facilities as soon as practicable and must usually delay questioning for a reasonable time so you can make, or attempt to make, that contact. Your communication with your lawyer should also be private, as far as practicable.
Right to an interpreter
If a suspect who does not understand English is questioned without an interpreter present, any admission obtained will likely be excluded as unfair, illegal, or improper.
Right to be released or taken before a bail justice or a Magistrate within reasonable time
If a suspect isn’t released or brought before a magistrate or bail justice within a reasonable time, any admission may be excluded as unfairly, improperly, or illegally obtained (s 464J(c)(d), Crimes Act 1958 (Vic)). Section 464A(4) lists the factors used to decide what counts as a reasonable time.
Matters relevant to what is a “reasonable time” include: (a) time needed to bring the person before a bail justice or Magistrates' Court; (b) number and complexity of offences; (c) time for investigators to read, collate material or prepare; (d) transport time to suitable interview facilities; (e) number of other people to be questioned during custody; (f) time to visit scenes or other relevant places; (g) time to communicate with a lawyer, friend, relative, parent, guardian or independent person; (h) time for those persons (lawyer, interpreter, parent, guardian, independent person) to arrive; (i) any suspension/delay to allow medical attention; (j) any suspension/delay to allow rest; (k) total time the person was with an investigating official before and after custody began; (l) any other matters reasonably connected to the investigation.
Getting a lawyer
Police powers can be confusing, especially if you are being questioned or asked to provide information. If you are concerned about a police interaction, have been charged, or believe you may be under investigation, you should seek legal advice as soon as possible.
We can advise you about your rights, whether you should participate in a police interview, and what steps to take if you have been charged with an offence.
For urgent advice, contact us before speaking to police or attending a police interview.
