What are your rights after arrest – and what can the police lawfully require from you

 

Many people are not aware of their rights when arrested or questioned by the police; this often results in people unknowingly incriminating themselves. 

Below, we list your rights and obligations if you are arrested or questioned by the police.

What you are required to disclose to the police

If there is a reasonable suspicion that you have committed or may commit an offence, or if you are otherwise capable of assisting in the investigation of an offence, the police can lawfully demand that you provide them with your personal details.

The details you are required to disclose to the police include your:

  • Full name;
  • Date of birth;
  • Residential address; and
  • Business address, if applicable.

Under the Road Traffic Act 1961 (SA) the police are permitted to stop vehicles and enquire in relation to the:

  • Owner of the vehicle;
  • Goods being carried in the vehicle; and
  • Driver’s intended route and destination.

The police are also permitted to request that patrons show proof of age in licensed venues.

Failing to provide such information or providing misleading information to the police in the above circumstances is an offence.

Obligations on the police

If arrested, the police must advise you that anything you say may be recorded and may be used in evidence.  They must also inform you of your rights (below) as soon as reasonably practical after you are arrested.

Your rights on Arrest

Every person who is arrested by the police is entitled to the following set of rights:

Right to silence

Except in relation to personal details, as described above, criminal suspects in Australia have a right to silence – that is, a right to refuse answering questions posed to them by the police, and a right to refuse to give evidence at a trial.

The right to silence is part of the broader common law privilege against self-incrimination.

Except for very specific circumstances, where a suspect has exercised their right to silence, that silence cannot be used to draw unfavourable inferences against that person as evidence in trial.

This allows persons faced with a serious accusation to consider their situation carefully before making any disclosure, especially in circumstances where, for example, suspects may be panicked, frightened, confused, fearful or distrustful of the police, or unwilling to implicate others for whom they feel responsible.

However, the right to silence must be exercised with some degree of care.

Many people are not aware that selectively exercising the right to silence can in some situations be interpreted by the courts as awareness of guilt.  Suspects who wish to exercise their right to silence should avoid answering ALL questions posed by the police aside from those required by law.

Right to a telephone call

An arrested person has the right to make a phone call to a nominated relative or friend under the Summary Offences Act.  Hollywood logic fortunately does not apply – you get more than one if the first doesn’t pick up. The call can only be used to inform the friend or relative of your whereabouts.

Police officers are permitted to decline phone calls if there is reasonable cause to suspect that the making of the call ‘would result in an accomplice taking steps to avoid apprehension or would prompt the destruction or fabrication of evidence’.

Right to have a solicitor or support person present

An arrested person has the right to have a solicitor, relative, or friend present during interrogation or investigation for as long as they remain in police custody.

The same exceptions as the telephone call apply – the police may refuse to permit a particular person to be present in an interrogation if there is reasonable cause to suspect that the communication between that person and the suspect may lead to further criminal acts.  The police are unlikely to refuse a solicitor of the arrested person’s choice being present.

Right to an interpreter

If a person is arrested and English is not their native language, they are entitled to be assisted at an interrogation by an interpreter.

Bambrick Legal solicitors can be contacted outside of business hours in the event of arrest.  Save our number in your phone.

  • Call us on 08 8362 5269
  • Email admin@bambricklegal.com.au
  • Fill in our enquiry form here
  • Visit our office at 133-135 Rundle Street, Kent Town SA 5067