Australian Civil Liberties Union
Your Rights 2005
Chapter 8
THE POLICE AND THE CITIZEN
Arrest.
Questioning. Making Statements. Searches. Procedure at Police Station. Court
Hearing
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.
Australian Civil Liberties Union