Police want to question me over a crime. What do I do?

You must always give your name and address to a police officer if asked, but you generally do not have to answer questions or sign a statement. There are some exceptions, however, such as if police pull you over while driving and ask you the names of the driver and owner of the vehicle. If police ask about drugs or customs matters, or ask for identification on licensed premises or when investigating prostitution, you are required to identify yourself. Generally if you do answer other questions, police can use that information as evidence in court against you.  If you are at all unsure as to whether you should answer questions, don’t – but make sure you seek legal advice.

I have been asked to go to a police station to answer questions. Does that mean I am under arrest?

For you to be arrested, a police officer should tell you that you are under arrest, why you are arrested and either ask you to accompany them or tell you to stay in a certain place.  If you resist or struggle at that point, or intervene in the arrest of another person, you can be charged with resisting arrest or obstructing police.  If you are not under arrest, you are not obliged to attend the police station unless you wish to make a statement.

What should I do if I am arrested?

First, confirm with police that you are actually under arrest and ask what charges are being laid against you.  You should also keep calm and politely ask to make a telephone call to your lawyer or to another person who can organise legal advice.

Are the police allowed to search my house?

If you give permission, police are allowed to search you, your vehicle or your home without a warrant.  If you don’t give permission, they can obtain a warrant to search – or in some cases they are allowed to search without a warrant.  Police powers vary depending on the offence they are investigating, but occasions when a warrant might not be needed include vehicle searches, if they reasonably believe you are carrying something related to a crime or if they have arrested you and believe you have committed certain offences under the Misuse of Drugs Act.  If your premises are searched, you should get immediate legal advice as to whether that search is lawful.

I’ve been arrested. What now?

You will be interviewed by police and your statement will be recorded (usually videotaped), although you have a right to elect not to answer questions. The police must tell you about this right at the start of the video record of interview, and you should immediately say you want to exercise that right. You can request to have a lawyer in attendance.  If no charges have been laid after the interview, you can usually leave the police station – however, you might be summonsed to appear in court later.  If you are charged, you may be kept in custody until the charges are dealt with in court, or you may be released on bail after signing an agreement to appear in court at a particular date and time.

I have to appear in the Magistrates’ Court. Is it too late to get someone to defend me?

If possible, you should get legal advice before appearing in court. If you must appear without a lawyer, however, tell the orderly in the court that you have arrived and will be representing yourself.  When called, stand at the table in front of the magistrate, who will ask you what you want to do.  Ask the magistrate if the matter can be adjourned for legal advice.  You will not need to plead guilty or not guilty, and in most cases, you will be given a short adjournment of a few weeks. You must make arrangements to see a lawyer before the next appearance.

If I have committed a crime, is there any point in getting a lawyer?

Even if you believe you have done something illegal, there may still be ways to avoid a criminal conviction. The charge may not accurately describe what you’ve done, for example, which may mean you can be acquitted because you are not guilty as charged. There may be a defence that in a legal sense justifies or excuses your actions. Or it may be that the prosecutor hasn’t enough evidence to prove you committed the alleged offence beyond a reasonable doubt.  Even if you are convicted, a lawyer can give the court reasons to reduce your sentence that may prevent you serving a jail term or, in some less serious cases, argue you should be released without imposing any penalty.

If you are facing criminal charges or would like representation during a police investigation or court appearance, you can contact Havilah Legal’s experienced criminal law team on 9221 2339.  Alternatively, you can contact our Legal Information Desk lawyer, Ken Eastman, for a fixed-fee 20-minute appointment for just $35.  He will be able to provide straightforward and comprehensive information about your particular circumstances and offer guidance on what further action you may need to take.

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