What rights do you have when police stop you for questioning and what information do you have to give them if they do?
Firstly, the police do not have the right to demand your name or address without a lawful reason.
Generally, a police officer can only ask you to give your name and address if they believe you have committed an offence, or you are about to commit an offence.
There are instances where you must answer certain questions, such as:
- Where the Police reasonably suspect you of committing or about to commit a crime, you must provide your name and address
- If you are in possession of firearms
- If you are a registered child sex offender
- Motor vehicle drivers are required to answer certain questions
- Showing proof of age on licensed premises
- To avoid assisting someone who might have offended
- Questions in relation to terrorism offences.
The bottom line is the police must tell you why they want your details. If they do not give you a reason, you should ask for it, it is your right to know.
If the police do have, what sounds like, a valid reason to ask for your name and address, it is an offence to refuse to provide it, or to provide police a false name and address.
It is for a court to later decide whether the police did in fact have lawful reason to ask for your details.
Once you have provided your name and address most people are under no obligation to then answer any further questions and it is often in your best interests not to answer further questions without first seeking legal advice. There are some exceptions to this though. Certain people are required to answer further questions including firearms owners and registered child sex offenders.
The police do not have general powers to arrest you just for questioning. The Police may ask you to accompany them to a police station for questioning but this is only an invitation for you to voluntarily attend. You are not obligated to accompany them to a police station unless you are arrested or there is warrant for your arrest in force.
If the Police suspect you of committing a crime, and they believe they have evidence to charge you with that crime, they will arrest you, at that point you must do as they require of you.
If you have been arrested, you have the right to silence whether you are being questioned during conversation with them or in a formal interview situation and being recorded. This right stems from the common law principle that it is the role of the Police to prove you are guilty, not yours. Anything you do say will be used in evidence against you and perhaps in ways you did not anticipate at the time of answering their questions.
When you are arrested, the Police must tell you why you have been arrested and what the allegations against you are.
Young people under 18
You’re entitled to certain protections, such as having an adult present if you are to be questioned.
The police must try to contact your parent, guardian, or carer if you are under 18 and have been arrested.
You cannot be subjected to an interrogation or investigation until an ‘appropriate adult’ is present to represent your interests – this can be your parent or guardian, another family member, social worker, or a friend aged 18 or over.
Aboriginal and Torres Strait Islanders
If you identify as an Aboriginal or Torres Strait Islander (ATSI), you should be provided with a copy of printed information from the Aboriginal Legal Rights Movement (ALRM).
The ALRM can help you with civil and criminal legal matters. It’s an independent organisation governed by an all-Aboriginal board and has offices in Adelaide, Ceduna, Port Augusta and Port Lincoln. Contact ALRM on 1800 643 222 (free call).
You do not have to, and nor should you, answer any questions until you have sought legal advice.
Be aware, it is possible to waive your rights to silence without realising you have done so, so it is best to remain silent until you have received legal advice. Simply stating something along the lines of ‘I do not wish to say anything further’ after you have provided your name and address is sufficient.
It can be difficult to stay silent, especially when dealing with Police. It is therefore essential you seek legal advice as soon as you are arrested so as not to incriminate yourself.
Police Line up
Physical identification line ups like you still see on TV, have not been used in a long time and are rarely used at all. This is because the police mostly use a photographic line up; a series of photographs with you amongst them; for the witness to try to identify. Section 34AB (4) of the Evidence Act (SA) says that a photographic line is of the same evidentiary value as a physical line up.
Get a lawyer!
Northside Lawyers have an in-depth knowledge of police practices and powers with our principle criminal lawyer, Bill Morris having been a Magistrate, Police Officer and a Police Prosecutor. If you have been arrested by the police, stay silent and call us immediately for advice.
We will talk about your rights when you have been arrested in our next post.