Being approached by the police can be extremely intimidating, especially if you’re unaware of your legal rights when being approached, questioned, detained, and arrested by the police. However, fear not, as Part 1 of this guide will prepare you in any given situation.
Am I Required to Give the Police my Details?
People who have been approached by the police are often unaware of their rights in relation to providing the police with their personal details, such as their name and address. In accordance with section 456AA of the Crimes Act, police may request that a person provide them with their personal information, if the police officer believes on reasonable grounds that:
- The person has committed, or is about to commit a crime (both indictable, or summary); or
- May be able to assist in the investigation of an indictable offence that has been committed or is suspected of having been committed.
Under this section, the police officer who makes the request for personal details must inform the person of the grounds of their belief (that the person has committed an offence or may be able to assist in an investigation) in sufficient detail, to allow the person to understand the nature of the offence, or suspected offence. To summarise, the police can only ask you for your details if they believe you have committed an offence, or that you can assist them in an investigation. You are only required to provide them with your details if they explain this to you in sufficient detail.
Can I be Arrested Without a Warrant?
Another common question is whether you can be arrested without an arrest warrant. The simple answer is yes. However, there are still some requirements that must be met and procedures to be followed.
Firstly, section 458 of the Crimes Act empowers any person, including police and civilians, to arrest a person if they find the person committing an offence, where they believe on reasonable grounds that the apprehension of the person is necessary for any of the following reasons:
- To ensure the attendance of the offender before a court
- To prevent public disorder
- To prevent the continuation or repetition of the offence or the commission of a further offence
- for the safety or welfare of the public, or of the offender.
In addition to this, under section 459 of the Crimes Act, a police officer or PSO may at any time without a warrant apprehend any person if:
- They believe on reasonable grounds the person has committed an indictable offence in Victoria; or
- They believe on reasonable grounds the person has committed elsewhere which would be considered an indictable offence in Victoria.
Under this section, if it is a PSO who arrests the person, then they must hand the person over to an authorised police officer as soon as practical to do so.
I Haven’t Been Arrested – Can the Police Detain Me?
The simple answer is no, if you have not been arrested, the police cannot detain you. This is confirmed by section 464I of the Crimes Act, which states that police are not conferred a power to detain a person against his or her will if that person is not under arrest.
This raises the question, am I required to stay in the presence of police if I have not been placed under arrest? This question was answered by the Supreme Court in the appeal case of Director of Public Prosecutions (DPP) on behalf of Hemingway, a Police Officer v Hamilton [2011] VSC 598. This case involved a police appeal after a magistrate found that refusal to answer police questions and fleeing from police when NOT under arrest did not constitute resisting arrest. In that case, Justice Kaye found that before being placed under arrest, an individual is under no obligation to stop when requested to do so by police, nor were they under any obligation to remain in police presence. In fact, Justice Kaye found that the act of ‘fleeing’ from police presence did not constitute an offence and that it was perfectly legal for an individual to leave police presence in circumstances where they have not been arrested.
How Galbally Parker Lawyers can Help with Police Questioning
Understanding your legal rights when approached by the police is crucial for protecting yourself and ensuring fair treatment. While this guide provides a solid foundation, it’s essential to remember that each situation is unique, and the complexities of the law can be challenging to navigate alone.
If you find yourself in a situation where you have been approached, questioned, detained, or arrested by the police, we strongly urge you to get in touch with a criminal defence lawyer immediately. A skilled attorney can provide the expert advice and representation you need to safeguard your rights and achieve the best possible outcome.
