1. You need to be told that you are under arrest and presented with a warrant (if it exists)
Law enforcement can arrest you via two avenues;
- A Warrant; or
- Where the person is found to be committing an offence and where the Police member believes on reasonable grounds that the apprehension of the person is necessary for one or more of the following reasons:
- To ensure the person’s attendance before a Court of competent jurisdiction;
- To preserve public order;
- To prevent the continuation or repetition of the offence or the commission of a further offence; or
- For the safety or welfare of members of the public; and / or
- Where the police member believes on reasonable grounds is escaping from legal custody or aiding or abetting another person to escape from legal custody or avoid apprehension.
Whether you arrested under warrant or on the belief of a Police member, you need to be advised that you are under arrest and the offence that you are suspected of committing. If you are arrested pursuant to a warrant, you need to be shown the warrant.
2. You need to be read your rights
A Police member, after telling you are you are under arrest, must advise you that you have the right to remain silent but that anything you do say can be used against you. You must be advised that you have the right to communicate with a friend or relative to tell them of your whereabouts. You have to be told that you have a right to communicate with a legal practitioner. This is unless the Police member is concerned that communication with a friend, relative or legal practitioner would result in the escape of an accomplice, fabrication or destruction of evidence or would endanger the safety of a person. In these circumstances, the Police member can wait until a conclusion of a search and relevant enquiries before allowing you these calls.
These rights need to be explained to you in language that you understand and, if you do not speak English, you are entitled to an Interpreter. Where the alleged offender is under 18 years old, they are entitled to have a parent, guardian or independent person present when they are questioning them or carrying out an investigation.
3. You need to be asked whether you are an Aboriginal Person
Indigenous Australians and Torres Strait Islanders are acknowledged to be a high risk group when arrested by Police. Accordingly, Police members must enquire as to whether a person is of Aboriginal or Torres Strait Islander descent. If you are, they must notify the Victorian Aboriginal Legal Service to arrange for legal advice.
4. You need to be given access to a phone to call a friend or family member to be told where you are
As soon as practicable, after you are arrested, you must be allowed to contact a friend or family member to let them know that you are under arrest and where you are. This can become a little bit tricky, however, in circumstances where most people do not know the numbers of their relatives or friends because they save them in their phone. If this is you, the Police member may allow you to access your phone but will have to watch you do it, as they may be concerned about you destroying evidence. They may also search your phone after if they have an Order from a Magistrate.
5. You need to be allowed access to a lawyer to receive legal advice
It goes without saying, you need to be allowed to speak with a lawyer. When doing so:
- You need to have sufficient information in relation to the allegations;
- You need to have the name and the registered number of the Police member interviewing you;
- You need to be alone in a room without an office present;
- You cannot be in ear shot of an officer and they should not be watching you whilst you are on the call;
- You need to be able to, however, call out to a Police member so that your lawyer can speak with the officer interviewing you; and
- You should be given sufficient time to get the advice.
6. You need to be provided information in support of a request for fingerprinting or DNA in order to give informed consent.
Police members can request your fingerprints or DNA to assist in the investigation. However, you have to give your informed consent. This means that they have to thoroughly explain to you the process and what the evidence may be used for before requiring you to provide a fingerprint or DNA sample. The Police officer must explain:
- The purpose for which the fingerprints or DNA are required;
- The offence that the person is suspected of committing;
- That the fingerprints or DNA may be used in evidence in Court;
- That if they refuse to provide the fingerprints or DNA, a Police officer may use reasonable force to obtain then; and
- That if they are not charged with the relevant offence within 6 months (for fingerprints) or is so charged but the charge is not proceeded with and they are found not guilty of the offence or any other relevant offence before the end of that period, the fingerprint will be destroyed. However, that is not the case for DNA. The DNA may be placed on a database and used for the purpose of unrelated investigations.
In relation to DNA, the Police member must also explain the procedure for taking the DNA.
7. You need to be either released, bailed or brought before a Magistrate
After being arrested and interviewed, you must be brought before a Magistrate within ‘a reasonable time’. There is no definition of what a reasonable time is and now statutory time period. A ‘reasonable time’ is usually hours. However, we are aware of cases where individuals were held for several days before being brought before a Magistrate. This in our view is entirely unacceptable. If a loved one is being held for an unusually long period of time, you should engage a criminal defence lawyer immediately. If the Police refuse to bring your loved one before a Court, a writ of Habeus Corpus can be issued in the Supreme Court, which can Order that the person be brought before the Court.
8. You need to be given a copy of the Interview and your questioning
At the conclusion of your interview, you will be given a disc with a recording of the interview on it. If you are remanded in custody after arrest and charge, your recording will be placed in your prison property. A copy will also be provided to your lawyer upon request.
How Galbally Parker Can Help if you are Under Arrest
If you are under arrest and looking for a criminal defence lawyer, contact our office. Our team has experience in a range of different areas of the law, including, but not limited to, organised crime, criminal appeals, assault, murder and manslaughter, drug offences, fraud, and customs offfences.
