The New South Wales police have statutory powers relating to the questioning, arrest and search of persons suspected of having committed a criminal offence. Three are also laws in places that protect the individual’s rights by providing safeguards that police must follow when exercising such powers.
Before or as soon as reasonably possible after questioning, arresting or searching you, police must provide evidence that they are a police officer (unless in uniform), state their name and place of duty and clearly state the reason why they are exercising that power. If a police officer fails to comply with these procedures then the questioning, arrest or search may be unlawful. A police officer exercising a power to ask or direct you to do something must also provide you with a warning that failure to comply may be an offence.
Police must also follow safeguards in relation to the questioning of suspects. You cannot be arrested solely for the purpose of questioning and cannot be taken to a police station for the purpose of questioning without your consent unless you have first been arrested for a legitimate reason.
If you have been arrested and taken to a police station, police may only detain you for the purpose of questioning and further investigation for a reasonable period of up to four hours. Police may apply to extend this period for a further eight hours in exceptional circumstances. Additionally, a number of ‘time out’ events may extend the period of detention such as time to wait for a lawyer or support person to attend to the station.
Recent changes to legislation mean that an accused can no longer rely upon a right to silence when the police questions him. For example, if an accused person relies upon evidence at court (such as alibi evidence) that they did not disclose to police during an earlier interview, the court may look unfavourably upon such evidence, possibly affecting the outcome of the hearing.
Additionally, it is an offence to refuse to answer police questions in circumstances where you conceal information about a serious indictable offence (carrying a term of imprisonment of five years or more) that would result in a prosecution.
Therefore, the decision of an accused on whether he agrees to an interview by the police is a difficult one and must weigh on various considerations including the fact that police may not have sufficient evidence to convict without an interview, as well as adverse inferences that the court can now draw relating to failure of an accused to answer questions. For these reasons, you need legal advice you can trust by specialist criminal lawyers with experience dealing with police and court matters.
For more information and legal advice regarding Search and Arrest, contact our experienced solicitors.