Detention And Interrogation, Rights of Suspects
DETENTION & INTERROGATION
- A police officer may detain a person, who is under arrest, for the investigation period provided for by section 115 in LEPRA.
- The person must be:
- Released (whether unconditionally or on bail) within the investigation period, or
- Brought before an authorised officer or court within that period
- Investigation period is generally 4 hours, or extended through a detention warrant
- Police can ask any question they want to, but the individual has the right to silence, meaning they can also refuse to answer à However, there are some exceptions to this right:
- A driver must produce his or her licence on request
- A person must, if able to, give the name and address of a driver who has been involved in a motor accident
- A person must give information to a customs officer about drug smuggling.
RIGHTS OF SUSPECTS
- Right to silence
- Right not to be searched, only with a warrant (unless there are reasonable grounds)
- The right to be released from custody if a charge is not made within a reasonable time (the investigation period, i.e. 4 hours)
- Right for confessions to be free and voluntary.
- Right for a minor to have an independent adult person present during questioning
- After a person has been arrested for a crime, he/she is usually detained by the police at the police station and interrogated
- Police can generally only detain someone for up to eight hours
Interrogation and the right to silence
- Police may question anyone they like, but all citizens have the right to remain silence
- Exceptions to this right include: a driver must produce him/her licence on request, a person must give the name and address of a driver who has been involved in a motor accident, a person must give information to a customs officer about drug smuggling
- The right to silence extends to the courtroom in the majority of cases
- Judges and juries are not supposed to interpret somebody remaining silent as evidence of that person’s guilt
Rights regarding to privacy
- A person does not have to supply blood or DNA for forensic tests, unless that person is accused of a serious offence. Citizens to not have to allow police to search their person or their premises except if police have a warrant.
Right to communication
- Police are supposed to allow a detained person access to facilities to allow that person to contact a friend, relative, solicitor or doctor. This is not a right, but is stipulated in the police code of practice.
Right to a lawyer
- An adult has no absolute right to have a lawyer or an independent witness present when being questioned
- Young offenders have the right to have an independent adult present when being questioned illegal evidence
- A confession cannot be used in court unless it is made voluntarily. Confessions made to police but not electronically recorded can not generally be used as evidence
- A judge can refuse to admit any evidence which has been illegally obtained. He/she must consider the communities interest, as well as ensuring a fair trial for the accused, when deciding to admit or reject evidence.
- Generally, police have to prove that evidence they have gathered has been obtained legally if it is to be admitted in court.
Extract from Legal Studies Stage 6 Syllabus. © 2009 Board of Studies NSW.