Where are the rights found?
The rights of a person in police custody are set out in Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). It applies to every person who is under arrest by a police officer in New South Wales.
Who is responsible for making sure I know what my rights are?
Each police station is required to have a “custody manager” on duty at all times. The custody manager is an independent police officer who will not be involved in the investigation of your matter.
The function of the custody manager is to ensure that your rights are protected whilst you are in custody. For example, under the legislation the custody manager is required to:
- Give you a document which sets out your rights.
- Explain this document to you.
- Tell you that you have the right to silence (in order words a right not to say or do anything).
- Give you an opportunity to contact a friend, relative or lawyer to inform them of your whereabouts.
- Tell you (if you are a foreign national) that you also have a right to contact a consular official and to have access an interpreter.
Do I have to answer questions if I am under arrest?
Generally speaking, you have a right to silence and do not have to say anything to police that you do not want to. However, in some circumstances you do have to tell police certain information and if you fail to do so you may have committed a criminal offence.
When do I have to give certain information to police?
In certain situations you are required to provide your name and address and provide identification to a police officer. If you fail to do so you may be committing a criminal offence.
For example:
- If police suspect that you were at or near a place where an offence occurred and police believe you may be able to assist in the investigation, you are required to disclose your identity.
- If you own a motor vehicle and police allege that the vehicle was involved in a traffic offence, you are required to provide police with the name and address of the driver of the vehicle at the relevant time.
- If you own a motor vehicle, or are the driver or passenger in a motor vehicle which is alleged to have been used for a serious offence, you are required to provide police with your name and address, as well as the name and address of other people who were in the car at the time.
If I am under arrest do I have to answer questions?
If you have been arrested by police you may be asked if you want to take part in an interview. It is up to you whether you decide to participate in the interview. There can be other advantages and disadvantages of taking part in an interview. If you are unsure what to do, you should ask to speak to a solicitor before making a decision.
Generally speaking, you have a right to silence and do not have to answer any questions. Normally if you choose not to speak to police this cannot be used against you.
However, for many offences police can give you a “special caution”. The special caution came into effect on Sept. 1, 2013 and is as follows:
“You are not obliged to say or do anything unless you wish to do so. But it may harm your defence if you do not mention, when questioned, something you later rely on in court. Anything you do say and do may be given in evidence. Do you understand?”
The practical effect of the special caution is that if you refuse or fail to tell police about a fact which you later rely upon as a defence in court, the fact that you did not raise this with police earlier may be used against you unfavourably.
Importantly, the special caution can only be given in the presence of your lawyer. If your lawyer is not present when you speak to police, the special caution cannot be given. You cannot be given the special caution if you are under 18 years of age.
Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law.
Contact us if you require assistance.
