If you are suspected of having committed a criminal offence and you refuse to voluntarily participate in an electronically recorded interview with police, it is possible that you may be detained for the purpose of questioning. This can be a confronting experience and it is important that you are aware of your rights, including your right to remain silent.
Right to silence not affected
You have the right to remain silent in a police interview when asked questions by a police officer. However, you must provide your name, address and, in some circumstances your date of birth, to a police officer if they ask you to. You may be charged with the offence of contravening a direction or requirement of a police officer if you refuse to do so.
The right to silence (or right to remain silent), also known as the privilege against self-incrimination, is well entrenched at common law and in legislation, including the Police Powers and Responsibilities Act 2000 (Qld) (PPRA), the Evidence Act 1977 (Qld), and the Human Rights Act 2019 (Qld).
If you are detained by police for the purpose of questioning, you still have the right to silence. You cannot be forced to answer a police officer's questions beyond providing your identifying particulars. If you would like to know more about your right to silence, you can read our blog "Do I have to answer police questions?"
When can I be detained for questioning by police?
The PPRA provides a police officer with the power to detain a person to question them about:
- if the person is in custody after being arrested for an indictable offence, the offence that the person has been arrested for; or
- in any case, any indictable offence the person is suspected of having committed.
If the offence being investigated is not an indictable offence, you cannot be detained for questioning in relation to it. For example, you cannot be detained for questioning in relation to a regulatory offence, or a simple offence such as trespassing or public nuisance under the Summary Offences Act 2005 (Qld).
How long can I be detained for?
You can be detained for a "reasonable time", which must be less than 8 hours. What is reasonable will depend on various circumstances including (but not limited to):
- whether detention is necessary for the investigation;
- the number, complexity and seriousness of the indictable offences under investigation;
- whether the person is willing to make a statement or answer questions;
- the person's age, physical capacity and condition, and mental capacity and condition;
- for an arrested person, any time spent questioning the person before the arrest; and
- the need to delay or suspend questioning for "time out".
You must not be interviewed for more than 4 hours out of the 8 hour period of detention.
The police can make an application to a justice of the peace or magistrate for an extension to the detention period. You, or your lawyer, must be given an opportunity to make submissions about the extension before a decision is made.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
