1. WHEN ARE POLICE ALLOWED TO ARREST ME?
Police can only arrest you if:
- they believe you commit an indictable offence;
- they have good reason to believe you committed or are about to commit an offence;
- they have stopped you for a breach of the peace; or
- they have a warrant for your arrest.
2. DO I HAVE TO SPEAK TO POLICE WHEN UNDER ARREST?
No, you do not have to speak to the police. You have the right to remain silent or say: "No Comment". Whatever you say can and will be used against you in Court. Usually, at the police interview, they will have audio/video recording equipment switched on. You should only tell the police your name, address, and date of birth and nothing else.
3. WHAT DO YOU DO IF ENGLISH IF NOT YOUR FIRST LANGUAGE AT THE POLICE INTERVIEW?
If English is not your first language, you must request an interpreter for your language. If the police do not provide an interpreter, you can refuse to participate in the interview and indicate that you do not understand English. Only proceed with the police interview with an interpreter, because you may misunderstand specific questions and say something that can be damaging to your case.
4. DO I HAVE TO GIVE MY FINGERPRINT TO POLICE?
If police are interviewing you for an offence, they have a right to take your fingerprint and DNA samples. They can use reasonable force to obtain your fingerprint without your consent if you refuse. However, if the police do not charge you with an offence, the police are required to destroy your fingerprints within six (6) months.
5. CAN POLICE SEARCH ME?
Police can only search you if they have a warrant or if you consent to the search. The police cannot use force to search you. Police can also only search you personally where:
- they suspect you are in possession of drugs,
- they suspect you intend to supply drugs to someone under 18,
- you are under 18, and they suspect you are in possession of a volatile substance, or
- they have reasonable grounds to suspect you have committeda serious offence.
6. CAN POLICE MAKE ME TAKE PART IN AN IDENTIFICATION PARADE?
No, participation in an identification parade is voluntary. You cannot be forced to do so. If you participate in an identification parade, the witness may mistakenly select you when you did not commit the offence.
7. CAN POLICE SEARCH MY PROPERTY, SUCH AS MY CAR OR HOUSE?
The police can search your property if you agree, or the police have a warrant to do so.
If the police do not have a warrant, you do not need to open the door to the police; you can speak to the police with the door closed and ask the police to leave your house and/or property. However, if the police forcibly enter your home and/or your property, the police will commit trespass. Trespass is an offence where a person enters or remains on a property without authority.
8. CAN I REFUSE TO GO WITH POLICE TO THE POLICE STATION?
Yes, you can refuse to go with the police. However, if the police arrest you, you cannot resist, or the police will charge you for resisting an arrest.
9. WHAT SHOULD I DO IF I AM ARRESTED?
If the police arrest you, they must tell you why you are being arrested. You should cooperate with the police. However, do not admit to your offence and instead get legal advice. If you admit to your offence, your admission will be admissible in Court.
10. WHAT ARE MY RIGHTS AFTER ARREST?
After the police arrested you, you will be taken to the police station and put in custody. When you are at the police station:
- the police will interview you.
- you have the right to speak to a lawyer and seek independent legal advice.
- you have the right to request an interpreter (if necessary).
- you have the right to remain silent, and whatever you say can and will be used as evidence in Court, including any admission to your offence.
11. HOW LONG CAN THE POLICE KEEP ME IN CUSTODY?
The time you spend in custody depends on the severity of your offence. The police will keep you in custody for a reasonable time before likely releasing you pending ongoing investigations, which occurs before they charge you. Once the police charge you, the police will serve you with a police's summons or charge sheet. Please bring along your police documents when you see our criminal lawyers.
12. WHAT IF I AM UNDER 18 YEARS OLD?
Children under 10 years old
Under the law, "it is conclusively presumed that a child under the age of 10 years cannot commit an offence" (section 344 of the Children, Youth and Families Act 2005).
Children from 10-14 years old
The prosecution must present a case in which children above the age range must understand that they have committed a crime. Depending on the nature of their crimes, the children may not be found guilty in court because of their age.
Children from 14-18 years old
Children aged 14 to under 18 years old will have their criminal matter (Summary Offence) dealt with by the Children's Court. The higher courts will deal with indictable offences (for children aged 18 years of age or older).
13 WHAT IS A STATEMENT, AND DO I HAVE TO MAKE A STATEMENT TO POLICE?
A statement is a written record of your narrative of the events of your offence recorded by the police at the police station. The police cannot force you to give a statement. However, whatever is written in the statement can be used against you as evidence in Court. For example, if you made an admission in your statement, you may be found guilty in Court because of your admission.
14. CAN I COMPLAIN ABOUT POLICE BEHAVIOUR? SHOULD I GET THE POLICE OFFICER'S DETAILS?
Yes, ask for the police officer's name, rank, and the office where they work. You can make a complaint to Victoria Police by completing an online complaint form. An online complaint can be made anonymously, personally, or through a support person such as a lawyer, social worker, community worker, relative, or friend. If you provide a contact email address in the form, you will automatically receive a reference number for tracking purposes.
15. WHAT IS A CRIMINAL DEFENCE LAWYER?
A criminal defence lawyer is a person accountable for providing legal representation to the Accused, who is someone who has been alleged to commit a crime. The defence lawyer will protect their client's rights, advise them of their options and the law and ensure their clients get a fair trial.
16. IF I AM INNOCENT, WHY DO I NEED A LAWYER?
You should engage a lawyer even though you think that you are innocent. In many cases, people are quickly convicted for even simple crimes. A defence lawyer has the expertise and knowledge of the law and can examine your alleged charges in detail. Your lawyer can assess your matter carefully, negotiate with the prosecution on your behalf, and deliver a desirable outcome for your case. In addition, you will be less stressed thinking about your issue because you have engaged a lawyer to represent you.
17. WHAT IS A SUMMARY OFFENCE?
Summary offences are less serious crimes, such as traffic offences. They are dealt with in the Magistrates Court of Victoria. The maximum penalty for a summary offence is two years imprisonment. Under a summary offence, the prosecuting agency must start a court proceeding no later than 12 months after the offence.
18. WHAT IS AN INDICTABLE OFFENCE?
Indictable offences are more severe and have longer terms of imprisonment or higher fines. They are dealt with in the higher courts, such as the County and Supreme Courts, although some may be heard summarily in the Magistrates' Court.
19. WHAT SHOULD I DO IF I AM CHARGED?
If you are charged with a criminal offence or were served with police documents (Charge Sheet and Summons or Preliminary Brief), immediately contact your lawyer for independent legal advice.
20. WHAT IS BAIL AND HOW DOES IT WORK?
Bail is where you are released from police custody subject to certain bail conducts, such as showing up at Court on a given date. If you fail to attend the Court hearing, you will have breached your bail condition(s), and the presiding Magistrate may issue an arrest warrant for you.
21. WHAT IS A COMMITTAL HEARING?
At the committal hearing, the Magistrate will review the evidence and decide if sufficient evidence exists to substantiate a conviction for the offences and to stand trial. Each party may call their witnesses to give evidence in Court and may make submissions on the strength of the evidence provided. The Magistrate may also decide whether the matter should be heard at the County or Supreme Court or the charges that can be heard and finalised at the Magistrate Court. However, if there is insufficient evidence, the case may be dismissed, and the accused be released.
22. DO I HAVE TO SPEAK IN COURT?
If have a lawyer to represent you, you do not need to speak in Court, as your lawyer will speak on your behalf. If you have anything you want to say to the Magistrate, please instruct your lawyer.
23. WHAT ROLE DOES MY LAWYER PLAY IN MY CASE?
When you engage a lawyer, your lawyer is there to assist you every step of the way by providing you with the appropriate legal advice. They will answer your enquiries, listen to your concerns, analyse your case, and advise you of your best options.
24. WHY DO I NEED A LAWYER?
A lawyer will give you legal advice and represent you in Court. A lawyer will guide and advise you on your legal rights. You will be in a better position to make informed choices due to the advice and likely possibilities set out for you by your lawyer.
25. CAN I REFUSE A PRELIMINARY BREATH TEST (PBT) IN VICTORIA?
Under Victorian traffic law, it is an offence to refuse a PBT, and the person who refuses a PBT may be charged in Court. The penalty for refusing a PBT carries a fine or imprisonment and a mandatory licence suspension of 24 to 48 months.
26. WHAT SHOULD I DO IF I AM ARRESTED BY THE POLICE?
If you are arrested by the police, do not resist arrest, and ask the police why you are being arrested. When you arrive at the police station, tell the police that you want to speak to a lawyer.
27. WHAT SHOULD I DO IF I AM IN COURT FOR A CRIMINAL HEARING AND DO NOT HAVE A LAWYER?
When you are in Court, tell the Magistrate that you would like to adjourn the matter and hire a lawyer.
28. I HAVE A FAMILY VIOLENCE INTERVENTION ORDER HEARING. DO I NEED A LAWYER?
It would help if you had a lawyer because a lawyer can explain the procedures, advise you of your options and speak on your behalf in Court concerning your Family Violence Intervention Order hearing.
29. I HAVE A FAMILY VIOLENCE INTERVENTION ORDER HEARING. DO I NEED TO AGREE FOR THE ORDERS TO BE MADE BY THE MAGISTRATE?
No, you do not need to consent or agree to the orders being made. You can disagree with the orders being made. You should seek independent legal advice regarding your Family Violence Intervention Order matter.
30. I AM THE RESPONDENT OF AN INTERVENTION ORDER HEARING. MUST I ATTEND?
Yes, if you do not attend the listed hearing, the Magistrate may make an order in your absence.