When investigating a crime, the police may question anyone.
It is a fundamental principle of criminal law in Australia that a person may refuse to answer all questions put to him or her and legal advice should be sought before answering any questions. There are, however, a number of exceptions to this rule requiring that a person answer certain questions. This can apply whether they are a suspect or not. These exceptions include:
- giving name and address where police reasonably suspect a person has committed, or is about to commit, an offence;
- certain questions for drivers of motor vehicles;
- showing proof of age on licensed and regulated premises;
- questions to customs officers regarding drugs;
- to avoid assisting an offender; and
- some questions in relation to firearms (these exceptions are all explained further in the sections below)
It is advisable to co-operate with the police and be polite, answering those questions which must be answered, but to not answer any other questions.
If there is anything a suspect wants to tell the police, such as an alibi, they should first talk to a lawyer so that the lawyer can help provide the information to the police. It is a good idea to give that information (especially about an alibi) to police as soon as possible so that it does not look like it has been invented later.
Questioning at a police station without arrest
Police often ask someone to accompany them to a police station. This is only an invitation and the person does not have to go with the police unless arrested. The police can only force someone to go to a police station if they are under arrest.
A person who refuses to go with the police may be arrested and charged, and taken into custody only if the police reasonably suspect that person of committing or having committed an offence, or of being about to commit an offence. Otherwise the police cannot detain the person.
Detention without making a lawful arrest is false imprisonment for which the police can be sued. It may also mean evidence obtained is excluded from evidence in a trial.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.