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Questioning, search and arrest

When a person is suspected of committing a crime the police have extensive powers to investigate the matter. Most of the police powers are contained in the Summary Offences Act 1953 (SA).

Technically, everyone has the power to investigate and prevent breaches of the law, and even arrest people who are committing a serious offence. A practical example of a citizen's arrest is a where a store security officer stops a shoplifter caught in the act.

In practice, however, it is usually the police who arrest people and the law has extended their power so that they can also arrest people who are about to commit an offence, who are planning an offence, or who the police reasonably suspect have committed an offence.

See our pamphlet Police and You 2016.pdf.

See also other Police Powers to search under different legislation as set out in our Duty Solicitor Handbook.

Being questioned

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.

Giving name and address

When can a police officer ask for someone's personal details?

A police officer who reasonably suspects a person has, is in the process of, or is about to, commit an offence can demand that person give his or her personal details. A person who may be able to assist in the investigation of an offence is also required to provide this information.

What information can police request?

A police officer can request the following personal details of a suspect or person who may be able to assist in the investigation of an offence:

  • full name
  • date of birth
  • residential address
  • business address

    Note: there are a few situations that you do have to provide additional limited information to police, including some information: for drivers of motor vehicles, in relation to firearms, to customs officers, and on licensed premises (see following sections on each of these).

Penalty

The penalty for refusing to comply or for giving a false name and/or address is a maximum fine of $1250 or imprisonment for up to three months [Summary Offences Act 1953 (SA) s 74A(3)].

Can police request identification?

If there is reasonable cause to suspect that the name or address given is false, the police officer may require the person to produce evidence, such as a driver's licence, to prove the details provided, [Summary Offences Act 1953 (SA) s 74A(2)].

Can police be asked to identify themselves?

A police officer who has required a person to state their personal details should identify himself or herself if asked to do so by either producing his or her police identification or stating orally or in writing his or her surname, rank and identification number.

Drivers of motor vehicles

Who can request personal details?

A police officer or an officer authorised under the Road Traffic Act 1961 (SA) can ask any person questions to identify the driver and owner of a motor vehicle [Road Traffic Act 1961 (SA) s 40V].

Penalty

It is an offence to fail to comply to a request for personal details or to provide false or misleading information or evidence. The maximum penalty for this offence is $5000.

It is a defence to the offence of failing to provide details of a business address if the person can establish they did not have a business address or that their business address was not connected (either directly or indirectly) with road transport.

What information can be requested?

The following information can be requested by a police officer (or an authorised officer):

  • full name
  • date of birth
  • residential address
  • business address

[Road Traffic Act 1961 (SA) s 40V]

The police or an authorised officer can also stop a vehicle and ask the driver who the owner is, the type of material being carried and details of the current or intended trip of the vehicle (e.g. intended route and destination) [s 40X].

Police also have the power to give general directions in order to regulate traffic.

Can identification be required?

If a police officer or authorised officer suspects on reasonable grounds that a personal detail provided is false or misleading, they may request the person to provide evidence of the correctness of the detail.

The Motor Vehicles Act 1959 (SA) requires a driver to produce a licence immediately if asked by the police. If not carrying the licence it must be taken to a police station within 48 hours. The penalty for failing to comply is a maximum fine of $1250 [s 96].

People on licensed and regulated premises

Proof of age

The police or an employee of a licensed or regulated premises who reasonably suspects that someone may be under 18 years can ask for proof of age [Liquor Licensing Act 1997 (SA) s 115]. This includes restaurants, cafes, shops, amusement parlours or arcades, or similar places of public entertainment.

Removal from premises if under 18

The police or an employee may use reasonable force to evict a person under 18 years, or who is suspected of being under 18 years, who possesses alcohol or is on the premises to consume alcohol [Liquor Licensing Act 1997 (SA) s 116]. A minor who re-enters the premises within 24 hours of being evicted, or fails to truthfully answer questions faces a maximum fine of $2 500.

Removal for disorderly behaviour

The police can also order anyone behaving in a disorderly or offensive manner to leave a place of public entertainment. A person who fails to leave or re- enters within 24 hours may be fined up to $2 500 or imprisoned for up to six months [Summary Offences Act 1953 (SA) s 73].

A person with a liquor licence may call the police to arrest anyone who is drunk, behaving in a riotous, indecent, threatening, abusive or insulting manner, or who is fighting [Summary Offences Act 1953 (SA) s 74].

Search for weapons

The police have the power to search anyone in, or attempting to enter or leave licensed premises or the car parking area for the premises for weapons by metal detector. See Powers to search for weapons.

Customs officers

A customs officer can demand information about the import or export of prohibited drugs. The penalty for the possession of such a drug, depending on the drug and intended purpose, can be up to $1 million or life imprisonment [Customs Act 1901 (Cth) s 233(1); He Kaw Teh v R (1985) 157 CLR 523].

Assisting an offender

Acting as an accessory

While there is no longer any general law requiring a person to voluntarily report a crime, it is an offence to act as an accessory (a person who assists in the commission of a crime) to an offender by:

  • assisting an offender to escape apprehension or prosecution, or
  • hindering the investigation of an offence (such as lying to the police), or
  • assisting in disposing of the proceeds of the offence.

[Criminal Law Consolidation Act 1935 (SA) s 241]

However, it is not an offence for certain professionals (for example, a lawyer, doctor or minister of religion) to give certain information or assistance to an offender as professional privilege may apply as long as it is not in the furtherance of a crime.

Penalty

The maximum penalty for acting as an accessory will be determined by the penalty applicable to the principal offence.

  • Where the maximum penalty for the principal offence is life imprisonment, the maximum penalty for an accessory is 10 years
  • Where the maximum penalty for the principal offence is 10 years or more (but not life), the maximum penalty for an accessory is 7 years
  • Where the maximum penalty for the principal offence is 7 years or more (but less than 10), the maximum penalty for an accessory is 4 years
  • In any other case, the maximum penalty for an accessory is 2 years or the same as the maximum penalty for the principal offence, whichever is the lesser

Bail guarantors

A person who guarantees a suspect’s bail, and who knows (or reasonably suspects) that the suspect has breached a term or condition of the bail agreement, must take reasonable steps to inform the police, or risk having to pay some or all of the amount guaranteed and may also be charged and fined [Bail Act 1985 s 17A]. The maximum penalty is $1 250.

Firearms

The police can ask for the full name, address and age (and proof) of anyone who has, or recently had, a firearm (or is with someone who has), and can demand to see a firearm licence immediately or within 48 hours at a police station [Firearms Act 2015 (SA) ss 55 and 56]. Even people who may incriminate themselves have to provide proof or answer questions about the location of a firearm or identify anyone who has or has had possession of a firearm [s 55(7)].

The police can stop, detain and search any person or vehicle (and seize firearms, parts, and accessories) if they reasonably suspect that a firearms offence is being committed or in other certain circumstances [Firearms Act 1977 (SA) s 57].

See further Common Offences, Weapons offences, Firearms.

Police cautions

Low-level criminal offending may be dealt with by way of a police caution as an alternative to being taken to court. Previously this option only existed for young offenders (see Formal Police Cautions and Informal Police Cautions).

The availability of this option is restricted to minor offences only and must be appropriate to the offence. In addition, an investigation of the matter must have determined that there would be a reasonable chance of conviction if the matter proceeded to court.

Use of an adult police caution must be approved by a Sergeant.

Factors that police will consider before making the decision to proceed with a police caution are:

  • the offender’s criminal history and whether they are subject to any court orders
  • whether the offender has previously had a police caution
  • what the victim of the crime thinks
  • what the police officers who detected the offence think
  • the offender’s attitude
  • the seriousness of the offence – cautions cannot be issued for serious offences such as major indictable offences, any aggravated offence or offences involving violence against a family member, any sexual offence or drug offence (with the exception of smoking or consuming cannabis)

Search and seizure

When can police search?

The police can search premises, vehicles and vessels, and seize property where:

What proof can police provide of their authority to search?

Some police carry general search warrants issued for six months at a time [Summary Offences Act 1953 (SA) s 67].

Use of reasonable force

If it is a lawful search and seizure, the police may use reasonable force and it is an offence to hinder them.

The police may also search a person who is under arrest and seize any item reasonably suspected of being unlawfully obtained or any item relating to a crime. Reasonable force may be used by the police to effect a lawful seizure [Summary Offences Act 1953 (SA) s 81(1)].

Power to enter premises

If released on a bail condition that the person must reside at a certain address, the police (or an authorised person) can enter that address to ascertain if the person is complying with the bail condition [Bail Act 1985 (SA) s 11].

Powers of customs officers

Customs officers have extensive powers to search any ship, boat or aircraft in any port or airport. With a warrant they may search any premises or any container and seize any goods they reasonably believe are forfeitable goods.

Can police keep property seized during a search?

Ordinarily, the police cannot keep property without an owner's consent, unless obtained as a result of an arrest, under a warrant, or if the property is material evidence needed to prove a crime. If property is seized and the person is later found not guilty, the property is returned. If, however, the person is found guilty, the property is either forfeited to the Crown (for example, a knife used to stab somebody) or, if it was stolen from another person, it is returned to its rightful owner.

Can police exceed their powers?

Where the police enter premises or seize goods unlawfully, it is a civil wrong. A court order can be obtained for the return of property and/or for payment of compensation. It is possible a court will allow property obtained unlawfully to be used as evidence to prove an alleged offence. The court must consider in the circumstances whether it is fair to the accused person or whether for public policy reasons the evidence should be admitted. While ordinary citizens can arrest in some circumstances only the police have the power to search and seize.

Arrest

An 'arrest' is where a person is detained by another and is not free to leave.

Do police have to have a warrant to make an arrest?

The police can arrest someone either with or without a warrant and the majority of arrests are made without a warrant. Alternatively, the police can choose to issue a summons for a person to appear in court rather than arrest them.

What is a warrant?

A warrant for a person's arrest is a written authority from a magistrate or judge for the arrest of a named person. It authorises all police officers to arrest the person named whenever that person is found. It can be issued for an offence or for failing to attend court at a nominated time.

A person arrested on a warrant is taken into custody and must be brought before a court. The person does not have to be taken to court if the warrant includes an order indicating that bail can be granted by the police [Summary Procedure Act 1921 (SA) ss 20 and 69].

When can police make an arrest without a warrant?

Under the Summary Offences Act 1953 (SA), the police can arrest someone without a warrant who:

  • is caught committing an offence [s 75]
  • is reasonably suspected of committing an offence or is about to be commit an offence [s 75]
  • is suspected of having an outstanding warrant [79]
  • is suspected of having committed an offence interstate (which would be an indictable offence or an offence punishable by up to two years imprisonment had it been committed in South Australia) [s 78A]

Other South Australian state laws also give police the power to arrest someone without a warrant who:

Under Commonwealth laws, the police can also arrest someone without a warrant who:

  • is reasonably suspected of committing an offence under a Commonwealth law and a charge could not effectively be dealt with by summons [Crimes Act 1914 (Cth) s 3W]
  • is believed, on reasonable grounds, to be involved in an offence such as smuggling or importing/exporting prohibited goods – this power extends to both police and customs officers [Customs Act 1901 (Cth) s 210]

What procedure must be followed if a person is arrested without a warrant?

People apprehended without a warrant must be delivered to the nearest police station as soon as possible [Summary Offences Act 1953 s 78(1)].

However, a person arrested without a warrant who is suspected of committing an indictable offence or an offence punishable by imprisonment of two years of more, can be detained for as long as it takes to investigate the offence or the prescribed period, whichever is the less [s 78(2)]. The detention can be extended up to eight hours if authorised by a magistrate. During this time the person can be taken to places connected with suspected offences to assist police in their investigation [Summary Offences Act 1953 (SA) s 78].

For other particular types of arrest, such as arrest in relation to intervention orders or breach of parole, particular procedures must be followed. For example, see Parole.

Alternatives to arrest

Apart from arresting someone, the police can also ask a person behaving in a disorderly or offensive manner in a place of public entertainment to leave [Summary Offences Act 1953 (SA) s 73].

A person who is under the influence of alcohol in a public place such that they are unable to take proper care of him or herself may be taken to a sobering up centre or police station before being released. This is not an arrest [Public Intoxication Act 1984 (SA) s 7].

Police arrest procedure

How do I know if I am under arrest?

An arrest is effected if words such as “you are under arrest” or “I am arresting you for ...” are used while at the same time touching or taking hold of the arrested person so that it is clear that he or she is being arrested.

However the police do not need to use these words to arrest someone. They ought to inform a person why they are under arrest and a person can be under arrest even if they are not touched, if the effect of the police action is to stop a person from doing what he or she wants. An arrest is only valid if the police reasonably suspect a person of either committing an offence, being about to commit an offence or having committed an offence.

Is being asked to accompany the police to a police station the same as being arrested?

No, not if it is merely a request. An arrest occurs when a person has no option but to accompany police because their freedom has been taken from them (whether effected by words or actions such as placing on handcuffs). Where someone voluntarily accompanies police in response to a request, this is not an arrest.

This is the case even if the person is accompanying police only because they think they will be arrested if they do not. However, police should make it clear that an arrest is not being made if that is the case. If police act in such a manner as to create the impression a person is under arrest when they are not, any subsequent information provided may be excluded by the courts.

Is there anything the police must advise me of?

A person under arrest should be told of the right to remain silent, to have a friend or relative told of their arrest and to speak to a lawyer and have an interpreter present if required.

Normally the arrested person must be informed of the true grounds of arrest within reasonable time. However, this is not necessary if the arrested person obviously and clearly knows the nature of the offence for which he/she has been arrested.

Reasonable cause required for arrest to be valid

Generally an arrest will be lawful if the officer who carries it out has reasonable cause to suspect an offence has occurred or will occur. The arresting officer may be mistaken as to the facts, and the person later released. Provided, however, the officer had an honest and reasonable belief in the relevant facts, then they have acted lawfully. For that reason no attempt should ever be made to resist arrest. Civil action can however be taken for damages or compensation if a wrongful arrest is made.

Use of reasonable force

A police officer may use as much force as is reasonably necessary to arrest the person. Unreasonable force is assault. Where there is a dispute as to the reasonableness of force used, it will be up to the court to decide whether the force used was reasonable in the circumstances.

Handcuffs or a similar restraint are reasonable force where the person has physically resisted arrest or attempted to run away.

Hindering and resisting arrest

It is an offence to resist or hinder a police officer in the execution of his or her duty – including the making of a lawful arrest [Summary Offences Act 1953 (SA) s 6]. Both hindering and resisting involve a conscious and voluntary act on the part of the person concerned. That is, the person concerned must have realised that his/her actions frustrated the police in performing their duty.

Hindering does not have to require physical interference, although it can involve this (e.g. physically preventing police from lawfully entering a property to speak to an occupant). It can include behaviour such as constant and unwarranted interrupting of police whilst attempting to question another person or acting as a ‘lookout’ to warn others of a police presence.

Resistance also requires some kind of positive action designed to defeat police in performing their duties. Although most commonly it involves physical force by the person being arrested, it is arguable that even traditional passive resistance techniques commonly employed in civil protests (such as sitting or lying down, linking arms with others and becoming inert and refusing to cooperate) can constitute resisting arrest as they also require physical action, even though not aggressive in effect.

Where direct force is used to resist arrest the likelihood of a police officer being assaulted during the process is high. Assaulting a police officer during the course of their duties is a serious offence attracting heavy penalties under either s 6 of the Summary Offences Act 1953 (SA) or s 20 of the Criminal Law Consolidation Act 1935 (SA).

Security guards and others

The right of a private citizen to make an arrest is rarely used in practice. Examples of when a person can make a citizen's arrest include where:

  • someone is found damaging (or committing some other offence to) the citizen's property [Summary Offences Act 1953 (SA) s 76]
  • a person is attempting to commit an offence, but once a person stops the attempt, the power to make the arrest ceases
  • if the citizen is offered property that he or she reasonably believes is stolen [Summary Offences Act 1953 (SA) s 77]
  • a store detective or security guard arrests a person committing an offence against his or her employer.

Suspecting someone of having committed an offence is not enough for a citizens arrest. The civilian must see the offender commit the offence. Anyone exercising a power of arrest must be careful because a person wrongly arrested can sue for false arrest and obtain damages or compensation. If a citizen's arrest is made the arrested person must be handed over to the police without delay and a full explanation given (in writing) of the reasons for the arrest.

Police powers after arrest

Rights after arrest

As soon as reasonably practical after an arrest police must advise the person arrested that:

  • anything said may be taken down and used against him or her in evidence,
  • a telephone call can be made (care should be taken that no one can overhear the call) to a relative or friend and they can be present during questioning [Summary Offences Act 1953 s 79A]. The police can exclude someone if they reasonably suspect that, as a result, an accomplice would avoid apprehension or that evidence would be destroyed or fabricated [s 79A]. This does not apply to having a solicitor present.
  • They may contact a solicitor.

After a person is arrested, an independent person should be told of the arrest and the place of detention. It is a good idea to have a lawyer present during an interview and no questions should be answered (other than those which must be) before the arrival/advise of a lawyer. If a solicitor, relative or friend attends a police station and a request to speak to the arrested person is refused, that person should take notes of the names of all persons spoken to and what was said. This may assist in casting doubt on the credibility of any interview conducted with the suspect.

If it appears that the arrest is unlawful, a verbal objection should be made to the officer in charge of the police station.

Police questioning and interviewing

Right to remain silent

Police questioning can be either formal (i.e. at a police station with a record of interview made of the proceedings) or informal. Formal interviewing usually occurs after an arrest has been made, however, informal questioning can occur under a wide range of circumstances (e.g. when pulling over a vehicle in relation to a traffic offence). Young people are particularly likely to be subject to informal questioning as they are often present in public places and it is common practice for police to stop and question them.

The right to remain silent is a fundamental right for all people when being questioned by police. It stems from the basic common law principle that it is the state’s role to prove the guilt of an accused person, not the accused’s. Additionally, no negative conclusion can be drawn from an accused relying on their right to silence when the matter goes before the courts.

An accused person who does not wish to say anything to the police should make that decision clear. They must state their name and address and tell the police something along the lines of ‘I do not wish to say anything further’.

If the police ask further questions, the accused person should repeat ‘I do not want to say anything’. If this is the advice received from a lawyer or legal adviser, they should say ‘I do not wish to answer any questions on the advice of my legal adviser’.

In reality invoking the right to remain silent can be extremely difficult. In high pressure situations such as a police interview people often feel an overwhelming need to provide information in the belief this will assist them and that the police will go easier on them because of their cooperation. It is also difficult for most people to assert themselves when dealing with people in authority. In addition, interviews will always start with questions about name and address which must be answered. At this point the accused person has already been placed in a position of having to cooperate and it can be very difficult to invoke the right to refuse to answer questions and be ‘uncooperative’ from this point onwards.

Also please note that you must answer certain questions in the following situations:

  • where police reasonably suspect a person has committed or is about to commit an offence (giving name and address);
  • drivers of motor vehicles;
  • proof of age of people on licensed and regulated premises;
  • to customs officers regarding drugs;
  • to avoid assisting an offender; and
  • in relation to firearms.

    (See the sections on Being questioned for the details about what you must answer in relation to each of these areas).

The risks of answering some questions but not others

It is extremely important that an accused person who makes a decision not to answer questions (apart from the ones that are required by law) should stick to that decision, rather than answer some questions and not others. Answering questions selectively, that is, answering some and refusing to answer others, may later be interpreted by a court as consciousness of guilt.

If a person decides to make a statement, a lawyer should always be consulted first so that the statement can be made in the presence of a lawyer or prepared with the help of a lawyer and then given to police. It may be in a person’s best interest to make a statement, for example, where a person has a valid explanation. However, this should only be done after obtaining legal advice.

Where police fail to observe proper procedure

If the police do not warn someone of the right to remain silent any evidence gained through questioning may not later be admitted as evidence against the person. Should the police overstep the mark in interviewing a person, again any evidence gained from their questioning may be excluded. For example, if a person indicates that he or she does not want to answer questions but the police ask more questions, or use an inducement such as promising bail in return for cooperation, and answers eventually are given, it is possible that those answers may be excluded.

Other rights after arrest

When a person is arrested they have the right to telephone a relative or friend to inform them of their whereabouts. They also have the right to have a friend, relative or solicitor be present at interview. However, police can refuse communication with another person or their attendance at interview where they suspect they are an accomplice or will assist the person in avoiding apprehension or destroying evidence.

Right to an interpreter

An arrested person has a right to be assisted by an interpreter if English is not their native language. Even where a person is assisted by an interpreter the right to remain silent still stands and they do not have to answer questions.

Questions that must be answered

It is important to note that there are some questions you must answer (for example, providing your name and address). The police should make it clear when they are asking a question you are required to answer.

Verbal admissions

The police are experts at getting information from people. A person may be told 'it will be easier if you make a statement', or 'bail will be granted more quickly if a statement is made'. Do not fall for tricks such as 'a co-offender has told us the whole story'. Any incentives offered by the police should be ignored if the person does not wish to answer questions.

Written and verbal statements can be used in evidence. Any conversation with the police can be used in evidence. Hence any suggestion that a conversation between a suspect and the police is 'off the record' should be ignored.

Police can also listen to and note down conversations held by a person with anyone else, except a lawyer, and use it later in evidence against the person.

Record of interview

What is a record of interview?

All police interviews are required to be recorded – this should be by video (audio visual) but can be an audio or written record. The record of interview (whether written or transcript from a video or audio record) is usually presented as evidence in court if the charge or charges proceed to trial.

Do I have to sign the record of interview?

Where a written record is made of an interview the person interviewed will be asked to read and sign it. There is no obligation to read or sign a record of interview.

You should always read the record of interview before signing and can refuse to sign if the police will not allow it you to read it.

Even if unsigned, if you indicate to the court that it was given voluntarily and is accurate, it may be held as an admissible, voluntary and accurate record of interview.

What if I want corrections made?

If you do not agree with information contained in the record of interview, you should ask that it be corrected. Any changes you have requested should then be initialled by you. Caution should always be taken when signing a statement as you are considered to be agreeing with all its contents when you sign.

When do police record interviews?

Under the Summary Offences Act 1953 (SA) 1953 if a person is charged with an indictable offence the police must, if it is reasonably practicable, make and audio visual record of the interview, or if that is not reasonably practicable, make an audio record, however if it is not reasonably practicable to make either then a written record may be made [s 74D Summary Offences Act 1953 (SA)].

Even if an accused does not wish to answer questions the police may ask them to state this on the audio visual or audio record. The police cannot force a person to be recorded and a person who does not wish to be taped should simply tell this to the police. If a person refuses to allow the interview to be recorded, the police may ask him or her to sign a form confirming the refusal. This is not unusual.

When a vulnerable witness is being interviewed as a witness to a serious offence against the person (such as murder, manslaughter, criminal neglect, a sexual offence, abduction, blackmail, unlawful threats to kill, and some other offences [see s 74EA]), police have an obligation to make an audio visual recording of the interview [s 74EB]. Vulnerable witness in this instance refers to a child of or under the age of 14 years or a person with a disability that adversely affects the person’s capacity to give a coherent account of their experiences and answer questions rationally [s 74EA].

Can I see / listen to the audio visual/ audio record of my interview? Can I get a copy?

Police must allow you to view the audio visual record and you are able to obtain a copy of the audio record part of it, but not the visual part. You are able to obtain and listen to an audio record of interview [see s 74D(4) Summary Offences Act 1953 (SA)].

Interviewing suspects with complex communication needs

Under the Summary Offences Regulations 2016 (SA) a person who is to be interviewed may be taken to have complex communication needs if the person has significant difficulty in communicating effectively with the interviewer, whether the communication difficulty is temporary or permanent and whether caused by disability, illness or injury. However this does not include if the temporary illness is due to intoxication [reg 18(2)].

If an investigating officer wants to interview a suspect who they believe may have complex communication needs, the officer must make the following arrangements as relevant:

  • for the suspect to be accompanied during the interview by a person who is a prescribed communication assistant;
  • for the suspect to use, or be provided with, a prescribed communication device for the purposes of the interview.

This is in addition to the requirements of section 74D of the Summary Offences Act 1953(SA) [reg 19(1)]. See further : Police Questioning and Interviewing.

A prescribed communication assistant is a person who provides communications assistance to suspects or vulnerable witnesses while being interviewed and includes communication partners (a person or class of people approved by the Attorney General to be this) and any other person approved for the purposes of the interview by the interviewer [reg 22(1)] .

A prescribed communication device includes:

  • text, symbol or picture boards;
  • speak-and-spell communication devices;
  • voice output communication devices;
  • tablets, laptops or other computers or devices equipped with software designed to assist persons with complex communication needs to communicate more readily; and
  • any other device, whether electronic or not, as may be approved for the purposes of the interview by the interviewer [reg 22(2)].

However the interview can still go ahead with out a prescribed communications assistant or device if it is not reasonably practicable to have one there (for example one is not available); and the circumstances mean that it is not worth postponing the interview until those arrangements can be made [reg 19(2)-(3)].

Powers to search and examine

Powers to search and examine

There are two pieces of legislation that deal with police powers to search, make physical examinations of suspects and take samples - the Summary Offences Act 1953 (SA) and the Criminal Law (Forensic Procedures) Act 2007 (SA).

There is some overlap between the Acts but in practice procedures that are routinely used to identify a suspect, such as fingerprinting and photographing, are governed by the Summary Offences Act 1953 (SA). Less commonly performed procedures, such as the taking of DNA samples, are governed by the Criminal Law (Forensic Procedures) Act 2007 (SA).

Searches

When a person is taken into custody, the police may search and take anything they find upon her or him. Certain procedures have to be followed by police to ensure this is done in a humane way and with care [see generally procedures in s 81 Summary Offences Act 1953 (SA)].

Physical examinations

Any reasonable examination can be carried out by a police officer or either a doctor or registered nurse (acting under direction of police), and reasonable force may be used. However for an intrusive search ( an internal search) has to be carried out by a doctor or registered nurse [s 81(2) Summary Offences Act 1953 (SA)].

People must be told before an intrusive search medical examination is arranged, and may have a medical practitioner of their choice witness the search (at their own cost) [Summary Offences Act 1953 (SA) s 81(2)(c)].

Taking fingerprints, voice recordings and handwriting samples

Once a person is suspected of a serious offence the police may take prints of hands, fingers, feet or toes [s 14 Criminal Law (Forensic Procedures) Act 2007 (SA)]; and/or make a recording of the person's voice and request a sample of handwriting [s 81 Summary Offences Act 1953 (SA)]. This must all be done humanely [see s 81(4g) Summary Offences Act 1953 (SA); s 21 Criminal Law (Forensic Procedures) Act 2007 (SA)].

The evidence is taken to help identify a person. Anyone who refuses to comply with a reasonable direction in relation to the obtaining of a sample of voice or hand writing faces a maximum penalty of three months imprisonment or a fine of $1250 [s 81(4e) Summary Offences Act 1953 (SA)].

Further information on suspects procedures is available in the Duty Solicitor Handbook.

Taking DNA

DNA samples

The law relating to the taking of samples for DNA testing is contained in the Criminal Law (Forensic Procedures) Act 2007 (SA).

The taking of DNA samples by police is referred to as a simple identity procedure and samples are obtained by buccal swab (swab inside the cheek) or finger-prick [s 3].

A suspect or offender has no right to refuse a request for a simple identity procedure and it is an offence to obstruct or resist [see s 32]. A suspects procedure may be carried out on persons whether or not they are in custody [see s 14(3)]. The police may issue directions for a person to attend a police station for the purpose of providing a DNA sample [s 29(1)]. A simple identity procedure does not require the authorisation of a senior police officer [see s 14].

See further the Duty Solicitor Handbook on Suspects Procedures.

Different laws and procedures about taking DNA apply to offenders, and volunteers and victims.

Line-ups

Since the introduction of s 34AB of the Evidence Act 1929 (SA), which has the effect of placing equal evidentiary weight on identification evidence obtained through a photographic array (a photo board of similar-looking people), it is likely that line-ups will be rarely used in South Australia. Photographic arrays do not require the consent of the suspect.

Right to refuse to participate in a line-up

A person has a choice about whether to participate in a lineup and legal advice should be obtained before agreeing to take part if the person is a suspect.

What is a fair procedure for a line-up?

In an identification parade a suspect must be placed amongst nine other people of similar physical type. For example, if witnesses describe a suspect as having a dark complexion, it would be unfair to place him in a line up with persons of fair complexion. A suspect can choose where to stand in a line-up. If there is more than one witness, the suspect can move to a different place in the line before each new witness enters the room.

Practice where there is more than one witness

It is important if there is more than one witness that they be kept separate from each other so they cannot discuss the process. This prevents one witness contaminating the mind of another witness as to who the suspect may be. If a witness fails to identify a suspect in a line up, this can be used in court as evidence of the person's innocence.

Evidence of refusal to participate

Evidence that a person refused to take part in an identification parade is admissible in court. A parade conducted more informally (in a crowded area, simply because it is less effort for the police) is also generally admissible provided it is not unduly unfair to the person being identified. An accused person should always be given the opportunity to take part in an identification parade. In practice, they do not often occur.

Laying of charges

After the police complete their investigation, the police officer in charge of the matter either decides that no charge is to be laid and releases the person, or charges the person by saying that he or she has committed an offence. The accused is usually given a copy of the charges. If not, a copy should be requested, as well as a copy of any bail agreement which may have been entered into.

When legal rights are not given

If a person's legal rights are denied, or a statement is obtained in unfair circumstances resulting in a confession or admission by the person, the court can decide not to admit that evidence. Anyone representing an accused person should ensure that the person was not denied any legal rights.

An immediate complaint should be made to the officer concerned and his or her superior.

A complaint may also be lodged with the Office of Public Integrity, see complaints against police. The longer a complaint is delayed, the easier it is for the police to suggest in any later inquiry that the complaint is untrue. Before lodging a full complaint it is advisable to talk to a lawyer if your complaint relates to either yourself or another being charged with an offence arising from the incident. Verbal complaints should be confirmed in writing, if possible, by a lawyer. A full statement of what occurred should be made.

However, if a person is charged with an offence, legal advice should always be obtained before filing a police complaint, as the statement can be used in proceedings against the person.

If the person has been injured by the police, a doctor should be seen as soon as possible and if any external injuries are evident, photographs should be taken, preferably by a professional photographer or pathologist, Anyone who saw the person not long before the arrest should be asked to look at the injuries and to state (in writing) whether they saw them beforehand.

Sometimes civil court action can be taken, for example, trespass to person or property, assault, wrongful arrest or unlawfully restraining someone false imprisonment.

Your rights

Always try to get legal advice before speaking to police - there are very few questions that you have to answer; you do not have to answer questions in most circumstances, however you must provide the following information when asked:

  • your personal details i.e. your full name, date of birth and address;
  • the identity of the driver of a motor vehicle; and,
  • whether you are the owner of a firearm and, if not, identify the owner and answer questions in relation to the firearm including identifying other persons who have had possession.

If the police want to search you, your car or home:

  • ask what offence they are investigating
  • ask to see a search warrant
  • always ensure that you are present when they conduct the search
  • the police may only search you if they suspect you have evidence in relation to a crime or if you are under arrest
  • the police must give you a receipt for any seized goods – as soon as possible after seizure compare the receipt with the goods taken

If the police want to arrest you:

  • ask what you are being arrested for
  • do not struggle or argue with the police
  • make a note of the numbers of the police if they are violent or behave improperly with you
  • remember that everything you say to the police will be recorded by them at some stage and may be used against you even if the police do not tell you that they are going to do so. There is no such thing as an 'off the record' conversation
  • if you are not under arrest do not agree to go with the police anywhere unless you want to
  • if the police say you are not under arrest you are free to leave
  • always politely ask the police why they are doing anything
  • the police can only obtain your fingerprints or take your photograph with your consent unless you are arrested
  • DNA samples can be requested without arrest if you are a suspect to a serious crime or have previous convictions (even for non-serious crimes)
  • make a note yourself of what occurred as soon as possible
  • don’t sign anything at the request of police unless you have read it in full and agree to the contents

If a civilian (such as a store detective) wants to arrest you:

  • he or she can only do so if you were observed committing a crime by the person arresting you
  • that person can only take you to a police station (although it would be considered reasonable to wait for the police to attend)
  • that person has no right to ask you any questions and you are not obliged to answer any if they do
  • that person has no right to search you or your belongings, they must wait until the police arrive

Warrants

When it appears to a court that a person has broken a term or condition of bail the court can issue a warrant for the person's arrest. These are known as warrants of apprehension.

First Instance Warrants

These are warrants of apprehension issued by magistrates courts when a defendant has failed to appear in court on the date stipulated on either a summons or a bail agreement. If such a warrant is issued it is advisable for a defendant to surrender at a police station and ask to be brought before a court for a fresh application for bail. Bail can be more difficult to obtain if there is a history of breaches and subsequent warrants. It may therefore be advisable that the defendant attends the police station with a guarantor who can be present in court for the application. The defendant should also bring any medical certificates or evidence that supports a legitimate reason for non-appearance.

Bench warrants

These are warrants of apprehension issued in a higher jurisdiction (District Court or Supreme Court).

They are issued because the defendant either failed to answer bail in that jurisdiction following committal of an indictable matter or failed to answer a summons to appear in relation to estreatment of bond proceedings.

Parole warrants

These are warrants issued by the presiding or deputy presiding members of the Parole Board of South Australia or a Magistrate.

These are issued where there are reasonable grounds (on their own part, that of the Chief Executive of the Department for Correctional Services or a police officer) to suspect that a person has breached parole [see Correctional Services Act 1982 (SA) ss 76(1)(b), (2)(b)(i) and 76A(1)(a)]. The person is detained until they appear before the Parole Board [see ss 76(4) and 76A(2)].

Interstate warrants

Courts in other States may issue warrants that are enforceable in South Australia. These may be for unpaid fines or for offences not yet finalised. A person arrested on such a warrant has a right to apply for bail.

Warrants of commitment for unpaid fines

Warrants known as warrants of commitment were once issued in South Australia for unpaid fines. The power to issue such warrants no longer exists in this State.

Aboriginal and Torres Strait Islanders

When an Aboriginal or Torres Strait Islander is arrested, the Officer in Charge of the police station where the person is taken should ensure that:

  • information on the Aboriginal Legal Rights Movement (ALRM) services must, if available, be given
  • the name and the nature of the charge is supplied to the ALRM, if the accused consents
  • every practical effort to obtain a field officer from ALRM to arrange bail or give legal advice is made, if the accused requests
  • any telephone call (apart from a local call) be charged to the accused or, if he or she cannot afford to pay, to the ALRM if they agree to accept a reverse charge call
  • field officers assisting an accused obtain the same facilities as a lawyer, relative or friend
  • if questioning a tribal or semi-tribal Aboriginal about a serious offence, either a lawyer or an Aboriginal field officer is present. In special circumstances where the expertise of either the Department for Education and Child Development or the Department for Communities and Social Inclusion is needed, an officer of the Department may be called. If possible, those attending should have some understanding of the accused's language
  • if questioning an Aboriginal under the age of 18 years about a serious offence, a parent, guardian or Aboriginal field officer is present whenever possible.

Children

Children have all of the rights of adults upon arrest and some additional rights to reflect their vulnerable position. If a child is under 18 years or appears to have a mental illness or an intellectual disability, before asking any questions the police should do their best to ensure that a parent or guardian is present.

The arresting officer must, as soon as practicable after the arrest, explain the nature of the allegations and inform the child of their right to seek legal representation.

The parent or guardian should be called in as soon as possible after detention of the child. Where a child has been apprehended and does not nominate a solicitor, relative or friend to be present, or there is some practical problem in having anyone attend, it is up to the arresting officer to take all reasonable steps to try and ensure that a guardian (or other adult nominated by the youth) is notified of the arrest and invited to be present during any interrogation or investigation whilst the youth is in custody. In other words, the fact that the child has not nominated anybody does not mean that the police should leave the matter there [Young Offenders Act 1993 (SA) s 14], see Young offenders.

    Questioning, search and arrest  :  Last Revised: Fri Nov 17th 2017
    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.