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Your Rights

Potts Lawyers > Criminal Law > Your Rights

If you are facing a charge it’s important to know what your rights are. Search through some of our Frequently Asked Questions regarding your rights below, or visit the information pages listed below.

Do I have the right to silence when dealing with police?

Yes. People have the right to refuse to answer questions from police. The only information you are obliged to provide to police is your name, address and date of birth. If police suspect you have committed a traffic offence or you have been in an accident they can also require you to provide your driver license information.

No negative inference can be drawn from you exercising your right to silence. This can’t later be used as evidence of your guilt.

It is important to remember that, in the early stages of a criminal charge, a significant power imbalance exists between you and a police officer.  When you speak to police during their investigation you do so without any knowledge of what evidence they already have (that you might not be aware of) and what they still need to prove.

If you decide to talk to police there is a serious risk that you may unintentionally provide them with information that will later be used against you in court. This applies whether you’re in a formal interview at the station or having a casual chat in the police car or on the side walk. There is no such thing as “off the record”.

Talking to police rarely benefits you for this reason and any benefits you may receive can still be obtained at a later date with the assistance of a lawyer.

For these reasons the standard advice we give to our clients is to exercise their right to silence and not to speak to police without first speaking to a lawyer.

Do I have any other rights when being questioned by police?

If police indicate that they wish to question you about an offence it is important to remember that you have the right to telephone a relative or friend to tell them where you are and ask for them to be present during your questioning. Section 418 of the Police Powers Responsibilities Act (Qld)requires police to give you the opportunity to do this.

You should also be given the chance to call a lawyer for some advice or to attempt to arrange for them to attend the station while you are questioned. Police must delay questioning you for a reasonable time to allow your lawyer or support person to arrive.

It is always a good idea to speak to a lawyer before participating in an interview with police. Our criminal law experts can be contacted at any time of the day or night on 0488 99 99 80, our 24 hour phone line.

If police do not give you the chance to telephone either a support person or lawyer before the interview it is often advisable to ask them for the questioning to be delayed until you are given this opportunity.

Where it is reasonably practical police must provide you with the opportunity to speak to your friend, relative or lawyer in private. It is always important to make sure what you are saying cannot be overheard or recorded by police.

Section 419 Police Powers Responsibility Act (Qld)recognises that you can have a friend or relative present when you are questioned. Your support person is able to give you advice and support throughout your interview and can only be excluded if they unreasonably interfere in the police process.

Under s 438 of the Police Powers Responsibility Act (Qld)you must be provided with a copy of any recorded interview within 7 days of it taking place. This is important evidence that you should keep and show to your lawyer.

When can police arrest me?

Police have the power to arrest a person for a wide range of reasons. If you are unsure whether you have been placed under arrest you should confirm this with police.

If police have taken you in to custody or asked you to accompany them to a station it is important to remember your right to silent and to ask to speak with a lawyer or support person. Police are required to help to organise this.

Once you have been arrested, section 391 of the Police Powers Responsibilities Act (Qld) requires police to inform you about the nature of the offence for which you have been arrested as soon as possible.

After you have been released the arresting officer must provide you with their details (including their name, rank and station).

How long can I be detained after I am arrested?

Once you have been arrested police can detain you for a reasonable time to question you about an offence. Section 403 of the Police Powers Responsibility Act (Qld) states that police cannot detain a person for more than 8 hours for this purpose unless they get permission from a magistrate or justice of the peace. Police cannot question you about the offence for more than 4 hours of the 8 hour period.

Can police search me without a warrant?

Yes. Sections 29 and 30 of the Police Powers Responsibilities Act (Qld) allow police to search you without a search warrant in a broad range of circumstances including if they reasonably suspect you have in your possession:

    • A weapon, knife or explosive;
    • unlawful dangerous drugs;
    • stolen, tainted or unlawfully obtained property; or
    • evidence of a wilful damage offence that may be concealed or destroyed.

Police may ask you for your permission to conduct a search. You do not have to consent.

If police inform you that, despite you not agreeing, they still want to search you, it is important to be polite and cooperative (this means not doing anything to prevent them from conducting the search – you don’t have to help them to carry it out). Refusing to allow police to search you or making it difficult for them to do so can result in you being charged with further offences.

Police may seize any item that they believe is evidence of the commission of an offence.

It is important to remember that police may be recording your conversation. Even if they do find something during their search you still have the right to silence.

Can police search my vehicle without a warrant?

Sections 29 and 30 of the Police Powers Responsibilities Act (Qld) allow police to lawfully search a vehicle if they reasonably suspect that you are using the vehicle unlawfully.

Police can search your vehicle in a broad range of “prescribed circumstances” including where they reasonably suspect that there is something in the vehicle that may be:

    • A weapon or explosive;
    • stolen or unlawfully obtained property;
    • a dangerous drug; or
    • something used for stealing, administration of drugs or housebreaking.

To search your car police must have had a “reasonable suspicion” about any of the above things at the time that they decided to conduct the search.

Police may ask you for your permission to conduct a search. You do not have to consent.

If police inform you that, despite you not agreeing, they still want to search your car, it is important to be polite and cooperative (this means not doing anything to prevent them from conducting the search – you don’t have to help them to carry it out). Refusing to allow police to conduct the search or making it difficult for them to do so can result in you being charged with an additional offence.

If you don’t believe police had any cause to be suspicious when they conducted a search of your vehicle you should consult a lawyer about whether the search was lawful.

Police may seize any item that they believe is evidence of the commission of an offence.

Can police search my house without a warrant?

Section 160 of the Police Powers Responsibility Act (Qld) allows police to enter and search a house without a warrant.

In order to exercise this power police must have reasonable suspicion that there is a thing at or about a place or in possession of a person at a place that is evidence of the commission of a “part 2 offence” and that this evidence will be concealed or destroyed unless a search is immediately carried out.

“Part 2 offences” include:

    • An indictable offence;
    • An offence involving gaming or betting;
    • An offence or attempting to take liquor into a restricted area or possession of liquor in a restricted area;
    • An offence against any of the following Queensland Acts –

(a)  Confiscation Act
(b)  Explosives Act
(c)  Nature and Conservation Act 1992
(d)  Weapons Act

After the search has taken place the police officer will be required to apply to a magistrate in writing for an order that authorises the search they conducted. This is called a “post-search approval order”.

Police may ask you for your permission to conduct a search. You do not have to consent.

If police inform you that, despite you not agreeing, they still want to search your home, it is important to be polite and cooperative (this means not doing anything to prevent them from conducting the search – you don’t have to help them to carry it out). Refusing to allow police to search your home or making it difficult for them to do so can result in you being charged with an additional offence.

“Committal”

More serious “indictable” offences must be finalised, either by plea of guilty or trial, in either the District or Supreme Court.

The “committal” process is designed to enable a matter to be sent from the Magistrates Court to one of the higher courts.

In order for a matter to be committed up to a higher court the prosecution must satisfy a magistrate that, based on the evidence, it is possible for a reasonable, properly instructed jury to find you guilty of the charges.

It is important to understand that this test does not look at whether you are “likely” or “more probable than not” to be found guilty, just whether it is possible.

The committal hearing can be an opportunity to test the prosecution’s case by cross-examining witnesses about the evidence they have given to support the charges.

If the magistrate is satisfied that a conviction is possible then your matter will be “committed” up to the District or Supreme Court. The Office of the Direction of Public Prosecutions will then have 6 months to prepare and present an indictment against you in the higher court.

Do you need legal help or consultance? Contact us now.

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