Police

Disclaimer: The material in this factsheet is a general guide only, not legal advice. For legal advice about your own particular situation we encourage you to call the Free Legal Helpline on 1300 366 424. The information was correct at the time of publishing (March 2016), however may change without notice.
 

Acknowledgments:

The Legal Services Commission gratefully acknowledges the assistance of the National Children’s and Youth Legal Centre in allowing the Legal Services Commission of South Australia to use and adapt existing content.
 

In this section you will find information on:

  • Interactions with police
  • Police interviews
  • Police searches
  • Arrest
  • Complaining about police behaviour
     

Interactions with Police

I have come into contact with the police. What should I do?

If you come into contact with the police, it is a good idea to make sure you stay calm and respectful. Being aggressive or violent with police will probably make things worse even if you have done nothing wrong. You can get into trouble just for behaving badly with the police.

For example, if you swear at or even around the police, spit in the direction of the police on purpose, or if you try to dodge police while they are trying to arrest you, you could be charged with different criminal offences. Any offences committed against a police officer will be treated more seriously by the courts (as an aggravated offence).

If you feel like you are being treated unfairly by them, there are ways to fix this later on by getting legal help. It is a good idea to take notes of what happened so that you can make a complaint later.

 

I haven’t done anything wrong. Can the police tell me to leave an area or place?

Sometimes the police can ask you to leave a place and not come back.   This is called being told to move on.  You can be told to move on from a place by the police if they believe on reasonable grounds that you:

  • Have committed a crime or are about to;
  • Are getting in the way of other people or cars;
  • Are putting other people in danger; or
  • Are likely to be a nuisance to others.

If you don’t move on after police tell you to, you could be fined up to $1,250.

 

I haven't done anything wrong but the police have asked me for my name and address. Do I have to give it to them?

You have to give your name and address if:

  • The police think you have broken, or are breaking, the law;
  • The police think you can help them investigate a crime;
  • You are carrying a firearm;
  • The police have stopped you for a breath test when you’re driving; or
  • You are at a place that serves alcohol.

It is against the law to give the police a fake name, address, or date of birth. You could be fined up to $1,250 for giving fake personal details.

Besides giving the police your name, your date of birth and address in the situations above, you do not need to say anything else. You don’t have to give them your mobile number. The officer must tell you that you don’t need to answer their questions, but that anything you do or say can be used later as evidence (proof that you did something) in court. However there are a few situations that you do have to provide limited information to police, including:

  • If you are the driver of a motor vehicle you must tell the police your name and address and the name and address of whoever owns the vehicle;
  • A driver must show their licence either by producing it on the spot or at a police station within 48 hours (if you are hold a provisional, probationary, interstate or international licence or a learners permit, you must carry your licence with you at all times when driving); and
  • Anyone must answer any question that would help to identify the driver or owner of a motor vehicle.

As well as this driving related information there are some questions that you  have to answer about firearms – see s 30 Firearms Act 1977 (SA).

If you think the police do not have a good reason to ask for your details, or to search you, it is a good idea to ask for their name, rank, and place of duty. The police, by law, have to tell you this information. You should write this down or put it in your phone so you don’t forget.

You can also politely ask the police officer questions such as ‘Can you tell me why you need my name and address?’

Remember, there is no such thing as an off the record conversation with a police officer.
 

Police interviews

When can I be interviewed by the police?

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.

If the police ask you to go to the station with them, you should ask if you are under arrest.  If you aren’t under arrest, you don’t have to go with them to the police station.

If you refuse to go with the police you may be arrested, charged, and taken into custody but only if the police reasonably suspect that you are committing or have committed an offence, or are about to commit an offence. Otherwise the police cannot detain you.

Before the police interview you, they have to tell you that you can call a friend or family member and a lawyer. Also, you will normally be allowed to have a parent or carer with you.

If you are under arrest, the police can generally keep you in custody for up to 4 hours without charging you.

Do I have to answer the questions in an interview?

You also have the right to remain silent. This means you don’t have to say anything in an interview except your name and address. However the questions about driving and firearms (as listed in the section) above have to be answered.

If you decide that you want to make a statement it is still a good idea to get legal advice first.

What if I am an Indigenous person?

If you are an indigenous person then you should let the police know this.  There are special rules about how police must treat indigenous people.  If you have any questions or problems you should call Aboriginal Legal Rights Movement Inc on the following numbers:

  • Adelaide Office: phone: (08) 8113 3777
  • Free call number: 1800 643 222

The police interviewed me and they showed me a written record of it and asked me to sign, did I have to?

If you are interviewed by the police at the police station a written record will be made of the interview, and you will be asked to sign it. However, there is no obligation to sign a record of interview.

Signing a record of the interview is considered to be agreeing to its contents. You should always read exactly what the record says before signing and you should refuse to sign it if you’re not given the opportunity to read it. If you don’t agree that the record is an accurate account of what was said in the interview then you shouldn’t sign it. You can ask for the written record to be corrected.

 

Police searches

When can I be searched?

In South Australia Senior Police have General Search Warrants.  If the police don’t have a warrant (special permission from a court), they can still search you if:

  • You are taken into custody by police because they have reasonable cause to suspect that you have a weapon or dangerous item, or something that can be used as evidence for a crime;
  • They think you have something that has been stolen or otherwise illegal;  or
  • If the police have a warrant, they can stop and search you or your house.

How can I be searched?

Police can frisk search you (by patting you down and asking you to remove your jacket) if they reasonably suspect that you have something on you which is stolen, is evidence of a serious crime, or if you have drugs on you.

If you have been arrested, the police can also strip search you (intimate search) and do a cavity search (intrusive search). A strip search is when you are asked to remove some or all of your clothes.  A cavity search includes searching your genital area including your anus or vagina.  Unless it is urgent, cavity and strip searches have to be done by someone of the same sex as you and there shouldn’t be any more people there than is necessary for the investigation. A cavity search must only be carried out by a medical practitioner or a registered nurse, not a police officer. If you’d like to call your own medical practitioner or registered nurse to also be present at the search, you should be given a reasonable opportunity to arrange this.

When you are under 18, strip and cavity searches can only be done if there is an adult present that you have called to be with you. This can be a lawyer, relative or an adult friend. If the police think it is urgent to do the search, they may not allow you to call someone.

Remember, you can ask questions such as ‘Can you tell me why you’re searching me?’ If you think the police have behaved inappropriately, you can make a complaint afterwards rather than stand there and argue with them. If you resist, the police may use force.

If a strip search is to be carried out on someone who’s native language is not English and who is not reasonably fluent in English, that person must be told that he or she may ask for help by an interpreter. If that person requests the assistance of an interpreter, the search must not be carried out unless an interpreter is present. However, if the police think it’s urgent, they may not wait for an interpreter.

The police have taken my stuff. Can they do this?

If you are under 18, the police can take and keep any alcohol that they think you have been drinking in public (if you are not with a parent or guardian) and also any cigarettes they find on you.

If the police take something of yours that you think is not illegal for you to have, you can ask the police for it back. If the police do not return it to you, you probably will need to ask for it back if you go to court. There may be other situations where police can take things from you. 

 

Arrest

When can I be arrested?

A police officer can arrest you if they have reasonable cause to suspect:

  • You are committing a crime;
  • You have already committed a crime;
  • You are about to commit a crime;
  • You are about to cause harm to someone else or their property.

If you are arrested without a warrant then you must be taken to the nearest police station as soon as possible.

The police should always tell you why you have been arrested. If they don’t, it’s a good idea to ask.

Can the police use physical force to arrest me?

A police officer can use as much force as they need to arrest you or stop you escaping, but nothing more.  It can’t be unreasonable force. This means that if you cooperate the police can not use force, but the more you resist arrest the more force police can use.

If you think the police have behaved inappropriately, you can make a formal complaint later. See our fact sheet on Police Complaints.

What are my rights when I’ve been arrested?

Once you are arrested, the police officer who arrested you must explain what the police suspect you have done that is illegal.

You are entitled to make one phone call, in the presence of a police officer, to a nominated relative or friend to let them know that you’re a the police station. You could ask them to call your lawyer, if you have one, or Legal Aid (the Legal Services Commission).

If you are arrested because the police suspect that you have committed an offence then you are entitled to have a relative, adult friend, or solicitor with you during any interrogation or investigation while you are in custody. If your support person or solicitor is unavailable, the interview is not meant to go ahead until the police officer in charge finds an appropriate person. However, an interrogation of a young person may still go ahead without a support person if the offence in question is not very serious and it’s not practical to get a support person. However, the police must take all reasonable steps to contact your parents or guardians as soon as possible and ask for them to come to the police station, even if you have not told them about a person that you want to be at the interview.

If English is not your native language and you need an interpreter, you are entitled to have one with you.

You are entitled to not answer any questions other than you name, address or where you’re staying, and date of birth along with the driving and firearms questions mentioned above.

You must be told that anything you say may be written down by the police and used in evidence against you.

You are entitled to apply for bail so that you can be released from custody. The police are required to explain the procedure of applying for bail.

How long can police keep me for?

If you are under arrest, the police can generally keep you for up to 4 hours, unless they get an extension from a magistrate or judge.

However if you are charged with an offence, and not given bail by police you can be held until 4pm the next working day in which time you have to be brought to a court, where you can apply for bail.

If you are not under arrest, police aren’t allowed to keep you and you are free to go.

If you’re arrested and taken to the police station, but the police decide not to charge you, then you should be returned back to the place where you were arrested or taken to another place that you ask (and it is reasonable to take you there).

Can the police take my fingerprints?

Once a person is arrested, the police are allowed to take photographs, prints of hands, fingers, feet or toes, have teeth impressions taken by a dentist, make recordings of the person’s voice and request a sample of handwriting. It is an offence to not let the police do these things.

See further information on all of these topics in the Law Handbook chapter on Arrest- Your Rights and Bail: http://www.lawhandbook.sa.gov.au/ch03.php

 

 

 

 

 

 




Link to sa.gov.au - find what you're looking for

© Legal Services Commission 2017 - All Rights Reserved
Funded with the support of the Governments of Australia and South Australia Website by CeRDI