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 correct name, address and date of birth. A person who may be able to assist in the investigation of an offence is also required to provide this information.

The penalty 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 s 74A(3)]. 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, see s 74A(2).

A police officer who has required a person to state their personal details should identify himself or herself if asked to do so. Failure to provide this information when requested is an offence under s 74A(3)].

The police or an inspector (under the Road Traffic Act 1961 ) can ask anyone questions to identify the driver and owner of a motor vehicle. The police or an inspector can also stop a vehicle and ask the driver who the owner and driver is, the type of material being carried and the mass of the vehicle. Police also have the power to give general directions in order to regulate traffic. The penalty for failing to answer truthfully or disobeying the police is a maximum fine of $1000 [Road Traffic Act 1961 ss 38, 41, 42].

The Motor Vehicles Act 1959 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 $200 [ss 92, 96].

If involved in a vehicle accident all drivers must stop. The driver must assist any injured people and must give their name, address, the registration number of the vehicle, and any other necessary information to any person who has reasonable grounds to ask (for example, any other driver or passenger involved in the accident). The accident must be reported to the police as soon as possible if there are any injuries sustained or if the damage to either vehicle requires them to be towed away. [Australian Road Rules s 287 and see Offences and Duties after Accidents]. It is generally safer to report all accidents. If someone was killed or injured in the accident, you are also required to present yourself to a police officer within 90 minutes to provide particulars and to submit to any test for alcohol or drugs.

Any driver incapable of adequately controlling a motor vehicle, or who has committed a driving offence, or who is involved in an accident, must undergo an alcotest or breath analysis test if asked by the police. Similarly, anyone injured in an accident and admitted to hospital must have a blood sample taken. Even if there is no suspicion of any offence being committed, a driver may also be required to submit to a breath test at a random breath testing station [Road Traffic Act 1961 s 47] see traffic offences.

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 1985 s 122]. This includes restaurants, cafes, shops, amusement parlours or arcades, or similar places of public entertainment. 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 1985 s 119a]. A minor who re-enters the premises within 24 hours of being evicted, or fails to truthfully answer questions faces a maximum fine of $2000 [Liquor Licensing Act 1985 ss 122, 123, 133].

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 $2000 or gaoled for up to six months [Summary Offences Act 1953 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 s 74].

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 KawTeh (1985) 157 CLR 523].

While there is no longer any general law requiring a person to voluntarily report a crime it is an offence to assist an offender to escape apprehension or prosecution or to hinder the investigation of an offence (such as lying to the police). The maximum penalty is the same as what the offender faces for his or her offence [Criminal Law Consolidation Act 1935 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.

A person who guarantee 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.

The police can ask for the full name, address and age (and proof) of anyone who has, or recently had, a firearm, and can demand to see a firearm licence immediately or within 48 hours at a police station [Firearms Act 1977 s 31]. The police can stop, detain and search any person or vehicle if they reasonably suspect that a firearms offence is being committed or in other certain circumstances [Firearms Act 1977 s 32].

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 any evidence obtained is excluded from evidence in a trial.

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:

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.

The police can arrest someone either with or without a warrant. Most arrests are made without a warrant. The police are not obliged to arrest someone and can instead summons the person to appear in court. The police can arrest someone without a warrant who:

Under the Customs Act 1901 (Cth) the police or a customs officer may arrest a person without a warrant when it is believed, on reasonable grounds, that the person is involved in an offence such as smuggling or importing or exporting prohibited goods [s 210].

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, suspected of committing an indictable offence or an offence punishable by imprisonment of two years of more, can be detained for as long as four hours to investigate the offence. The detention can be extended up to eight hours if authorised by a magistrate. The person can be taken to places connected with suspected offences to assist police in their investigation [Summary Offences Act 1953 s 78].

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 s 73].

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, for failing to pay a fine or 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 s20, s 69].

A person who is under the influence of alcohol in a public place such that the person is 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 s 7].

An arrest is valid if words such as 'you are under arrest' 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 committing an offence.

Most importantly, the person 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.

The person should also be told the reason for the arrest, even if it appears obvious from the circumstances, although the omission of this information does not necessarily make the arrest unlawful. However a court has a discretion to exclude evidence flowing from the arrest (such as a record of interview), where it would be unfair to the suspect to use it, or where for public policy reasons the court excludes the evidence.

Generally an arrest will be lawful if the officer who carries it out is acting as a result of an honest and reasonable belief in the relevant facts. The arresting party may be mistaken as to the facts, and the person later released. Provided, however, the person had an honest and reasonable belief in the relevant facts, then the officer has 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.

A police officer may use as much force as is reasonably necessary to arrest the person. Unreasonable force is assault. It is up to the court to decide whether the force used was reasonable in the circumstances. For example, force that is likely to kill or cause grievous bodily harm has been held reasonable if the person could not be arrested in any other way [R v. Turner (1962) VR 30]. Handcuffs or a similar restraint are reasonable force where the person has physically resisted arrest or attempted to run away.

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 s 6]. The resistance to the arrest must be active. Merely lying down and refusing to co-operate is not resisting nor is running away from a police officer before a valid arrest. A person can hinder the police by passive actions that render a police action more difficult, but not impossible.

A person innocent of any other offence can nevertheless be charged with resisting arrest or hindering police in the execution of their duty. The police are entitled to proceed with a charge of resist arrest or hinder even if the evidence later suggests that the original offence that the person was arrested for should not proceed. The exception to this is where the arresting person knew or suspected there was no offence being committed.

It is very important that people are aware of their right to remain silent. A person who does not wish to say anything to the police should make that decision clear. The person 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 person should repeat 'I do not want to say anything'. If this is the advice received from a lawyer or legal adviser, the person should say 'I do not wish to answer any questions on the advice of my legal adviser'.

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.

A person who makes a decision not to answer questions should stick to that decision, rather than answer some questions and not othes. Answering questions selectively, that is, answering some and refusing to answer others, may later be interpreted by a court as a 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 the lawyer or prepared with the help of a lawyer and then given to the police.

An arrested person has a right to be assisted by an interpreter if English is not the person's native language. Of course a person assisted by an interpreter still does not have to answer questions.

It is important to note that there are some questions you must answer. The police should make it clear when they are asking a question you are required to answer.

The police are experts at getting information from people. A person may be told 'it will be easier if a statement is made', or 'bail will be granted more quickly if a statement is made'. Do not fall for such tricks as 'a co-offender has told them 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.

It may be in a person's best interests to make a statement after receiving legal advice, for example, where a person has a valid explanation. Often a written record will be made of an interview and the person will be asked to read and sign it. A person should always read the record of interview first and refuse to sign if the police will not allow it to be read. If a person does not agree that he or she said things contained in the record of interview, the person should ask that they be corrected. These should then be initialled by the person. A person should always be careful because if they sign a statement, they are considered to be agreeing with its contents. There is no obligation to read or sign a record of interview.

In court the police usually read out the record of interview, or the video tape of the record of interview is shown. Often a copy of the transcript will be tendered to the court.

A person may be asked a number of questions about the interview and the way it was taken (even if the person refused to sign it). For example, whether the statement was given voluntarily, and whether the person signed it. This happens very rarely today however as there is an obligation on the police to video and audio all records of interview and such questions will be on the tape. (see below). Even if unsigned, if the person indicates it was given voluntarily and is accurate it may be held as an admissible, voluntary and an accurate record of interview.

Under the Summary Offences Act 1953 if a person is charged with an indictable offence (generally, an indictable offence is an offence punishable by more than five years imprisonment or a dishonesty offence involving $2500 or more) the police must, if it is reasonably practicable, record the interview on video or audio tape [Summary Offences Act 1953 s 74D]. Even if an accused does not wish to answer questions the police may ask the accused to state this on tape. The police cannot force a person to be video taped or audio taped 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.

If asked, the police must allow a person to see the video tape at a reasonable time and place arranged by the investigating officer. Upon payment of a fee the police must give a copy of the audio soundtrack to the person although a copy of the video does not have to be provided.

A video tape is obviously the best evidence because it records exactly what everybody said, and allows the court to see the demeanour and behaviour of all parties to the interview. It does not of course record anything said or done by parties when the video recorder is not switched on.

Powers to search, examine and take samples

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 and the Criminal Law (Forensic Procedures) Act 2007.

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. Less commonly performed procedures, such as the taking of DNA samples, are governed by the Criminal Law (Forensic Procedures) Act 2007.

When a person is taken into custody, the police may use such force as is reasonably necessary to search and take anything they find upon him or her relevant to the commission of an offence [Summary Offences Act 1953s 81(1)].

Where the police reasonably believe that a physical examination of a person will give evidence of the offence the person is charged with, a doctor may carry out an examination. Only a police officer over the rank of sergeant in charge of the police station where the person is held may authorise such an examination.

Any reasonable examination can be carried out, and reasonable force may be used. People must be told before a medical examination is arranged, and may have a medical practitioner of their choice to conduct a second and independent examination. The person must pay the cost of an independent examination. The police officer in charge must take reasonable steps to inform the doctor that the person under investigation requests their attendance [Summary Offences Act 1953 s 81].

If after obtaining evidence, the charge is later withdrawn or dismissed, all photographs, prints, impressions, recordings and samples must be destroyed [Summary Offences Act 1953 s 81].

Once a person is charged with an offence (or if a magistrate authorises it before charges are laid) the police may take photographs, take prints of hands, fingers, feet or toes, have teeth impressions taken by a dentist, make a recording of the person's voice and request a sample of handwriting.

Reasonable force can be used [Summary Offences Act 1953 s 81]. 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 or teeth impressions faces a maximum penalty of three months imprisonment or a fine of $1000.

The law relating to the taking of forensic samples for DNA testing is contained in the Criminal Law (Forensic Procedures) Act 2007. Depending on whether or not a person is a suspect, an offender or a volunteer there are different rules.

There are two broad categories of procedures covered by the Act: simple identity procedures and forensic procedures (including instrusive forensic procedures).

Simple identity procedures

Anyone convicted of, or suspected of having committed, a serious offence can be required to undergo a simple identity procedure. This includes the taking of forensic material by buccal swab (i.e. cheek swab) for the purpose of obtaining a DNA profile. It can also include taking samples by finger prick but this method is not normally used by police.

Under the legislation police have extensive powers to collect DNA samples on this basis. The reason for this is the extremely broad definition of what constitutes a serious offence. The suspicion of having committed a serious offence or the fact that a serious offence has been committed provides the trigger for the police to use these powers.

A serious offence is an indictable offence or a summary offence that is punishable by imprisonment - this includes a wide spectrum of offences such as assault police, shoplifting, carrying an offensive weapon, possessing body armour, being unlawfully on premises, indecent behaviour, making a false report to police, driving under the influence and offensive behaviour and language.

Both offenders (under s 20) and suspects (under s 14) can be compelled to provide DNA samples if it is requested on the basis of a simple identity procedure. A suspect or offender does not have to be in custody in order for police to conduct a simple identity procedure and police may issue directions to attend a police station for the purpose of providing a DNA sample. Where a suspect or offender refuses or fails to comply with a request for a simple identity procedure a warrant can be issued for their arrest and reasonable force can be used to take a sample.

A suspect is any person that police have a reasonable suspicion (s 3(4)) of having committed a serious offence. As the definition of what constitutes a serious offence is so broad it potentially affects many people including those suspected of having committed what are considered to be quite minor offences (such as shoplifting and disorderly behaviour).

Once a suspect or offender has provided DNA it is added to the database and there is no provision for it to be removed later. This means that where a person was questioned in relation to a serious offence and provided DNA, the sample will remain on the database even though no charges have been laid. Similarly, there are no provisions to destroy DNA samples taken from those people charged with an offence who are subsequently acquitted.

Children and young people

There are no special protections for persons under the age of 18 who have samples taken because they are offenders or suspects. However, if they are providing DNA as volunteers or victims they receive special protection under sections 10 & 11 , see Volunteers and victims.

Other forensic procedures

Other forensic procedure include the following:

Different procedures apply for forensic procedures other than a simple identity procedure. In these circumstances a suspect has a right to be heard and represented at a hearing conducted by a senior police officer (ss 15-19).

Guidelines for forensic procedures

The legislation provides the following guidelines and requirements for forensic procedures:

* An intrusive forensic procedure includes:

# but does not include a simple identity procedure e.g. buccal swab or taking of blood by finger prick method.

Reasonable force may be used to carry out a forensic procedure and before it is carried out a police officer must inform the person of this and the fact that if they obstruct or resist the procedure this may be used in evidence against them.

The maximum penalty for intentionally obstructing or resisting a forensic procedure is 2 years imprisonment.

Volunteers and victims

There is provision under the Criminal Law (Forensic Procedures) Act 2007 for the taking of DNA samples from volunteers and victims. Where a person volunteers to provide a DNA sample for inclusion in the volunteers and victims index of the DNA database system, their express consent is required. A child 16 years of age or over can consent where a DNA profile is not to be stored as a result of the procedure.

A child or person under a disability is defined as a 'protected person'. This means that they cannot provide consent (except, as referred to above, where they are over 16 years of age and the DNA is not to be stored as a result of the procedure) so their next of kin or guardian must provide express consent on their behalf.

Even where consent has been given on behalf of a protected person, if they subsequently object to the procedure, then it must be stopped. A protected person who appears to be capable of responding rationally to information must be advised before the procedure is carried out of their right to object or resist the procedure.

A person who at the time at which a volunteers procedure was authorised was a protected person because he/she was under 16 years of age may, at any time after reaching 16 years, request destruction of the relevant forensic material collected.

Identification parade fairer than photographs

Often the police will want to identify a person visually. The High Court [Alexander v. R (1981) 145 CLR 395] has clearly stated that an identification parade is much fairer to an accused person than photographic evidence.

Right to refuse

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. Other identification, for example, a photo board of similar persons, may be used to identify a suspect.

What is 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.

Use of photographic evidence where line-up refused

If a person does not take part in a line-up, the police may seek identification evidence from an array of photographs. This is also admissible evidence in court and does not require the consent of the suspect.

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.

Children have all of the rights of adults upon arrest and some additional rights to reflect their vulnerable position. If a child is under 16 years or appears to have a mental illness or an intellectual disability, before asking any questions the police should ensure that a parent or guardian is present. 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 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 s 14], see CHILDREN AND CRIME.