What are my rights if Police execute a search warrant or arrest me for an offence?
- To be given a copy of the search warrant, you should take care to preserve this document.
- To have explained to you what it is Police are looking for during the search.
- To accompany Police during the search and observe the search.
- Police must identify themselves and inform you of what their role will be during the search.
- You are entitled to exercise the right to silence during both the search and the Police interview by simply saying “no comment”.
- Police must tell you that if you do choose to answer their questions, your answers will be recorded on video and may be used against you in Court.
- To contact a lawyer and obtain legal advice prior to the commencement of the search. You should exercise this right.
- To contact a friend or family member, this right is often suspended until the search has been completed.
- If Police seize any of your property during the search, you are entitled to be given a receipt for the property. If you are charged with an offence and the seized item is evidence, the property will remain seized until the criminal charges are finalised.
- Once the Court proceedings are completed, you are entitled to have your property returned unless the Court has made an order for the destruction of the property.
- If you require an interpreter, Police must arrange an interpreter for you before proceeding with a search or interview.
- If you require any medical attention or medication, Police must take steps to ensure that your medical needs are promptly attended to.
- If you are placed under arrest and are charged with an offence, you have the right to have bail considered by Police immediately after you are charged. If Police decide not to grant you bail, Police must ensure you are brought before a Court at the earliest opportunity for the purpose of exercising your right to have bail considered by a Court.
- If you are placed under arrest, Police must tell you the reason you are under arrest and specify the offence which you are under arrest for.
- If you are charged with an offence, you are entitled to be provided with a copy of the search video and Police interview within 14-days of the date of your arrest.
- If you plead not guilty, you are entitled to be provided with all of the relevant evidence in the possession of Police at least 28 days prior to trial. You are not required to provide your evidence to the prosecution, with the exception of alibi evidence and expert evidence.
What should I do if Police execute a search warrant at my address?
A valid search warrant lawfully enables Police to enter your address for the purpose of looking for evidence of an offence. If you do not grant Police access to the address, Police are empowered to force access to the address. If Police are unable to access your address for example because you are not home and force access to your address which results in damage, you are able to claim compensation from the Police. At the commencement of the search Police will ask you to declare the location of any drugs, cash, firearms, ammunition or any sharp objects which could pose a risk to safety.
Should I answer the questions Police ask me during a search or interview?
You are entitled to exercise the right to silence by responding “no comment” to all Police questions. strongly advise clients to exercise this right and make no comment whatsoever for the following reasons:
- If you explain that you are innocent, Police are not required to play the interview at trial and you are not allowed to use the interview in your defence.
- If the prosecution are able to show that you said something which is untrue, this may affect an assessment of your credibility by the jury or the prosecution may be able to use the lie as evidence that you lied because the truth would incriminate you.
- Your exercise of the right can never be used against you – a jury will always be directed that your decision to exercise your right to silence cannot be used against you in any way.
- By making no comment, you preserve your defence until you’ve had an opportunity to consider all of the evidence against you and obtained legal advice.
- When you’re questioned by Police, you’re unlikely to know what evidence they have and therefore you’re at an unfair disadvantage. By responding to Police questions, your pinning yourself down to an explanation.
- The Police are not entitled to know what your defence is prior to the trial, so why on earth would you tell them before you’ve gotten legal advice?
Are there any Police questions which I must answer?
You are required to give Police your name, date of birth and address on request. A Police Officer requesting this information must identify themselves to you. In some special situations, such as where Police have a data access order, where you are the owner of a vehicle which was involved in a traffic incident/offence, or where you are being interviewed in relation to proceeds of crime, you are required by law to answer a particular question and it is an offence to fail to answer. Police must advise that you are required by law to answer a question and that it is an offence to fail to answer.
What happens if I am charged with an offence?
If the offence you are charged with is a minor offence and is only likely to carry a fine, Police may not arrest you and may instead simply inform you that a Summons or Court Hearing Notice will be sent out to you. This document will notify you of the time and place of your initial court appearance. If the offence which you are charged with is serious, Police may arrest you and take you to the Police Station to process the charges. Once the charges have been processed you will either be granted Police bail or if Police bail is refused, you will be brought before the court to have bail considered at the first opportunity.
What should I do once I am charged?
Police will provide you with a copy of the charge paperwork including a prosecution notice and statement of material facts, which is a factual summary of your alleged offending. Police should also provide you with a copy of your Criminal and Traffic History. Once you have these documents you should contact a lawyer and meet with them to obtain legal advice.