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Abbreviations used in this chapter:

BA: Bail Act (NT)
CCA: Criminal Code Act
CDEP: Community Development Employment Program
CSJ: Court of Summary Jurisdiction
DPP: Director of Public Prosecutions
FPRA: Fines and Penalties (Recovery) Act 2001
FRU: Fines Recovery Unit
JA: Justices Act
JP: justice of the peace
MDA: Misuse of Drugs Act 1990
MVR: Motor Vehicle Registry
PAA: Police Administration Act
SA: Sentencing Act
TTP agreement: time to pay agreement
YJA: Youth Justice Act

Investigation and arrest

08 Sep 2016 - 12:20 | Version 8 |

Contributed by RennieAnderson and current to 1 May 2016

Before a person can be found guilty of an offence, sufficient evidence must be presented to satisfy a court that there is no reasonable doubt the person committed it. Usually, it is the police who conduct an investigation to obtain that evidence. The police force's power to conduct an investigation, question and search suspects, seize property and arrest suspected offenders is contained mainly in the Police Administration Act (PAA). Other statutes, such as the NT Criminal Code Act (CCA), Misuse of Drugs Act 1990 (MDA), Firearms Act 1992, Control Weapons Act 2001, Bail Act and the Crimes Act 1914 (Cth) also deal with police powers.

Criminal investigations

In the usual course of investigating an offence police generally question people who may have seen or heard something relevant to the matter. They may also ask a person to accompany them to the police station. However, unless arrested, a person is not obliged to accompany police anywhere for any reason. If a person becomes a suspect they may be arrested by police, at which time they are subject to the same considerations as if they refused to answer questions (see The right to silence below). Once arrested, the person is taken into custody. They are then usually asked to participate in an interview, which they can choose to do or rightfully refuse. These interviews are recorded, usually both in video and audio tapes or by electronic means. Police aren't allowed to keep a person in custody unless they have been lawfully arrested.

The right to silence

A fundamental principle of criminal law in Australia is that a suspect can refuse to answer all questions asked by police. A person can also choose to answer some questions and refuse to answer others. Even when not obliged to answer questions, a suspect may benefit from cooperating with police, for example, by giving a satisfactory explanation of the facts that have given rise to the investigation. As a general rule it is advisable to cooperate with police; however, a person who is concerned that they may incriminate themselves should seek legal advice before speaking to police.

When information must be given

Although a person has a right to silence, questions must be answered and information given to police in the following circumstances:

Suspects

A police officer who has reasonable cause to suspect that a person has committed, is committing or is about to commit an offence, or that they may be able to assist in the investigation of an offence or a suspected offence, can require the person to give their correct name and address [PAA s.134]. The penalty for failing to comply is a fine of 4 penalty units.

Drivers

If requested to do so by a police officer, the driver of a motor vehicle must produce their licence, either immediately or at any police station within the following three days [Motor Vehicles Act s.113]. A person who does not comply with the request may be found guilty of an offence unless they have a reasonable excuse for failing to comply. The driver of a motor vehicle that is involved in an accident where a person or animal is injured or property is damaged must stop. After stopping, the driver must offer assistance and provide their own name and address and that of the owner of their vehicle to anyone who is injured or has sustained damage to property, to police or an inspector, or to a witness acting on behalf of an injured. The accident must be reported to police within 24 hours. A police officer may require a person to submit to a breath test [Traffic Act s.23] (see Road rules and traffic offences ).

Under age drinkers

A police officer or an inspector (appointed under the Liquor Act) may enter licensed premises or premises where liquor is sold and require a person to provide their name, address, date of birth, evidence of age and the name or identity of the person who supplied them with liquor [Liquor Act s.19]. Failure to comply with the request is an offence.

Drug offenders

A customs officer has the power to question a passenger on a ship or aircraft or a person who has alighted from or is about to board a ship or aircraft about whether that person has dutiable, excisable or prohibited goods (including prohibited drugs). The penalty for failing to answer these questions is a fine of 30 penalty units [Customs Act s.195] (see Drug offences ).

Under the MDA a Police officer who has stopped a vehicle in an authorized area has certain powers to ask for a person's name and particulars (see Searching for Dangerous Drugs , below).

Obtaining a police officer's name

When a police request for a person's name and address has been properly made in compliance with the PAA [ss.134(1)(2)], the person can in turn, request the police officer to supply their name, place of duty or both. A police officer who refuses or fails to comply with the request is liable for a penalty equal to that given to a person who refuses to give their name and address.

Search and seizure

Although searches and seizures are largely carried out by police, some non-police officials, such as tax investigators, customs officers and fisheries inspectors, also have certain powers to search and seize.

It is not possible to cover all of the relevant legislation so only a general overview of police powers of search and seizure covered by the PAA are given here.

When investigating an alleged offence, police may wish to search a person's premises, vehicles or land and seize material to use as evidence.

Search and seizure are lawful only if authorised (see Obtaining the authority to search and seize, below). If necessary, police may use reasonable force to search and seize. Legally, police with the appropriate warrant can enter premises without anyone being there, but as a matter of practice they usually wait until someone comes home.

The powers police have with respect to up-ending furniture or ripping up carpet and so on all comes down to 'reasonableness'. If, for example, police reasonably believe that drugs could be hidden in a sofa they could reasonably slash it open.

Where police are authorised to conduct a search and seizure, it is an offence to hinder them in carrying it out [PAA s.159]. If they have a warrant, police can enter premises without the owner being present.

Generally, police are not entitled to keep property without the owner's consent, except as the result of an arrest or under a warrant. However, in emergencies police may seize items connected with an offence to prevent their destruction or loss [PAA s.119].

Where premises have been entered unlawfully or goods have been unlawfully seized and detained, a civil wrong called trespass against the person has been committed. A person who wants their goods back should put in a request to the police. If this is not fruitful, they can apply to the Local Court for an order for the return of the goods and/or damages. Even when material has been unlawfully obtained, it may still be used as evidence to prove an alleged offence unless the court decides it would be unfair or inappropriate to do so.

The terms 'search' and 'seize' apply to both persons and property; that is the police can obtain permission to search both people and property and seize anything found in their possession that they suspect on reasonable grounds may be illegal, for example, dangerous drugs or money obtained from dealing in dangerous drugs.

Obtaining the authority to search and seize

The police gain authority to search and seize where:
  • the person consents;
  • they have a search warrant;
  • in limited circumstances, in relation to a motor vehicle or a vessel, consent or a warrant is not needed.

Search warrants

To obtain a search warrant, a police officer must make an application to a Justice of the Peace (JP). A warrant issued by a JP can authorise:
  • the searching of a person
  • the searching of clothing worn by a person or property in their immediate control
  • the entering and searching of land, vehicles or vessels
  • the seizing of anything the officer may find in the course of the search.
An application for a search warrant can be made either by telephone or in person. Before issuing a search warrant, the JP must be satisfied that there are reasonable grounds to do so. The search warrant must be signed by the JP and must detail the purpose of the search or entry and contain a description of the nature of the property that can be seized [PAA s.117(5)(a)(b)]. The search warrant must contain the date the warrant ceases to have effect, which must not be more than 14 days from the date of issue [PAA s.117(5)(c)].

In the case of a Commonwealth offence, a police officer may search and seize property at a place named in a search warrant issued by a JP under the Crimes Act 1914 (Cth) [s.10]. A person is within their rights to ask to see the search warrant before the police begin the search.

Searches without warrants

A police officer who reasonably suspects a person of carrying an item connected with an offence may, without a warrant, search:
  • the person (called a body or strip search - see Body searches , below);
  • the clothing they are wearing;
  • the property in their immediate control;
  • any land, vehicle or vessel.
A search without a warrant should only be carried out in serious or urgent circumstances. In such a search, police may seize any item if they reasonably believe that the seizure will prevent the loss or destruction of anything connected with an offence.

A police officer may also stop a person or any vehicle or vessel and search them and it if there is reason to believe the person is carrying an offensive weapon or a prohibited or controlled weapon without lawful excuse.

Police have certain powers to search for firearms and offensive weapons and to seize them [PAA s.126(2A)]. They can use these powers to enter premises where there has been a breach or a threatened breach of a domestic violence restraining order [Domestic Violence Act s.7] or where they believe that a person has suffered or is being threatened with personal injury.

Police can seize a firearm or offensive weapon if they believe that leaving it on the premises would place a person in imminent danger of personal injury.

Searching for dangerous drugs

The powers of search and seizure, either with or without a warrant, also apply where police reasonably suspect that a person, their land or any vehicles, aircraft or vessel they are in may be carrying 'dangerous drugs'. Dangerous drugs are defined under the MDA (see Drugs offences ).

A female may only be searched for drugs by a female police officer, an authorised medical practitioner or a female authorised by police to carry out the search [PAA s.120E]. The person conducting the search is authorised to use such reasonable force as is necessary [PAA s.120D]

Amendments to the MDA that came into force on 1 August 2002 extend the police powers of search and seizure in relation to drugs. The amendments create procedures that allow police to have suspected premises (residential, commercial or licensed) declared a drug house. The Commissioner of Police may apply to the court for a drug premises order if a dangerous drug is found at the same premises on two or more separate occasions within 12 months [MDA s.11D(3)]. If the court is satisfied that there are grounds for an order the police will serve notice on the owner, landlord or tenant. The order is in effect for 12 months from the date it was made. A drug house order enables the police to enter the premises without a warrant and conduct a search [MDA s.11R (a)]. They may also search any person - their person, clothing and property in their immediate control - in the drug house who they reasonably suspect is carrying anything connected with an offence under the MDA [s.11R(b)]. The police are also allowed to [MDA s.11R(3)]:
  • use the reasonable force necessary to break into, enter and search a drug house;
  • use the reasonable force necessary to open any cupboard, drawer, chest, trunk, box, package or other receptacle, whether a fixture or not, in a drug house;
  • use the reasonable force necessary to search a person.
It is an offence to prevent, delay or obstruct a police officer from entering the premises to conduct a search, or to warn another person that the police have begun or are about to begin a search [MDA s.11S]. The owner, tenant or landlord may apply to the court to get the drug house order revoked [MDA s.11R]. When considering such an application the court must be satisfied of either of the following:
  • on the balance of probabilities, dangerous drugs are no longer being or likely to be supplied from the premises;
  • it would be unjust to keep the order in force.
Amendments to the MDA that came into force on 18 December 2015 which extended the police powers of search within what is called an authorised drug detection area. The area must be appropriately authorized by a senior Police officer to constitute a drug detection area. The area so authorised, must be outside 30 km from the GPO Darwin and no larger then 3 square kilometres in total area. The area, if it includes a road, then such road can be no longer then 3 kilometres. This law allows a Police Officer to, without warrant or reasonable suspicion, to stop and search any vehicle and any person or property in the vehicle and seize items for the purpose of search for a dangerous drug. The authorized area for the purpose of the powers conferred on Police officers only continues in for a period of 14 days. There can only be 3 authorised areas operating at the one time.

Searches in prisons and lock-ups

When a person is locked up or gaoled, they may be searched and any property under their control removed for safekeeping. Each prisoner is searched on entering prison and can be searched when moving from one part of the prison to another or whenever an officer has reasonable cause to suspect they have a concealed article in their possession [Prisons (Correctional Services) Act s.59]. For example, if it is suspected that drugs are being brought into the prison, the prisoner will be searched and have their urine tested after receiving visitors.

Body searches

A police officer can lawfully search a suspect's body, clothing and property in their immediate possession if the search is reasonably believed to be necessary [PAA s.144]:
  • to discover any concealed weapon or any article that might be used by the person to injure themselves or anyone else or by others to help the person escape;
  • to secure and preserve evidence with respect to the offence for which the person is in custody.
Legally, a body search can be carried out anywhere, but police guidelines prescribe limits on where a search is to be conducted.

A police officer can require a person in lawful custody to remove any clothing if they reasonably believe that its removal and examination may produce evidence that the person committed the offence they are charged with. In practice strip-searches aren't routine, and are not conducted in public places. The amendments to the MDA as cited above may allow for cavity searches if deemed 'reasonable'. Once clothing is removed, substitute clothing must be provided.

Body searches should be, as far as practicable, carried out by a member of the same sex, except where the search is for illegal drugs, in which case a female suspect should only be searched by a female police officer, an authorised medical practitioner or a female authorised by police (see Searching for dangerous drugs , above).

Arrest

The law dealing with arrest and detention in the NT is complicated. The powers of the police in the NT are as wide, if not wider, than they are in any other jurisdiction in Australia. To understand their rights, an individual needs to know the extent of police powers.

Arrest occurs when a person is no longer at liberty to come and go as they please. To be detained, apprehended or in custody are all terms referring to being under arrest. The person the subject of questioning or arrest is referred to as the suspect, offender, detainee or accused.

The police can make an arrest with or without a warrant (see Search and seizure , this section).

Usually, when a person is arrested they are told that they are under arrest and why. However, if police don't do this, the arrest is not necessarily unlawful; in many instances the reason for an arrest is obvious.

Generally, an arrest is lawful if the police officer who carries it out is acting out of an honest belief based on the relevant facts. However, sometimes an arresting officer is mistaken about the facts, in which case the arrested person should be released. A person who believes they are being wrongfully arrested should, rather than resisting arrest, comply and argue about the legality of the arrest later. Even if the person honestly believes they were wrongly arrested, to resist might leave them open to a charge of resisting arrest.

Citizen's arrest

The powers for a citizen to arrest in the NT are set out in the CCA. In summary, it is lawful for a citizen to arrest another person who is committing an offence, or who they believe on reasonable grounds has committed an offence, when the arrest of the offender is necessary:
  • to ensure the appearance of the person in a court;
  • to preserve public order;
  • to prevent the offence being repeated or a further offence committed;
  • for the safety or welfare of members of the public or the person themselves.
A citizen can also make an arrest if told to do so by a police officer or they reasonably believe the person is escaping legal custody or helping someone else to escape. Similarly, if a citizen reasonably believes a person is avoiding capture by the police, they can make a citizen's arrest.

A citizen who makes an arrest is not permitted to question the person they have apprehended about an offence [CCA s.441(3)]. The person must be delivered to the police as soon as is practicable.

As long as the arrest is made due to a belief held on reasonable grounds, the citizen won't be in trouble if it is later discovered that the person didn't commit the offence.

The CCA also permits a citizen to use necessary force, as long as it is not likely or intended to cause death or grievous harm, to prevent a person who has been lawfully arrested from escaping, committing a further breach of the peace, or preventing the commission of an offence [CCA s.27]. These defences are available to a person who has made a citizen's arrest and subsequently been charged with a criminal offence, such as assault.

Store detectives and security guards

It is common for major shopping outlets to provide staff at the entrance and exits to their stores to search bags and watch for any illegal activities such as shop lifting. These staff do not have specific powers to arrest people for illegal activities and usually rely on the powers they have as citizens to effect an arrest (see Citizen's arrest above).

In the NT, people who act as security guards have to hold an appropriate licence. A person without the proper licence faces a penalty of 100 penalty units [Private Security Act s.13]. Security guards have no specific designated powers under their licences and also rely on the powers of citizen's arrest to detain someone who they believe on reasonable grounds has committed an offence.

Store detectives and security guards may have additional authority, delegated to them by the owner of the premises they are hired to protect. An example of this authority may be the power to issue trespass notices.

Police arrest

Generally, the police officer who is present when an offence is committed, or has a reasonable suspicion that an offence has been or is about to be committed, decides the best way to deal with the person. The alleged or suspected offender's conduct often influences that decision. In the case of a minor offence, the alleged offender might avoid a charge if they are polite and cooperative. A police officer is not obliged to arrest a suspect even if that officer has reasonable cause to suspect an offence has been committed. There are several ways a person may be dealt with to have the offender brought before a court:
  • they may be arrested, charged and bailed;
  • they may be arrested and summonsed;
  • they may be summonsed without arrest;
  • they may be given a Notice to Appear.

Arrest without a warrant

A police officer can arrest a person without a warrant if they reasonably believe that:
  • the person has committed, is committing or is about to commit an offence [PAA s.123];
  • the person has committed an offence against the law of another State or Territory and that a similar offence in the NT is punishable by more than six months in prison [PAA s.125].
A police officer can also arrest a person where a warrant has been issued for the person by a judge, magistrate or justice of the peace (JP) [PAA s.124].

Arrest with a warrant

A written and signed authority from a JP or judge, called a warrant, permits the police to carry out a specific task or specific tasks. A warrant can be issued to permit the arrest of the person named in it. A warrant for a person's arrest can be issued for an offence or a failure to appear in court.

A warrant must state briefly the matter or complaint on which it is founded and either name or describe the person against whom it is issued.

A warrant authorises all police officers to arrest the person named in it wherever or whenever they are found and to take the action specified in the warrant, which is usually to take the suspect into custody and bring them before a court.

A warrant issued at the request of a police officer is usually issued for the apprehension of a person accused or suspected of a serious crime [PAA ss.121, 122].

According to the Justices Act (JA) a court may issue a warrant where a person fails to obey a summons [s.62], breaches a bail condition or fails to answer bail [s.62A; Bail Act s.39].

A warrant may also be issued when a debtor is about to abscond from a jurisdiction (see Debts ) or when a summons can't be served. However, a warrant should not be issued where a summons would be just as effective at ensuring a defendant's appearance in court.

Police powers to enter premises

A police officer who has a warrant to arrest a person may make the arrest by entering any premises, vehicle or vessel, using force if necessary, at any time of the day or night or between times specified in the warrant, if they reasonably believe that the person is there [PAA s.126(1)]. A police officer without a warrant may do likewise if the suspect is believed to have committed an offence punishable by more than six months imprisonment [PAA s.126(2)].

A police officer may also use reasonable force to enter any premises, vehicle or vessel when they believe that a person is in imminent danger of personal injury from another or that a domestic violence order has been or is about to be breached. The police officer may stay as long as is necessary to confirm their belief and to provide protection and assistance. It should be noted that 'premises' includes land and any building or structure on such land.

Extradition

A person may be apprehended and brought before a court if it can be shown that there is a warrant to extradite them from one State or Territory to another and that a prosecution has begun interstate. In extradition proceedings, the court can order the person's return to the other State or Territory by [Service and Execution of Process Act 1992 (Cth) ss.18-19C]:
  • delivering them into police custody;
  • releasing them on bail so they can make their own travel arrangements;
  • discharging them from custody and taking no action over the warrant.
A lawyer can help a person facing extradition proceedings by applying to the court to prevent the extradition, obtaining bail, obtaining information from police officers to assist the person's trial or by conveying the person's wishes to police.
What the police have to do to make a valid arrest

Three elements constitute a valid arrest:
  • words must be uttered by the arresting officer to indicate that the person is being arrested;
  • the arrested person must be touched or submit by accompanying a police officer, or stay where they are told;
  • a reason must be indicated for the arrest.
The police officer who performs the arrest must tell the person, either at the time or as soon as practicable afterwards, of the offence for which they are arrested [PAA s.127]. It is not necessary to state the actual charge, as long as the accused is informed of the substance of the offence. This requirement doesn't apply if they are caught 'red-handed' or it is impractical to fulfil it, such as when a person is resisting arrest.

An effective arrest must cause the detainee to reasonably believe that they will be forcibly prevented from leaving.

Use of force

A police officer may use as much force as is reasonably necessary to arrest a person [CCA ss.27, 28]. Unreasonable force is unlawful. A judge can decide whether force used was reasonable in the circumstances. For example, force 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] VicRp 2; [1962] VR 30). The use of handcuffs or a similar restraint might constitute reasonable force if the arresting officer believes that the person might attempt to escape. If a person resists arrest, the arresting officer can lawfully increase the force used in proportion to the force of that resistance.

It is an offence to assault, resist, hinder or obstruct a police officer in the execution of their duty, or to aid or incite another person to do so (PAA s.158; CCA s.189A).

A person who has resisted police may also be charged with that offence. Even when police are satisfied that the person is not guilty of the original charge, they can proceed with the charge of resisting police.

Detention for intoxication

A person who is apprehended because they are drunk can only be held in custody for as long as they are drunk and no longer than six hours. If, after six hours, police believe that the person is still intoxicated, they must take them before a judge as soon as is practicable. A person who is apprehended and taken into custody after midnight can be held in custody until 7.30am on the same day, even if they are no longer drunk [PAA s.129].

If police apprehend a person they reasonably believe is drunk or affected by drugs while in a public place or trespassing on private property, they shouldn't charge them or question them about an offence until they have been released from detention [PAA s.128]. Also, the person shouldn't be photographed or have their fingerprints taken [PAA s.130]. Any evidence or information obtained in these circumstances is inadmissible in court [PAA s.130(2)].

Police General Orders detail the procedures police should follow when they deal with people they apprehend. A person apprehended under section 128 of these orders should be given the following options:
  • they or someone acting on their behalf can ask that they be taken to a sobering-up shelter instead of the police lockup;
  • they can permit themselves to be released into the care of a person who police reasonably believe can adequately care for them;
  • they can request that a police officer take them before a judge so that they can apply to be released [PAAs.s133]. Police have to respond to this kind of request as soon as reasonably practicable.

Detention Without Charge

A person may be arrested without warrant under s.123 PAA in circumstances where, under s.133AB(1) of PAA, a Police officer believes on reasonable grounds, the person has committed, is likely to commit or is committing an infringement (fine-ticket) offence. The provisions allow the person to be detained up to 4 hours or if the person is intoxicated, until they are no longer intoxicated, without charge [s.133AB(2) PAA]. After this period, the person may be released with or without an infringement note or upon bail or brought before the Court. These provisions were examined in North Australian Aboriginal Justice Agency Limited & Anor v Northern Territory of Australia [2015] HCA 41.

Detention for investigation

A person who has been lawfully arrested and placed in custody for an offence, and subsequently refused bail under the Bail Act, must, as soon as practicable, be brought before a JP or a court, unless they are being detained under section 137 of the PAA. Under section 137 a person in lawful custody may be detained for a 'reasonable period' for police questioning or so that investigations can be conducted and evidence gathered in relation to the offence. A person who is arrested for one offence can be questioned in relation to another, as long as it carries a penalty of at least five years imprisonment. It does not matter whether the offence was committed in the NT.

Although the PAA does not make clear what length of time constitutes a reasonable period, it does list a number of criteria a court or JP may take into account when deciding whether a detention period is reasonable [s.138]. Such matters include:
  • the number and complexity of the offence(s);
  • the need to transport the person from place to place for detention where appropriate facilities are available to conduct an interview or other investigation;
  • the time taken waiting for the completion of forensic investigations or procedures;
  • the time taken to visit the scene of the crime;
  • the length of time the detainee was with police before and after being put into custody.
In general, the definition of a reasonable period varies from case to case, depending on the circumstances and the seriousness of the charges laid and the investigation requirements. This is a very contentious area of the criminal law and one that continues to be debated.

The investigating officer is required to keep a written record of the periods of time a person is detained under section 137 and the reasons for the detention. A person detained under section 137 can't leave police custody and has no right to be considered for bail.

Points to remember if arrested

  • A person should ask the police officer if they are being arrested and, provided they do not try to run, are entitled to know the reason for that arrest;
  • A suspect only has to give their name and address. A person who does provide information to police, makes a statement or gives a record of interview can, provided they have been properly cautioned, have that information used against them in court;
  • Police generally warn a suspect as soon as reasonably practicable after they have been arrested that anything they say may be taken down and used against them in evidence. If police do not caution a suspect, any confession subsequently extracted may be rejected by the court;
  • No attempt should be made to resist police. The police officer decides whether a suspect is to be arrested or summonsed and a person's behaviour will often determine the option an officer pursues. When the offence is a minor one, a person who acts politely toward police may avoid a charge altogether;
  • A person who suspects that their arrest is unlawful should object as frequently as possible and, where possible, in the presence of independent witnesses;
  • Independent people should be informed about the arrest and place of detention as soon as possible. A lawyer should be requested and the detainee should not answer any questions until they have spoken to them;
  • A person who decides they will not say anything to police should make that decision clear. The person should state their name and address and then advise police 'I do not want to say anything further at this stage'. This should be repeated if police continue to question or put forward allegations. A person who can safely help police with their inquiries should do so;
  • If asked by an accused's legal representative, spouse, parent or child, a police officer must say if the accused is being held in custody and, if so, where they are being held. However, any such disclosure can only be done with the consent of the accused [PAA s.135];
  • A person arrested for failing to pay a fine has the right to be taken before a Local Court. Police General Orders provide that a fine defaulter who is confined in a cell must be brought before the court within 24 hours.

Being questioned

Police may question a person before and after arrest. When a person volunteers information to police and admits involvement in an offence, police are then obliged to advise the person of their rights and administer a caution; a person does not have to say anything but anything they do say may be given in evidence.

Special guidelines must be adhered to when questioning foreign nationals, juveniles, Aborigines and other disadvantaged groups, such as migrants (see Special rights , below).

Refusing to answer questions

A person who does not wish to say anything to police should make that wish clear. They should state their name and address and then advise police: 'I do not want to say anything further at this stage'. If police continue questioning or put forward a series of allegations, the suspect should repeat their wish not to say anything.

Except in specific cases (see When information must be given , above), a person need not answer police questions, write or say anything. However, a person who exercises their right to remain silent should remember that:
  • answering questions can sometimes help police decide whether to proceed with a charge - a person who can assist police with their inquiries would often be wise to do so subject to being cautious about saying things which may tend to incriminate themselves;
  • refusing to answer some questions but not others could lead police to assume a level of guilt with regard to the unanswered questions.
The fact that a person refused to answer questions can be given as evidence in court, but a judge will note, or a judge must inform a jury, that it is a person's basic right to refuse to answer questions and any refusal is not to be taken as evidence of guilt or innocence.

Guidelines police must follow

Police must ensure fairness in interviewing. For example, they must not subject a suspect to prolonged questioning or insist that a question be answered. The following principles apply to any person being questioned by the police.

Evidence obtained through repeated interviewing or cross-examinations, by continually putting allegations to the person after they have denied them or by continual questioning after the person has refused to answer, may be excluded by the court.

A person who has had their words recorded by police in an electronically recorded interview will receive a copy of the recording. A person has a right to refuse to:
  • answer any questions;
  • sign any statements;
  • take part in an ID parade;
  • consent to any the collection of forensic samples, such as blood and hair samples (though these can be authorised in certain circumstances (see Forensic examinations and samples below);
  • take part in any re-enactment of an alleged crime.
A person who is questioned about matters unrelated to their initial arrest should be informed of the matter under investigation. Also, police must:
  • inform the person, before any questioning or investigation commences, that they do not have to say anything and that anything they do say may be given in evidence;
  • inform the person that they are permitted to communicate with a friend or relative to let them know where they are. This advice and the person's response should, where practicable, be electronically recorded;
  • defer all questioning and investigation for a time that is reasonable in the circumstances to enable the person to make the above communication.
The investigating officer doesn't have to comply with these requirements if they believe, on reasonable grounds, that such communication would result in either the escape of an accomplice or the fabrication or destruction of evidence or where questioning in an investigation is urgently required to protect the safety of others [PAA s.140(c)(d)].

The powers of police to question a person about a Commonwealth offence, such as social security fraud or the importing of illegal drugs, are governed by the Crimes Act 1914 (Cth) [s.23].

Confessions and admissions

If, during the course of questioning, the police tell a person that a co-accused has confessed or that they have information or material that implicates them, the person should ask the police to confirm their assertions with written evidence. If, after reading it, the suspect verbally agrees with a statement supposedly from a co-accused, the statement can be considered to have been adopted and may be used as evidence against the person.

In addition to written statements, police can and do use verbal conversations as evidence in court. There is no such thing as an 'off-the-record' conversation with a police officer.

Subject to an overriding discretion of the court to admit evidence in the interests of justice [PAA s.143], evidence of a confession or admission can only be admitted as part of the prosecution case where the questioning and anything said by the person was electronically recorded and is available to be tendered as evidence. Similarly, any alleged confession or admission made prior to questioning must be confirmed by an electronic recording. However, electronic recording is not required for minor offences such as traffic matters, or offences for which less than two years imprisonment is punishment.

Record of interview

In the NT, the interview (often referred to as the record of interview) between the police and a person must be video-taped and/or audio-taped. Any conversation between police and a person about an offence should be included in the taped record of interview so it can be said to have been adopted by the person. It is not common for a record of interview to be written. If a record of interview is in writing, it should be signed by the person.

A person who reads and signs a document or agrees that it is correct adopts all that the document contains. A record of interview should never be signed unless the accused has read it through, word by word, has understood it, agrees with everything stated in it, and believes it to be an accurate record of the conversation. A person can sign a record of interview that contains only their refusal to answer questions.

Where a person refuses to sign a record of interview, the interviewing officer commonly asks them a series of questions about their understanding of the record of interview, its honesty and accuracy and the fact that it was obtained without duress, threats or promises. The accused is then asked to write their answers at the end of the record of interview. Using this method, the police may be able to have an unsigned record of interview held as admissible as a voluntary and accurate record of interview.

A person whose interview has been electronically recorded is entitled to receive a copy of the audio recording within seven days of requesting it or must be given the opportunity to view any video recording. In addition, any transcript of an electronic recording prepared by police must be made available, at no charge, to the person or their legal representative within seven days of the request.

Checking police procedures

A person who is charged with an offence and wishes to plead not guilty should complete the following check list of questions. These questions are only a guide and should not be taken as a comprehensive list:
  • If arrested according to a warrant, is the warrant valid?
  • If arrested according to a warrant, was the warrant duly executed and the accused taken before the appropriate person as ordered by the warrant?
  • If not arrested according to a warrant, was the arrest lawful?
  • Was the arrest properly carried out?
  • If search warrants were used for any purpose, were they valid? For example, were they dated or did they extend past the expiry date on the search warrant?
  • If arrested without a warrant under section 137 and 138 of the PAA, was the person held for a reasonable period?
  • If the accused was not arrested, was it proper for the police not to arrest the accused at that time?
  • If apparent admissions have been made by the accused, has the prosecution established that those alleged admissions were made voluntarily?
  • Have aspects of the case presented against the accused been obtained by unfair or improper methods?
  • In the course of conducting the investigation, have the investigating authorities behaved illegally or with impropriety?
  • If the Anunga Rules apply, have they been followed? (see Aborigines and the Anunga Rules, this section)

Other actions that may occur when in custody

Forensic examinations and samples

In 1998 the NT Police established a DNA database and amendments were made to the PAA to allow police of the rank of superintendent and above to approve non-intimate samples to be taken from a person in custody; in certain circumstances intimate or body-invasive samples are taken, but these require the approval of a magistrate. Even where a person is a suspect and has not been formally charged by police, they may be required to give a non-intimate sample where proper authorisation has been obtained [PAA s.145A(1)(a)].

The most common ways for police to obtain non-intimate samples are to take:
  • a buccal swab, which sees a cotton-bud like stick wiped around the inside of the person's mouth;
  • a sample of hair, other than pubic hair;
  • a fingerprint or handprint;
  • a photograph of the person.
A person can give a sample with their DNA to the police voluntarily [PAA s.145b]. A person might want do this to eliminate themselves from an investigation. For example a victim of a crime might want to help police by submitting their own DNA.

Police also commonly fingerprint a person and take photos [PAA s.146]. Reasonable force may be used by police to obtain such samples where the person is in lawful custody.

Line-ups

In many cases investigating authorities want to provide an alleged victim with the opportunity to visually identify a person. The following rules apply to line-ups:
  • the failure of a witness to identify a suspect in a line-up can be used in court as evidence of the person's innocence. Also, if the suspect was identified, the conduct of the line-up can be challenged during the trial;
  • an identification parade must be supervised by senior police officers who should not be one of those investigating the offence;
  • the suspect must be placed amongst seven people of the same physical type, can choose where to stand in the line-up and should be asked to state any objection to the arrangement of the line-up;
  • precautions must be taken to ensure that witnesses are not led to make anything other than an independent assessment of the people in the parade.
A person doesn't have to take part in an ID parade, but if they refuse, police are entitled to proceed with the photograph identification process.

Special rights

Foreign nationals

According to the Vienna Convention, a foreign national in custody has certain rights, as follows:
  • any foreign national held in custody must be informed of their right to communicate with the consular officers representing their country in Australia;
  • a foreign national's request to advise their consular officers that they are in custody must be complied with by the officer;
  • all mail from the person held in custody to the consular post must be forwarded without delay;
  • unless the foreign national expressly opposes such action, they should be permitted to be visited by nationals of their own country;
  • unless a national does not expressly refuse their consent, consular officers can converse and correspond with them and arrange legal representation for them if they are in prison.

Juveniles

Juveniles should only be arrested where a police officer believes on reasonable grounds that either of the following apply:
  • proceedings by summons will not ensure that the juvenile appears at court;
  • if the juvenile is released there is a substantial risk that they will commit further offences or there will be destruction of evidence or bodily harm to the juvenile.
The Juvenile Justice Act and Police General Orders set out the requirements for arrest, interrogation and detention of juveniles (see Young people and crime ). Also, the changes that were made to the PAA regarding forensic examinations and samples were also made to the Juvenile Justice Act. So in this respect juveniles are subject to the same rules as adults.

Aborigines and the Anunga Rules

In 1975 a NT Supreme Court case, R v Anunga (1995) 11 ALR 412, successfully challenged the validity of alleged confessions made by an Aboriginal defendant. In that case the court set down a series of guidelines for police to follow when interrogating Aboriginal people. The guidelines or Anunga Rules, as they have come to be known, aim to make interrogation a fairer process for Aborigines or anyone who may be disadvantaged, such as migrants.

If police do not comply with the Anunga Rules, the court may look carefully at any 'confession' made by an accused and reject it on the grounds that is unfair to the accused.

These rules or guidelines are as follows:
  • An interpreter should be used by police when the accused is not reasonably fluent in English;
  • A prisoner's friend (who may also be the interpreter) should be present throughout the interrogation to provide independent support. The role of prisoner's friend can be a difficult one and it should be remembered that the friend is there to provide independent support and advice. The friend should not pressure the accused into saying things that they would rather not say. The police are not obliged to choose an appropriate prisoner's friend; the choice must be made by the person being interviewed. If the friend can't understand the police, further help, preferably from a solicitor, should be sought (see Legal help );
  • Great care should be taken by police when they give the standard caution; that is, when they inform the person that they do not have to answer any questions. To confirm that the accused has understood, they should be asked to explain the caution in their own words;
  • Police should not cross-examine the accused; that is, questions should be open-ended;
  • Even when an accused makes a frank confession to an offence, the investigation should continue to obtain proof from other sources;
  • Meals, refreshments and toilet facilities should be appropriately provided;
  • No interrogation should take place when people are disabled by disease or drunkenness;
  • If a person requests legal assistance, reasonable steps should be taken by police to obtain it;
  • When clothing is removed from the person for forensic examination or medical examination, substitute clothing should be supplied.
The rules are not actually rules of law but guidelines constituting some of the circumstances which if not followed, may lead to the exclusion of otherwise admissible evidence of a confession by a defendant.

Undercover agents and controlled operations

Sometimes police deceive a suspect about their identity to obtain evidence or information of criminal activity. They may lead the person to believe they are, for example, well known in drug circles; induce the person to engage with them in drug dealing; and then arrest the person for it.

Deceiving a suspect about police identity is permissible. Even possession and sale of drugs by police is allowed, if they have received express authority to engage in which is now known as a controlled operation.

Obtaining false documents

Police and other agencies using undercover agents can lawfully obtain false documents such as birth certificates and licences to lend support to their assumed identity (Law Enforcement and National Security (Assumed Identities) Act 1998).

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