Police questions

Contributed by AndrewRobson and current to 27 July 2018

The general rule is that you have a right to silence which means that you are not required to answer police questions.

There are exceptions to the general rule.

Police must caution a person before interviewing them as a suspect, this is set out under the s 138(2)(b) Criminal Investigation Act 2006 (WA).

Any information provided to the police may be used against an accused in court to prove a charge against him or her. Legal advice should therefore be obtained before taking part in an interview with the police.

A request can be made for a lawyer to attend the interview with the police, and the police must give the arrested a reasonable opportunity to communicate or attempt to communicate with the lawyer (s 138(2)(c) Criminal Investigation Act 2006 (WA)).

If the person is under eighteen, the police should arrange for an independent person to be present during the interview. If you require an interpreter, the interview should not commence until one becomes available (s138(2)(d) Criminal Investigation Act 2006 (WA)).

Generally, police interviews are recorded on video. A copy of the interview will be provided to the accused or his or her lawyer upon request. Pursuant to s570D of the Criminal Code, evidence of an admission for a serious offence is not permitted to be used in court unless the admission is on video tape, there is a reasonable excuse for there not being a video tape, or there are exceptional circumstances justifying the use of the admission.

Generally, an arrested person should not say or write anything about any offence to any person.

During the interview the arrested person is not obliged to make any statement, written or oral, or answer any questions. Whether they choose to make a statement or not does not improve their bail chances, and may not change whether they will be charged or not.

In many cases people are convicted due to their own admissions as evidence of guilt.

Police are experts at eliciting information from people. There is no such thing as an ‘off the record’ conversation with a police officer.

There will be occasions when it will be in the interests of a person arrested by the police to make a statement. Detailed legal advice is necessary to determine if it is in the interests of an individual to be interviewed. It may be desirable to talk to police if there is a valid explanation – for example, in a case of suspected theft, if the suspect had the consent of the owner for taking the goods concerned.

A person who, after legal advice, wants to plead ‘guilty’ may wish to talk to police to get on the record the exact extent of his or her involvement, or to explain the circumstances of the offence or to express remorse. Where a person wants to surrender to police, a lawyer can assist in preparing a statement of these matters.

When must I answer police questions?

Generally, you do not have to answer police questions but there are some exceptions to this general rule. These are outlined below.

Personal details

A police officer has the power to request a person’s full name; their date of birth; the address where that person lives; and the address where the person usually lives if the police officer reasonably suspects that an offence is being, has been, or is about to be, committed, or if the officer believes that the person may be able to assist in the investigation of an offence or a suspected offence (s16 Criminal Investigations (Identifying People) Act 2002 (WA)).

A police officer, in these circumstances, also has the power to request that a person provide evidence of the correctness of any personal details, where the police officer reasonably suspects the details given are false (s16(3) Criminal Investigation (Identifying People) Act 2002 (WA)).

A person who, without reasonable excuse, fails to comply with any such request or where in response to any such request, provides false personal details or evidence, commits an offence.

Traffic matters

The police have the power to stop a car and to require the name and address and similar details of the owner of the vehicle. Giving false details or refusing to give details is an offence (s53(1) Road Traffic Act 1974 (WA)).

The police can also request the driver of a vehicle to produce a license or to take the license to a police station within a reasonable time.

The police can require any occupant of a motor vehicle to undergo a preliminary breath test where the driver is unknown. It is an offence to refuse this.

If an accident occurs and a person is injured or property is damaged, the driver of the car must stop and produce their license, as well as providing their name and address (and the name and address of the owner of the car) to the other driver or a police officer (s54 Road Traffic Act 1974 (WA)).

Details of an accident must be reported to the nearest police station when there is resulting injury or property damage. Accidents can also be reported online.

When an offence occurs under the Road Traffic Act or an accident results in death or bodily harm, the owner or the person in control of the vehicle is required to identify the driver of the vehicle (s.57 and s58 Road Traffic Act 1974 (WA)).

Proof of age

If you are in a pub or anywhere that sells alcohol the police and staff have the right to ask you for proof of age if they know or suspect on reasonable grounds that you are a juvenile (s126 Liquor Control Act 1988 (WA)).

Drug matters

Police when conducting a search in relation to the manufacture, sale or supply of prohibited drugs and plants have the power to require a person to give information (s25(1)(b) Misuse of Drugs Act 1981 (WA)).

Failure to provide the information is a simple offence (s25(2)).

The information given pursuant to this requirement is not admissible in proceedings other than for the simple offence of failing to provide the information (s25(3)).

Firearms

A person must answer questions where police reasonably suspect the person is able to give information or evidence relating to an offence or suspected offence involving firearms (s24(4)(a) Firearms Act 1973 (WA)).

Customs

A customs officer may require information to be provided about the import or export of goods, or any information about the import or export of drugs. This questioning may occur before a person boards a ship or aircraft, while they are on board or after they have disembarked.

Personal details, such as the name and address of a person, must be given if under arrest when a search warrant is being executed and it is believed that the person can assist with the execution of it, where the person is found in a restricted area or where the person is claiming a package.

Public transport

You must give your name, date of birth and address to a transit officer upon request.

Terrorism

Police can request personal details if they reasonably suspect that a person is about to enter or recently left a target area; a target person; in the company of a target person in suspicious circumstances; or in a target vehicle under the Terrorism (Extraordinary Powers) Act 2005 (WA).

It is an offence not to comply with these police requests (s32 of the Act and the offence carries a fine of up to $12 000 or imprisonment for 12 months).

Data access order

A police officer may apply to a magistrate for a data access order under s58 of the Criminal Investigation Act 2006 (WA) that a person provides information or assistance reasonable and necessary to allow the officer to gain access to the data a device may contain and copy or reproduce that data.

A person who having been served with such an order does not obey it commits an offence.