Our Brisbane lawyers explain the police rights you need to be aware of during criminal proceedings, and when you should seek legal assistance.
Police Questioning
In any situation, whether you have been arrested, been taken to the police station for questioning or have been stopped in the street, you have the right to remain silent. That being said, the police do have the right to ask you basic questions, and you may be breaking the law if you refuse to answer. These basic questions include;
- Your name and address
- Your place and date of birth
- Information regarding an accident you’ve witnessed
The police can also ask other questions under certain circumstances, so it’s best to seek legal advice when possible if you’re unsure.
Being Arrested
If the police see you breaking the law, or they reasonably suspect you’ve either broken the law, or may do so in the future, you can be arrested. It’s important to know that the police don’t always require a warrant to make an arrest. Usually, it’s best to comply with their requests and to understand your rights while doing so.
If you’re being held for questioning, the police can only hold you for up to 8 hours before they need to apply to a magistrate or Justice of the Peace for an extension. If you’re worried about the legality of your arrest, seek legal advice as soon as possible.
Being Charged
An important distinction to make is that the police don’t have to arrest you to charge you with an offence. In Queensland, there are four ways that police may charge you with an offence that warrants a court appearance;
- The police may arrest you, and keep you in custody until your court appearance
- You may be given a notice to appear in court
- You may be given a complaint and summons to appear in court
- If you decide to oppose an infringement notice and opt to appear in court instead of paying a fine
With any court appearance, we recommend seeking legal advice. If you cannot afford a private lawyer, find out if you’re eligible to apply for legal aid.
Search Warrants
Genereally speaking, the police will require a search warrant to search your property or vehicle. However, certain situations allow police to search without a warrant and without your consent.
The police may take your property as evidence during a search, but they must give you a receipt for items taken as soon as possible. They can hold your property for no more than 30 days before requiring a court order. If you believe your items should have been returned already, you can make a complaint. However it is best to seek legal assistance to do so.
Being Held in Custody
If you’ve been arrested by the police and taken to the station, they may decide to hold you in custody. Once you’re in custody, the police have the right to:
- Search you and your belongings
- Take your property as evidence
- Take identifying particulars (fingerprints, photos of scars or tattoos, handwriting samples etc.)
- Take DNA samples in more serious cases
- Keep you in custody until your court appearance
If you’ve been charged with an offence and the police refuse to give you bail, they must take you to the court as soon as reasonably possible. Once there, you can apply for bail. For any court appearance, seek legal representation for the best possible outcome.
Identification & DNA Samples
As mentioned above, if you’ve been arrested or charged with an offence, the police have the right to take identifying particulars (things which differentiate you from other people). Such as:
- Fingerprints
- Footprints
- Palm prints
- Handwriting samples
- Voice samples
- Photos of identifying features
- Body measurements
The police can also issue a notice to provide identifying particulars, which means you’ll need to go to the police station within 7 days to do so.
If your arrest or charge isn’t continued, or you’ve been found not guilty, your identifying particulars should be destroyed. However, they won’t be destroyed if:
- you’re being investigated or charged with another offence
- you’ve previously been found guilty of another offence, or
- you’re found unfit for trial because of a mental illness.
For more serious offences, the police may demand DNA samples, even if you do not agree to provide them. An authorised police officer, doctor or nurse can either take a mouth swab or a sample of your hair for DNA analysis. If you’ve been charged with a serious offence, you should definitely seek assistance from a criminal lawyer.
Brisbane Lawyers at Guest
Guest Lawyers act for all persons charged with criminal offences who are required to appear before the Magistrates and Supreme Court. We also conduct appeals in the Court of Appeal and High Court.
In addition to representing people all over Queensland, we often travel to other states and territories. Our Brisbane lawyers are admitted to practice all over Australia. For an initial consultation (including in prisons), please get in touch with us either via email or by calling (07) 3211 3007.