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I’ve been arrested…now what?!?

So you have just been arrested, what do you do?

Don’t agree to a formal police interview on your own without speaking to a lawyer first.

The first thing you should do is SHUT UP.

You have a right to remain silent. No negative conclusion can be drawn by a Magistrate or Judge from you relying in your right to remain silent.

What you see on the television is correct. What you say during a recorded interview can be used against you and it often is. There are countless examples where we have had clients provide statements or taken part in a recorded interview with police and made either partial or full admissions. You could be convicted of a crime based on your admissions only – even if police have no other evidence against you or the alleged victim decides they don’t want to go ahead with the charges. If you choose to speak to police without knowing what evidence they may or may not have against you – you’re likely to put your foot in it and stitch yourself up.

Don’t answer police questions that you are not legally required to answer without speaking to a lawyer first.

There are a number of questions that police can ask you which you are legally required to answer.

Even if you do not want to participate in a police interview, you will need to state your name and address – if police don’t already know it.

You are also required to answer the following questions:

  • where police reasonably suspect a person has committed or is about to commit an offence (giving name and address);
  • drivers of motor vehicles;
  • proof of age of people on licensed and regulated premises;
  • to customs officers regarding drugs;
  • to avoid assisting an offender; and
  • in relation to firearms – contact us today for more in depth information about this specific issue.

If you are being asked one of these questions that you are required to answer and initially refuse, police will spell it out clearly to you that it is a criminal offence if you refuse to answer so that you know you need to answer.

You have a right to remain silent, No negative conclusion can be drawn from exercising this right.
Dylan Walsh, Bersee Legal

Outside answering questions you are required to, these are the only two things you should say to a police officer:

  1. I would like to speak to a lawyer” ; and,
  2. If they ask you anything further “no comment”.

Police are well trained and can often lead people into answering questions. A classic example of this is when you refuse to participate in an interview, and the police officer says he or she “just wants to put the allegations to you“. You don’t need to hear the allegations from the police officer – he could very well be baiting you because changes are you are not going to be happy hearing whatever it is the alleged victim or police believe you are guilty of. Your lawyer can read the allegations to you in private so that any comments you make are privileged (confidential) and informed.

If you decide not to answer any questions, you need to stick to this decision.
Dylan Walsh, Bersee Legal

If you decide not to answer any questions, you need to stick to this decision. Do not answer some questions and not others. Whilst no negative conclusion can be drawn about you choosing to exercise your right to remain silent, if you answer some questions selectively may later be interpreted negatively by a Magistrate or Judge as evidence of a guilty conscious.

Call a friend. Namely, your lawyer.

You always have the right to have someone in the interview with you. We at Bersee Legal are frequently at the cells both inside and outside business hours.

We can advise police on your behalf that you do not want to participate in an interview.

Alternatively, after speaking with a lawyer, you may make an informed decision to participate in a police interview. We can sit through the interview with you or assist you to prepare a written statement to give to police. Where you have a valid explanation, we can assist you to explain this to the police and mitigate risk that it will be misinterpreted or used against you as evidence of guilt. This must be done in a calculated and considered way.

Where police don’t follow proper procedure

If police fail to warn you of your right to remain silent, any evidence that you give may not be able to be used in court against you. Should police overstep the mark in interviewing a person, this can also affect the admissibility of evidence gained from those actions. For example, if you say that you do not wish to answer any questions, and police continue to ask more questions or attempt to induce you to give information in return for promises of bail, any answers you may give may not be admissible and able to be used against you in Court.

If you are arrested or have questions about criminal charges, you can contact one of our helpful staff to discuss what might be right for you.

Dylan Walsh – Solicitor

Dylan graduated with a Bachelor of Laws from Deakin University and is admitted to the Supreme Court of South Australia.Dylan specialises in the areas of criminal law, police custody matters, divorce, debt recovery and wills and estates. Dylan is a member of the general panel of the Legal Services Commission of South Australia.
Contact: dylan@bersee.com.au
(08) 8725 6969
Legal Secretary: Ms Mikaela Horrigan
Contact: admin@bersee.com.au