When a person is suspected of committing a crime, the police have extensive powers to investigate the matter. In South Australia, most of the police powers are set out in the Summary Offences Act 1953 (SA).
Technically, everyone has the power to investigate and prevent breaches of the law, and even arrest people who are committing a serious offence. A practical example of a citizen's arrest is a where a store security officer stops a shoplifter caught in the act. See Police security officers, security guards and others for more information.
In practice, however, it is usually the police who arrest people. The law has extended their power so that they can also arrest people who are about to commit an offence, who are planning an offence, or who the police reasonably suspect have committed an offence.
See also The Police and You factsheet and our Duty Solicitor Handbook chapter on Police powers and forensic procedures.
When investigating a crime, the police may question anyone.
It is a fundamental principle of criminal law in Australia that a person may remain silent and refuse to answer all questions put to them. Legal advice should be sought before answering any questions.
There are some important exceptions to this rule that require a person to answer certain questions. These exceptions can apply whether or not the person is a suspect or has been arrested or charged with an offence. These exceptions include:
These exceptions are explained further in the pages that follow.
It is best to cooperate with the police, be polite, answer the questions that must be answered, and not answer any other questions. Police will usually indicate which questions must be answered. A person may ask police if unsure.
If there is anything a suspect wants to tell the police, such as an alibi, they should first talk to a lawyer so that the lawyer can help provide the information to the police. It is a good idea to give that information (especially about an alibi) to police as soon as possible after getting legal advice so that it does not look like it has been invented later.
Questioning at a police station without arrest
Police often ask people to accompany them to a police station. This is only an invitation. The police can only force someone to go to a police station if they are under arrest.
A person who refuses to go with the police may be arrested and charged, and taken into custody, only if the police reasonably suspect that person of committing or having committed an offence, or of being about to commit an offence [Summary Offences Act 1953 (SA) s 75]. Otherwise the police cannot lawfully detain the person.
Detention without making a lawful arrest is false imprisonment for which the police can be sued. It may also mean evidence obtained is excluded from evidence in a trial.
Passwords and pins
There is generally no requirement to provide a password, pin or code to unlock or access a mobile phone, computer or other electronic device or an app or software held on such a device. Police usually need a court order to compel a person to provide their password or pin. Of course, police may be authorised to seize and search an electronic device (for example, under a general search warrant [Summary Offences Act 1953 (SA) s 67]) and may not need the password or code to access data.
Under s 74A of the Summary Offences Act 1953 (SA), a person will be required to give their personal details to police if:
A police officer may request any or all of the following personal details in either of the above circumstances:
A person suspected of having committing an offence involving children may also be required to to give the name and address of any place they work or volunteer.
It is an offence to refuse to comply with a police requirement to give personal details or to give false details, with a maximum fine of $1,250 or imprisonment for up to 3 months [s 74A(3)].
If there is reasonable cause to suspect that the name or address given is false, the police officer may require the person to produce evidence, such as a driver's licence, to prove the details provided [s 74A(2)].
A police officer who has required a person to state their personal details should identify themselves if asked to do so by either producing their police identification or stating orally or in writing their surname, rank and identification number [s 74A(4)].
A person can be required to answer police questions that may help police identify the driver or owner of a vehicle on a particular occasion [Summary Offences Act 1953 (SA) s 74AB].
It is an offence to fail, without reasonable excuse, to answer a police question about the identity of the driver or owner of a motor vehicle, or to provide false information [s 74AB(2)]. The maximum penalty is a fine of $1,250 or imprisonment for 3 months [s 74AB(2)].
A police officer or an officer authorised under the Road Traffic Act 1961 (SA) can also ask any person they reasonably suspect to be the driver or owner of a motor vehicle, or anyone who may be able to help with the investigation of a suspected road traffic offence, questions to ascertain their personal details [Road Traffic Act 1961 (SA) s 40V(2)]. Personal details include full name, date of birth, residential address and business address [s 40V(1)].
It is an offence to fail to comply with a request for personal details or to provide false or misleading information or evidence, with a maximum penalty of a $5,000 fine [s 40V(4)]. It is a defence to the offence of failing to provide details of a business address if the person can establish they did not have a business address or that their business address was not connected (either directly or indirectly) with road transport [s 40V(6)].
The police or an authorised officer can also stop a vehicle and ask the driver who the owner is, the type of material being carried and details of the current or intended trip of the vehicle [s 40X]. This carries a heavier maximum penalty of $10,000 for non-compliance.
Police also have the power to give general directions in order to regulate traffic.
Power to require proof of identification
A police officer or authorised officer who suspects on reasonable grounds that a personal detail provided is false or misleading may require the person to provide evidence of the correctness of the detail [s 40V(3)].
The Motor Vehicles Act 1959 (SA) requires a driver to produce a licence immediately if asked by the police. If they are not carrying their licence, it must be taken to a police station within 48 hours. The penalty for failing to comply is a maximum fine of $1,250 [s 96]. Certain drivers, such as drivers of heavy vehicles [s 98AAA] and drivers who hold a probationary licence, provisional licence or learner's permit [s 98AAB], must carry their licence or permit at all times.
Proof of Age
A prescribed person can ask for proof of age whenever a person is either on, or about to enter, a licenced or regulated premises, or when a person is, or has recently been, in possession of alcohol [Liquor Licensing Act 1997 (SA) s 115(1)]. There is no requirement for the prescribed person to suspect that the person may be under the age of 18.
This applies to premises included licences premises as well as restaurants, cafes, shops, amusement parlours or arcades, or similar places of public entertainment.
A prescribed person for the purposes of the Liquor Licensing Act is [s 115(3)]:
The maximum penalty for failing to produce proof of age when required is a fine of up to $2,500 or an expiation fee of $210 [s 115(2)].
Seizure of Proof of Age document
Where a police officer, inspector, security agent, or licensee or responsible person of a licensed premises requests the production of a person's proof of age, and they reasonably believe that the proof of age document is forged, contains misleading information, or that the person who produced the document is not the person identified in the document, they can seize the document [s 115A]. They cannot, however, seize a person's passport [s 115A(2)(a)].
Where a person other than a police officer or inspector seizes the identification document, they must present it to the police within 7 days of the seizure [s 115A(4)]. A person whose identification document has been seized must be given certain written information in accordance with the regulations [s 115A(3); Liquor Licensing (General) Regulations 2012 (SA) reg 18A]. Within 14 days following the seizure, if a person attends at the police station where the document is held, and satisfies a police officer that it is the person's authentic property, then it may be returned. If this does not occur, the police officer may destroy or dispose of the document [reg 18A(5)].
Removal from premises if under 18
The police or an authorised person may use reasonable force to evict a person, or prevent the entry of a person into the licensed premises, who is under 18 years, who has not produced age identification, or who is suspected on reasonable grounds of being under 18 years [Liquor Licensing Act 1997 (SA) s 116]. A minor who re-enters the premises within 24 hours of being evicted faces a maximum fine of $2,500 (expiation $210).
Removal for disorderly behaviour
The police can also order anyone behaving in a disorderly or offensive manner to leave a place of public entertainment. A person who fails to leave or re-enters within 24 hours may be fined up to $2,500 or imprisoned for up to 6 months [Summary Offences Act 1953 (SA) s 73].
A person with a liquor licence may call the police to arrest anyone who is drunk, behaving in a riotous, indecent, threatening, abusive or insulting manner, or who is fighting [Summary Offences Act 1953 (SA) s 74].
Search for weapons
The police have the power to search anyone in, or attempting to enter or leave, licensed premises or the car parking area for the premises for weapons by metal detector. See Police powers to search for weapons.
Acting as an accessory
There is no general duty to voluntarily report a crime, and it is not a criminal offence to refuse to answer police questions (other than in the circumstances set out in this chapter).
Under s 241 of the Criminal Law Consolidation Act 1935 (SA), it is an offence to act as an accessory to an offender by:
To be found guilty, a person must take some positive action knowing or believing that another person has committed an offence. Lying to police about a material fact may amount to impeding an investigation but merely exercising a lawful right to refuse police questions is not an offence.
It is not an offence for certain professionals (for example, a lawyer, doctor or minister of religion) to give certain information or assistance to an offender as professional privilege may apply as long as it is not in the furtherance of a crime.
The maximum penalty for acting as an accessory will be determined by the penalty applicable to the principal offence.
The maximum penalty may be less if the accessory understood the principal offender to have committed a different offence to the one it is established they committed [s 241(4)].
Bail guarantors
A person who guarantees a suspect’s bail, and who knows (or reasonably suspects) that the suspect has breached a condition of their bail agreement, must take reasonable steps to inform the police, or risk having to pay some or all of the amount guaranteed and may also be charged and fined [Bail Act 1985 s 17A]. The maximum penalty for failing to report a suspected bail breach is a fine of $1,250.
The police may require a person who they reasonably suspect has information they need relating to firearms to answer certain questions, give their full name, date of birth and residential address, and produce identification [Firearms Act 2015 (SA) s 55(1)].
Police may ask whether a person is the owner of a particular firearm and, if they are not, who the firearm belongs to [s 55(2)]. If they are the owner of the firearm, they may be asked where their firearm is currently located and the identity of anyone who may have possessed it.
It is an offence to refuse, without reasonable excuse, to answer a question lawfully put by a police officer under s 55, with a maximum penalty of a fine of $20,000 or imprisonment for 4 years [s 55(5)]. The owner of a firearm may not refuse to answer a question about the whereabouts of their firearm on the grounds that the answer may incriminate them [s 55(7)].
Police may demand to see a firearm or a firearms licence immediately or require it to be taken to a police station within 48 hours [s 56]. Failure to comply carries a maximum penalty of a fine of $10,000 or imprisonment for 2 years.
The police can stop, detain and search any person or vehicle (and seize firearms, parts, and accessories) if they reasonably suspect that a firearm is unregistered or that a firearms offence is being committed or in certain other circumstances [s 57].
See further the Law Handbook section on Firearms.
Low-level criminal offending may be dealt with by way of a police caution as an alternative to being formally charged. This option is more commonly used in relation to young offenders (see Formal Police Cautions and Informal Police Cautions) but may be used in relation to adults.
Police cautions may only be used for minor offences and must be an appropriate sanction for the offence. In addition, an investigation of the matter must have determined that there would be a reasonable chance of conviction if the matter proceeded to court.
Use of an adult police caution must be approved by a Sergeant.
Before deciding to proceed with a police caution, police will consider:
When can police search?
The police can search premises, vehicles and vessels, and seize property:
Some police carry general search warrants issued for 6 months at a time [Summary Offences Act 1953 (SA) s 67].
Use of reasonable force
If it is a lawful search and seizure, the police may use reasonable force and it is an offence to hinder them.
The police may also search a person who is under arrest and seize any item reasonably suspected of being unlawfully obtained or any item relating to a crime. Reasonable force may be used by the police to effect a lawful search [Summary Offences Act 1953 (SA) s 81(1), (2)].
Power to enter premises
If a person is released on bail subject to a condition that they must live at a certain address, the police (or an authorised person) can enter that address to check if the person is complying with the bail condition [Bail Act 1985 (SA) s 11(7a)].
Powers of customs officers
Customs officers have extensive powers to search any ship, boat or aircraft in any port or airport. With a warrant they may search any premises or any container and seize any goods they reasonably believe are forfeitable goods.
Property seized during a search
Ordinarily, the police cannot keep property without an owner's consent, unless obtained as a result of an arrest, under a warrant, or if the property is material evidence needed to prove a crime. If property is seized and the person is later found not guilty, at the end of any applicable appeal period the person should write to the police to request return of the seized property. If, however, the person is found guilty, the property is either forfeited to the Crown (for example, a knife used to stab somebody) or, if it was stolen from another person, it is returned to its rightful owner.
Unlawful exercise of police powers
Where the police enter premises or seize goods unlawfully, it is a civil wrong. A court order can be sought for the return of property and/or the payment of compensation. A court will consider whether property was seized lawfully when deciding whether or not to admit it to prove an alleged offence. The court will consider whether, in the circumstances, it is fair to the accused person or whether for public policy reasons the evidence should be admitted or excluded.
Complaints about police behaviour may be made directly to the police or to the Office for Public Integrity. See The Police and You factsheet for more information.
An arrest is where a person is detained by another and is not free to leave.
The police may arrest someone with or without a warrant. Most arrests are made without a warrant. Alternatively, the police may issue a summons for a person to appear in court rather than arrest them.
Arrest with a warrant
A warrant for a person's arrest is a written authority from a magistrate or judge for the arrest of a named person. It authorises all police officers to arrest the person named whenever that person is found. It can be issued for an offence or for failing to attend court at a nominated time.
A person arrested on a warrant is taken into custody and must be brought before a court, unless the warrant indicates that bail can be granted by the police [Criminal Procedure Act 1921 (SA) s 20, Bail Act 1985 (SA) s 5(2)].
Arrest without a warrant
Under the Summary Offences Act 1953 (SA), the police may arrest someone without a warrant who:
Other South Australian laws also give police the power to arrest someone without a warrant who:
Under Commonwealth laws, the police may arrest someone without a warrant who:
Procedure upon arrest without a warrant
A person apprehended without a warrant must be delivered to the nearest police station as soon as possible [Summary Offences Act 1953 s 78(1)].
However, a person arrested without a warrant who is suspected of committing an indictable offence or an offence punishable by imprisonment of 2 years of more may be detained for as long as it takes to investigate the offence, up to a maximum of 8 hours [s 78(2)(a)]. During this time, the person may be taken to places connected with suspected offences to assist police in their investigation [s 78(2)(b)]].
For other particular types of arrest, such as arrest in relation to intervention orders or breach of parole, certain procedures must be followed. For example, see Parole.
Alternatives to arrest
Rather than arresting someone, police may order a person behaving in a disorderly or offensive manner in a place of public entertainment to leave [Summary Offences Act 1953 (SA) s 73]. Police may also order a person to leave a declared public precinct [s 66O]. See Declared public precinct offences for more information.
A person who is under the influence of a drug in a public place such that they are unable to take proper care of themselves may be taken to a sobering up centre or police station before being released. This is not an arrest [Public Intoxication Act 1984 (SA) s 7].
When it appears to a court that a person has broken a term or condition of bail the court can issue a warrant for the person's arrest. These are known as warrants of apprehension.
First Instance Warrants
These are warrants of apprehension issued by magistrates courts when a defendant has failed to appear in court on the date stipulated on either a summons or a bail agreement. If such a warrant is issued it is advisable for a defendant to surrender at a police station and ask to be brought before a court for a fresh application for bail. Bail can be more difficult to obtain if there is a history of breaches and subsequent warrants. It may therefore be advisable that the defendant attends the police station with a guarantor who can be present in court for the application. The defendant should also bring any medical certificates or evidence that supports a legitimate reason for non-appearance.
Bench warrants
These are warrants of apprehension issued in a higher jurisdiction (District Court or Supreme Court).
They are issued because the defendant either failed to answer bail in that jurisdiction following committal of an indictable matter or failed to answer a summons to appear in relation to estreatment of bond proceedings.
Parole warrants
These are warrants issued by the presiding or deputy presiding members of the Parole Board of South Australia or a Magistrate.
These are issued where there are reasonable grounds (on their own part, that of the Chief Executive of the Department for Correctional Services or a police officer) to suspect that a person has breached parole [see Correctional Services Act 1982 (SA) ss 76(1)(b), (2)(b)(i) and 76A(1)(a)]. The person is detained until they appear before the Parole Board [see ss 76(4) and 76A(2)].
Interstate warrants
Courts in other States may issue warrants that are enforceable in South Australia. These may be for unpaid fines or for offences not yet finalised. A person arrested on such a warrant has a right to apply for bail.
Warrants of commitment for unpaid fines
Warrants known as warrants of commitment were once issued in South Australia for unpaid fines. The power to issue such warrants no longer exists in this State.
Effecting an arrest
There are no particular words that must be used when police arrest someone, but they must make it clear that the person is under arrest and is not free to leave.
An invitation to attend a police station and answer questions is voluntary unless the person has been arrested. A person who refuses to go with the police may be arrested and charged, and taken into custody, only if the police reasonably suspect that person of committing or having committed an offence, or of being about to commit an offence [Summary Offences Act 1953 (SA) s 75]. Otherwise the police cannot lawfully detain the person. Police should make it clear to the person they are questioning if they are free to leave at any time.
Use of reasonable force
A police officer may use as much force as is reasonably necessary to effect an arrest. Unreasonable force is assault. Where there is a dispute as to the reasonableness of the force used, it will be up to the court to decide whether the force used was reasonable in the circumstances. A person who believes unreasonable force is used against them may consider making a complaint directly to the police or to the Office for Public Integrity.
Handcuffs or a similar restraint are usually considered reasonable where the person has physically resisted arrest or attempted to run away.
It is an offence for a police officer to place a spit hood on a person's head, with a maximum penalty of imprisonment for 2 years [Summary Offences Act 1953 (SA) s 82A]. A spit hood is a covering that is intended to be placed over a person's head to prevent the person from spitting on, or biting, another person.
Hindering and resisting arrest
It is an offence to resist or hinder a police officer in the execution of their duty – including the making of a lawful arrest [Summary Offences Act 1953 (SA) s 6]. Both hindering and resisting involve a conscious and voluntary act on the part of the person concerned. The person concerned must have realised that their actions frustrated the police in performing their duty.
Hindering does not require physical interference, although it can involve this (such as physically preventing police from lawfully entering a property to speak to an occupant). It can include behaviour such as constant and unwarranted interrupting of police while they are attempting to question another person, or acting as a ‘lookout’ to warn others of a police presence.
Resistance also requires some kind of positive action designed to defeat police in performing their duties. Although it most commonly involves physical force by the person being arrested, it may be constituted by passive resistance techniques such as those commonly employed in civil protests (such as sitting or lying down, linking arms with others and becoming inert and refusing to cooperate).
Where direct force is used to resist arrest, the likelihood of a police officer being assaulted during the process is high. Assaulting a police officer during the course of their duties is a serious offence attracting heavy penalties under s 6 of the Summary Offences Act 1953 (SA) and ss 20 and 20AA of the Criminal Law Consolidation Act 1935 (SA).
Generally an arrest will be lawful if the police officer who carries it out has reasonable cause to suspect an offence has occurred or will occur. The arresting officer may be mistaken as to the facts, in which case the person will be later released. Provided the officer had an honest and reasonable belief in the relevant facts, then they have acted lawfully. For that reason, no attempt should ever be made to resist arrest.
A person who is wrongfully arrested should seek legal advice before considering options such as taking civil action for damages or compensation or making a complaint to the Office for Public Integrity.
Police security officers
Police security officers are appointed under Part 9A of the Police Act 1998 (SA) to protect certain people, places or vehicles. They are not police officers and cannot exercise the broad powers of the police. Police security officers instead have only those powers necessary to ensure the protection of the person, place or vehicle they are protecting. This includes giving reasonable directions for the purpose of maintaining or restoring security, such as directing a person attempting to enter a protected place to produce identification and submit to a search [s 63Q].
A person who fails to comply with a police security officer’s lawful direction may be refused entry, removed from the protected place or detained until they can be handed over to the police. Reasonable force may be used. It is an offence to hinder or obstruct a police security officer in the course of their duties, refuse their lawful directions or provide a false identity, with a maximum penalty of $2,500 or imprisonment for 6 months [s 63V].
Security guards and others
In some circumstances private citizens may make a lawful arrest (known as a citizen’s arrest):
Suspecting someone of having committed an offence is not enough for a citizen's arrest. The civilian must see the offender commit the offence. Anyone exercising a power of arrest must be careful because a person wrongly arrested can sue for false arrest and obtain damages or compensation. If a citizen's arrest is made the arrested person must be handed over to the police without delay and a full explanation given of the reasons for the arrest.
Custody Notification Service
The Aboriginal Legal Rights Movement (ALRM) must be notified if an Aboriginal or Torres Strait Islander person of any age is arrested. This custody notification service builds upon the existing Aboriginal Visitor Scheme.
The police officer responsible for a person detained at a police facility must, as soon as reasonably practical after the person is detained at the facility, ask the person if they are an Aboriginal or Torres Strait Islander person [Summary Offences Regulations 2016 (SA) reg 33A and 33C]. If the person identifies themselves as (or appears to the responsible officer to be) an Aboriginal or Torres Strait Islander person, the responsible officer must inform the person that ALRM will be notified of the person’s detention. If the responsible officer is unable to notify ALRM by telephone, they must notify ALRM by email to a dedicated email address provided by ALRM for that purpose.
The responsible officer must provide the name of the person (if known), details of the police facility where the person is detained, and the name and contact details of the responsible officer [reg 33C(2)].
The responsible officer must, on request, allow an ALRM representative to speak with the detained person by telephone or face-to-face for a reasonable period [reg 33C(3)].
The responsible officer must also be available to speak with the ALRM representative as soon as reasonably practical after their visit or telephone call to discuss any concerns regarding the welfare of the person (including any need for medical attention) or whether an interpreter or support person is needed when being interviewed or applying for bail [reg 33C(4)].
The responsible officer must keep accurate records of their compliance with their requirements under the custody notification service [see reg 33C(5)].
A responsible officer who fails to comply with the requirements above, without reasonable excuse, may be subject to disciplinary action under the Police Complaints and Discipline Act 2016 (SA) [reg 33C(6)].
Other help
When an Aboriginal or Torres Strait Islander person is arrested, the Officer in Charge of the police station where the person is taken should ensure that:
Children and young people have all of the rights of adults upon arrest and some additional rights to reflect their vulnerable position.
A person under the age of 18 is entitled to have a lawyer, adult relative or adult friend present during any police interview or investigation [Summary Offences Act 1953 (SA) s 79A(1)(b)(i)]. If they do not nominate an adult to attend or no one is available, the youth ought not be interviewed unless someone else suitable is available [s 79A(1a)].
The arresting officer must, as soon as practicable after arresting a person under the age of 18, explain to the youth the nature of the allegations, inform them of their right to seek legal representation, take all reasonable steps to inform their parent, guardian or other nominated adult of the arrest, and invite them to attend the police interview [Young Offenders Act 1993 (SA) s 14].
Police may interrogate a youth without a suitable adult present if the maximum penalty of the suspected offence is less than 2 years' imprisonment or if it is not reasonably practicable for a suitable adult to attend [s 79A(1b)].
See also Young offenders.
Rights after arrest
As soon as reasonably practicable after an arrest, police must tell the arrested person that:
[Summary Offences Act 1953 (SA) s 79A]
If a person is intoxicated or in a heightened state when they are arrested, these rights should be repeated to them once they have settled down or sobered up [Robinett v Police [2000] SASC 405 at [31]].
Police may stop an arrest person calling a relative or friend if they reasonably suspect that this may result in the destruction or fabrication of evidence or the escape of an accomplice [s 79A(2)].
If a lawyer, relative or friend attends a police station and a request to speak to the arrested person is refused, that person should take notes of the names of all persons spoken to and what was said. This may help cast doubt on the credibility of any interview conducted with the suspect.
If it appears that the arrest is unlawful, a verbal objection should be made to the officer in charge of the police station.
Police questioning can be either formal (at a police station with a record of interview made) or informal. Formal interviewing usually occurs after an arrest has been made, however, informal questioning can occur under a wide range of circumstances (such as when pulling over a vehicle in relation to a traffic offence). Young people are particularly likely to be subject to informal questioning as it is common practice for police to stop and question them in public.
There are certain rules that police must follow when they intend to interview a person with complex communication needs. See Interviewing Suspects with Complex Communication Needs.
Right to remain silent
The right to remain silent is a fundamental right for all people when being questioned by police. It stems from the basic common law principle that it is the state’s role to prove the guilt of an accused person, not the accused’s. Importantly, no negative conclusion can be drawn from an accused relying on their right to silence when the matter goes before the courts.
An accused person who does not wish to say anything to the police should make that clear. They must state their name and address and say to the police something like "I do not wish to say anything further".
If the police ask further questions, the accused person should repeat "I do not want to say anything". If this is the advice received from a lawyer or legal adviser, they should say "I do not wish to answer any questions on the advice of my legal adviser".
In reality, invoking the right to remain silent can be extremely difficult. In high pressure situations such as a police interview people often feel an overwhelming need to provide information in the belief this will assist them and that the police will go easier on them because of their cooperation. It is also difficult for most people to assert themselves when dealing with people in authority. In addition, interviews will always start with questions about name and address which must be answered. At this point the accused person has already been placed in a position of having to cooperate and it can be very difficult to invoke the right to refuse to answer questions and be ‘uncooperative’ from this point onwards.
There are certain police questions that must be answered. See Being questioned for more information about questions that must be answered and the penalties for non-compliance.
The risks of answering some questions but not others
An accused person who decides to exercise their right to silence should maintain that position and not answer questions selectively. There are significant risks in answering some questions and not others that may not be obvious on the face of the questions, and the police may be able to use the record of interview against the accused in court.
An accused person who wishes to cooperate with police or make a statement should speak with a lawyer first. That lawyer may be present when the accused speaks with police and may help prepare their statement. It may be in a person’s best interest to make a statement, such as where a person has a valid explanation. However, this should only be done after obtaining legal advice.
Where police fail to observe proper procedure
If the police do not tell an arrested person that they have the right to remain silent, they may not be able to use any evidence gained through questioning against the person.
Should the police overstep the mark in interviewing a person, again any evidence gained from their questioning may be excluded. For example, if a person indicates that they do not want to answer questions but the police ask more questions, or use an inducement such as promising bail in return for cooperation, and answers are eventually given, those answers may be excluded at trial.
Verbal admissions
The police are experts at getting information from people. They may indicate that the process will be smoother with cooperation, that bail will be granted if a statement is made, or that an alleged co-offender has already given a statement. Any incentives offered by the police should be ignored if the person does not wish to answer questions.
Written and verbal statements can be used in evidence. Any conversation with the police can be used in evidence. There is no such thing as an "off the record" interview with police.
Police can also listen to and note down conversations a person has with anyone else, except a lawyer, and use it later in evidence against the person. Care should be taken when calling friends or family or meeting with them in police custody.
Record of interview
Every police interview with a person accused of committing an indictable offence is required to be recorded. This should be by video (audio visual) but can be an audio or written record if a video recording is not reasonably practicable [Summary Offences Act 1953 (SA) s 74D]. The record of interview may be presented as evidence in court if the matter proceeds to trial.
An accused who does not wish to answer questions may be asked to state this on the audio visual or audio record. The police cannot force a person to be recorded and a person who does not wish to be taped should tell this to the police. If a person refuses to allow the interview to be recorded, the police may ask them to sign a form confirming the refusal. This is not unusual.
Where a written record is made of an interview, the accused will be asked to read and sign it. There is no obligation to read or sign a record of interview. An accused should always read the record of interview before signing and can refuse to sign if the police will not allow them to read it. An accused who does not agree with information contained in the record of interview should ask that it be corrected.
Even if unsigned, if an accused indicates to the court that an interview was given voluntarily and is accurate, it may be admitted at trial.
An accused person has a right to view the recording of their police interview and obtain a copy of the audio [s 74D(4) - (6)].
When a vulnerable witness is being interviewed as a witness to a serious offence against the person (such as murder, manslaughter, criminal neglect, a sexual offence, abduction, blackmail, unlawful threats to kill, and some other offences [see s 74EA]), police must make an audio visual recording of the interview [s 74EB]. Vulnerable witness in this instance refers to a child of or under the age of 14 years or a person with a disability that adversely affects the person’s capacity to give a coherent account of their experiences and answer questions rationally [s 74EA].
Certain procedures must be followed when police interview a person with complex communication needs.
A person has complex communication needs if they have significant difficulty in communicating effectively with the interviewer, whether the communication difficulty is temporary or permanent and whether caused by disability, illness or injury [Summary Offences Regulations 2016 (SA) reg 18(2)]. It does not include communication difficulties caused by intoxication.
An investigating officer who intends to interview a suspect they believe may have complex communication needs must:
This is in addition to the requirements of section 74D of the Summary Offences Act 1953(SA) [reg 19(1)]. See Police questioning and interviewing.
A prescribed communication assistant is a person who helps suspects or vulnerable witnesses while they are being interviewed and includes a communication partnerwithin the meaning of section 4 of the Evidence Act 1929 (SA) (see prescribed communication partners below) and any other person approved for the purposes of the interview by the interviewer [reg 22(1)] .
A prescribed communication device includes [reg 22(2)]:
While the interviewing officer is required to arrange for a prescribed communication assistant or device as appropriate, the interview can still go ahead without the assistant or device if it is not reasonably practicable to have one there (for example, where one is not available), and where the circumstances do not warrant the interview being postponed [reg 19(2)-(3)].
Prescribed communication partners
A prescribed communication partner is a person that falls within one of the following classes, provided they have a minimum of 5 years of relevant experience working with people with complex communication needs and have agreed to comply with the relevant Code of Conduct:
For more information about communication partners, including the relevant Code of Conduct and how to engage a communication partner, visit the SA Government Arrest and Court webpage.
Powers to search and examine persons
Police powers to search, physically examine and take samples from people are mainly contained within the Summary Offences Act 1953 (SA) and the Criminal Law (Forensic Procedures) Act 2007 (SA).
There is some overlap but generally procedures that are routinely used to identify a suspect, such as fingerprinting and photographing, are governed by the Summary Offences Act 1953 (SA). Less common procedures, such as the taking of DNA samples, are governed by the Criminal Law (Forensic Procedures) Act 2007 (SA).
Searches and physical examinations
When a person is taken into police custody, the police may search them and take anything they find [Summary Offences Act 1953 (SA) s 81]. Force may be used to carry out the search [s 81(2)(b)] but it must be carried out as humanely and respectfully as possible [s 81(4g)].
General searches may be carried out by a police officer, a medical practitioner or a registered nurse [s 81(2)(a)]. Intrusive searches may only be carried out by a medical practitioner or a registered nurse, and the person in custody may arrange for their choice of medical practitioner or nurse to witness the search (at their own expense) [s 81(2)(c)]. An intrusive search is an internal search involving the introduction of anything into a bodily orifice [s 81(6)].
Special rules also apply to intimate searches, which are searches that involve exposure of or contact with the skin of the genital or anal area, the buttocks, or female breasts [s 81(3), (6)].
Fingerprints, DNA, voice recordings and handwriting samples
When a person is suspected of a serious offence (any offence punishable by imprisonment), police may take prints of their hands or fingers, and take samples (cheek swab or finger prick) to obtain a DNA profile [Criminal Law (Forensic Procedures) Act 2007 (SA) ss 3, 14]. Police may use reasonable force to collect these samples [s 31]. It is an offence to refuse to allow police to take such samples [s 32].
Different procedures apply when DNA samples are taken from offenders and volunteers and victims.
Police may also record a charged suspect's voice, request a sample of their handwriting and take photographs of their hands and feet for identification purposes [Summary Offences Act 1953 (SA) s 81(4)]. Non-compliance is an offence [s 81(4e)].
Further information about these procedures is available in the Duty Solicitor Handbook.
Since the introduction of s 34AB of the Evidence Act 1929 (SA), which has the effect of placing equal evidentiary weight on identification evidence obtained through a photographic array (a photo board of similar-looking people), it is likely that line-ups will be rarely used in South Australia. Photographic arrays do not require the consent of the suspect.
Right to refuse to participate in a line-up
A person has a choice about whether to participate in a lineup and legal advice should be obtained before agreeing to take part if the person is a suspect.
What is a fair procedure for a line-up?
In an identification parade a suspect must be placed amongst nine other people of similar physical type. For example, if witnesses describe a suspect as having a dark complexion, it would be unfair to place him in a line up with persons of fair complexion. A suspect can choose where to stand in a line-up. If there is more than one witness, the suspect can move to a different place in the line before each new witness enters the room.
Practice where there is more than one witness
It is important if there is more than one witness that they be kept separate from each other so they cannot discuss the process. This prevents one witness contaminating the mind of another witness as to who the suspect may be. If a witness fails to identify a suspect in a line up, this can be used in court as evidence of the person's innocence.
Evidence of refusal to participate
Evidence that a person refused to take part in an identification parade is admissible in court. A parade conducted more informally (in a crowded area, simply because it is less effort for the police) is also generally admissible provided it is not unduly unfair to the person being identified. An accused person should always be given the opportunity to take part in an identification parade. In practice, they do not often occur.
If a person's legal rights are denied, or a statement is obtained in unfair circumstances resulting in a confession or admission by the person, the court can decide not to admit that evidence. Anyone representing an accused person should ensure that the person was not denied any legal rights.
An immediate complaint should be made to the officer concerned and his or her superior.
A complaint may also be lodged with the Office of Public Integrity, see complaints against police. The longer a complaint is delayed, the easier it is for the police to suggest in any later inquiry that the complaint is untrue. Before lodging a full complaint it is advisable to talk to a lawyer if your complaint relates to either yourself or another being charged with an offence arising from the incident. Verbal complaints should be confirmed in writing, if possible, by a lawyer. A full statement of what occurred should be made.
However, if a person is charged with an offence, legal advice should always be obtained before filing a police complaint, as the statement can be used in proceedings against the person.
If the person has been injured by the police, a doctor should be seen as soon as possible and if any external injuries are evident, photographs should be taken, preferably by a professional photographer or pathologist, Anyone who saw the person not long before the arrest should be asked to look at the injuries and to state (in writing) whether they saw them beforehand.
Sometimes civil court action can be taken, for example, trespass to person or property, assault, wrongful arrest or unlawfully restraining someone false imprisonment.
Always try to get legal advice before speaking to police. There are very few questions that you have to answer. You do not have to answer questions in most circumstances, but you must provide the following information when asked:
- your personal details (your full name, date of birth and address)
- the identity of the driver of a motor vehicle
- whether you are the owner of a firearm and, if not, the identity of the owner and other information in relation to the firearm including other persons who have had possession.
If the police want to search you, your car or home:
If the police want to arrest you:
If a civilian (such as a store detective) wants to arrest you:
We embrace diversity and welcome all people, irrespective of culture, faith, sexual orientation and gender identity.
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Legal Services acknowledges Aboriginal people as the Traditional Owners and ongoing occupants of the lands and waters in South Australia and we respect their spiritual, cultural and heritage beliefs. We recognise their continuing connection to land, water and community and pay our deep respect to Elders past and present.
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