Police Interviews in South Australia
When the police suspect a person of an offence or believe that a person has information that may assist them with their investigation, they can ask the person to participate in an interview. A person is not obliged to participate in an interview with police and may choose to exercise their right to silence. There are, however, some situations where a person is required to provide the police with certain information. This article deals with police interviews in South Australia.
Most of the powers relating to police interviews in South Australia are contained in the Summary Offences Act 1953.
Situations where you must answer
There are some situations where a person is obliged to answer questions from the police and may be penalised if they fail or refuse to do so. These include:
- Being asked to provide your name and address where police reasonably suspect you of an offence;
- Being asked certain questions where you are driving a motor vehicle;
- Being asked for proof of age when on licensed premises.
Questioning without arrest
In some circumstances, the police may ask a person to accompany them to the police station to take part in an interview without placing them under arrest. This is a request only and the person is not obliged to do so. The police cannot force a person to accompany them to the police station or detain a person unless they have lawfully arrested the person.
When the police suspect a person of an offence and seek to interview them in relation to the offence, they must first caution the person. A caution involves informing the person that they are not obliged to answer the police’s questions and that anything they do say may be used as evidence against them if they are prosecuted.
The caution must be delivered in a language and in a way that the suspect can understand. A person whose native language is not English and who is not reasonably fluent in English has the right to be assisted by an interpreter while being interviewed by the police (section 83A, Summary Offences Act).
Admissions must be voluntary
Evidence obtained by interviewing a person is admissible in proceedings against them only if the interview was conducted lawfully. This means that the person must have been effectively cautioned. It also means that any admissions the person made must have been made voluntarily.
Admissions may be found to have been made involuntarily if the person was subjected to pressure to take part in the interview. This may take many forms. If the person was threatened or intimidated into participating in an interview, any admissions they make are not being made voluntarily. If a person is interviewed when they are sick, injured, tired, intoxicated, or hungry, this may also lead to the interview being inadmissible as evidence against them.
Recording of interviews
Under section 74D of the Summary Offences Act, when the police interview a person in relation to an indictable offence, the police must make an audio-visual recording of the interview if doing so is reasonably practicable. If it is not practicable to make an audio-visual recording, police must make an audio recording if it is reasonably practicable.
Where neither type of recording can be made, the police must make a written record of the interview and, as soon as practicable, read it aloud to the suspect and make an audio-visual recording of this. The suspect must be allowed to interrupt to point out our errors and omissions. If the officer agrees that there is an error or omission in the record it must be corrected.
Non-compliance with rules for police interviews
If the police do not comply with the procedures or fail to accord a suspect their rights when attempting to interview them, this may lead to the evidence being found to be inadmissible.
If the defence in a criminal matter believes that the police did not conduct the interview properly, it can request a hold a voir dire on the record of the police interview. A voir dire is a pre-trial proceeding that is held to determine the admissibility of a particular item of evidence.
After hearing evidence and submissions from both parties during the voir dire, the court will make a ruling as to whether the police interview is to be admitted into evidence or not. If the court considers that the police acted improperly, it may exclude the interview form evidence. Whether it does so will depend on the nature and seriousness of the wrongdoing as well as how much probative value the interview has. If the charges are serious and the interview provides essential evidence, it may be admitted even if there was minor wrongdoing by the police. The court will undertake a balancing exercise, weighing the value of the evidence against the public interest in excluding evidence that was obtained improperly.
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