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You may think you know all about the criminal justice system from binge watching Orange is the New Black, Law and Order, or Wentworth, but if you are arrested in Western Australia, your knowledge gained by television crime drama is unlikely to keep you out of further trouble. Let’s hope that you never get arrested, but if you do here are seven tips to remember to protect your rights and keep you safe.

 

  1. DO NOT TALK TO THE POLICE
    • Do not talk to the police or give a statement about your case.
    • Even if a police officer just wanted to hear your side of the story, there is a real risk that something you say could be taken out of context or be misunderstood.
    • Instead of giving a statement, calmly and politely tell the police officer that you are choosing to remain silent and that you want a lawyer.

Generally, the police have the right to ask you questions at any time, whether or not you have been arrested, although you cannot be questioned about any offence while you are being searched.

Although police are allowed to ask you questions, this does not mean you always have to answer them. In Western Australia you have a general right to silence, which means in many cases you do not have to answer questions from police.

There are some questions you must answer, for example, your name, address and date of birth. If police tell you that you must answer a question then you should do so – you may be charged with an offence if you do not.

Police must caution you before interviewing you as a suspect so that you are aware of your right to silence and so that you know what will happen if you do speak to them.  The caution should sound something like this:

“You are not obliged to say anything unless you wish to do so, but whatever you do say will be recorded and may later be given in evidence”.

If you do not want to answer any questions, you should tell the police this.  They may still require you to be present for an interview and ask you questions anyway.  You can repeat that you do not want to answer any questions or say “no comment”.

The police are not allowed to threaten you to make you answer questions or offer you any bribe or encouragement to answer questions. For example, they are not allowed to say they will grant you bail and release you if you answer their questions.

 

  1. DO NOT CONSENT TO SEARCHES
    • Never agree to be searched by the police.
    • If the police are asking for your permission to search something, it means they don’t have the right to do it without your consent. Don’t ever give permission. Instead, state firmly and politely that you do not consent to you or your property being searched.
    • If the police, however, tell you that you must comply with a search, then you must do so, as there are circumstances in which they can conduct a search without a warrant.

 

  1. DO NOT FIGHT, OR RUN
    • If you’re about to get arrested, your fight-or-flight instinct is the worst instinct you can follow.
    • Besides getting you hurt (shot, tased, pepper-sprayed, struck with a baton or thrown to the ground), it is a separate crime to resist, delay or obstruct a police officer doing their duties.
    • Don’t resist arrest or run, and never put your hands on a police officer. You may end up getting injured, or with more charges.

 

  1. DO NOT TALK ABOUT YOUR CASE
    • Everyone in a holding cell is a potential witness.
    • Don’t talk about your case to anyone who isn’t your lawyer.
    • Don’t talk about your case on social media when you’re out of custody. Remember that you have no right to privacy to anything you put on Facebook or Twitter and anything you post could be used against you.

 

  1. STAY CALM, YOU SHOULD BE OUT SOON
    • For many common offenses, you’ll have the option to get bailed out or be released into a friend’s custody after only a few hours in jail.
    • In WA, for most minor offences, you’ll be released on your own recognisance (or supervised recognisance) about six to ten hours after being arrested. Most states have a rule that no more than 48 hours after your arrest, and regardless of the charges, you have the right to appear before a neutral judge to set bail.

 

  1. COOPERATE
    • The best way to get out of jail quickly is to stay polite and cooperate with the process.
    • During your arrest, the police are required to ask certain questions. They need to know your name, your health situation, your emergency contact details and other identifying information. If you refuse to identify yourself, the police will have to take fingerprints to identify you, causing you to get held in jail longer.
    • If you are arrested for driving under the influence, you are required to take a chemical test or face license suspension for refusing.
    • Cooperating and being polite does not mean doing whatever the police tell you, but it means cooperating with the process, avoiding swearing and arguing or yelling.
    • Answer questions like your name and contact information and cooperate with the booking process. Have photo identification with you so that the police can quickly confirm your identity – and release you more quickly.

 

  1. DOCUMENT YOUR CASE AS SOON AS YOU GET OUT
    • As soon as you get out of jail, begin the process of preparing your defense.
    • It is important to try to remember all the details of your arrest and write them down as soon as possible.
    • Try to get contact information for anyone who witnessed your arrest. It may be several months until your case is heard and you will need a way to get your witnesses to court.
    • If you are injured, seek medical attention immediately, photograph your injuries, and keep a copy of all treatment records.

Let’s hope you never get arrested but if you do, remember these tips and your incarceration will end up being just a crazy story you can tell people at a party, as opposed to something more life-disrupting.

 

 

About the author:

This article has been authored by Claudia Giovannini at Lynn & Brown Lawyers.  Claudia is currently studying law at UWA and hopes to be admitted as a Perth lawyer in or about 2018.

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