VICTORIA, AUSTRALIA 2013
@nti-copyright: photocopy and distribute
Getting arrested is no joke. It’s a serious business. All convictions add up: eg. if you’re done three times for shoplifting, you stand a good chance of getting sent down.
If there’s a chance of you getting nicked, get your act together: know what to do in case you’re arrested. Unless you enjoy cells, courtrooms and prisons, you owe it to yourself to wise up.
WHEN YOU HAVE BEEN ARRESTED:
You have to give the police your name and address. They only have the right to take your fingerprints if they have reasonable grounds to believe you have committed an indictable offence (eg shoplifting). If you have been arrested for a summary offence refuse to give your fingerprints. The police do not have the right to take your fingerprints for summary offences (these are less serious than indictable offences). If they get your fingerprints they will probably try to keep them forever, so avoid it if you can. At the station the cops might try to take photographs of your face or identifying features that you have. You can and should refuse to have your photo taken, no matter what you’ve been charged with. The police might also try to take your DNA in the form of a ‘body sample’ which can later be used as forensic evidence in court. You have the right to refuse to give a body sample and should refuse. If the police really want one, they can get a court order which obligates you to give a body sample.
In New South Wales the traditional ‘Right to Silence’ has been removed. However, all this means is that the police/prosecution can point to your refusal to speak to them, when the case comes to court, and the court may take this as evidence of your guilt. This is called taking an ‘adverse inference’. The court will only be able to take an adverse inference if there is already considerable evidence against you that points towards your guilt. The police cannot force you to speak or make a statement, whatever they may say to you in the station. It is important to remember that police can and do lie. Refusing to speak cannot be used to convict you by itself. We reckon the best policy if you want to get off is to remain silent. The best place to work out a good defence is afterwards, with your solicitor or witnesses, not under pressure in the hands of the cops. If your refusal to speak comes up in court, we think the best defence is to refuse to speak until your solicitor gets there then get them to agree to your position. You can then say you acted on legal advice. If you are speaking to your solicitor in the police station or in the presence of police make sure you are not overheard by the cops. Remember being arrested is not the same as being charged. Keeping silent is still the best thing to do in police custody.
Q: What happens when I get arrested?
When you are arrested, you will usually be handcuffed, put in a van and taken to a police station. You will be asked your name, address and date of birth. You should be told the reason for your arrest – remember what is said, as it is useful to know if you are being held on suspicion of committing a summary or indictable offence. Your personal belongings will be taken from you. These are listed on a ‘property sheet’ and usually you will be asked to sign to say that the list is correct. You do not have to sign, but if you do you should sign immediately below the last line, so that the cops can’t add something incriminating to the list. You should also refuse to sign for something which isn’t yours, or which could be incriminating. If you are put in a cell with others to await interview, avoid talking to them extensively about what you’re in for. They could be police plants trying to goad you into saying something incriminating. The police can only keep you in custody for a ‘reasonable time’ without charging you. Unfortunately the law does not specify what a ‘reasonable time’ is.
Q: What happens after I’m released?
The cops might release you without charge, which is a good outcome; or they might charge you and then release you on bail, which can be with or without conditions. Conditions might include reporting to the police station or living at a certain address. If you’ve been charged then you’ll need to go to court at some point. You will be served with a summons and a charge sheet or a notice to appear. These documents will tell you when you need to appear and what for. If you’ve been charged get legal advice straight away. The cops will ask you if you are satisfied with your treatment and if all your belongings have been returned to you. If you’re planning to make a complaint about the cops do not answer yes to these questions. There is no obligation for you to answer or agree in any circumstances.
Throw away your phone and get a new one if you had it on you when you were arrested. Don’t contact anyone on it. Ditch the whole thing, not just the SIM; the cops could be using the phone to monitor you after you’ve been released. Do this whether or not you have been charged; the cops could be using you to get to other people (eg your friends).
Q: What can I do if one of my friends or family has been arrested?
If someone you know is arrested, there’s a lot you can do to help him or her from outside.
- If you know what name they are using ring the police station (however if you’re not sure don’t give their real name away). Ask whether they are being held there and on what charges. However remember that the cops will not necessarily tell you the truth.
- Remove anything from the arrested person’s house that the police might find interesting: letters, address books, false ID etc. in case the police raid the place.
- Take food, cigarettes etc. into the police station for your arrested friend. But don’t go in to enquire at the police station to ask about a prisoner if you run the risk of arrest yourself. You’ll only get arrested. DON’T GO ALONE. The police have been known to lay off a prisoner if they have visible support from outside. It’s solidarity that keeps prisoners in good spirits.
Q. What if I am under 18?
There has to be a parent, guardian, or ‘Independent Person’ with you for the interview. The cops will usually want this to be your mum or dad, but you might want to give the name of an older brother or sister or other relative or adult friend. You still have the right to silence and should answer ‘No Comment’ to all questions.
Q. What if I am an Aboriginal Australian?
The police must tell the Victorian Aboriginal Legal Services (VALS) that they have you in custody and they should send a VALS client services officer to speak with you. The officer from VALS should offer you support and advice. It is still the best policy to answer ‘no comment’ to all police questions and refuse to sign or make a statement. The police must also contact an Aborignal Community Justice panel if one exists nearby. The police might release you into the care of a panel member if the charges against you are not serious.
Q: What if English is not my first language?
You’re entitled to an interpreter if you’re not a fluent English speaker. The interpreter can come to the station or speak to you and the cops over the phone. They must be qualified and the police must pay for this, not you. You should answer ‘no comment’ to all questions.
Q: What is an interview?
An interview is the police questioning you about the offences they want to charge you with. The interview will take place in an interview room in the police station and should be taped. The police might also try to video record the interview. You do not have to agree to this; insist on it being tape
recorded instead. It is not advisable to allow the police to have video footage of you. The cops must read you the police caution before you are interviewed. The caution is:
“I must inform you that you do not have to say or do anything but anything you say or do may be given in evidence. Do you understand that? I must also inform you of the following rights. You may communicate or attempt to communicate with a friend or relative to inform that person of your whereabouts. You may communicate with or attempt to communicate with a legal practitioner.”
You should use these rights and contact a lawyer and answer ‘no comment’ to all questions. AN INTERVIEW IS ONLY OF BENEFIT TO THE POLICE.
Remember they want to prosecute you for whatever charge they can stick on you. AN INTERVIEW IS A NO WIN SITUATION. For your benefit, the only thing to be said in an interview is “NO COMMENT”.
REMEMBER: They can’t legally force you to speak. Beware of attempts to interview you in the cop van or cell etc. The cops may try to pretend you confessed before the taped interview. There is no such thing as a ‘friendly chat’ with a cop. Always say “NO COMMENT”. For summary offences in Victoria, the police do not have to record what you say for it to be used as evidence. The police officer can write down questions they ask you and your answers. Do not answer these questions or sign any police notebook or statement. They can use this information as evidence against you in court. A summary offence is a ‘minor’ charge such as offensive behaviour or being drunk in a public place. The police must give you a written or taped copy of the interview, even if you answered ‘no comment’ to all questions. This transcript should be given to your lawyer and might be important if the time comes to work on your defence.
Q: When can I contact a lawyer?
You should be able to ring a lawyer as soon as you’re arrested, once at the police station it is one of the first things you should do, for two reasons:
- To have someone know where you are.
- To show the cops you are not going to be a soft target – they may back off a bit.
Avoid telling your lawyer too much about what happened. This can be sorted out later. For the time being, tell them you are refusing to speak. Your lawyer can come into the police station while the police interview you: you should refuse to be interviewed unless your lawyer is present. In Victoria arrestees have the right to make two phone calls, one to a lawyer and one to a friend or relative. The police must give you a private space to use the phone where you cannot be overheard by the cops. But you should assume that all communication you make in the station will be monitored by the police. Do not say anything over the phone that could incriminate yourself or others. The police might not let you call anyone if you have been brought in on a drink or drug driving matter. They also might deny you your phone calls if they have reasonable grounds to believe that a) the phone call might help others involved in the offence to escape; b) it will lead to evidence being destroyed or c) it will put other people in danger.
Q: Why do the police want me to answer questions?
If the police think they have enough evidence against you they will not need to interview you. For example, in most public order arrests they rely on witness statements from 1 or 2 cops or bystanders, you won’t even be interviewed. Also if they have arrested you and other people, they
will try to get you to implicate the others. The police want to convict as many people as possible because:
- It makes it look like they’re doing a good job at solving crime. The clear-up rate is very important to the cops; they have to be seen to be doing their job. The more crimes they get convictions for, the better it looks for them.
- Police officers want promotion, to climb up the ladder of hierarchy. Coppers get promotion through the number of crimes they ‘solve’. A ‘solved crime’ is a conviction against somebody. You only have to look at such cases as the Birmingham 6 (in the UK) to understand how far the police will go to get a conviction. Fitting people up to boost the ‘clear-up rate’, and at the same time
removing people cops don’t like, is wide spread in all Police forces.
Q: So if the police want to interview me, it shows I could be in a good position?
Yes – they might not have enough evidence, and hope you’ll implicate yourself or other people during the interview.
Q: And the way to stay in that position is to refuse to be drawn into a conversation and answer “NO COMMENT” to any questions?
Q: But what if the evidence looks like they have got something on me? Wouldn’t it be best to explain away the circumstances I was arrested in, so they’ll let me go?
No. The only evidence that matters is the evidence presented in court. The only place to explain everything is in court; if they’ve decided to keep you in, no amount of explaining will get you out. If the police have enough evidence, anything you say can only add to this evidence against you. When the cops interview someone, they do all they can to confuse and intimidate you. The questions may not be related to the crime. Their aim is to soften you up, get you chatting. Don’t answer a few small talk questions and then clam up when they ask you a question about the crime. It looks worse in court. To prosecute you, the police must present their evidence to the Crown Prosecution Service. A copy of the evidence is sent to your solicitor. The evidence usually rests on very small points: this is why it’s important not to give anything away in custody. They may say your refusal to speak will be used against you in court, but the best place to work out what you want to say is later with your solicitor. If they don’t have enough evidence the case will be thrown out or never even get to court. This is why they want you to speak. They need all the evidence they can get. One word could cause you a lot of trouble.
Q: So I’ve got to keep my mouth shut. What tricks can I expect the police to pull in order to make me talk?
The police try to get people to talk in many devious ways. The following shows some pretty common examples, but remember they may try some other line on you. These are the things that often catch people out. DON’T GET CAUGHT OUT.
- “Come on now, we know it’s you, your mate’s in the next cell and he’s told us the whole story.”
If they’ve got the story, why do they need your confession? Playing co-accused off against each other is a common trick, as you’ve no way of checking what other people are saying. If you are up to something dodgy with other people, work out a story and stick to it. Don’t believe it if they say your co-accused has confessed.
- “We know it’s not you, but we know you know who’s done it. Come on Jane, don’t be silly, tell us who did it”
The cops will use your first name to try and seem as though they’re your friends. If you are young they will act in a fatherly/motherly way, etc.
- “As soon as we find out what happened you can go”
- “Look you little bastard, don’t fuck us about. We’ve dealt with some characters; a little runt like you is nothing to us. We know you did it you little shit and you’re going to tell us.”
They’re trying to get at you.
- “What’s a nice kid like you doing messed up in a thing like this?”
They’re still trying to get at you.
- “We’ll keep you in ‘til you tell us”
They have to put you before the magistrate or release you within a reasonable time. Only a magistrate can order you to be held without charge for any longer.
- “There is no right to silence anymore. If you don’t answer questions the judge will know you’re guilty.”
Refusing to speak cannot be used to convict you by itself. If they had enough evidence they wouldn’t be interviewing you.
- “You’ll be charged with something far more serious if you don’t start answering our questions, sonny. You’re for the high jump. You’re not going to see the light of day for a long time. Start answering our questions ‘cos we’re getting sick of you.”
Mental intimidation. They’re very unlikely to charge you with a serious charge that won’t stick in court; it will make them look bad. Don’t panic.
- “My niece is a bit of a rebel.”
10. “If someone’s granny gets mugged tonight it’ll be your fault. Stop wasting our time by not talking.”
They’re trying to make you feel guilty. Don’t fall for it, you didn’t ask to be arrested.
11. Mr Nice: “Hiya, what’s it all about then? Sergeant Smith says you’re in a bit of trouble. He’s a bit wound up with you. You tell me what happened and Smith won’t bother you. He’s not the best of our officers, he loses his rag every now and again. So what happened?”
Mr Nice is as devious as Mr Nasty is. He or she will offer you a cuppa, cigarettes, a blanket. It’s the softly-softly approach. It’s bullshit. Say “NO COMMENT”.
12. ‘We’ve been here for half an hour now and you’ve not said a fucking word…. Look you little cunt some of the other boys will be down in a minute. They’ll have you talking in no time. Talk now or I’ll bring them down.”
Keep at it, they’re getting desperate. They’re about to give up. You’ve a lot to lose by speaking.
13. “Your girlfriend’s outside. Do you want us to arrest her? We’ll soon have her gear off for a strip search. I bet she’ll tell us. You’re making all this happen by being such a prick. Now talk”
They pick on your weak spots, family, friends, etc. Cops do sometimes victimise prisoners’ families, but mostly they are bluffing. Keep quiet and don’t be intimidated.
14. “You’re a fuckin’ loony, you! Who’d want you for a mother, you daft bitch? Start talking or your kids are going into care.”
Give your solicitor details of a friend or relative who can look after your kids. The cops don’t have the power to take them into care.
15. “Look, we’ve tried to contact your solicitor, but we can’t get hold of them. It’s going to drag on for ages this way. Why don’t we get this over with so you can go home.”
Never accept an interview without your solicitor present, a bit more time now may save years later! Don’t make a statement or answer questions in interview even if your solicitor advises you to – a good one won’t.
16. “You’re obviously no dummy. I’ll tell you what we’ll do a deal. You admit to one of the charges, and we’ll drop the other two. We’ll recommend to the judge that you get a non-custodial sentence, because you’ve co-operated. How does that sound?”
They’re trying to get you to do a deal. There are no deals to be made with the police. Much as they’d like to, the police don’t control the sentence you get.
17. “We’ve been round to the address you gave us and the people there say they don’t know you.
We’ve checked with Center Link and there’s no sign of you. Now come on, tell us who you are. Tell us who you are or you’ve had it.”
If you’re planning to give an address make sure everyone there knows the name you are using and that they are reliable. The cops usually check that you live somewhere by going round.
18. “Wasting police time is a serious offence.”
You can’t be charged for wasting police time for not answering questions. The cops may rough you up, or use violence to get a confession (true or false) out of you. There are many examples of people being fitted up and physically assaulted until they admitted to things they hadn’t done. It’s your decision to speak rather than face serious injury. Just remember, what you say could get you and others sent down for a very long time. However, don’t rely on retracting a confession in court – it’s hard to back down once you’ve said something.
If you think you might one day run the risk of being arrested, you must find out what to do in that situation. If prison, fines, community service etc. don’t appeal to you by following what’s written in this pamphlet you can massively reduce the risk of all three. In the police station the cops rely on peoples’ naivety. If you are aware of the tricks they play, the chances are they’ll give up on you. In these examples we have tried to show how they’ll needle you into speaking. That’s why you have to know what to do when you’re arrested. The hassle in the cop shop can be bad, but if you are on the ball, you can get off. You have to be prepared.
WE’VE HAD A LOT OF EXPERIENCE WITH THE POLICE AND WE SIMPLY SAY:
- Keep calm and cool when arrested (remember you are playing with the experts now, on their home ground).
- Don’t get drawn into conversations with the police at any time.
- Get a solicitor.
- Never make a statement or answer any police questions, whether you are being officially interviewed or not.
- If they rough you up, see a doctor immediately after being released. Get a written report of all bruising and marking. Take photos of all injuries and write everything down as soon as you can once you get out. Remember the cop’s names and numbers if possible.
REMEMBER: An interview is a no win situation. You are not obliged to speak. If the police want to interview you, it shows you’re in a good position… And the only way to stay in that position is to refuse to be drawn into any conversation and answer “NO COMMENT” to any questions.
Having said nothing in the police station, you can then look at the evidence and work out your side of the story.
THIS IS HOW YOU WILL GET OFF.