“I do not wish to say anything at this stage”
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Questioning and statements
As a general rule, in the absence of good reason, a person should not make any statement or admission about any offence to police or to any other person without proper legal advice.
In the majority of cases, the material that convicts people is the evidence of their own admissions to police.
There will be times, however, when it will be in the interests of the accused to answer questions or make a statement. For example, if a client instructs a lawyer that in a case of theft the accused had the consent of the owner (except in the case of a motor vehicle, boat or aircraft) or had no intent to deprive the owner permanently, then the police should be told.
Anyone who has voluntarily cooperated with the police, has come to the station and is not under arrest may leave at any time unless the police develop reasonable grounds for suspecting them of having committed an offence.
A suspect should never try to answer just some questions and not others. If it is decided not to answer any questions at all, the suspect should state their age, name and address and then state, “I do not wish to say anything at this stage”, or “I have received legal advice not to answer any questions at this time”, and continue to make this answer to every question.
Whether someone should give an answer or make a statement to police will depend on a number of factors. If there is an explanation that will quickly and clearly show the police that their suspicions are wrong, it should be given. If the suspect has an alibi that is reliable, it ought to be given.
The fact that an accused person refuses to answer questions or does not mention something that would establish their innocence should not be held against the person. This basic principle is confirmed by section 89 of the Evidence Act 2008 (Vic) (“Evidence Act”) but applies only to questions by an investigating official in the course of an investigation.
The general rule (subject to certain statutory exceptions), as stated above, is that a person does not have to answer questions or make a statement to the police. When police are trying to find the person suspected of having committed a particular crime, they can put questions to any person, whether suspected or otherwise, from whom they think useful information can be obtained. It is commonly accepted that ordinary members of the community should assist the police in their task as much as possible. Nevertheless, a person who declines to answer any question cannot be forcibly compelled to answer. This applies to non-suspects as well as suspects. A significant exception to the general rule, contained in sections 60 and 60A of the Road Safety Act 1986
Information to be given to suspects
Under the Crimes Act (Vic), police must, before any questioning starts, tell suspects that they do not have to say or do anything. They must also warn suspects that anything that is said or done may be given in evidence (s 464A(3)). Suspects must also be told that they have a right to attempt to speak to a friend or relative and to a lawyer, and then be asked whether they wish to exercise that right (s 464C(1)).
D LEGAL Barristers & Solicitors has a team of criminal lawyers who are highly experienced in dealing with the Police.
Dinesh Weerakkody was the former Lecturer │ Unit Convenor - Evidence Law at Swinburne University Law Faculty.