The police officer must, as soon as practicable following the arrest of a person, inform that person of their arrest rights [see Summary Offences Act 1953 (SA) s 79A(3)(a)]. Where there has been a violent arrest, or the arrested person is unable to appreciate or understand their rights (perhaps due to intoxication), the process of informing that person of their rights should be repeated once the arrested person has settled down or sobered up [see Robinett v Police (2000) 78 SASR 85at 94; [2000] SASC 405) for an example of the underlying principle].
As of 14 June 2017 SAPOL have introduced a system of adult police cautioning for low-level criminal offending. For details see Police cautions in the Arrest, Your Rights and Bail chapter of the Law Handbook.
From 1 October 2021, Aboriginal Legal Rights Movement Ltd (‘ALRM’) must be notified if an Aboriginal or Torres Strait Islander person is arrested. This includes a person under 18 years of age, in the youth jurisdiction. The mandatory custody notification service is prescribed in Part 5A of the Summary Offences Regulations 2016 (SA).
A police officer must, as soon as reasonably practicable following the arrest of a person (regardless of whether apprehension occurred with or without a warrant), warn the arrested person that anything they say may be taken down and used in evidence [see Summary Offences Act 1953 (SA) s 79A(3)(b)].
The arrested person has a right to make a telephone call (in the presence of a police officer) to a friend or relative to inform them of their whereabouts [see Summary Offences Act 1953 (SA) s 79A(1)(a)]. Where that telephone call is not answered, the arrested person should be allowed to make another telephone call [see R v Tanner [2005] SASC 416 for an example of the underlying principle].
Where a person has been arrested on suspicion of having committed an offence, they have a right to have a solicitor, a relative or a friend present during interrogation or investigation while they remain in police custody [see Summary Offences Act 1953 (SA) s 79A(1)(b)(i)].
When a person has been arrested on suspicion of having committed an offence and the person is not a native speaker of English, they have a right to the assistance of an interpreter during interrogations [see Summary Offences Act 1953 (SA) s 79A(1)(b)(ii); and s 83A for the right to request an interpreter for assistance during an investigation]. The officer must not proceed with further questioning until the requested interpreter is present [see ss 83A(2) and 83A(3)]. An arrested person may also request the assistance of an interpreter during an intimate search [see s 81(3)(b); s 81(3)(c) for exception to this right due to urgency; and Search Procedures (below)]. An arrested person may also request the assistance of an interpreter during a forensic procedure [see Criminal Law (Forensic Procedures) Act 2007 (SA) s 22].
When a person has been arrested on suspicion of having committed an offence, they have a right to not answer any questions except when otherwise required to do so under the Summary Offences Act 1953 (SA) or any other Act) [see Summary Offences Act 1953 (SA) s 79A(1)(b)(iii); Request for Personal Details (above); Request for Information about the Identity of Drivers (above); Request for Information regarding Firearms (above); drug offences under the Customs Act 1901(Cth); and terrorism offences under the Commonwealth Criminal Code or other legislation].
| RIGHT TO SILENCE |
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When the right to silence is exercised it cannot be used as evidence against the person at trial, nor can they be questioned or cross-examined as to why they exercised that right. Exercising this right cannot influence whether or not the person is considered eligible for release on bail.
The person should be advised to remain silent on all questions, except that they must provide personal details and information about the identity of a driver, as discussed above. They should be warned that it is not advisable to pick and choose what questions they will or will not answer, especially in relation to the allegations put to them by police, unless they have a strong interest in putting forward, for example, an alibi . Generally, the advice to an arrested person should be for them to simply and politely say they have received advice from a solicitor and they do not wish to answer any questions. You must also advise them of the exceptions to that right, namely to provide personal details and the identity of a driver should the police officer require that information.
The police officer in charge of the investigation will usually record the start of a formal interview on audio visual equipment. It is important the arrested person remains polite and maintains they do not wish to answer any questions. |
A police officer must inform an arrested person (who is eligible to apply for bail) of their right to apply for bail as soon as reasonably practicable after delivering them to the nearest police station [see Bail Act 1985 (SA) s 13(1)]. The police officer must provide that person with a written statement explaining how to apply for release on bail and a form to apply for release on bail [see Bail Act 1985 (SA) s 13(1); and Bail Chapter].
The police officer in charge of the investigation can refuse a telephone call to, or the presence of, a particular person during interrogation or investigation, where he or she has reasonable cause to suspect that communication between the person in custody and that particular person would result in steps made to avoid apprehension, or the destruction or fabrication of evidence [see Summary Offences Act 1953 (SA) s 79A(2)]. The power to refuse the presence of a particular person does not apply to the right to have a solicitor present during an interrogation or investigation.
Many police powers allow for the use of reasonable force, including those powers following the arrest of a person. Reasonable force where considered necessary can be used to carry out searches, and other police officers or persons may assist where necessary [see Summary Offences Act 1953 (SA) s 81(2)(b); and Search Procedures (below)].
Once a person is charged with an offence, reasonable force may be used in the taking of photographs, and prints of hands, fingers or toes for the purpose of identifying the person or to identify the person as having committed the offence [see s 81(4)(a) and Identity Procedures (below)].
Reasonable force may be used against a person to carry out a forensic procedure, and to protect any evidence obtained from the procedure [see Criminal Law (Forensic Procedures) Act 2007 (SA) ss 31(1)(a) and 31(1)(b); and Forensic Procedures (below)]. A police officer must warn a person who is to be subjected to a forensic procedure that reasonable force may be used to carry out the procedure and should they obstruct or resist, evidence of that may be admissible in proceedings against the person [see ss 30(a) and 30(b)]. Use of reasonable force during a forensic procedure does not constitute an arrest [see s 31(2)].
| REASONABLE FORCE |
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Usually at the start of a telephone advice session, the investigating officer will inform the duty solicitor of their intention to undertake certain procedures on the arrested person. In the course of the duty solicitors' subsequent advice to the arrested person, it is important to stress the arrested person's rights, what will happen during the procedure, and advise them to cooperate throughout this process. This will ensure the person will not be hurt during a procedure or charged with further offences arising from their resistance to the procedure. |
No search or forensic procedure may be carried out in the presence or view of more people than necessary [see Summary Offences Act 1953 s 81(4g)(b) and Criminal Law (Forensic Procedures) Act 2007 (SA) s 21(2)]. All procedures must be carried out humanely, with care, and, as far as reasonably practicable, to avoid offending cultural values, religious beliefs, infliction of harm, humiliation or embarrassment [see Summary Offences Act 1953 (SA) s 81(4g)(a) and Criminal Law (Forensic Procedures) Act 2007 (SA) ss 21(1)(a), 21(1)(b) and 21(3)].
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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