The Legal Services Commission offers an overnight advice service for people who have been arrested for indictable offences and are in police custody. The following chapter provides an outline of some police powers in relation to search and arrest procedures, including forensic procedures, and highlights the rights of an arrested person. This information is particularly applicable to the overnight advice service.
Some police officers carry, or have access to, general search warrants issued by the Commissioner of Police which remain in force up to six months from the date of the warrant [see Summary Offences Act 1953 ss 67(1), 67(2), 67(3), and the Schedule for a copy of a general search warrant]. The police officer named in the warrant (along with his or her assistants) has the power to enter and search any premises where there is reasonable cause to suspect an offence has been or is about to be committed, the presence of stolen goods, evidence of an offence, or items intended to be used in an offence [see Summary Offences Act 1953 ss 67(4)(a)(i), 67(4)(a)(ii), 67(4)(a)(iii), 67(4)(a)(iv); and Reasonable Cause to Suspect (above)]. Whilst searching the premises, the police officer may break open and search cupboards, drawers, chests, trunks, boxes (and so forth) where there is reasonable cause to suspect the presence of stolen goods, evidence of an offence, or items intended to be used in an offence [see Summary Offences Act 1953 ss 67(4)(b)(i), 67(4)(b)(ii), 67(4)(b)(iii), 67(4)(b)(iv) and Reasonable Cause to Suspect (above)]. The police officer may seize items found as a result of the search [see Summary Offences Act 1953 s 67(4)(c)].
For completeness, the following provides reference to other legislative sources of police search and other powers:
Controlled Substances Act 1984 (SA)
See s 52 for power to search and seize; s 52(11) for the use of drug detection dogs or electronic drug detection systems; s 52A for general drug detection powers which includes the use of drug detection dogs; s 52B(5)(b) for general drug detection searches in vehicles; s 52B(5)(c) for the use of drug detection dogs to search vehicles; s 52D(5) for the detection of a controlled drug, controlled precursor, or controlled plant by a drug detection dog constitutes reasonable grounds to suspect the presence of that item; s 4 for definition of drug detection dog, electronic drug detection system and general drug detection.
Crimes Act 1914 (Cth)
See s 3E for issue of search warrants; s 3F for powers authorised under search warrant; s 3G for use of assistants and use of force; s 3LA for assisting access to a computer or computer system by person with knowledge; s 3S for restrictions on personal searches; s 3T for searches without a warrant; s 3V for requirement to provide personal details; s 3W for power of arrest without a warrant; and Division 4 for arrest and related matters.
Criminal Assets Confiscation Act 2005 (SA)
See s 172 for seizure of property; s 173 for application for warrant; s 174 for powers conferred by warrant; s 175 for hindering execution of warrant; s 176 for access to computer systems; s 177 for access to financial documents; s 178 for seizure of materials without a warrant; and s 179 for stopping and searching vehicles.
Criminal Investigation (Extraterritorial Offences) Act 1984 (SA)
See s 4 for issue of search warrant; and s 5 for powers under search warrant.
Firearms Act 2015 (SA)
See s 57 for power to inspect and seize firearms; s 57(8) for inspection; s 57(7) for searching vehicles and people; s 57(9) for searching premises; s 57(11) for compliance with prohibition orders, detaining people, vehicles, vessels, aircraft and searching premises.
Intervention Orders (Prevention of Abuse) Act 2009 (SA)
See s 37 for search for weapons or articles to be surrendered in accordance with an intervention order; s 34 for power to arrest and detain without a warrant whilst facilitating service of an intervention order; s 35 for power to arrest and detain following service of an intervention order; and s 36 for power to arrest and detain for contravention of an intervention order.
Serious and Organised Crime (Control) Act 2008 (SA)
See s 33 for searching premises and vehicles in relation to public safety orders.
Summary Offences Act 1953 (SA)
See ss 66R-66S for powers to conduct metal detector searches and general drug detection in declared public precincts; 72A for power to search for weapons by metal detector; s 72B for power to search for weapons pursuant to authorisation to prevent incident of serious violence; s 74BAAB for use of detection aids; s 80 for power of entry to determine the cause of a fire or emergency; s 81 for searching persons in lawful custody; s 83C for power to enter premises where a person is in need of medical or other assistance, or for deceased persons; and Search Procedures (below).
Criminal Procedure Act 1921 (SA)
See s 99AAB(1) for power to enter premises to inspect a computer or device used to store electronic data in accordance with a restraining order.
Surveillance Devices Act 2016 (SA)
See Part 3 which provides for surveillance device warrants and emergency authorities.
Surveillance Devices Act 2004 (Cth)
See Part 2 for the power to issue surveillance device warrants, retrieval warrants, computer access warrants, data disruption warrants and network activity warrants.
Many police ‘ powers, privileges, duties and responsibilities’ are prescribed in the Summary Offences Act 1953 (SA). In addition, numerous Acts and common law principles provide for other police powers [see Summary Offences Act 1953 (SA) s 82 ]. The following discussion of general police powers relates to the investigation of suspected crimes including the power of arrest, powers to search premises, vessels, vehicles and people, and to seize property.
The requirement there is “reasonable cause to suspect” precedes the use of many police powers and provides validity to subsequent police action. When legislation requires "reasonable grounds" as a state of mind (including suspicion and belief), it requires facts ‘ sufficient to induce that state of mind in a reasonable person ’. In relation to a suspicion, ‘[t]he facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown’ [see George v Rockett [1990] 170 CLR 104at 112 and 115; [1990] HCA 26]. Suspicion is a state of mind which ‘ falls short of belief ’ [see Homes v Thorpe [1925] SASR 286 at 291] and ‘ is more than mere idle wondering whether [the situation]... exists or not ’ [see Queensland Bacon Pty v Rees [1966] 115 CLR 266 at 303; [1966] HCA 21]. This principle requires some substance to the suspicion (beyond a hunch) for the establishment of “reasonable cause”.
The police have extensive powers to investigate suspected criminal offences. They can search premises, vehicles and vessels (ships and boats), and seize property when:
The following highlights some commonly used police powers:
A police officer can stop, search and detain vehicles, vessels (ships and boats) and people without a search warrant where there is reasonable cause to suspect the presence of stolen goods, possession of an object constituting an offence, or there is evidence of an indictable offence [see Summary Offences Act 1953 (SA) s 68(1)(a) for vehicles and vessels; Summary Offences Act 1953 (SA) s 68(1)(b) for people; Summary Offences Act 1953 (SA) s 69 for power to board vessels; Summary Offences Act 1953 (SA) s 70 for power to stop and search vessels; Summary Offences Act 1953 (SA) s 71 for arrest of person(s) committing an offence on board ships].
A police officer can enter land or premises to search for and examine vehicle(s) suspected of having been stolen or used without the consent of the owner [see Summary Offences Act 1953 (SA) s 68A].
A police officer can apprehend any person found to be drunk and behaving in a riotous or indecent manner, or whom the police officer finds fighting, or using threatening, abusive or insulting words, or behaving in a threatening, abusive or insulting manner [see Summary Offences Act 1953 (SA) s 74(1)].
A police officer may enter a public venue, order people behaving in a disorderly manner to leave, and use reasonable force to remove them [see Summary Offences Act 1953 (SA) s 73(1)].
Under the Liquor Licensing Act 1997 (SA), a police officer can ask for proof of age and use reasonable force to evict a person under 18 years [see s 115 for proof of age; s 116 for reasonable force].
Under the Public Intoxication Act 1984 (SA), a police officer can apprehend a person who is unable to take proper care of themselves due to the influence of alcohol or drugs, using reasonable force if necessary, and search the person for any items which may be a danger to themselves or other people [see s 7].
Where there is reasonable cause to suspect a person has committed, is committing, or is about to commit an offence, or where a person may be able to assist with the investigation of an offence, that person must provide their name and other personal details as requested by a police officer [see Summary Offences Act 1953 (SA) s 74A(1)].
That person must also provide evidence to support their personal details if requested by the police officer [see s 74A(2) ] It is an offence to refuse to provide the requested information, or to provide false or misleading information [ s 74A(3); see also Right to Silence (below)].
Personal details include the person’s full name, date of birth, residential and business addresses [see s 74A(5) ]. A police officer must identify him or herself and produce their police identification or state their surname, rank and identification number if that information is requested by the person from whom the officer requires the personal information [see s 74A(4)].
A police officer may ask questions about the identity of the driver and owner of a vehicle at a particular time or on a particular occasion [see Summary Offences Act 1953 (SA) s 74AB(1)]. It is an offence to refuse or to provide false or misleading information [see Summary Offences Act 1953 (SA) s 74AB(2); see also Right to Silence (below)]. A police officer must identify him or herself and produce their police identification or state their surname, rank and identification number if that information is requested by the person from whom the officer requires the information [see Summary Offences Act 1953 (SA) s 74AB(3)].
A police officer may ask questions in relation to firearms or firearms related items (including ammunition) to identify the owner, and to identify other persons who have had possession of the firearm [see Firearms Act 2015 (SA ss 55, 56, 57]. It is an offence to refuse or fail to comply with providing such information, with a maximum penalty of $20,000 or 4 years imprisonment [s 55(5)].
A police officer may, with or without a warrant, arrest a person who is caught committing a criminal offence. They may also arrest persons where the police officer has reasonable cause to suspect the person has committed an offence or is about to commit an offence [see Summary Offences Act 1953 (SA) s 75; Criminal Law Consolidation Act 1935 (SA) s 271 for citizen power of arrest; and also commentary on the Cross-border Justice Act 2009 (SA) (below)].
An arrest is only valid if a police officer finds a person committing an offence, or the officer reasonably suspects a person has committed or is about to commit an offence. There is a substantial body of case law in relation to valid arrest procedures and the question of whether or not a person has been arrested rests on the facts of each case.
Generally, an arrest occurs when the police officer makes it clear (by words or by action) that the person is under arrest and is deprived of their liberty. Normally, in situations where it would be reasonable to do so, a police officer, should clearly inform the person of the reason for the arrest (the suspected offence) in a way the arrested person is able to understand [see Hull v Nuske (1974) 8 SASR 587at 594; and R v Conley (1982) 30 SASR 226 at 239 for examples of the underlying principles].
A police officer may arrest a person, without a warrant, who is suspected of having an outstanding warrant issued by a justice [see Summary Offences Act 1953 (SA) s 79]. A person who is arrested in accordance with a warrant issued by a justice does not have the same arrest rights as a person who is arrested under suspicion of having committed an offence. The arrested person must be warned that anything they say may be taken down and used in evidence, and they have a right to make a telephone call to inform someone of their whereabouts [see Summary Offences Act 1953 (SA) ss 79A(3)(b) and 79A(3)(a); the Rights of an Arrested Person (below); and Warrants chapter].
A police officer may arrest a person where there is reasonable cause to suspect the person has committed an offence in another state and where the offence would be an indictable offence or an offence punishable by imprisonment of two years or more had that offence been committed in South Australia [see Summary Offences Act 1953 (SA) ss 78A(1) and 78A(2); Criminal Investigation (Extraterritorial Offences) Act 1984 (SA) s 4 for issue of search warrants; and s 5 for authority under a search warrant].
Upon apprehension, the arrested person must be brought to the Magistrates Court as soon as reasonably practicable. The court may dismiss the charge, admit the person to bail, or commit the person to custody pending the issue of an interstate warrant for their apprehension and the execution of that warrant [see Summary Offences Act 1953 (SA) s 78A(3)].
Should a warrant for the apprehension of that person not be issued and executed within 7 days, that person must be discharged from custody or released from bail by the Court [see Summary Offences Act 1953 (SA) s 78A(4); and Warrants chapter].
A police officer may arrest and detain a person (without a warrant):
However, before arresting the person the police officer must first require the person to remain at a particular place for so long as may be necessary for the order to be prepared and/or served.
If the person refuses of fails to comply with the requirement or the police officer has reasonable grounds to believe the person will not comply, they may then arrest and detain the person.
This period of detention must not exceed a period of 2 hours unless approved by the Court. The Court may extend a period of detention to a total period not exceeding 8 hours [see s 34(4)].
A police officer may also arrest and detain a person (without a warrant) in conjunction with serving an intervention order if they believe on reasonable grounds it is necessary to prevent the immediate commission of abuse or to enable measures to be taken for the protected person(s) [see s 35].
This period of detention must not exceed a period of 6 hours unless approved by a Court. The Court may extend a period of detention to a total period not exceeding 24 hours [see s 35(2)].
Finally, a police officer may also arrest and detain a person (without a warrant) if they have reason to suspect a person has contravened an intervention order [see s 36].
The person must be brought before the Court not more than 21 hours after arrest (not including weekends or public holidays) [see ss 36(2) and (3)].
A police officer may arrest and detain a person (without a warrant) if:
Before arresting a person to effect service the police officer must first require the person to remain at a particular place for so long as may be necessary for the order to be prepared and/or served.
If the person refuses of fails to comply with the requirement or the police officer has reasonable grounds to believe the person will not comply, they may then arrest and detain the person in custody for the period not exceeding 2 hours [see s 99E(4)(a)(ii)].
A person arrested on suspicion of having contravened a restrainig order must be brought before the Court not more than 24 hours after arrest (not including weekends or public holidays) [see ss 99I(3) and (4)].
A police officer may arrest and detain a person without a warrant (but with the authorisation of a police officer above the rank of Inspector) if they reasonably believe that the person has breached a condition of parole, and:
If a police officer so arrests a person, they must notify the Parole Board within 12 hours. See Parole warrants.
See Correctional Services Act 1982 (SA) s 76B.
The Cross-border Justice Act 2009 (SA) applies within a defined geographical region at the intersection of the South Australian, Western Australian and Northern Territory borders [see Cross-border Justice Regulations 2009 (SA) r 4 and Schedule 1]. The provisions of the Act apply upon suspicion or allegation of an offence committed within the region, and/or when an accused is arrested in the region or normally resides in that region [see Cross-border Justice Act 2009 (SA) s 20(2)]. The provisions also apply for persons residing in the region at commencement of court proceedings [see s 20(3)].
Where a person connected with a cross-border region is suspected of having committed an offence or of having breached an order of this State, a South Australian police officer may investigate the offence or breach whilst in another participating jurisdiction and may exercise any police powers in accordance with the laws of South Australia [see ss 35(1) and 35(2)]. This includes powers to enter and search premises, the search of vehicles and people, interviewing people, and the taking of photographs, prints and samples [see s 35(3)]. A police officer from another participating jurisdiction may investigate an offence or breach of an order from their jurisdiction whilst in South Australia and may exercise any powers of a police officer from his or her jurisdiction [see ss 52(1), 52(2) and s 52(3) for police powers]. A South Australian Magistrate or a Magistrate from another participating jurisdiction may issue a warrant for the purpose of investigating an offence or a breach committed by a person connected with a cross-border region [see ss 35(4) and 52(4)].
A South Australian police officer may, with or without a warrant, arrest a person whilst in another participating jurisdiction within the geographical region (namely Western Australia or Northern Territory) [see ss 32 and s 33(1); and Bail Chapter]. Where a South Australian police officer arrests and detains a person in another participating jurisdiction within the geographical region, the laws of South Australia apply in relation to the custody of that person [see Cross-border Justice Act 2009 s 34(3)]. Where a police officer from a participating jurisdiction arrests and detains a person, with or without a warrant, who is located in the South Australian region, the laws governing the arrest and custody of a person from that police officers jurisdiction apply [see ss 49, 50(1), 51(2)(b) and 51(3)]. A South Australian Magistrate may issue a warrant for the arrest of a person located in another participating jurisdiction where that person has a connection with a cross-border region in accordance with South Australian law [see s 33(2)]. A Magistrate of another participating jurisdiction may issue a warrant for the arrest of a person located in the South Australian portion of the region in accordance with the laws of the participating jurisdiction [see s 50(2)].
A person who has been apprehended without a warrant must be immediately delivered into the custody of the police officer in charge of the nearest police station [see Summary Offences Act 1953 (SA) s 78(1)]. The nearest police station is the nearest station from the place of apprehension which has facilities for the care and custody of the person, or the City Watch House (when apprehended within 30 kms of the General Post Office at Adelaide [see Summary Offences Act 1953 (SA) s 78(6)].
The responsible officer of a police facility must, as soon as reasonably practical after a person is delivered into their custody, ask the person if they are an Aboriginal or Torres Strait Islander person. If the person identifies themselves as (or appears to the responsible officer to be) an Aboriginal or Torres Strait Islander person, the responsible officer must inform the person that Aboriginal Legal Rights Movement Ltd (‘ALRM’) will be notified by telephone of the person’s detention. If the telephone call is unanswered, ALRM must be notified by email to a dedicated email address provided by ALRM for that purpose (being an email address that ALRM has undertaken to monitor). A responsible officer who fails to comply with the further requirements set out in Part 5A of the Summary Offences Regulations 2016 (SA) (without reasonable excuse) may be subject to disciplinary action (under the Police Complaints and Discipline Act 2016 (SA)).
When a person has been arrested without a warrant on the suspicion of having committed a serious offence, a police officer may refrain from placing that person into custody at the nearest police station for up to four hours (or up to 8 hours with the authorisation of a Magistrate) to enable completion of the investigation of the suspected offence [see Summary Offences Act 1953 (SA) s 78(2); s 78(3) for authorisation by a Magistrate; and s 78(6) for prescribed period]. Applications to the Magistrate are governed by Chapter 5 Part 3 Division 3 of the Uniform Special Statutory Rules 2022 (SA).
A serious offence is an indictable offence or an offence punishable by imprisonment for two years or more [see s 78(6) for definition of serious offence].
During this time, a police officer may take the arrested person to places connected with the suspected offence [see Summary Offences Act 1953 s 78(2)]. During the period of detention for investigation, the arrested person is not eligible for release on bail and need not be informed of a right to apply for bail [see Bail Act 1985 (SA) s 4(2); and Application for Police Bail (below)].
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)].
A person delivered into the custody of a police station can be subjected to a general search conducted by a police officer, medical practitioner or registered nurse and have items removed from their person [see Summary Offences Act 1953 (SA) ss 81 and 81(2)(a)].
Only a medical practitioner or a registered nurse may carry out an intrusive search (an internal search involving the introduction of anything into a bodily orifice). The arrested person has a right to arrange for (at the arrested person’s expense) a medical practitioner or registered nurse of their choice to witness an intrusive search [see s 81(2)(c); and s 81(6) for definitions of searches].
Should an intimate search (a search involving contact with intimate parts of the body and including an intimate intrusive search) be required, the search must be conducted by a person of the same sex or gender identity (unless the arrested person requests otherwise), and be recorded on videotape (except where the arrested person objects) [see ss 81(3)(d), 81(3)(e), 81(3)(f), 81(3)(g) and 81(3a)].
The provisions under the Criminal Law (Forensic Procedures) Act 2007 (SA) do not apply to the search of a person [see Criminal Law (Forensic Procedures) Act 2007 (SA) s 4(1)(b); and Forensic Procedures (below)].
Once a person has been charged with committing an offence (or otherwise authorised by a Magistrate), the police have powers to take photographs, prints, voice recordings or hand samples where it may establish the identity of the person, or establish the identity of the person who committed the offence [see Summary Offences Act 1953 (SA) ss 81(4) and 81(4a); and ss 4b-4d for authorisation by Magistrate when person not charged with the offence]. It is an offence to refuse to provide handwriting or voice samples [see s 81(4e)].
The law relating to the taking of forensic samples for DNA testing is contained in the Criminal Law (Forensic Procedures) Act 2007 (SA). There are other forensic procedures in other Acts such as the Summary Offences Act 1953 (SA) (as discussed above) and the Road Traffic Act 1961 (SA).
A forensic procedure may be authorised under both the Criminal Law (Forensic Procedures) Act 2007 (SA) or another Act such as the taking of oral fluid or blood under the Road Traffic Act 1961 (SA) (see Criminal Law (Forensic Procedures) Act 2007 (SA) ss 4(1) and 4(2)].
In relation to the taking of forensic samples under the Criminal Law (Forensic Procedures) Act 2007 (SA), different rules apply depending on whether the person to undertake the procedure is a suspect, an offender, a victim or a volunteer, as well as the nature of the forensic procedure. The following will outline suspect and offender forensic procedures.
A forensic procedure in accordance with the Criminal Law (Forensic Procedures) Act 2007 (SA) is a procedure conducted by or for the South Australian police or another law enforcement agency and includes:
taking impressions or casts of a person’s body (such as a dental impression or a cast of a wound) [see Criminal Law (Forensic Procedures) Act 2007 (SA) s 3].
A medical practitioner or a person qualified to carry out forensic procedures may conduct such a procedure, with assistance from a police officer or other person [see s 24].
A forensic procedure under section 14 of the Criminal Law (Forensic Procedures) Act 2007 (SA) is known as a suspects procedure.
With a suspects procedure, simple forensic procedures (which includes a simple indentity procedure, a gun shot residure procedure and other procedures prescribed by regulation) [see s3, s14(2)] can be carried out on any person suspected of committing a serious offence.
Indictable offences and summary offences that are punishable by imprisonment are defined as serious offences for the purpose of the Act [see Criminal Law (Forensic Procedures) Act 2007 (SA) s 3].
This definition encapsulates many criminal offences ranging from minor public order offences through to serious major indictable offences [see Courts and Jurisdiction chapter].
The taking of a DNA profile of a person is a simple identity procedure. Samples are obtained either by buccal swab (taken from the cheek area inside the mouth) or by finger-prick.
The taking of hand or fingerprints is also a simple identity procedure [see s 3 Criminal Law (Forensic Procedures) Act 2007 (SA)].
A suspect or offender has no right to refuse a request for a simple identity procedure and it is an offence to obstruct or resist [see s 32; and Use of Reasonable Force (above)].
A suspects procedure may be carried out on persons whether or not they are in custody [see s 14(3)]. The police may issue directions for a person to attend a police station for the purpose of providing a DNA sample [see Directions to Persons not in Custody (below)].
A simple identity procedure does not require the authorisation of a senior police officer [see s 14].
| BUCCAL SWAB |
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In their advice the duty solicitor must inform the person that they will be required to undertake a buccal swab for the DNA database system. Reasonable force can be used to obtain this sample and any resistance can result in further criminal charges. |
Any other forensic procedure conducted on a person suspected of having committed a serious offence (aside from a simple forensic procedure) requires authorisation by a senior police officer [see Criminal Law (Forensic Procedures) Act 2007 (SA) s 14(2); s 15 for application for an order authorising a forensic procedure; s 19 for considerations in making an order].
The police officer applying for the order for a forensic procedure must state in writing the nature of the suspected offence, the grounds for the suspicion that the person has committed the offence, the nature of the forensic procedure sought and how the forensic procedure will provide evidence of value to the investigation of the offence [see Criminal Law (Forensic Procedures) Act 2007 s 15(2)].
The person who is the subject of the application for the forensic procedure (known as the respondent), has a right to legal representation (as well as other representation if they are a child, or physically or mentally incapable of understanding the nature and consequences of the procedure) at the hearing of the application [see Criminal Law (Forensic Procedures) Act 2007 (SA) ss 17(1), 17(2) and 17(3)].
The application can be conducted by telephone or other electronic means [see s 17(4)].
The representative must be given an opportunity to make representations at the hearing to the senior police officer determining the application [see s 17(4)].
In making a decision about an order for a forensic procedure, a senior police officer must be satisfied there are reasonable grounds to suspect the person of the serious offence, the procedure could produce evidence of value to the investigation, and the public interest weighs in favour of obtaining evidence of the offence [see s 19(1); and s 19(2) for public interest considerations].
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Also note that, as of 12 December 2016, under section 20B a senior police officer may require a sample of blood to be provided if the person is suspected of a prescribed serious offence and is likely to have come into contact with a police officer or person involved in emergency work, or someone involved in the provision of services at a hospital (medical practitioner, nurse etc).This procedure can be carried out whether or not the person is in lawful custody [s 20B(3)].
The following information is included for completeness. An offenders procedure is a simple identity procedure [see Criminal Law (Forensic Procedures) Act 2007 (SA) s 20; and Simple identity procedure]. Anyone convicted of a serious offence can be required to provide a DNA sample for the database system [see Definition of a serious offence]. An offenders procedure can be carried out on persons:
Offenders procedures are retrospective and can be carried out on any person regardless of whether the offence was committed before, on or after the commencement of the relevant section of the Criminal Law (Forensic Procedures) Act 2007 (SA) [see s 20(3)].
A police officer may issue directions to a person who is not in custody to undertake a suspects or offenders procedure [see Criminal Law (Forensic Procedures) Act 2007 (SA) s 29(1)].
Failure to comply with these directions may result in a warrant being issued by a Magistrate for that person’s arrest [see Criminal Law (Forensic Procedures) Act 2007 (SA) ss 29(2), 29(3) and 29(4)].
DNA taken from a suspect or an offender is added to a DNA database. There is no provision for that information to be removed from the system.
This means that where a person was questioned in relation to a serious offence and a DNA sample taken, that sample will remain on the database even if no charges were ever laid.
There are also no provisions to destroy DNA samples taken from people charged with an offence who are then subsequently acquitted [see Criminal Law (Forensic Procedures) Act 2007 (SA) s 40 for a list of DNA data base systems and indexes of DNA profiles].
Where a police officer proposes to conduct an interview of a person whom they suspect, or have reasonable grounds to suspect, has committed an indictable offence, that police officer is obliged to comply with legislative provisions outlining the recording of an interview [see Summary Offences Act 1953 (SA) s 74D]. A police interview is defined as a conversation, part of a conversation, or a series of conversations [see Summary Offences Act 1953 (SA) s 74C]. Whether a series of conversations is considered an interview depends on the circumstances, proximity and subject matter [see R v Day (2002) 82 SASR 85; R v Flaherty (2003) 86 SASR 300; [2002] SASC 287; and R v B,KM [2009] SADC 47 for examples of the underlying principles].
The police must record all interviews of people suspected of committing an indictable offence through audio visual record, or if that is not reasonably practicable, an audio record, or if neither are reasonably practicable, in writing [see ss 74D(1), 74D(2) and 74D(3) Summary Offences Act 1953 (SA)]. Where the interview is recorded in writing, it must as soon as practicable be read to the suspected person and an audio visual record must be made of this process [see s 74D(1)(c)]. The suspect must be given an opportunity to correct any errors in the record of interview [see ss 74D(1)(c)(iii), 74D(1)(c)(iv), 74D(1)(c)(v) and 74D(1)(c)(vi)].
When a vulnerable witness is being interviewed as a witness to a serious offence against the person (such as murder, manslaughter, criminal neglect, a sexual offence, abduction, blackmail, unlawful threats to kill, and some other offences [see s 74EA]), police have an obligation to make an audio visual recording of the interview [s 74EB]. Vulnerable witness in this instance refers to a child of or under the age of 14 years or a person with a disability that adversely affects the person’s capacity to give a coherent account of their experiences and answer questions rationally [s 74EA(1)]. A vulnerable witness also includes a person who is being interviewed as the victim of an alleged child sexual offence (a sexual offence committed in relation to a person under 18 years of age) [s 74EA(1a)].
Police must allow the person or their legal representative to view the audio visual record and they are able to obtain a copy of the audio record part of it, but not the visual part [see s74D(4) Summary Offences Act 1953 (SA)].
If an investigating officer wants to interview a suspect who they believe may have complex communication needs, the officer must make certain arrangements to enable effective communication with the suspect during an interview.
A person will be taken to have complex communication needs where they have difficulty communicating effectively with the interviewer, whether the communication difficulty is temporary or permanent, and whether it was caused by disability, illness or injury [see Summary Offences Regulations 2016 (SA) reg 18(2)]. Intoxication, however, is not defined as a communication difficulty [see reg 18(2)]. Some examples of complex communication needs include where a person has an intellectual disability, Cerebral Palsy, an acquired brain injury, mental health issues, or is autistic.
When an investigating officer proposes to interview a suspect whom they believe may have complex communication needs, they must make the following arrangements as relevant:
See Summary Offences Regulations 2016 (SA) reg 19(1), but note that reg 19(2) enables an officer to proceed with the interview where a prescribed communication assistant or prescribed communication device cannot be arranged and the circumstances do not warrant the interview being postponed [see reg 19(2)].
These requirements operate in addition to those contained in section 74D of the Summary Offences Act 1953 (SA) [see Summary Offences Regulations 2016 (SA) reg 19(1)].
The Summary Offences Regulations 2016 (SA) defines a prescribed communication assistant as a person who provides communication assistance to a suspect or vulnerable witness while being interviewed, and includes a communication partner within the meaning of section 4 of the Evidence Act 1929 (SA) (see Prescribed communication partners below) and any other person approved for the purposes of the interview by the interviewer [reg 22(1)].
A prescribed communication device includes:
See Summary Offences Regulations 2016 (SA) reg 22(2).
Prescribed communication partners
From 1 March 2020, a prescribed communication partner may include a person from the following classes:
In addition to holding the relevant qualifications, the person must have a minimum of five years’ relevant experience working with people with complex communication needs and must have agreed in writing to comply with the relevant Code of Conduct. For more information, see the Rights and Law, Arrest and Court topic on the SA.GOV.AU website (opens new window) as well as:
This information is added for completeness. Normally, arrangements for a formal identification parade occur some time after the accused person has been charged with an offence and they have been assigned a solicitor for representation. An accused person has a right to choose whether or not they wish to participate in an identification parade and it is important they receive legal advice before they agree to participate.
Evidence that a person refused to take part in an identification parade is admissible in court [see Alexander v R (1981) 145 CLR 395 ;[1981] HCA 17and R v Smith (1999) 205 LSJS 427; [1999] SADC 154for examples of the underlying principles].
Instead of an identification parade, the police can arrange for a collection of photographs for identification purposes. The use of photographs does not require the accused person’s consent. Since the introduction of s 34AB of the Evidence Act 1929 (SA) in July 2014, which has the effect of placing equal evidentiary weight on identification evidence obtained through a photographic array, it is likely that line-ups will be used only rarely.
| IDENTIFICATION PARADE |
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It is unlikely that a duty solicitor will be asked during an overnight advice session to advise an arrested person about participation in an identification parade. Whether or not the person should participate in an identification parade requires much consideration and the duty solicitor would not be in a position to provide advice in this area. The duty solicitor should advise the arrested person to tell the investigating officer they do not wish to participate in an identification parade at this time and to then seek legal representation as soon as possible. |
The police officer in charge of the investigation must decide whether to charge the accused person of the suspected offence. A person who has been charged with an offence must be given a copy of the charges as well as a copy of any bail agreement (should police bail be granted). Where it is decided to not charge a person, the police officer in charge of the investigation must ensure the person is returned to the place of apprehension or taken to another place nominated by the person [see Summary Offences Act 1953 (SA) s 78(5)].
| TAKING INSTRUCTIONS FOR OVERNIGHT ADVICE SERVICE |
| Before the duty solicitor responds to the telephone call, they should make sure that they have their advice form ready to record the details of the conversation. When the duty solicitor telephones the police station, they will usually speak first to the investigating police officer. The police officer will identify themself, outline the circumstances of the arrest and offence(s), and outline the procedures they wish to undertake. The duty solicitor must make sure to ask them about their position on granting police bail. |
| CONFIDENTIALITY |
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| When speaking to the arrested person, the duty solicitor should first establish whether they are alone, the presence of any police officers in the room, or whether the telephone call is being recorded by audio or visual recording devices. If the interview is being recorded, or there are police in the vicinity the duty solicitor must warn the person that their conversation with them is not confidential; advise them to listen to the advice and limit their conversation. |
| RIGHTS AND PROCEDURES |
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| The duty solicitor needs to highlight the arrested person’s rights and the procedures they are required to undertake [see The Rights of an Arrested Person (above)]. The duty solicitor should remember to inform the person of their right to apply for police bail. Should police bail be refused, the duty solicitor should tell them they will be brought to court the following day (if a week day) and remind them to ask for the duty solicitor when they are brought to court. Should the person wish to apply for a review of a bail decision over the telephone, or object to a forensic procedure, the duty solicitor may need to seek some assistance from a more senior solicitor. |
| BASIC OUTLINE OF ADVICE FOR DUTY SOLICITORS |
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| Confidentiality: Are they alone? Is the conversation being recorded? Are there police officers nearby? If the arrested person is not alone it is better they listen to the duty solicitor's advice and say very little. Telephone call: to tell someone of their whereabouts [seeThe Rights of an Arrested Person (above)]. Right to have a solicitor, relative or friend present: [see The Rights of an Arrested Person (above)]. Right to an interpreter: [see The Rights of an Arrested Person above] Right to silence: [see The Rights of an Arrested Person (above)]. Right to apply for police bail: and then apply for court bail [see The Rights of an Arrested Person (above); and Bail Chapter]. Use of Reasonable force: warning regarding when the police can use reasonable force [see The Rights of an Arrested Person (above)]. Right to have a medical practitioner or nurse of their choice present: to witness an intrusive search [see Search Procedures above]. Right to have an intimate search conducted by a person of same sex and right to object to having the procedure recorded on videotape. Do not resist or obstruct procedures: an offence to resist or obstruct a forensic procedure or refuse to provide handwriting or voice samples [see Forensic Procedures and Identity Procedures (above)]. Search and forensic procedures: explain the nature of any proposed search or forensic procedures [see Forensic Procedures (above)]. Legal Representation: remind them to apply for legal aid or seek legal advice if they are released from custody. |
| SEEK SENIOR PRACTITIONER ADVICE |
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| Should a duty solicitor be asked to provide advice in an area of which they are not certain, attend the police station during an interview or the scene of a crime, they should seek senior practitioner advice. |
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