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Contact with lawyer, family or friend

Information about the rights a person has to make contact with their lawyer, and also with others before they are questioned.

Before formal questioning begins, police must inform person of their rights. The right to communicate with friend or relative is one of these rights. The arrested person also has the right to phone and attempt to communicate with the lawyer of their choice.

Under both Victorian and Commonwealth law, a person who is to be questioned is allowed to make 2 phone calls. Police must delay questioning until this communication has taken place. The person must be given a private space to make these calls.

Police investigating are not obliged to delay the interview to enable person to make these calls unless person indicates that they would like to act on these rights. It is vital that police advise the person in language that they can understand, and check for understanding. If police do not follow this procedure, any confession the person makes could be ruled inadmissible.

See:

Contacting a lawyer

If the person wants to contact a lawyer the police must allow them to do this before the interview begins. Do not wait until the interview is over. The person can contact Legal Help(opens in a new window). during business hours and ask to speak with a lawyer. Some private lawyers are available after hours and at weekends when VLA is closed. The person can ask police to help them to contact a lawyer.

Do not answer any questions about the offence before speaking with a lawyer. Lawyers will be able to give specific legal advice about the person's situation. They will also speak to the police to get more information about the offence, their investigation and what is likely to happen after the interview. The person has a right to speak to their lawyer in private so that the police cannot overhear what is being said.

Right of a lawyer to attend an interview

While police are not obliged to allow a person's lawyer to be present during questioning, police will allow them to be present if either the lawyer or the suspect ask for this. Police will warn the lawyer that they may be called to court as a witness for the prosecution or the defence because they were present at the interview. Lawyers should not interrupt the interview unless this is justified.

See 18 Legal practitioners being present at interviews Law Institute Victoria—Guidelines for police and legal practitioners at Police Stations.

Questioning an Aboriginal person

Under Commonwealth law special rules apply to interviews conducted with people who identify as being of Aboriginal or Torres Strait Islander descent. The investigating officer must inform Aboriginal Legal Aid if they believe person they want to question is of Aboriginal or TSI descent (Exemptions apply s 23L). Must not be questioned unless an interview friend is present.

See Questioning an Aboriginal person.

Failure to advise person of their rights

A failure by the investigating official to inform someone about their rights to communicate before an interview takes place will not necessarily make the interview inadmissible in court.

The decision whether the interview is allowed to be used will depend on whether the court believes that there is unfairness to the accused when all of the circumstances of the case have been considered.

See R v Frugtniet [1999] 2 VSCA 58 (19th May 1999)(opens in a new window).

Contacting a friend or relative

A person who is about to be interviewed by police can phone a friend or relative, but only to let them know where they are. There are exceptions to this right:

Exceptions to the right to communicate

Exception for drink driving

This right to communicate before questioning does not apply to drink or drug drive offences under Road Safety Act 1986 (Vic).

If communication creates a risk

A person may not be allowed to call a friend, relative or legal practitioner if he police officer has reasonable grounds to believe that the call may result in:

  • escape of an accomplice
  • intimidation of a witness, or
  • fabrication of evidence

Communication may also not be permitted if the questioning is so urgent that it should not be delayed.

See s. 23L—Crimes Act 1914 (Cth)(opens in a new window) and s. 464C—Crimes Act 1958 (Vic)(opens in a new window).

Exceptions for right to communicate by young person suspect

The right to communicate are subject to exemptions if allowing someone to communicate is likely to result in:

  • an accomplice attempting to avoid apprehension
  • evidence being concealed
  • intimidation of a witness, or
  • risk to safety of other people.

If exemption is to be used in relation to a legal practitioner, this must be authorised by officer having rank of superintendent or higher.

See Interviews with young people.

More information

Legislation

Crimes Act 1958 (Vic)

  • s. 464A(3)—before questioning begins (apart from asking for name and address) investigating official must inform person that they do not have to say or do anything and anything that they do say or do may be given in evidence
  • s. 464C—right to communicate with friend, relative or legal practitioner

See Crimes Act 1958 (Vic)(opens in a new window).

Road Safety Act 1986 (Vic)

  • s. 49(1)—creates drink and drug driving offences

See Road Safety Act 1986 (Vic)(opens in a new window).

Crimes Act 1914 (Cth)

  • s. 3C(2)—defines 'protected suspect'
  • s. 23F—cautioning persons who are under arrest or protected suspects
  • s. 23G—right to communicate with friend, relative and legal practitioner
  • s. 23H—special rules for interviewing Aboriginal persons and Torres Strait Islander people
  • s. 23J(3) (lists of interview friends and interpreters for Aboriginal persons or Torres Strait Islanders to be kept by minister
  • s. 23L—exemptions to right to communicate
  • s. 23M—providing information relating to persons who are under arrest or protected suspects

See Crimes Act 1914 (Cth)(opens in a new window).

Cases

R v Li and Another [1993] VicRp 59; [1993] 2 VR 80 (16 February 1993)

In this case a record of interview was ruled inadmissible because he accused, although told of his rights to silence, and to make contact with a lawyer, family or friend; he did not understand these rights.

See R v Li and Another [1993] VicRp 59; [1993] 2 VR 80 (16 February 1993)(opens in a new window).

Pollard v R (1992) 176 CLR 177 FC 92/055

Pollard was being tried for sexual offences including aggravated rape. He was questioned about the allegations before being interviewed on video tape, where he was cautioned for the first time, and told of his rights to make contact with family, lawyer, friends.

See Pollard v R [1992] HCA 69; (1992) 176 CLR 177; (1992) 64 A Crim R 393 (24 December 1992)(opens in a new window).

R v Frugtniet [1999] 2 VSCA 58 (19th May 1999)

This matter involved production of counterfeit travellers cheques. Frugtniet and his wife were travel agents. They were charged with conspiracy to make and to use false instruments. The suspect was initially refused to contact his office, the police justified this on the basis that hey wee concerned about evidence being destroyed. He was subsequently offered to make a call on 11 occasions.

See R v Frugtniet [1999] 2 VSCA 58 (19th May 1999)(opens in a new window).

References

Criminal Law Investigation and Procedure

Westlaw's online resource has information about a person's rights when police are asking questions.

See Questioning [1A.4.20](opens in a new window).

The Law Handbook

Fitzroy Legal Service’s Law Handbook has information about being questioned by police.

See:

Law Institute Victoria

The institute has information about the conduct of police and lawyers at police stations.

See Law Institute Victoria—Guidelines for police and legal practitioners at Police Stations(opens in a new window).

Updated