Caution and Rights & Search Powers

The Victoria Police Manual, section 464 of the Crimes Act, and section 139 of the Evidence Act set out rules officers must follow before interviewing suspects, including giving a caution. A caution is a verbal warning that a suspect has the right to remain silent when questioned about an offence.

Obligation to answer questions

No person is obliged to answer any questions put to him by a police officer or PSO unless required to do so by law.

Section 464A Crimes Act

The general requirements of this section require that, within a reasonable time, the member should -

  • inform the person of the circumstances of that offence

  • question the person, or involve them in an investigation, to determine whether they were involved in the offence.

Before any such questioning occurs, the member must inform the person in custody that they:

  • do not have to say or do anything, but anything they say or do may be given in evidence (The CAUTION)

  • may communicate with or attempt to communicate with a friend or relative to inform that person of their whereabouts (A RIGHT)

  • may communicate with or attempt to communicate with a lawyer (A RIGHT)

When a PSO places a person under arrest, and that arrest will result in the person being handed over to police, the PSOs are required to administer a Caution and Rights.

The person in custody must be allowed to exercise any of these rights, and PSOs must inform attending police members if the offender wishes to exercise their rights.

In Custody - Caution and Rights

The Crimes Act provides that all persons in custody MUST be given caution and rights. In custody is defined in Section 464(1) as:

  1. under lawful arrest by warrant

  2. under lawful arrest under section 458 or 459 or a provision of any other act

  3. in the company of an investigating official and is -

    1. being questioned

    2. to be questioned

    3. otherwise being investigated

Body Worn Cameras - VPM

  • Where a person taken into custody (defined by S464 CA) or otherwise detained, a recording must be started in line with the activation framework.

  • If caution and rights are provided or a confession/admission is made before the BWC recording has started, then the provision of caution and rights or those admissions should be confirmed by the person when the BWC is started.

In Custody - Standard Indigenous Question - S464 CA

Section 464 of the Crimes Act mandates that every person taken into custody must be asked the Standard Indigenous Question (SIQ).

The Victorian Aboriginal Legal Service (VALS) must be notified if an Aboriginal person is taken into custody. If handover of the person in custody to police will occur promptly, PSOs may advise police that the person identifies as Aboriginal or Torrest Strait Islander and a VALS notification must be done.

However, if handover will be delayed beyond an hour, PSOs must make the notification to VALs themselves by submitting VP Form 1505 and phoning VALS via phone/IRIS device.

Example Scenario - Caution Only

You witness a person drinking from a beer can on the platform, a summary offence against the Transport Act. Given this is a summary offence, a potential power of arrest under S219 TA applies in this situation.

You speak to the person and, at your request, they stop drinking and dispose of the beer can and supply their correct name and address. Under these circumstances, and given that there is no public order or safety issue identified, S219 TA cannot be applied. As a result, the person does not fit the definition of ‘in custody’ as per S464 CA.

As the suspect complied with your request, eliminating all of the CAPS criteria, they would be free to go at that point. However, you decide to ask them some questions about the offence. Before any questioning about the offence, S139 is applicable in these circumstances, and you are required to give them a caution. There is no obligation to give them their rights in this situation as they are not ‘in custody’ whilst they are being questioned. To ensure their understanding of this, tell them that they are free to go and do not have to answer any of your questions if they do not wish to.

Evidence Act - Section 139

For a person who is not in Custody but who is going to be asked questions regarding an offence —

Section 139 of the Evidence Act requires police and PSOs to give a suspect a caution prior to asking any questions of them regarding the commission of an offence (e.g. What was your reason for committing the offence?).

Children

  • Irebuttable Presumption - children under the age of 12

  • Rebuttable presumption - children aged between 12 and 14 years

  • Caution and Rights apply equally to adult and child offences

    • Remember child offenders need to demonstrate they understand what the caution and rights mean.

  • If a child is going to be formally interviewed by police in relation to an offence, a parent/guardian/independent person would be present to ensure fairness to the child and that they understand what is happening.

Authority to Search a Person

Police and PSOs do not have a general power to stop and search people. Random or unlawful searches are not allowed and can be considered trespass.

The dignity, privacy and rights of individuals in these situations are fundamental principles underpinning our system of laws.

Types of Searches:

  • Pat Down (Police/PSO)

  • Full Search (Police)

  • Intrusive body search (FMO Only)

Pat down or initial search

Pat down or initial search - asking a person to empty their pockets and allowing an external pat-down search. This can include removing and checking items like hats, shoes, socks, jackets, and bags, but not inner clothing. The search should be done as privately as possible. This is the only form of search available to PSOs.

Authority to Conduct a Search

The legal power to search a person is sourced from:

  • Statute Law

    • specific search power without warrant

    • warrant to search (search warrant)

  • Common Law

  • If no other authority to conduct a search, a person can give informed consent.

Statutory Powers to Search a Person (Before Arrest)

  1. There is no Common Law power to search a person who is not under arrest.

  2. The power to detain and search a person without a warrant and without consent by a PSO is limited to the following statutory powers:

    1. Graffiti Prevention Act (Section 13)

    2. Drugs, Poisons and Controlled Substances Act (Section 82)

    3. Control Weapons Act (Section 10)

  3. All of these statutory powers are conditional on the existence of ‘reasonable grounds’ or ‘reasonable grounds to suspect’.

Common Law Power to Search Persons under Arrest

The power to search someone after they are arrested and to seize items without their consent comes from common law. This can only be used if the officer ‘suspects on reasonable grounds’ (SORG) the person has something like:

  • property that is material evidence in respect of the offence for which the arrest was made

  • any other offences which may have been committed

  • objects that might cause injury, damage or be used to effect escape (D.I.E.E)

    • Damage

    • Injury

    • Escape

    • Evidence

Reasonable Grounds

Reasonable grounds mean the officer must have real facts, information, or knowledge to support their suspicion at the time. These grounds must exist before a search is carried out. If there is a group of people, the officer must have reasonable grounds for each individual—just suspecting the whole group is not enough.

Reasonable grounds must be present before conducting a search.

Ask yourself the question - What makes me believe/suspect that a search is ‘required’? If you have a ‘hunch’ that you can’t explain, you will not have ‘reasonable grounds’. The hunch that you have may very well be a starting point, though.

Searches - no Statute or Common Law Power

Consensual Search - In the absence of a statute or Common Law power to search a person, a person may consent to a PSO carrying out a ‘pat-down’ search. The PSO intending to conduct the search must obtain a signed authority from the person concerned. If consent is withdrawn, the search must immediately cease.

Conducting a Search

  • Keep the person informed, e.g., why the search is being conducted, under what authority

  • Record - what you find, where you find it, and describe it

  • Avoid contamination - change gloves

  • Gender policy

  • Safety - Two PSOs to be present

  • No power to remove piercings, etc., unless believed to be evidence of a crime, e.g. theft.

Body Worn Camera & Searches

Members must start a BWC recording when:

  • exercising a legislated or common law power (e.g. s.82)

  • to capture an incident occurring, likely to occur, or which has occurred.

Searching: Gender Consideration

While the law makes no distinction between genders regarding searches, police policy certainly does. VPM - Policy Rules, ‘Searches of Persons’ states:

  • A person must be searched by a member of the same gender

  • A transgender, gender diverse, or intersex person should be searched by a member of the same gender with which the person identifies or is most comfortable

  • Two members must be present for each search

  • Members must wear fresh disposable gloves for each person searched.