Know your rights: guidelines for members under investigation

Each year we provide members with a general overview of their rights and obligations when subject to either a criminal or discipline investigation. Of recent times it has become apparent that some members have not actively sought relevant advice prior to engaging with Professional Standards Command or local investigators. We cannot stress enough the importance of contacting our office for relevant advice as soon as you are approached by investigators and our contact details can be found at the end of this article.

It is not intended that these guidelines provide comprehensive legal advice, or that they cover every possible situation you might face. Before you are interviewed, you should carefully consider your position and seek advice from the Police Association (TPA) Legal & Discipline Section, or referral to the TPA’s preferred solicitors for preliminary legal advice.

Before any interview commences, you should always ascertain from the investigator whether the interview concerns a criminal or discipline investigation.

 

Criminal Investigations

  1. If you are being interviewed for a criminal matter, a formal caution pursuant to the Crimes Act 1958 will be administered. You have the same rights as any other member of the community. You should consider your options very carefully and first seek legal advice before deciding to answer questions in a criminal interview. 
  2. A person does not have to be guilty of an offence to legitimately claim the  privilege against self-incrimination and decline to answer questions. An innocent person can provide problematic or inconsistent answers to evidence in the possession of the investigators. By answering questions, you may make admissions to seemingly irrelevant matters which later prove to be important to the prosecution case. 
  3. As a general rule, you should decline to answer all questions in a criminal interview. If you wish to answer questions, you should first seek legal advice before doing so.
  4. If the subject of the interview relates to an “on duty” incident or event, you may already have made a witness statement as part of your duties as a police officer, for example, as part of a Brief of Evidence. Provided your witness statement is accurate and truthful, it is possible at the end of the caution to state that you have already made a written statement which contains a complete account of your actions and that you do not wish to answer any further questions. You should first seek legal advice before doing so.
  5. Whether you do or do not answer questions in a criminal interview should not affect your prospects of being charged. There will either be sufficient evidence to charge you or not. A competing version from you will rarely detract from the evidence which already exists. It will only serve to put your opposing version of events.
  6. As a matter of law, a Court cannot draw any adverse inference against you as a result of you exercising your right to silence and refusing to answer questions in an interview.
  7. If you decide to refuse to answer questions, once the formal caution has been read to you, you must respond to each and every question with the answer “no comment”. You should never answer questions on a selective basis.
  8. You should not participate in a re-enactment or identification parade under any circumstances.
  9. You should not comment upon or respond to any document or exhibit produced or shown to you during the interview.
  10. You should always remember that any person you speak to, including your work colleagues, may make a statement confirming the contents of your conversation. You should always be cautious about talking to other people about the subject of an investigation. Police officers can be directed to make a statement about conversations they have had with their colleagues who are suspected of having committed a criminal offence.

 

Discipline Matters

  1. Section 171(1) of the Victoria Police Act 2013 provides that the Chief Commissioner of Police in the investigation of a discipline offence may direct any police officer or protective services officer to give any relevant information, produce any relevant document or answer any relevant question.   A similar coercive power can be found at s. 84(2) of the Independent Broad-based Ant-corruption Commission Act 2011.  
  2. If you are interviewed in relation to a discipline offence and you are given a direction pursuant to s. 171(1) of the Victoria Police Act 2013 or s. 84(2) of the Independent Broad-based Ant-corruption Commission Act 2011 you are required to co-operate only to the extent of the above mentioned areas and you are not obliged to provide any form of bodily or forensic sample unless specifically directed to pursuant to the Drug and Alcohol Testing provisions in Division 3 of the Victoria Police Act 2013.
  3. You must comply with your statutory obligation during your discipline interview unless you are justified in refusing to answer question (which will only rarely arise).  However, you should keep your answers specific to the questions asked and produce only those document/s sought by the investigator.   
  4. The coercive powers referred to above do not extend to interviews concerning criminal matters. If you are given a criminal caution pursuant to s.464 of the Crimes Act 1958 you have the same rights as any other member of the community, namely the right to decline to answer question.
  5. If you have been interviewed in relation to a criminal matter and a caution has been administered you should not then be subjected to a discipline interview if the substance of the allegation is the same. Before being compelled to answer questions in those circumstances all criminal allegations should have been concluded and confirmation that no criminal charges will be preferred should be communicated to you either in writing or on tape. It would be improper of an investigator to use the power of compulsion as a means of acquiring evidence in support of a criminal prosecution.
  6. Prior to any discipline interview commencing members are strongly advised to contact the Police Association Legal and Discipline section on 9468 2600 for relevant advice. The service is available 24 hours a day seven days a week.

 

The Independent Broad-based Anti-Corruption Commission (IBAC)

  1. IBAC replaced the Office of Police Integrity (OPI) in July 2012. The IBAC Commissioner has the power to summon a person to be examined on oath.
  2. Usually when an IBAC summons is served, it will include a confidentiality notice which makes it a criminal offence to disclose to any person the existence of the summons or the subject matter of the investigation unless the confidentiality notice explicitly permits it. You will be permitted to contact the Police Association (subject to very limited exceptions) for the purpose of seeking a referral to the TPA’s preferred solicitors to obtain legal advice. We advise any member subject to a confidentiality notice to carefully reads its terms.
  3. A person who is summonsed to appear before IBAC is usually permitted to have legal representation. An IBAC examination can be conducted in private or in public, however, the vast majority of examinations are held privately. Arrangements can be made for a legal representative to appear on your behalf through the TPA’s preferred solicitors.
  4. Section 144 of the IBAC Act abrogates a person’s privilege against self-incrimination. A person who has been summoned to an examination is not excused from answering a question or producing a document on the basis that doing so might incriminate him or her or make the person liable to a penalty. 
  5. As a consequence of the abrogation of the privilege against self-incrimination, the IBAC Act provides that any answer or document provided in the examination is not admissible in evidence against that person before any Court or person acting judicially, except in proceedings for:-

(a)        Perjury or giving false information; or

(b)       An offence under the Independent Broad-based Anti-Corruption Act 2011; or

(c)        An offence against the Victorian Inspectorate Act 2011; or

(d)       An offence against ss.72 or 73 of the Protected Disclosure Act 2012; or

(e)        Contempt of the IBAC under the Independent Broad-based Anti-Corruption Act 2011; or

(f)        A discipline process or action.

       6. Any member who receives a summons or request to appear before the IBAC should immediately contact the Police Association for a referral to obtain                 legal advice.

 

General Investigative Practices

As with any investigation undertaken into serious crimes, investigators (including Professional Standards Command) have a wide range of investigative tools available to them. These include:-

•          Electronic surveillance;

•          Human surveillance;

•          Undercover operatives; and

•          Telephone intercepts and listening devices.

Potential exists for your dealings with a person under investigation to be captured or recorded by the lawful use of covert investigative measures. Any conversation you have with a person under investigation may be recorded and has the potential to cause you embarrassment. Members must always be mindful of the “Declarable Association” policy applicable to all members.

If you are being treated as a witness in a criminal investigation you may be lawfully directed by a superior member to provide a witness statement. If you are concerned that you may become a suspect in that investigation, you should first seek legal advice before making a statement to investigators.

THE ASSOCIATION’S LEGAL SECTION CAN BE CONTACTED ANYTIME DURING BUSINESS HOURS ON (03) 9468 2600.  MEMBERS REQUIRING URGENT ADVICE AFTER HOURS WILL BE REDIRECTED TO THE RELEVANT ON CALL LEGAL AND DISCIPLINE MEMBER WHO WILL PROVIDE RELEVANT ADVICE OR REFERRAL 24 HOURS 7 DAYS A WEEK.