If police want to question you, search your home or access your phone in Queensland, what you do next can have a significant effect on your case.
You generally have the right to remain silent, although there are exceptions where the law requires you to provide particular information. Police also need lawful authority to search your property or access information on your phone. That authority may come from a warrant, another statutory power or, in some circumstances, your consent.
If you are under investigation for a serious criminal offence, get legal advice before answering questions, participating in an interview or giving police access to information voluntarily.
Ashworth Lawyers is a leading Brisbane criminal defence firm representing clients facing serious and complex criminal matters across Queensland. Their experienced Brisbane criminal lawyers regularly advise clients during the police investigation stage, including on police interviews, search warrants and digital access orders.
Do I have to answer police questions in Queensland?
Generally, no. Section 397 of the Police Powers and Responsibilities Act 2000 (Qld) preserves your right to refuse to answer police questions unless you are required to answer under legislation.
There are situations where you may be legally required to provide information, including identifying information in certain circumstances. There are also specific statutory powers that can require answers or information.
For that reason, do not assume that every police question must be answered, but equally do not refuse a lawful requirement without first obtaining advice.
If police want to interview you about a criminal allegation, you can say that you do not wish to answer questions until you have obtained legal advice.
Anything you voluntarily say may later become evidence. This includes comments made before a formal recorded interview. Police are required to caution a relevant person that they have the right to remain silent and that anything they say may later be used as evidence.
Can exercising my right to silence be used against me?
Generally, exercising your right to silence is not an admission that you committed an offence.
You should not feel that you need to explain yourself immediately simply because police say they want to hear ‘your side of the story’. Whether giving an interview is in your interests depends on the allegations, the evidence police already have and the particular circumstances of your case.
Our Brisbane criminal defence lawyers can first obtain information about the investigation and advise you whether participating in an interview is in your interests.
For more information, see our guide to the right to silence in Queensland.
How long can police hold me for questioning in Queensland?
For investigation or questioning about an indictable offence under the relevant provisions of the Police Powers and Responsibilities Act 2000 (Qld), police may initially detain you for a reasonable time of up to 8 hours.
Within that 8-hour period:
- police may question you for no more than 4 hours; and
- the remaining period may include ‘time out’, such as time spent contacting or speaking with a lawyer.
The 8 hours is a maximum initial detention period, not an automatic entitlement for police to hold every person for 8 hours. The detention must still be reasonable in the circumstances.
Police can apply for an extension. A Magistrate or justice must be satisfied of matters including the seriousness of the offence, the need for further detention and that the investigation is being conducted properly and without unreasonable delay. You or your lawyer must also be given an opportunity to make submissions about the application.
Can I call a lawyer before a police interview?
Yes. If the questioning provisions for an indictable offence apply, police must inform you that you may contact a lawyer of your choice and attempt to arrange for that lawyer to be present during questioning.
Police must delay questioning for a reasonable time to allow you to speak with the lawyer and, where arrangements have been made, allow a reasonable time for the lawyer to attend.
This is one of the reasons you should seek advice before an interview starts, rather than trying to correct something afterwards.
Can police search my home without a warrant in Queensland?
Police commonly use a search warrant to search a home for evidence, but a warrant is not required in every situation.
The Police Powers and Responsibilities Act 2000 (Qld) gives police a number of search powers. Whether police can enter and search without a warrant depends on the particular power being exercised and the circumstances.
If police attend your home, you can ask:
- whether they have a warrant;
- to see the warrant;
- what premises and items the warrant covers; and
- whether you are being required to do something or police are asking for your consent.
Do not physically interfere with police carrying out a search. If you are concerned about whether the search is lawful or what you are required to provide, contact our criminal defence lawyers immediately.
Can police search my phone without a warrant in Queensland?
Police taking possession of your phone does not automatically mean you are required to voluntarily give them your PIN, password or other access information.
However, in Queensland, police can apply for a warrant to obtain access to information stored on digital devices.
Under section 154 of the Police Powers and Responsibilities Act 2000 (Qld), a Magistrate or judge may include an order in a search warrant requiring a person with relevant access information to provide access or assistance in accordance with the order. The Act also provides for orders to be sought after a digital device has been seized.
Do I have to give police my phone PIN or password?
You should obtain legal advice before providing a PIN, password or other access information unless you understand the legal basis on which police are requiring it.
If a valid digital access order has been made, refusing to comply can have serious consequences.
Section 205A of the Criminal Code 1899 (Qld) makes it a crime, without reasonable excuse, to contravene specified orders concerning device information. The maximum penalty is 5 years imprisonment.
Importantly, the legislation expressly provides that it is not a reasonable excuse that complying with the order may tend to incriminate you or expose you to a penalty.
If you are unsure what an order requires, get advice before taking any step that could amount to non-compliance.
Our criminal lawyers have acted in matters involving alleged contraventions of digital access orders. In one Magistrates Court matter, the circumstances surrounding what our client understood the order to require were relevant to the ultimate sentencing outcome, which involved a fine and no conviction recorded. Read more from Ashworth Lawyers about failing to provide a PIN or password to police.
What should I do if police want to question or search me?
If you are approached by police about a serious criminal offence, these five steps can help protect your position:
- Ask to speak with a criminal defence lawyer. Obtain legal advice before answering any police questions.
- Be aware of a pretext telephone call, especially during investigations of a sexual offence. This is a secretly recorded call by the police, made by the complainant. Any admissions you make in this call could be used against you.
- Ask whether police have a warrant or other legal authority. If police intend to search your home, phone or other property, ask what power they are relying on.
- Do not voluntarily provide access to your phone without understanding your legal obligations. There is an important difference between voluntarily providing information and complying with a valid legal order.
- Do not physically resist police. If you dispute the legality of a search, arrest or direction. Get legal advice rather than attempting to physically prevent police from acting.
Should I speak to a criminal lawyer before police charge me?
Yes. You do not need to wait until you have been charged to obtain criminal law advice.
In many serious matters, the investigation stage is the first opportunity to protect your position. An accredited specialist Brisbane criminal lawyer can advise you about:
- whether you should participate in a police interview;
- your right to silence;
- what information you are legally required to provide;
- search warrants and police search powers;
- digital access orders and access to your phone;
- preserving messages, CCTV, documents and other evidence relevant to your defence; and
- what is likely to happen if police decide to charge you.
Early advice is particularly important if the allegations could affect your employment, professional registration, reputation or family.
Frequently Asked Questions
Can police ask me to come to the police station voluntarily?
Police may ask you to attend a police station voluntarily for an interview. If you are attending voluntarily, ask whether you are under arrest and whether you are free to leave. You should obtain legal advice before agreeing to participate in an interview.
Can police take my phone if I have not been charged?
Police may have the power to seize your phone during an investigation even if you have not been charged. Whether they can do so depends on the circumstances and the particular police power being exercised. If police seize your phone, ask what power they are relying on and get legal advice before providing access information.
Should I speak to police if I have done nothing wrong?
Do not assume that an interview is simply your opportunity to explain what happened or clear up a misunderstanding. Police may already have witness statements, CCTV, text messages, phone records, forensic evidence or other information that they do not disclose to you before asking questions.
Our Brisbane criminal lawyers can speak with you before the interview. Find out what police are investigating and advise whether you should participate in an interview or exercise your right to silence.
Confidential advice from a Brisbane Criminal Lawyer
If you are under investigation by police in Queensland. The early steps during the police investigation are important. Do not assume that speaking to police will clear things up. And do not provide an interview or statement before getting legal advice.
You should also avoid contacting the complainant or other witnesses. And preserve any messages, emails, CCTV, photographs or other material that may become important to your defence. If police want to search your home. Access your phone or obtain information from you, get advice about what you are legally required to provide before agreeing to anything.
Our Brisbane criminal lawyers have defended thousands of clients facing serious criminal charges across Queensland. If you have been contacted by police or believe you are under investigation. Speak to our Brisbane criminal lawyers before taking any further steps.