Legal - Police matters: know your rights and how to use them
Queensland Teachers' Journal, Vol 126 No 3, 9 April 2021, page no.24
Teachers facing criminal allegations, whether in their employment or outside it, may face a charge or criminal conviction, and that puts at risk not only their reputation, liberty and property, but their teacher registration and ability to make a living.
What you say at the beginning of the ordeal may have serious effects on the outcome of the proceedings against you.
Due to the serious consequences which criminal charges can have for a teacher’s employment, the Union frequently grants members access to fully-funded legal advice, even in relation to charges which do not directly relate to the employment.
You have the right to legal representation in all criminal matters. This is recognised as a fundamental legal right in Australia, which takes precedence over any confidentiality obligation you owe to your school or employer. You should obtain legal advice before discussing any aspect of a criminal matter with your school.
Under the Rules of the Union, an application for legal assistance should be made in writing, but in emergency situations, application for urgent assistance can be made by phone.
You should not, however, engage your own representative and then ask the Union to meet the cost, as the Union has its own regular advisers familiar with the implications of charges for teachers.
Danger of making admissions
Several cases have seen teachers convicted as a result, either wholly or in part, of statements signed by those teachers, or admissions verbally made by them to police or to their school principal. In some cases, teachers have pleaded guilty in court without proper consideration and advice and have later regretted that decision.
From the very first moment of contact with the police, your conversation is likely to be recorded. Police are permitted to use recording devices without your permission.
It is very difficult to overcome verbal or written admissions and it is practically impossible to overcome a plea of “guilty” made in court. That should only happen when you’ve had access to the advice you are entitled to.
Right to remain silent
There is considerable public misunderstanding of the legal rights of people approached by police officers investigating alleged offences. The media often publish such statements as: “After three hours questioning, the accused was allowed to leave the police station”. Such statements are normally misleading, as in most circumstances the police in Queensland have no authority to arbitrarily detain someone for questioning before they have been arrested. Even after arrest, there is normally no obligation to answer questions, other than name and address and other purely formal matters not related to the offence itself.
When a police officer makes a statement such as “You had better come along to the station as I want to ask you some questions”, it is only an invitation. It does not have the force of law and there is no legal obligation to accompany the police unless you have been arrested.
It is, of course, extremely unwise to resist arrest, and in situations of doubt you should ask the police whether you are being arrested to clarify the situation.
Unfortunately, it is not always made clear at the outset that the police are investigating an allegation made against you. They may simply say that they would like to put some questions to you or discuss a matter with you. There have been cases where teachers have become involved in quite detailed discussions with police officers and realised, too late, that the questions related to a serious allegation against them.
You must give your correct name and address to police, whatever the nature of the offence being investigated. Giving a false name and address is itself an offence.
Of course, there are exceptional circumstances in which police do have a right to detain people without arresting them. These apply mainly to issues such as suspected drug and terrorism offences, where police powers are greater than in other situations. But there is no legal obligation to answer questions beyond your name and address. Stress or lack of awareness of the significance of the questions being asked can mean that even innocent people prejudice their position.
Not only do you have a right to remain silent, you also have a right that no adverse inference be drawn against you from exercising that right. Use it.
Obtaining advice before answering
Your best response when approached by police is: “I would like to speak to the Union’s lawyers”. This communicates to police that you have access to competent legal representation and that you are exercising your right to silence.
This is preferable to an outright refusal to answer questions. Police officers in Queensland will usually cooperate with your request to contact your Union for advice. Call the Union immediately and ask for urgent legal assistance for a police matter. If you are a Union member, you can be speaking to a lawyer within minutes. The opportunity then arises to take legal advice as to the extent to which it is prudent to answer questions.
This can be vital to your prospects.
If a teacher is arrested
Even if you are arrested, which may lead to photographing, fingerprinting and DNA samples being taken, there is still no obligation to answer questions and, again, no adverse inference can be drawn from a refusal to do so.
After arrest, police have a duty to bring you before a court, usually a magistrate, within a reasonable time (normally the same day or the following morning), and you should inform the court that you are entering a plea of “not guilty” and are seeking an adjournment of the proceedings for a period of time (at least a week) so that you can obtain legal advice. In many courts, a duty lawyer will be available to represent you on the bail application.
Don’t plead guilty
It is very dangerous to plead guilty to “get it over and done with”. It is sometimes suggested to people who have been arrested that the matter can be disposed of quickly and without publicity. This very rarely turns out to be the case.
Even if you believe yourself to be guilty, it is still extremely important to obtain legal advice first, as your understanding of the law may not be correct and there may be a defence open to you. Even if there is no defence open, legal representation may achieve a result which will not only be less adverse, but which will assist greatly in representations to your employer and the Queensland College of Teachers if you are subsequently charged with misconduct.
For example, there is a provision in the Criminal Code Act 1899 (Qld) which empowers the court, in appropriate circumstances, to record no conviction. Provision is also made in the law for community service orders, bonds and probation. All of these can be of considerable assistance in minimising the harmful effects on a teacher’s reputation, employment and teacher registration.
Disclosure to Queensland College of Teachers
Any change in criminal history must be immediately disclosed to the Queensland College of Teachers (QCT). A change in criminal history includes every charge and conviction of every type of offence.
You can be “convicted” of an offence even if no conviction is recorded, e.g. you can be charged with a non-indictable offence such as drink driving and receive a criminal conviction for it, even if the conviction is not “recorded” in your criminal history. That must be disclosed.
The Union’s expectation is that the QCT is unlikely to take any action in relation to convictions for most simple offences.
Disclosure to the employer
Some employers require disclosure of criminal offences. Sometimes you are obliged to disclose a criminal charge, even if you are innocent. Often though, a charge does not need to be disclosed to your employer. You should seek advice from the Union immediately if you are charged by police with any offence.
When faced with police officers who want to ask you questions, you should:
- assume all conversations with police are being recorded
- give police your name and address, and that’s it
- respond with “I would like to speak to the Union’s lawyers”
- remember that you have the right to a lawyer and that right takes precedence over confidentiality obligations to your school
- never make a statement or sign anything without legal advice
- be polite, even if they are not
- not argue, even if they’re wrong
- not plead “guilty” without legal advice
- not resist arrest or, in relation to drug offences, detention on suspicion
- take any allegation of criminal conduct seriously and get advice immediately.