How Long Can Police Keep Me in Custody?

One of the most common questions people ask after being arrested is:

“How long can the police actually keep me?”

The short answer is: “a reasonable amount of time”. The long answer depends on why you have been arrested, whether police need to interview you, and whether you are granted bail.

Many people have heard that police can only hold someone for a certain number of hours, however the law is more complicated than simply counting the hours from when you are arrested.

Understanding how police custody works can help you know your rights and what to expect if you or someone you know has been arrested.

Can the police keep me indefinitely?

No.

Police cannot keep someone in custody indefinitely without lawful authority.

Once you have been arrested, police must either:

• Release you without charge.

• Charge you and release you on bail.

• Charge you and bring you before a bail justice or the Magistrates’ Court if bail is refused.

The law places limits on how long police can detain a person for investigation before those decisions must be made.

How long can police question me?

For most indictable offences in Victoria, police can generally question a person for a reasonable period. In deciding what is reasonable, the law recognises that not every minute spent in custody counts as interview time.

Certain periods may be excluded when calculating the investigation period, including time spent:

• Contacting or speaking with a lawyer.

• Receiving medical treatment.

• Having meals or rest breaks.

• Waiting for an interpreter.

• Waiting for forensic procedures where permitted by law.

• Travelling between locations.

• Dealing with other necessary administrative procedures.

Because of these exclusions, someone may spend considerably longer at a police station than the actual investigation period.

If police need additional time beyond the statutory limits, they may apply to a court for an extension in appropriate cases.

What happens while I’m in custody?

After you arrive at the police station, a number of things may occur.

Police may:

• Tell you the allegations against you.

• Ask whether you wish to participate in an interview.

• Ask if you want to contact a lawyer.

• Fingerprint or photograph you where authorised.

• Conduct certain forensic procedures if permitted by law.

• Consider whether to grant bail.

• Complete paperwork relating to the investigation.

Not every person who is arrested will be interviewed.

Some people are charged and released without being questioned.

Do I have to answer police questions?

No.

In criminal investigations, you have the right to remain silent.

However, you must generally provide your name and address, but you do not usually have to answer questions about the alleged offence.

Many people feel pressured to explain themselves because they believe it will help.

Unfortunately, answers given during a police interview often become important evidence in court.

Before participating in an interview, it is usually sensible to obtain legal advice.

Can I speak to a lawyer?

Yes.

If you have been arrested, you should ask to speak with a lawyer as soon as possible.

Police should provide you with a reasonable opportunity to obtain legal advice before deciding whether to participate in an interview.

Speaking with a criminal lawyer early can help you understand:

• The allegations.

• Your rights.

• Whether you should participate in an interview.

• What is likely to happen next.

What happens after the interview?

Once the investigation reaches a point where police are able to make a decision, they generally have several options.

They may:

• Release you without charge.

• Charge you and release you on bail.

• Charge you and keep you in custody if bail is refused.

• Summons you to attend court at a later date.

Every case is different, and the outcome depends on the nature of the allegations and your personal circumstances.

What if police refuse bail?

If police refuse bail, you will usually be brought before a bail justice or the Magistrates’ Court as soon as practicable.

The court will then decide whether you should remain in custody or be released on bail while your case is progressing.

This is one of the most important stages of the criminal process, particularly for serious offences.

Can I leave if I haven’t been charged?

Not necessarily.

If you have been lawfully arrested, you are not free to leave simply because you have not yet been charged.

However, police cannot continue to detain you indefinitely without lawful authority.

If the investigation period expires and there is no lawful basis to continue detaining you, police must make a decision about your release or charge you in accordance with the law.

What if I think I’ve been held too long?

Whether police have lawfully detained someone depends on the individual circumstances of each case.

Issues such as:

• When the investigation period started.

• What time is excluded.

• Whether any extensions were obtained.

• What investigative steps were taken.

can all become legally important.

If you believe police unlawfully detained you, discuss the circumstances with your lawyer.

Practical advice if you’re in police custody

If you are arrested:

• Stay calm.

• Ask why you have been arrested.

• Ask to speak with a lawyer as soon as possible.

• Think carefully before participating in a police interview.

• Do not physically resist police.

• Carefully read any documents before signing them.

• Keep copies of all paperwork once you are released.

The decisions made during police custody can affect the rest of your criminal case.

Frequently Asked Questions

Can police keep me overnight?

Yes. Depending on the circumstances, police may lawfully keep someone in custody overnight, particularly if they have been charged and bail has not yet been granted or the investigation is continuing within the limits allowed by law.

Do I have to answer police questions?

Generally, no. Most people have the right to remain silent when questioned about an alleged offence, although you must still provide certain identifying information when lawfully required.

Can I call a lawyer?

Yes. If you have been arrested, you should ask to speak with a lawyer before deciding whether to participate in a police interview.

What happens after I’m charged?

If you are charged, police will either release you on bail, release you with a summons to attend court, or keep you in custody until a bail hearing if bail is refused.

Protect your rights from the beginning

The period immediately after an arrest is often one of the most important stages of a criminal case. Understanding your rights, obtaining legal advice early and making informed decisions about police interviews can significantly affect the way your matter progresses.

If you or someone you know has been arrested in Victoria, obtaining legal advice as soon as possible can help ensure your rights are protected and that you understand the next steps in the criminal justice process.

If you have been charged with a criminal offence or have Criminal Hearing at the Ballarat Magistrates Court, obtaining early legal advice is important. Wilkinson Lawyers provides representation in criminal law matters throughout Ballarat and regional Victoria, including:

• Ballarat;
• Bacchus Marsh;
• Maryborough;
• Ararat;
• Stawell;
• Horsham;
• Geelong;
• Bendigo;
• Warrnambool and
• Melbourne metropolitan courts; including Melbourne, Sunshine, Wyndham, Broadmeadows.

Contact Jess Wilkinson on 0468 364 121 or jess@wilkinsonlawyers.com.au to discuss your matter and obtain advice about the best way forward.

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