Your reactions at the roadside can make or break your case if you decide to go to court
When a police officer stops you at the roadside, some form of conversation inevitably ensues. However amicably this discussion proceeds, you must bear in mind that the ‘Law Vs You’ conversation cannot be merely a friendly chat. It is foremost an official police interview, and the officer’s first priority is to get you to admit the offence - to incriminate yourself. You are in a highly adversarial situation, but there is no requirement for you to help the police convict you. Strangely, many motorists do that anyway.
“Do you know why I’ve stopped you?” is a classic police opener. “Do you know what speed I’ve clocked you at?” is another. They invite the opportunity for a hapless motorist to shoot himself in the foot by admitting an offence right off the bat.
One of the police officer’s jobs, during the interminable wait in the car while he fills out the ticket, is to take down a record of his interview with you -- including your admission of guilt if you make one. This record will be used in court, an environment which considers notes taken during or shortly after the incident to have strong evidentiary value.
“In the majority of cases it is your statement or admission that makes the Police case,” says Mark Stenberg, a Sydney-based solicitor specialising in traffic matters. “You can have a 20-minute roadside ‘chat’ with the Police, and their notes might comprise three lines that incriminate you. Be very careful what you say.”
Be polite. Do not act offensively. No “I’m amazed anyone can pass the Police physical with a gut that big,” sort of comments. Police officers have many discretionary powers, and most good potential outcomes for you will evaporate the instant an officer hears anything like that. “Aren’t there any real criminals out today?” also qualifies in this regard. Thinking it is okay; saying it isn’t.
Stenberg says you should always step outside the car (or remove your helmet if riding) to talk to police. If you’re not accused of an offence -- if, say, you’re a witness to an accident -- by all means be co-operative, make a statement (verbal or written) and give your name, address and telephone numbers.
However, if you are accused of an offence (or concerned that you are about to be) provide the police only your name, address, date of birth and licence number. This is required under the law -- it’s why you’re required to produce your licence. You are also required to undergo a breath test if requested. “You must expressly and clearly deny any allegation or suggestion of a breach of law,” says Stenberg. “You’re not required to help the police case against you.”
Police are not obligated to show you the read-out of speed measuring devices used to issue you with an infringement on the spot. You can ask, but not demand, to see it.
Stenberg also says if the identity of the alleged offender is an issue (say you are a part of a group or not the driver or rider of the vehicle) then say so at roadside. Likewise, if the interview is happening days (or hours) after an alleged offence -- “Were you driving that car at 10pm last Tuesday?” -- it might help your case immensely if you didn’t know who was driving at the time. There could be a good reason for that, such as the keys being available to many people. Likewise, if a good reason exists for a breach of road rules (say you’re speeding because of a medical emergency) say so on the spot and request an escort to hospital. It’s too late to tell only your solicitor a week later.
“If you are in an accident caused by a mechanical defect, a wild animal or poor road conditions, say so clearly at the roadside,” says Stenberg. He also says drivers taking extreme action, such as accelerating heavily or turning sharply -- even onto the wrong side of the road -- to avoid a catastrophe, can be deemed acceptable and reasonable in court.
“Never give police permission to search your person or your vehicle,” says Stenberg. “They need a pretty good reason to do it without your permission. And if recording equipment is attempted to be used during an interview at the roadside, you have to know about it and agree to it. If you agree, make your points [ie denials] in loud and clear voice; or else clearly and formally object to use of recording equipment.”
If you have a camera in your phone, or even a disposable one, there is no similar prohibition on using it, however. You are free to photograph the scene, and the images might come in extremely handy to establish either accident details or whether or not correct police procedures were followed in issuing you an infringement. Photograph everything in detail.
Stenberg says that you’re not obliged to go anywhere with police unless you’re under arrest. If you are, don’t give written statements or oral admissions, and don’t sign anything -- anything. If you’re not, get the name, address and telephone number of any potential witness to the incident and request a written statement from them at the earliest opportunity.
Stenberg: “As soon as the police have left the scene (or you’re in a police lock-up) get a pen and paper, and write out a detailed written statement of what happened with the date, time, place and relevant people’s names, including surname and who said what. Write down the actual words, not a summary. Then ring a solicitor to discuss your options at your first opportunity.”