Police Power to Force the Disclosure of Identity

As a general rule, criminal defence lawyers will advise clients not to answer police questions.

There are several reasons for this, one of which is that those who participate in police interviews will often inadvertently say things that lead to further suspicion, even if they are completely innocent.

Under the pressure of an interview at the police station, many unintentionally give inaccurate information that can lead to an inference that they have a ‘consciousness of guilt’, which can make it more difficult to get the charges dropped or defend the case in court.

Indeed, there are many examples of people confessing to things they didn’t do, often under the belief that they will be treated better by police and released if they say what police want to hear.

Because of the dangers of police interviews, individuals are afforded a general right to silence, although that right has been diluted in NSW recently.

There are certainly situations whereby individuals can be compelled to give information to police – and two of these relate to the disclosure of identity.

General Identity

Section 11 of the Law Enforcement (Powers and Responsibilities) Act 2002 (the LEPRA) gives police the power to force unknown people to disclose their identity:

‘if the officer suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because the person was at or near the place where the alleged indictable offence occurred, whether before, when, or soon after it occurred.’

Indictable offences are any that can be dealt with in a higher court such as the District Court, and cover a whole range of offences including larceny (stealing), a wide range of assaults (including common assault dealt with on indictment), drug supply, fraud and so on.

Alternatively, police have the power to arrest a person to ascertain their identity if police believe he or she is intoxicated in a public place, and has been given a direction to leave.

Failing to disclose identity to police in either of these circumstances without a reasonable excuse is an offence.

Traffic Cases

Police also have the power to compel the owners of motor vehicles to disclose the name and address of a driver who is alleged to have committed an offence under the Road Transport Act 2013.

This power is set out in section 177 of the current Road Transport Act, which says that the ‘responsible person, or the person having custody of the vehicle’ must immediately give a written and signed statement disclosing the driver’s name and address when asked to do so by police in circumstances where it is alleged that a person has used that vehicle to commit a traffic offence.

Persons other than the vehicle owner or custodian can also be compelled to disclose any information that can help police identify the driver.

In legal-speak, this is known as a ‘form of demand.’ Police must give the responsible person or custodian a specific time and vehicle registration so that the person can determine who the driver was at that time.

A person must comply with a form of demand and provide the name and details of the driver at the specified time. Failing to do is an offence that carries a maximum penalty of $2,200.

However, if the ‘responsible person’ does not know who the driver was at the time, they can simply tell police that they do not know.

This is because section 177 contains a defence where the person can establish that they ‘did not know and could not with reasonable diligence have ascertained the driver’s name and home address.’

It is also important to bear in mind that while a vehicle owner may be compelled to tell police the driver’s name and address, they do not have any obligation to provide any other information about the alleged offence or answer any questions about the incident itself.

In other situations police may, while acting in the execution of their duties, ask a driver or supervising driver, to produce their driver licence or state their name and home address. Failing to comply with such a request carries a maximum penalty of $2,200.