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Being under arrest

Being under arrest

What should you do if you are arrested?

If you have been arrested, you should always politely insist that you have the chance to call a lawyer.

Do not resist police, even if you do not think your arrest is fair or lawful. If you resist police, you may be committing additional offences.

Do not make a statement to police until you have spoken to a lawyer. Deciding whether or not you should tell police anything in relation to your arrest is an important and complicated decision. It is generally best to speak with a lawyer before making that decision.

When can you be arrested?

A police officer may arrest you if:

  • They suspect on reasonable grounds that you have committed an offence or are about to commit an offence
  • They have a warrant for your arrest
  • They have stopped you for a breach of the peace (threatening violence, or provoking someone else to be violent)
  • They believe on reasonable grounds that you have breached your bail conditions, or
  • They need to serve an apprehended violence order (AVO) on you

What do the police have to tell you when they arrest you?

A police officer must always tell you that you are under arrest and explain why you are under arrest. They must also caution you that you do not have to say or do anything, but that if you do, it may be used in evidence against you. You should not answer any questions, apart from giving your name and address, without first speaking to a lawyer.

Can a police officer use force against you?

A police officer can use reasonable force to arrest you. What constitutes reasonable force depends on the circumstances. If you are concerned about how much force a police officer has used to arrest you and your case goes to court, a Judge or Magistrate can rule on whether or not it was reasonable. If you wish to make a complaint about a police officer you can do so by contacting the NSW Police Customer Assistance Unit on 1800 622 571 or by filling in a form on the NSW Police website.

What happens if you resist arrest?

If you actively resist arrest, you can be charged with the offence of resisting police in the execution of their duty (or even assaulting police in the execution of their duty). Even if you believe you have not done anything wrong, the police may still arrest you in the circumstances listed above. The arrest, however, must be lawful and must not involve the use of excessive force.

When can the police search you?

If you are not under arrest, the police can stop and search you if they suspect on reasonable grounds that you are carrying items such as stolen goods, prohibited drugs, dangerous articles or something that is used (or intended to be used) in connection with an offence, for example, implements that could be used to carry out a burglary.

Police are able to use sniffer dogs for “general drug detection” in some places, including:

  • Particular public transport routes
  • In places where alcohol is served
  • At entertainment events, such as sporting events and festivals.

If a dog detects a scent and “indicates” you, this may give police reasonable grounds to suspect you are in possession of a prohibited drug, and to search you. The police can pat you down, look in your pockets or bags, and search your car. They can only strip-search you when they believe it is serious and urgent, and there are strict rules they must follow to ensure your privacy.

The police do not need a warrant to search you in any of these circumstances. When searching you, a police officer must always tell you their name and place of duty, and the reason for the search.

Can police arrest you simply to ask you questions?

The police can ask you to voluntarily accompany them to a station for questioning, but they cannot force you to do so. Police may not arrest you in order to investigate whether you have committed a crime. They must first have reasonable grounds to suspect you have committed an offence and they must intend to commence proceedings against you.

How long can you be detained at the police station after arrest?

If you have been arrested on suspicion of an offence, the police are allowed to detain you for a reasonable time to carry out investigations, for example, to interview you, if you agree to being interviewed. This period cannot normally be more than six hours (unless an extension is granted by a detention warrant). At the end of this period, the police must either charge you or release you without charge.

It is important to note, however, that the six-hour period can be subject to a number of “time outs” (for example, using the bathroom, rest, taking refreshments, obtaining medical attention, or to complete the charging process etc).

Do you have to answer questions a police officer asks you?

In most situations, you do not have to answer any police questions. In some situations, you may, however, be required to give your name and address. If police ask for these details, it is best to provide them with your name and address or photo ID.

If you have been involved in some traffic-related offences, you may also be required to provide police with further details. If you are unsure whether you need to provide any information, you should obtain legal advice. The police do not, however, have the power to stop or detain you just to ask questions.

If possible, particularly if you are unsure about your rights, do not answer questions or sign statements until you receive legal advice. Sometimes police will ask you to go “on record” to electronically record your refusal to answer questions (i.e. to get a recording of you saying that you decline to be interviewed). This in itself is an interview and you do not have to do it.

It is very important to understand that there is no such thing as an “off the record” or informal discussion with a police officer. Anything you say to a police officer may later be used as evidence in court.

If you are under 18 years of age, there must be a responsible adult, such as a parent, guardian, youth worker or solicitor present when you speak to police. If not, whatever you say will not be admissible against you in court.

Aboriginal people, Torres Strait Islanders, and people with disabilities may also be entitled to a support person during a police interview.

Can a failure to answer questions be used against you?

At all stages of the legal process, you have a right to silence. In some cases, however, if you are over 18 years of age and choose not to provide information regarding your involvement (or lack of) in an alleged serious indictable offence (an offence with a maximum penalty of five years or more), your silence may be later used as an unfavourable inference against you.

If you decide to introduce new information for the first time at a later date during the legal proceedings, the court may question why you did not mention the new information at the time you were first asked. The police, however, have to give you a special caution, advising that you do not have to answer questions, but that your silence could be used against you in court at a later date. Your lawyer must be present when police are giving the special caution. Your lawyer may need to decide whether it is in your best interests for them to be physically present at the police station with you.

If you are under 18 years of age, there must be a responsible adult, such as a parent, guardian, youth worker or solicitor present when you speak to the police.

Do you have to submit to being fingerprinted and photographed?

If you are under arrest, you generally have to submit to having your fingerprints, palm prints and photograph taken. However, you can ask for your fingerprints and palm prints to be destroyed if you are subsequently found not guilty of the charge.

The police need a court order to fingerprint or photograph a child under 14 years of age.

When can a court refuse bail?

A Court Attendance Notice can require you to attend court. When you attend court, the court will then consider whether to release you from custody or keep you in custody. This is called a decision to release you “on bail” or to “refuse bail”.

A court or other authorised bail authority, such as a police officer or an authorised justice, must refuse bail if they are satisfied there is an unacceptable risk. An unacceptable risk means the unacceptable risk that the accused, if released from custody, will fail to appear at any proceedings, commit a serious offence, endanger the safety of individuals or society, or interfere with the witnesses or evidence. If there is no unacceptable risk, the bail authority must grant bail, release the person without bail, or dispense with bail.

Some things a court will take into account when considering whether there is an unacceptable risk include:

  • Your criminal history
  • The seriousness of the offence
  • Any history of violence
  • Whether you’ve previously committed offences while on bail
  • Any special needs you might have
  • The need for you to be free for any lawful purpose, such as employment

What happens if you don’t comply with your bail conditions?

If you do not comply with your bail conditions a police officer may choose to take no action, warn you about the breach, give you a notice to appear at court, or arrest you and bring you before a court. The court will then reconsider your bail by either releasing you on the same conditions as your original bail, varying your bail conditions, or refusing bail altogether.

How can a solicitor help?

If you have been arrested you should always try to contact a solicitor before you do anything else. They can help in many ways, including:

  • Attending the police station with you (if they think it’s in your interests)
  • Advising you of your rights and what you should and should not do or say while in custody
  • Applying for bail on your behalf
  • Representing you in court

If you don’t yet have a solicitor, don’t worry. We’ve made it easy to find one near you through our online Find a Lawyer service.

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