Monday, 24 May 2021

Who can arrest me and why?

A police officer can arrest you if, for example:

  • they suspect on reasonable grounds that you have committed an offence and that a summons would not be appropriate;
  • a warrant (written authority) for your arrest has been issued by a court; or
  • you are committing or are about to commit an offence.

Police should only exercise their power of arrest as a last resort, where alternatives such as issuing a summon or on the spot fine are impractical or unavailable.

How should they arrest me?

The person arresting you should:

  • tell you that you are under arrest; and
  • tell you why you are being arrested.

Can they use force to arrest me?

A police officer may use as much force as is necessary to arrest you. Unreasonable force is assault. After arrest, a police officer may handcuff you if you attempt to escape or the officer considers it necessary to prevent you escaping. A judge or magistrate will decide whether or not the force used was reasonable in the circumstances.

What happens if I resist a lawful arrest?

It is an offence to resist arrest. Active resistance is required for a charge of resisting arrest to be laid. Police may arrest you if they reasonably believe you have committed an offence, even if, in fact, you are completely innocent. If you resist arrest, you are committing an offence with which you may be charged, even if the police do not charge you with any other offence.

Do I have to submit to a search?

Yes. Police can stop, search, and detain you if they have reasonable grounds to believe you are carrying something illegal, stolen items, drugs, things obtained illegally, dangerous articles, or things police believe may be used illegally, such as tools for theft or weapons. Random searches, however, are not permitted.

In such circumstances, police can pat you down, look in your pockets and bags and search your car. Police are only allowed to strip-search you in serious and urgent circumstances, and there are strict rules to ensure privacy and supervision. If you refuse to be searched, the police may arrest you and use force to search you.

When carrying out a search, the police officer involved is required to provide their name, place or duty and reasons for the search.

A judge or magistrate will decide whether or not the police had reasonable grounds for the search at a later date.

Can I be arrested for questioning?

No. Police can request you to accompany them to a police station for questioning but you are not required to go unless you have been arrested for an offence. It is not advisable to speak with the police until you have first spoken with your solicitor. You should ask for a lawyer to be present during questioning.

What should I do when arrested?

Politely insist that you be allowed to contact a lawyer. You have the right to have a lawyer present while you are being questioned to give you advice. There is no legal aid for lawyers to attend police stations to advise you during questioning.

Do I have to answer questions if I am under arrest?

In general you have a right to silence. 

Police should caution you, before questioning, that no questions need be answered but that any answer given may be used in evidence. The police may want you to answer questions in what is known as a “record of interview.” This may be recorded electronically. Give the police your name, address and date of birth, but do not answer any other questions unless you have your solicitor present. Do not sign any document other than a bail form!

Do I have to submit to being fingerprinted or photographed?

Yes. The police may take your fingerprints and photographs of you for the purpose of identification. If you are subsequently acquitted or the charges against you are dropped, you may ask that your fingerprints and photographs be destroyed.

Children can only be photographed or fingerprinted with a court order.

Do I have to participate in an identification parade?

No. But the police may ask witnesses to identify you from photographs.

How long do I have to stay in custody?

Following arrest, the police may detain you for an initial period of up to four hours to conduct investigations or two hours if you are a juvenile or an Aboriginal or Torres Strait Islander. An application can be made to allow an extension of up to a further eight hours. Following this, you must either be charged or released. However, it is important to note that certain periods can be disregarded or constitute ‘time outs’ for the purposes of this four hours: for example, time waiting for recording facilities, time to allow the accused to communicate with a lawyer or support person, or time for the accused to recover from intoxication.

If you are charged, you will usually be released on bail, with or without conditions. If you are refused bail, or cannot meet the conditions set, you must be brought as soon as practicable before a court where you can apply for bail.

When can I get bail?

Usually after arrest and charging at a police station. You may be refused bail if:

  • you are considered to be a risk to the protection of the alleged victim(s), or the community
  • you have previously failed to comply with a bail undertaking
  • you committed an offence while on bail, parole, probation, or a good behaviour bond
  • the offence you have been charged with is serious, or
  • you are considered to be a flight risk.

Once the watch house sergeant has decided whether or not to grant you bail, the police are required to inform you of your right to contact a lawyer, or any other person, in connection with bail.

What happens if I don’t comply with bail conditions?

You can be arrested by the police for breaching your bail and brought before a court. If the breach of bail is proven, the court can either refuse bail or release you on fresh or continued bail. If your bail needs to be varied, see your solicitor or make an application at the court registry.

How can a solicitor help me?

You should try to contact a solicitor if you are arrested. He or she may:

  • advise you of your rights;
  • explain the alternatives before you;
  • make a bail application for you;
  • represent you in court; and
  • attend the police station with you if it is in your interests to participate in an interview with police.

This publication has been prepared with the generous assistance of the Law Society of New South Wales. This publication is intended as a simple guide. It is not, and must not be taken to be, legal advice. For legal advice please consult a solicitor. 

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