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Covid 19 Update: We are still open as we are an essential service. We are accepting all the new & existing enquiries either via phone or video conferences. As per NSW govt regulations, we are taking all the necessary hygiene precautions to protect our customers and staff.

Arrest Rights

Arrest Rights

Who can arrest me and when?

Police officers can arrest you when:

  • they catch you committing an offence;
  • they have a reasonable suspicion that you have committed an offence, or that you are about to commit an offence;
  • they have a warrant for your arrest (eg for failing to appear at Court, or for a past offence etc);
  • they know or reasonably suspect that you have breached bail conditions.

 

Anyone else (security guards, store detectives, ‘bouncers’, and all other members of the community) can perform a ‘citizen’s arrest’ upon you if:

  • they see you committing a crime;
  • they see you committing a ‘breach of the peace’; such as obstructing a police officer in his or her duties, ‘creating public alarm or excitement’, or committing an assault.
  • Minor offences such as offensive language, disturbance and annoyance are not sufficient for a citizen’s arrest.


How much force can be used to arrest me?

No more than “reasonable force” can be used to arrest you. The degree of force that is ‘reasonable’ will depend upon the circumstances.

For example, if you are suspected of a minor, non-violent offence (such as shoplifting) and are not resisting arrest, only minimal force can be used eg holding your arm or placing a hand on your shoulder.

Any greater force could be considered an assault, and you can lodge a formal complaint (against the police) or press for charges to be laid. On the other hand, if you are committing a serious and/or violent offence (such as a serious assault) and/or are violently resisting arrest, a substantial amount of force might be considered ‘reasonable’; possibly including throwing you to the ground, or causing pain by twisting your arm and/or striking. The force used must not, however, go beyond that required to subdue you. The police cannot, for example, punch or kick you after you stop resisting them.

Can I be arrested for questioning if I am not a suspect?

No, you can only be arrested if you are suspected of an offence. If the police believe that you might have information relating to a crime, they may ask you to attend a police interview; but you do not have to attend.

If someone else, however, is or has been charged, a Court document (called a ’subpoena’) may be issued requiring you to:

a.    attend Court to give evidence as a witness; or
b.    produce documents if they are in your possession, custody or control.

What are my rights when arrested?

Being arrested can be a traumatic experience for anyone, however, arrested persons have certain rights which are designed to ensure fairness; including the right to:

  • be told that you are under arrest, what you have been arrested for, and to be cautioned (ie ‘you do not have to say anything, but anything you do say may be used in evidence…’);
  • be told your rights and formally cautioned by the Police Custody Manager upon arrival at the police station;
  • contact a friend, relative or guardian;
  • contact an embassy or consulate (if you are a foreign national);
  • contact a lawyer;
  • have a lawyer present during your investigation/questioning;
  • have an interpreter present during your investigation/questioning (if necessary);
  • receive medical assistance (if necessary);
  • receive food and water;
  • have access to bathroom facilities.

‘Vulnerable’ people

Persons under 18 years old (minors), indigenous persons, intellectually or physically disabled persons, and persons from non-English speaking backgrounds have the additional right to:

  • have a support person with them during police investigations/questioning; and
  • have their specific vulnerabilities (eg their inability to speak English) taken into account by police.

Persons under 18 must not be placed in police cells unless:

  • no other accommodation is available; and
  • it is impractical to supervise the person outside a cell; or
  • the custody manager believes that the cell is more comfortable than any other part of the police station.

Do I have to answer questions after arrest?

Not normally. After arrest, you have a ‘right to silence’, that is a right not to answer police questions about the alleged offence.

You should use that right (ie you should not answer questions) in order to give yourself time to calm down and think clearly. You can always attend a police interview on a later date, even if you are held in custody.

The trauma of being arrested can sometimes leave people feeling pressured or confused into giving confessions or providing answers that are not quite right. Such answers can later be used in Court against you, and can make it much harder to defend your case. So give your name, address and date of birth and do not answer any other questions until you have spoken with a lawyer.

There are, however, some offences where the ‘right to silence’ has been taken away. The most notable is where you are arrested for a ‘terrorist-related’ offence. In such cases, you must cooperate fully with police and answer their questions.

There are also mandatory disclosure requirements for Traffic offences as well as offences under the National Parks and Wildlife Act and the Local Government Act.

What is an ‘ERISP’?

‘ERISP’ stands for Electronically Recorded Interview of a Suspected Person. It is a record of your interview by police at the police station, and may be recorded on audiotape, videotape or both.

If you are required to sit for an ERISP, you should give your name, address and date of birth, but should not answer any other questions until you have spoken to a lawyer. You should not give any written statements or sign any documents, other than your bail form.

How long can I be held in custody?

The police can hold you in custody for a ‘reasonable period’ after which they must either

a.    charge you with an offence; or
b.    release you (unconditionally or on bail).

The ‘reasonable period’ cannot exceed 4 hours unless a warrant is obtained from an ‘authorised justice’. In that case, the period can be extended for up to an additional 8 hours.

It is important to note that the ‘reasonable period’ does not include ‘time outs’; which are times taken to:

  • take you to the police station;
  • arrange, wait for and/or communicate with a support person (for ‘vulnerable’ persons), lawyer, embassy official, interpreter or doctor;
  • be treated by a doctor;
  • organise and undertake a police ‘line-up’ (called an ‘identification parade’);
  • rest, have refreshments or go to the toilet;
  • recover from the effects of drugs or alcohol.

The total period of ‘time outs’ cannot exceed 2 hours. If it does (eg if there are 3 hours of ‘time-outs’), the additional period (ie the 1 extra hour) will be counted towards the ‘reasonable period’ (ie it will become part of the 4 hour period of investigation).

If you are ultimately charged, your matter must be listed before a ‘magistrate’, ‘justice’ or ‘Court’ as soon as practicable which is usually the next day if you are denied bail.

How can a solicitor help me?

Upon being arrested or called in for a police interview, you should contact a lawyer who is familiar with the criminal law. They can:

  • advise you of your rights;
  • explain the charges against you;
  • explain your alternatives;
  • make a bail application for you in Court (if you are refused bail by police); and
  • represent you at your Court hearing.
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