Your rights if you are under arrest in NSW
WHEN CAN YOU BE ARRESTED?
The police can arrest you if:
- They have “reasonable grounds” for suspecting you committed an offence; or
- They “reasonably suspect” that you were about to commit an offence; or
- You are breaching the peace; or
- You are on bail, and have breached your bail conditions; or
- A warrant has been issued for your arrest; or
- In certain circumstances related to the service of an AVO.
What’s “reasonable” is entirely dependent on the circumstances.
AT THE TIME OF ARREST
Before being arrested the police must:
- Inform you that you are under arrest; and
- Why you are being arrested; and
- The police officers name and place of duty; and
- Caution you: that you do not have to say or do anything, but anything you say or do may be used in evidence against you.
(*Note: if all this information is not provided at the time of arrest, it’s not wise to get into a dispute with the arresting officers, or resist arrest. Instead, tell your lawyer. It may be an unlawful arrest, or you may have the right to lodge a formal complaint later.)
It is unlawful for the police to arrest you simply because they want to ask questions. For example, if you were in a store with friends, and one of your friend’s shoplifts an item, the police cannot arrest you simply because they want to ask you questions about who stole, what. You can voluntarily answer their questions, but you can’t be arrested simply to answer these questions if you’re not a suspect. It’s likely the police will insist any possible witnesses, or people who may have relevant information, provide their name, address and date of birth, in the event the police want to call them as a witness to give evidence at a later date. You should provide your name, address and date of birth if asked.
THE “CAUTION” IS IMPORTANT: we have all heard police officers on TV, spin this sentence quickly, but not enough attention is given to its importance. You do not have to SAY OR DO anything – you do not have to agree to an interview, and you should NOT agree to participate in a police interview, particularly a recorded police interview (- which are used in serious indictable offences), unless and until you get the advice of a lawyer. There may be some instances where you should participate in an interview. In short, we strongly advise you to speak to a lawyer before you conduct any interview with police.
The reason is: in Australia’s justice system, the police have the burden of establishing who committed an offence. It is the onus of the police to collect and collate sufficient facts and witnesses to establish who stands accused, of what. The accused doesn’t have to say or do anything to assist the police. When you engage in an interview you are assisting the police to collect and collate facts and information, to establish their case.
Having said that, there are limited circumstances where your refusal to provide relevant information in answering a question or participating in an interview, may be used against you in court, by the prosecution. This applies in serious indictable offences. It is the ‘special caution’ introduced in 2013,
and means that if you receive legal advice (after your arrest), and then, in front of your lawyer, the police give you a ‘special caution’, and you then fail or refuse to tell police about a significant matter that you later rely on in your defence, this failure to provide to police this relevant information that you later use in your defence, may be used against you. For example, you are charged with attempted murder (a serious indictable offence) by stabbing the victim with a knife. You are given a special caution in front of your lawyer and in the interview you don’t mention you have a sprained wrist. Later, in court, in your defence, you state “I am right handed and at the time of the offence I had an undiagnosed severely sprained right wrist from a fight the day before. I couldn’t use my right hand at all.” The implication that a jury may draw from this is: if this were true and you had a sprained wrist, why wouldn’t you tell the police during the interview? Did you later make-it-up about your wrist being sprained, so you could use it in your defence?
Another example where you may be required to answer questions is if you were inside a vehicle at the time the police believe the vehicle was used in the commission of an offence – in which case you may be compelled to give the names and details of the other occupants of the vehicle.
At the Local Court Lawyers we can’t stress enough how important it is to speak to a lawyer before participating in a police interview.
If a person is arrested because the police suspect they committed a crime, the police can initially only detain the person for 4 hours to investigate whether or not they committed this crime, before they have to charge you or release the person. The initial 4 hours can, in certain circumstances, be extended for an additional 8 hours. There are exceptions to this rule, and certain periods of time not counted, so we suggest you contact a lawyer if detained by police.
It is never advisable to resist arrest, or to hinder the police as they try to arrest someone else (– for several reasons, one being that resisting arrest, or hindering an arrest, are offences for which a person may be charged).
CAN THE POLICE USE FORCE TO ARREST YOU?
The police can use “reasonable force” to arrest someone. What is “reasonable force” depends entirely on the circumstances of your arrest. For example, it might be reasonable for 2 arresting police officers to use capsicum spray, on someone pointing a gun at them. The same force would not generally be reasonable if 4 arresting police officers were arresting one unarmed person.
If a person tries to escape, or the police think they may try to escape, the police can use handcuffs in the arrest.
RELEASE ON BAIL
Generally an accused person is released on bail, certainly for most local court offences. If the Sergeant or arresting officer refuses bail, or the accused cannot meet the conditions of the bail, the police must take the accused before a Magistrate or Judge as soon as possible for the judiciary to determine if (s)he should be granted bail. We strongly recommend a lawyer appear in a bail hearing, as the bail legislation is very particular about what must be demonstrated to the court, by the police and defendant.
FINGERPRINTS, PHOTOGRAPHS AND POLICE LINE-UPS
If you are over 14 the police can generally insist on taking you fingerprints, and a photograph. Your lawyer will probably ask for these to be destroyed if you are subsequently acquitted.
Generally the police cannot insist you participate in a line-up, but the police can show your photograph to potential witnesses.
*** NOTE: These explanations are not intended to be legal advice, and most guidelines set out above have exceptions and conditions. This is a simplified, summary of the basic law, in plain English.