ARREST

What should I do if I’m arrested by police?

You should contact a criminal lawyer as soon as possible. You should never be violent, aggressive, offensive or swear at a police officer and you should not answer any questions unless you are told you have to.

When can the police arrest me?

A police officer has the power to arrest you if:

• a court has issued a warrant for your arrest;
• you have just committed, or are in the process of committing, an offence;
• they suspect on reasonable grounds that you have committed an offence;
• you have breached bail, or the police believe on reasonable grounds that you are about to;
• to prevent a breach of the peace.

In addition to the above, the police officer must suspect on reasonable grounds that arresting you is necessary to do one or more of the following:

• ensure you attend court for the offence you are suspected of;
• prevent you continuing to commit an offence or committing another offence;
• prevent the concealment, loss or destruction of evidence relating to the offence;
• prevent harassment of, or interference with, a person who may be required to give evidence;
• prevent the fabrication of evidence in respect of the offence;
• to ensure your safety or welfare.

It is important to note that police should only use their arrest powers as a last resort.

What do the police have to tell me when they are placing me under arrest?

The police officer arresting you must tell you why you are being placed under arrest as soon as possible after performing the arrest. Ordinarily it should be done as soon as the officer arrests you, however, this is not always reasonably practicable. If, for example, you create a situation where it is not possible for the officer to tell you the reason for your arrest then the arrest will still be lawful as long as you are told the reason as soon as circumstances allow for it to be done. As an example, if you violently resist arrest, or attempt to run from the police, the officers will not be able to immediately tell you why you are being arrested but should do so as soon as you are properly subdued.

What if I’m a minor?

Special legislation, the Young Offenders Act 1997 (NSW), creates special rules in relation to the decision to arrest a person under 18 years of age. It states that a person under 18 should be dealt with by way of a warning or caution rather than arrest where appropriate.
This only applies if the child is suspected of committing an offence that may be finalised in the Local Court. In addition, they do not apply if the offence:

• is a traffic offence committed by a person aged sixteen or over;
• results in the death of a person;
• is a prescribed sexual offence;
• involves personal or domestic violence;
• is a serious drug offence.

The police officer investigating the alleged offence will be the person responsible for deciding if your matter is one that can be dealt with without having to resort to arresting you and bringing you before the courts.

When can a “citizen’s arrest” be made?

A person who is not a police officer may arrest you, without a warrant, if you:

• are in the act of committing an offence;
• have just committed an offence; or
• have committed a serious indictable offence for which you have not been tried.

Unlike a police officer, an ordinary citizen cannot arrest you merely on suspicion; they must have actual knowledge that you have in fact committed an offence. The above rules apply to any retail store loss prevention officer or any security guard who may wish to detain you until police arrive.

How much force can be used to arrest me?

No more than ‘reasonable’ force can be used to arrest you. The type and degree of force that is ‘reasonable’ will depend on the circumstances. It will ultimately be a question for the magistrate or judge to determine if, in all the circumstances, the force used by a police officer to arrest you was lawful or not. Factors which will influence this decision include: the nature of the offence you are suspected of committing, whether you are continuing to offend while the police are trying to arrest you, any physical or verbal resistance to arrest by you. The use of unreasonable force on you during arrest is an assault. It is important to note that the use of unreasonable force by the police during an arrest can have a significant influence on the outcome of your case and, in some cases, can constitute a defence to the charges.

What is resisting arrest?

The offence of resisting arrest involves active non-compliance with the requests of police officers while they are attempting to arrest you. You can also be charged with this offence if you simply assist or incite somebody else to resist arrest, or hinder an officer from executing their duty. Police can and will charge you with resisting arrest even if they decide not to charge you with the offence they were originally arresting you for.
Defences to this offence include self defence and intoxication. Also, if the police officer was acting unlawfully, you cannot be convicted.
If you are arrested by the police, even if you think it is not justified, do not struggle or resist them because the offence of resisting arrest is a serious one which is punishable by a lengthy prison sentence.

What happens if the police arrest me and they don’t follow the rules?

The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) sets out detailed rules the police must follow when arresting you. If the police act either unlawfully or improperly when they arrest you this may have a significant impact on the outcome of your case. In some cases, the actions of the police may result in the charges against you being dismissed.

Do I have to answer questions after arrest?

Not normally. After arrest, you have a ‘right to silence’ i.e. a right not to answer police questions about the alleged offence. You should use that right (i.e. 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.
Police sometimes take advantage of the trauma of arrest by pressuring or confusing people into giving ‘false’ 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 criminal lawyer.
It is important to remember that in some circumstances, for example for offences involving a motor vehicle, you may be required to provide certain details to investigating police. If in doubt, ask police if you will be committing an offence if you don’t answer their questions. If they say no, don’t answer.

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. You should always speak to a criminal lawyer before agreeing to participate in any interview with police. Often, investigating police officers will try to get you to give a recorded interview simply to record your refusal to participate in an interview. You should not enter an interview room, even for this purpose, without first speaking to a criminal lawyer. 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 contacted a criminal lawyer. You should not give any written statements or sign any documents, other than your bail form.

Can police search me after I’m arrested?

Yes, the police have much wider powers to search a person under arrest than a person who is not under arrest. Upon or during your arrest, police may search you if they suspect, on reasonable grounds, it is sensible to do so to find out if you are carrying anything which may:

• be evidence of the commission of an offence;
• was used in the commission of an offence;
• be used to escape custody; or
• endanger anyone’s safety.

Once you are in lawful custody, police can search you and keep anything they find on that search.

Fingerprinting and Photographing

Police may take all particulars that are necessary to identify you if you are in lawful custody for an offence.  If you are over 14 years of age, the particulars may include fingerprints, palm prints and photographs.

Medical Examinations

An examination of a person in custody may be carried out in the following circumstances:

• by a medical practitioner;
• acting at the request of a police officer of the rank of sergeant or above; 
• upon a person in lawful custody.

For the purpose of obtaining evidence as to the commission of the offence if:  

• the person in custody has been charged with an offence; and 
• there are reasonable grounds for believing that an examination of the person may provide evidence as to the commission of the offence.

Release on Bail

If, after you arrest, you are charged with an offence you have the right to have a court or authorised police officer make a decision in relation to bail. The Bail Act (NSW) sets out the criteria which will be considered for bail. These criteria may include: the nature of the offence, your criminal record, any previous failure to appear at court, and your community ties.

You may be either refused bail, granted unconditional bail (which means you just have to turn up to court on a specified date) or granted conditional bail. There are a number of conditions which may be imposed on you including, reporting to police, living at a specified address, and depositing or agreeing to forfeit a sum of money if you breach bail. If the offence is a serious one, or the police decide to refuse bail, you must be brought before the next available court so that a magistrate may make a decision as to bail.