Arrest

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THE POWER OF ARRESTS

NSW Police are given the power to arrest a person under the Law Enforcement (Powers and Responsibilities) Act 2002, also known at LEPRA. The power is subject to conditions that are set out in the legislation. The conditions that apply will depend on the circumstances of the particular arrest.

Any NSW Police officer who is, or becomes, aware of a warrant for the arrest of a person can take them into police custody.

In the absence of a warrant for the arrest of a person, a police officer cannot lawfully arrest someone unless they:

  1. Suspect on reasonable grounds that a person is committing, or has committed an offence;
  2. Are satisfied that by arresting a person, they are doing so because it is reasonably necessary for one of the following reasons:
    1. To stop the person from committing or repeating an offence or committing a different offence
    2. To stop a person from fleeing either a police officer or the location
    3. To allow enquiries to be made to establish a person’s identity, but only if:
      1. It cannot readily be established, or
      2. If the police officer suspects on reasonable grounds the information provided is false
    4. To ensure that a person appears before a Court
    5. To obtain property that is in the person’s possession that is connected with the offence
    6. To preserve or prevent fabrication of evidence
    7. To prevent the harassment of, or interference with, a person who may give evidence in relation to the offence
    8. To protect the safety or welfare of any person (including the accused)
    9. Due to the nature and seriousness of the offence
    10. If the police officer has been directed to arrest a person by another police officer, and that police officer has made the decision to arrest lawfully
    11. A person has breached a condition of their bail
    12. The police officer has decided to apply for an urgent AVO on behalf of a protected person
  3. Intend to charge the person with a criminal offence.

All of the pre-conditions relate to what is in the mind of the officer at the time the arrest takes place.  However, the requirement that the belief, or suspicion, of a police officer is reasonable means that the court will consider the basis for the belief. A reasonable suspicion cannot be arbitrary, and must have some factual basis.

A person who resists arrest or assaults a police officer in the course of an arrest can be charged with a criminal offence. An aspect of those offences is that the officer was ‘acting in the execution of their duty’.

If an arrest has not met the pre-conditions required by LEPRA then it is not lawful, and accordingly the officer cannot be said to be acting in the execution of their duty.  Accordingly, an unlawful arrest can be a defence to criminal charges.

If someone is arrested by police unlawfully, they may also be able to make a civil claim against the arresting officer and seek compensation for any damage that they have suffered as a result.

Police are permitted to use such force as is reasonably necessary to make the arrest or to prevent the escape of a person who has been arrested.  If the police use force in excess of what is reasonably necessary and you suffer an injury, you may be able to seek civil action against the police to seek damages.

There is no limitation placed on the type of offences that the police can arrest a person in relation to.  However, the arrest must be necessary for one of the purposes set out above.  The police have other methods of commencing criminal proceedings beside the arrest power, and arrest is often considered to be a measure of last resort.

Minor or traffic offences are less likely to meet the prerequisites for arrest. Where police are aware of the personal details of a person, and the offence alleged is a minor one, use of the arrest power may not be seen as reasonably necessary.

EXECUTING AN ARREST

An arrest can be made in a number of different ways, including by words or by physical force. There are important obligations imposed on police when an arrest is made that are designed to safeguard the rights of citizens. These obligations include restrictions as to the level force that can be applied during an arrest, and a requirement to disclose certain information.

There are certain things an officer must do when executing an arrest, otherwise an arrest may be deemed unlawful.

When executing an arrest, a police officer must:

  1. Provide the person that they are arresting with evidence that they are a police officer. For example, by displaying their badge.  This requirement is generally considered to be complied with where the officer is wearing a police uniform.
  2. Advise the person of their name, rank, and station
    For example: “I am Constable Natasha Smith, I am attached to Kings Cross Police Station.”
  3. Advise the person that they are under arrest
    For example: “Mr Scott you are being placed under arrest.”
  4. Explain why the person is being arrested
    For example: “I reasonably suspect that you have committed a shoplifting offence.”

This information is required to be provided to the arrested person as soon as is reasonably practicable.

Police are permitted to use such force as is reasonably necessary to make the arrest or to prevent the escape of a person who has been arrested.  What is considered necessary will depend on the particular circumstances in which the arrest is executed.

If the police use force in excess of what is reasonably necessary and you suffer an injury, you may be able to seek civil action against the police to seek damages.  It may also provide you with a defence to any charges that are laid against you arising out of the arrest.

RIGHTS WHEN ARRESTED

People placed under arrest by police retain a number of important civil rights that are designed to safeguard them from unfair treatment while in police custody. An arrest is a step usually taken shortly before criminal charges are laid, and a bail determination is made.

Yes, if you have been arrested, a police officer may search you during or after the arrest. This search can only be done if the police officer suspects on reasonable grounds that you should be searched in order to determine if you are carrying anything that:

  1. Would be a danger to you or anyone else
  2. Could be used to assist you or anyone else to escape from custody
  3. Is something with respect to which an offence has been committed
  4. Is something that will be used as evidence in relation to an offence
  5. It was intended to be or actually was used in relation to an offence.

Generally, you do not have to answer questions as you have a right to silence. This means that you do not have to answer questions asked by police about the alleged offence. However, there are some exceptions to this.

If you are involved in the following situations, you are obligated to provide your name and address to police:

If police suspect that:

  1. You were at or near the scene of an indictable offence or police suspect on reasonable grounds that you have information that could assist police in their investigations
  2. You committed an offence on a train or railway
  3. You are under 18 and carrying or consuming alcohol in a public place
  4. You are or were involved in a large-scale public disorder offence, only at the time that police have emergency public disorder powers and you are in the relevant area
  5. That an AVO has been made against you.

If police:

  1. Are trying to serve a fine default warrant
  2. Give you a ‘move on’ direction.

If you are involved in a traffic incident, you are obligated to answer the following questions if asked of you by police:

  1. Your name
  2. Your address
  3. Show your driver’s licence
  4. Give your name and address to the other driver
  5. Details about the incident
  6. Name and address of the driver at the time of a traffic incident, if you are the person the vehicle is registered to
  7. Drivers and passengers have to provide their name and address if the vehicle is suspected to have been used in the commission of a serious offence.

You may be released without charge

After the arrest and once police have made relevant enquiries, they may release you without charge. This means you do not have an upcoming court date and you are free to go. However, the police could be undertaking further investigations and may decide to charge you later. This is not uncommon.

If you are released from police custody without being charged, it is best to not discuss the incident subject of the arrest with anyone other than a lawyer. If you are concerned about potential upcoming charges, it is important to seek legal advice as soon as possible.

You may be served with a field Court Attendance Notice (field CAN)

A field CAN is a small handwritten document which sets out the following:

  • The offence/s you have been charged with
  • The location and date of your first court listing
  • Your personal details (name, address, date of birth and gender)
  • Details of the officer in charge and the issuing officer.

When is a field CAN issued?

A field CAN is issued on the spot by police when a person is charged with a criminal or traffic offence and they are not being arrested and taken to a police station. Field CANs are common for offences such as possess prohibited drug/s, drive with low range PCA and drive whilst suspended/disqualified.

After you receive the field CAN, you should expect to receive the police facts sheet in the mail at a later stage. The police facts sheet details the version of events according to police.

What should I do when I receive a field CAN?

When you receive a field CAN, you should read it carefully and note where and when you are expected to appear at court.

You should then seek legal advice to decide whether to plead guilty or not guilty to the offence/s and to understand the potential consequences of making such a decision. It is best to meet with a lawyer when you have the police facts sheet, a lawyer can request this from the police on your behalf.

You may agree with the alleged conduct, but your lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge. Alternatively, you may accept the charge, but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to amend the fact sheet.

You may be taken to police station

After being arrested, you may be taken to a police station by the arresting police officers in order for them to conduct further investigations. If police do tell you that you are being taken to a police station, it is important that they tell you why they are doing so and which police station they are taking you to. You should not resist this process, as this could eventuate to your detriment, however you are entitled to ask questions in relation to the process.

RIGHTS AT A POLICE STATION

What rights does an arrested person in custody have?

Your rights as an arrested person are often referred to in NSW as your ‘Part 9 rights.’

Cautions + Summaries

Once you have been arrested and have been taken into police custody, and before any investigations formally start, the police officer who is the custody manager must provide the following cautions and summaries to you, both verbally and in writing:

  1. Caution you that you do not have to say or do anything, but anything that you say or do may be used as evidence, and
  2. Give you a summary of these ‘Part 9 rights.’ Once you are provided with this summary, you will be asked to sign an acknowledgment that you have in fact been given the above cautions and summaries.
  3. That you may contact a friend, relative, guardian, or independent person for the purpose of:
    1. Informing them of your whereabouts, and
    2. To ask them to attend the police station that you are in custody at

If you do take the offer of contacting someone you know personally, the custody manager is required to provide you with those facilities to do so in a way that you will not be overheard. Also, the custody manager must hold off on continuing the investigations process for a reasonable time (but not more than 2 hours) until you have contacted or attempted to contact that person, and if you have asked them to attend, that they do attend, and you have the opportunity to speak with them.

The only circumstances in which the custody manager may refuse to allow you to speak with a person is if they believe on reasonable grounds that it would lead to fabrication or destruction of evidence, or harm being caused to someone.

  1. That you may contact a lawyer of your choice to ask that they:
    1. Attend the police station that you are in custody at, and/or
    2. For them to be present during any of the investigation process

If you do wish to have a lawyer present, anything that your lawyer says during the investigation can form part of the evidence.

Interpreters

If the custody manager has reasonable grounds to believe that you require an interpreter, because either you do not have adequate knowledge of the English language in order to communicate fluently, or due to a disability to communicate fluently, they must make arrangements for an interpreter to attend.

The investigation process must be put on hold to allow the interpreter to arrive. If an interpreter is not available to attend, arrangements must be made for a telephone interpreter. The only circumstances which would mean the custody manager is not obligated to arrange an interpreter (in person or by telephone) is if the difficulty is insurmountable, or if the investigation is too urgent.

Medical

If it appears to the custody manager that you require medical attention, or if you request medical attention on reasonable grounds, the custody manager must immediately arrange for you to receive medical attention.

Refreshments and facilities

You are entitled to reasonable:

  • Access to toilets
  • Refreshments
  • Facilities to shower, bathe, or shave, if:
    • It is reasonable to be able to provide it
    • The custody manager believes the investigation will not be hindered it it is allowed.

Custody records

If you are being held in custody, the custody manager is responsible for maintaining a custody record form. There are specific details that must be maintained on a regular basis in your record.

These include:

  • The date and time you arrived at the police station
  • The names and ranks of the arresting officers
  • The reason/s for your detention
  • Details of any property taken from you (this section is called a ‘property docket’)
  • What time the investigative procedure started and ended, if you do participate in one
  • If you are denied any Part 9 rights, the reason for doing so
  • If you are transferred in to the custody of another police officer, the reason for doing so (often this may occur due to change of shifts)
  • If a detention warrant is applied for, the reason for doing so and the result of the application
    • If the application is successful:
      • The date and time that the warrant was issued
      • The date and time the warrant was provided to you
      • That you have been informed of the effect of the warrant
  • The date and time you are released from detention
  • Any other relevant information.

Once you are released, whether by police or on bail granted by the court, the custody manager must provide you or your lawyer with a copy of your custody records.

Can an arrested person in custody be searched?

Yes, if you have been arrested and placed in lawful custody, a police officer is then entitled to search you and seize anything found on you during that search. Lawful custody is when the arrest process and being placed in police custody has been done so according to law.

Do you have to answer questions when in police custody?

You are not obligated to participate in an interview or answer any questions in response to an allegation. You should seek legal advice about whether this would be an advisable process to take part in.

Often, it is best to exercise your right to silence. It can be tempting to provide your version of events to police in an attempt to set the record straight, so to speak. In fact, it is best to preserve your version of events until you speak to your lawyer about the matter and they are able to provide you with advice about the best way to look after your interests.

Yes, if you are arrested, police may take your fingerprints or photographs during the arrest and for the purpose of the investigation. They do not have to seek your consent for this process. If you are not arrested, the police cannot obtain your fingerprints or photographs unless a court has granted this order. This is called a ‘Forensic Procedure Application.’

If your fingerprints are taken, and you are ultimately found not guilty for that matter, you are then entitled to apply to the NSW Commissioner of Police to have those prints destroyed. This type of application must be made within 12 months of the fingerprints being taken.

An identification parade involves the police organising various people who are similar in appearance to the suspect being shown to a witness who is alleged to have seen the suspect. The similarity in appearance often relates to height and age and includes other physical traits.

As you may have seen in television shows, an ID parade is stereotypically shown to be a ‘line up’ of similar looking people. In real practice, an identification parade usually occurs by each person in the parade being shown to the witness one-by-one, as this has been proven to be a more reliable method psychologically.

You are not obligated to take part in an identification parade. You should seek legal advice about whether this would be an advisable process to take part in. If participating in an identification parade, you are entitled to have a lawyer present. This process is recorded, and the recording will be available to your lawyer.

No, you may refuse to consent to a forensic procedure. There are some circumstances where the police may apply to the court to be allowed to carry out a forensic procedure without your consent.

Time limits apply to any type of forensic procedure. Two hours is the allocated time limit. This two-hour time limit applies if the arrested person has consented and has presented themselves to police, or if they have not consented but permission has been granted by a court to do so.

An arrested person who consents to a forensic procedure must provide informed consent. This means that you must be informed of the following information:

  1. That the forensic procedure is being recorded and you will have the opportunity to view or listen to the recording should you wish to do so
  2. Why the forensic procedure is required
  3. The offences for which you are being investigated and therefore the offence the forensic procedure relates to
  4. How the forensic procedure is to be carried out
  5. The result of the forensic procedure may be used as evidence in court against you
  6. That the forensic procedure will be carried out by a police officer (but not a police officer connected with the investigation)
  7. Your right to have a medical practitioner or dentist present during the forensic procedure, if the forensic procedure is an intimate forensic procedure or is non-intimate but involves taking an impression or cast of part your body
  8. If you are Aboriginal or Torres-Strait Islander, that you are entitled to have an ‘interview friend’ present while the forensic procedure is taking place
  9. That you may refuse to consent to a forensic procedure 
  10. That if you do not consent, there are some circumstances where a senior police officer may order that a forensic procedure is carried out nonetheless, or that an application may be made to the court in order for them to seek authorisation to carry out a forensic procedure
  11. That if the police officer intends to derive DNA sampling from the forensic procedure in order to carry out investigations, that your DNA may be placed on a database in order to carry out those investigations.

Because the issue of taking DNA can be sensitive and intrusive, there are strict rules that police must follow in order to establish whether DNA can be obtained from an arrested person.

There are two main types of DNA forensic procedures that police may carry out. Those are:

Intimate 

An intimate forensic procedure can only be undertaken on an arrested person suspected of committing an indictable offence. This type of procedure, as the name suggests, can involve the following:

  1. An external examination of your private parts
  2. The carrying out of an other-administered buccal swab
  3. Taking a sample of your blood
  4. Taking a sample of your pubic hair
  5. Taking a sample of any matter, by swab or washing, from your private parts
  6. Taking a sample of any matter, by vacuum suction, scraping or lifting by tape, from your private parts
  7. Taking a dental impression from you
  8. Taking a photograph of your private parts
  9. Taking an impression or cast of a wound from your private parts.

Non-intimate 

A non-intimate forensic procedure may be undertaken on an arrested person suspected of committing any offence (summary or indictable). This type of procedure can involve the following:

  1. An external examination of a part of your body, other than your private parts, that requires touching of your body or removal of your clothing
  2. Carrying out a self-administered buccal swab
  3. Taking a sample of your hair, other than pubic hair
  4. Taking a sample (such as a nail clipping) of your nails or of matter from under your nails
  5. Taking a sample of any matter, by swab or washing, from any external part of your body, other than your private parts
  6. Taking a sample of any matter, by vacuum suction, scraping or lifting by tape, from any external part of your body, other than your private parts
  7. Taking your hand print, finger print, foot print or toe print (further details in relation to taking prints can be found above)
  8. Taking a photograph of a part of your body, other than your private parts
  9. Taking an impression or cast of a wound from a part of your body, other than your private parts
  10. Taking a measurement of your body or any part of your body (other than your private parts) whether or not involving the marking of your body.

The time that you spend in custody once you are arrested is called the ‘investigation period.’ This investigation period must be a reasonable time frame, taking into account all of the circumstances.

When the investigating police officers are determining what is a reasonable time frame, they must take into account the following factors:

  1. Your age
  2. Your physical and mental capacity
  3. Whether you are needed to be present during the investigation
  4. The seriousness, amount, and complexity of the charges being investigated
  5. Whether you have indicated a willingness to make a statement or participate in an interview
  6. The time police officers have taken to attend the place you are in custody
  7. Whether a police officer requires time to prepare for questioning you
  8. The time that is required for facilities for conducting investigative procedures that you are going to participate in
  9. The number and availability of other people who will be questioned or statements taken from them (for example, civilian witnesses)
  10. If there is a need to visit the place where the alleged offence is said to have occurred
  11. The time that you are in the company of a police officer before and after being arrested
  12. The time taken to complete any searches (for example, searching you)
  13. The time taken to do any other investigative procedures that are reasonably necessary for the investigation
  14. Any other relevant circumstances about the matter.

The maximum time that this can be is 6 hours. This does not mean that all investigation periods should proceed for the total six hours. Often, the matters involved in an investigation can be concluded in a shorter timeframe. This six-hour time period cannot be extended unless a detention warrant is issued.

Released without charge

After arrest and police making relevant enquiries, police may release you without charge. This means you do not have an upcoming court date and you are free to go. However, the police may be undertaking further investigations on a later date and decide to charge you later. This is not uncommon.

If you are released from police custody without being charged, it is best to not discuss the incident for which you were arrested with anyone other than a lawyer. If you are concerned about potential upcoming charges, it is important to seek advice about this.

Served with a future CAN

A future CAN is a formal document that sets out the following:

  • The offence/s you have been charged with
  • The location and date of your first court listing
  • Your personal details (name, address, date of birth and gender)
  • Details of the officer in charge, issuing officer and the arresting officer.

When is a future CAN issued?

A future CAN is issued by a prosecuting body such as the police, the RMS or a local council when a person or company is charged with a criminal or traffic offence.

  • If you are arrested and bail refused, you will receive a CAN while in police custody.
  • If you are arrested and granted police bail, you will receive a bail CAN before being released on bail.
  • If you are arrested and released without charge and police decide to charge you at a later stage, you will receive a future CAN in the post.

You will also be issued with the police facts sheet which details the version of events according to the police.

What should I do when I receive a future CAN?

When you receive a future CAN, you should read it carefully and note where and when you are expected to appear at court.

You should then seek legal advice to decide whether to plead guilty or not guilty to the offence/s and to understand the potential consequences of making such a decision.

It is best to meet with a lawyer when you have the police facts sheet, a lawyer can request this from the police on your behalf.

You may agree with the alleged conduct, but your lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge. Alternatively, you may accept the charge, but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to amend the fact sheet.

Released on bail

If, after attending the police station, you are released on bail, this means that the police have determined you may be released back into the community as long as you follow particular conditions. Signing a bail acknowledgment document at the police station means you agree to those conditions and promise to comply with them. You will be provided with a copy of your bail paperwork upon being released on bail by police.

Bail conditions can vary, depending on the nature of the charge/s and the risks that the police may foreshadow if you are in the community. One of those conditions which is ordinarily imposed is that you must attend court when your matter is next listed. Your Court Attendance Notice (‘CAN’) will include the date and time of your next court date.

Other conditions which may be imposed include that you are to:

  • Be of good behaviour and not commit any criminal offences
  • Report to police on particular day/s
  • Refrain from certain conduct (for example: drinking alcohol, contacting certain persons, or attending certain places)
  • Surrender your passport
  • Deposit, or agree to deposit, surety (a sum of money or property which will be forfeited if the person fails to appear before the court).

Bail refused

If you are bail refused by police, this means you will remain in police custody. Police must bring you before the Local Court “as soon as practicable” (generally within 24 hours) so that, if you want to, you can apply to a Magistrate to be granted bail.

Why Choose Hugo Law Group to Defend You

Hugo Law Group is a law firm that is focused on protecting and defending your rights. Drawing on decades of experience, our team of criminal lawyers will guide you through the legal process, providing comprehensive, honest and strategic advice – qualities that give us our renowned reputation.

Whether you want to plead not guilty, you are looking to secure the best possible sentence, or a loved one wants to apply for bail, it is essential to have an experienced team of criminal defence lawyers in your corner.

Seeking comprehensive and practical advice at an early stage will best ensure your rights and interests are protected. Our lawyers will properly prepare and present your case to assist you in getting the best possible outcome.

Contact

At Hugo Law Group, we will clearly explain what your rights and obligations are so that you can make informed decisions about how to deal with the police and the court process.

Even if you have not yet been charged with a criminal offence, you should seek advice from a lawyer at an early stage to ensure that your rights and interests are protected.

Hugo Law Group is the market leader in criminal defence law, providing exceptional representation to people facing serious criminal charges.

As leaders in criminal defence, we know that every story has two sides. We defend yours.

Get in contact with us today or feel free to call us at 02 9696 1361 (Sydney), 02 5104 9640 (Canberra), 08 6255 6909 (Perth), or 07 5552 1902 (Northern NSW) and find out how we can help you.