What happens when you get arrested?

13 August 2023 in Criminal Law

Knowing your rights and obligations when getting arrested can take the confusion out of a stressful situation and ensure you make decisions that are in your best interests.

Below is a general overview of a typical arrest.

Getting arrested

When can police make an arrest?

Under Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEPRA), a police officer may arrest a person without a warrant if the Police officer suspects on reasonable grounds that the person has committed or is committing an offence. There must be a factual basis for an officer’s suspicion, or “less than a reasonable belief but more than a possibility” (R v Rondo [2001] NSWCCA 540).

A police officer may also make an arrest if there is a court-issued warrant for the person’s arrest, if the person has breached or is reasonably expected to breach a bail undertaking or agreement, or if the person is reasonably suspected to be at large.

Additionally, police have the power to make an arrest if they consider it reasonably necessary to:

• Prevent a further offence
• Stop a person fleeing a crime scene
• Ensure a person’s appearance in court
• Preserve evidence
• Acquire property connected to an offence
• Protect a person from danger
• Prevent harassment of or interference with a victim or witness

The NSW Supreme Court has held that arrest should only occur when a summons or court attendance notice is impractical, in other words, as a last resort.

Young Offenders

Under the Young Offenders Act 1997 (NSW), any person under the age of 18 who has committed an offence should be dealt with by way of a warning or caution rather than arrest.

Reasons why arrest may be authorised include, where, the matter is a serious indictable offence, the police believe the child needs to be restrained due to violent behaviour or the child is reasonably suspected to be unlikely to comply with a summons or the child will commit further offences.

The arrest

Police officers must comply with basic safeguards when exercising the powers of arrest, including providing:

1. Proof that they are a police officer (such as being in uniform);
2. The officer’s name and place of duty; and
3. The reason why the person is being arrested.

When making an arrest, the police may use reasonable force – that is what is reasonably considered necessary based on the circumstances of the arrest. The use of excessive force is not allowed, and officers can be charged with assault if found to have done so.

It is important that you always cooperate with the police while being arrested, regardless of whether you are guilty or not. Not cooperating is known as resisting arrest, a further offence with which you can be charged.

After getting arrested

Custody

Once a person is arrested they are taken to a police station where they will be asked to participate in a police interview.

Before an interview can occur, police must tell you your rights. You have the right to silence and do not have to speak or provide the police with a written statement. You may have seen movies where the police caution a person by saying ‘you have the right to remain silent, you do not have to say anything, but anything you do say may be used against you’. This is indeed the basis of the caution that police in Australia must provide you if you are asked to participate in a police interview.

You are entitled to (and should seek) legal representation or advice before engaging in an interview. You are entitled to reasonable facilities where you can speak to a lawyer. You are also allowed a support person, such as a friend or relative, during an interview. Anyone under the age of 18 must not be interviewed without appropriate adult support. Other rights include the right to an interpreter if needed, and the right to any necessary medical attention.

You are also entitled to decline to be interviewed and unless and until you have received legal advice this is appropriate.

While in custody (and indeed during the arrest), police may conduct a search of your person. This must be a non-invasive search that respects the dignity of the accused. Any items found can be seized and detained. Additionally, police may take routine photographs and fingerprints at the police station.

Police can hold you for 6 hours before they must either charge or release you. Police can apply for the period to be extended through a detention warrant.

Bail

If you are charged with an offence, the police must decide whether to grant you bail. Bail is being released from the station with the assurance that you will not flee the jurisdiction and will attend court.

Bail is typically granted for minor offences, meaning you will get released with or without conditions. If your bail is refused, you must remain in custody until your bail application is decided upon in court. You must be brought before a court as soon as possible to determine if bail should be granted. You should seek legal advice to assist in any bail application.

You can read more about bail applications and conditions here.

How can BSM help?

If you are arrested, it is important that you seek legal advice and representation. The highly experienced and responsive criminal lawyers at Brander Smith McKnight will provide you with your rights and obligations, represent you in a police interview and help prepare your bail application. You can feel certain that you and your matter are being dealt with by seasoned professionals.