|
Arrest Rights in NSW
Who
can arrest me and when?
The rights of people held in police
custody in NSW are set out in a number of acts Acts and Regulations,
including the
Crimes Amendment (Detention after Arrest) Act 1997 and its
Regulations 1998, and the
Crimes Act 1900. 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, 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 catch 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 type
and degree of force that is ‘reasonable’ will depend on 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. However, the
force must not 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. However, if someone
else 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 requested 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:
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’ ie 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. 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.
There are, however, some offences
where the ‘right to silence’ has been reduced. 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, or else you are guilty of a serious. There are also
disclosure requirements under the Traffic Act, the
National Parks and Wildlife Act, the Local Government Act,
and the Meat Industry Act (see
Do I have to answer questions when approached by police?).
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
contacted a criminal 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). That ‘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 (s356C);
which is usually the next day if you are denied bail.
If you believe that police
have acted improperly towards you or someone you know, you should:
lodge a formal complaint with the nsw ombudsman now
How can
a solicitor help me?
Upon being arrested or called for
a police interview, you should
contact a solicitor (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.
For personalised advice and/or Court representation:
Contact us now
For more information, see:
http://laws.lawsociety.com.au/legalhelp/answers/arrest/print_index.html
http://www.austlii.edu.au/au/other/liac/hot_topic/hottopic/1999/3/9.html
http://www.lawlink.nsw.gov.au/crd.nsf/pages/community4 | 
