Arrest is the process by which police may lawfully take a person into police custody. It is important that you know your rights should you ever be placed under arrest. There are normally three key elements to an arrest:
- The police officer states “you are under arrest” (or similar words);
- The police officer states the reason for the arrest; and
- You either voluntarily give in to the officer’s control, or are physically subdued by the police officer.
Sometimes, the police will only tell you that you are under arrest after they physically take charge of you.
What should you do if you are arrested?
If you are arrested it is in your best interest to co-operate with the police and assume that the police have the power to arrest you. Otherwise you may end up with further charges against you, such as obstructing police (you can always challenge the legitimacy of arrest later).
Note that you do not have to go with police to the station for questioning unless you are actually arrested or formally “detained for questioning” about an indictable offence (a separate process to arrest).
You may be arrested by the police if they have a warrant for your arrest, however in certain circumstances police can arrest you without one. You may be arrested without a warrant if the police reasonably suspect that you have committed or are committing an offence and acting without a warrant is, in the police officer’s opinion, reasonably necessary for a number of set reasons. These reasons could include:
- to stop you from completing or repeating an offence;
- to make enquiries about your identity;
- to ensure that you are brought before a court;
- to protect you or another person;
- to stop you running away from the place of the offence;
- to preserve evidence, to prevent you from making up evidence or destroying evidence, or to stop you from interfering with witnesses;
- because you have disobeyed a police direction or you have assaulted or obstructed a police officer; or
- because you are breaching a domestic violence protection order;
- because the offence is-
a) an offence of failing to comply with a direction to leave a prison; or
b) an offence which is a security offence in a prison.
Police can also arrest you without a warrant because of the nature and seriousness of the offence you are suspected of committing.
A police officer may arrest a child without a warrant if the police officer reasonably suspects the child is committing or has committed an indictable offence, the arrest is necessary to prevent further offences, loss of evidence, or to ensure the child’s appearance before a court.
Your right to remain silent -If you have been arrested for committing an indictable offence (a serious offence), or you are being questioned because you are suspected of having committed an indictable offence, the police must caution you about your right to remain silent. They also must advise you, before they question you, of the possibility that any statement you make might later be used as evidence against you. If it appears that you need an interpreter, the police must enable an interpreter to be made available for you.
Telephone Calls – Before a police officer starts to question a relevant person for an indictable offence, the police officer must inform the person he or she may:
- telephone or speak to a friend or relative to inform the person of their whereabouts and to ask the person to be present during questioning; and
- telephone or speak to a lawyer of the person’s choice and arrange, or attempt to arrange, for the lawyer to be present during the questioning.
The police officer must delay the questioning for a reasonable time to allow the person to telephone or speak to a person and arrange for someone to be present.
Hours of detainment – Police can only detain you for up to eight hours unless the period is extended by a court order. Police can only question you for up to four hours in that eight hour period. Police can only question a child about a serious matter if there is a parent or independent person present.
Special considerations – Police must notify a legal aid organisation (such as ATSILS or LAQ) and make special arrangements for support for Aboriginal and Torres Strait Islander people before questioning begins. People with impaired capacities must also be given an opportunity to speak with a support person, but questioning should not proceed if the person does not actually have legal capacity to continue with an interview.
Drugs and alcohol – People should not be questioned while they are still under the influence of drugs or alcohol.
A police officer can search a person in custody and seize anything found during the search that they reasonably suspect may provide evidence of the commission of an offence.
The police officer may also take and retain, while the person is in custody:
- anything that may endanger anyone’s safety, including the person’s safety; or
- anything that may be used for an escape; or
- anything else the police officer reasonably considers should be kept in safe custody while the person is in custody.
In most cases you will be obligated to allow police to take photographs, fingerprints and DNA where you are given a Notice to do so.
The police must release you:
- without charge or a court date to attend;
- after charging and having you sign a bail undertaking to attend court on a specified future date;
- on cash bail;
- after issuing you a Notice to Appear at court on a specified future date;
They may refuse to give you bail and keep you locked up until you go to court for a bail hearing.
How we can help
At Streten Masons Lawyers our Lawyers have extensive experience in advising parties about their rights and obligations during the arrest process. If you need assistance in any other criminal matters please contact the experienced criminal lawyers at Streten Masons Lawyers.