What are my rights

Why I have I been arrested?
A police officer can arrest you if, for example:

• they suspect on reasonable grounds that you have committed an offence
• a warrant (written authority) for your arrest has been issued by a court, or
• you have committed or are about to commit an offence.

The police officer arresting you should firstly tell you that they are placing you are under arrest and secondly tell you why they are placing you are under arrest.

A police officer can use as much force as necessary to arrest you. Any unreasonable amount of force is considered to be an assault. If you attempt to escape arrest you may be handcuffed or you may be handcuffed if the arresting office thinks you may try to escape. A judge or magistrate will decide if the force used by the police was reasonable or unreasonable given the particular circumstances of your arrest.

What happens if I resist arrest?
Resisting an arrest is an offence. Active resistance is required for a charge of resisting arrest to be laid. Police may arrest you if they reasonably believe you have committed an offence, even if, in fact, you are completely innocent. If you resist arrest, you are committing an offence with which you may be charged, even if the police do not charge you with any other offence.

Do I have to agree to a search?
Yes. Police can stop, search and detain you if they have reasonable grounds to believe you are carrying something illegal, dangerous or stolen or items which the police believe could be used for illegal purposes such as tools used for theft or weapons.

Police can pat you down, look in your pockets and bags and search your car. Police are only allowed to strip-search you in serious and urgent circumstances, and there are strict rules to ensure privacy and supervision. If you refuse to be searched, the police may arrest you and use force to search you.

When carrying out a search, the police officer involved is required to provide their name, place or duty and reasons for the search.

A judge or magistrate will decide whether or not the police had reasonable grounds for the search at a later date.

Can I be arrested for questioning?
No – talk to us before you talk to the police
The Police can ask you to accompany them to a police station for questioning but you are not required to go unless you have been arrested for an offence.

Do not speak to the Police until you have spoken with a criminal law solicitor. You are entitled to insist on your solicitor or an independent witness to be with you at all times when being questioned by the Police.

The Police should only exercise their powers of arrest as a last resort, when alternatives such as issuing a Court Attendance Notice or a Summons are not available.

What do I do when I'm arrested?
Politely insist on being allowed to contact a solicitor. You have the right to have a lawyer present when you are being questioned by the Police to give you advice.

When I am being questioned by Police under arrest can I remain silent?
In general you have a right to silence. However, if the arrest concerns a motor vehicle, you are required to give your name and address and particulars of the incident to the police.

Police should caution you, before questioning, that no questions need be answered but that any answer given may be used in evidence. The police may want you to answer questions in what is known as a "record of interview". This may be recorded on video and audio tape. Give the police your name, address and date of birth, but do not answer any other questions unless you have your solicitor present. Do not sign any document other than a bail form!

Do I have to submit to being fingerprinted or photographed?
Yes. The police may take your fingerprints and photographs of you for the purpose of identification. If you are subsequently acquitted or the charges against you are dropped, you may ask that your fingerprints and photographs be destroyed.

Children under 14 can only be photographed or fingerprinted with a court order.

Do I have to participate in an identification parade?
No. But the police may ask witnesses to identify you from photographs.

How long do I have to stay in custody?
Following arrest, the police may detain you for an initial period of up to four hours to conduct investigations. An application can be made to allow an extension of up to a further eight hours. Following this, you must either be charged or released. However, it is important to note that certain periods can be disregarded or constitute 'time outs' for the purposes of this four hours: for example, time waiting for recording facilities, time to allow the accused to communicate with a lawyer or support person, or time for the accused to recover from intoxication.

If you are charged, you will usually be released on bail, with or without conditions. If you are refused bail, or cannot meet the conditions set, you must be brought as soon as practicable before a court where you can apply for bail.

When can I get bail?
Usually after arrest and charging at a police station. You may be refused bail if:

• you are considered to be a risk to the protection of the alleged victim(s), or the community
• you have previously failed to comply with a bail undertaking
• you committed an offence while on bail, parole, probation, or a good behaviour bond
• the offence you have been charged with is serious, or
• you are considered to be a flight risk.

Once the Bail Sergeant has decided whether or not to grant you bail, the police are required to inform you of your right to contact a lawyer, or any other person, in connection with bail.

What happens if I don't comply with bail conditions?
You can be arrested by the police for breaching your bail and brought before a court. If the breach of bail is proven, the court can either refuse bail or release you on fresh or continued bail. If your bail needs to be varied, see your Solicitor or make an application at your local court registry.

How can a solicitor help me?
You should try to contact a solicitor if you are arrested. He or she will:

• attend the police station with you
• advise you of your rights
• explain the alternatives before you
• make a bail application for you, and
• represent you in court.
  

If you have been charged with a criminal offence, or are seeking further information on a criminal law matter, call William Vahl, North Shore Criminal Law on (02) 9957 4199 or after hours on 0400 44 64 24.