Arrest

Arrested: Who can arrest me and why?

If arrested our initial advice is always to urgently call a solicitor and then remain silent (please refer to further discussion of silence below). Once contacted we immediately call the police station and advise that we are on our way and seek to speak to our client. Our history of early intervention has saved many a client, loved one and family member.

We can assist in getting bail whether at the police station, bail court on the weekends or at COurt before a Magistrate of Supreme Court Judge. See our section bails. We offer flat fees for bail applications and our services are competitive.

A police officer can arrest you for a number of reasons, for example if:-
• a warrant (written authority) for your arrest has been issued by a court;
• the officer has a reasonable suspicion that you are about to commit a crime, are committing a crime or have recently committed a crime;
• you have committed or are about to commit a breach of the peace involving including offences against the Commonwealth Crimes Act;
• you are suspected of being involved in smuggling or the import or export of drugs or prohibited goods.

A breach of the peace includes assault, creating public alarm or excitement or obstructing a police officer doing his or her duty.

How should they arrest me?
The person arresting you should:
• Tell you that you are under arrest; Tell you why you are being arrested;
• Touch you, unless you submit by going with the police officer or staying where you are told.

Can they use force to arrest me?
A police officer may use as much force as is necessary to arrest you. Unreasonable force is assault. After arrest, a police officer may handcuff you if you attempt to escape or the officer considers it necessary to prevent you escaping. A judge or magistrate will decide whether or not the force used was reasonable in the circumstances. What happens if I resist arrest? It is an offence to resist arrest. Active resistance is required for a charge of resisting arrest to be laid. Lying down and refusing to co-operate is not resisting arrest. 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 submit to a search? Yes. Police officers have the right to search you, without a warrant, immediately after arresting you or later if you have been charged. Can I be arrested for questioning? NO. Police can request 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. It is not advisable to speak with the police until you have first spoken with your Solicitor. You should ask for a lawyer or independent witness to be present during questioning. What should I do when arrested and taken to a police station? Politely insist that you be allowed to contact a lawyer. You have the right to have a lawyer present while you are being questioned to give you advice. There is no legal aid for lawyers to attend police stations to advise you or be present during questioning. Do I have to answer questions if I am under arrest? 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.

Do I have to participate in an identification parade?
NO! But the police may ask witnesses to identify you from photographs. Evidence may be tendered against you as a result of your refusal.

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. 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 before a court where you can apply for bail.

What questions do I answer?
A police officer can request a person to provide his or her name and address if those details are unknown to the police officer and if the police officer believes on reasonable grounds that the person may be able to assist in the investigation of an alleged offence because the person was at or near the place where an alleged offence occurred around the time when the offence occurred. It is an offence to refuse to supply a name and address. The penalty is $220. Where a police officer reasonably suspects that a motor vehicle was or may have been used in the commission of an indictable offence, the police officer can ask the owner, driver or passenger of the vehicle to supply details of the driver and passengers in the vehicle at the time of the offence. It is an offence to refuse to give an answer or to give a false name or address, carrying a penalty of $5500 or 12 months gaol. Police can demand proof of identification.