Gain freedom in cuffs - know your rights when arrested
In Australia, our rights when arrested are often misunderstood. This is largely due to our familiarity with American rights that dominate global media. Contrary to the USA’s Miranda Rights, Australian police are not required to recite a statement of rights during arrest. As such, it is crucial to understand your rights to ensure they are respected amid the overwhelming emotions of arrest. In New South Wales (NSW), the Law Enforcement (Powers and Responsibilities) Act 2002 dictates individual rights as well as police powers relating to arrest. This legislation, known is LEPRA, is imperative to the execution of arrests, so your lawyer must have an extensive understanding of it to effectively represent you. After being arrested, events occur as follows:
The arrestee is taken to the police station for investigative interviews.
The officer takes your basic details, such as your name, occupation, date of birth, and address.
Photographs and fingerprints are taken to assist investigations.
The police custody manager informs you of your right to contact family members, friends, and lawyers, and that you may be held for six hours.
Police question you in regard to the crime.
You are charged before a magistrate or released.
When can the police search you?
You can be searched if police “reasonably” suspect that you are carrying illicit or dangerous items, or something that may be used in connection with an offence. This suspicion must be based on fact, as opposed to your presence in a high crime area, or if you are appear suspicious. Moreover, sniffer dogs are often employed in locations where alcohol is served, on specific public transport lines, and at entertainment events for “general drug detection”. If a dog detects a scent and “indicates” you, police can search your car, pockets, and bags, as well as conducting a pat-down search. Strip-searching can only occur when cases are deemed urgent or serious, and privacy must be ensured in accordance with LEPRA legislation. Searches can occur at the time of arrest or during custody and should be minimally invasive. If you did not consent to searches previously undertaken by officers, your lawyer may be able to have charges dropped against you. Under Section 202 of LEPRA legislation, police officers exercising their powers must give details about themselves, including their name, rank, place of duty, evidence of being an officer (unless already in uniform), whilst also outlining the reasons for using their authority.
How does an arrest work?
As all police constables have Powers of Arrest, you can be arrested by an officer who “reasonably” suspects your involvement in an offence that you either have committed or will commit. These can either be summary offences - less serious crimes such as minor traffic offences, dealt by magistrates in local courts - or indictable offences - more serious crimes like sexual assault, robbery and murder, that are often dealt with by the Supreme Court or District Court. For offences taking place, arrests are made due to the type and severity of the offence, to protect individual welfare, preserve or obtain evidence, prevent flight, or terminate someone’s involvement in an offence. Arrests can also occur if there is a warrant, if individuals have breached the peace or their bail conditions, if they have failed a roadside breath test, or if a police officer needs to serve an Apprehended Violence Order (AVO) on someone.
During the arrest
You can be arrested through a written warrant, being informed by police that you are arrested, or being physically taken hold of by officers. It is important to note that physical resistance to an arrest is an offence, and you may receive a Court attendance notice and be charged, regardless of whether you are found guilty or innocent. Under section 546C of the NSW 1900 Crimes Act, resisting arrest carries a maximum penalty of twelve months in prison and a $1,100.00 fine. Legally, the police constable involved in your arrest should direct you on how to comply with their instructions. Police are allowed to use appropriate physical force, depending on the circumstances, including holding and handcuffing to enforce your compliance. Your legal representative can advise you if further action can be taken against violence perceived as unreasonable, as officers could be charged with assault. Unless clear, you must be informed why you are being arrested, and be aware that you are being detained.
After the arrest
After a lawful arrest, police can check ID, take photographs and fingerprints, and you will at some stage have to identify yourself with your name, address, and occupation. For children under 14 years of age, police require a court order to photograph or take fingerprints. If found innocent, individuals can request that these palm prints and fingerprints be destroyed. For suspected indictable offences, consent must be granted for police to undertake forensic procedures, unless approved by a magistrate by section 24 of NSW’s Crimes (Forensic Procedures) Act 2000. The option to refuse may be appealing due to the possible implications on DNA databases, as individuals may be rightly or wrongly accused in relation to other outstanding offences, and mistakes and abuses of the system do happen. In many states, however, magistrates and police have been given broad powers to order compulsory procedures without consent, so long as there are “reasonable” grounds to believe that forensic investigations could produce evidence confirming or disproving an individual’s committal of a crime.
In addition to speaking with a lawyer, you have the right to contact friends, relatives and other individuals. Police must delay questioning for a “reasonable” time to facilitate your contact with a lawyer, and their commute to the relevant station.
During Police Questioning
Firstly, there is no such thing as an “off the record” discussion with police, as answers can be used as evidence against you; police should inform you of this fact. A fundamental human right during police questioning is the right to remain silent, unless obligated to speak under specific laws, including the 2013 Road Transport Act, where arrestees involved in motor vehicle offences must provide their name, address, and details of who the driver and passenger(s) were. Exercising your right to silence may be problematic, if you fail to mention information that you later intend to rely on in court. Under the 2013 Amendment Bill of NSW’s Evidence Act 1995, adverse interference is allowed, whereby the court may interpret silence as relevant evidence for indictable offences. This amendment reform does not protect witnesses seeking retribution from offenders, since they do not qualify for the right, as they are not being charged.
If police do not preface questioning with your right to remain silent, your refusal to be questioned could be violated, potentially causing questioning to be deemed inadmissible as evidence. It is advisable that you seek legal advice before responding, as not to incriminate yourself. Furthermore, police questioning is often electronically recorded, so if you do agree to questioning, ask and ensure that you are given a copy of this recording. In the event that you refuse to answer, you do not have to go on to electronically record your refusal, as this is essentially an interview in itself. If under eighteen years old, a responsible adult must be present during police questioning; this could include a solicitor, youth worker, parent or guardian. Furthermore, other people deemed “vulnerable” - including non-English speakers, indigenous people, and people with disabilities - are similarly entitled to a support person during this process. If reasonably necessary, you also have the right to an interpreter.
During questioning, you are obligated to comply with a personal search, involving metal detector scans and a quick search of bags and outer garments, in addition to fingerprints being taken if police have lawful authority to do so. Otherwise, you can express your refusal. Witnesses of the offence may be requested to identify you from various photographs.
Detainment
As outlined in section 115 of LEPRA, individuals lawfully arrested in NSW can be held in investigative detention by police for six hours, during which they are not legally obligated to answer questions. This initial period can be extended for further investigations with a detention warrant. The police cannot detain you in custody for questioning if you have not been arrested, and you cannot be held for an unreasonable length of time without being charged. This detainment period is subject to “time-outs” including rest breaks, refreshments, the charging process, bathroom breaks, and medical attention.
Bail
In NSW, the legal right to bail is dependent on the legal assumption that arrestees are entitled to be considered innocent until proven guilty. If charged, arrested, and taken to the police station, you could be released and told when to attend court, released on bail, or refused bail. If bail is granted, you may have bail conditions and be required to attend court on the next court date. If bail is refused, you may be taken to the nearest Local court for a magistrate to decide, in which case you may be kept overnight before court opens the next day. Authorised bail authorities may refuse bail if they are satisfied of there being an unacceptable risk of interference with witnesses or evidence, failure to appear at court proceedings, serious offences being committed, and endangering public safety. When determining this risk, the court considers various factors including your criminal history, special needs, the seriousness of the offence, and your history of violence and committing offences while on bail. Non-compliance with bail conditions could result in warning, arrest, or being brought before a court, where your bail is then reconsidered and potentially refused.
Understanding arrest procedures, rights during police questioning, and the legal consequences of forensic procedures fundamental in navigating the complexities of arrest, detention, and searches. This is particularly important because Australia’s legal framework is less transparent than American Miranda Rights, as officers are not mandated to recite the rights of arrestees. As such, it is crucial to ensure fair treatment amidst the intense emotions of arrest.
If require legal assistance with your arrest, or should you have any questions, please do not hesitate to contact us on (02) 9170 0899.
Written by Olivia Maietta