Know Your Rights in NSW

This information is general information only. If you are contacted by the police immediately contact our Criminal Law team.

POLICE POWERS TO DEMAND NAME AND ADDRESS

In most situations you do not have to tell the police your name and address. However, you must tell the police your name and address in some situations, including:

1. if police suspect on reasonable grounds that you may be able to assist them to investigate a serious offence because you were at or near the scene of the offence;
2. if police intend to give you a direction to leave a place;
3. if police suspect on reasonable grounds that an apprehended violence order has been made against you;
4. if you are under 18 and police suspect you of carrying or consuming alcohol in public;
5. if you are suspected of committing certain types of offences on public transport;
6. if police are trying to serve a fine default warrant;
7. in situations relating to vehicles and traffic. In situations involving vehicles and traffic, you usually have to show the police your licence if you have one.

If in doubt, politely ask: ‘Will I commit an offence if I don’t answer?’. Unless police say yes, do not answer the question. If police say yes, answer the question.

You can ask police whether you have to give them your ID.

If you are arrested, police can take photos and fingerprints to find out who you are.

POLICE POWERS TO SEARCH YOU

Police can stop and search you (including your car or possessions) if:

1. you agree; or
2. you are under arrest or in custody; or
3. they have a search warrant, which they must show you if you ask; or
4. police suspect on reasonable grounds that you are carrying stolen goods or something about to be used in a serious crime (e.g. weapon); or
5. police suspect on reasonable grounds that you have (on you or in your vehicle) a prohibited drug; or
6. police suspect on reasonable grounds that you have a knife or a “dangerous implement”.
7. if your car belongs to a “class of vehicle” that police suspect on reasonable grounds is, was or may have been used in connection with a serious offence.

Police may search you without any reasonable suspicion if you consent (agree) to being searched. Police will often ask “would you mind emptying your pockets?” or “have you got anything on you that you shouldn’t have?”. If you agree to the search police do not need to have reasonable grounds to carry out the search. If you do not consent it may be illegal for police to search you.

If in doubt, politely say: ‘If I have a choice, I don’t want to be searched, but I will cooperate if I have to’. If police say you have to, cooperate with police. If police ask you again if you consent, say no.

If police are going to search you, they should:

1. tell you why they are searching you, and the name and station of the person searching you;
2. usually get a person of the same sex as you to do the search; and
3. not make you remove any clothing (except outer clothing, like a jacket) unless they have good reason to suspect that it is necessary and urgent, so that they have to strip search you.

Police can ask you to shake your hair and open your mouth.

If police do a strip search, you are entitled to as much privacy as police can give you in the circumstances.

Police can search you again at the police station if you are arrested.

THE RIGHT TO SILENCE

If you are being arrested you have a right to silence.

This means you don’t normally have to answer questions about what you did or where you were at any time, sign anything, or give an interview. For some offences, police can administer a ‘special caution’ but only if:

1. you have had an opportunity to obtain legal advice from a lawyer and
2. then you are given the ‘special caution’ in the presence of your lawyer.

The effect of the ‘special caution’ is that if you then fail or refuse to tell police a fact that is later relied on in your defence in court, it may permit the court to use your silence against you. If you are not represented by a lawyer or if your lawyer is not present when police speak to you, this provision does not apply.

The police may ask you questions at any time, but in most situations (except those noted above), you do not have to answer any police questions.

The police have no power to stop or detain you just to ask questions.

If you are suspected of a crime, it is usually not in your best interests to answer police questions, as your answers could be used as evidence against you.

Don’t answer any questions or sign any statement until you get legal advice.

POLICE POWERS IF YOU ARE ARRESTED

Police should tell you why they are arresting you and if they don’t, ask them.

If you are arrested, don’t argue or resist.

Unless you have been arrested and you have obtained legal advice do not:

1. go with the Police to a Police Station; or
2. take part in a recorded interview; or
3. provide a statement; or
4. take part in a recorded refusal to provide an interview; or
5. take part in a Police line-up; or
6. provide a handwriting sample.

When you are taken to a police station you will be given a document which sets out your rights.

If you are arrested you are entitled to and should immediately ask to telephone an experienced criminal lawyer.

IF YOU ARE CONTACTED BY THE POLICE…

The onus is on police to prove a person’s guilt beyond reasonable doubt. While it is normal human nature to try and defend an allegation, especially where you believe the allegation is untrue, it is extremely important that you do not inadvertently provide police with information which may be used against you.

Unfortunately, because people are unaware of their legal rights and due to the stressful nature of being questioned by police officers in an unfamiliar environment people can often say things to police which can inadvertently significantly decrease their prospects of success of successfully defending a matter when it comes before the court.

If you have been contacted by police always contact an experienced criminal lawyer to obtain advice prior to answering any questions. Quite often we can liaise with police on your behalf to discuss any questions they may have and if necessary arrange for you to attend upon a police station in a controlled manner to the police are not required to attend upon your home or place of employment.

A court will never say that you are guilty because you did not answer a police officer’s questions. It is your right not to answer questions.