What to do if you’re arrested in NSW

Know your rights: What to do if you’re arrested in NSW

Being arrested can be a challenging and stressful experience. Having a clear understanding of your rights and the authority of the police is crucial, as it can significantly impact the outcome of your case.

Unfortunately, the  lack of understanding of legal rights combined with  the stress of being questioned by police in an unfamiliar setting, people often say things that  unintentionally harm their chances of successfully defending a charge.

Do you have to answer questions a police officer asks you?

In most cases, you are not obligated to answer police questions. However, there are situations where you may need to provide your name and address. If police request this information, it is usually best to provide them with your name and address or photo ID.

Additional information may be required for certain traffic-related offences. If you are unsure whether you need to provide details, you may seek legal advice. Importantly, the police do not, have the power to stop or detain you just to ask questions.

If you are uncertain about your rights, do not answer questions or sign statements until you receive legal advice. Anything you say or sign can be used against you. Without legal advice, you might unintentionally admit to something or provide information that could be interpreted in a way that harms your position. Sometimes, the police will ask you to go “on record” to electronically record your refusal to answer questions (i.e. to get a recording of you saying that you decline to be interviewed). This in itself is an interview, and you do not have to do it.

Be aware that there is no such thing as an “off the record” or casual conversation with a police officer. Anything you say could potentially be used as evidence in court.

If you are under 18, a responsible adult, such as a parent, guardian, or solicitor, must be present during police interviews. Without this, your statement cannot be used against you in court. Additionally, Aboriginal and Torres Strait Islander individuals, as well as people with disabilities, may have the right to a support person during police interviews.

Can your silence be used against you?

Throughout the legal process, you have the right to remain silent. However, if you are over 18 and choose not to provide information about your involvement in a serious indictable offence (one carrying a maximum penalty of five years or more), your silence may later be interpreted negatively in court.

If you introduce new information later in legal proceedings, the court may question why it wasn’t mentioned earlier. Before this happens, the police must issue a special caution, informing you that you are not required to answer questions but that your silence may be used against you. Your lawyer must be present when this caution is given.

How long can police detain you after arrest?

If you are arrested on suspicion of an offence, police can detain you for a reasonable amount of time to conduct their investigations, such as interviewing you if you consent. Typically, this period cannot exceed six hours unless extended with a detention warrant. After this time, the police must either charge you or release you without charge.

It’s important to understand that the six-hour limit can include “time outs” for activities such as bathroom breaks, rest, meals, medical attention, or completing the charging process.

Are you required to submit to fingerprinting and photographing?

If you are under arrest, you are generally required to allow the police to take your fingerprints, palm prints, and photographs. However, if you are later found not guilty, you can request that your fingerprints and palm prints be destroyed.

For children under 14 years of age, the police must obtain a court order before taking fingerprints or photographs.

Understanding bail

If you are charged with an offence and arrested, police will decide whether to release you with a court date, release you on bail (with or without conditions), or refuse bail.

If bail is granted, you must appear in court on the specified date. If bail is refused, you will be taken to the nearest local court for a magistrate to determine whether you will be granted or denied bail. Depending on the time of arrest, you may remain in custody overnight until court opens.

A bail authority, such as a court, police officer, or authorised justice, must refuse bail if they determine there is an unacceptable risk. This includes risks that you may fail to appear in court, commit a serious offence, endanger public safety, or interfere with witnesses or evidence. If no such risks are present, the bail authority can grant bail, release you without bail, or dispense with it entirely. A lawyer can assist with preparing your bail application.

When assessing whether there is an unacceptable risk, the court considers several factors, such as your criminal record, the seriousness of the offence, and the existence of any special needs or circumstances.

What happens if you breach your bail conditions?

It is an offence to breach any of your bail conditions, and if you do,  the police can arrest you and charge you with an additional offence. This could result in spending the night in custody or being issued new bail conditions.

If the court denies you bail, you will remain in custody until your next court appearance. You can consult your lawyer about submitting another bail application, or applying for bail at the Supreme Court, if you face a prolonged detention.

Breaching your bail makes it more challenging to secure bail in the future.

If you need legal advice or assistance regarding an arrest, contact us here at Turnbull Hill Lawyers. We can help protect your rights and guide you through the legal process.