Under Arrest? Know Your Rights

Published 02 Sep 2015
Louis Andreatta

A police officer may arrest you if he has a reasonable suspicion that you have committed or are about to commit a crime (even if you are completely innocent).

Resisting arrest

If you actively resist arrest, it is an offence. Refusing to cooperate is not resisting arrest. A person may be charged with the offence of resisting arrest even if the police do not charge the person with any other offence.

A person is arrested by:

• A police officer telling you that you are under arrest and touching you, unless you submit by going with the police officer

• A police officer telling you why you are being arrested

• A police officer may use such reasonable force as is necessary to arrest you. A police officer may handcuff you if an attempt is made to escape or if the police officer considers it is reasonably necessary to prevent an escape

Does a person have to answer question

You cannot be arrested for the purpose of being questioned. A police officer may ask you questions or even request that you accompany them to a police station for questioning but you are not obliged to comply with such a request if you have not been arrested for an offence.

Once you have been arrested, a police officer is entitled to ask you questions. You have a right to say nothing and you have a right to silence. However, where your arrest arises out of the use of a motor vehicle, you are required to give your name and address and particulars of the incident to police and failure to do so is an offence.

Prior to asking you questions, police should provide you with a caution the effect of which is to say that you are not required to answer questions put to you but any answers you give may be used in evidence against you.

Police are entitled to record on video and audiotape any record of interview where you are asked questions by police.

You should give police your name, address and date of birth but not answer questions unless you have a solicitor present. You have a right to have a lawyer present to advise you while being questioned.

You should not sign any document (except for a bail form) including any statement or record of interview.

Do I have to be fingerprinted or photographed?

Police may take fingerprints and photographs of you for the purpose of identification. You may ask the Court for an order that your fingerprints and photographs be destroyed if you are later acquitted or the charges are dropped.

You do not have to participate in an identification parade. However, witnesses may indentify you from photographs.

How long do I have to remain in custody?

Police are authorised to detain you for an initial period of up to 4 hours to conduct investigations. However, this period may be extended to a further 8 hours on application by the police. If you have not been charged at the expiration of this period of time, you must be released.

Can I get bail?

If you are charged, normally you will be released on bail, sometimes with conditions.

If you are refused bail, you must be brought before the Court where you can apply for bail.

A person may be refused bail if:

• The offence is a very serious offence such as murder, robbery, drug trafficking, domestic violence or where there is a history of violence

• The person arrested has previously failed to appear in Court

• The person arrested while on bail commits a further offence

Once you are granted bail, you may be arrested again if you breach any condition of your bail.

You may ask Maclarens Lawyers to make an application to the Court to vary any conditions.

Maclarens Lawyers can help you if you are arrested for a criminal offence

• Maclarens Lawyers can advise you of your rights.

• Maclarens Lawyers can advise you as to whether you should please guilty or not guilty to an offence

• Maclarens Lawyers can make an application for bail for you

• Maclarens Lawyers can represent you in Court for a criminal offence

• Maclarens Lawyers can advise you as to whether it is prudent to retain the services of an expert criminal barrister if you are arrested for a criminal offence