Know Your Rights

Against the Police in NSW

Presented By Owen Hodge Lawyers

Overview1. Introduction

2. What happens if you are not being formally arrested

3. What happens when an officer stops you?

4. You can be arrested if …

5. Ask if you are being arrested …

6. What happens if you are being arrested?

7. What if you are an indigenous person?

8. What happens if the police want to search your person, your car, or your home?

9. What are the two methods of searching?

10.What happens during the course of the entire arrest experience?

11. Get the help from us

Introduction

Even under the best of circumstances interaction with a police officer can be unnerving.

It is important to remember that when you are engaging with an officer it is always best to remain calm, polite and respectful. Any form of aggressive or angry behavior can be interpreted as resistance which can only escalate the situation.

What happens if you are not being formally arrested?

If you are not being formally arrested the police can only interfere with your activities if you are behaving in a way that is disturbing the peace by annoying those around you, obstructing the natural flow of traffic, exhibiting behavior that is harmful to yourself or others, or attempting to sell or procure an illegal substance.

Under these circumstances the police can ask you to “move” along.

What happens when an officer stops you?

Once an officer stops you they can ask you for identification,” including your name and address if;

• You are driving a motorcycle or a car

• You are under the age of 18 and it appears as if you are inebriated or on drugs

• They believe you were near the site of an accident and have information that may be of assistance to them

• You were in a motor vehicle accident”

You can be arrested if ….

You are actively committing an

offence

You are disturbing the peace

There are reasonable grounds to believe you committed an offence

If the officer wishes to apply for an

urgent AVO against you”

You have violated your

bail conditions

A warrant has been issued for

your arrest

The officer needs to serve you with an Apprehended

Violence Order (AVO) or has a warrant to serve you with

an AVO

Ask if you are being arrested ….

If you are not being arrested the officer cannot insist on interviewing you.

Therefore, before you agree to go to the police station for any form of interrogation, you should ask if you are being arrested.

If you are being arrested, then you have the right to refuse to be interviewed and you may leave the scene.

What happens if you are being arrested?

If you are being arrested it is imperative that you remain calm and do not resist arrest.

Remain aware of the circumstances surrounding your arrest, take note of the officer’s name, ask if you are being formally arrested and what the charge is and ask to phone a family member or friend and a lawyer.

Listen carefully to your rights as they are read to you, including the officer’s obligation to tell you that you have the right to remain silent and that any information you proffer can be used in a court of law.

What happens if you are being arrested?

Once the arrest has taken place the police can take your fingerprints, photo, and palm prints for identification purposes.

You do not have to agree to participate in an identification “parade,” but the officer can submit your photo to the victims or others for possible identification confirmation or purposes.

Finally, you can request bail be set which, if posted for you, will allow you to leave the confines of the police station. If you are not informed of your right to bail, you should ask for bail to be set by the magistrate.

Bail must be set within a reasonable time of the actual arrest and at a reasonable amount.

What if you are an indigenous person?

If you are an indigenous person, your rights are slightly different.

Therefor it is important for you to let the officer know that you are an indigenous person so that the Aboriginal Legal Service (“ALS”) can be properly notified.

In addition, if you are a non-English speaking individual, the officer must make arrangements for you to have an interpreter.

What happens if the police want to search your person, your car, or your home?

During the course of an arrest it is possible the officer will want to search your person, your car, or your home.

In general, a police cannot search you or your premises or your vehicle without your consent or a search warrant. However, there are exceptions to both of these situations. Your lack of consent can be overridden if the officer has a reasonable belief that you are carrying a weapon, a stolen item, or an illegal substance.

What happens if the police want to search your person, your car, or your home?

The officer can also search you and/or the area under your immediate control, without a search warrant, if he/she “reasonably believes you are in possession of a dangerous weapon, illicit drugs, stolen or unlawfully obtained property or an object used to commit a crime, or cause harm to themselves or another person.”.

What are the two methods of searching?

The two methods of searching are either a frisk search or a strip search.

A frisk search involves the officer using their hands or a device designed to detect metal, along the outside of your clothes.

A strip search requires your clothing be removed in a place of privacy with an officer of the same sex and a witness of your choosing. A strip search is only permissible if the police believe it to be “reasonably necessary, serious and urgent.”

What happens during the course of the entire arrest experience?

During the course of the entire arrest experience, the police are not allowed to use excessive force. However, they are allowed to use reasonable force when justified. Therefor it is most important that the use of force not be incited during an already difficult and situation.

Being in a position of possibly being arrested or actually being arrested is a very serious event. In either circumstance it is imperative that you remain calm, respectful and cooperative. By containing your emotions and your behavior you will be better able to remain rational, make sound judgements and ask the proper questions.

Get the help from us

In the event that you are faced with these particular issues and concerns, please contact the offices of Owen Hodge Lawyers.

At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs.

Please feel free to call us at your earliest convenience to schedule a consultation at 1800 780 770.