Your Rights When Arrested in NSW

Being arrested can be stressful, particularly if you are unsure why police have arrested you or what you should say. Understanding your rights can help you make informed decisions and avoid taking steps that may affect your case.

In NSW, many police powers and safeguards are contained in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), commonly called LEPRA. If you are arrested, remain calm and seek legal advice before answering questions about an alleged offence.

When can police arrest you without a warrant?

Under section 99 of LEPRA, a police officer may arrest you without a warrant where both of the
following requirements are satisfied:

• The officer suspects on reasonable grounds that you are committing, or have committed, an offence.
• The officer is satisfied that arrest is reasonably necessary for at least one of the reasons
  specified in the section.
  

Those reasons include preventing further offending or escape, establishing your identity in specified circumstances, ensuring you appear before a court, protecting evidence or witnesses, and protecting someone’s safety or welfare. The nature and seriousness of the offence is also a specified consideration.

Reasonable suspicion alone does not satisfy both requirements. Arrest must also serve a purpose recognised by the law.

Can police arrest you simply to question you?

Police cannot use section 99 merely to arrest you for questioning while deciding whether to charge you. In New South Wales v Robinson [2019] HCA 46, the High Court confirmed that an arrest under section 99 was unlawful where the officer had not formed an intention to charge the person at the time of arrest.

This does not prevent lawful investigation after a valid arrest. It means the power to arrest cannot be used simply as a means of obtaining an interview.

What if police have an arrest warrant?

Section 101 of LEPRA provides for arrest under a warrant. Section 10 deals with entry to premises to arrest or detain a person or execute a warrant; it is not the general provision authorising arrest with a warrant.Other legislation can also authorise arrest or detention in particular circumstances. The legal basis for the police action therefore matters.

What must police tell you?

Section 202 of LEPRA requires police exercising relevant powers to provide:

• Evidence that they are a police officer, unless they are in uniform.
• Their name and place of duty.
• The reason for exercising the power.

For an arrest, this information must be provided as soon as reasonably practicable.

Warnings about complying with legally enforceable directions, requirements or requests are dealt with separately under section 203. They should not be confused with the caution about answering police questions.

Do you have to answer police questions?

You generally have the right to remain silent when questioned about an alleged offence.

However, specific laws may require you to provide particular information, including identification or information about a vehicle’s driver.

Section 89 of the Evidence Act 1995 (NSW) generally prevents an unfavourable inference being drawn from a person’s failure or refusal to answer an investigating official’s questions. That protection is subject to exceptions, including section 89A.

The special caution

Section 89A can permit an unfavourable inference in proceedings for a serious indictable offence where a defendant failed to mention a fact during questioning that they could reasonably have been expected to mention and later rely on in their defence.

Strict safeguards apply, including a special caution given in the presence of an Australian legal practitioner acting for the person and a reasonable opportunity for private legal advice about its effect. The provision does not apply to people under 18 or those incapable of understanding the caution’s general nature and effect.

Obtain advice about whether to participate in an interview and whether your lawyer should attend in person.

Can you contact a lawyer?

Section 123 of LEPRA provides communication rights before investigative procedures for people covered by the relevant custody provisions. These include contacting a lawyer and asking the lawyer to attend.

The arrangements are subject to statutory conditions and time limits. Police are not required to postpone an investigation indefinitely while waiting for your preferred lawyer.

Ask clearly to speak with a lawyer before deciding whether to answer questions or make a statement.

What should you do if you are arrested?

• Stay calm and avoid physical resistance.
• Ask why you are being arrested if the reason is unclear.
• Request legal advice before discussing the allegations.
• Comply with lawful requirements to provide information.
• Tell police if you need medical assistance, an interpreter or other support.

If you believe police acted unlawfully, discuss the circumstances with your lawyer. Challenging the arrest through legal processes is safer than arguing or physically resisting at the scene.

How Pannu Lawyers can help ?

Pannu Lawyers can advise you about police interviews, your rights in custody and the allegations against you. We can also assist with bail applications and representation in criminal proceedings. Whether you have been arrested or police have asked you to attend an interview, contact Pannu Lawyers for advice tailored to your circumstances.

This article provides general information about NSW law and is not a substitute for legal advice about your individual circumstances.