Your rights when dealing with NSW Police

Dealing with the Police can be an extremely intimidating and confronting experience, particularly if you are being questioned or arrested on suspicion of having committed a crime.  It is important to be aware of your rights and remain calm when dealing with the Police.  Whilst you may not have committed an offence when first approached by Police, by being violent, aggressive, offensive or swearing at a Police Officer you may subsequently be charged with an offence.

The main Police powers are contained in the following legislation:

  • Law Enforcement (Powers and Responsibilities) Act 2002;
  • Road Transport Act 2013;
  • Bail Act 2013; and
  • Crimes (Domestic and Family Violence) Act 2007.

The above Acts set out circumstances where Police can exercise their powers and the responsibilities they have in exercising their powers.

Power to Demand Name and Address

Police have the power to request that you identify yourself and you must legally comply with this request in the following circumstances:

  • if the Police suspect on reasonable grounds that you may be able to assist them to investigate an indictable offence because you were at or near the scene of the offence;
  • if you are under the age of 18 and Police suspect you of carrying or consuming alcohol in public;
  • if you are suspected of committing an offence on a train or part of a railway;
  • if the Police are trying to serve a fine default warrant;
  • if you are driving a car or accompanying a learner driver;
  • if the driver of a car is alleged to have committed a traffic offence, the owner or person responsible for the car must provide the name and address of the driver;
  • if the Police suspect on reasonable grounds that a vehicle is being (or was, or may have been) used in connection with an indictable offence, and you are the driver or a passenger of the vehicle; and
  • if you are involved in an accident.

When can a Police Officer Arrest You?

A Police Officer can arrest you if:

  • you are committing an offence;
  • you have, or the Police Officer has reasonable grounds to suspect that you have committed an offence;
  • you have breached your bail conditions;
  • a warrant has been issued for your arrest;
  • you are breaching the peace;
  • the Police Officer needs to serve an Apprehended Violence Order on you or has a warrant for your arrest for serving an application for an Apprehended Violence Order on you; and
  • the Police Officer wishes to apply for a provisional (urgent) Apprehended Violence Order against you.

Court Attendance Notice

What a Police Officer must tell you when arresting you

The Police Officer placing you under arrest must:

  1. tell you that you are under arrest;
  2. tell you why you are being arrested; and
  3. tell you their name, rank and place of duty.

It may not be practical for the Police Officer to tell you these details at the time of your arrest.  If this is the case they must tell you as soon as possible after your arrest.  A Police Officer may use as much force as is necessary to arrest you.  If the force used by the Police Officer is unreasonable, it can amount to assault.

 When can the NSW Police search you?

A Police Officer can search you in the following circumstances:

  1. if you agree;
  2. if you are under arrest or being held in custody;
  3. if they have a search warrant; or
  4. if they have reasonable grounds to suspect that you are carrying:
  • Stolen goods;
  • Goods unlawfully obtained;
  • Prohibited drugs;
  • Knives, weapons or dangerous implements;
  • A laser pointer; or
  • An item that has been, or may be, used in a serious crime.

The search may include your car and/or your possessions.

 Police Questioning

You cannot be arrested for the sole purpose of questioning.  The Police can request that you accompany them to a Police Station for questioning, however, you are not required to go unless you have been arrested for an offence.

If you have been arrested for an offence, you do not have to take part in an interview to answer questions about that offence.

You have a right to silence, however, in some circumstances your right to silence may be used against you in Court where the Police have issued a “special caution“.  This ‘special caution’ can only be given if:

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

If the ‘special caution’ has been given and you then fail or refuse to tell the Police a fact that is later relied upon in your defence, it may permit the Court to use your silence against you.  In some circumstances it may be in your best interest for your Lawyer not to attend the Police Station.

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If you need assistance with dealing with the Police, contact Shire Legal on 9526 3444 or info@shirelegal.com.au.

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