Arrests in NSW are fairly common, and most people have likely been arrested, known someone who was arrested, or seen someone being arrested before. Most people also know that if you’re arrested, you’re probably in trouble.

What most people probably don’t know is that, sometimes, the arrest itself could be unlawful and that this might not only be able to help you out if you are in trouble, but it also might give rise to an action against police.

 

What is an arrest?

An arrest is simply being stopped from being at liberty. Generally, in NSW, the power is governed by the Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) (LEPRA), which is where the NSW police powers and the power for a citizen’s arrest comes from. There are a number of other Acts that give certain people discrete powers of arrest but this article is chiefly concerned with the exercise of police powers under LEPRA.

An arrest is made by words or actions or a combination of both, and police have powers to arrest with or without a warrant. The requirements for each of these situations differ in how the police can approach the arrest. It should be kept in mind that an arrest should be an option of last resort. If the arrest is not justified according to law and under the circumstances, it could be illegal or improper.

There is generally a requirement to communicate the intention to arrest, as well a sufficient act by the person arresting or a submission by the person being arrested. Usually this means a physical act of restraint on someone or otherwise that the person does not resist, flee, or oppose the arrest. In any event it should be clear the person is not free to go (i.e. that their liberty has been taken away).

In absence of a warrant, a police officer can only arrest you if they suspect “on reasonable grounds” that you are committing or have committed an offence AND that the arrest is “reasonably necessary” for any one or more of the following reasons:

-        To stop you committing or repeating the offence or committing another offence;

-        To stop you running from police or the location of the offence;

-        To establish your identity if they suspect on reasonable grounds you are lying about your identity;

-        To ensure that you are brought before a court in relation to the offence;

-        To preserve evidence or prevent the fabrication of evidence in relation to the offence;

-        To prevent interference with witnesses;

-        To protect the safety of any person (including the person being arrested); or

-        Because the offence is serious enough to warrant it.

The purpose of an arrest must be for the purpose of taking the person before the Court to be dealt with according to law. Police cannot arrest you for the purpose of investigation but once arrested with the requisite intention to charge, they may carry out investigation whilst you are being held in custody.

If a police officer does not comply with the requirements of the law, the arrest could be illegal. 

What if the police have made an unlawful arrest?

A lawful arrest is a requirement for the basis of establishing a number of criminal offences, so if the police have not made a lawful arrest, they may be unable to establish the relevant offence in Court, which may provide you with a defence.

Further, any evidence obtained as a result of an unlawful arrest is potentially inadmissible in Court. For example, if police unlawfully arrest you in the street and then search you incidental to that arrest, finding drugs in your pocket, the admissibility of the evidence that drugs were found could be challenged in Court. If the evidence is ruled inadmissible because of the illegal arrest, the charge in relation to drugs would be unable to be established. If the arrest is not deemed to be unlawful, the search may otherwise be deemed to be lawful and the evidence admissible.

Finally, you may be able to bring a civil action against the police for damages for some (or all) of the following:

-        Assault

-        Battery

-        Unlawful arrest

-        False Imprisonment

-        Malicious Prosecution

The requirements for bringing these actions are varied and depend wholly on the circumstances of the particular case. We might dedicate an article to this in the future.

 

What should I do if I’m arrested?

There are a number of safeguards to the exercise of police powers, including arrests. The police must give you:

-        Evidence they are a police officer (unless in uniform);

-        Their name and their place of duty; and

-        The reason for the exercise of their power (in this case, why you are being arrested).

If there’s more than one police officer, only one officer needs to give you this information but you should ask for the details of all the officers involved if you believe what the police are doing is wrong. If you ask a police officer for their name and place of duty during the exercise of a police power, they cannot refuse to give that information to you.

If a police officer fails to give you the reason for the arrest, the arrest could be unlawful or invalid. If a police officer fails to give you their name or place of duty when asked, it does not automatically make the arrest invalid, but your lawyer could make an argument that it is.

Before you are arrested, the police are able to give you a direction to give your name and address, and produce your ID, and if asked, you must comply with this direction. If you don’t, you could be arrested for the purpose of establishing your identity.

The best thing you can do if you’re arrested is to comply with police directions but make note of everything that happens and everyone that is involved (record or take physical notes if you're able, otherwise mental notes you can write down later). You should not resist arrest as this may give rise to further charges being brought against you.

In NSW you have a “right to silence”, which means that the Court cannot look unfavourably on your choice not to answer police questions (other than to identify yourself), when arrested in connection to an offence.

There are certain circumstances, however, where you are required to answer questions when asked by police regardless of whether you have had the chance to speak to a lawyer or not, such as when the police issue a “form of demand”, which is most often used to compel a person to disclose who was driving a vehicle at a particular time.

If you are under 18, aboriginal, have a mental or physical disability, the police also have additional responsibilities to provide you access to a support person.

The powers of arrest in NSW are an important tool for police but they are strictly dictated by law. The powers should be exercised with caution and as a last resort on each occasion. If you get arrested, don’t resist, and make note of everything that happens. Ensure that you exercise your right to silence and make sure you tell the police “I don’t wish to answer any questions until you and I have spoken to my legal representatives”.

 

If you find yourself in an arrest situation, make sure you get in contact with the expert team at Mitchell & Co. Lawyers as soon as possible. We are available 24 hours a day on (02) 8507 2091 or info@mitchellandcolawyers.com.au