Under Arrest: What Next?

A person is arrested when police deprive him of his liberty, regardless of the words used. A person is arrested when police make it plain to him that he is not free to leave if he chooses: Lavery (1978) 19 SASR 515, C (1997) 93 A Crim R 81.

An arrest for the purpose of investigating whether or not the person has committed a crime, or obtaining more evidence, is an illegal arrest:Williams (1986) 161 CLR 278, 66 ALR 385. The purpose of the arrest must be to bring the person before a magistrate. This remains the case after the amendments to the Crimes Act allowing detention after arrest for the purpose of investigation: Dungay (2001) 126 A Crim R 216. It also means that there is no power to arrest a suspect when the arresting officer has not formed an intention to charge him: Dowse v NSW [2012] NSWCA 337 esp at para [27]. 

The arrester must have reasonable grounds to believe that the person has or is in the act of committing an offence: s. 99 LE (PAR) ActWhen the police decide to arrest or charge someone they should so inform the person of that fact and the grounds of the arrest and caution the person that they do not have to answer any questions. No particular form of words is necessary as long as it is made clear to the person that he is under arrest: Inwood [1973] 2 All ER 645.


At the Police Station

A person who is under arrest can be detained by police for the ‘investigation period’ (s. 114 LE (PAR) Act). This period is a ‘reasonable time’, but no more than 4 hours or such longer period as extended by an investigation warrant: s. 115 LE (PAR) Act.

Certain periods can be disregarded as ‘dead time’ when determining what is a ‘reasonable time’. Periods which can be treated as ‘dead time’ include, inter alia:

(a) time taken to convey the person to the nearest location with facilities for conducting forensic procedures;

(b) time to allow the accused to communicate with a friend, relative, lawyer or independent person;

(c) time waiting for an interpreter to arrive or become available;

(d) time for the accused to recover from intoxication from alcohol and/or drugs; and

(e) time reasonably required to charge the accused.

A magistrate or clerk of the Local Court can authorise an extension to the investigation period for a further period, up to 8 hours (s. 118 LE (PAR) Act). The application can be made orally or in writing.


The Suspect’s Rights

The custody manager at the police station is required to caution the suspect and summarise the provisions about detention: s. 122 LE (PAR) Act. The custody manager is required to inform the suspect before any investigative procedure starts that the suspect can contact a friend, relative or lawyer to inform them of his whereabouts, consult them, or in the case of a lawyer to be present during the investigative procedures. The custody manager is required to provide facilities for the suspect to communicate with the friend, relative or lawyer (s. 123 LE (PAR) Act).

Similarly the custody manager is obliged to inform foreign nationals of their right to communicate with a consular official of the country of which the suspect is a citizen (s. 124 LE (PAR) Act).The custody manager must arrange for an interpreter to be present during any investigative procedure if it appears that because of inadequate knowledge of English the person cannot communicate with reasonable fluency in English (s. 128 LE (PAR) Act).


Police Questioning

The general position is that you do not have to answer police questions (there are some exceptions), however, as a matter of common sense, if you are asked questions by police about a simple matter of which you are obviously innocent, it is probably a good idea to answer their questions.

When under arrest, the police will almost always want to record an interview known as an ERISP – an Electronically Recorded Interview of a Suspect Person. It can be recorded on videotape or audio tape or both and provides a record of your police interview. If asked to sit for an ERISP, it is important not to answer any questions or provide any information other than your name, address and date of birth until you have spoken to a criminal lawyer.


Forensic Procedures

Under the Crimes (Forensic Procedures) Act (2000) police have been given wide powers to obtain forensic samples. Any forensic procedure can be carried out with the informed consent of the suspect (s. 7)

Forensic procedures are divided into ‘intimate’ and ‘non-intimate’ procedures.


Non-intimate forensic procedures include:

(a) examining, photographing, taking a swab or sample or cast or impression or measurement of part of the body other than private parts;

(b) taking a sample of hair other than pubic hair;

(c) taking a sample of or from under a nail; and

(d) taking a hand print, fingerprint, foot print, or toe print. (s. 3)

A ‘senior police officer’ (of the rank of sergeant or above) can order the making of a non-intimate forensic procedure on a person if the senior police officer is satisfied that:

1. the suspect is under arrest;

2. the suspect is not a child or an incapable person;

3. there are reasonable grounds to believe that the suspect committed an indictable offence (or, in summary, a related offence);

4. there are reasonable grounds for believing that the forensic procedure might produce evidence tending to confirm or disprove that the accused committed the offence; AND

5. the carrying out of the forensic procedure without consent is justified in all the circumstances. (s. 20)


Intimate forensic procedures include:

(a) examining, photographing, taking a swab or sample from the genitals, buttocks or (in the case of a woman) breasts;

(b) taking a sample of bloodtaking of a sample of saliva other than by buccal swab;

(c) taking a sample of pubic hair; and

(d) taking a dental impression. (s. 3)

Intimate forensic procedures can only be carried by order of a magistrate or other authorised justice, after a hearing at which the suspect must normally be present: s. 22. Before making such an order, the magistrate must be satisfied of the following:

1. that the person is a suspect (defined as s. 3 as meaning someone who has been arrested or charged with the offence, or whom the police officer reasonably suspects of having committed the offence);

2. that there were reasonable grounds to believe that the suspect had committed a prescribed (i.e. indictable) offence or a related offence;

3. that there were reasonable grounds to believe that the particular forensic procedure might produce evidence tending to confirm or disprove that the suspect had committed the offence of which he was suspected; and

4. that the carrying out of the forensic procedure was justified in all the circumstances (having regard to the gravity of the offence, the seriousness of the circumstances of the offence, the degree to which the suspect is said to have been involved in the offence, the age, cultural background and physical/mental health of the suspect, whether there are other practical ways of obtaining the evidence, the reasons the suspect has given for refusing, the time the suspect has been in custody, and such other matters as the magistrate considers relevant. (s. 24)


If you think you are under police investigation or know someone who has been arrested or asked to attend a Police Station for questioning, contact us immediately to speak to one of our criminal lawyers.

Author Johnsons Law Group

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