Knowing your arrest, bail, and court rights in NSW is vital. There’s no such thing as an “off the record” chat with police. Anything you say can be used against you at a later date, so it’s best to give your details, but otherwise stay silent.
An exemption to this rule is where police issue you with a ‘form of demand.’ However, this needs to be in relation to an incident involving a motor vehicle. If they do this, you are to provide details of the person driving at the time of the incident, if you have knowledge of it.
Another thing to be aware of is both pre and post-arrest. This relates to consenting to a search, whether that be a pat-down or the increasingly routine strip search. You shouldn’t give consent to a search under any circumstances. While you should comply with the search, never say that you agree or consent, as this can cause an otherwise illegal search to become legal.
If you don’t consent, and the search was determined to be illegal, your lawyer may have the charges dropped or thrown out of court. This can be the case even if an illegal substance or item is in your possession.
The police powers of arrest are contained in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), also known as the LEPRA.
Section 99 of the LEPRA stipulates an officer can arrest a person without a warrant. However, this can only happen if they arrested the suspect based on reasonable grounds. This means that they need to have a basis that they’ve committed a crime or they’re about to. Reasonable suspicion must be based on facts. It can’t be based merely on looking suspicious or being in a high crime area.
Under this section, the police can also arrest a person for different reasons. This includes preventing them from fleeing, enabling identity inquiries, ensuring a court appearance, obtaining an item related to an offence, preserving evidence, preventing witness harassment and protecting the safety of another.
Police can also arrest a person if there’s a warrant out for them to be taken into custody. Section 101 of the LEPRA sets out that an officer can arrest a person named in an arrest warrant, in which case the officer doesn’t have to be in possession of the document itself.
Regardless of whether you’re guilty or not, it’s best to go along with arrest procedures. Section 546C of the Crimes Act 1900 (NSW) affirms that resisting arrest is an offence that carries a maximum penalty of imprisonment for 12 months and/or a fine of $1,100.
In relation to arresting a person, Section 202 of the LEPRA states an officer must provide evidence of being a police officer. However, this will not be the case unless they’re ununiformed at the time. They must also disclose the reason they’re arresting you.
The Section 115 of LEPRA states that, upon arresting a person, police have a four-hour investigation period before they must either release or charge them. This period does not include ‘time out.’ These are times taken travelling, contacting a lawyer or family, sobering up, using bathroom facilities or time spent on medical attention. Police can make a one-off application to a magistrate for an eight-hour extension of the investigation period.
Additionally, police have the power to photograph, fingerprint and palm print an individual over 14 who’s been taken into custody. However, to take a DNA sample — usually via saliva or hair—without a person’s consent, a magistrate’s approval must be obtained under Section 24 of the Crimes (Forensic Procedures) Act 2000 (NSW).
Part 9 Division 3 of the LEPRA sets out that a person taken into police custody may communicate with different individuals. They can be an Australian legal practitioner, a relative, a friend, a guardian, or an independent person. A foreign national may contact their nation’s consulate or embassy. A foreign national may contact their nation’s consulate or embassy.
A person who has “inadequate knowledge of English” has the right to an interpreter. Furthermore, an individual who is being held by police has the right to necessary medical attention. This also includes access to reasonable refreshments and the use of toilet facilities.
Section 122 of the LEPRA provides that, on arrival at a station, a custody manager must caution an arrested individual on their right to silence. This outlines that they don’t “have to say or do anything”, but anything they do “say or do may be used in evidence” against them.
When arrested, it’s best to only provide your name, address and date of birth and say nothing else. Wait until you get in contact with a good criminal lawyer who’ll be able to advise you how to proceed from that point on.
In 2013, Section 89A was inserted into the Evidence Act of 1995 (NSW). It provides that an officer can give a special caution to a person charged with a serious indictable crime—one that carries at least 5 years prison. This pertains that refusing to answer questions can lead to an “unfavourable inference”.
This special caution must be delivered in the presence of a lawyer. So, this has led to a situation where lawyers don’t always attend the police station for fear they’ll hinder their client’s right to silence, as well as enable police to use tactics which elicit versions of events that suit them.
If police choose to charge a person with an offence, they must then decide whether to release them on bail.
Also, if police refuse bail, they must bring the arrested person before a magistrate as soon as practicable.
An application for release on bail can then be made in court, which is normally determined by considering whether the defendant poses an unacceptable risk to the community. However, there are some charges and situations where the defendant will need to overcome a more onerous ‘show cause’ test.
Regardless of the accusation, it is advisable for a person to contact a criminal lawyer. This is as soon as possible in the process, as a lawyer can ensure the interest of their client is protected and work towards achieving the best possible outcome.
If police decide to let you go once you’ve been arrested, they can either just release you. However, they can also tell you when you must attend court or they can release you on “bail.” Bail means being allowed to go free in relation to the offence you are charged with. It is always a requirement of bail that you attend court on your next court date. Other bail conditions may be imposed too. When you get bail, sign a form acknowledging your bail and its conditions before you will be released.
If the police don’t want to let you go or give you bail, then you will be brought before a court where you can ask the court to give you bail. Depending on the time of day, you may be kept in custody overnight before court opens the next day. Before you are brought into court, you can get free legal advice and, sometimes, representation from a Legal Aid NSW duty lawyer. Otherwise, you can arrange a private lawyer or you can represent yourself.
When deciding whether to grant bail, there are two factors the court has to consider.
To get bail, you may or may not have to ‘show cause’. Showing cause means you have to explain to the court why locking you up is not justified. When deciding, the court can take a lot of different things into account. If you have to show cause it means it will be harder to get bail.
Whether you will have to show cause depends on the offence you have been charged with and whether you were already on bail or parole when you were charged. With many serious offences, especially ones involving sex, violence or firearms, show cause. In the same way, if you are already on bail or parole and you are charged with a fresh offence, show cause. If you can’t show cause you will be refused bail.
After deciding whether you have to “show cause”, the court has to consider four things, also known as ‘bail concerns’. They are:
If the court is not concerned about any of these issues, or if the court thinks the concerns can be addressed by imposing conditions on your bail, then the court must give you bail.
On the other hand, if the court gives you bail, the court must decide what conditions to impose, if any. The conditions imposed on your bail must be only the minimum necessary to address the concerns the court has. The conditions must also be workable and proportionate and appropriate to the offence that you have been charged with and the concerns the court has.
There are different conditions that can be imposed on bail.
Conduct requirements:
Some bail conditions are about things you must do or must not do. This type of bail condition is called a ‘conduct requirement’. Some examples of conduct requirements are:
Other types of bail conditions are generally only imposed if conduct requirements are not enough.
Security requirements:
A ‘security requirement’ is a bail condition requiring you or another person to give “security”. Giving security normally means agreeing to pay money if you don’t attend court when you are told. Sometimes the money must be deposited with the court before you will be released from custody. Sometimes the security can be property instead of money.
Character acknowledgments:
‘Character acknowledgments’ are another type of bail condition – they require a person of good character to sign a form saying they believe you are a responsible person who will obey your bail conditions.
Enforcement conditions:
Another type of condition that can be made is called an ‘enforcement condition’. These are bail conditions to make sure you comply with one of your other bail conditions. For example, you must answer the door so that the police can check you are complying with your curfew. Another is submitting breathe tests when asked to check. This is to see if you are complying with a condition not to drink alcohol.
If we have refused you bail, you can only ask for bail again if:
If you breach your bail (which means if you fail to attend court or disobey your bail conditions), you may be arrested and brought back to the court. Also, if a police officer thinks you have breached your bail but thinks your breach is not serious, they can instead decide just to warn you and not arrest you. The decision is up to the police officer. If you are taken back to court, you may or may not be given bail again.
AussieLegal offers a number of legal kits and paralegal services that are specifically designed to help family members make a personal application and save thousands in legal fees.
Reach out on 1300 728 200 to discuss your situation with one of our consultants.
