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Arrest and Police Powers
Introduction
This article focuses on the power of the police to arrest a suspect or to question a person of interest. It may come as a surprise to learn that police powers are surprisingly wide and can vary widely depending on the alleged crime.
Knowing your rights is an important place to begin, especially when being placed under pressure in questioning. This article considers the criminal and procedural law of New South Wales, but similar provisions exist in other states in Australia.
Power of Arrest & Entry
Generally, a police officer does not require a warrant to enter premises in circumstances of emergency. Additionally, a police officer does not require a warrant to arrest someone when they are in the process of (or have just committed) an offence.
In most cases, however, a police officer will either conduct a search (or arrest) in specific execution of a warrant. Should this occur, it is important to remain calm and note the time, date and identities of the police officers in attendance. You should also contact a lawyer (or a close friend or relative who can contact a lawyer) to act on your behalf. Bear in mind that in some cases, a police officer does not need to physically appear before a justice to obtain a warrant and this may be obtained by telephone.
Detaining and Questioning at the Station
If you are detained or arrested, the police must charge you within four hours. However, this time limit is not absolute and the police are likely to charge you before this time. As part of your attendance, you may be fingerprinted and photographed. In some cases, the police may seek to obtain a DNA sample, although the provisions of the legislation outlining consent (and the power of police to obtain a sample without consent) are complex.
When being questioned, you are under no obligation to give any information to the officer. However, certain offences (such as those involving traffic accidents, terrorism, customs or immigration) may allow a police officer to compel you to provide answers to questions. On a more practical level, if the police do not know your name or residential address, there is little utility in withholding this information (and again, in some instances it may be an offence not to disclose this information).
The police are obliged to inform you that you have the right to contact a friend, relative or lawyer and should wait for up to two hours while one of these people travels to attend your questioning. Your lawyer is critical during questioning and will have an opportunity to speak to you away from the police.
Unlike most television crime dramas, a lawyer will not trade banter or answers with a questioning police officer in an interview and it is still up to you to answer questions that have been put to you by the police (assuming that you have chosen to participate in an interview). Alternatively, you may choose to provide a statement which gives account of any issues or facts you wish to put forward. This is particularly useful in traffic offences where there is a risk of inadvertently admitting liability for an accident.
The general rule is that the "right to silence" is not to be used against you, so that your refusal to answer questions is not an indication that you have something to hide (or are concealing guilt). Remaining calm and being polite will get you a lot further than being confrontational.
