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ARREST, BAIL AND COURT – NSW

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’ in relation to an incident involving a motor vehicle. If they do this, you are required to provide the details of the person who was driving the vehicle at the time, if you have knowledge of this.

Another thing to be aware of both pre-arrest and post-arrest 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 it is later established that the search was illegal, your lawyer may be able to have the charges against you dropped or thrown out of court, even if an illegal substance or item was found in your possession.

Powers of Arrest

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 that an officer can arrest a person without a warrant if they suspect on reasonable grounds, that they’ve committed a crime or they’re about to. Reasonable suspicion must be based in fact. It can’t be based merely on looking suspicious or being in a high crime area.

Under this section, police can also arrest a person to prevent them from fleeing, to enable identity inquiries, to ensure a court appearance, to obtain an item related to an offence, to preserve evidence, prevent witness harassment and to protect 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, as under section 546C of the Crimes Act 1900 (NSW), resisting arrest is an offence that carries a maximum penalty of 12 months imprisonment and/or a fine of $1,100.

Police Responsibilities

In relation to arresting a person, Section 202 of the LEPRA states that an officer must provide evidence of being a police officer, unless they’re un-uniformed at the time. They must also disclose the reason they’re arresting you.

Section 115 of LEPRA provides 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’, which 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 a eight hour extension of the investigation period.

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).

Your Rights When Arrested

Part 9 Division 3 of the LEPRA sets out that a person taken into police custody has the right to communicate with an Australian legal practitioner, a relative, a friend, a guardian or an independent person. A foreign national can make contact with their nation’s consulate or embassy.

A person who has “inadequate knowledge of English” has the right to an interpreter. And an individual who is being held by police has the right to necessary medical attention, as well as 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, which 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.

And on being arrested, it’s best to only provide your name, address and date of birth and say nothing else until you get in contact with a good criminal lawyer, who’ll be able to advise you as to how to proceed from that point on.

In 2013, section 89A was inserted into the Evidence Act 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 – which means 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.

Once You Have Been Charged

If police choose to charge a person with an offence, they must then decide whether to release them on bail.

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 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.

Bail

If police decide to let you go once you’ve been arrested, they can either just release you and 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 you have to 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.

  • Whether you need to ‘show cause’
  • Any bail concerns

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 making its decision, 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, you will have to show cause. In the same way, if you are already on bail or parole and you are charged with a fresh offence, you will have to 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:

  • will you attend court when you have to?
  • will you commit serious offences?
  • will you endanger any person or the community?
  • will you interfere with witnesses or evidence?

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.

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.

 Bail Conditions

There are different types of 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:

  • report to police every day
  • live at a specific address
  • surrender your passport
  • not associate with specific people (this means not go near or talk to those people)
  • not go within a certain distance of a specific place (e.g. within 500 metres of the shopping centre)
  • obey a curfew.

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. Examples include a condition that you must answer the door so that police can check you are complying with your curfew or a condition to submit to breath tests when asked to check that you are complying with a condition not to drink alcohol.

 Refusal and Breach of Bail

If you have been refused bail, you can only ask for bail again if:

  • you were not represented by a lawyer the first time you asked for bail
  • you have new information to tell the court about why you should get bail
  • there has been a change of circumstances
  • you are under 18 years of age and the last bail application was made on your first appearance for the offence.

If you breach your bail (which means if you fail to attend court or disobey your bail conditions) then you may be arrested and brought back to the court. 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.

This information should not be taken as legal advice as it is of a general nature. The information is provided solely on the basis that readers will be responsible for making their own assessment of it.  We recommend that you obtain independent legal advice from a solicitor if you wish to assess the suitability of the information contained herein.

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