What is an arrest in NSW:
In simple terms, a lawful arrest in New South Wales must have three elements:
- A person must be informed that they are being arrested;
- They must be informed why (unless already obvious); and
- Words or actions must make it clear to the person that they are not free to leave.
Your rights after arrest:
After arrest, a person will be taken to a police station where they must be read their rights.
Some of these rights include:
- The right to contact a lawyer;
- The right to have a lawyer present at the station;
- The right to have an interpreter present (if necessary);
- The right to contact a relative or friend;
- The right to medical attention if requested or necessary; and
- The right to silence (with some exceptions).
The right to remain silent:
Generally, you have the right to remain silent after arrest in New South Wales.
However, there are some exceptions. This includes the need to provide your name and address in certain circumstances when dealing with Police.
Further, if you are alleged to have committed an offence involving a motor vehicle, the Road Transport Act 2013 requires you to provide information such as your name, address and driver/passenger details.
In New South Wales, you are not required to answer questions or participate in an interview, unless the exceptions above apply.
Police are required to inform an arrested person that they do not have to say or do anything in response to questioning, and if they say or do anything, that it may be used in court.
Amendments to the Evidence Act 1995 have diluted the right to silence for people charged with serious indictable offences (punishable by imprisonment for five years or more).
The Police must give a special caution only in the physical presence of an accused’s lawyer and there must be an opportunity to consult with the lawyer.
The special caution explains that a failure or refusal to mention a fact that is later relied upon in court may harm a person’s defence.
The Police may search a person who has been arrested at the time of the arrest or when the person is in custody.
After the investigative period (generally, six hours) is finished, a person must be:
- Released unconditionally;
- Released on bail; or
- Brought before the Court as soon as practicable.