Arrest


Police can ask you to provide your name and address if they have reason to believe that an offence has been or may have been committed and they believe on reasonable grounds that you may be able to assist in inquiries.

They must tell you the reason for the request.

You can ask the police officer to provide his or her name or the address of his or her place of duty. If police are out of uniform, you can ask for evidence that they are police officers.

Failing, without reasonable excuse, to comply with the request, or giving a name or address that is false in a material particular is punishable by a fine of up to $500.

Arrest Without Warrant

To arrest someone without a warrant, police must suspect on reasonable grounds that the person has committed or is committing an offence and that also that proceeding by summons would not achieve one or more of the following purposes:

  1. ensuring a person’s appearance at court;
  2. preventing a repetition or continuation of the offence or the commission of another offence;
  3. preventing the concealment, loss or destruction of evidence relating to the offence;
  4. preventing harassment of, or interference with, a person who may be required to give evidence;
  5. preventing the fabrication of evidence;
  6. preserving the safety or welfare of the person.

When a warrant has been issued but police do not have it in their possession, they can still arrest the person named on it and bring him or her before a magistrate.

Warrants

An arrest warrant must not be issued unless the police have provided information on oath and written material detailing the reasons the warrant is sought, including why it is believed a person committed an alleged offence and why it is claimed that proceeding by summons would not achieve one or more of the following:

  1. the appearance of the person before court;
  2. preventing a repetition or continuation of the alleged offence or the commission of another offence;
  3. preventing the concealment, loss or destruction of evidence relating to the alleged offence;
  4. preventing harassment of, or interference with, a person who may be required to give evidence;
  5. preventing the fabrication of evidence;
  6. preserving the safety or welfare of the person.

If a person has been placed on bail and does not appear at court, he or she faces a maximum penalty of 200 penalty units and/or imprisonment for 2 years. Further, a court may issue a warrant to arrest the person and bring the person before the court.

Entering premises to make arrest

Police must have both a warrant in relation to “a relevant offence” and a belief on reasonable grounds that a certain person is present before they may enter premises to arrest that person.

If they have both the warrant and the belief, they may use necessary and reasonable force, at any time of the day or night, to search for and arrest the person.

However, a police officer shall not enter a dwelling house at any time between 9.00pm and 6.00am unless the executing officer believes on reasonable grounds that it would not be practicable to arrest the person at any place at another time, or it is necessary to do so to prevent the concealment, loss or destruction of evidence.

A “dwelling house” includes a conveyance, or a room in a hotel, motel, boarding house or club where people ordinarily sleep at night.

A “relevant offence” means any offence involving actual or threatened violence and punishable by imprisonment for longer than 12 months or offences of possessing offensive weapons and disabling substances, minor theft or drink- or drug-driving.

However, police are not allowed to test your blood-alcohol at your home unless they suspect on reasonable grounds that you have been involved in an incident of culpable driving or involved in a traffic accident or unless they physically followed you home.

Right to be told why arrested

A person is to be told what they are arrested for at the time of the arrest.

The Crimes Act specifies that this does not have to be done in “language of a precise or technical nature”.

Further, it does not have to be done if the person being arrested should, in the circumstances, know the substance of the alleged offence or if the person’s actions make it impracticable for him or her to be informed.

Other powers of arrest (citizen’s arrest)

A person who is not a police officer may, without warrant, arrest another person if he or she believes on reasonable grounds that the other person is committing or has just committed an offence.

However, anyone who does this must, as soon as practicable after the arrest, arrange for the other person, and any property found on the other person, to be handed over to police.

 

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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