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What Happens When Someone Is Arrested (Or Questioned) & What To Expect
As criminal lawyers, we hear from people when a person or a partner, friend or family member has been:
- Questioned by Police as a person of interest (not under arrest)
- Asked to go to the Police Station to participate in an interview
- Charged with an offence but not arrested
- Taken to Police Station and into custody
- Arrested (with or without a warrant); or
- Later in the process such as when they are due in Court for a hearing or trial or they are unhappy with their lawyer and want us to help them.
On this page we cover the questioning and arrest processes by answering:
- What are our rights when being questioned by Police?
- Can Police charge you without arresting you?
- Can you refuse to be searched by Police?
- What is a warrant & what happens when an arrest warrant is issued?
- What happens when someone is arrested?
For family members and partners of someone who is being questioned by Police or have been taken into custody, this is often a very worrying and stressful time. Here we will provide you with insights into what happens in New South Wales when someone is questioned by Police and/or arrested.
Questioning By Police In NSW
Your Rights When Being Questioned By Police
Whether someone has been called in for questioning by Police, asked to participate in an interview or taken into a Police station, taken into custody or arrested, there is no obligation for them to participate in any interview. Even if they previously agreed to participate.
Police must tell people of all ages that they don’t need to answer their questions. However, they will often encourage you to do so.
It is important to understand that from the moment you first interact with Police, anything you say can be used against you. This means that even if you do not agree to participate in an interview, anything you have said will be recorded on body worn video or in the Police statements if the Police are not recording the interaction.
When we speak with clients who are proactively seeking legal advice, they want to understand whether they (or their partner or child) really are a person of interest or if the Police are just trying to get information out of them.
Can Minors Be Questioned By Police Without Parents?
If a child is under 14 years of age, a parent or guardian should be present for Police questioning. However, even with a parent or guardian present, we recommend they seek legal advice before giving a formal statement or taking part in a Police interview.
For children aged 14 to 17, an independent adult agreed to by the child must be present for questioning. However, again, there is no requirement to answer questions from Police, even if they have been arrested.
If you or someone you know has been questioned by Police or has been called in for questioning, the best approach is to get advice from a criminal lawyer urgently about what to know and consider first. With advice from an experienced criminal lawyer, there is less chance of the consequences being worse than they could be.
Can You Refuse To Be Searched By Police?
In New South Wales, Police have the right to stop, search and detain someone if they have “reasonable suspicion” to believe they are carrying items that are:
- Illegal
- Stolen
- Drugs
- Weapons; or
- Items Police suspect may be used to commit a crime
If someone refuses to be searched after being informed by Police that we suspect the person is carrying one of the above items, they may be arrested, and Police can use reasonable force to search them. However, if Police ask for your permission to search you and they do not have a valid reason, you should never consent to this.
Police are not permitted to strip search anyone in public.
Read on below to learn about warrants or jump to the section detailing what happens when someone is arrested.
What Is The Difference Between Detained And Under Arrest?
Detained is when someone has not been formally arrested, but they are not free to leave the location where they are being detained by Police.
Someone who is detained in New South Wales may be held temporarily for:
- Questioning;
- Searching;
- Their own safety and wellbeing.
Under Arrest is the term given when someone has been formally taken into Police custody as the Police have reasonable grounds to believe that someone has, or was about to, commit a crime. The Police can arrest a person for a number of reasons, including but not limited to:
- Prevent further offences being committed;
- Stop the person from running away;
- Preserve evidence;
- Protect the safety of others, including the alleged victim.
Police can also arrest someone if they have:
- Failed to comply with the terms of existing bail conditions;
- Breached their Intensive Corrections Order (“ICO”) or Parole, and these have been revoked;
- Failed to attend Court, and there is a warrant for their arrest.
Police can also arrest to execute a warrant. That is, if the person has failed to attend Court and the Court issues a warrant.
Arrests can be undertaken either:
- With a warrant; or
- Without a warrant
Strictly speaking, Police can’t arrest anyone for the purposes of conducting further investigations.
What Is A Warrant? What Happens When An Arrest Warrant Is Issued?
Arrested Without A Warrant
This is when the Police have reasonable grounds to suspect that a crime has been committed. They may have been caught in the act, and the Police are on the scene. See ‘Under Arrest’ above.
They don’t need proof at that point in time, but they need to have some reliable information that an offence has been or is being committed by the person.
Arrested With A Warrant
There are a number of ways an arrest warrant can be issued.
If the Police suspect that someone has committed a crime but cannot locate that person, they may need to apply to the Court for an arrest warrant. Generally, this would only be applied for if a lengthy period of time has passed since the alleged offence was committed (unless the crime is serious) and their attempts have been unsuccessful at locating the person. If granted by the Court, the details of the warrant are added to the Police system so officers are aware that if the person is located or found, they are to be arrested.
Arrest warrants can also be issued by the State Parole Authority (“SPA”) if a person is breaching their sentence. For example, if someone breaches their ICO (Intensive Correction Order), which is a sentence served in the community, or their Parole (remainder of jail sentence served in the community), SPA may revoke the ICO or Parole and issue a warrant for the person to be taken into custody (jail). A person may be in breach of their ICO or Parole if they don’t comply with the conditions of their sentence or if they commit further offences.
The Court can also issue an arrest warrant if an accused person fails to attend Court or if someone has been issued a Subpoena to attend Court but doesn’t turn up.
Can You Get Arrested For A Warrant In Another State Or Territory?
Yes, warrants are enforceable across Australia. This is called an Extradition Warrant. Extradition is when a person named in an Extradition Warrant can be arrested in accordance with that warrant in another state or territory. The goal being to bring someone who is outside of the jurisdiction (state or territory) to bring them before the Court in the state or territory that issued the arrest warrant.
Can Police Charge You Without Arresting You?
In New South Wales, Police can charge people without arresting them. A Future Court Attendance Notice is issued, detailing the date, time, and location of the Court hearing. This notice might be issued for minor traffic violations, minor drug offences and other less serious crimes.
Can Police Arrest You In Hospital?
In New South Wales, someone can be arrested in hospital if Police have reasonable grounds to suspect that they have committed an offence or if there is a warrant for their arrest.
What Happens When Someone Is Arrested?
Once arrested, they are taken to the Police station and are booked into custody.
The Steps Upon Arrest In NSW
elow are the steps that must be followed when anyone is arrested in New South Wales.
1. Reading Of Rights
Once in custody, each person has the right to ensure fair treatment and be informed about their entitlements while in custody.
These are called ‘Part 9 Rights’ and are from Part 9 of the regulation for Law Enforcement (Powers and Responsibilities) Regulation (“LEPRA”).
These rights must be read and explained to the person by the Custody Manager. They include, but are not limited to, the following:
- They are permitted to contact a lawyer (and Police can help them locate contact details)
- They can contact a friend, family member, guardian or independent person to let them know where they are.
- They are informed about what the investigation is about.
- They can say nothing, but anything they do say could be used as evidence.
- An interpreter can be provided if they cannot speak English.
- Support can be provided if they are Aboriginal or Torres Strait Islander, they come from a non-English speaking background, or they have a physical, cognitive or intellectual disability.
- They may be held for up to 4 hours while Police conduct their investigation (Police explain a number of time periods that do not count toward this time limit, see examples below).
- Medical attention will be provided if necessary or if the person’s request for medical assistance is reasonable.
- A copy of the record of a person’s time in custody will be provided.
The Police will wait up to 2 hours for the person who was contacted to arrive before they do anything. For example, if you are waiting for your lawyer to arrive, the Police will only wait up to 2 hours for your lawyer to attend the Police station.
2. Police Investigation
Next, they are offered the opportunity to participate in an interview. We always advise people to exercise their right to silence (even if they are not guilty!).
There is no obligation or requirement for a person to participate in an interview with Police. The only obligation they have is to provide their name and address.
In our experience, more often than not, if someone does participate in an interview, their circumstances go from bad to worse.
In New South Wales, the Police have 4 to 6 hours to make a decision about whether the person they have in custody will be charged.
Charged – If someone is charged, this means that the Police believe they have enough evidence to prove the person committed an offence, and they are formally accusing that person of having committed an offence or multiple offences.
If the Police haven’t made a decision at the end of that time, they need to release the person from custody.
If the Police need more time to complete the investigation, they must obtain a detention warrant from the Court, which allows them to detain a person for up to a further 6 hours.
The Police can only make one application to the Court once to extend the time.
Why Someone May Be Held In Custody For Longer Than 4-6 Hours
Some of the “deductions” or time that does not count toward the 4-6 hour investigation and custody period allowed include:
- Travel time – from the place of arrest to the location of investigation (e.g. Police station)
- Wait time for the arrival of Police officers required to conduct the investigation
- Time to arrange and wait for an interpreter
- Time to arrange, wait for and receive medical assistance
- Time recovering from the effects of alcohol or drugs
- Time to rest, use bathroom facilities, etc
- Time used to arrange and conduct an ID parade (line up)
- Time used to communicate with a lawyer or family member, friend, etc.
Once the investigation time is up, the Police need to either charge the person or release them.
If they are charged with an offence or multiple offences, the Police determine whether they are to be released on bail with a Court Attendance Notice (first Court hearing date) or if they are to remain in custody until the Court hearing.
If the Police decide that a person is to be refused bail, they must bring the person before the Court at the next available opportunity, where a person might apply for Court bail. Whether a person should apply for bail at this stage should be determined after the person has received legal advice. The cut off time for a person to have their matter heard by the Court is generally 3:00pm. That is, if a person is ready to go before the Court before 3:00pm, the Court will deal with their matter. However, if the Police have not finalised all of their paperwork and lodged the documents with the Court before 3:00pm, that person will be held in custody overnight and will go before the Court the following day.
3. Released On Bail Or Held In Remand
People who have been charged may be eligible for bail or be held on remand (in custody).
Bail is when the person charged with a criminal offence is released from custody until the date their matter is finalised. There will likely be conditions that the person receiving bail will need to agree to in order to be released.
In some circumstances, including when someone has been accused of committing serious offences, bail must be refused unless their release can be justified. It is in these circumstances that legal advice is essential. When people seek our help regarding what to do when bail is refused, we provide them with advice about what may be able to be done to increase the chances of being granted bail.
Remand is when someone is not free to be released. They are to be held in custody until their Court hearing, trial or until they have been sentenced if they plead guilty or are found guilty.
How Are Decisions Made About Bail?
Bail may be refused by Police, usually if the alleged offence is a serious crime. Bail may be refused by Police if the person in custody is already on bail or parole at the time of their arrest. A person is also more likely to be refused Police bail if they have a criminal history for committing similar offences or a history of breaching their bail conditions or Court Orders.
There are four key risks that are to be considered when deciding if bail will be granted to someone:
- Risk of the person failing to appear at Court;
- Risk of the person committing further serious offences;
- Risk of the person being a danger to the victim, individuals or the community in general;
- Risk of the person interfering with evidence or witnesses.
For more helpful information about bail, including what to know about applying for bail on behalf of someone else, what to do if bail is refused, and changing bail conditions or decisions, visit this page.
In the lead up to a Court hearing, it is important to get legal advice early, regardless of whether you are guilty or not guilty.
The later people wait to seek help, the more likely the avenues and opportunities available to them are reduced. For the best opportunity at receiving the most optimal outcome, we need good communication with our client. If they aren’t held on remand (in custody), we have them come into our office, or we meet online for at least one conference before the Court hearing or Sentencing hearing. If they are in custody, we organise a visit, video or telephone call.
During that time we:
- Answer their questions and concerns;
- Advise them of their next steps if they are not guilty of the charges;
- Advise them about the possible options available to them that may reduce a potential sentence;
- Where applicable, discuss suitable programs to enrol and participate in that can demonstrate to the Court that they are proactive in making better choices in the future (related to the behaviours that contributed to the offence);
- Provide them insights into what we know about particular Magistrates and Judges and any patterns we have identified in their sentencing for particular scenarios and offences;
- Provide advice about their chances of defending the charges; and
- Get their instructions for us to represent them in the hearing or trial.
If not guilty, it is essential that you still seek legal advice. It is dangerous to be hopeful that you won’t be convicted. You have one opportunity to defend the charges, so make it count!
It is always ideal for the person facing sentencing to seek early advice from a criminal lawyer who is highly experienced. This is the only way to get on the front foot, avoid accidental self-incrimination and minimise the risk of additional issues to manage.
Family members, partners and friends who contact a criminal lawyer because they are concerned for the person being questioned or in custody, gain clarity about what their friend or loved one needs, and ask any questions they have. When we have a conference call or meeting, we can provide additional insights into what has been shared here and give advice specific to the person and their current circumstances. The support doesn’t need to end there either. We help our clients understand their bail conditions so they can understand the implications of not complying with them. Where the bail conditions might be too restrictive or unnecessary, we advise them about when to apply to change the bail conditions and what will be considered by the Court.
We can help if someone has been arrested or is being questioned by police.
We have two office locations – Penrith & Blacktown – as well as phone and online consultations if preferred.
Disclaimer: The content in this article provides general information however it does not substitute legal advice or opinion. Information is best used in conjunction with legal advice from an experienced member of our team.