Interactions with police can often be intimidating and it is important to be aware of your rights as well as the range of powers that police have to allow them to perform their duties.
In New South Wales, the main powers that police officers have are set out in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), often referred to as ‘LEPRA’.
When dealing with police officers, it is important to remain calm and polite, as well as refrain from swearing or becoming violent, as this can provide them an opportunity to fine or charge you.
What do I do if police contact or approach me?
Whilst police officers are able to request that you attend a police station to participate in an interview, you are not required to attend unless you have been arrested for a relevant offence.
It is always important to seek legal advice from a criminal defence lawyer in circumstances where you have been contacted by a police officer to attend a police station and/or to participate in an interview.
If you are approached by police, in most circumstances, you do not need to answer questions asked.
What information do I need to provide police?
Whilst police officers are able to request that you attend a police station to participate in an interview, you are not required to attend unless you have been arrested for a relevant offence.
It is always important to seek legal advice from a criminal defence lawyer in circumstances where you have been contacted by a police officer to attend a police station and/or to participate in an interview.
If you are approached by police, in most circumstances, you do not need to answer questions asked.
What information do I need to provide police?
Circumstances in which you are required to provide police with your name and address, or
identification include where you have witnessed or were near where a serious crime occurred and may be able to assist in its investigation.
It also includes situations in which:
- you are pulled over whilst driving a car or riding a motorbike,
- you are a minor and have alcohol in public place,
- you are suspected of committing an offence on a train or related railway property,
- police suspect that an Apprehended Violence Order has been made against you,
- police intend to issue you with a ‘move on’ direction (essentially an order to leave a public place), or
- you are being arrested or fined.
If police request your identification details, you can request that they provide you with the reason for doing so.
When can police arrest me?
Police officers can arrest you, without a warrant, if they suspect on reasonable grounds that you committed or have committed an offence.
An arrest is also required to be ‘reasonably necessary’. Police officers can choose to charge someone without arresting them, by issuing a ‘field court attendance notice’ (essentially a yellow slip of paper outlining your details, the court date/location, and charge) after an alleged incident.
An arrest will be considered reasonably necessary, where the police officer is satisfied of this for any one or more of the following reasons:
- To stop you from committing or repeating the offence or another,
- To prevent you from fleeing from police or the location,
- To enable inquires to establish your identity (in circumstances where this cannot be readily established or where an officer suspects on reasonable grounds that you provided false identity information),
- To ensure you appear before a court in relation to the alleged offence,
- To obtain property in your possession related to the alleged offence,
- To preserve evidence of the offence or prevent fabrication of evidence,
- To prevent any harassment or interference with witnesses,
- To protect the safety and welfare of any person,
- The nature and seriousness of the alleged offence.
If you are arrested, police should tell you that you are under arrest and why you are being arrested, in addition to your rights (i.e., your right to silence). They should also provide you with their official
details including surname and rank, as well as an opportunity to speak to a lawyer.
Can police search me?
Police officers can stop, search, and detain you, without a warrant, if they suspect on reasonable grounds that you have anything:
- stolen or otherwise unlawfully obtained,
- that has been or is intended to be used to commit a crime or in connection with a crime,
- classified as a ‘dangerous article’ that is being or was used in or in connection with the commission of a relevant offence (examples include prohibited weapons, firearms, spear guns, detonators),
- classified as a prohibited drug or plant (examples include cannabis, cocaine, ketamine, ecstasy).
Officers are allowed to seize and detain any of the outlined items which may be discovered during a
search. There are two main types of searches that an officer may utilise – a general (otherwise known as ‘frisk’) or a strip search.
During a general search, a police officer may quickly run their hands over your outer clothing, as well as require you to remove your coat or jacket and any gloves, shoes, socks, and/or hat.
They will be able to examine anything in your possession and pass an electronic metal detection device over or near your outer clothing or anything removed from you.
In comparison, a strip search is far more invasive and can only be performed where police suspect on reasonable grounds that it is necessary, and the circumstances are ‘serious and urgent’.
This will depend upon the facts of the situation, and officers are required to provide their reasons for characterising it as necessary within serious and urgent circumstances.
However, the circumstance being ‘serious and urgent’ is not required where the search is conducted in a police station or other place of detention.
Strip searches involve the removal of all of a person’s clothes.
Police officers are required to conduct such a search in a private area which is not in the presence or view of a person who is of the opposite sex (to the person being searched) or anyone whose presence is not necessary for the purposes of the search, as far as this is reasonably practicable.
A strip search must not involve a search of a person’s body cavities or examination of the body by touch.
It should also not involve removal of more clothes than the person conducting the search believes on reasonable grounds to be reasonably necessary.
This article provides an overview of your rights, however it is always important to speak to a criminal lawyer for further advice.
