NSW police have extensive powers when they choose to arrest someone, but the arrested person also has certain rights that they are entitled to.
If you are under arrest in NSW and police don’t act in accordance with these rights, you could have the charges against you dropped, and in some situations, be able to file a complaint against police.
Arrest rights in NSW
If you are arrested in NSW you are entitled:
- To remain silent during official questioning. However, since 1st September 2013 that right has been diluted – see our blog of 18/08/12 which has now become law. The new law says that if you are under ‘official questioning’ eg at the police station, and are suspected of a ‘serious indictable offence’ and have a lawyer present, your failure to answer questions may be used against you in court to prove that you are guilty of the offence.
- To call a lawyer and a friend or relative when you are arrested.
- To know that you are being arrested and the reason for your arrest.
- To have an interpreter present during any questioning if required.
- To have a support person present during questioning if you are under the age of 18 or you have a physical or intellectual disability.
- To be informed of your rights when you arrive at the police station.
- To contact a consulate or embassy if you are a foreign national.
- To receive water and food and have access to bathroom facilities.
Police are not allowed to hold you in custody for an unlimited period of time without formally charging you.
Unless they have a specific warrant, police are only allowed to hold you for up to four hours before they have to either formally charge you or release you.
If they have obtained a specific warrant, police are allowed to keep you in custody for up to eight hours, but no longer.
What should I do if my rights have been violated?
If you believe that police have not provided you with your basic rights while under arrest in NSW, the first step is to speak to a criminal lawyer about the situation and they can advise you what to do next.
Your lawyer may suggest that they write to the police station involved with your arrest and request that any charges against you be withdrawn, as well as investigate the conduct of the officers involved.
In many cases your lawyer will suggest that you make a formal complaint to the NSW Ombudsman.
The NSW Ombudsman is an organisation that is responsible for overseeing the integrity of a number of state-run bodies, including the NSW Police Force, local councillors and community service providers.
How do I make an official complaint?
You can complain to the NSW Ombudsman by filling out an online complaints form. Make sure you include as much information as possible about the incident, including dates, times and the names of the officers involved.
If there were any witnesses present who could support your case, don’t forget to provide their details as well.
If you have any evidence such as documentation, photographs or other evidence which could be useful, make sure it is included with your complaint.
What will happen after I make a complaint?
After you have lodged an official complaint, the NSW Ombudsman will assess the information and decide whether police can offer a reasonable explanation for their actions, or to proceed with an investigation.
You will be kept up to date with the progress of any investigation, and advised of the outcome.
If you have been placed under arrest in NSW and believe that police have not acted according to their obligations, make sure you address the issue and talk to your defence lawyer.