What are my rights?
The rights of the police in NSW are more extensive than in many other jurisdictions, and they are constantly evolving and increasing.
At Sydney Criminal Lawyers®, we believe it’s important for people to be aware of their rights.
Here is a basic guide to your rights:
What are my rights when I am approached by the police?
If police approach you, there are certain things they can ask you to do, and others that you have the right to refuse to do.
Can I refuse to give police my name and address?
Generally you do not have to give police your name and address, except under certain circumstances, including:
- If police have genuine reason to believe you witnessed a serious crime, or if you own or were driving a car which police reasonably suspect was used in a crime
- If you are under 18, and police have reason to suspect you of consuming or carrying alcohol in public
- If you are driving a car and are suspected of a traffic offence, or in the instance that you refuse to undergo a breath test
- If you have been arrested
- If you have fines that you haven’t paid, and police are attempting to serve you with a ‘fine default warrant’.
For more detailed advice about your rights, you can call Sydney Criminal Lawyers® anytime for a free first appointment with an experienced drug lawyer.
If the police approach me, can I refuse to answer their questions?
In the majority of circumstances, you don’t have to answer police questions but there are a number of situations when you are legally obliged to provide them with information.
Examples of this include:
- You have to provide your name and address to police when you are driving in certain situations (mentioned above) under the Traffic Act. In addition, you are required to provide information about any other vehicle believed to have been involved.
- Under the National Parks and Wildlife Act you have to answer certain questions asked by rangers or park officers
- As part of the Local Government Act, if you are believed to have breached council by-laws and regulations you are obliged to answer questions by police or council officers
There are other instances under the Meat Industry Act, and for specific terrorism related offences, where you have to answer police questions.
In what situations can the police ask me to stop doing something, or tell me to move on?
There are certain behaviours which are considered unlawful.
If you are doing those police can ask you to move on.
These behaviours include:
- Intimidating or harassing people
- Possessing, supplying or receiving drugs (or having the intention to do so)
- Obstructing traffic or people
- Behaving in a manner that could cause other people to feel afraid, even if there aren’t any people there
Police are allowed to give you a reasonable request to move on or stop doing something if you are in a public place or a school. The request must be reasonable and aimed at stopping the behaviour.
Public places can include car parks, trains, train stations, footpaths, roads, youth centres, beaches, reserves, parks, some shops, shopping centres, entertainment complexes and cinemas. They don’t include peoples’ private homes or back yards.
There are four things the police have to do before they give you a reasonable direction:
- Unless they are in uniform, they must show you evidence that they are police officers
- Give you their name and police station
- Inform you of the reason they are giving the direction
- Let you know that if you disobey you may be committing an offence
Police must repeat the direction once before they are allowed to charge you or give you an on the spot fine.
If you refuse to pay the fine, or if you are charged the matter will go to court and the magistrate will decide whether or not the police carried out the four steps above, and whether the direction was reasonable.
If you are charged with failing to comply with a police direction, you should get advice from experienced criminal defence lawyers who can advise you about whether the police direction was lawful.
If we believe it was unlawful, we can write to senior police and request that they withdraw the charge or, if they refuse, argue the case in court.
If the magistrate agrees that the direction was unlawful, we can request an order for police to pay our client’s legal costs.
What do I do if the direction is not fair or reasonable?
There are two options you can take if you don’t believe the direction was fair or reasonable:
- Obey the direction and lodge a formal complaint with the NSW ombudsman later
- Refuse to obey the direction.
If you are fined and elect not to pay the fine you can defend yourself in court or get a criminal lawyer to defend you.
The magistrate will then decide whether the direction was reasonable, and whether the police followed the necessary procedures above.
If you have paid for a criminal lawyer and the magistrate finds that the police direction was unlawful, your lawyer can ask the magistrate to order police to pay your legal costs.
What if I’m on private property?
Police have less power to search you when you’re on private property than when you’re on public property.
Private property is defined as property that is owned by a private person, or company, instead of by the government or the council.
The definition of private property includes homes and yards, shopping centres, businesses and most shops.
Some places, such as entertainment complexes are considered both private and public.
If you are on private property, and the owner or occupier tells you to leave, refusing to go can lead to police charging you with trespassing, or remaining on inclosed lands.
Inclosed lands include:
- The inside of buildings
- Other areas of buildings for example paths, walls, steps or fences
- Anywhere else that is inside the boundaries of property or land
If you have been searched on private property, the search may be illegal and any evidence found during the search (eg drugs) may be inadmissible in court.
If you feel you may have been searched illegally, you should get advice from an experienced criminal lawyer who can take steps to have your case dropped.
Am I allowed to have someone with me when police question me?
As long as your friends or family are not interfering with the police, and you have not been arrested, they can remain with you while you are questioned.
If you have been arrested and are taken to the police station, your friends or family won’t be able to come into the charge area unless you are a minor, in which case one adult can be with you.
If arrested, you have a right to contact a lawyer to be with you at the police station.
Your lawyer will be able to find out about the police allegations before you are asked whether you wish to participate in an interview.
Your lawyer will then be able to discuss the matter with you and advise you about whether you should participate in an interview.
Your lawyer can also negotiate with police to give you ‘bail’; which means to release you from custody until you go to court.
If I haven’t been arrested, do I still have to go with police?
You are under no obligation to go with the police anywhere, even the police station if you have not been arrested.
It is your decision whether or not you choose to accompany police anywhere, and if you refuse you will not be committing an offence.
In fact, in some ways it’s better if police arrest you because once that’s done, you have certain ‘arrest rights’ including a right to a lawyer.
If you are arrested, police must also ensure they either charge you with an offence or release you from custody within a certain timeframe – usually 4 hours.
For more detailed advice about your rights or to arrange for an experienced criminal defence lawyer to call police on your behalf or attend a police interview, call Sydney Criminal Lawyers® 24/7 on (02) 9261 8881.
If I’m not suspected of a crime can I still be arrested for questioning?
Unless you have been suspected of a crime, you cannot be arrested even if police believe you may have information.
Although police can request that you attend an interview, you don’t have to go, even if they suspect you may have information about a crime.
The big exception is the recently created offence of ‘concealing a serious indictable offence’ under section 316 of the Crimes Act 1900 (NSW).
That section requires persons who have ‘information’ of ‘material assistance’ about any offence which would attract a maximum penalty of 5 years imprisonment or more to ‘bring that information to the attention of a member of the police force or other appropriate authority’.
The maximum penalty for failing to disclose the information is 2 years imprisonment.
Otherwise, if someone else is charged with any offence, and you are issued with a court document known as a subpoena, you can be required to attend court to give evidence, or to provide certain documents if you have them in your possession.
If police question me after being arrested, do I have to answer?
In most situations, no, you don’t have to.
You need to provide police with your name, address and date of birth, and it is advisable that you don’t answer any further questions until you have spoken with a lawyer.
Exercising your right to silence can give you time to calm down, and make sure that you don’t say anything in the moment that can be used against you later.
It is particularly important to exercise your right to silence in drug cases because you might otherwise give police information which they can use to charge you with a more serious drug offence.
For example, if you are suspected of ‘drug possession’ and tell police that you intended to share the drugs with your friends, you could be charged with ‘drug supply’ which is a more serious offence that carries harsher penalties.
There are a few offences where the right to silence has been reduced, mainly terrorism related offences, where you are required to answer police questions and co-operate fully, or risk being guilty of a serious offence.
Otherwise, it’s best to exercise your right to silence and get legal advice as soon as you can.
What is an ERISP?
An ERISP is an electronically recorded interview of a suspect; in other words a police interview of a suspect.
It can be recorded on videotape or audio tape (or both) and provides a record of your police interview.
In the event that you are asked to sit for an ERISP, it is important not to answer any questions or provide any information other than your name, address and date of birth until you have spoken with a criminal lawyer.
Additionally, avoid providing any written statements or signing documents apart from your bail form.
The best protection is to get advice from an experienced criminal lawyer before agreeing to any form of interview, or even answering police questions.
This very important in drug cases because giving information about what you intended to do with any drugs could lead to more serious charges, such as ‘supply prohibited drug’ or even ‘ongoing supply’.
Similarly, it could create a case for police when there isn’t enough evidence; for example, if police find drugs in a ‘common area’ such as a lounge room or in the boot of a car.
You can call Sydney Criminal Lawyers® 24/7 to arrange a free first appointment when an experienced drug lawyer can advise you about your case and, if necessary, speak with police on your behalf or arrange to attend the police station with you.
Can I refuse to let police take my fingerprints, photo or DNA after arrest?
If it is necessary for police to take your fingerprints and a photograph for identification purposes, or you have been charged with a criminal offence (including a dryg offence), and you are over 14, you can’t refuse.
If you are under 14, police need to obtain a court order first, and they are not allowed to take fingerprints, DNA or a photo without your permission – if you haven’t been arrested.
Police are not allowed to take your DNA without your permission unless they have first obtained a court order.
They can only apply for a court order if you have been charged with a crime, or if they suspect you of committing a crime.
DNA is generally extracted from a hair or saliva sample, and once the police have successfully obtained a court order they are allowed to use reasonable force to collect it.
For advice about whether you need to give your DNA, call Sydney Criminal Lawyers® anytime to arrange a free conference with an experienced drug defence lawyer.
Can I refuse to be in a police identification parade?
A police line-up is where a complainant (the alleged victim) is asked to identify a suspect from a line of several people.
Those people are required to be similar in appearance to the description given by the complainant.
You can refuse to participate in a police identification parade or line up.
If you don’t participate, police may ask the complainant to identify the suspects from photos, including yours.
There are some circumstances where it may benefit you to agree to a line-up, and you should always seek advice from your criminal lawyer before participating in a line-up.
For accurate advice about whether you should participate in a line-up, or to have an experienced criminal lawyer deal with police on your behalf, contact Sydney Criminal Lawyers® anytime for a free consultation.
Under what circumstances can police search my body, bag or vehicle?
There are a number of circumstances where it is legal for police to search your car, your belongings or your person, including:
- They have arrested you
- You have agreed to the search
- They have reason to suspect you have illegal drugs in your car or on your person
- There is reason to believe you may be involved in terrorist related activities
- They have reason to suspect that you are carrying stolen goods, or items that have been used or are about to be used in a crime
- The police have obtained a search warrant for a building you are in, and they have reason to suspect that you have an item named in the warrant about your person
- The police have reason to suspect that you have a knife or other weapon on you or in your school locker or bag
- You have been detained for being drunk in public
If police want to search you, they must give a reason as well as giving you their name, police station and badge number if you ask.
If you refuse to let police search you after they provide you with the above information, they can arrest you and search you by force.
Refusing a search can lead to a fine and a court appearance.
During the search, police will take anything they find that they have reason to believe might be evidence of a crime.
If the police refused to give you the above information, or didn’t follow the rules for the particular type of search they undertook, you might be able to lodge a formal complaint.
If police conduct an illegal search and find drugs or other items, your criminal lawyer can ask senior police to drop the case on that basis, and advise police that they may be liable to pay your legal costs if they refuse.
If police don’t drop the case, your criminal lawyer can argue for the case to be ‘thrown out of court’ due to the illegal search and for police to pay your legal costs.
What are the types of body searches police can undertake?
There are 3 main types of body searches that police can undertake.
Different rules apply to each type of search.
If you are searched illegally and drugs are found, the case against you can be ‘dropped’ or ‘thrown out of court’ due to illegal search.
For accurate advice about whether you were searched illegally, call Sydney Criminal Lawyers® anytime for a free first appointment.
This is the most common type of police search, and the procedure is as follows:
- You empty out your bags and pockets
- Police search through your possessions and bags
- Police give you a frisk or pat down search by running their hands over your body, as well as getting you to run your hands through your hair
- In some cases, they use a metal detector to search your body and possessions
You should always ask if you are able to have someone else present during your search. If you are under 18, it is your right, and if you are over 18, it gives you a witness if you want to make a later complaint.
A strip search is where you remove most or all of your clothing.
Police can strip search you if you have been arrested and they have a valid reason to suspect that you have prohibited or dangerous items, like weapons or drugs, on your person.
The police must only strip search you if they have a real reason to believe you may be concealing dangerous items, and they must not touch you during the search.
They can only conduct strip searches in private, and females must only be searched by other females.
Internal Body Cavity Search
An internal body cavity search involves searching your rectum and/or vagina to find hidden prohibited items inside your body cavity.
This is the most invasive type of search, and can only be undertaken where police have a real reason to suspect you may be concealing prohibited items.
An internal body cavity search has to be approved by a police sergeant or higher-ranking officer, and must be
undertaken by a doctor.
Under what circumstances can police search my premises?
Police are not allowed to enter your home or business premises except in certain situations.
If they do and find drugs, your drug defence lawyer can write to senior police requesting that the charge be withdrawn and warn that, if it isn’t withdrawn, an application will later be made for police to pay your legal costs.
Police can search your premises in the following situations:
- With the occupier’s consent
- To prevent an offence occurring, such as domestic violence or breach of the peace
- If they are there to arrest someone
- In order to search for something
They are only allowed to search your premises under certain conditions, which are:
- With your consent
- If they are there to arrest someone under which circumstances they are only allowed to search the person they are arresting and their belongings.
- If they have reason to suspect there are terrorist related activities on the premises
- When they have obtained a search warrant
Search warrants are obtained from a magistrate or justice of the peace, and cannot be issued without a reason to suspect that the premises contain evidence of a crime.
Search warrants can only be used once, before the expiry date and in the daytime -unless specified otherwise.
Make sure police give you a receipt for anything they take.
What is an occupier’s notice?
Before they conduct a search at your premises, police must give you notice in writing, known as an occupier’s notice.
This should contain:
- What the police are searching for
- The address of the premises they are searching
- The expiry date for the search warrant
- Any restrictions as to what areas they can search and when.
If police search your premises without giving you an occupier’s notice or if your criminal lawyer finds that the notice was invalid for any reason, and drugs or other illegal items are found, police may later have to ‘drop’ the case or the charges may be ‘dismissed’ in court and police can be ordered to pay your legal costs.
What can Sydney Criminal Lawyers® do to help?
Sydney Criminal Lawyers® are Accredited Criminal Lawyers, which we have been certified by the Law Society of NSW as experts in criminal law.
Our drug lawyers can help you if you are called for a police interview, or if you have been arrested, by:
- Explaining any charges you are facing
- Informing you of your options
- Letting you know your rights
- Representing you in court if necessary
- Applying for bail for you if you have been refused by police
We offer a free first appointment with an experienced drug lawyer and ‘fixed fees’ for small drug possession and drug supply cases.
We have a very high success rate in getting drug cases dropped and winning drug cases in court.
Contact Sydney Criminal Lawyers® today to find out more.