After the

arrest

How long can you be detained at the police station after arrest?

If you have been arrested on suspicion of an offence, the police are allowed to detain you for a reasonable time to carry out investigations, for example, to interview you, if you agree to being interviewed. This period cannot normally be more than six hours (unless an extension is granted by a detention warrant). At the end of this period, the police must either charge you or release you without charge.

It is important to note, however, that the six-hour period can be subject to a number of “time outs” (for example, using the bathroom, rest, taking refreshments, obtaining medical attention, or to complete the charging process etc).

Do you have to answer questions a police officer asks you?

In most situations, you do not have to answer any police questions. In some situations, you may, however, be required to give your name and address. If police ask for these details, it is best to provide them with your name and address or photo ID.

If you have been involved in some traffic-related offences, you may also be required to provide police with further details. If you are unsure whether you need to provide any information, you should obtain legal advice. The police do not, however, have the power to stop or detain you just to ask questions.

If possible, particularly if you are unsure about your rights, do not answer questions or sign statements until you receive legal advice. Sometimes police will ask you to go “on record” to electronically record your refusal to answer questions (i.e. to get a recording of you saying that you decline to be interviewed). This in itself is an interview and you do not have to do it.

It is very important to understand that there is no such thing as an “off the record” or informal discussion with a police officer. Anything you say to a police officer may later be used as evidence in court.

If you are under 18 years of age, there must be a responsible adult, such as a parent, guardian, youth worker or solicitor present when you speak to police. If not, whatever you say will not be admissible against you in court.

Aboriginal people, Torres Strait Islanders, and people with disabilities may also be entitled to a support person during a police interview.

Can a failure to answer questions be used against you?

At all stages of the legal process, you have a right to silence. In some cases, however, if you are over 18 years of age and choose not to provide information regarding your involvement (or lack of) in an alleged serious indictable offence (an offence with a maximum penalty of five years or more), your silence may be later used as an unfavourable inference against you.

If you decide to introduce new information for the first time at a later date during the legal proceedings, the court may question why you did not mention the new information at the time you were first asked. The police, however, have to give you a special caution, advising that you do not have to answer questions, but that your silence could be used against you in court at a later date. Your lawyer must be present when police are giving the special caution. Your lawyer may need to decide whether it is in your best interests for them to be physically present at the police station with you.

If you are under 18 years of age, there must be a responsible adult, such as a parent, guardian, youth worker or solicitor present when you speak to the police.

Do you have to submit to being fingerprinted and photographed?

If you are under arrest, you generally have to submit to having your fingerprints, palm prints and photograph taken. However, you can ask for your fingerprints and palm prints to be destroyed if you are subsequently found not guilty of the charge.

The police need a court order to fingerprint or photograph a child under 14 years of age.

When can a court refuse bail?

A Court Attendance Notice can require you to attend court. When you attend court, the court will then consider whether to release you from custody or keep you in custody. This is called a decision to release you “on bail” or to “refuse bail”.

A court or other authorised bail authority, such as a police officer or an authorised justice, must refuse bail if they are satisfied there is an unacceptable risk. An unacceptable risk means the unacceptable risk that the accused, if released from custody, will fail to appear at any proceedings, commit a serious offence, endanger the safety of individuals or society, or interfere with the witnesses or evidence. If there is no unacceptable risk, the bail authority must grant bail, release the person without bail, or dispense with bail.

Some things a court will take into account when considering whether there is an unacceptable risk include:

  • Your criminal history
  • The seriousness of the offence
  • Any history of violence
  • Whether you have previously committed offences while on bail
  • Any special needs you might have
  • The need for you to be free for any lawful purpose, such as employment

What happens if you do not comply with your bail conditions?

If you do not comply with your bail conditions a police officer may choose to take no action, warn you about the breach, give you a notice to appear at court, or arrest you and bring you before a court. The court will then reconsider your bail by either releasing you on the same conditions as your original bail, varying your bail conditions, or refusing bail altogether.

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