Arrest

This page explains when the Police have the power to make an arrest and what your rights are if you’re arrested.

Police powers of arrest

Use of force in making an arrest

Police questioning after an arrest

Your rights when you’re arrested

Your rights if the Police charge you

 

Police Powers of Arrest

A person can be arrested by the Police either:

  • under a warrant, or
  • without a warrant.

Arrest under a warrant

The courts may issue a warrant to arrest a person for a number of reasons: for example-

  • if you've disappeared (absconded) to avoid court, or are about to, or
  • if you've breached the conditions of your bail, or you didn't appear in court at the time and place stated in the bail documents, or
  • if you've been charged and a summons has been issued, but after reasonable efforts the courts haven't been able to serve the summons on you.

If you’re arrested under a warrant, the Police must show you the warrant as soon as practicable after the arrest if you ask to see it.

Arrest without a warrant

A police officer can arrest you without a warrant if:

  • the officer finds you committing an offence punishable by a prison term, or if there’s good cause to suspect that you’ve done this
  • the officer finds you breaching the peace, or has good cause to suspect that you’ve done this, or
  • the officer has a specific statutory power to arrest you without a warrant.

Most arrests usually happen without a warrant.

Some statutes that create particular offences may restrict police powers to arrest without a warrant for those offences.

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Use of Force in Making an Arrest  

What force can the Police use when making an arrest?

The Police can use reasonable force to overcome force used by a person resisting arrest. The Police should use the least amount of force required in the situation.

What happens if the Police use excessive force?

If the Police use excessive force when arresting you, this may mean that the arrest was unreasonable and that there has been a breach of your rights under the Bill of Rights. The Courts may decide to exclude any evidence that the Police obtained as a result of your arrest.

If you believe the Police have used inappropriate or excessive force against you, you can:

  • make a criminal complaint to the Police – this could result in the officer concerned being charged with assault or some other criminal offence
  • bring a civil action for damages (compensation)
  • complain to the Police and ask them to carry out an internal investigation. This could result in disciplinary charges being laid against the Police officer.
  • complain to the Independent Police Conduct Authority.

Police Questioning after an Arrest

For information about this topic, see Questioning

Your Rights when you’re Arrested

 

Protections under the Bill of Rights for people who’ve been arrested

  • The Police must tell you, at the time of the arrest, why you’re being arrested unless this is impracticable or it’s obvious.
  • You have the right to remain silent and to be told of that right.
  • You have the right to talk to a lawyer without delay and to be told of that right.
  • You must be charged promptly or be released.
  • If you’re not released, you must be brought before a court as soon as possible.
  • You have the right to be treated with humanity and with respect for the inherent dignity of the person.
  • You have the right to be free from arbitrary arrest, and to have the courts decide, without delay, whether your arrest is legal. This is done by applying to the Courts under a writ of habeas corpus. 

What can I do if my rights are breached?

The Bill of Rights doesn’t state exactly what remedies are available for a breach of the Bill of Rights. However, the Courts have developed a number of remedies when dealing with individual cases and deciding what’s appropriate.

If you’re charged with a criminal offence and the Police breached your rights when they searched, arrested or detained you, the court hearing the charges against you may decide to exclude any evidence the Police obtained through breaching your rights. The court may also decide to reduce the sentence you would otherwise have been given, or to order the Police to pay some or all of your legal costs.

It is also possible for the Police officer to face internal disciplinary charges or even criminal charges, or for you to sue the Police for damages (compensation) in a civil case.

For more information about remedies that could be available to you, see Info sheet Bill Of Rights

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Your Rights if the Police Charge you

If you’re charged with a criminal offence, the Bill of Rights says you have the right to:

  • be informed of the charge
  • speak with and give instructions to a lawyer
  • a fair and public hearing by an independent and impartial court
  • be presumed innocent until proven guilty.

For information about the remedies that could be available to you if your rights are breached, see Info sheet Bill Of Rights

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(Updated: July 2013)