What to do if you’re arrested.
It’s a fact of life in Australia that Police are the law enforcement organisation to provide a safe, secure and orderly society. As Private Investigators, we on occasion work closely with police. Many files where we obtain instructions from a private citizen may end up in the hands of Police, depending on what information we are able to obtain.
For example, a client was arrested and charged with an offence they are adamant they did not commit. This client was unable to recall exactly where they were at the time of the alleged offence. Our team was able to assist by tracing our clients whereabouts over the time period in question, proving not just that they were not involved in the alleged offence, but they were in fact over 1,500 kilometres away at the time. Our evidence was presented to Police who then dropped charges as they knew there was no way they could secure a conviction against such compelling evidence.
On another file, an individual asked us to follow her ex-partner for the weekend whilst he had custody of their son. Video evidence was obtained of the ex-partner driving whilst drinking alcohol and driving in an erratic manner with the child unsecured in the vehicle. Due to fear for stage safety of the child passenger, and the general public, we immediately contacted Police who attended and spoke with the ex-partner. He denied our allegations, however after handing the clear video footage to the Police, he was charged and later pled “guilty” in court.
Whether your dealings with Police have been positive or negative, we believe Police play a vital role in our society. We always treat Police with respect and encourage you to do the same.
A Police Officer can arrest you when they:
Reasonably believe you have broken a law.
Have a warrant for your arrest.
Know you are a risk to a family member.
You are not free to leave. The Police Officer must tell you that you are under arrest. They do not have to do this if it is not possible for them to tell you, for example, you are running away from them.
You must go with the Police Officer if you are arrested.
The Police can charge you with ‘resisting arrest’ if you try to stop them from arresting you.
The Police Officer can also use reasonable force to arrest you if you refuse to accept your arrest. Reasonable force means using enough physical force to arrest you, and no more. The Police Officer can only do this if they had the right to arrest you in the first place.
You may make a complaint if the Police Officer uses excessive force to arrest you or tries to arrest you no reason.
If you're not sure ask the Police Officer ‘Am I under arrest?’ and ‘Why am I under arrest?’. These questions are very reasonable at such time. You do not have to go with the Police Officer if you are not under arrest.
If the Police want you to take a breath or drug test at the Police Station, you are not actually under arrest. Refusing to co-operate however can result in a large range of other charges.
After arrest, the police will take you into custody. This means the Police Officer may take you to a police station, custody centre or the police cells at court. You may have to travel in a police vehicle to get there. The Police Officer may choose to handcuff you.
While you are in custody, the Police may:
Ask you for your name and address.
Ask you to give a statement.
Ask to photograph you.
Charge you and give you bail.
You have the right to make two phone calls, one to a lawyer AND one to a friend or relative.
The police must give you a private space to use the phone, where they cannot hear you.
The Police Officer may not let you call anyone if:
They brought you into custody for a drink driving or drug driving matter.
The police officer reasonably believes the phone call may:
Help another person involved in the offence get away.
Put other people in danger.
Time held in custody
The Police can only keep you in custody for a reasonable time before they charge you. The law does not specify what a reasonable time is. This depends on the seriousness of the offence and how long it takes the Police to interview you.
When you think the Police have kept you in custody for too long:
Ask when they are going to charge you or release you.
Ask to phone a lawyer.
Make a complaint later.
Your personal property
The Police will take your personal property if they are holding you in a Police cell. They must list all of your property on a ‘property sheet’. They will then ask you to sign the sheet to agree with them about what property has been taken.
The Police must give your property back to you when they release you from custody. They do not have to do this if they have kept your property as evidence or destroyed it.
Together with your knowledge of your rights, you attitude is of vital importance when dealing with Police. Your own co-operation with be noted by Police. Showing humility and respect will likely keep you from being dealt with harshly. Always remember, Police are human, like you and I. They may make mistakes, they have emotions and most that we have worked with will treat you as you treat them. If you’re aggressive, evasive and abusive, your behaviour will be counted against you.
Always remember, they are doing their job and without them we would have a lawless and hopeless society.