Australia: I was approached by the police. What are my rights in New South Wales?

Last Updated: 23 January 2017
Article by Fouad Awada

There are certain directions from police officers in NSW which must be followed by all citizens. However, citizens may refuse to carry out certain directions of a police officer. This article identifies rights you may not be aware you have when dealing directly with the police.

"Do I have to give the police my name and address?"

As a general rule, you are not required to give the police your name and address. Also, you are not required to give the police your name and address if you are under the age of 18. However, you must give the police your name and address in the following circumstances:

  • You are driving a car and the police suspect that you have committed a traffic offence
  • You are involved in a car accident
  • You are on public transport
  • You are suspected by police of being a defendant in an Apprehended Violence Order
  • You refuse to undergo a Breath Analysis Test (if suspected of driving under the influence)
  • You are suspected of being a witness to a crime
  • You are under the age of 18 and police hold suspicions that you are carrying alcohol in public
  • Police suspect you of being involved in a crime
  • You have been placed under arrest

"Apart from giving the police my name and address, am I allowed to refuse to answer any further questions?"

Yes. However, a number of exceptions apply. If you are involved in a traffic accident, not only are you legally obliged to inform the police of your name and address, but you must also provide the police investigating the incident with any further information about any other vehicle that may have been involved in the collision.

Secondly, under the National Parks and Wildlife Act 1974, you must answer certain questions asked of you by rangers or park officers. Thirdly, under the Local Government Act 1993, you must further answer questions if you are suspected of breaching any council by-laws or regulations.

The right to remain silent

Should a police officer arrest you, as a general rule you have the right to remain silent. In some instances though, an adverse inference may be drawn against you if you refuse to answer police questions after being arrested. The new law reforms of 2013 in NSW are vested in section 89A of the Evidence Act 1995, which states that an adverse inference may be drawn against you for remaining silent in serious matters only, and that this inference may only be drawn against you after a special caution is given to you in the presence of your lawyer, explaining the general nature and effect of the special caution.

"When being questioned by police, am I allowed to have a support person present?"

A support person generally is a person who offers support to someone charged or arrested by police. This person can be any adult, including a friend, carer, counsellor, or parent. The only person who is unable to act as your support person is someone who may (or will) be giving evidence in your matter.

As a practical note, it must be stressed that a support person (other than your lawyer) should not interfere with police questioning and must not hinder the police from asking you questions relating to the alleged offence.

Your best support person is a criminal lawyer

The best support person for someone charged with a criminal offence is a lawyer. You have the right to request that a lawyer be present with you at the police station. Police must accommodate your request immediately and do not have the right to question you after you have requested that a lawyer be present.

A lawyer will be able to find out exactly what charges (if any) there are against you, as well as the nature of the allegations made. A good lawyer will also be able to negotiate the terms of your bail. In a nutshell, bail is the temporary release of a person charged with a criminal offence.

"If I refuse to allow the police to take my photograph, DNA, or fingerprints after I'm arrested, will I be committing a crime?"

The law states that if you have been arrested and charged with a criminal offence, and you are above the age of 14, you are not entitled to refuse to let the police take your photograph or fingerprints.

Police are required to seek a court order regarding those people under the age of 14. Police do not have the right to take a photograph or fingerprints of someone under the age of 14 unless the person has consented, and unless the person is formally arrested.

Taking your DNA sample

Without your permission or a court order, police are not allowed to take your DNA. A court order may only be sought against you if you are reasonably suspected of being involved in a crime. The procedure adopted by police when taking your DNA sample must be carried out in accordance with the provisions of the Crimes (Forensic Procedure) Act 2000.

"Police want to search me, my bag and my car. Can I stop them?"

In NSW, police have the power to stop and search any person they reasonably suspect of being involved in a criminal offence. The power available to police to perform searches is found in the Law Enforcement (Powers and Responsibilities) Act 2002. There are a number of circumstances in which police can stop and search you, your bag, or your car. Briefly, these are:

  • You are suspected to have committed, or been involved in, a criminal offence
  • You are placed under arrest or placed in custody
  • Police have obtained a search warrant
  • Police reasonably suspect that you may be in possession of a knife or other dangerous implement
  • Police reasonably suspect that you may have on your person (or car) drugs or drug-related paraphernalia
  • You consent to being searched

If police search you, your bag, or your car without reasonable suspicion, any evidence seized from you may be deemed evidence which has been illegally obtained by the police.

Before carrying out a search, police must inform you of their name, police station, rank, and reason for searching you. If you refuse to allow police to search you after receiving this information, police are entitled to arrest you and search you by force.

"What about my mobile phone? Can the police search that too?"

As touched upon above, before police undertake a search, they must have reasonable grounds to do so. Police may only demand to search your phone in the following instances:

  • If they believe or suspect it was stolen
  • If they believe or suspect it was involved in the commission of a criminal offence
  • If they believe or suspect that it contains footage or photographs which may be used as evidence of a crime

What police do not have the right to do

With exception to the above-mentioned grounds for searching your phone, Police do not have the power to:

  • Seize filming or photographic equipment from you
  • Delete images or recordings on your phone
  • Demand that you unlock your phone (without reasonable excuse)
  • Prevent you from filming police or taking photographs

It goes without saying that if police engage in any of the above-mentioned conduct without a reasonable or valid reason to do so, evidence they obtain as a result may be ruled as inadmissible by a court, and the police may be liable for prosecution.

Once police have identified themselves to you, and have stated that they reasonably suspect that you have been involved in a criminal offence, a refusal to cooperate with them may mean that you are committing a criminal offence. If you have been arrested and police request to search your phone, it is best that you speak with a criminal lawyer immediately.

What is a "reasonable suspicion"?

Under the law, a suspicion will be a reasonable suspicion if:

  • It involves less than a reasonable belief but more than a possibility
  • It has a factual basis; and
  • The information and the suspicion were in the police officer's mind at the time of the search.

Know your rights and know the limits of police powers

It is important that as citizens, we are aware of the precise limits of police powers. It is equally important that we are aware of exactly what our rights are when dealing directly with police. To avoid problems with police, remain calm, know your rights and obtain advice from a criminal lawyer as soon as possible.

Fouad Awada
Criminal law
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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