Arrest

Queensland Law - Arrest - I've been Arrested, What are my Rights? - Lawyer / Solicitor Article.

Criminal Law Article written by Bill Potts (Queensland criminal defence lawyer who is experienced in the law regarding Rights and Obligations of Individuals during Police Investigations).

Arrest - I've been Arrested, What are my Rights? - Do the Police need Warrant to Arrest Me? - Lawyer / Solicitor Article

The Police often do not need a warrant to arrest you and it is not very difficult for the Police to show that they have legitimate reasons to arrest you. If the Police place you under arrest, it is in you interest to assume that the police do have the power to arrest you and go with them quietly and calmly.  Otherwise you may end up with further charges (such as obstructing police) and remember you can always fight the legitimacy of the arrest later if need be.

The law that governs Arrest in Queensland is the Police Powers and Responsibilities Act Queensland.

Sections 369 to 371 of the Police Powers and Responsibility Act Queensland makes provision for the Police to make an application for a Warrant for an Arrest.  These sections state that the Police are entitled to obtain a Warrant for an arrest from a Justice where there are reasonable grounds for suspecting:

1. that the person has committed the offence; OR

2. for an offence other than an indictable offence, if proceedings by way of Complaint and Summons or Notice to Appear would be ineffective.

However as noted above, the Police are not always required to obtain a Warrant prior to arresting you and sections 365 to 368 of the Police Powers and Responsibility Act Queensland make provision for this.

Section 365(1) states that the Police may arrest an adult person without a warrant if the Police reasonably suspect that that person has committed or is committing an offence and it is reasonably necessary to arrest them to:

1. prevent the continuation or repetition of an offence;

2. prevent the commission of another offence;

3. make inquiries to establish the person's identity;

4. ensure the person's appearance before a court;

5. obtain or preserve evidence relating to the offence;

6. prevent the harassment of, or interference with, a person who may be required to give evidence relating to the offence;

7. prevent the fabrication of evidence;

8. preserve the safety or welfare of any person, including the person arrested;

9. prevent a person fleeing from a police officer or the location of an offence;

10. because the offence is an offence of assault/obstruct a police officer or contravening a direction of a police officer;

11. because the offence is an breach of a Domestic Violence Order;

12. because of the nature and seriousness of the offence; OR

13. because the offence is-

(a) an offence of failing to comply with a direction to leave a prison; or

(b) an offence which is a security offence in a prison.

Sections 365 to 371 state that the Police may also arrest an adult person without a warrant:

1. for the purpose of questioning that person about the commission of an indictable offence;

2. if the person is unlawfully at large;

3. if the person as escaped detention, prison or police custody;

4. if the person has left the court without signing a bail undertaking and complying with any conditions where required;

5. where the Police reasonably suspect you have, are or will breach your bail;

6. if the surety for the person's bail states they are no longer willing to be the surety or if the surety dies;

7. where the Police reasonably suspect the person has been interfering with witnesses;

8. where the Police reasonably suspect the security of bail is no longer sufficient; OR

9. where the Police reasonably suspect that the person will otherwise fail to appear at court when required.

Further, section 365(3) of the Police Powers and Responsibilities Act Queensland and section 13 of the Juvenile Justice Act Queensland, allow Police to arrest a minor without a warrant. These sections allow the Police to arrest a child person (under 17 years of age) without a warrant if the Police reasonably suspect the child has committed or is committing an offence and:

1. the arrest is necessary to prevent a continuation or a repetition of the offence or the commission of another offence;

2. the arrest is necessary to obtain or preserve, or prevent concealment, loss or destruction of, evidence relating to the offence;

3. the arrest is necessary to prevent the fabrication of evidence;

4. the arrest is necessary to ensure the child's appearance before a court;

5. the child is an adult; OR

6. the child is unlawfully at large or contravening section 278 by escaping detention or police custody.

Arrest - I've been Arrested, What are my Rights? - Can the Police Charge me without Arresting me? - Lawyer / Solicitor Article

Yes. Under section 368 of the Police Powers and Responsibility Act Queensland, the Police can arrest you without charge by either giving you a Notice to Appear in person or by mailing out a Complaint and Summons. Both of these documents will have a court date on them which you must appear at, as failure to do so can result in the court issuing a warrant for your arrest.

A Notice to Appear will most often be given to you for minor offences without arrest, such as traffic offences and public nuisance offences. However, sometimes the Police will arrest you and then let you go with a Notice to Appear or later send out a Complaint and Summons.

Arrest - I've been Arrested, What are my Rights? - Do I have to Talk? - The Right to Remain Silent -  Lawyer / Solicitor Article

In general you have the right to remain silent.  This means you may refuse to answer questions of the Police, even where you originally agreed to provide a statement or participate in an interview. However, there are some questions that the Police have the right to ask you and which place an obligation upon you to answer. 

For more information on your right to silence, obligation to provide certain information, whether you should participate in an interview and your rights during an interview, click here.

Arrest - I've been Arrested, What are my Rights? - Other Rights and Obligations - Lawyer / Solicitor Article

If you are arrested, you have a number of rights but also have some obligations.

First, if you are placed under arrest, you have no choice but to go with the Police.  If you refuse to comply, the Police can use as much force as reasonably necessary to make you comply pursuant to section 651 of the Police Powers and Responsibilities Act Queensland. 

Further, refusal to comply will be construed as resisting arrest and this in itself is an offence.  So even if you are innocent of the charge you are being arrested for, it is important to comply to police to avoid being charged with obstructing Police.

As soon as practicable after placing you under arrest, the Police are obligated to tell you that you are under arrest and what you what kind of offence you are under arrest for.  It is your right to know this under section 391 of the Police Powers and Responsibilities Act Queensland.  Further, under section 431 of the Police Powers and Responsibilities Act Queensland, the Police must also caution you on your rights.

Section 418 of the Police Powers and Responsibilities Act Queensland states that if the offence is indictable you have the right to contact a lawyer, a relative or a friend and the Police must provide access for you to make such contact.  In respect of minor offences, you may also request to contact a lawyer, relative or friend, and the Police are obligated to provide access to contact a lawyer. 

An indictable offence is a serious offence that will be heard in a higher court such as charges in respect of possession of medium to large quantities of drugs, trafficking, possessing weapons, assault causing bodily harm, sexual assault, rape, murder, grievous bodily harm, fraud etc.  Where as minor offences will be heard in the Magistrates Court, such as trafficking offences, petty thefts, public nuisance, possession of small amounts of drugs (personal use) etc. 

If you have been charged with an offence, you also have the right to be taken to court as soon as reasonably practicable and to ask the Police to release you on bail if you do not go to court straight away, see section 393 of the Police Powers and Responsibilities Act Queensland.  Further, under section 391 of the Police Powers and Responsibilities Act Queensland, the Police are also obligated to provide you the details of the arresting officer prior to you leaving in writing, including their name, rank and station

Other than this, you have the rights that any human being has in any situation, including the right to medical attention (where necessary) and to reasonable refreshments, facilities and treatment. 

Arrest - I've been Arrested, What are my Rights? - How long can the Police keep me Under Arrest for? - Lawyer / Solicitor Article

If you been charged!

As noted above, if you are charged with an offence the Police may release you on bail from the watchouse, otherwise they must take you to court as soon as reasonably practical.  If the Police take you before the court, they must release you if the court grants bail.  Click here to learn more about bail.

If the court refuses bail, you will be held in custody until such time as:

(c) you are granted bail;

(d) the charge against you is dropped;

(e) you are found not guilty of the charge; or

(f) you are sentenced to some other penalty than imprisonment.

If you are held in custody, you will usually be transferred from the watchouse to the nearest remand centre within a few days. You will generally not be allowed visitors other than a lawyer at the watchouse, however you may have someone drop off a change of clothes for you.  Once you are in the remand centre, you may have visitors during visiting hours.

If you have not been charged!

If you are arrested for the purpose of questioning about an indictable offence without any charge, the Police may hold you for a reasonable time in order to conduct their investigation.

Generally, under section 403 of the Police Powers and Responsibilities Act Queensland, the Police may hold you up to 8 hours but may only question you for a maximum of 4 hours out of the 8 hours.  But the Police may apply to a Magistrate to keep you for longer under section 405 of the Police Powers and Responsibilities Act Queensland, up to a maximum of 12 hours.  The Police are obligated to let you go if after completing their questioning, they still do not have enough evidence to charge you.  Remember that you have the right to silence.  For more on your rights regarding Police questioning and interviews, click here.

Arrest - I've been Arrested, What are my Rights? - Do I have to give Identifying Particulars - Lawyer / Solicitor Article

In most cases you will be obligated to provide indentifying particulars by allowing police to take photographs, fingerprints and DNA where you are given a Notice to do so.  Click here to learn more about Identification.

Arrest - I've been Arrested, What are my Rights? - What other Powers do the Police have while holding me Under Arrest? - Lawyer / Solicitor Article

In addition to detaining you and questioning you, the Police have the power to:

search you and your property on your person (i.e. your clothes, shoes, bag, phone, diary);

seize property from you, however if they do, they are obligated to provide you with a receipt detailing the property they have taken;

take your fingerprints and photographs (without the issuing the abovementioned notice);

take DNA samples for indictable offences (without the issuing the abovementioned notice);

release you:

(a) without charge or a court date to attend;

(b) after charging and having you sign a bail undertaking to attend court on a specified future date;

(c) on cash bail*;

(d) after issuing you a Notice to Appear at court on a specified future date.

refuse to give you bail and keep you locked up until you go to court for a bail hearing.

*Cash bail requires you pay a specified amount to the Police before you are released with a Notice to Appear at court date the next day, but the only consequence of failing to attend court is that you don't get your money back. No warrant will be issued if you fail to appear and no conviction will be recorded, so really the Police are just letting you go with a small monetary penalty.  This is often used for public nuisance or drunk and disorderly offences.