Chapter 3: Arrest and questioning

This section deals with:

  • identification and arrest;
  • police questioning;
  • detention for questioning;
  • custody managers;
  • taking forensic samples; and
  • charging.

Identification and arrest

Generally, you can be arrested by a police officer who 'reasonably' suspects that you have committed (or are about to commit) a summary or indictable offence or if there is an outstanding warrant for your arrest. An arrest occurs when:

  • police take hold of you; or
  • police tell you that you are under arrest; or
  • you are arrested by written warrant.

After arrest, it is an offence to physically resist police. You also have to attend court if you are served with a 'court attendance notice'.

Note that 'summary offences' are less serious offences within the criminal justice system, such as minor traffic offences. These offences are dealt with by magistrates in Local Courts. An 'indictable offence' is a more serious offence, such as murder, robbery or sexual assault. These offences are generally dealt with in the District Court (County Court in Victoria) or the Supreme Court. Some indictable offences may, in certain circumstances, be heard in the Local or Magistrates Court.

Police in the past had limited powers to demand identification from you, in the street. However, a number of Australian laws have expanded these powers. In practice, and especially if you are alone, it may be best to identify yourself, if asked.

Police questioning

If you are a suspect, or have been arrested in relation to an offence, the police may ask you to participate in a police interview. Remember that you have the right to remain silent and do not have to answer any questions that the police may ask. There is no such thing as an 'off the record' discussion with police.

It is usually not in your interests to answer police questions, if you are a suspect. Any answers you give are taken down and are often used in evidence against you. You may like to say something like: 'I need independent legal advice before I answer any questions'.

The general right to NOT be forced to incriminate yourself has been undermined (in the absence of a Bill of Rights) by recent federal and State law. Federal anti-terrorist law (2003) has made it an offence to not answer questions by anti-terrorist investigators. New South Wales criminal assets recovery law can force you to incriminate yourself, or rather, penalise you if they do not ask relevant questions. A New South Wales 'evidence of silence' law (2013) allows courts to draw an 'adverse inference' from silence, in the investigation of serious offences. In each case you will have to consider your options. It is probably best to seek legal advice, in your particular circumstances.

If you do agree to a police interview, the police are not required to record it if the questioning relates to a minor offence. However, police in many States now electronically record interviews in relation to serious offences. This interview is often recorded on both video and audio, and at the end of the interview you should ask for, and be given, a copy of this recording.

If you do agree to police questioning, it may be in your interests to have the process recorded.

Detention for questioning

The police cannot detain you in custody if you are not under arrest (there is now a limited exception, under anti-terrorism laws). However, once you have been lawfully arrested, police in many States have the power to hold you in custody for an initial period of a few hours (which may be extended by a few more hours) to conduct their investigations.

If you are arrested, you will at some stage have to identify yourself. However, you are still not legally obliged to answer any questions (except under those federal anti-terrorist laws) about your alleged offence. It is best not to do so, as any answers are likely to be used in evidence against you.

Custody managers

Some States, such as New South Wales, require that a 'custody manager' at the police station in which you are held must give you a verbal and written caution 'as soon as practicable' after you are brought into custody, and must inform you of your rights. You should be advised that you have the right to remain silent. This means that you do not have to answer any questions that the police ask you, and that your silence cannot be used as evidence of your guilt.

The custody manager should advise you that you have the right to obtain legal advice, and the right to attempt to contact friends, relatives and certain other people. Under this system, the police must delay their questioning for a 'reasonable time' so that you may contact your lawyer, and to give him or her time to arrive at the police station.

Taking forensic samples

If you have been lawfully arrested, police have the power to take various forms of identification – including your photograph, fingerprints and handprints.

If you are suspected of having committed an indictable offence, the police may wish to conduct a 'forensic procedure' to obtain a body sample for DNA analysis. Depending on the type of procedure conducted, this could involve taking hairs, a buccal swab (from inside your mouth), a blood sample or certain other body samples. For example, in New South Wales these procedures have been regulated by the Crimes (Forensic Procedures) Act 2000, and in Victoria by the Crimes Act 1958.

Generally, the police must first ask you to consent to the conduct of the forensic procedure. You do not have to consent. You should consider the fact that while you may be cleared in relation to this offence, your DNA profile will be stored on a DNA database system. Until this sample is destroyed, it could implicate you (rightly or wrongly – there have been mistakes, and abuses of the system) in relation to other outstanding offences.

Many States now give police and magistrates broad powers to order compulsory procedures. For example, police officers may order a compulsory procedure if you are under arrest, there are reasonable grounds to believe that you committed 'an offence', there are reasonable grounds to believe that the forensic procedure 'might' produce evidence tending to confirm or disprove that you committed an offence, and the carrying out of the forensic procedure without your consent 'is justified in all the circumstances'.

These tests are extremely broad. If you have been arrested, it is likely that the police will have the power to take your sample. If you are not in custody, the procedure may have to be authorised by a magistrate, who must apply the same test before ordering the procedure.


If the police decide to formally charge you with an offence, they will prepare a formal charge at the police station and read it out to you. You do not have to say anything at this time, but anything you do may be recorded and used as evidence in court. It's best to not comment.

Once you have been charged, you have the right to apply for bail.

Useful links

Police have powers to help them carry out their work. Most of these powers are set out in legislation. Legal Aid NSW has information to help you to understand these powers and what rights and responsibilities you have in different situations.