NSW Police Powers – Your Rights when stopped by Police.
If the police contact you to attend the police station you should contact a lawyer immediately before attending or agreeing to attend. If they start asking you questions over the phone in relation to an allegation, politely decline to answer and obtain legal advice immediately.
If a police officer approaches you out of the blue in a public place for no apparent reason you should remain calm and respectful, BUT YOU DO NOT have to speak to them. You are within your rights to walk away.
The police cannot detain you for questioning only.
If the police try to stop you from walking away, ask them directly, “Am I under arrest?” or “Am I being detained?” If they say no, you are within your right not to speak to them and walk away. If they touch you in these circumstances, it may be an unlawful assault and imprisonment for which you could sue for damages in tort.
If the police are arresting or detaining you, give them your name and address only.
Do not say anything further UNTIL you have spoken to a lawyer at MCDONALD LAW.
If you are under arrest you are in police custody. As such, the police are allowed to search you and seize anything found on that search. The purpose of the search is to seize anything that may harm you, them or others, anything that could be used to help you or others escape lawful custody and to seize anything connected with an offence.
If they seize anything and want to question you about it, again, say nothing, and do not sign anything UNTIL you have spoken to a lawyer.
If the police are seeking to exercise a search power, such as section 21 of LEPRA, NEVER agree, invite, or consent to allowing them to search you. Tell them that you do not consent but do it in a respectful way, but say it loudly so others in the vicinity can hear. If you are in a public place, have someone video-record the interaction on their mobile phone.
You are allowed to video record police officers if they are in a public place. The police will likely have activated their body-worn video by this time too.
Do not resist their efforts to search you after they have told you the reason for the search, and more importantly, remain calm and cooperate.
If they do not justify or give a reason for exercising their search upon you, it may be unlawful and inadmissible later on.
The time for challenging their reasons or failure to give reasons will be for another time, whether it be in a court, or as part of a formal Part 8A complaint under the Police Act 1990.
These infringements upon your liberty, if found to be unlawful can also be reported to the Law Enforcement Conduct Commission (LECC) who is the “Watchdog” body that oversees complaints relating to police officer misconduct or officer maladministration.
The Police are allowed to search your house if they have a search warrant. They can also search you and anyone on the premises at the time.
Again cooperate with their directions, do not resist, and say nothing except give them your name, UNTIL you receive legal advice from a lawyer.
If you are in a public place, the Police can search you if they reasonably suspect you are involved in a criminal activity, or in possession of any weapon, offensive implement, prohibited drug, or have anything stolen or unlawfully obtained at the time.
If you are arrested and charged with an offence, talk to the Custody Manager (usually referred to as the “Bail Sergeant”) at the police station where you were taken and demand bail or to be bought before a Magistrate as soon as possible.
It is crucial to know, too, that the Bail Sergeant’s role is to facilitate and protect your legal rights by affording you the opportunities to seek legal advice and ensure you are only being kept in custody for as long as reasonably practicable.
If you are in custody, the police will offer you the opportunity to participate in an electronic interview called an ERISP which is short for Electronic Recorded Interview of a Suspected Person).
NEVER agree to an ERISP until you receive legal advice from a lawyer. The police must give you a reasonable opportunity to contact a lawyer.
If you are pulled over in your car by a police officer, and they start to ask you questions, you are not obliged to any answer any questions aside from their request for identification such as providing them with your driver’s licence.
If you are pulled over in your car and a police officer requests that you submit to a breath test you cannot refuse unless you have a lawful reason. It is an offence to refuse a breath test, and you will be charged with an offence that provides for a penalty equivalent to a High Range PCA Offence.
The only defence is if there is a medical reason that prevents you from providing a sample of your breath. However, they could then require you to go to a hospital and provide a blood sample.
You are allowed to film police if they are in a public place. If you are pulled over by the police, make sure you turn off your engine and place it in park before operating any mobile phone or camera. If you don’t the police could issue you with an infringement notice for using a mobile phone while driving (see Regulation 300, of the Australian Road Rules 2014).
If you are involved in a car accident you must provide the police with your name and address and provide to the police officer, the circumstances of the accident. However after providing those circumstances, if they wish to expand or clarify anything from those circumstances you have provided, you are not compelled to expand, clarify, or answer their questions as you have already complied with the law in providing the circumstances under Regulation 287 of the Australian Road Rules 2014.
They will then probably “caution” you if they think you have committed a criminal and or traffic offence.
If they “caution” you do not say anything further until you have sought legal advice.
The “caution” is usually said in the following manner, although there are slight variations:
“You do not have to do or say anything unless you wish to do so, however anything you say or do will be recorded, and may later be used as evidence against you. Do you understand that?”
If you are wearing a face covering, the police can require you to remove any face covering so they can identify or photographically identify you for the purpose of exercising a power. For example, they may require you to remove a face covering (such as a helmet or burka) to compare your face to the photo in your drivers licence to confirm that you are in fact the holder of a drivers licence.
You are required to give the police your name and address if:
- They suspect you are under 18 and have alcohol in your possession in a public place.
- You are driving a motor vehicle i.e., a car or motorbike.
- You are involved in a car accident.
- You were a witness to a serious offence/crime.
- You are a suspect in a terrorism offence.
What can I do if I feel my rights have been violated?
Make a complaint to directly to the Commander (who is of Superintendent rank) of the Police Station that the officers belong.
- Obtain the name (or registered number), rank and station of the police officers involved.
- Make sure to note the time, date, and location of where the incident occurred.
- Prepare a statement and supporting documents (if any) and write to the Commander of the Police Area Command outlining the facts of the matter and the alleged misconduct you are complaining about.
- All complaints about police officers must be in writing; otherwise they will not be triaged and investigated.
Make a complaint directly to the Law Enforcement Conduct Commission
The Law Enforcement Conduct Commission (LECC) is the independent body that oversees and investigates officer and agency misconduct and maladministration of the New South Wales Police Force.
You can make a complaint directly through the LECC online form here
What to do next?
If you have been arrested and charged with an offence arising from a police stopping and searching you, call Richard McDonald of McDonald Law on (02) 8824 4736 or email us for an appointment at [email protected]. We will be able to assist you, provide you with honest feedback, and give you practical options to plan, prepare and resolve your case.