Being under arrest can be a very nerve-racking experience if you have never been in trouble with the law before. You may find yourself overwhelmed and not knowing how to best deal with the situation. This is a completely normal reaction. Most people are not legally trained and may not be aware of their rights if they find themselves arrested on suspicion of an offence. During the wider Christmas break, it is common for most people to have some form of interaction with law enforcement officials. This article is designed to assist those who have had the unfortunate experience of being placed under arrest.


The police are allowed to detain a suspected person for a reasonable time to carry out investigations. This period cannot normally be more than six hours, unless an extension is granted in the form of a warrant. The six-hour period can be subject to a number of “time outs” for example: using the bathroom, rest, medical attention etc. At the end of this period, the police must either charge you or release you.


The common law right to silence has been codified in the Evidence Act 1995 (NSW) (‘Act’ here, thereafter). Section 89 of the Act states no adverse inference is to be drawn based on evidence that a person has failed to answer questions of authorities.

In most situations you are only required to disclose your name and address so that you can be identified.

If you are under arrest you will be presented with the opportunity to participate in an interview. If you choose to participate in police interview, anything you say or do will be used in court as evidence. The interview will become what is referred to as an electronic recorded interview of suspected person (‘ERISP’).

In situations where the ERISP assists the prosecution, the police will often rely upon information you have said in the ERISP to draft up the Court Attendance Notice ‘CAN’ and facts sheet to lay a charge. If there are admissions in the ERISP, the strength of the prosecution’s case increases.

The stronger the prosecution’s case the less likely you are to have the charge withdrawn and dismissed.

The onus is on the prosecution to prove their case, you do not need to prove your innocence. Our specialised Criminal Lawyers advise you to exercise your right to silence and get legal advice before participating in a recorded interview with the police.


You have the right to contact a Criminal Lawyer immediately upon being detained by police. The Criminal Lawyer can explain the legal process to you and advise you on the best approach with respect to your circumstance.


A person who has “inadequate knowledge of English” has the right to an interpreter.


The law relating to forensic procedures is found in the Crimes (Forensic Procedures) Act 2000 (NSW). A forensic procedure can relate to either an ‘intimate’ or a ‘non-intimate’ procedure.

Intimate forensic procedures include:

  • External examination of a person’s private parts (a person’s genitals, buttocks or breasts);
  • Buccal swabs carried out by a person other than the person being swabbed;
  • Blood samples;
  • Samples of a person’s pubic hair;
  • Samples of any matter from a person’s private parts using a swab or washing;
  • Samples taken by vacuum suction, scraping or lifting by tape, from a person’s private parts;
  • Dental impressions;
  • Photographs of a person’s private parts;
  • An impression or cast of a wound taken from a person’s private parts.

Non-intimate forensic procedures include:

  • External examinations of a part of a person’s body (other than their private parts) which involves the touching of that person’s body or the removal of clothing;
  • Procedures involving a self-administered buccal swab;
  • Samples of a person’s hair (excluding their pubic hair);
  • Samples taken of a person’s nails or matter obtained from underneath a person’s nails;
  • Samples of any matter taken from any external part by swab or washing of a person’s body (excluding their private parts);
  • Samples taken of any matter by vacuum suction, scraping or lifting by tape from any external part of a person’s body (excluding their private parts);
  • Hand prints, fingerprints, footprints or toe prints;
  • Photographs of a person’s body (excluding their private parts);
  • Impressions or casts of a wound taken from a person’s body (excluding their private parts);
  • Measurements to a person’s body or parts (excluding their private parts).

The answer is no you do not have to consent however if you are under arrest and refuse to give consent, the following may occur:

  • If it is a non-intimate forensic procedure, a senior police officer can order it to be carried out;
  • If it is an intimate forensic procedure, or if the suspect is not under arrest, police can seek an order from a Magistrate that authorises the forensic procedure.

In circumstances where the forensic procedure is relevant to the charge, we would advise you to consent.


If you are charged with an offence and bail is refused at the police station, you will be taken to the nearest Local Court as soon as possible for the Court to determine whether bail will be granted or refused. Depending on the time of day, you may be kept in custody overnight before Court opens the next day. Our specialised Criminal Lawyers recommend you contacting a lawyer as soon as possible to begin preparing for a bail application.


In any event if you or someone you know is arrested, you should speak to a Criminal Lawyer to best protect your interests. Our teams of Lawyers are always available to provide you with advice, contact us today.

Get In Touch!

"*" indicates required fields