What should you do if you get arrested? 

Being arrested is hugely stressful. You’ll be taken into police custody, interviewed and in some cases, you or your property can be searched. It’s a hard time for anyone, especially if you haven’t come into contact with the criminal justice system before. 

But our legal system operates on the presumption that a person is innocent until proven guilty. In other words, being arrested doesn’t automatically make you a criminal – even if the police make you feel that way.

If you’ve been arrested, you’re still able to exercise certain rights and we strongly encourage you to. Being unaware of your rights and how to exercise them can have dire consequences, such as being charged for an offence you may not have committed. 

We’ve compiled a list that covers everything you need to be aware of should you or a loved one get arrested. In this situation, remain polite and respectful toward police, but be mindful of your rights and how you should be treated.

Firstly, the police can arrest you on one of the following grounds:

  • If they reasonably believe you have broken the law; 
  • If they have a warrant for your arrest; or 
  • If they know you are a risk to a family member. 

Do not resist police arrest, as this can create a separate offence. If you resist police arrest, the police can use reasonable force against you.

If you’ve been arrested and you’re in police custody, you are required to identify yourself by providing your name, date of birth and address. The police will then take you to the station where they must interview and record you. 

But remember: the only information you must give is your name, date of birth and address. Sometimes it is worth being more open, but make sure you speak to a lawyer first so that you are clear on how to best proceed. 

Before the interview: 

Before the interview begins, you’re allowed two phone calls: one to a family member or friend, and the other to a lawyer. It’s crucial that you contact your lawyer as soon as possible, and don’t answer any questions until you’ve received legal advice specific to your situation. At Gallant Law, we’re always on hand to answer any questions you may have and to offer support and guidance. We can be contacted on 03 9070 9885.

During the interview: 

A police interview is designed to elicit certain responses from you – responses that can lead to you being charged with an offence and can later be used against you in court. 

In an interview, you can choose to remain silent and exercise your right of silence. To do so, answer interview questions with ‘no comment.’  Stay consistent and continue to answer with ‘no comment’ throughout the entirety of the interview. 

If you choose to remain silent, the police cannot use this behaviour to infer that you are guilty. Nor will you be seen as being uncooperative with the police. If your matter continues to court, a jury cannot use your silence to infer guilt or assume you had something to hide. 

If you do choose to answer police questions, be aware that anything you say can be used against you as evidence in court. This is true for anything said in police custody, regardless of whether your comments are directed to a police officer. 

Information the police are required to give you:
If you’ve been arrested, you have the right to request the following information from the police: 

  • The reason for your arrest; and
  • The police officer’s identification (their name, rank and station). This information is necessary should you choose to lodge a complaint for police misconduct later. 

Special circumstances: 

  • If you are an Indigenous Australian, you must make this known to police as there are certain procedures the police must follow in these cases. 
  • If you are under 18, the police must wait until a parent or guardian is present before they can interview you– unless you have expressly said you do not want a parent or guardian present.
  • If you need an interpreter, you can request the police provide an interpreter before the interview begins. 
  • If you have a health condition, you may see a doctor before the interview begins. 

Always remember, being arrested does not mean you’re guilty. Stay calm (as much as possible) and seek legal advice as soon as possible. At Gallant Law, we understand that being involved in the criminal justice system is overwhelming. If you’ve been arrested, contact us on 03 8374 7657 so we can offer you support and advice tailored to your situation.