More often than not, you will not have advance notice that you are going to be arrested. However, if you are fortunate enough to know in advance that Police may seek to question you, then you have an opportunity to educate and prepare yourself for this process. Criminal lawyers know the intricacies of arrests, how they work and how to cope during the process.
Police will exercise a power to arrest in order to prevent harm or to support the purpose for which the arrest power has been confirmed, mainly to investigate an alleged offence and/or enforce appropriate legislation. The arrest power can also be utilised to ensure a person’s appearance before a court, preserve public order, prevent the continuation or repetition or the offence (or commission of a further offence), ensure the safety or welfare of members of the public or the accused, and to apprehend a person who has escaped from legal custody. When exercising the power of arrest, Police must show the apprehended person photographic identification to establish that they are a member of Victoria Police. The arresting member must also advise the person of the reasons for the arrest and only use force that is reasonable and necessary in the circumstances.
There are a number of scenarios where a person is arrested. Usually, they boil down to two categories – arrest by appointment and arrest in the course of an investigation where a warrant is issued or you are arrested immediately. A person will be arrested by appointment where Police contact them in relation to an allegation and invite them to come in for, what is usually referred to as, “a chat”. For clarity, it is not a chat. It is a record of interview, which requires you to be arrested and read your rights before they ask you questions, the answers to which may be used against you. For more information about records of interview, refer to our article on this topic: https://galballyparker.com.au/its-never-just-a-chat-a-guide-to-navigating-records-of-interview/.
The Process of Making an Arrest
If Police seek to conduct a record of interview with you, they have to place you under arrest. The process of arrest may seem confronting but it is necessary to protect your rights. The process of arrest requires Police to make you aware that you are the subject of an investigation and that they are seeking to question you as part of the investigation. They must read you your rights after they inform you that you are under arrest (and you are not just having a casual chat). They must advise you that you have the right to remain silent, to contact a friend or family member to advise them of your whereabouts and to contact a lawyer. However, in the vast majority of cases, when you are arrested by appointment, they will not handcuff you and they will not place you in a holding cell. The arrest is a formality at the commencement of the interview. It is important that you appreciate that the arrest is necessary and remain calm.
It also goes without saying that, if Police invite you to come into a station to “have a chat”, you immediately seek legal advice in relation to the situation. As lawyers, we are in contact with Police on a daily basis. A lawyer is aware that an accused person is entitled to know the nature of the offence for which they are being interviewed. They can contact Police in advance of the interview to arrange the time and place and, also, to obtain as much information as possible about the allegation. That gives your lawyer the opportunity to discuss the allegations with you and seek your instructions. Depending on the allegation, and your instructions, your lawyer can provide advice in relation to whether you should answer questions put to you by Police or remain silent. They can also discuss post-interview arrangements with Police, such as whether or not they intend to charge you with any offending immediately after the interview and, if so, whether you will be released on summons or bail. If you are to be released on bail, your lawyer can discuss the conditions of your bail and ensure that they are available to be contacted during or after the record of interview in case an issue arises or you need advice or support.
The other form of arrest is an arrest by warrant, or a power under the Crimes Act 1958, which usually occurs by surprise or in circumstances of extreme stress. It may be immediately evident to the Police that an offence may have occurred and that you are a person of interest. For example, they may attend at the scene of a serious collision, where a person is seriously injured or killed, and one of the individuals involved in the collision is clearly alcohol or drug affected. In those circumstances, the Police have the power to arrest you without a warrant being issued by the Court. They will then transfer you to a Police station in order for you to be interviewed at an appropriate time. It is far more likely in these circumstances that you will be placed under arrest at the actual scene of the alleged offence, or in the vicinity, and handcuffed.
Where a warrant has been issued for the arrest of a person, it will usually occur because they have failed to attend Court, have absconded on bail, or because an investigation into serious offending has concluded and has moved to a point where the Police are prepared to charge the alleged offender(s). When the last of the aforementioned occurs, the warrant to arrest will usually be accompanied by a warrant to search premises and the accused can usually expect a very early morning knock on the door. In these circumstances, the accused will be handcuffed and conveyed back to the Police Station after the search has concluded.
Now that we have explained to you how arrests occur and why, you are likely looking for strategies to cope with the process, both before, during and after.
Coping Strategies Before Arrest
If you are concerned that you may be arrested, there are steps that you can take to prepare yourself for the possibility. The first and most obvious step is to speak with a lawyer. Sometimes, lawyers can get on the ‘front foot’ to manage the situation for you and, of course, advise you in relation to whether to answer questions in the record of interview or not. It is also most helpful to have a lawyer retained to act for you so that they can be on call in the event that you are arrested unexpectedly. Your lawyer should have on file personal details for you, so that (in the event that you are arrested) they are armed with all of your information, which should include:
- Whether you are a foreign national;
- Whether you are of Aboriginal or Torres Strait Islander descent;
- Whether you have a mental illness, cognitive impairment or disability;
- Whether you have any other medical issues, which may be relevant to your arrest and interview;
- The contact details for your emergency person(s), such as parent or partner; and
- Any instructions that you have provided in relation to the allegations.
You should keep your lawyer’s contact details on your person, in the form of a business card, and on the fridge at home. At Galbally Parker Lawyers, if we have a client whom we think may be arrested, we provide them with a fridge magnet. There is an important reason for this. Most people save contact details in their mobile phone and not elsewhere. When they are arrested, the Police will allow them to open the phone to access the number and call their lawyer. However, once the phone is open, Police will form the view that you voluntarily allowed them access and will search your phone for evidence. They may even seize your phone as a result. Having the contact details for your lawyer in writing removes the need to open your phone and potentially expose yourself to criminal liability. It can also remove the risk of your phone being seized by Police and sent to eCrime. When this occurs, it can be months before you get it back.
You can prepare yourself for the possibility that your phone will be seized as part of the investigation and you should change two-factor authentication to another number, back up the data on your phone and take steps to ensure that the seizure of your phone does not compromise your life.
Ensure that a family member or friend knows that you may be arrested and has the contact details of your lawyer, so that they can advise them immediately.
Coping Strategies During Arrest
The first and most important thing to do, or attempt to do, is to remain calm. Do not resist the arrest and do not struggle if you are handcuffed. This can lead to charges being laid and will also make the process far more difficult than it already is. Once you are arrested, advise the arresting member of the name and contact details of your lawyer. Again, if you have that in writing, they should call the lawyer from their own phone without requiring you to use (and therefore open) your own. Ask for the name and rank of the arresting member and also find out where they are taking you.
It is important to remember that there is no such thing as an “off the record” discussion with Police. When you are in the police car, the Police members will try and engage you in conversation. It may start out general but the aim is to gather as much intelligence as they can. They may even encourage you to cooperate, because it will “be better for you in the long run”. They may tell you that the case against you is strong. They may even try and foreshadow what is going to happen in your matter. Do not respond to these kinds of comments. If you feel that you must engage with them, keep everything very general. Remember that the Police are also trained to develop rapport, to try and create a relationship from which they can obtain an advantage. The Police member is not your friend and they are not there to help you.
When you arrive at the Police station, they will either take you directly into an interview room or, if you have been arrested pursuant to a warrant or under the Crimes Act, place you in a holding cell. Sometimes you can sit there for a considerable period of time. This is part of the strategy. The longer that you are there, the more stressed you will feel. Don’t let the delay cause you additional stress. Sometimes, they will commence the interview, advise you that they need to make enquiries and then leave the room for a long time during which you are wondering what is going on. Quite often, the delay is a strategy to make you think that they have more evidence than they actually have.
If you have concerns at any time, you can indicate to them that you want to speak with your lawyer and they have to accommodate that request. You can also request food, water, convenience and rest breaks. Remember that the record of interview is audio-visually recorded and that members are watching the interview in real time, so be cautious about how you present.
Coping Strategies After Arrest
After you are arrested and interviewed, a number of things can happen:
- You are released without charge pending further enquiries. You will be provided with a CD which contains the recording of your record of interview;
- You will be charged and released on summons or on bail. You will also be provided with your record of interview, which you should immediately provide to your lawyer along with your charge sheets and bail undertaking. The Police will provide you with a Court date for the matter; and
- You will be charged and brought before the Court for a Filing Hearing (within 24 hours of the arrest), which will be the first opportunity for you to make an application for bail.
Arrests are inherently stressful events and can cause you to worry terribly about your future and that of your family. It is natural to be anxious before, during and after an arrest. The most important thing that you can do is to ensure, as far as possible, that you have the best support around you, which should include an experienced criminal defence lawyer.
How Galbally Parker Lawyers Can Help
A criminal defence lawyer plays a crucial role during and after an arrest by safeguarding your rights and helping you navigate the legal process. We can advise you during police questioning, help secure bail if applicable, and provide guidance on how to navigate the initial stages of the legal process. After arrest, we will conduct a thorough investigation, examine evidence, interview witnesses, and develop a strategic defence. We will then advocate for you in court.
We have a track record of successes in the recent and the more distant past due to our highly qualified team of criminal defence lawyers proficient in many areas of law. We have a team of expert lawyers with experience in a range of different areas of the law, including, organised crime, criminal appeals, bail applications, assault, murder and manslaughter, drug offences, fraud, family violence offences and customs offences.
