M1 - Learner Manual

3.2. At the police station

A person who has been arrested will be taken to a police station. Then a custody manager (a senior officer) gives the person a form explaining their rights and advising (cautioning) them that they are not obliged to answer questions. At this stage the police must tell the person why they are being detained; give the person the opportunity to get legal advice (either at their own expense or, if appropriate, from the Legal Aid Commission or the Aboriginal Legal Service); and give the person the opportunity to communicate privately with a friend or relative. The only time police may not permit communication is where there is a reasonable fear that it might lead to an accomplice escaping or evidence being destroyed.

Police have the power to detain a person, who is lawfully arrested, for the purpose of investigation for a “reasonable time”. The matters to be taken into account in determining what is a “reasonable time” are set out in the act. The maximum time period which a person in NSW can be detained is 4 hours, unless a warrant is granted to extend this time period for up to an extra 8 hours. 

The LEPRA allows police to detain a person found intoxicated in a public place who is behaving in a disorderly manner, or is likely to cause injury or damage property, or is in need of physical protection. People may be detained for up to eight hours in a police station, but must be released earlier if they cease to be intoxicated, or a responsible person is prepared to care for them. There is no court appearance since drunkenness is no longer a criminal offence. 

There are time periods which are to be disregarded when calculating what is a “reasonable time” and these include things such as arranging equipment for investigation, communicating with friends, relatives or lawyers.  There are a whole range of other “time-outs” which are listed in section 117 of the Act. 

Any detention after arrest is to be counted towards any future  sentence a person is to serve. 

Part 9 also sets out the nature of the cautions which must be given and information regarding a person rights in custody (s122) as well the following rights/matters: 

Right to communicate with friend, relative, guardian or independent person and Australian legal practitioner (s123)

Right of foreign national to communicate with consular official (s124)

Circumstances in which certain requirements need not be complied with (s125)

Provision of information to friend, relative or guardian (s126)

Provision of interpreter (s128)

Right to reasonable refreshments and facilities (s130)

As soon as the detention period is over the person must be: 

• released, or 
• taken before a magistrate to be formally charged, or 
• given a court attendance notice and police bail (see Bail section below). 

Additionally, the LEPRA Regulation set out in r.33 extra provisions for Aboriginal and Torres Strait Islanders person as follows:

Legal assistance for Aboriginal persons or Torres Strait Islanders

 (1)  If a detained person is an Aboriginal person or Torres Strait Islander, then, unless the custody manager for the person is aware that the person has arranged for a legal practitioner to be present during questioning of the person, the custody manager must:

(a)  immediately inform the person that a representative of the Aboriginal Legal Service (NSW/ACT) Limited will be notified:

(i)  that the person is being detained in respect of an offence, and

(ii)  of the place at which the person is being detained, and

(b)  notify such a representative accordingly.

If a person who has been arrested doesn’t want to say anything to police, this attitude should be made clear and never changed. Name and address should be stated, and every other question answered with words such as “I do not want to say anything at this stage”. There should be no change to this reply, even if the police ask about the reason for this attitude. 

It may be in the interests of a person who has been arrested to make a statement or participate in a recorded interview, if there is a valid explanation for the behaviour in question (for example, in the case of a charge of theft, if the owner’s consent had been given). Whatever the circumstances, it is important to seek legal advice before making a statement.