Being arrested or charged with an offence can be extremely stressful. You may have been incorrectly charged or have committed a once off mistake that you regret. This, coupled with the uncertainty as to what will happen to you, your livelihood and your life can cause great anxiety to you. It is important that you remain calm and remember that there is help available to you.
Can I be arrested?
A police officer can arrest you when they have a reasonable belief that you have broken a law, have a warrant for your arrest or know that you are a risk to a family member. A police officer must tell you that you are under arrest unless this is too difficult (for example, if you are running away).
If you have been arrested, you must go with the police officer that arrested you. If you try to stop the police from arresting you, they can charge you with resisting arrest. The police may also use reasonable force to arrest you. Reasonable force means enough physical force to arrest you, but no more. A police officer can only use physical force if they had a right to arrest you to begin with.
What happens once I am arrested?
After you have been arrested, the police will usually take you to a police station. The police may also take you to a custody centre or to the police cells at court.
If you have been taken into custody for an indictable offence, before any questioning or investigation, the police must caution you and inform you of your right to communicate with a friend or relative and a lawyer. When you are in custody, you have the right to make two phone calls: one to your lawyer and one to a friend or relative. The police must give you a private space to use the phone, where the police cannot hear you. You should take this opportunity to contact a lawyer before you speak to the police.
A police officer might not let you call anyone if:
- They brought you into custody for a drink driving or drug driving matter; or
- The police officer reasonably believes that you may help another person involved in the offence get away; change or destroy evidence, or put other people in danger.
If your lawyer is unavailable, all reasonable attempts must be made to allow you to communicate or attempt to communicate with another lawyer. You must be given a reasonable period of time to communicate with another lawyer before the interview is commenced.
How long can the police keep me in custody?
The police can only keep you in custody for a reasonable time before they charge you. What a reasonable time is, depends on the seriousness of the offence and how long it takes for the police to interview you. If you believe that the police have kept you in custody for too long, you should ask when they are going to charge you or release you or that you would like to phone a lawyer.
Police do not have to charge you immediately after an interview, rather they may let you go and issue you a summons later. A summons is paperwork informing you about the charges and when you need to appear in court. If you have received a summons, we recommend that you contact a criminal lawyer for advice.
The police can bail you from the police station. After you receive a charge, you will have to sign an ‘undertaking of bail’ before you can leave. The undertaking is a promise that you will attend court on the date that your charges will be heard and on every other occasion. The undertaking may also impose certain conditions on you that you must comply with.
The police can keep you in custody, pending the hearing of your charges. This is called remand. If the police remand you, they must bring you before a Magistrate, or if the remand is out of court hours, before a Bail Justice. A bail justice is a volunteer who hears the remand application and decides whether you should be granted bail or not. If the Bail Justice refuses you bail, the police still have to take you before the Magistrate on the next day that the court is open.
Complaints against police
You can make complaints about the conduct of police officers to the officer in charge at the police station, to the Ethical Standards Department of Victoria Police or to the Deputy Ombudsman (Police Complaints).
The information is intended to be a general guide only and is not intended to constitute professional or legal advice. Destra Law expressly disclaims any and all liability for any loss or damage arising from reliance upon any information on this webpage. To discuss concerns about Criminal Law, please do not hesitate to contact Destra Law on 9898 8282 or by filling out our contact form.