At the police station and police bail
At the police station
Remember that you have the right to remain silent. Once arrested, you can refuse to answer all questions police ask you except your name and address (you are legally obliged to provide these details). Be very careful what you say to and around police. Any comments you make can be used as evidence against you in court, even if they are overheard by a police officer in the context of a phone conversation to a friend. Remember no conversation with a police officer is off the record.
If you wish to make a statement, you should seek legal advice first. You might decide to sign some receipts for property, or to say that you have received certain notices. Do not sign any statement or admission without legal advice. Do not ‘initial’ a police officer’s notebook entry without legal advice.
If you choose not to answer police questions (other than those seeking your name and address or routine medical care questions such as those relating to prescription drug use) just say 'no comment,' or 'I don’t want to answer at this stage' to every question. It is important to be clear and consistent on this. Even if police ask you why you aren’t co-operating, do not change your reply. If you say 'no comment' to some questions but answer others, a court may draw the conclusion that you had something to hide in relation to the questions you did not answer.
Remember that no adverse inference can be taken from your refusal to answer questions(s89 Evidence Act 1995). Ignore any comment from the police that making a statement will make things easier for you. Only the court can decide this.
The police have to fill in a custody report if you are detained. You have the right to ask police to show you your report, and they are advised to comply unless the request is unreasonable.
The police must either charge you with an offence or release you at the end of the detention period.
If you have been charged with a serious / indictable offence the police must offer you the opportunity to have your interview recorded on video or audiotape. You must then be given a copy of the audiotape when you are released from custody. The videotape remains at the police station, but you or your legal representatives can view it on request.
The importance of not making admissions during police interrogation is that you are in a hostile and intimidating environment. You are unlikely to be thinking clearly.
You are very unlikely to be charged with an indictable offence as a result of a protest action.
Police bail
There are two types of bail: police bail and court bail. Police bail is a promise that you will turn up to court on a particular date in return for the police releasing you from custody. Police will decide whether or not to grant bail soon after you have been charged. Police must inform you of how you can be released on bail.
Bail can be refused when you have committed a serious offence (including robbery, murder and drug trafficking), or police think that you might not turn up to court (for example, if they are uncertain of your identity, or if you have previously breached bail. Bail can also be refused when there is an outstanding warrant for your arrest or police have decied that you need physical protection, for example if you are intoxicated, under the influence of a drug, injured or at risk of physical injury. More information about this can be found in the Bail Act 1978 (NSW).
If police refuse to grant you bail, you will be kept at a police station and taken to court. This might be the next morning, or later if you are arrested at the weekend when the courts are not sitting. The court has the power to grant bail in this situation.
Bail must be granted unconditionally unless conditions are necessary to promote law enforcement, or for the protection and welfare of the community.
Conditions must be relative to the offence you are charged with, and to your circumstances. There are a number of conditions that may be imposed regarding bail. These might involve conduct (eg surrendering a passport, reporting to police one a week) or a 'surety.' A surety is a person of good character who knows you and says that you are responsible and likely to appear in court. You or your surety may agree to forfeit a sum of money if you fail to comply with your bail conditions.
If the police impose bail conditions which seem unfair, you can accept those conditions so that you can leave the police station, and then see a lawyer to have the conditions changed by attending court in a few days’ time.
Police must tell you why you have been arrested and give you the opportunity to get legal advice. You can do this either at your own expense, or through Legal Aid or a community legal centre. You should ask to speak to a lawyer before you are questioned by police. While in custody, you have the right to consult and communicate privately with your legal representative, either in person or over the phone, but in view of police. See the list of contacts at the back of this guide for legal representation.
There is an additional CRIME Code of Practice at the NSW Police website.