UNLAWFUL ARRESTS: SYDNEY CRIMINAL LAWYERS
Police in New South Wales have the power to arrest members of the public without a warrant. These powers exist to protect the community and ensure offences are properly dealt with by the courts.
However, arrest powers significantly interfere with a person’s right to liberty, and the law places strict limits on when and how police can exercise them. An arrest that falls outside those limits is unlawful — and unlawful arrests can have serious consequences for police and prosecution cases.
Experienced criminal lawyers regularly challenge unlawful arrests in court, and in many cases, charges fail because police exceeded their powers.
ARBITRARY ARRESTS ARE A THREAT TO PERSONAL LIBERTY
Australian courts have repeatedly warned against arbitrary or unnecessary arrests.
In Donaldson v Broomby (1982), Deane J famously stated:
“A police practice of arbitrary arrest is a hallmark of tyranny.”
Because arrest involves loss of freedom, public humiliation, and risk of escalation, police powers must be clearly defined, narrowly applied, and strictly supervised by the courts.
WHAT IS AN “ARREST” IN LAW?
An arrest occurs when, based on what is said or done, a person understands that they are no longer free to leave.
There does not need to be handcuffs or formal words. Whether an arrest has occurred is a question of fact, assessed objectively by the court.
This principle was confirmed in R v Inwood [1973].
WHEN CAN POLICE LAWFULLY ARREST YOU IN NSW?
Police arrest powers are governed by section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA).
An arrest is lawful only if both of the following exist at the time of arrest:
1. REASONABLE SUSPICION OF AN OFFENCE
Police must suspect, on reasonable grounds, that you have committed or are committing an offence.
2. ARREST IS REASONABLY NECESSARY
Police must believe arrest is reasonably necessary for at least one specific purpose set out in section 99.
If either element is missing, the arrest is unlawful.
WHAT IS A “REASONABLE SUSPICION”?
A reasonable suspicion:
- Is more than a possibility
- Is less than a belief
- Must be based on facts or information, not a hunch
This test was explained in R v Rondo [2001].
Courts examine:
- What information the officer had
- Where it came from
- Whether that information objectively justified the suspicion
Even hearsay or inadmissible material can support suspicion — but there must be something concrete.
ARREST MUST BE A LAST RESORT
Arrest is not the default option.
In DPP v Carr [2002], the NSW Supreme Court made it clear that police should not arrest for minor offences where:
- Identity is known
- There is no risk of flight
- A court attendance notice or summons would be effective
The Court described arrest as:
- An additional punishment
- A trigger for anger, fear, and escalation
- A common cause of charges like resisting or assaulting police
Police must consider less restrictive alternatives before arresting.
This is a frequent issue raised by criminal lawyers in Local Court proceedings.
POLICE CANNOT ARREST YOU JUST TO INVESTIGATE
Police are not allowed to arrest someone simply to “ask questions” or conduct an investigation.
In NSW v Robinson (2019), the High Court ruled that an arrest under section 99 is only lawful if police intend to bring the person before a court to answer a charge.
If, at the time of arrest, police have no intention to charge, the arrest is unlawful — even if the person is later released without charge.
POLICE MUST INTEND TO CHARGE AT THE TIME OF ARREST
A lawful arrest requires a present intention to charge, even if:
- Further investigation is needed
- The charge may later be withdrawn
- The person is ultimately released
After arrest, police may lawfully detain a person for investigation under Part 9 of LEPRA, but the arrest itself must be for charging purposes.
HOW LONG CAN POLICE HOLD YOU?
Police may hold an arrested person for a period that is:
- Reasonable in the circumstances
- No longer than 6 hours, excluding certain paused periods
Relevant factors include:
- Age
- Physical and mental condition
- Number and seriousness of alleged offences
The prosecution bears the burden of proving the detention period was reasonable.
PROCEDURAL REQUIREMENTS POLICE MUST FOLLOW
Under section 202 of LEPRA, police must, as soon as reasonably practicable:
- Identify themselves as police
- State their name and place of duty (if requested)
- Tell you why you are being arrested
Failure to provide the reason for arrest can render the arrest unlawful.
Courts treat these safeguards seriously, and breaches are often raised by defence criminal lawyers.
POLICE MUST NOT USE EXCESSIVE FORCE
Police may only use reasonable force to make an arrest or prevent escape.
An arrest can become unlawful if:
- Excessive force is used
- Force is disproportionate to the risk
- Force is used for punishment or retaliation
The test is objective: what a reasonable officer would have considered proportionate at the time.
ARREST FOR BREACH OF BAIL HAS STRICT RULES
Before arresting for breach of bail, police must consider the factors in section 77(3) of the Bail Act 2013 (NSW), including:
- Seriousness of the breach
- Whether there is a reasonable excuse
- Personal circumstances
- Whether alternatives to arrest exist
Failure to consider these factors makes the arrest unlawful.
ARREST MUST STOP IF IT BECOMES UNNECESSARY
Police are required to discontinue an arrest if it is no longer reasonably necessary.
What starts as lawful can later become unlawful if circumstances change.
WHAT HAPPENS IF AN ARREST IS UNLAWFUL?
CHARGES THAT REQUIRE “LAWFUL EXECUTION OF DUTY”
Some offences require police to be acting lawfully, including:
- Resisting police
- Hindering police
- Assaulting police
- Escaping lawful custody
If the arrest was unlawful, these charges must fail.
EXCLUSION OF EVIDENCE
Courts may exclude evidence obtained because of an unlawful arrest under section 138 of the Evidence Act 1995 (NSW).
This can include:
- Admissions
- Drugs or weapons
- Alleged assaults during arrest
This is a powerful remedy frequently used by experienced criminal lawyers.
CAN YOU SUE POLICE FOR UNLAWFUL ARREST?
Yes. Unlawful arrest and false imprisonment can give rise to civil claims for damages, including:
- Loss of liberty
- Pain and suffering
- Humiliation
- Assault or battery
You do not need to prove malice.
Limitation periods apply:
- 6 years for non-injury claims
- 3 years if injury is involved
SHOULD YOU RESIST AN UNLAWFUL ARREST?
Violence or resistance is never advisable.
If you believe an arrest is unlawful:
- Stay calm
- State you do not consent
- Remember details
- Contact a lawyer immediately
If charged with resisting or assaulting police, the prosecution must prove the arrest was lawful.
SPEAK TO EXPERIENCED CRIMINAL LAWYERS
Unlawful arrests are complex and highly technical. The outcome often turns on what police believed, considered, and intended at the exact moment of arrest.
If you have been arrested, charged, or believe police exceeded their powers, speak with experienced criminal lawyers as early as possible.
Contact our team today to speak directly to Steven Mercael, Principal Lawyer of Criminal Lawyers Group.