THE LEGAL DEFINITION OF AN “ARREST” IN NSW
In New South Wales, an “arrest” occurs when it is made clear—by words or conduct—that a person is no longer free to leave, and that person understands this restriction on their liberty. This definition stems from case law such as R v Inwood [1973] 2 All ER 645.
An arrest is a serious interference with personal freedom. Courts have repeatedly emphasised that it must not be exercised arbitrarily. As Deane J famously stated in Donaldson v Broomby (1982) 60 FLR 124:
“A police practice of arbitrary arrest is a hallmark of tyranny.”
This principle underpins the strict legal framework governing police powers of arrest in NSW.
WHEN CAN POLICE LAWFULLY ARREST YOU?
Police powers of arrest in NSW are governed by section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA).
For an arrest to be lawful, two key elements must be satisfied at the time of arrest:
1. REASONABLE SUSPICION
The officer must suspect on reasonable grounds that you have committed, or are committing, an offence.
- This is more than a mere possibility, but less than a belief.
- There must be a factual basis for the suspicion.
This principle is explained in R v Rondo [2001] NSWCCA 540.
👉 Read LEPRA s 99 here:
https://legislation.nsw.gov.au/view/html/inforce/current/act-2002-103#sec.99
2. ARREST MUST BE REASONABLY NECESSARY
Even if police suspect an offence, they cannot arrest you unless it is reasonably necessary for one of the following purposes:
- Prevent further offending
- Prevent escape
- Establish identity
- Ensure court attendance
- Preserve evidence
- Prevent witness interference
- Protect safety
- Address seriousness of the offence
The NSW Supreme Court has made clear in DPP v Carr [2002] NSWSC 194 that:
Arrest is a last resort — not a convenience.
👉 Case summary:
https://www.caselaw.nsw.gov.au/decision/54a63f1a3004de94513d8c0d
If police could issue a court attendance notice instead, and fail to consider it, the arrest may be unlawful.
ARREST FOR INVESTIGATION IS UNLAWFUL
Police cannot arrest you simply to investigate whether you committed an offence.
The High Court confirmed in NSW v Robinson [2019] HCA 46 that:
- There must be an intention to charge at the time of arrest
- Arresting “just to ask questions” is unlawful
👉 High Court decision:
https://eresources.hcourt.gov.au/showCase/2019/HCA/46
TIME LIMITS ON DETENTION
Under LEPRA:
- Police can detain you for a maximum of 6 hours (s 115)
- The time must be reasonable in the circumstances
- Certain periods (e.g. speaking to a lawyer, transport) are excluded
👉 LEPRA detention rules:
https://legislation.nsw.gov.au/view/html/inforce/current/act-2002-103#sec.115
PROCEDURAL REQUIREMENTS POLICE MUST FOLLOW
Police must comply with section 202 of LEPRA by providing:
- Their identity (if not in uniform)
- Name and place of duty
- The reason for arrest
Failure to provide the reason for arrest can render the arrest unlawful.
👉 LEPRA s 202:
https://legislation.nsw.gov.au/view/html/inforce/current/act-2002-103#sec.202
USE OF FORCE IN AN ARREST
Police may only use reasonable force under sections 230–231 of LEPRA.
- Excessive force = unlawful arrest
- Force must be proportionate to the situation
Courts assess this objectively (see DPP v Greenhalgh [2022] NSWSC 980).
BREACH OF BAIL – ADDITIONAL REQUIREMENTS
If arresting for breach of bail, police must consider factors under section 77(3) of the Bail Act 2013 (NSW), including:
- Seriousness of the breach
- Whether there is a reasonable excuse
- Alternatives to arrest
Failure to consider these can invalidate the arrest (Bugmy v DPP [2024] NSWCA 70).
👉 Bail Act:
https://legislation.nsw.gov.au/view/html/inforce/current/act-2013-026
WHAT HAPPENS IF AN ARREST IS UNLAWFUL?
1. CRIMINAL CHARGES MAY FAIL
Charges such as:
- Resisting police
- Assaulting police
- Hindering police
require proof that police were acting lawfully.
If the arrest was unlawful → you may be acquitted.
2. EVIDENCE MAY BE EXCLUDED
Under section 138 of the Evidence Act 1995 (NSW), improperly obtained evidence can be excluded.
This may include:
- Admissions made after arrest
- Drugs or weapons found
- Conduct during arrest
👉 Evidence Act:
https://legislation.nsw.gov.au/view/html/inforce/current/act-1995-025#sec.138
SUING POLICE FOR UNLAWFUL ARREST
If you’ve been unlawfully arrested, you may bring a civil claim for:
- False imprisonment
- Wrongful arrest
- Assault/battery
- Psychological harm
TIME LIMITS:
- 6 years (general claims)
- 3 years (if personal injury involved)
You do not need to prove bad faith—an honest mistake is not a defence.
PRACTICAL STEPS IF YOU ARE UNLAWFULLY ARRESTED
- Stay calm and do not escalate
- State clearly: “I do not consent to this arrest”
- Note officer details
- Take photos of injuries/property damage
- Obtain witness details
- Seek medical attention
- Contact a criminal defence lawyer immediately
CAN YOU RESIST AN UNLAWFUL ARREST?
Legally, an unlawful arrest may provide a defence to charges like resisting police.
However:
⚠️ You should never physically resist arrest.
Doing so can escalate the situation and lead to additional charges.
The safer approach is:
- Comply at the time
- Challenge the legality later in court
NEED ADVICE ABOUT AN ARREST?
If you believe you have been unlawfully arrested, it is critical to obtain legal advice quickly. Early intervention can:
- Preserve key evidence
- Challenge charges
- Support a civil claim for compensation
👉 Visit: https://www.criminallawyersgroup.com.au
Our experienced criminal defence lawyers can assess your matter and advise you on your rights and options.
Contact Criminal Lawyers Group
We offer a free first consultation, confidential and obligation-free.
For expert legal advice, contact:
Steven Mercael
Criminal Lawyers Group
🌐 www.criminallawyersgroup.com.au
📞 (02) 8815 8177
📧 info@criminallawyersgroup.com.au