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In NSW the law requires certain criteria to be met before Police are legitimately able to arrest someone, even if that person has committed an offence.


If a person is arrested for a minor offence that could have or should have been dealt with by a "ticket" ( *Court Attendance Notice), then even if the person is guilty of that offence, it may still be the case that the arrest was unlawful.

Have you been acquitted or found not guilty of charges relating to either:

  • Resist police;
  • Hinder police; or,
  • Assault police, because the Court found police were acting outside the execution of their duties?

If so, then you may have a claim for wrongful arrest/false imprisonment. A person who has been unlawfully arrested is often entitled to damages for the arrest and the detention in custody that follows afterwards.

Examples of an unlawful arrest may include

  • Being arrested for possession of a small amount of prohibited drug
  • Being acquitted of an offence where Police didn't properly investigate a matter before arresting
  • Being arrested and then being released after processing without being given any bail conditions
  • Being asked to come down to the station for a "chat" and then going down voluntarily and then being arrested when you get there
  • Presenting yourself at the station after a Police Officer leaves a message for you to contact them
  • Being arrested for no reason at all, other than failing the "attitude test"
  • Being arrested so Police can interview you
  • Being arrested so the Police can identify you
  • Being arrested even though the Police know who you are and where you live, and Court proceedings could have been started by serving a Court Attendance Notice rather than by arrest and charging.
  • Excessive force being used during the arrest which otherwise might have been lawful.
  • Being arrested because Police mistakenly thought there was a warrant out for your arrest.
  • Being arrested days or weeks after an event, with no concern for victims or witnesses

There are of course, numerous other situations not mentioned here which may be an unlawful arrest, and in some cases situations described above may not always be unlawful.

WHAT IS THE LIKELY RANGE OF DAMAGES?

A large majority of successful claims receive damages in the range of $10,000.00 to $60,000.00 plus you get your costs paid.

For minor arrests such as a short period of time, say 10 or 15 minutes, then the range offered might be in the order of $5,000.00 to $10,000.00 but, depending on the circumstances of the arrest it may fall within a higher range.

For more serious arrests where someone is either capsicum sprayed or assaulted (including being handcuffed) during the course of the arrest or detained for an unreasonable length of time, then the range of damages might be in the order of $30,000.00 to $100,000.00.

In some instances where there is other police misconduct, damages can be even higher.

In a recent case, the District Court awarded a gentleman around $68,000.00 as a consequence of being pepper sprayed unlawfully and then having been detained at the station whilst the ambulance attended him. See case below Wayne Randall v. State of New South Wales.

Prior to 16 December 2013, there were certain criteria which the Police had to meet. It had to be established prior to a police officer making a lawful arrest that the arrest had to be necessary for certain purposes contained in Section 99(3) of the Law Enforcement (Powers & Responsibilities) Act. Since 16 December the criteria has changed and there has been a variation of the powers of arrest.

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WHAT TO DO?

Please contact us via the enquiry box.

Remember: Even if you are guilty of an offence you may still have been unlawfully arrested! To avoid any doubt why not give us a call, on a obligation free basis.

All civil matters relating to unlawful arrests are taken on a No Win No fee basis.

Randall v State of New South Wales [2013] NSWDC 277 (5 December 2013)

Foott, Law & Co. Solicitors


To discuss your options further, please use the contact details or form below.


Address: 56 Victoria Street,
Grafton, NSW, 2460
Phone: 02 6642 1900
Fax: 02 6642 5070
Email: admin@foottlaw.com.au
joefahey@foottlaw.com.au

Website:www.foottlaw.com.au
 

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