Last updated 9 September 2019
The arrested person should, if possible, tell an independent person that they have been arrested and make a request to speak to a lawyer.
It is unwise to physically resist arrest, since a further charge of resisting arrest or obstruction of police may be laid. Oral resistance to an arrest that is thought to be unlawful should be politely and appropriately made in front of an independent person, keeping in mind the possible offences.
Polite conduct towards police may prevent minor charges being laid. Police have discretion to decide whether a suspect is to be arrested or given a notice to appear and released without entering into a bail undertaking. The conduct of a person will often influence which course police adopt. In all situations, a person should ask for a notice to appear.
After detention or arrest
When a person has been arrested, they will be taken to a police station. The charge will be entered in a charge book. Under the Police Powers and Responsibilities Act 2000 (Qld) (PPR Act), police have the power to search a person and seize anything found that:
- may provide evidence of the commission of an offence
- is unsafe
- may assist in an escape
- should be kept in safe custody while the person is in custody (s 443).
Police will often search a person immediately after arrest. Details of items found during the search are usually recorded in the charge book, and these items must be returned when the arrested person is released unless they are to be used as evidence (ss 691–692 PPR Act). The issue of bail will be considered by the watch-house keeper (see the Bail chapter).
Identifying particulars and DNA samples
In most cases when a person has been arrested or detained, police are permitted to take identifying particulars of the person (s 467 PPR Act). Identifying particulars include photographs of the person and their identifying features (e.g. scars and tattoos), fingerprints, palm prints, footprints, voiceprints and handwriting (sch 6 PPR Act).
A police officer may also take a DNA sample from a person charged with an indictable offence by detaining the person for that purpose or issuing a notice to attend to provide the same. A court may enforce those powers (ch 17 PPR Act).
For certain sex offences and serious assault offences, an order can be obtained from a Magistrates Court to permit the taking of blood and urine tests (ch 18 PPR Act).
If the person is issued with a notice to appear for offending, they will ordinarily be issued with an identifying particulars notice or DNA notice. The person must comply within seven days. Failure to do so results in an offence.
Destruction of records of identifying particulars and DNA samples
If a person is found not guilty or the charge is later withdrawn, any identifying particulars or DNA sample must be destroyed and deleted from any records within a reasonable time, unless the person is suspected of, charged with or has been found guilty of another indictable offence for which those particulars are permitted to be obtained (ss 474, 490 PPR Act).
Other forensic procedures
Where a person is suspected of having committed an indictable offence, police can arrange for other forensic intimate or non-intimate procedures (e.g. medical or dental tests) to be performed on a person in custody. However, this can only occur if the person consents or where a magistrate has ordered that the procedures be carried out (s 447 PPR Act). Where the procedure is carried out with consent, it must stop if consent is withdrawn at any time (s 520 PPR Act).
A magistrate ordering the procedure must be satisfied that the procedure may provide evidence of an indictable offence, and the carrying out of the procedure is justified in all the circumstances. The magistrate must balance the rights and liberties of the person and the public interest, considering amongst other things such factors as the seriousness of the circumstances surrounding the commission of the suspected offence, the degree of the person’s alleged participation in it, whether there is a less intrusive way to obtain the evidence, the reasons for the person’s refusal to give consent and the period of detention of the person for the procedure (s 461 PPR Act).
The definitions of intimate or non-intimate forensic procedures are contained in sch 6 of the PPR Act and include:
- examination of the person’s body, including orifices
- taking blood, saliva, urine or hair samples
- taking dental impressions.
Police must advise the person of the basis of the authority for the procedure if it is a court order, and that they have the right to have two people of their choice present when the procedure is done (s 503 PPR Act). The person may phone a friend or a lawyer for this purpose. Where a person gives police the name of a person they want to have present as an independent person, police must take reasonable steps to advise the person named of this wish. No medical or dental procedure can be performed unless a reasonable time has been allowed for the independent person to arrive at the place where the procedure is to be conducted (s 504 PPR Act).
Further legislative safeguards apply in respect to children under 14 years and persons with impaired capacity.
A police officer may ask a person whether they are willing to take part in an identification parade. An identification parade is where several people line up, and a witness to an offence attempts to pick out the perpetrator. Police have no power to compel a person to participate in an identification parade (s 617 PPR Act). In general there is little, if any, benefit to an accused or suspect to do so.
Procedures for the conduct of identification parades and the construction of photo boards (a board containing photos of at least 12 people of similar appearance, including the suspect, which may be shown to witnesses) are specified in sch 9 regs 36-43 of the Police Powers and Responsibilities Regulation 2012 (Qld).