If you’ve been wrongfully arrested by NSW Police, you may have the right to seek compensation through civil action. Knowing your rights and how to enforce them is essential to holding police accountable and obtaining the justice you deserve.
Key Takeaways
- Unlawful arrest occurs when police fail to follow the strict legal requirements set out in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- You can sue the State of NSW for compensation through civil action, with no requirement to prove police acted maliciously
- Limitation periods apply: 6 years for general claims, 3 years if personal injury is involved
- NSW Police pays millions annually in settlement claims – over $100 million in compensation has been awarded in recent years.
At a Glance
Your Key Rights:
- Right to compensation for unlawful arrest and false imprisonment
- Right to obtain police records through Government Information (Public Access) Act applications
- Right to legal representation, often on a “no win, no fee” basis, depending on arrangements
- Right to claim various types of damages, including general, special, aggravated, and exemplary damages
Emergency Action Items:
- Document everything immediately – injuries, witnesses, exact circumstances
- Obtain medical attention if injured and keep all records
- Request police records through the GIPA application
- Seek legal advice within the limitation period
When to Seek Legal Help Immediately:
- If you were arrested without reasonable suspicion
- If the police failed to follow proper procedures during the arrest
- If you suffered physical or emotional harm during arrest
- If criminal charges were dismissed or withdrawn
- If the arrest caused financial loss, job loss, or long-term trauma
Understanding Your Rights
Legal Framework in Plain English
Under NSW law, police cannot simply arrest anyone they choose. The Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) sets strict rules about when and how police can arrest someone. These rules exist to protect your fundamental right to liberty and ensure police powers aren’t abused.
The law recognises that wrongful arrest is one of the most serious infringements of civil rights. When police breach these laws, you have the right to seek compensation through the civil courts, regardless of whether you were ultimately charged or convicted of any offence.
Historical Context and Why These Rights Exist
These protections stem from centuries of legal development recognising that the power to arrest is one of the most significant powers the state can exercise over individuals. The requirement for “reasonable grounds” and “reasonable necessity” reflects the principle that arrest should be a last resort, not a routine investigative tool.
The 2019 High Court case State of NSW v Robinson reinforced that police must have formed an intention to charge at the time of arrest. This means that they cannot arrest someone just to investigate or question them.
What the Law Actually Says
Specific Legislation Explained Simply
Section 99 of LEPRA is the key provision governing police arrest powers. Police can only arrest you without a warrant if the following two conditions are met:
- Reasonable suspicion: The officer must suspect on reasonable grounds that you are committing or have committed an offence
- Reasonable necessity: The arrest is reasonably necessary for one of nine specific purposes, including:
- Stopping you from committing or repeating an offence
- Ensuring you appear before the court
- Preserving evidence
- Protecting safety and welfare
- Because of the serious nature of the offence
Key Legal Definitions
- “Reasonable grounds” means more than a hunch or possibility. There must be objective, factual evidence supporting the suspicion.
- “Reasonably necessary” means arrest must be the appropriate response in the circumstances. If issuing a summons would suffice, arrest becomes unlawful.
- “False imprisonment” is the unlawful restraint of your liberty for any period of time, whether you’re formally “arrested” or not.
Recent Changes and Developments
The Robinson case (2019) significantly strengthened protections by confirming that police must have decided to charge you at the time of arrest. This prevents “fishing expeditions” where police arrest first and decide on charges later.
NSW courts have also become more willing to exclude evidence obtained through unlawful arrests. This change has made ensuring proper procedure more important for the police.
Real-World Scenarios
Scenario 1: Traffic Stop Gone Wrong
Police CAN: Stop your vehicle for random breath testing, request your licence and registration, and conduct limited searches with reasonable suspicion of offences.
Police CANNOT: Arrest you for a minor traffic offence if a summons would suffice, search your vehicle without reasonable grounds, or detain you longer than necessary for the stop.
Example outcome: A man received $582,000 compensation after police used excessive force during an arrest for a minor allegation, despite CCTV showing he didn’t resist.
Scenario 2: False Bail Breach Arrest
Police CAN: Arrest someone for a suspected bail breach if they reasonably believe conditions have been breached and officers have considered all alternatives.
Police CANNOT: Arrest based on outdated computer records without checking current bail status or arrest for conditions that have been varied or removed.
Example outcome: Over 50 young people received $1.85 million in compensation for arrests based on incorrect COPS data about bail conditions that no longer existed.
Scenario 3: Drug Detection and Search
Police CAN: Use drug detection dogs in certain locations, search a person if the dogs indicate drugs, and arrest said person if drugs are found.
Police CANNOT: Search without proper indication, arrest if the initial search was unlawful, or use excessive force during arrest.
Example outcome: A client’s drug charges were dismissed after the court found the initial search was unlawful, leading to successful civil compensation claim.
What Authorities Can & Cannot Do
Clear Boundaries and Limitations
NSW Police are bound by strict procedural requirements, including:
- Officers must identify themselves and explain the reason for the arrest
- NSW Police must use reasonable force only
- Officers cannot arrest for minor offences where a summons is also appropriate
- They cannot detain you beyond legal time limits without a warrant
Courts have clear jurisdiction:
- District Court handles most civil claims against police
- Supreme Court for claims over $750,000
- Strict limitation periods apply (3-6 years)
Common Misconceptions Corrected
Myth: “If charges were dropped, I can’t sue”
Reality: Civil action is separate from criminal proceedings. In fact, dismissed charges can actually strengthen your case because that usually means you should not be charged.
Myth: “Police immunity protects them from lawsuits”
Reality: In a civil suit, you sue the State of NSW, not individual officers. Additionally, immunity doesn’t apply to civil compensation claims.
Myth: “I need to prove police acted maliciously”
Reality: Unlike malicious prosecution, unlawful arrest claims don’t require proof of malice, just that procedures weren’t followed.
Grey Areas Acknowledged
Some situations remain complex, such as when police genuinely but incorrectly believe they have grounds for arrest. Courts consider the totality of circumstances, officer training, and whether a reasonable officer would have acted differently.
FAQs
How long do I have to sue NSW Police for unlawful arrest?
Six years from the date of arrest for general claims, three years if you’re claiming personal injury damages.
Do I have to pay costs if I lose my case?
Generally yes – you may be ordered to pay the State’s legal costs if unsuccessful, which is why legal advice is essential.
Can I get police records about my arrest?
Yes, through a Government Information (Public Access) Act application to NSW Police, which costs $30.
What if I was charged but charges were later dropped?
Dropped charges can actually strengthen your unlawful arrest claim, as they may indicate lack of reasonable grounds.
How much compensation might I receive?
Amounts vary widely based on circumstances. Examples include $582,000 for excessive force, with typical settlements confidential.
Can I sue if I was eventually convicted?
Yes, if the arrest itself was unlawful, even if evidence ultimately supported conviction through other means.
What’s the difference between unlawful arrest and malicious prosecution?
Unlawful arrest focuses on the arrest procedure; malicious prosecution requires proving charges were brought maliciously without reasonable cause.
Do I need witnesses to prove unlawful arrest?
Not necessarily – CCTV footage, police records, and officer testimony can all provide evidence.
Can I sue for emotional distress from wrongful arrest?
Yes, as part of general damages for pain, suffering, and humiliation caused by the unlawful detention.
What if the arresting officer was genuinely mistaken?
Honest mistakes don’t excuse unlawful arrests – the focus is whether proper procedures were followed.
Can I represent myself in court?
While possible, civil claims against the State are complex and legal representation is strongly recommended.
What happens during the civil court process?
After filing, there’s typically mediation before trial, with most cases settling out of court.
Practical Action Guide
What to Do Immediately After an Unlawful Arrest
- Document everything: Write down exact details while fresh in memory – time, location, officer names/numbers, witnesses present
- Seek medical attention: If injured, get immediate treatment and keep all medical records
- Take photographs: Document any injuries, damage to property, or relevant scene evidence
- Identify witnesses: Get contact details of anyone who saw the incident
- Keep all documentation: Retain court papers, police custody records, any written materials
What to Say and Legal Phrases to Use
During the incident: Remain calm and clearly state “I do not consent to this arrest/search” if you believe it’s unlawful.
When seeking legal help: “I believe I was unlawfully arrested on [date] because police lacked reasonable grounds/didn’t follow proper procedure.”
When making GIPA application: Request “all documents relating to my arrest on [date] including incident reports, custody records, and officer statements.”
Documentation Advice
Obtain these essential documents through GIPA application:
- Incident reports and police statements
- Custody records showing time in detention
- Any use of force reports
- Communications between officers
- CCTV footage if available
Keep detailed records of:
- All expenses related to the incident
- Lost income due to arrest/detention
- Medical treatment and ongoing effects
- Impact on employment or reputation
When You Need Professional Help
Situations Requiring Immediate Legal Assistance
Contact a lawyer urgently if:
- You suffered significant physical or psychological injury
- The arrest involved excessive force or inappropriate conduct
- You lost employment or suffered major financial consequences
- Criminal charges are still pending alongside civil claim considerations
- You’re approaching the limitation deadlines
What to Expect from Legal Representation
A qualified civil lawyer will:
- Assess the strength of your case against legal criteria
- Handle GIPA applications and evidence gathering
- Negotiate with State representatives for settlement
- Represent you in court proceedings if necessary
- Work on “no win, no fee” arrangements where appropriate
Award-winning specialists with over 20 years of experience in police misconduct cases understand the complexities of these claims and have proven track records protecting clients across Australia.
Taking Action – Your Next Steps
Don’t let police misconduct go unchallenged. Call Now: 02 9261 4281 for immediate assistance from accredited specialists in criminal law & civil law who have successfully recovered millions in compensation for clients wrongfully treated by NSW Police.
Free Initial Consultation Available – we’ll assess your case, explain your rights, and outline your options without obligation. Led by proven professionals who understand both the criminal and civil aspects of police misconduct cases.
Time limits are strict, but justice shouldn’t wait. Contact O’Brien Criminal & Civil Solicitors today to protect your rights and pursue the compensation you deserve.
