Investigation and arrest

Contributed by RennieAnderson, as amended by EmmaHenke and current to October 2025

Abbreviations used in this chapter:

BA: Bail Act 1982
BTFDA: Business Tenancies (Fair Dealings) Act 2003
CA: Customs Act 1901
CCA: Criminal Code Act 1983
CSA: Correctional Services Act 2014
DPP: Director of Public Prosecutions
DFVA: Domestic and Family Violence Act 2007
ENULA: Evidence (National Uniform Legislation) Act 2011
FPRA: Fines and Penalties (Recovery) Act 2001
FRU: Fines Recovery Unit
JP: Justice of the Peace
KMA: Kava Management Act 1998
LA: Liquor Act 2019
LCCPA: Local Court (Criminal Procedure) Act 1928
MUDA: Misuse of Drugs Act 1990
MVA: Motor Vehicles Act 1949
MVR: Motor Vehicle Registry
PAA: Police Administration Act 1978
PSA: Private Security Act 1995
RTA: Residential Tenancies Act 1999
SA: Sentencing Act 1995
SDA: Surveillance Devices Act 2007
TR: Traffic Regulations 1999
TTP agreement: time to pay agreement
WCA: Weapons Control Act 2001
YJA: Youth Justice Act 2005

Before a person can be found guilty of an offence, sufficient evidence must be presented to satisfy a court that there is no reasonable doubt the person committed it. Usually, it is the police who conduct an investigation to obtain that evidence. The police force's power to conduct an investigation, question and search suspects, seize property and arrest suspected offenders is contained in the legislation listed above.

This section sets out the relevant laws for adults. For the laws relevant to youth, please see Young people and crime

Criminal investigations

In the usual course of investigating an offence police generally question people who may have seen or heard something relevant to the matter. They may also ask a person to accompany them to the police station. However, unless arrested, a person is not obliged to accompany police anywhere for any reason. If a person becomes a suspect they may be arrested by police. Once arrested, the person is taken into custody. They are then usually asked to participate in an interview, which they can choose to do or rightfully refuse. These interviews are recorded, usually both in video and audio tapes or by electronic means. Police aren't allowed to keep a person in custody unless they have been lawfully arrested.

The right to silence

A fundamental principle of criminal law in Australia is that a suspect can refuse to answer all questions asked by police. A person can also choose to answer some questions and refuse to answer others. As a general rule, it is advisable to seek legal advice before speaking to Police.

When information must be given

Although a person has a right to silence, questions must be answered and information given to police in the following circumstances:

Suspects

A police officer who has reasonable cause to suspect that a person has committed, is committing or is about to commit an offence, or that they may be able to assist in the investigation of an offence or a suspected offence, can require the person to give their correct name and address [PAA s 134(2)]. The penalty for failing to comply is a fine of 4 penalty units PAA s 134(4)]. A person can be prosecuted and found guilty for failing to comply, unless they have a reasonable excuse PAA s 134(6)].

Drivers

If requested to do so by a police officer, the driver of a motor vehicle must immediately produce their licence and state their name and address on request [MVA ss 113(1)(2)]. The penalty for failing to do so is a fine of 20 penalty units [MVA s 113(1)(2)]. A person who does not comply with the request may be found guilty of an offence unless they have a reasonable excuse for failing to comply [MVA s 113(3)].

The driver of a motor vehicle that is involved in an accident where a person is seriously injured or dies must stop at the scene, give any assistance to the person that is reasonable and as soon as practicable after the incident notify Police that the incident occurred, the location of the incident, that the driver was the driver of the vehicle involved and the driver’s name [CCA s 174FA(1)]. Failure to do so is a serious criminal offence with a maximum of 7 or 10 years imprisonment [CCA s 174FA(1)].

The driver of a vehicle involved in a crash that causes injury or damage to a person or property must stop for a sufficient time to allow enquiries to be made by the person injured or whose property has been damaged and render the assistance that they can at the scene of the crash [TR s 19(1)]. The accident and the driver’s name must be reported to police within 24 hours [TR s 19(2)]. A police officer may require a person to submit to a breath test if they suspect the person involved in a crash [TA s 29AAC(1)(b)].

(For further information, see Road rules and traffic offences ).

Drug offenders

A customs officer has the power to question a passenger on a ship or aircraft or a person who is on board, has alighted from or is about to board a ship or aircraft about whether that person has dutiable, excisable or prohibited goods (including prohibited drugs) [CA s 195(2)]. The penalty for failing to answer these questions is a fine of 30 penalty units [CA s 195(2)] (see Drug offences ).

Under the MUDA a Police officer who has stopped a vehicle in an authorized area has certain powers to ask for a person's name and particulars (see Searching for Dangerous Drugs , below).

Providing a police officer name and details

If a police officer reasonably believe a person may be able to assist with inquiries in relation to an offence that may have been or may be committed, the police officer can require the person to state their name and address and produce identity [PAA s 134(1)]. Failure to do so carries 4 penalty units [PAA s 134(4)]. Providing false or misleading details is also punishable by 4 penalty unity [PAA s 134(8)].

Obtaining the police officer’s details

If a police officer requires a person to provide their name and address pursuant to s 134 or s 134A of the PAA, the person is permitted to in turn require the police officer to state their name, rank and place of duty and provide that information in writing [PAA s 134B].

Search and seizure (under criminal law)

When investigating an alleged offence, police may wish to search a person's premises, vehicles or land and seize material to use as evidence. The law sets parameters for how this the search or seizure must be conducted. If this is not complied with, the evidence is considered to be obtained unlawfully. When evidence has been unlawfully obtained, it cannot be used to prove the case against the person unless the court is satisfied the desirability of admitting the evidence outweighs the undesirability of admitting evidence [ENULA s 138]. Where premises have been entered unlawfully or goods have been unlawfully seized and detained, a civil wrong called trespass against the person has been committed.

Where police are authorised to conduct a search and seizure, it is an offence to hinder them in carrying it out [PAA s 159]. The person conducting the search is authorised to use such reasonable force as is necessary [PAA s 120D]

Police officers exercising search and seizure powers must do so bona fide and not for an ulterior purpose. Bona fide means in good faith. If a police officer exercises a power for an ulterior purpose, the evidence would be unlawfully obtained [The Queen v Gehan [2019] NTSC 91].

Although searches and seizures are largely carried out by police, some non-police officials, such as tax investigators, customs officers and fisheries inspectors, also have certain powers to search and seize.

When can police search and seize?

There are several bases on which the PAA, LA, MUDA and CSA empower Police to conduct searches and seize property. They are as follows:

Search and seizure without a warrant on the basis of reasonable belief

Police may, without a warrant:

• 1. search a person or enter and search land, premises or an aircraft, ship, train or vehicle if the circumstances are of such seriousness and urgency as to justify immediate search or entry [PAA s 119(1)]. The police officer may then seize anything found they reasonably believe is connected with an offence or poses a risk to safety [PAA s 119(1A)]
• 2. search a person enter and search an aircraft, ship, train or vehicle if they reasonably believe that person is carrying a weapon and seize any weapon found [PAA ss 119(2)(3)]
• 3. search a person and enter and search land, premises or an aircraft, ship, train or vehicle if they reasonably believe an explosive, restricted weapon or ammunition is in control of a person in a public place, is being carried in an aircraft, ship, train or vehicle or is at any other place. The police may seize an explosive, restricted weapon or ammunition found during the search. [PAA ss 119AA(1)(2)(3)].

Section 68 of the SDA empowers police to conduct search and seizure if they reasonably believe a person possesses a surveillance device that is intended to be used in contravention of the SDA.

Search and seizure without a warrant on the basis of reasonable suspicion

While the above provisions allow Police to search and seize when they hold a reasonable belief, three main powers permit police to conduct a search without a warrant on the basis of a reasonable suspicion.

Reasonable suspicion has been defined to mean ‘a suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’ [George v Rockett (1990) 93 ALR 48 citing Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266].

• Dangerous drugs: s 120C of the PAA permits a search on a reasonable suspicion basis
• Alcohol: s 237 of the LA permits a search on a reasonable suspicion basis
• Dangerous weapons: s 19 of the WCA permits a search on a reasonable suspicion basis
• Kava: s 32 of the KMA permits a search on a reasonable suspicion basis

Search and seizure without a warrant of persons in police custody

Police may, without a warrant:

• search a person in custody’s clothing and property in their immediate control [PAA s 144(1)]. The police officer may seize any restricted weapon or article capable of inflicting injury or escape [PAA s 144(2)]. The police officer can require a person in lawful custody to remove any clothing if they reasonably believe that its removal and examination may produce evidence that the person committed the offence they are charged with [PAA s 144(3)].

Body searches should be, as far as practicable, carried out by a member of the same gender [PAA s 144(4)].

Search without a warrant of person in Department of Corrections custody

A person in the custody of the Department of Corrections can be searched without a warrant (including a search of the person, their belongings or their cell) [CSA s 47].

Search and seizure without a warrant relating to firearms

Division 5 and sections 47, 97, 98 and 98A of the Firearms Act 1997 (NT) empower Police to conduct searches and seizure in relation to firearms offences without a warrant.

Search and seizure with a warrant

A written and signed authority from a JP or judge, called a warrant, permits the police to carry out a specific task or specific tasks To obtain a search warrant, a police officer must make an application to a Justice of the Peace (JP) [PAA s 117].

Police may, with a warrant:

• search a person or enter and search land, premises or an aircraft, ship, train or vehicle as authorised by the warrant [PAA s 117] and to seize any items described on the warrant or anything found in the course of the search that they reasonably believe is connected with any offence [PAA s 118A].

A warrant issued by a JP can authorise:

• the searching of a person (including their clothing or property in their immediate control) and seizure of anything found during the search [PAA s 117] (1)].
• the entering and searching of land, premises or aircraft, ship, train or vehicle and seizure of anything found during the search [PAA s 117](2)].

An application for a search warrant can be made either by telephone or in person [PAA ss 117, 118]. Before issuing a search warrant, the JP must be satisfied that there are reasonable grounds to do so [PAA s 117(3)]. The search warrant must be signed by the JP and must detail the purpose of the search or entry and contain a description of the nature of the property that can be seized [PAA s 117(5)(a)(b)]. The search warrant must contain the date the warrant ceases to have effect, which must not be more than 14 days from the date of issue [PAA s 17(5)(c)]. The police are permitted to seize any items described on the warrant or anything found in the course of the search that they reasonably believe are connected with any offence [PAA s 118A].

In addition to the PAA, a number of other Acts empower police to apply for a search warrant, including:

• Animal Protection Act 2018 (NT)
• Criminal Investigation (Extra-Territorial Offences) Act 1985
• Planning Act 1999 (NT)
• Youth Justice Act 2005 (NT)

Specific provisions relating to drug offences

In addition to the above, the following provisions also apply specifcally to drug offences.

Search with a warrant

A search warrant can be issued on where at JP is satisfied there are reasonable grounds to believe there is a drug, drug precursor or drug manufacturing equipment at a place, on a person or in their property or within 72 hours may be brought into a place or concealed on a person [PAA ss 120B(1)(a)(b)(ba)]. In these circumstances, police can search the place and any person at the place [PAA s 120B(1)(c)]. These warrants remain in for as long as period as the JP specifies [PAA s 120B(5)].

Gender of person conducting search

In relation to dangerous drugs matters, statute requires a female suspect should only be searched by a female police officer, an authorised medical practitioner or a female authorised by police [PAA s 120E].

Internal examinations

Under s 35A of the MUDA, police may seek an order from the Supreme Court when it is believed that a person has swallowed a dangerous drug, or may have concealed a dangerous drug on/in their body. Such court order will permit investigations by X-ray, ultrasound, etc., and an internal examination can be carried out by an appropriately qualified person.

Drug premises order

The Commissioner of Police may apply to the court for a 'drug premises order' if a dangerous drug is found at the same premises on two or more separate occasions within 12 months [MDA s 11D(3)]. There is no requirement for the the owner, landlord or tenant to be served with any notice [MDA s 11H]. The order is in effect for 12 months from the date it was made but it only comes into effect once the requisite person is served with the order. The notice must specify that a 'Drug Premises Notice' will be affixed to the premises within seven days, unless an application for revocation is made [MDA s 11N].

A drug premises order enables the police to enter the premises without a warrant and conduct a search [MDA s 11R (1)(a)]. They may also search any person in the drug house, including clothing and any property in the person's immediate control, where that person is reasonably suspected of carrying anything connected with an offence under the MDA. Under section 11R(3) of the MDA, police are also allowed to :

• use reasonable force to break into, enter and search a drug house
• use reasonable force to open any cupboard, drawer, chest, trunk, box, package or other receptacle, whether a fixture or not, in a drug house
• use reasonable force to search a person.

It is an offence to prevent, delay or obstruct a police officer from entering the premises to conduct a search, or to warn another person that the police have begun or are about to begin a search [MDA s 11S]. The owner, tenant or landlord may apply to the court to get the drug house order revoked [MDA s 11P]. When considering such an application the court must be satisfied of either of the following:

• on the balance of probabilities, dangerous drugs are no longer being or likely to be supplied from the premises
• it would be unjust to keep the order in force.

When rented residential premises are declared to be 'drug premises', the landlord can terminate the tenancy of this premises on 14 days notice [s 88A of RTA; MDA s 11U(1)].

When business or liquor-licensed premises are declared to be 'drug premises', the landlord can issue a Notice requiring vacant possession of the business premises within 14 days [BTFDA s 126 ; MDA s 11U(3)].

In addition, as far as liquor-licensed premises are concerned, the Commissioner of Police may seek to have the liquor licence suspended [Liquor Act s 49A; MDA s 11W].

Seizure

If Police conduct a search relating to drug offences, Police may, without a warrant:

• 1. seize any substance they reasonably believe to be a dangerous drug [PAA s 120BA].
• 2. seize any thing, money or security they suspect on reasonable grounds to be connected with or derived from a dangerous drug [PAA s 120BB].
• 3. order the destruction of a dangerous drug [MUDA s 19B(1)] (regardless of whether the person has been charged [MUDA s 19B(2)]).

Specific provisions relating to liquor offences

In addition to the above, the following provisions also apply specifcally to liquor offences.

Search without a warrant

Section 238 of the LA permits a police officer to conduct a search, without a warrant, in circumstances where:

• The search is conducted on a random basis,
• The search is conducted to detect whether a forfeiture offence was committed, is being committed or is about to be committed, and
• The search is conducted:
  • Within a general restricted area or special restricted area, or
  • On a vehicle, vessel or aircraft a police officer reasonably suspects to be travelling to a general restricted area or special restricted area (or a driver, passenger or crew member of such a vehicle, vessel or aircraft), or
  • In relation to baggage or cargo the police officer reasonably suspects to be destined for a general restricted area or special restricted area

These powers are often referred to as 'random search powers'.

The term random basis has been defined to mean ‘in the absence of a reasonable suspicion … in order to be characterised as “random”, the selection of a person for search could not be made capriciously or for a purpose unconnected with legitimate policing of the liquor laws as they then stood’ [Babui v O’Neill [2020] NTSC 50].

The term about to be committed denotes acts that are proximate to the offence. For example, any communities have markers for the beginning of a general restricted area, colloquially known as ‘the limit’. The offence is about to be committed at the point in time the person is intending to enter the general restricted area from ‘the limit’. Judicial interpretation holds that the legislature did not intend to allow random searches whenever a car was heading to a general restricted area [The King v Amital (2022) 102 MVR 422].

Seizure

Pursuant to s 243 of the LA , Police are empowered to seize, without a warrant, liquor in certain circumstances.

Pursuant to s 244 of the LA , Police are empowered to seize, without a warrant, any thing that the inspector or officer believes on reasonable grounds was used in the commission of certain offences, including the unauthorised sale and supply of liquor, offences relating to general restricted areas and special restricted areas, and purchase of unauthorised liquor. Vehicles are often seized pursuant to these provisions.

If a vehicle, vessel or aircraft is seized pursuant to the LA, the Commissioner of Police must take reasonable efforts to identify any owner or person with interest in the vehicle, vessel or aircraft and notify them that it has been seized, where it is held, what charges are laid in respect of it (if any), the process for release, that it may be forfeited and the process for opposing forfeiture [CPFA s 247].

My property has been seized. How can I get it back?

The following section addresses how you can acheive the return of your property if it has been seized pursuant to the PAA or the LA.

The PAA authorises seizure, but does not set out the procedure for return of property.

If your property has been seized by Police, Police may keep it if they have a lawful basis (e.g. it is evidence of an offence or a prohibited item). If Police do not have a lawful basis to keep it, it should be returned. Your first step to secure the return of the property should be to contact the Police Station and request release of the property.

If Police do not release the property, you may apply to the Local Court for an order that the property be returned. The Court is empowered to make such an order pursuant to s 130B of the LCCPA. You should seek legal advice in relation to making this application (see Legal Aid).

Section 271 of the LA empowers the Commissioner of Police to release a thing seized under the Act. Section 272 of the LA requires the Commissioner of Police to release a vehicle, vessel or aircraft seized if no person was charged with an offence relating to the thing seized within the time allowed for the laying of the charge, only an infringement notice was given in respect of the thing seized, the court ordered so or proceedings have ended and a relevant order was not made.

Seizure and Forfeiture (under civil law)

This CPFA aims to disrupt crime by removing the economic benefits. The act establishes a regime for property to be seized, restrained and forfeited. These proceedings are civil proceedings and they do not require that a person is convicted of an offence.

The act distinguishes between:

• crime-used property: property used, or intended to be used, in the commission of an offence
• crime-derived property: property wholly or partly derived from criminal conduct
• unexplained wealth

When can Police seize property?

Pursuant to s 39 of the CPFA, Police may:

• Seize any property if there are reasonable grounds for suspecting that the property is crime-used property, crime-derived property or the property is owned or controlled by a person who has been charged with an offence and could be declared to be a declared drug trafficker.

Police may only retain the property for more than 72 hours if an interim restraining order or restraining order is in force [CPFA s 39].

Restraining orders

While a restraining order is in effect, the property cannot be dealt with and the person who applied for the restraining order can apply for the property to be forfeited to the Territory [CPFA s 49].

Interim restraining order

If the Police or Prosecution make an application to the Local Court, the Local Court may, if satisfied the circumstances justify the making of the order, order an interim restraining order be in place for no more than three working days [CPFA s 40].

Restraining order

The Local Court may, on application by Police or Prosecution, make a restraining order in relation to property specified in the application if there are reasonable grounds for suspecting that the property is crime-used or crime-derived [CPFA s 43].

Service requirements

As soon as practicable after a restraining order is made, the applicant in relation to the order must arrange for a copy of the order and a notice be served personally on the person the property was taken from and any person who may have a claim of interest on the property [CPFA s 47]. The notice must summarise the effect of the order, advise the person that the property may be forfeited, advise the person that they can file an objection to the restraint of the property within 28 days and advise the person of their obligation to lodge a statutory declaration [CPFA s 47].

Statutory declaration

A person who is served with a restraining order should, within 7 days of being served, file a statutory declaration detailing the name and address of any other person who may have claim to the property or a statement that no other person has claim to the property. Failure to do so is an offence punishable by 2000 penalty units or 2 years imprisonment [CPFA s 48].

Forfeiture

The Prosecution can apply to the Local Court for a forfeiture order [CPFA s 95(1)]. The effect of the forfeiture order is that the property subjected to a restraining order is forfeited to the Territory [CPFA s 98].

The forfeiture order does not come into effect until after the objection period has expired for a person served with a copy of a restraining order and, if there is an objection, until after the objection has been determined [CPFA s 95(3)].

For crime-used property, the Court must make the order if it is satisfied that it is more likely than not that the property is crime-used [CPFA s 96]. For crime-derived property, the Court must make the order if it is satisfied that it is more likely than not that the property is crime-derived [CPFA s 96]. For unexplained wealth, the Court may order that the property is forfeit to the Territory if the Court has already made a declaration that the person has unexplained wealth, namely that their total wealth is greater than his or her lawfully acquired wealth [CPFA ss 71, 100].

Burden of proof

If the person has been convicted of the relevant forfeiture offence, it is presumed property is crime-used unless they establish otherwise [CPFA s 83(1)].

If the person has not been convicted of the relevant forfeiture offence, but the Prosecution establishes that it is more likely than not the crime-used property was in the person’s possession at the time that the offence was committed or immediately afterwards, it is presumed that the person made criminal use of the property unless they establish otherwise [CPFA s 83(2)].

My property has been seized or forfeited. How can I get it back?

Objections to restraining of property

A person may file an objection to a restraining order in the court that made the restraining order [CPFA s 59]. The objection should be filed within 28 days of the order being served on the person or, if the order was not served on the person, from when they could reasonably be expected to have become aware that the property had been restrained [CPFA s 60]. It is possible for the court to allow further time [CPFA s 60]. The Court on hearing the objection may set aside the restraining order [CPFA ss 63, 64 and 65]. You should seek legal advice in relation to making an objection (see Legal Aid).

Application for release of forfeited property

A person can, within 28 days from when they could reasonably be expected to have become aware that the property had been restrained, apply to the court that ordered the forfeiture for the release of the property [CPFA s 119]. You should seek legal advice in relation to making this application (see Legal Aid).

Property protected from seizure and forfeiture

Family photographs, family portraits, necessary food and necessary clothing are protected from seizure, the application of a restraining order and forfeiture if they are not crime-used property [CPFA s 150(1)].

Ordinary tools of trade, professional instruments and reference books are protected from seizure, the application of a restraining order and forfeiture if they are not crime-used property or crime-derived property [CPFA s 150(2)].

Arrest

The law dealing with arrest and detention in the NT is complicated. The powers of the police in the NT are as wide, if not wider, than they are in any other jurisdiction in Australia. To understand their rights, an individual needs to know the extent of police powers.

Arrest occurs when a person is no longer at liberty to come and go as they please. To be detained, apprehended or in custody are all terms referring to being under arrest. The person the subject of questioning or arrest is referred to as the suspect, offender, detainee or accused.

The police can make an arrest with or without a warrant. Generally, an arrest is lawful if the police officer who carries it out is acting out of an honest belief based on the relevant facts. However, sometimes an arresting officer is mistaken about the facts, in which case the arrested person should be released. A person who believes they are being wrongfully arrested should, rather than resisting arrest, comply and argue about the legality of the arrest later. Even if the person honestly believes they were wrongly arrested, to resist might leave them open to a charge of resisting arrest.

Citizen's arrest

The powers for a citizen to arrest in the NT are set out in the CCA. In summary, it is lawful for a citizen to arrest another person who is committing an offence, or who they believe on reasonable grounds has committed an offence, when the arrest of the offender is necessary:

• to ensure the appearance of the person in a court;
• to preserve public order;
• to prevent the offence being repeated or a further offence committed;
• for the safety or welfare of members of the public or the person themselves [CCA s 441(2)(a)].

A citizen can also make an arrest if told to do so by a police officer [CCA s 441(2)(b)] or they reasonably believe the person is escaping legal custody or helping someone else to escape CCA s 441(2)(c)]. Similarly, if a citizen reasonably believes a person is avoiding capture by the police, they can make a citizen's arrest.

A citizen who makes an arrest is not permitted to question the person they have apprehended about an offence [CCA s 441(3)]. The person must be delivered to the police as soon as is practicable [CCA s 441(4)].

The CCA also permits a citizen to use necessary force, as long as it is not likely or intended to cause death or grievous harm, to prevent a person who has been lawfully arrested from escaping, committing a further breach of the peace, or preventing the commission of an offence [CCA s 27].

Private security guards

It is common for major shopping outlets to provide staff at the entrance and exits to their stores to search bags and watch for any illegal activities such as shop lifting. These staff do not have specific powers to arrest people for illegal activities and usually rely on the powers they have as citizens to effect an arrest (see Citizen's arrest above).

In the NT, people who act as security guards have to hold an appropriate licence. A person without the proper licence faces a penalty of 100 penalty units [PSA s 13]. Security guards have no specific designated powers under their licences and also rely on the powers of citizen's arrest to detain someone who they believe on reasonable grounds has committed an offence.

Store detectives and security guards may have additional authority, delegated to them by the owner of the premises they are hired to protect. An example of this authority may be the power to issue trespass notices.

Police arrest and entry

There are several ways a person may be dealt with to have the offender brought before a court (see Going to Court). One such way is that the person is arrested.

A police officer is require to inform a person at the time of their arrest or as soon as practicable thereafter the offence for which they are arrested [PAA s 127(1)]. It is not necessary for this to be done in precise or technical language [PAA s 127(2)].

Arrest with a warrant

Where information on oath is put before a JP alleging there are reasonable grounds for believing a person has committed and offence, the JP may either:

• issue a warrant for the arrest of the person, or
• issue a summons requiring the person to appear before a court [PAA s 121(1)].

An arrest warrant must state briefly the matter or complaint on which it is founded and either name or describe the person against whom it is issued [PAA s 121(5)]. A warrant authorises all police officers to arrest the person named in it wherever or whenever they are found and to take the action specified in the warrant, which is usually to take the suspect into custody and bring them before a court.

An arrest warrant may be issued by telephone [PAA s 122].

Arrest without a warrant

A police officer can arrest a person without a warrant if they reasonably believe that:

• the person has committed, is committing or is about to commit an offence [PAA s 123];
• the person has committed an offence against the law of another State or Territory and that a similar offence in the NT is punishable by more than six months in prison [PAA s 125].

A police officer can also arrest a person where a warrant has been issued for the person by a judge or justice of the peace (JP) [PAA s 124].

A person may be arrested without warrant if a Police officer believes on reasonable grounds, the person has committed, is likely to commit or is committing an infringement (fine-ticket) offence. charge [PAA s 133AB(1)]. The provisions allow the person to be detained up to 4 hours or if the person is intoxicated, until they are no longer intoxicated, without charge [PAA s 133AB(2)]. After this period, the person may be released with or without an infringement note or upon bail or brought before the Court [PAA s 133AB(3)]. These provisions were examined in North Australian Aboriginal Justice Agency Limited & Anor v Northern Territory of Australia [2015] HCA 41.

Police powers to enter premises

A police officer who has a warrant to arrest a person may make the arrest by entering any premises, vehicle or vessel, using force if necessary, at any time of the day or night or between times specified in the warrant, if they reasonably believe that the person is there [PAA s 126].

A police officer without a warrant may do likewise if the suspect if they believe the person is at the place and the person is believed to have committed an offence punishable by more than six months imprisonment [PAA s 126A].

A police officer without a warrant may also do likewise to arrest a person pursuant to a parole revocation order [PAA s 126AB].

A police officer without a warrant may also do likewise for the purpose of protecting a person who has suffered, is suffering or is in imminent danger of suffering personal injury at the hands of another person or if another person at the place has contravened, is contravening or is about to contravene a domestic violence order [PAA s 126B]. If a police officer enters the place for this purpose, they may search the place for restricted weapons if they reasonably believe a restricted weapon is at the place and leaving it at the place could put a person in danger or injury [PAA s 126C].

A police officer without a warrant may also do likewise for the purpose of confirming whether a respondent to a DVO is at a place and dealing with the person consistent with their powers under DFVA [PAA s 126E]. However, if the place is a dwelling police require the consent on an occupier of the dwelling [PAA s 126E(2)].

Police may enter a place using the above powers at any time of day or night and by using such force as is necessary to enter [PAA s 126D].

Use of force

A police officer may use as much force as is reasonably necessary to arrest a person [CCA ss 27, 28]. Unreasonable force is unlawful. A judge can decide whether force used was reasonable in the circumstances.

It is an offence to assault, resist, hinder or obstruct a police officer in the execution of their duty, or to aid or incite another person to do so (PAA s.158; CCA s.189A).

Detention for intoxication

Police can arrest a person without a warrant, apprehend the person and take the person into custody if the member reasonably believes:

• the person is intoxicated,
• the person is in a public place or trespassing on a private property, and
• because of their intoxication the person:
  • can’t adequately care for themselves and there is no-one else to care for them, or
  • may harm themselves or someone else, or
  • may cause substantial annoyance to people, or
  • is likely to commit an offence [PAA s 128(1)].

Police may enter private property without a warrant to exercise this power [PAA s 128(2].

A person who is apprehended because they are drunk can only be held in custody for as long as they are drunk and no longer than six hours [PAA s 132]. If, after six hours, police believe that the person is still intoxicated, they must take them before a judge as soon as is practicable [PAA s 132]. A person who is apprehended and taken into custody after midnight can be held in custody until 7.30am on the same day, even if they are no longer intoxicated [PAA s 129].

A person in custody under s 128 of the PAA should not be charged with an offence or questioned in relation to an offence [PAA s 130]. Police are permitted to require a person in custody pursuant to s 128 of the PAA to submit to a breath test or breath analysis and take the person’s name and other information relevant to identification, such as photographs, fingerprints and biometrics [PAA s 130A].

A person in custody under s 128 of the PAA can request a police officer take them before a court to make an application for release [PAA s 133].

Detention for investigation

A person who has been lawfully arrested and placed in custody for an offence, and subsequently refused bail under the BA, must, as soon as practicable, be brought before a JP or a court, unless they are being detained under section 137 of the PAA. Under section 137 a person in lawful custody may be detained for a 'reasonable period' for police questioning or so that investigations can be conducted and evidence gathered in relation to the offence. A person who is arrested for one offence can be questioned in relation to another, as long as it carries a penalty of at least five years imprisonment. It does not matter whether the offence was committed in the NT.

Although the PAA does not make clear what length of time constitutes a reasonable period, it does list a number of criteria a court or JP may take into account when deciding whether a detention period is reasonable [PAA s 138]. In general, the definition of a reasonable period varies from case to case, depending on the circumstances and the seriousness of the charges laid and the investigation requirements.

Points to remember if arrested

• A person should ask the police officer if they are being arrested and is entitled to know the reason for that arrest;
• A suspect only has to give their name and address. A person who does provide information to police, makes a statement or gives a record of interview can, provided they have been properly cautioned, have that information used against them in court;
• No attempt should be made to resist police.
• A person who suspects that their arrest is unlawful should object as frequently as possible and, where possible, in the presence of independent witnesses;
• Independent people should be informed about the arrest and place of detention as soon as possible. A lawyer should be requested and the detainee should not answer any questions until they have spoken to them;
• A person who decides they will not say anything to police should make that decision clear. The person should state their name and address and then advise police 'I do not want to say anything further at this stage'. This should be repeated if police continue to question or put forward allegations. A person who can safely help police with their inquiries should do so;
• If asked by an accused's legal representative, spouse, parent or child, a police officer must say if the accused is being held in custody and, if so, where they are being held. However, any such disclosure can only be done with the consent of the accused [PAA s 135];
• A person arrested for failing to pay a fine has the right to be taken before a Local Court. Police General Orders provide that a fine defaulter who is confined in a cell must be brought before the court within 24 hours.

Being questioned

Refusing to answer questions

A person who does not wish to say anything to police should make that wish clear. They should state their name and address and then advise police: 'I do not want to say anything further at this stage'. If police continue questioning or put forward a series of allegations, the suspect should repeat their wish not to say anything.

Except in specific cases (see When information must be given above), a person need not answer police questions, write or say anything.

The fact that a person refused to answer questions can be given as evidence in court, but a judge will note, or a judge must inform a jury, that it is a person's basic right to refuse to answer questions and any refusal is not to be taken as evidence of guilt or innocence.

Guidelines police must follow

Police must ensure fairness in interviewing. Police General Order Q1 deals with the require Police conduct in questioning.

Evidence obtained through repeated interviewing or cross-examinations, by continually putting allegations to the person after they have denied them or by continual questioning after the person has refused to answer, may be excluded by the court.

A person who has had their words recorded by police in an electronically recorded interview will receive a copy of the recording. A person has a right to refuse to:

• answer any questions;
• sign any statements;
• take part in an ID parade;
• consent to any the collection of forensic samples, such as blood and hair samples (though these can be authorised in certain circumstances (see Forensic examinations and samples below);
• take part in any re-enactment of an alleged crime.

A person who is questioned about matters unrelated to their initial arrest should be informed of the matter under investigation. Also, police must:

• inform the person, before any questioning or investigation commences, that they do not have to say anything and that anything they do say may be given in evidence (this is known as a caution [PAA s 140(1), ENULA s 139])
• inform the person that they are permitted to communicate with a friend or relative to let them know where they are. This advice and the person's response should, where practicable, be electronically recorded [PAA s 140(2)]
• defer all questioning and investigation for a time that is reasonable in the circumstances to enable the person to make the above communication [PAA s 140]

The investigating officer doesn't have to comply with these requirements if they believe, on reasonable grounds, that such communication would result in either the escape of an accomplice or the fabrication or destruction of evidence or where questioning in an investigation is urgently required to protect the safety of others [PAA s 140(c)(d)].

The above warning and offer of facilities should be recorded by the police officer [PAA s 141].

Special guidelines must be adhered to when questioning foreign nationals, youth, First Nations people and other disadvantaged groups, such as migrants (see Special rights , below).

Confessions and admissions

Subject to an overriding discretion of the court to admit evidence in the interests of justice [PAA s 143], a confession or admission made to a police officer is not admissible unless:

• the substance of the confession or admission was confirmed by the person and the confirmation was electronically recorded [PAA s 142(1)(a)], or
• the confession or admission was electronically recorded [PAA s 142(1)(b)].

There is no such thing as an 'off-the-record' conversation with a police officer.

Other actions that may occur when in custody

Forensic examinations and samples

A police officer can arrange for a doctor or dentist to carry out an intimate procedure on a person who is in custody and has been charged if they believe on reasonable grounds that the procedure may provide evidence relating to the offence or any other offence punishable by imprisonment [PAA s 145(1)]. A list of intimate procedures can be found at s 4 of the PAA. For an intimate procedure to be conducted, the person must consent in writing, and a Local Court Judge must approve it [PAA S 145(2)].

A police officer holding the rank of Senior Sergent or higher can approve the carrying out of a non-intimate procedure if the police officer reasonably suspects the person has committed and indictable offence and the person is in custody charged with an offence punishable by imprisonment [PAA s 145A(1). A list of non-intimate procedures can be found at s 4 of the PAA. A member of the police force can carry out the non-intimate procedure [s 145A(2)].

Alternatively, a police officer holding the rank of Senior Sergeant or a higher rank may carry out a non-intimate procedure on a person who consents to the non-intimate procedure being carried out. The person's consent is to be in writing [PAA s 145B].

Police may also fingerprint a person and take photos of a person in custody in relation to a charge of an offence or a warrant [PAA s 146(1)].

First Nations people and the Anunga Rules

In 1975 a NT Supreme Court case, R v Anunga [1905] ArgusLawRp 116; (1995) 11 ALR 412, successfully challenged the validity of alleged confessions made by an First Nations people. In that case the court set down a series of guidelines for police to follow when interrogating First Nations people. The guidelines or Anunga Rules, as they have come to be known, aim to make interrogation a fairer process for First Nations people or anyone who may be disadvantaged, such as migrants.

If police do not comply with the Anunga Rules, the court may look carefully at any 'confession' made by an accused and reject it on the grounds that is unfair to the accused.

These rules or guidelines are as follows:

• An interpreter should be used by police when the accused is not reasonably fluent in English;
• A prisoner's friend (who may also be the interpreter) should be present throughout the interrogation to provide independent support. The role of prisoner's friend can be a difficult one and it should be remembered that the friend is there to provide independent support and advice. The friend should not pressure the accused into saying things that they would rather not say. The police are not obliged to choose an appropriate prisoner's friend; the choice must be made by the person being interviewed. If the friend can't understand the police, further help, preferably from a solicitor, should be sought (see Legal help );
• Great care should be taken by police when they give the standard caution; that is, when they inform the person that they do not have to answer any questions. To confirm that the accused has understood, they should be asked to explain the caution in their own words;
• Police should not cross-examine the accused; that is, questions should be open-ended;
• Even when an accused makes a frank confession to an offence, the investigation should continue to obtain proof from other sources;
• Meals, refreshments and toilet facilities should be appropriately provided;
• No interrogation should take place when people are disabled by disease or drunkenness;
• If a person requests legal assistance, reasonable steps should be taken by police to obtain it;
• When clothing is removed from the person for forensic examination or medical examination, substitute clothing should be supplied.

The rules are not actually rules of law but guidelines constituting some of the circumstances which if not followed, may lead to the exclusion of otherwise admissible evidence of a confession by a defendant.