Being arrested for a domestic violence related offence in NSW is a serious and can lead to negative repercussions on your personal and professional life. These may include the imposition of an Apprehended Domestic Violence Order (ADVO), strict bail conditions, and or a conviction. Understanding what happens next is critical to protecting your rights and preparing your defence.

This article will guide you through the key stages following an arrest including:

• The arrest and charge process,
• What to expect in police custody,
• Your legal rights, and
• Next legal steps you need to take.

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The Arrest Process: What to Expect

When Can Police Arrest You for Domestic Violence?

Arrests can occur immediately on the spot, often based on a complaint from the alleged victim, visible injuries, or other evidence such as witness statements or police observations. The goal is to prevent further harm and ensure the safety of those involved. Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) lists when it is reasonably necessary for police to arrest you without a warrant, this include whether they believe on reasonable grounds that a person has or is committing an offence.

What Happens at the Time of Arrest?

When you're arrested for a domestic violence offence, the process is usually swift and serious. Police will handcuff you, inform you of the reason for the arrest, and transport you to the police station for processing. At the station, you’ll be formally charged and may be asked to provide an electronically recorded interview and undergo a forensic procedure, which includes a buccal swab. Police may also search you and seize personal items, especially if they are considered relevant to the investigation, this often includes your mobile phone, clothing, or devices containing potential evidence.

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Your Rights After a Domestic Violence Arrest

Do You Have to Answer Police Questions?

If you’re arrested for a domestic violence offence in NSW, you have the right to remain silent. This means you are not legally required to answer police questions (except to provide your name and address). In many cases, it’s wise to exercise this right by giving a “no comment” interview. Anything you say can be used as evidence, and speaking without legal advice can harm your defence with a possibility of self-incrimination. Always speak to a lawyer before agreeing to an interview, even if you believe you're innocent or the situation is a misunderstanding.

Can You Contact a Lawyer?

Yes, you have the right to contact a lawyer and speak to them privately before being interviewed by police. You should inform officers that you wish to speak with a lawyer, this is your legal right, in fact officer must caution you by stating you don’t have to say or do anything, pursuant to section 122 of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). If you don’t have a lawyer, the police must allow you to contact a duty lawyer or Legal Aid. Police are not allowed to begin an interview until you’ve had a reasonable opportunity to get legal advice.

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Bail and Release After a Domestic Violence Arrest

Will You Be Released or Held in Custody?

After being charged and arrested with a domestic violence, police must decide whether to let you into the community or hold you in remand until you can appear before a magistrate for a fresh custody bail application. This decision is guided by the Bail Act 2013 (NSW) and depends on several factors, including the seriousness of the allegation, your criminal history, and whether you're considered an unacceptable risk (e.g. risk of reoffending or interfering with the alleged victim). If the allegation involves violence, coercion, or there’s a history of prior breaches, the chances of being refused police bail increase significantly.

Bail Conditions for Domestic Violence Accused

If you’re granted bail after a domestic violence arrest, it will likely come with certain conditions. These may include:

• No contact with the complainant,
• Preventing you from entering the complainant’s suburb,
• Curfews,
• Restrictions on alcohol or drug use, and or
• Regular reporting to a police station.

These conditions are legally enforceable, even if you believe the allegation is false. Breaching any of them can lead to re-arrest, new charges, and a strong likelihood that bail will be revoked. Courts take breaches seriously, so it's crucial to understand and comply fully with all bail terms. If a condition is unfair or unworkable, speak to a lawyer about applying for a variation.

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Understanding ADVOs After Arrest

Can You Be Issued an ADVO Without a Charge?

Yes. In NSW, police can apply for a provisional Apprehended Domestic Violence Order (ADVO) even if no formal criminal charges are laid. These orders are designed to offer immediate protection to the alleged victim based on the risk of future harm, not just past conduct. An ADVO can be issued purely on the basis of a complaint or concern for someone’s safety. It’s important to understand that breaching an ADVO is a separate criminal offence, carrying serious penalties even if the underlying allegations are later withdrawn or dismissed.

What Conditions Might an ADVO Include?

An ADVO can include a wide range of conditions. Common conditions include:

• No contact with the protected person, including phone, text, or social media,
• Exclusion from the family home or workplace of the protected person,
• Prohibition on indirect contact, such as through friends or relatives,
• Bans on approaching certain places, like schools or childcare centres, and or
• Requirements not to stalk, intimidate, or harass.

These conditions are enforceable immediately and remain in place until varied or revoked by a court.

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What Happens Before Your First Court Date?

Do You Have to Attend Court in Person?

Yes, if you’ve been charged with a domestic violence offence, you are required to attend your first court date in person. Failing to attend can result in a warrant being issued for your arrest. Even if you believe the allegation is false or minor, it’s critical to show up as domestic violence matters are treated seriously, and a non-appearance may be seen as disrespect for the process or a sign of risk. If you’re unsure about your court requirements, seek legal advice immediately.

Why You Should Speak to a Lawyer Before Court

Speaking to a lawyer before your first court appearance is crucial. A criminal defence lawyer can review the police facts, explain the charges, and advise you on the best strategy. They can also negotiate bail conditions, seek variations, and assess the strength of the case against you. Legal advice helps you understand your rights, obligations, and possible outcomes. A well-seasoned lawyer can also provide advice on whether you should plead guilty or not guilty to the charges. Preparing early with professional guidance can significantly impact how your case proceeds and reduce the stress of facing court alone.

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