Every person should know what powers the police actually have to conduct an arrest. You would be foolish to think that only people guilty of offences need to worry about this. You would be an even greater fool if you think that every police officer can be relied upon to exercise the powers of arrest as they are required to do so.
If you have been subject to an arrest that has given you concerns then you should contact Michael Burke or Maria Walz of our Crime and Traffic Team. We deal with matters every day in the Newcastle area that involve questions about the lawfulness of an arrest.
So what power do the Police have to arrest? Most arrests of concern are those arrests that are conducted without a warrant. Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (‘LEPRA’) outlines what that power is. It provides the following:
1. A police officer may, without a warrant, arrest a person if:
- the person is in the act of committing an offence under any Act or statutory instrument, or
- the person has just committed any such offence, or
- the person has committed a serious indictable offence for which the person has not been tried.
2. A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument.
3. A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:
- to ensure the appearance of the person before a court in respect of the offence,
- to prevent a repetition or continuation of the offence or the commission of another offence,
- to prevent the concealment, loss or destruction of evidence relating to the offence,
- to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,
- to prevent the fabrication of evidence in respect of the offence,
- to preserve the safety or welfare of the person.
4. A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.
In summary the section provides that not all offences require the person to be arrested. We have experienced a number of matters where the police went beyond the scope of this section which resulted in court findings that the police did not act in the execution of their duty.
The challenge to an arrest and the evidence that can be used as a result of such an arrest is brought under Section 138 of the Evidence Act. That section allows the challenging of the admissibility of the evidence as a result of the behaviour of police at the time of arrest. The sections provide that evidence that was obtained:
- improperly or in contravention of an Australian law, or
- in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
Subs (3) provides for the matters to be considered by the Court in deciding whether or not to exclude the evidence. Those matters include:
- the probative value of the evidence, and
- the importance of the evidence in the proceeding, and
- the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
- the gravity of the impropriety or contravention, and
- whether the impropriety or contravention was deliberate or reckless, and
- whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognized by the International Covenant on Civil and Political Rights, and
- whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
- the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
When considering the lawfulness of an arrest and whether the evidence is admissible it should be remembered that LEPRA has attached a number of safeguards to the powers of arrest. These safeguards are necessary to ensure that the significant increases in powers of police are monitored. As Newcastle continues to experience the full brunt of the increase in power and increased confidence of law enforcement officers, one should be armed with knowledge of what rights the safeguards are there to protect members of the public and exercise them accordingly.
Section 201 outlines the safeguards: 1. A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following:
- evidence that the police officer is a police officer (unless the police officer is in uniform),
- the name of the police officer and his or her place of duty,
- the reason for the exercise of a power referred to in subsection (3),
2. A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (other than subsection (3)(g), (i) or (j)):
- if it is practicable to do so, before or at the time of exercising the power, or
- if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power.
2A. A police officer must comply with subsection (1) in relation to a power referred to in subsection (3)(g), (i) or (j) before exercising the power, except as otherwise provided by subsection (2B). 2B. If a police officer is exercising a power to give a direction to a person (as referred to in subsection (3)(i)) by giving the direction to a group of 2 or more persons, the police officer must comply with subsection (1) in relation to the power:
- if it is practicable to do so, before or at the time of exercising the power, or
- if it is not practicable to do so, as soon as is reasonably practicable after exercising the power.
2C. If a police officer exercises a power that involves the making of a request or direction that a person is required to comply with by law, the police officer must, as soon as is reasonably practicable after making the request or direction, provide the person the subject of the request or direction with:
- a warning that the person is required by law to comply with the request or direction (unless the person has already complied or is in the process of complying), and
- if the person does not comply with the request or direction after being given that warning, and the police officer believes that the failure to comply by the person is an offence, a warning that the failure to comply with the request or direction is an offence.
3. This section applies to the exercise of the following powers (whether or not conferred by or under this Act):
- a power to search or arrest a person,
- a power to search a vehicle, vessel or aircraft,
- a power to enter premises (not being a public place),
- a power to search premises (not being a public place),
- a power to seize any property,
- a power to stop or detain a person (other than a power to detain a person under Part 16) or a vehicle, vessel or aircraft,
- a power to request a person to disclose his or her identity or the identity of another person,
- a power to establish a crime scene at premises (not being a public place),
- a power to give a direction to a person,
- a power under section 21A to request a person to open his or her mouth or shake or move his or her hair,
- a power under section 26 to request a person to submit to a frisk search or to produce a dangerous implement or metallic object.
We have underlined and emphasised the important words in the act. The use of “must” is clear that these safeguards have to be adhered to.
If you are arrested and believe that one or more of the above have not been followed then do not hesitate to contact Michael Burke or Maria Walz of our Crime and Traffic Team.
The above information is of a general nature only and cannot be relied on as constituting legal advice. In this respect, we rely upon our Disclaimer at www.bemlaw.com.au/privacy-disclaimer
