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Section 3 POLICE POWERS
Arrest Without A Warrant
1 Search Persons/Seize Without Warrant
3 Detention After Arrest for the Purpose of Investigation
5 Use of Force
6 Police Caution
6 Police Providing Identification
7 Sniffer Dogs
8 Search Vehicles/Seize Without Warrant
9 LEPRA Safeguards
9 Criminal Procedure Act 1896
Requirement to Records (Admissions etc)
10 Evidence Act 1995
Admissibility of Admissions
11 Exclusion of Illegally Obtained Evidence
! ARREST WITHOUT A WARRANT
Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013
Note: The power of arrest without a warrant contained in s 99 of LEPRA was repealed and reenacted on 16/12/13 by the Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013 (LEPRA Amendment Act). This amendment expanded the power of police to arrest in a number of ways.
Section 99: Power of police officers to arrest without a warrant.
TEST 1 >
Reasonable grounds test
TEST 2 >
Reasonably necessary test
OF ARREST >
(1) A police officer may, without a warrant, arrest a person if:
(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and (Test 1: Suspects on Reasonable Grounds)
(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons: (Test 2: Arrest is reasonably Necessary)
(i) to stop the person committing or repeating the offence or committing another offence,
(ii) to stop the person fleeing from a police officer or from the location of the offence,
(iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,
(iv) to ensure that the person appears before a court in relation to the offence,
(v) to obtain property in the possession of the person that is connected with the offence,
(vi) to preserve evidence of the offence or prevent the fabrication of evidence,
(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
(viii) to protect the safety or welfare of any person (including the person arrested),
(ix) because of the nature and seriousness of the offence.
(2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant.
(3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law.
Note : The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer-see section 105.
(4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part.
(5) This section does not authorise a person to be arrested for an offence for which the person has already been tried.
(6) For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5.
Did the officer make it clear to the accused that they were under arrest and no longer free?
By words and conduct officer must make it plain to the person being arrested that he is no loner a free person - R V Inwood .
Did the police officer have a reasonable suspicion in order to conduct the arrest?
In R v Rondo (2001) it was stated in regards to "with reasonable care suspects":
a) A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something, which would create in the mind of a reasonable person an apprehension of fear.
b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material. The materials must have some probative value.
c) What is important is the information in the mind of the police officer at the time of the arrest. Having ascertained that information the question is whether that information could form a basis of reasonable suspicion.
Did the police officer inform the person why they were being arrested?
The person being arrested is entitled to know why he is being arrested and must be told the reason unless they themselves make this practically impossible - Thompson v Vincent (2005).
Officer need not nominate exact offence of the charge, only inform of reason for arrest.
Did the police officer take the person before an authorised officer following the arrest?
A police officer who arrests under s 99 must, as soon as reasonably practicable, take the person before an authorised officer to be dealt with according to law - s 99(4).
An unreasonable delay in taking an arrested person before an authorised officer will result in the person being unlawfully detained.
Did the police officer forcibly enter premises to arrest?
Referring to s 10, forcible entry to premises to arrest is permitted in circumstances where the officer announced their purpose yet was denied entry - R v O'Neill (2001).
Belief that a fugitive is inside a house is required before entry - Lippel v Haines (1989).
LEPRA s 99 is not the only power the police may use to arrest a person - they hold a power to arrest for breach of peace under the common law - a power that is reserved by s 4(2) - DPP v
Arrest as a last resort: Noted in Lake v Dobson (1981) where nude sunbathers should have been dealt with by summons not arrest. Reaffirmed in:
Forcible entry of premises
DPP v Carr (2002): Where an Aboriginal mans conviction was quashed after Magistrate Heilpern ruled evidence should be excluded under s 138 of the Evidence Act as the arrest for inappropriate langue was not necessary and could have been dealt with by CAN.
R v McClean : To have a lawful arrest the officer must first have a suspicion on reasonable grounds that the person has committed an offence. The officer must not arrest unless it is necessary to do so to achieve one or more of the purposes set out in LEPRA
Arrest will be unlawful unless it achieves one of the purposes of s99(3).
NSW Police Code of Practice (CRIME): Requires police officers to always consider an alternative to arrest, e.g. Caution, warning, infringement notice, penalty notice, CAN, youth conference.
LEPRA Amendment 2013: V Sentas and R McMahon (pg. 442) argue that the new s 99 in LEPRA
change the purpose of arrest from last to first resort. This is through the removal of the need for the arrest to have the purpose of "commencing proceedings" and also through by making the test for arrest more ambiguous for police.
Failure to comply: May lead to an exclusion of evidence under s 138 of the Evidence Act.
OF OLD s 99
UNDER s 105 AN OFFICER MAY DISCOUNTINUE AN ARREST AT ANY TIME.
2 SEARCH PERSONS/SEIZE WITHOUT WARRANT
Before Arrest >
Law Enforcement (Powers and Responsibilities) Act 2002
Section 21: Power of police officers to search persons without a warrant.
(1) A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists:
(a) the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,
(b) the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,
(c) the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,
(d) the person has in his or her possession or under his or her control, in contravention of the
Drug Misuse and Trafficking Act 1985 , a prohibited plant or a prohibited drug.
(2) A police officer may seize and detain:
(a) all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and
(b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and
(c) any dangerous article, and
(d) any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985 found as a result of a search under this section.
* The above in for a situation without or before arrest.
Section 23: Power to carry out search on arrest.
(1) A police officer who arrests a person for an offence or under a warrant, or who is present at the arrest, may search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything:
(a) that would present a danger to a person, or
(b) that could be used to assist a person to escape from lawful custody, or
(c) that is a thing with respect to which an offence has been committed, or
(d) that is a thing that will provide evidence of the commission of an offence, or
(e) that was used, or is intended to be used, in or in connection with the commission of an offence.
(2) A police officer who arrests a person for the purpose of taking the person into lawful custody, or who is present at the arrest, may search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything:
(a) that would present a danger to a person, or
(b) that could be used to assist a person to escape from lawful custody.
(3) A police officer may seize and detain a thing found in a search if it is a thing of a kind referred to in subsection (1) or (2).
(4) Nothing in this section limits section 24.
Section 24: Power to carry out search of person in custody.
A police officer may search a person who is in lawful custody (whether at a police station or at any other place) and seize and detain anything found on that search.
If an officer has the power as stated above they are authorised by LEPRA to undertake 3 types of searches:
1) Frisk - s 30.
3 2) Ordinary - s 30.
3) Strip - s 31.
These are defined under s 3 of the Act.
LEPRA s 32 acts as a safeguard: Preservation of Privacy and Dignity During Search.
(1) A police officer or other person who searches a person must, as far as is reasonably practicable in the circumstances, comply with this section.
(2) The police officer or other person must inform the person to be searched of the following matters:
(a) whether the person will be required to remove clothing during the search,
(b) why it is necessary to remove the clothing.
(3) The police officer or other person must ask for the person's co-operation.
(4) The police officer or other person must conduct the search:
(a) in a way that provides reasonable privacy for the person searched, and
(b) as quickly as is reasonably practicable.
(5) The police officer or other person must conduct the least invasive kind of search practicable in the circumstances.
(6) The police officer or other person must not search the genital area of the person searched, or in the case of female or a transgender person who identifies as a female, the person's breasts unless the police officer or person suspects on reasonable grounds that it is necessary to do so for the purposes of the search.
(7) A search must be conducted by a police officer or other person of the same sex as the person searched or by a person of the same sex under the direction of the police officer or other person concerned.
(8) A search of a person must not be carried out while the person is being questioned. If questioning has not been completed before a search is carried out, it must be suspended while the search is carried out.
(9) A person must be allowed to dress as soon as a search is finished.
(10) If clothing is seized because of the search, the police officer or other person must ensure the person searched is left with or given reasonably appropriate clothing.
There are also rules for conducting strip searches set out in s 33.
4 DETENTION AFTER ARREST FOR THE PURPOSE
Law Enforcement (Powers and Responsibilities) Act 2002
Section 114: Detention after arrest.
(1) A police officer may in accordance with this section detain a person, who is under arrest, for the investigation period provided for by section 115.
(2) A police officer may so detain a person for the purpose of investigating whether the person committed the offence for which the person is arrested.
(3) If, while a person is so detained, the police officer forms a reasonable suspicion as to the person's involvement in the commission of any other offence, the police officer may also investigate the person's involvement in that other offence during the investigation period for the arrest. It is immaterial whether that other offence was committed before or after the commencement of this Part or within or outside the State.
(4) The person must be:
(a) released (whether unconditionally or on bail) within the investigation period, or
(b) brought before an authorised officer or court within that period, or, if it is not practicable to do so within that period, as soon as practicable after the end of that period.
(5) A requirement in another Part of this Act, the Bail Act 2013 or any other relevant law that a person who is under arrest be taken before a Magistrate or other authorised officer or court,
without delay, or within a specified period, is affected by this Part only to the extent that the extension of the period within which the person is to be brought before such a Magistrate or officer or court is authorised by this Part.
(6) If a person is arrested more than once within any period of 48 hours, the investigation period for each arrest, other than the first, is reduced by so much of any earlier investigation period or periods as occurred within that 48 hour period.
(7) The investigation period for an arrest (the
"earlier arrest" ) is not to reduce the investigation period for a later arrest if the later arrest relates to an offence that the person is suspected of having committed after the person was released, or taken before a Magistrate or other authorised officer or court, in respect of the earlier arrest.
Section 115: Investigation period.
Begins when person is arrested and ends at a time that is reasonable having regard to all the circumstances, but that does not exceed the maximum investigation period (s 115(2)).
* The maximum investigation period was increased from 4 to 6 hours in the LEPRA 2014
Section 17: Time outs.
Provides for time outs, during which time the investigation period countdown stops.
Things such as accused speaking with friends, seeking medical attention, time recovering from alcohol etc.
D v McClean : Magistrate Heilpern: "Detention following arrest may be permissible for the purposes of s 109 to 114 of LEPRA, but only if the arrest is lawful in the first instance".
D v Campbell [2008: (This case deals more specifically with Part 9 of LEPRA (Detention &
Investigation powers in whole)
Facts: Aboriginal youths drinking in park next to bridge. Notice racist graffiti and became upset. A violent incident then occurred between the youths and two white men. The youths were then arrested and took part in recorded interviews, which led to a conviction. This was appealed because it was claimed the youths were not provided the correct support upon arrest as found in Clause 24 and 33 of LEPRA in relation to Aboriginals as "vulnerable" people. The youths were not provided access to Aboriginal Legal Services.
Rule: The provisions of clause 33 were ignored. The youths were not provided the services as required by LEPRA. The arrest was thus illegal and the evidence deemed invalid as per s 138 of the Evidence Act. Convictions set aside.
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