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Powers Relating To Arrest Notes

Law Notes > Litigation - Criminal Procedure Rules Notes

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Lit 1 crim_2 Power to arrest

Powers relating to Arrest
LEPRA ss 99-102, 105, 107-108; Howie n 1722-1726, 1728
SM 13-37 Note miscellaneous thing:

* Under s 11 and 12 police have power to request ID from people. Police have power to detain someone while they provide it. Issues to figure out:
? Do the police have to say any particular words, such as "you are under arrest"?
? Is the arrestee entitled to know what they are being arrested for?
? Do the police have to know precisely the offence for which the person is being arrested or will a vague description suffice?
? Are the police entitled to physically restrain the person at the time of the arrest?
Intro: What does an arrest by police do?

* More things Police can do: Activates a number of coercive investigative powers eg detention, questioning, search and seizure;

* More things Police have to do: Imposes obligations on the police eg duty to inform arrestee of reasons for arrest, cautioning (informing of right to silence);

* More things arrestee has to do: Imposes obligations on arrestee eg not entitled to resist arrest; o May be exceptions: if arrest is unlawful maybe arrestee can resist. But if arrest is lawful arrestee has obligation not to resist.

* Lawfulness and propriety of arrest has implications for evidencen - eg admissibility of evidence at trial - s 138 of Evidence Act o Procedure of arrest and police following rules and regulation Other:

* Meant to be a measure of last resort. Methods of arrest: A. PO Without a warrant - see 99(1) for specific powers, s

99(2) for when police has reasonable grounds to suspect that a person has committed an offence under any Act or statutory instrument and PO suspects ion reasonable grounds it is necessary to arrest person to achieve one of the purposes specified in s 99(3) B. PO With a warrant - see s 101 LEPRA C. PO can arrest persons with/without warrant who are unlawfully at large - s 102 LEPRA (person who is at large at a time when required by law to be in custody in a correctional centre.) D. NonPO but security personal - see s 100 LEPRA Ending an arrest: E. PO can discontinue an arrest at any time: s 105(1). For example if the arrested person is no longer a suspect or the reason for the arrest no longer exists for any other reason: s 105(2)(a) OR if it is more appropriate to deal with the matter in some other manner, eg by issuing a warning or caution or a penalty notice or court attendance notice or in the case of a children dealing with matter under Young Offenders Act 1997: s 105(2)(b). Other / no arrest?
A. PO can also issue a warning, caution or penalty notice to a person: s 107(2) LEPRA. B. PO can still commence proceedings for an offence against a person otherwise by arresting them: s 107(1) LEPRA . C. For children: PO is not required to arrest a person under age of 18 years if it is more appropriate to deal with matter under Young Offenders Act 1997 (NSW).

A Arresting without a warrant Typical exam answer where PO has arrested X: Ie if PO has arrested X without a warrant, for this arrest to have been lawful, the police officer must have had a suspicion on reasonable grounds that the person has committed an offence ( s 99(2) LEPRA) AND the arrest must be necessary to achieve one or more of the purposes set out in s 99(3)(a)-(f).

* Note - as PO did not arrest X in the act of committing an offence or just after committing an offence, or where the person has committed a serious indictable offence (where there is evidence eg DNA to identify the offender) - s 99(1) LEPRA is inapplicable. How to validly arrest someone without a warrant

1. Option 1#: S 99(1) gives police officer power to arrest without a warrant a person: a) in the act of committing an offence (s 99(1)(a)) or b) who has just committed an offence (s 99(1)(b)) or

1 s 99(1) specific

2 s 99(2)

c) a person who has committed a serious indictable offence for which person has not been tried (s 99(1) (c)): s 99(1) LEPRA

2. Option 2#: If PO suspects on reasonable grounds: 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: s 99(2) LEPRA
? See Rondo

3. Condition 1# for option 1# and option 2#: 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: a) to ensure the appearance of the person before a court in respect of the offence,: s 99(3)(a) LEPRA b) to prevent a repetition or continuation of the offence or the commission of another offence,: s 99(3)(b) LEPRA c) to prevent the concealment, loss or destruction of evidence relating to the offence: s 99(3)(c) LEPRA d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence: s 99(3)(d) LEPRA e) to prevent the fabrication of evidence in respect of the offence: s 99(3)(e) LEPRA f) to preserve the safety or welfare of the person. : s 99(3)(f) LEPRA

4. Obligation 1# after arrest: No unreasonable delay: 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: s 99(4)

5. Obligation 2# after arrest: Principles governing police procedures at time of arrest: Johnstone s 99 (Christie v Leachinsky) Option 1#: S 99(1) gives police officer power to arrest without a warrant a person: a) in the act of just committing an offence (s 99(1)(a)) or b) who has just committed an offence (s 99(1)(b)) or c) a person who has committed a serious indictable offence for which person has not been tried (s 99(1) (c)): s 99(1) LEPRA For the arrest of X to have been lawful without a warrant under s 99(2) LEPRA the police officer must have suspected on reasonable grounds that X had committed an offence under any

Act or statutory instrument: s 99(2) LEPRA What amounts to 'suspects on reasonable grounds"

* What info was in mind of PO? What is relevant is the information in the mind of the PO making the arrest, and whether that information afforded reasonable grounds for the suspicion formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances: Rondo

* Some factual basis is required and the evidence material relied upon must have probative value: Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value: Streat v Bauer; R v Rondo

* Reasonable suspicion involves less than a reasonable belief but more than a possibility and more than a reason to consider/look into the possibility of its existence. Streat v Bauer; R v Rondo Something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s 21 LEPRA (eg reasonable suspicion that someone has something in their possession which is unlawfully obtained). Example offences:

* Note that under s 11 and 12 police have power to request ID from people. Police have power to detain someone while they provide it. Examples of reasonable suspicion found/not found:

* Not reasonable suspicion in Rondo (when required for the stopping of a car): mere fact that a person was driving a car they did not own or hire or lease is not sufficient to give rise to a reasonable suspicion. Many young people drive cars belonging to a parent or sibling: R v Rondo. o In Rondo: the young fresh faced man was driving a smart fast open coupe with some panel damage on Epping Road - when asked if car was his he replied no. At time of stopping car police officer did not have any material on which he could form any the reasonable suspicions under s 36 LEPRA. o After stopping car: Police officer searched vehicle, found cannabis leaf and $860 in console. Person arrested and taken to Police Station, refused to answer questions. Police obtained detention and search warrant to search home found cannabis leaf and cannabis plants: Rondo

*

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3 necessar y to arrest?

o On trial: Judge didn't canvass the legality of the police requiring the appellant to stop his vehicle. However if there was no lawful stopping it was submitted that the subsequent search was illegal: thus appeal in Rondo o Consequences: ? go to section on s 138 Evidence Act 1995 Where a vehicle has been unlawfully stopped it becomes a matter for the Court's whether evidence obtained as a consequence revealing a criminal offence should be admitted: see s.138 of the Evidence Act 1995 Yes reasonable suspicion in Minh Quoc Le o FactS: (1) There were two expensive cars, each containing four young occupants parked close together at 9:55 pm. well after dark, on the edge of a reserve; (2) Dealers in illegal drugs often did business there; (3) The driver of the blue car, in which appellant was a passenger, behaved suspiciously by driving it off at high speed while the officer was speaking to the driver of the other car; (4) The two drivers gave the officer inconsistent answers: the first told him that the occupants of the two cars were together, but the appellant's car told him that he did not know who was in the first car. o Yes: PO reasonably suspected appellant of having/conveying any thing unlawfully obtained or intended to be used in the commission of an indictable offence (dealing in any prohibited drug). o (Also note - even if arrest unlawful, unlawfulness cannot affect lawfulness of detention and search which followed. The arrest didn't lead to the discovery of information or prompting of further inquiry which led to the revelation of unlawful activity. There was detention and search that directly led to the discovery of the pistol that the appellant was carrying. ) yes reasonable suspicion in McClean. Facts: Radio info (suspected malicious damage occurring, attempting to break into a unit, or suspected aggravated break enter and steal offence), Communication with other police, Information provided by victim, Statement from M about dog, Location of M (outside balcony), Manner and appearance of M (aggressive and drunk).

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Unless the police officer suspected on reasonable grounds it was necessary to arrest the person to achieve one of the purposes in s 99(3) the arrest was unlawful. (i) Purposes to meet to: a) Ensure the appearance of the person before a court in respect of the offence: s 99(3)(a) LEPRA b) Prevent a repetition or continuation of the offence or the

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