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Law Notes Litigation - Criminal Procedure Rules Notes

Power For Police Officers To Arrest V3 Notes

Updated Power For Police Officers To Arrest V3 Notes

Litigation - Criminal Procedure Rules Notes

Litigation - Criminal Procedure Rules

Approximately 238 pages

These notes aim to set out the relevant legal principles, and material facts from cases in order to demonstrate how those legal principles have been applied. Because of how heavily statute-focused this topic is, in some places I've extracted the relevant statute in the text or in a 'comment'.

At the beginning of each document on each topic, there is a table of contents (hyperlinked so you can navigate easily through the document), and also 'checklists', which you can use during revisions or ex...

Available here

The following is a more accessible plain text extract of the PDF sample above, taken from our Litigation - Criminal Procedure Rules Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Lit 1 crim_2A Power for POs to arrest

Lit 1 crim_2A Power for POs to arrest 1

Overview - 2

Prelim issue – was there an arrest? 3

A Arresting without a warrant: either s 99(1) or 99(2) 3

1 s 99(1) lawful arrest: caught someone in act of committing/just committing/has committed serious indictable offence 4

2 Lawful arrest under S 99(2): reasonable suspicion of offence committed 5

3 reasonable suspicion necessary to arrest for purposes in s 99(3)(a)-(f)? 7

4 Did unlawful arrest become lawful? 8

5 procedures followed after? (go to other notes – s 201, s 230) 8

6 Ending arrest at any time under s 105(1) LEPRA 9

Powers relating to Arrest

  • LEPRA ss 99-102, 105, 107-108; Howie n 1722-1726, 1728

  • SM 13-37

Note miscellaneous: 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?

Overview -

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;

    • 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

    • Procedure of arrest and police following rules and regulation

Other:

  • Meant to be a measure of last resort.

Methods of arrest:

  1. 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)

  2. PO With a warrant – see s 101 LEPRA

  3. 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.)

  4. NonPO but security personal – see s 100 LEPRA

Ending an arrest:

  1. 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?

  1. PO can also issue a warning, caution or penalty notice to a person: s 107(2) LEPRA.

  2. PO can still commence proceedings for an offence against a person otherwise by arresting them: s 107(1) LEPRA .

  3. 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).

Prelim issue – was there an arrest?

Rule: Mere words may be sufficient to amount to an arrest if, in the circumstances of the case, they are calculated to bring, and do bring, to a person’s notice that he is under compulsion and he thereafter submits to the compulsion: Lewis v Norman.

  • After an arrest the onus to prove lawfulness shifts to the D (Zaravinos)

Example:

  • In R v Minh Quoc Le – Requiring persons to get out of a car and stand on footpath – was arresting them.

Note:

  • No need for arrest for imprisonment to exist: Lassanah

A Arresting without a warrant: either s 99(1) or 99(2)

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:

    1. in the act of committing an offence (s 99(1)(a)) or

    2. who has just committed an offence (s 99(1)(b)) or

    3. 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:

    1. to ensure the appearance of the person before a court in respect of the offence,: s 99(3)(a) LEPRA

    2. to prevent a repetition or continuation of the offence or the commission of another offence,: s 99(3)(b) LEPRA

    3. to prevent the concealment, loss or destruction of evidence relating to the offence: s 99(3)(c) LEPRA...

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