#8516 - Safeguards Relating To All Powers S201 - Litigation

3B Safeguards relating to all powers ss 201, 230 1

A when does s 201 apply? 1

(i) Reasons for power s 201(1)(c) 2

(ii) S 201(1) (a) evidence that they are a police officer: s 201(1)(a) LEPRA 2

(iii) S 201(1)(b) – name and place of duty provided at time of arrest: 2

(iv) S 201(2C) warn offence not to comply with request/direction 2

(v) Reasonably necessary force: ss 230; Moses 2

Appendix – s 201 etc. 3

(3) This section applies to the exercise of the following powers (whether or not conferred by or under this Act):

(a) a power to search or arrest a person,

(b) a power to search a vehicle, vessel or aircraft,

(c) a power to enter premises (not being a public place),

(d) a power to search premises (not being a public place),

(e) a power to seize any property,

(f) 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,

(g) a power to request a person to disclose his or her identity or the identity of another person,

(h) a power to establish a crime scene at premises (not being a public place),

(i) a power to give a direction to a person,

(j) a power under section 21A to request a person to open his or her mouth or shake or move his or her hair,

(k) a power under section 26 to request a person to submit to a frisk search or to produce a dangerous implement or metallic object.

	S 201(1)(c) - Police officer must provide person subject to exercise of power reasons for exercise of the power.

	A police officer must provide person subject to arrest with evidence that they are a police officer unless they are in uniform: s 201(1)(a)

	A police officer must provide person subject to arrest with his/her name and place of duty: s 201(1)(b)

(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) 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

(b) 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.

	Use of force generally by police officers: It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function: s 230
	Rule: A police officer can only use force that is reasonably necessary to carry out their powers under LEPRA (ss 230 LEPRA). Eg for arrest: Test: Once the arrest is proved or conceded the onus shifts to the D/police officer to prove the arrest did not involve more force than was reasonably necessary (Moses v State of NSW) Test is: that the reasonable person in the position of the PO would have found the use of force proportionate to exercising the function > “*a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented”: Moses* Agony of moment test: Note that in evaluating police conduct the matter must be judged by reference to the pressure of events and agony of the moment, not by reference to hindsight: Moses Consequences if excessive: If the police used more force than was reasonably necessary then the arrest was unlawful, they can be liable to be sued in tort for damages (Moses) Examples REASONABLE force for one plaintiff in Moses: where there was one plaintiff who started running from the plainclothes police officers, despite being called out to (‘Police! Stop!) they grabbed hold of him but not sufficiently firmly enough to cause bruising, and performed a leg sweep to get him to sit on the ground. This was force within ss 230-1: Moses NOT reasonable force for one P in Moses: Whereas unreasonable force was used in Moses when a plaintiff was not trying to leave the scene, was walking, there was no danger to a third person or victim (no one in vicinity likely to be attacked), no claim of urgency, and it wasn’t an emergency scene, and the police substantially outnumbered the two plaintiffs in personnel and equipment. then Moses was ‘jumped’, grabbed by 3 and up to 8 officers, forced down to ground face first, suffered lacerations to face and chest, he hadn’t been seen to commit a crime but. Also there were other ways of apprehending him, could approach him unobtrusively.

Use of force generally by police officers: It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function: s 230

Rule: A police officer can only use force that is reasonably necessary to carry out their powers under LEPRA (ss 230 LEPRA).

Eg for arrest:

Test: Once the arrest is proved or conceded the onus shifts to the D/police officer to prove the arrest did not involve more force than was reasonably necessary (Moses v State of NSW)
Test is: that the reasonable person in the position of the PO would have found the use of force proportionate to exercising the function > “a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented”: Moses
- Agony of moment test: Note that in evaluating police conduct the matter must be judged by reference to the pressure of events and agony of the moment, not by reference to hindsight: Moses
Consequences if excessive: If the police used more force than was reasonably necessary then the arrest was unlawful, they can be liable to be sued in tort for damages (Moses)

Examples

REASONABLE force for one plaintiff in Moses: where there was one plaintiff who started running from the plainclothes police officers, despite being called out to (‘Police! Stop!) they grabbed hold of him but not sufficiently firmly enough to cause bruising, and performed a leg sweep to get him to sit on the ground. This was force within ss 230-1: Moses
NOT reasonable force for one P in Moses: Whereas unreasonable force was used in Moses when a plaintiff was not trying to leave the scene, was walking, there was no danger to a third person or victim (no one in vicinity likely to be attacked), no claim of urgency, and it wasn’t an emergency scene, and the police substantially outnumbered the two plaintiffs in personnel and equipment. then Moses was ‘jumped’, grabbed by 3 and up to 8 officers, forced down to ground face first, suffered lacerations to face and chest, he hadn’t been seen to commit a crime but. Also there were other ways of apprehending him, could approach him unobtrusively.

1 For safeguards relating to property seized or confiscated by police, see Part 17.

2 For other requirements relating to personal searches, see Part 4.

201 Supplying police officer's details and giving warnings

(cf Crimes Act 1900, s 563, Police Powers (Vehicles) Act 1998, s 6)

(1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following:

(a) evidence that the police officer is a police officer (unless the police officer is in uniform),

(b) the name of the police officer and his or her place of duty,

(c) the reason for the exercise of the power.

(d) (Repealed)

(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)):

(a) if it is practicable to do so, before or at the time of exercising the power, or

(b) 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:

(a) if it is practicable to do so, before or at the time of exercising the power, or

(b) 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) 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

(b) 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) a power to search or arrest a person,

(b) a power to search a vehicle, vessel or aircraft,

(c) a power to enter...

#8516 - Safeguards Relating To All Powers S201 - Litigation - Criminal Procedure Rules

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