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Safeguards Relating To Powers To Arrest Notes

Law Notes > Litigation - Criminal Procedure Rules Notes

This is an extract of our Safeguards Relating To Powers To Arrest document, which we sell as part of our Litigation - Criminal Procedure Rules Notes collection written by the top tier of University Of New South Wales students.

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3A safeguards for power to arrest

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3A Safeguards relating to powers to arrest ss 201, 230 Table of Contents

Intro 3

Powers relating to Arrest:
Safeguards relating to Powers - Howie & Johnson 17641767
SM 3843

Exam format Already proved:

1. A police officer arrested someone - the arrest (mere words, submit to compulsion etc.)

2. Arrest wasn't after unlawful entry - Halliday; Ibbett

3. Power to make arrest? S 99

4. Was for purposes specified in s 99(3)(a)(f)?
Situation: Police officer has arrested someone, there was power to make the arrest ( s 99(1) or 99(2) LEPRA)), it was for one of the purposes specified in s 99(3)(a)(f),

1. S 201? Issue is whether or not the police officer complied with the safeguards relating to the power to make an arrest under s 201 LEPRA.

2. S 230 LEPRA? Police officers exercising functions under LEPRA have power to use force as is reasonably necessary to exercise the function Was the power to arrest exercised?

1. Compliance with

2. Arrest by private persons (Photi)

3. How much force can be used to effect an arrest? (Moses)

A. What Police must do at time of arrest Checklist

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At time of arrest:

* Must provide reasons for arrest: s 201(1)(c) and 201(3)(a) LEPRA; and Christie and Johnstone

* Must provide evidence that s/he is a police officer: s 201(1)(a)

* Must provide name and place of duty: s 201(1)(b)

* Reasonable force used: s230231

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(i) Christie reasons for arrest s 201(1)(c) Intro

4 principle s governin g police procedur e

Rule: As LEPRA does not limit unless expressly or by limitation the functions obligations and liabilities a PO has at common law (s 4(1)(a) LEPRA), the common law requirements governing arrest continue to apply (Christie; Johnstone). So in addition to the statutory requirements under s 201(1)(c) LEPRA to provide reasons for the exercise of the power to arrest (S 201(3)(a)), the arresting officer is obliged to comply with common law principles that a person must be told the true ground of his arrest: Christie v Leachinsky ?
Rule: For the arrest of X to have been lawful the police officer must have informed X of the true reason for X's arrest (Christie; Johnstone; ss 201(1)(c) and 201(3)(a) LEPRA). The common law as enunciated in Johnstone determines the scope of the reasons that must be given to the arrestee.

* Rationale for Rule is to let persons being arrested to have opportunity to conduct themselves such that no offence is committed Persons are entitled to know why they are being arrested so they are able to give an explanation of any misunderstanding, or to call attention to others for whom they may have been mistaken, or to give some other exculpatory reason, and to assert that further inquiries may save them from the consequences of false accusation: Delly; Johnstone

* Exceptions: if person must already know general nature of alleged offence for which they are detained, or if the person makes it practically impossible to inform him (eg by running way): Christie ;

* Note - should inform reasons as soon as is reasonably practicable after exercising the power: s 201(2) LEPRA What is required to be given:

* Will depend on circumstances: An arrested person need not be given detailed particulars of the case against him or her. The person must be told why they are being arrested. How much information the person needs to be given will depend on the circumstances. (See NSW v Delly [2007] NSWCA 303 (Ipp, JA at
[8]))

* Must be substance of reasons: What is required is a statement in nontechnical language of the substance of the reason for which it is claimed the freedom of an arrested person is to be restrained (Johnstone at [51]). o Part of the reason for this flexibility: police may not know the charge which is to be laid - eg if person found standing over dead body - not sure if murder, manslaughter, aggravated homicide - just need to be told they are arrested in connection with the investigation of the death of x etc.

* Words cannot be equivocal: words that do not selfevidently refer

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to true ground for arrest are insufficient: Johntone

* Technical words not required: technical or precise language is not required. (eg x was murdered and I believe you stabbed him): Johnstone o (4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is one of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraint on his freedom if he knows in substance the reason why it is claimed that restraint should be imposed.

* Don't need exact offence nominated: It is not necessary for the exact offence to be nominated, officer is required to inform person of facts that have given rise to arrest (Delly; Johnstone)

* Arrest does not become illegal because later some other offence is charged. Nor does arrest become unlawful because the person arrested is later acquitted of the charge: Dearing v Passi Examples:

* in Johnstone, Police asked for identification to 'check up on him' and said that he hadn't been in trouble they wouldn't take further action. But if he didn't supply his name and details he would have to be arrested - but this was qualitatively different from being warned that it was an offence if he did not do so. This might have amounted to no more than telling him that if he did not cooperate they wouldn't go lightly on him as they'd intimated. These words were equivocal and did not self-evidently refer to the true ground of the arrest. A statement that if h o Purportedly arrested for not providing identification when required and warned under Regulations.

* Eg. An instruction that if someone didn't do something thed' be arrested is qualitatively different from being warned that it is an offence to not do something.

Exceptions to Christie

* Exception 1#: If person already knows: Person does not need to be told true ground for arrest if person must know general nature of alleged offence for which they are detained: Christie; Johnstone

* Exception 2#: If person makes it impossible: The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to 3 of 11

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