#7514 - Arrest And Bail - Evidence and Criminal Procedure

WAS THE ARREST LAWFUL?

As the facts state that [accused] has been arrested, the question is whether s/he was properly arrested. If [accused] can show that the arrest was unlawful all evidence after the unlawful arrest is subject to section 138, which excludes illegally or improperly obtained evidence unless the desirability of the evidence outweighs the undesirability of admitting the evidence (section 138(1)(b)).

When was [defendant] arrested? When does arrest occur?

The timing of [accused’s] arrest is important to the admissibility of [evidence] as a form of evidence. Whether [accused] is arrested will turn on whether it is made plain by what is said or done by [police] that [accused] is not free to leave as [s/he] chooses (R v Coombe and s110(2) LEPRA). Once [accused] is acting under a “compulsion” not to leave, [his/her] liberty is deprived and this will constitute an arrest (Lavery).

From the facts, it appears that [accused] [was/was not] deprived of [his/her] liberty at the time when [arresting officer] [action of arresting officer]. Therefore it is important to determine whether the arrest by [arresting officer] was lawful.

When can police search?

Police may stop and search anyone whom they reasonably suspect has something stolen anything or otherwise unlawfully obtained or anything used in an indictable offence. (S 21 LEPRA) Police drug dog sniffing does not constitute a 'search' (DPP v Darby).

Did [police] have section 99 justification?

[Police] will only have justification for arresting [accused] without a warrant if [police] was acting in accordance with any part of section 99 of LEPRA. [Choose from the following]:

• [Police] will be acting in accordance with 99(1)(a) if [accused] was in the act of committing an offence under [Act], namely [offence type].

• [Police] will be acting in accordance with 99(1)(b) if [accused] had just committed an offence under [Act], namely [offence type].

• [Police] will be acting in accordance with 99(1)(c) if [accused] has committed a serious indictable offence for which [accused] has not been tried.

• [Police] will be acting in accordance with 99(2) if [police] suspected on reasonable grounds that [accused] has committed an offence under [Act]. [Police] must have had reasonable suspicion under section 99 of LEPRA to justify [accused’s] arrest. A reasonable suspicion involves less than a belief but more than a possibility, it has to have some factual basis attached to it (R v Rondo). Whether [police] had reasonable suspicion is a two-limbed test; subjective and objective:

1. [Police] must satisfy the subjective test which asks: ‘Did [police] form a genuine suspicion?’

2. [Police] must also satisfy the objective test which requires the suspicion to be reasonable.

R v Rondo (2001)

Facts: A number of young males were driving towards NSW Heads Road, Eastern Suburbs and police stopped them for no apparent reason in which they found illicit substances in the car.

Held: A reasonable suspicion involves less than a belief but more than a possibility. There must be 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.357E. Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. Needs some factual basis for the suspicion – i.e: dog sniffing individual.

What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question, regard must be had to the source of that information and its content, seen in the light of the whole of the surrounding circumstances.”

Was the arrest necessary?

In DPP v Carr it was held that it is inappropriate for powers of arrest to be used for minor offences where [defendant’s] name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. [Police] will be acting in accordance with 99(3)(insert subsection from below) if [police] suspected on reasonable grounds that it was necessary to arrest [accused] [choose one of the following]:

1. To ensure the appearance of [accused] before a court in respect of the offence

2. To prevent a repetition or continuation of the offence or the commission of another offence

3. To prevent concealment, loss or destruction of evidence relating to the offence

4. To prevent harassment of, or interference with, [person required to give evidence], who is a person required to give evidence in the proceedings in respect of the offence.

5. To prevent the fabrication of evidence in respect of the offence

6. The preserve the safety or welfare of [accused]

DPP v Carr (2002) 127 A Crim R 151

Facts: A motor vehicle is being driven down streets of Wellington, an hour out from Dubbo. The police vehicle is struck by a rock which had actually been thrown by another person, and not the defendant. The police vehicle stopped and come over to Carr and asks questions. Carr is of the view they are blaming him for the damage to the vehicle. Reacts by saying the following to Const. Robins who knew Mr. Carr, where he lived and resided. He says ‘fuck off. I didn’t fucking do it. You can get fucked.’

Carr begins to walk away and the police officer grabs him while not under arrest and restricts his liabilities. Carr then pushes the officer off and runs away. Carr is then pursued 25m and crashed tackled to the ground. After a short struggle, Carr is finally restrained. He is then subsequently put in the motor vehicle, restrained and is grabbed by the shirt. Carr then subsequently tears the police officers shirt and begins to run again.

Const. gives case again and detains him and calls for urgent assistance.

Notice in those sequence of facts – Charges that could have accentuated: Assault from the grabbing, and ripping of the shirt, resisting arrest, offensive language

He is then taken down to the Docks and charged with those offences.

Carr says ‘You know what? I’m going to get you knocks. When you get down to Sydney, I’m going to get you killed. You and then that other cunt. I’ going to kill your kids… I’m going to kick the cunt right out of you.’ As a result he is charged with intimidation. It is important to note that Carr is charged with Offensive language, assault, which has a low threshold. It is important to recognise that in such circumstances, everything is on evidence, and as such, no self-defence issue.

Arrest for the purpose of investigation

Police are not empowered to arrest purely for the purposes of investigation (R v Dungay). Per Bryson J in Zaravinos, it is an “extraneous purpose to arrest a person as a piece of unnecessary highhanded and humiliating behaviour in circumstances in which arrest is not reasonably necessary for the effective conduct of a prosecution.”

Were any of the LEPRA safeguards breached?

Use of force in making an arrest

[Officer] may use such force as is reasonably necessary to make the arrest or to prevent the escape of X after arrest.

What is reasonable force?

A 15year old is running on the side of the road and the coppers stop and ask him what he is doing. He explains he is training for football.

The police officer does not believe and ask him what he has done, in which he tells the police officer to piss off.

At that time, the child bolts home, in which the police officers chase after him into his home and draw a gun in the family home in front of his family. They arrest him, putting his knee on his neck.

Police officers in their reports did not mention the drawing of the gun however their statements were in fact contradictory. 5 police statements were provided to the courts, and apparent CCTV footage, that the child assaulted a police officer.

On closer examination of the CCTV footage, it was found that a mirror reflection had shown the police officer initiating contact and bashing the child.

This was not reasonable force.

Police must provide identification

Under section 201, police must provide their ID to give evidence [he/she] is a police officer, name and place of their base and the reason for exercising the power. This applies unless [officer] is in uniform.

[Officer] must warn X that [he/she] is required by law to comply with the request and that failure to comply is an offence.

Once in custody

Time limit

Once arrested [officer] can only keep X for 4 hours (s114-115). However, this is purely investigation time and excludes certain other times (i.e. communication with lawyer, medical attention, access to toiled etc) (s117). There are many ways the [officer] can have this time extended. Therefore, it is unlikely the LEPRA safeguard will be breached.

What should X be told?

Under section 122 of LEPRA the custody manager is to caution and give a summary of section 122 to X.

Other rights

Section 123: Right to inform relative/guardian/legal practitioner

Section 128: Provision of interpreter

Section 129: Right to medical attention

Section 130: Right to reasonable refreshments and facilities

Special rights for Aboriginal or Torres Strait Islanders

Under regulation 24 an Aboriginal or Torres Strait Islander person has additional rights, and under Regulation 33, a police officer is required to ring the ALS immediately and inform them of the arrest.

R v...