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Arrest And Bail Notes

Law Notes > Evidence and Criminal Procedure Notes

This is an extract of our Arrest And Bail document, which we sell as part of our Evidence and Criminal Procedure Notes collection written by the top tier of University Of Technology Sydney students.

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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 twolimbed 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.

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