What is an Arrest?
Irrespective of whether it may be a police officer or any other person or authority, an arrest is a deprivation of a person’s liberty. That means you cannot leave the presence of that person. You will know that you have been arrested (whether lawfully or unlawfully) if you are restrained or blocked from leaving if you try.
The ‘not free to leave’ proposition can be expressed to you directly or it can be implied. That means when a police officer tells you, “You are under arrest!” that means you have been expressly told you are not free to leave. It can also be implied in circumstance where if no words and a police officer prevent you from leaving.
This latter proposition where they do not expressly tell the person they are not free to leave can be problematic when the police try to rely on the arrest where no words are spoken, and they have obtained evidence from that arrest they say proves you committed a crime.
Powers of Police Officers
Police officers in New South Wales have legal obligations when they decide to exercise a power.
They must be able to justify their actions when they choose to exercise such powers, whether they be an arrest, search, or other power that deprives people of their liberty and or compels them to do and tell them certain things.
Police Powers of Arrest
An arrest is a power the police have when they reasonably suspect that you have committed an offence, or are about to commit an offence, or in the process of committing an offence. They must also tell you the reason for arresting you. The exception is, they do not have to tell you the reason if it is not reasonably practicable to do so, such as they are arresting people participating in a public order incident such as an unlawful protest or riot.
The power of arrest for police officers is found under section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002. (LEPRA).
The police officer must suspect on reasonable grounds that the person is committing or has committed an offence.
This is the power that police use when they arrest a person for an assault, shoplifting, or damaging property (malicious damage) etc.
In this circumstance the law requires that the arrest is “reasonably necessary.’ That means the police must have a reason for arresting you, which may include:
- To stop the commission or repetition of the offence or committing another offence
- To stop the person fleeing from a police officer or from the location of the offence.
- To establish the persons identity if it cannot be established or if they reasonably suspect that the identity information is false.
- To ensure the person appears before the court
- To obtain property from the person that is connected to the offence.
- To preserve evidence or prevent fabrication of evidence.
- To prevent interference/harassment with any person/witness who may give evidence in relation to the offence.
- To protect the safety and welfare of any person (including the person arrested)
- Because of the seriousness of the offence.
There is a wide scope of reasons that the police can rely upon to make the arrest necessary.
The most common would be to prevent the commission or repetition of an offence, if they intend to place bail conditions on the person because of the seriousness of the offence, to prevent interference/harassment of a person who is a witness such as in a domestic violence offence, or to protect people against themselves, such as an intoxicated person wandering into traffic.
When exercising powers generally police must comply with certain ‘safeguards’ to the person as soon as reasonably practicably or in the case of a direction before the power is exercised.
The “safeguard” requirement applies to the exercise of powers relating to:
- Stop, search and arrest.
- Stop or search of a vehicle, vessel, or aircraft.
- Entering to search a premises.
- Seizing property.
- Disclosing the identity of a person (including requiring a person to remove a face covering).
- Directions around compliance with a law.
- Establishing a crime scene.
- Any other power whether allowed by or granted under LEPRA.
The ‘safeguard’ requires the police officer to:
- Provide evidence they are a police officer unless they are wearing a uniform;
- Their name and his/her/their place of duty; and
- The reason for exercising the power.
If the police fail to justify why the arrest was reasonably necessary, such as why they just issue a fine, or some other less restrictive action other than depriving you of your liberty, then the arrest could be deemed unlawful. Any evidence obtained because of that unlawful arrest could be thrown out by a court and so result in you being found not guilty of the offence.
Similarly, if the police fail to apply the ‘safeguards’ when they exercise a power upon you, and fail to provide proper justification, then any evidence obtained as a result the failure (whether it was deliberate of reckless) could be excluded by a court, and so result in you being found not guilty of the offence they sought to prove against you.
However, in most situations police must only arrest a person when it is necessary because if their decision to arrest is placed under scrutiny, and it is found to be unnecessary, this raises the issue of their conduct being unlawful and possibly criminal and tortious.
Other powers of arrest and detention
In other situations, police can arrest (or detain) a person when they have specific powers to compel people to comply (otherwise they commit an offence) in certain situations.
For example, in the case of being pulled over for a random breath test, police have a power under the Road Transport Act 2013 (RTA) to compel you to submit and provide them with a sample of your breath to see whether you have alcohol in your blood. Should that sample of breath register a positive result, they have the power to arrest you for the purpose of taking you to a police station and making you submit to a breath analysis.
At the stage of registering a positive sample on the roadside, you have not actually committed an offence. It only creates the reasonable suspicion that you may have committed an offence. They then use that power so they can gather the evidence to prove that you committed a drink driving offence.
Can I make a citizen’s arrest
Yes, people who are not police officers may arrest other people who have committed an offence.
The only difference between a police officer and other persons is that the person must see the offence happening in real time.
That is, the person is in the act of committing an offence or has just committed an offence, or the person has committed a serious indictable offence, and they have not been tried and put before a court.
A perfect example of this is the Bunnings Thief who tried to steal an impact-drill by stuffing it down his pants and fled when confronted by staff. Staff detained (or had the person under arrest) him while they waited for the police to arrive.
Conclusion
If you find yourself under arrest and charged with an offence, contact me as soon as possible and McDonald Law will be able to provide advice regarding your case please contact our office (02) 8824 4736 or 0411 460 034
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