Pre-Trial Criminal Procedure

Police powers of arrest, search and seizure, and some powers in respect of treatment of persons in custody have been codified in the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPAR).  The Act commenced on 1 December 2005.  The Act repeals a number of provisions of the Crimes Act 1900, and Acts involving police powers, including the Search Warrants Act 1985.

Other acts governing the police powers of arrest, search, seizure and police interrogation are Evidence Act 1995 (NSW) and the Criminal Procedure Act 1986.

Arrest

At common law, an arrest is established when a person is deprived of his or her liberty. The Court of Appeal (UK) in R v Inwood [1973] - “There is no magic formula; only the obligation to make it plain to the suspect by what is said and done that he is no longer a free man” supported by R v O’Donoghue CCA (1988).

There are 2 types of arrest:

1. With warrant
Section 101 – Power to arrest with warrant

This simply confirms that police may arrest a person upon a warrant, even if the warrant is not in the police officer’s possession.

2. Without warrant:
The parliament of NSW have legislated the circumstances which police can arrest without a warrant:
Section 99 – Power of police officers to arrest without warrant

This substantially replicates the existing police power in Crimes Act s.352(1) and (2).

(1) A police officer may, without a warrant, arrest a person if:
(a) the person is in the act of committing an offence under any Act or statutory instrument, or
(b) the person has just committed any such offence, or
(c) the person has committed a serious indictable offence for which the person has not been tried.

(2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument.

(3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:
(a) to ensure the appearance of the person before a court in respect of the offence,
(b) to prevent a repetition or continuation of the offence or the commission of another offence,
(c) to prevent the concealment, loss or destruction of evidence relating to the offence,
(d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,
(e) to prevent the fabrication of evidence in respect of the offence,
(f) to preserve the safety or welfare of the person.

(4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.
* Police no longer have the power to arrest someone who is loitering at night and who police suspect may be about to commit an offence.
* Police still have power under Bail Act s50 to arrest for breach of bail, and a common law power (preserved by LEPAR s4) to arrest for breach of the peace.

Subs(3) introduces some important principles to be taken into account in deciding whether to make an arrest. Police must not arrest unless they suspect on reasonable grounds that it is necessary to arrest to achieve one or more of the following purposes:
(a) to ensure the appearance of someone before court;
(b) to prevent repetition or continuation of the offence or the commission of another offence;
(c) to prevent the concealment, loss or destruction of evidence;
(d) to prevent harassment of, or interference with, any potential witness;
(e) to prevent the fabrication of evidence; and
(f) to preserve the safety or welfare of the person.

Definition of Suspect with Reasonable Cause

Hussein v Chong Fook Kam

Facts: Charged with reckless driving occasioning death. The police identified the truck in the collision which belonged to Hussein, who was not actually driving the tuck at the time of the accident. The police came to his house and arrested him. There was no evidence to support the arrest; there was only the possibility that he was driving the truck. He sued the police and won.
* Arrest should, whenever possible, be at end of investigation rather than beginning
* Must be some evidence to support suspicion that offence has been committed.
* This basically reflects the common law position  that arrest should be used as a last resort à enunciated in many cases including DPP v Carr (2002)
* s8 of the Children (Criminal Proceedings) Act creates a presumption that children should not be arrested
* The safeguards in Part 15 (s.201) apply to arrest. Some of these safeguards already exist at common law eg being told the reason for the arrest - Christie v Leachinsky [1947]

Section
100 – Power of other persons to arrest without warrant

Replicates the citizen’s arrest power currently in Crimes Act s.352(1). A person other than a police officer may arrest a person:

(1) A person (other than a police officer) may, without a warrant, arrest a person if:
(a) the person is in the act of committing an offence under any Act or statutory instrument, or
(b) the person has just committed any such offence, or
(c) the person has committed a serious indictable offence for which the person has not been tried.

(2) A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.

* A citizen does not have the power to arrest on suspicion (a fact often overlooked by security guards, loss prevention officers and the like).
* The person making the arrest must be satisfied that the offence has been committed à Brown v G J Coles (1985)
* A citizen also has a common law power to arrest for breach of the peace (while not expressly preserved by LEPAR s4, it has not been expressly repealed either).
* Although the safeguards in s201 do not apply to a citizen’s arrest, the common law requirements in Christie v Leachinsky do apply.
* As with s.99(4), subs(2) requires the person making the arrest to take the arrestee before an authorised officer to be dealt with according to law. Again, this does not reflect current practice, whereby people under citizen’s arrest are usually handed over to the police.

Power of arrest
Section 102 Power to arrest persons who are unlawfully at large

(cf Crimes Act 1900 , s 352AA)

(1) A police officer may, with or without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person is a person who is unlawfully at large.
(2) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.
(3) The authorised officer may, by warrant, commit the person to a correctional centre, to be kept in custody under the same authority, and subject to the same conditions and with the benefit of the same privileges and entitlements, as would have applied to the person if the person had not been unlawfully at large.
(4) In this section, a reference to a person unlawfully at large is a reference to a person who is at large (otherwise than because of escaping from lawful custody) at a time when the person is required by law to be in custody in a correctional centre.

Section 103 Warrant for arrest of person unlawfully at large

(cf Crimes Act 1900 , s 352AA)

(1) A police officer may apply to an authorised officer for a warrant for the arrest of a person if the police officer suspects on reasonable grounds that the person is a person who is unlawfully at large.
(2) The authorised officer may issue the warrant if satisfied that there are reasonable grounds for doing so.
(3) The regulations may make provision for or with respect to the form of, and other requirements relating to, a warrant issued under this section.
Section 104 Power to arrest for interstate offences

(Crimes Act 1900 , s 352A)

(1) This section applies to an offence (an "interstate offence"):
(a) that is an offence against the law of a State (other than New South Wales) or a Territory, and
(b) that consists of an act or omission that, if it occurred in New South Wales, would constitute an indictable offence or an offence punishable by imprisonment for 2 years or more.

(2) A police officer may, at any hour of the day or night and without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an interstate offence.
Section 105 Arrest may be discontinued

(1) A police officer may discontinue an arrest at any time.

(2) Without limiting subsection (1), a police officer may discontinue an arrest in any of the following circumstances:
(a) if the arrested person is no longer a suspect or the reason for the arrest no longer exists for any other reason,
(b) if it is more appropriate to deal with the matter in some other manner, including, for example, by issuing a warning or caution or a penalty notice or court attendance notice or, in the case of a child, dealing with the matter under the Young Offenders Act 1997

Section 106 Person helping in covert operations not under arrest

(1) This section applies to covert investigations conducted by a police officer into whether a person other than a person who is in custody following an arrest has been involved in the commission of an offence or suspected offence.

(2) For the purposes of this Part, if the person in custody following an arrest agrees voluntarily to take part in the covert investigation, the person ceases to be under arrest for the offence.

(3) However, subsection (2) does not prevent the person from being rearrested for the offence.
 
Section 107 Part does not affect alternatives to arrest

(1) Nothing in this Part affects the power of a police officer to commence proceedings for an offence against a person otherwise than by arresting the person.
(2) Nothing in this Part affects the power of a police officer to issue a warning or a caution or a penalty notice to a person.
 
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