Pretrial Criminal Proceedure
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.
Continued on page 2
Pretrial Criminal Procedure continued 2
Section 108 Part does not affect Young Offenders Act 1997
Nothing
in this Part requires a police officer to arrest a person under the age
of 18 years if it is more appropriate to deal with the matter under the
Young Offenders Act 1997 .
5. Power to enter premises
9 Power to enter in emergencies
(1) A police officer may enter premises if the police officer believes on reasonable grounds that:
(a)
a breach of the peace is being or is likely to be committed and it is
necessary to enter the premises immediately to end or prevent the
breach of peace, or
(b) a person has suffered significant physical
injury or there is imminent danger of significant physical injury to a
person and it is necessary to enter the premises immediately to prevent
further significant physical injury or significant physical injury to a
person.
(2) A police officer who enters premises under this
section is to remain on the premises only as long as is reasonably
necessary in the circumstances.
* No High Court or NSW appellate court authority on power of entry to prevent a breach of the peace.
*
Lippl v Haines (1989) & Plenty v Dillon (1991) à the issue for
consideration was the power of entry to effect an arrest, neither
included breach of the peace.
* Given that neither of these cases
concerned an alleged breach of the peace, I would not interpret either
case as authority that police do not have such a power.
* There is
appellate court authority from other Australian jurisdictions à Panos
v Haynes (1987) , Nicholson v Avon [1991, Cintana v Burgoyne [2003]
that police do have power to enter premises to prevent a breach of the
peace.
* “Breach of the peace” is not defined in LEPAR, nor is its scope clearly defined by the relevant case law.
* R v Van Bao Nguyen [2002] à conduct exampling breach of the peace
Section 10 – Power to enter to arrest or detain someone or execute warrant
Power to enter to arrest or detain someone or execute warrant
(1)
A police officer may enter and stay for a reasonable time on premises
to arrest a person, or detain a person under an Act, or arrest a person
named in a warrant.
(2) However, the police officer may enter a
dwelling to arrest or detain a person only if the police officer
believes on reasonable grounds that the person to be arrested or
detained is in the dwelling.
(3) A police officer who enters premises under this section may search the premises for the person.
(4)
This section does not authorise a police officer to enter premises to
detain a person under an Act if the police officer has not complied
with any requirements imposed on the police officer under that Act for
entry to premises for that purpose.
(5)In this section: "arrest" of
a person named in a warrant includes apprehend, take into custody,
detain, and remove to another place for examination or treatment
This
section extends the common law powers of entry for effecting arrest
without warrant, in that it relaxes both of the conditions to entry
enunciated in Lippl v Haines (1989)
1. Condition of “reasonable
and probable grounds” for believing, prior to entry, that the person
sought for arrest is on the premises, has been softened so that
“reasonableness” alone is sufficient.
2. Condition of proper
announcement to permit the occupier the opportunity to consent to entry
is set aside altogether à LEPAR s201 (see Part 15 – Safeguards)
requires police to announce their office and the reason for the
exercise of the power, if reasonably practicable, before or at the time
of entry.
The legislation now provides safeguards on the exercise of police powers with respect to the entry of premises.
Section 201 Supplying police officer’s details and giving warnings
(1) A police officer must provide the person subject to the exercise of the power with the following:
(a) evidence that the police officer is a police officer (unless the police officer is in uniform),
(b) the name of the police officer and his or her place of duty,
(c) the reason for the exercise of the power.
Requirements / Procedure of Arrest
The
common law meaning of “arrest”, as established through the judgements
of Lord Griffiths in Hussein v Chong Fook Kam [1970] , Spicer v Holt
[1977] , Mohammed-Holgate v Duke [1984] as cited in Murray at 699D, it
are that the common law required three elements to be satisfied for an
apprehension of a person to be a legal arrest:
(1) The person is deprived of liberty.
(2) The arrester notifies the person that they have been arrested.
(3) The arrester notifies the person of the reason that they have been arrested.
If these requirements are not observed, the arrest is not legal (Christie v Leachinsky [1947]
Christie v Leachinsky - established the requirements of arrest (discussed below)
Facts:
Owner of warehouse was involved in a scheme to receive stolen property.
The police arrested him with a lesser charge so that the can assist
with info leading to a larger arrest.
Deprivation of Liberty
The
first requirement for an arrest is that the person is “deprived of
liberty” to go where they please (Spicer v Holt [1977] AC 437. The
arresting officer can do this in either of two ways:
(1) One way
involves force. The arrester takes the “person into his custody” à
Mohammed-Holgate v Duke. To do this the arrester “uses force to
restrain” à Hussein v Chong Fook Kam the person and so prevents them
“from moving anywhere beyond the arrester’s control” à Mohammed-Holgate
v Duke
(2) The other way is the threat of force. By “words or
conduct [the arrester] makes it clear that he will, if necessary use
force to prevent the individual from going where he may want to go” à
Hussein v Chong Fook Kam
Notification of Arrest
Knowledge
“of the fact of restraint by the suspect is an essential element of an
arrest” à Murray. Hence the arresting officer must “state” in specific
terms that “he is arresting the person” à Hussein v Chong Fook Kam
This can be done in one of two ways - Murray
(1) In “ordinary circumstances” they should be notified at the time of the arrest
(2)
In other, ie exceptional, circumstances where it was impossible to do
so (eg. Person ran away or was screaming) they should be notified
“within a reasonable time of the arrest”
This, however, is
subject to a qualification. If a suspect “for any reason refuses to
accept the fact of restraint” after the arrest but before they have
been told that they are under arrest, they must be informed “forthwith”
that they are “under arrest” à Murray
Notification of Reasons for Arrest
When
“a person’s liberty is being restrained he is entitled to know the
reason” à Murray. If this requirement is not observed the arrest is not
legal à Christie v Leachinsky
For the purposes of this case, notification of the reasons or grounds for arrest can be done in one of two ways:
(1)
In the absence of special statutory provisions, the arrester actually
informs the person arrested of the true grounds for their arrest.
(2)
The requirement that the person arrested should know the grounds of
arrest does not exist if the circumstances are as such that he knows
the general nature of the alleged offence for which he is detained; it
is reasonably apparent (eg. If he/she was in the process of committing
a crime). There are exception to this rule i.e. the person thought they
were being arrested for something they did earlier à Christie v
Leachinsky , followed in Adams v Kennedy (2000)
Adams v Kennedy (2000)
Facts:
Adams was involved in a car accident and he did not give his details to
the other driver who went to the police station and reported the
accident and the licence plate. The police went to Adams; house and
asked him questions about the accident. Adams then swore at the police.
The police then left and returned to him home shortly after with 4 more
officers. They entered the house forcefully and there was some
altercation between them. The arrested him and took him to the station.
After a period of time he is released. He then sued the police for
wrongful arrest and false imprisonment. He was awarded $60,000 in
damages. He appealed this decision to CCA.
Held: He had grounds for
appeal and won on two points of law. 1) There was no reasonable grounds
for the arrest it was mere suspicion, and 2) the police did not advise
him of why he was being arrested and it was not obvious to him at the
time. He was awarded a further $100,000 in exemplary damages.
This notification must be done within either of two time frames - Murray
(1) In “ordinary circumstances” this should be done at the time of the arrest
(2) In other circumstances it should be done “within a reasonable time of the arrest”
· ‘Exigent circumstance’ exception - Lippl v Haines (1989): ( referred to as officers authority)
“Unless
the ‘exigent circumstances’ exception applies, or unless statute
provides evidence to the contrary, the constable proposing to force
entry in order to execute coercive process (Plenty v Dillon (1991))
such as search or arrest warrant or to affect an arrest must state a
lawful reason for entry without permission. The ‘cause’ or ‘purpose’
that must be announced by the officer and rejected by the resident is a
basis of entry without consent.
Force used against a person to effect an arrest
Section 230 Use of force generally by police officers
It
is lawful for a police officer exercising a function under this Act or
any other Act or law in relation to an individual or a thing, and
anyone helping the police officer, to use such force as is reasonably
necessary to exercise the function.
Section 231 Use of force in making an arrest
A
police officer or other person who exercises a power to arrest another
person may use such force as is reasonably necessary to make the arrest
or to prevent the escape of the person after arrest.
What is
reasonable force? - R v Turner [1962] (Full bench Supreme Court Vic)
interprets section 459 of the Crimes Act (has now been replaced by
LEPAR)
- A police officer is entitled to use such a degree of
force as in the circumstances re reasonably believes to be necessary to
effect his purpose, provided that the means adopted by him are such as
a reasonable man placed as he was placed would not consider to be
disproportionate to the evil to be presented - R v McKay [1957]: the
commission of the felony or the escape of the felon.
· R v
Turner: O’Bryan, Dean and Hudson JJ à “We take one great principle of
common law to be, that though it sanctions the defence of a man’s
person, liberty, and property against illegal violence, and permits the
use of force to prevent crimes, to preserve the public peace, and to
bring offenders to justice, yet all this is subject to the restriction
that the force used is necessary; that is, that the mischief sought to
be prevented could not be prevented by less violent means; and that the
mischief done by, or which might reasonably be anticipated from the
force used, is not disproportioned to the mischief or injury it is
intended to prevent”.
R v Turner - reasonableness of force
Facts:
Turner was convicted of murder after he shot and killed Doherty. Turner
had been keeping watch on his car after a number of incidents of
stealing from cars in the neighbourhood. Turner had waited at his car
with a .22 pistol. He saw an arm enter his car and he called out ‘the
intruder’. Doherty ran and was chased by Turner who called out ‘stop or
ill shoot’. Turner fired one shot that he intended to pass over
Doherty’s head but it struck and killed him. Turner appealed on the
basis that his actions were lawful in attempting to arrest Doherty
under s 459 of the Crimes Act.
Held: The jury found that the accused
was justified in firing towards, not at the deceased who he was trying
to arrest and therefore his actions were reasonable - NOT GUILTY
Continued on page 3
Pretrial Criminal Procedure continued 3
Purpose of arrest
There is an obligation on police to bring an arrested person before the court as soon as possible, and not merely at a time convenient to them - Williams v R (1986) confirmed in A-G (NSW) v Dean (1990)
Williams (1986)
Facts: In the early hours of the morning of 17 May 1984 police at Scottsdale, a town in the north of Tasmania, received information that the applicant had been seen in hotel premises at Scottsdale apparently in the act of committing a burglary. The applicant fled from the scene in a motor vehicle and was eventually arrested after his car had run off the road and he had attempted to escape into the bush. The arrest was made at about 6.00 a.m. by Constable Gibson who told the applicant that he was satisfied that he was responsible for several burglaries in the northern area of Tasmania. The applicant was then taken to the police station at Scottsdale and was kept there until he could be interviewed by officers of the C.I.B. who had to come from Launceston who arrived at arrived at about 8.45 a.m. The applicant was indicted before the Supreme Court of Tasmania on twenty-nine counts - fifteen of burglary and fourteen of stealing. At the commencement of the trial counsel for the accused objected to the admission in evidence of a number of records of interview containing confessions allegedly made to the police by the applicant. After a voir dire the learned trial judge ruled that the records of interview which related to twenty-six of the counts should not be admitted in evidence. The Crown Prosecutor then offered no evidence on those counts and the jury by direction brought in a verdict of not guilty on each of those counts. The applicant pleaded guilty to the remaining three counts. Thereafter the Attorney-General for Tasmania applied for leave to appeal.
Held: From what I have said it is clear that the accused was unlawfully detained after 2.15 p.m. on the 17th May. He was subjected to lengthy questioning about matters other than those for which he was arrested and he was unable to get before the court and ask for legal advice. It seems to me not to matter whether or not he volunteered certain information, the fact is that he was unlawfully detained about 20 hours longer than he should have been. This seems to me to be a clear case where I should exercise my discretion to exclude evidence of the confessions made in the records of interview other than those in relation to the Scottsdale matters. In my view it would be unfair to the accused to admit such evidence having regard to the circumstances in which it was procured. In our opinion special leave to appeal should be granted. Since the trial judge was not in error in reaching the conclusion that the records of interview were obtained whilst Williams was illegally detained, the submissions made by the respondent in support of the decision of the Court of Criminal Appeal cannot be sustained. The appeal should be allowed and the verdicts of acquittal upon the twenty-six counts should be restored.
Procedure After Arrest/ Police Interrogation
Part 9 of the LEPAR: The “investigation period” after arrest before Defendant must be brought before a Justice/Magistrate.
Law Enforcement (Powers and Responsibilities) Act 2002
· Sections 109–132 govern the INVESTIGATIONS AND QUESTIONING process.
Section 115 Investigation period
(cf Crimes Act 1900 , s 356D)
(1) The investigation period is a period that begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances, but does not exceed the maximum investigation period.
(2) The maximum investigation period is 4 hours or such longer period as the maximum investigation period may be extended to by a detention warrant.
Section 117 - sets out the certain times to be disregarded in calculating investigation period i.e. any time spent using facilities or communicating with a friend.
Admissions Made in Official Questioning
Criminal Procedure Act 1986; s281
* Admissions made in official questioning inadmissible unless ERISP (Electronically Recorded Interview with Suspected Person) or “reasonable excuse for no ERISP
Section 281 Admissions by suspects
(1) This section applies to an admission:
(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and
(b) that was made in the course of official questioning, and
(c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.
(2) Evidence of an admission to which this section applies is not admissible unless:
(a) there is available to the court:
(i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or
(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (iii) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or
(b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.
(3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995 ) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2).
(4) In this section: "investigating official" means:
(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or
(b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations.
"official questioning" means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.
"reasonable excuse" includes:
(a) a mechanical failure, or
(b) the refusal of a person being questioned to have the questioning electronically recorded, or
(c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.
"tape recording" includes:
(a) audio recording, or
(b) video recording, or
(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.
Evidence Act 1995 (NSW), ss 84, 85, 86, 89, 90, 137-139
* Sections 84, 89 and 137-139 Evidence Act. Circumstances in which admissions made by Defendant are not admitted into evidence at trial.
Section 84 Exclusion of admissions influenced by violence and certain other conduct
(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by:
(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or
(b) a threat of conduct of that kind.
(2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.
82. Exclusion of evidence of admissions that is not first-hand
83. Exclusion of evidence of admissions as against third parties
84. Exclusion of admissions influenced by violence and certain other conduct
85. Criminal proceedings: reliability of admissions by defendants
86. Exclusion of records of oral questioning
89. Evidence of silence
90. Discretion to exclude admissions
137. Exclusion of prejudicial evidence in criminal proceedings
138. Exclusion of improperly or illegally obtained evidence
139. Cautioning of persons
McKinney (1991) - Where Defendant disputes record of interview, and no other evidence of admission, Judge must give jury warning on reliability of admission.
Facts: The applicants, Vincent Peter
McKinney and Michael Allan Judge, seek special leave to appeal from a decision of the Court of Criminal Appeal of New South Wales dismissing their appeals from convictions on three charges arising out of the breaking and entering of premises at Dharruk in the western suburbs of Sydney. The prosecution case was that the premises were entered by three men, one of whom was armed. The uncontested evidence was that an armed man demanded money from one of the occupants, and, a little later, another occupant was seriously injured when a single shot was fired from a gun. The prosecution case was that the applicants and a co-accused (who was acquitted of all charges) were each guilty, on the basis of common purpose or joint enterprise, of breaking and entering, assault with intent to rob and assault occasioning grievous bodily harm. The case against the applicants was substantially based on signed police records of interview. Each of the applicants signed a record of interview in which he stated that he, and he alone, had entered the premises at Dharruk and accidentally discharged the gun. The applicants were directly linked to the events at Dharruk only by their records of interview. Apart from the applicants' signatures, there was no independent evidence corroborating the making of those records or confirming their contents. The defence of each of the applicants was conducted on the basis that his record of interview was fabricated by the interviewing police officers and that he had signed the fabricated document only because his will was overborne. Each now seeks special leave to appeal on the ground that a warning should have been given as to the danger of convicting on the basis of those records of interview.
Held: The accused did not dispute their signatures; in effect, each said that he had been forced to sign, by physical violence or threats, or both. When the directions are taken in their entirety, I do not think that a warning in general terms of the need to look at the confessional evidence with care was necessary for the jury's appreciation of the task they had to perform. Appeal allowed and new trial held.
Foster (1993)
Facts: Foster, was charged in the District Court of New South Wales, Criminal Jurisdiction, with the offence of maliciously setting fire to a public building. The public building in question was the High School building in the town of Narooma on the South Coast of New South Wales. The prosecution case against the appellant rested on a seven-line typed confessional statement which the appellant had signed while he was held in custody at the Narooma Police Station. That confessional statement constituted the only evidence of the appellant's involvement in the fire. Indeed, the learned trial judge (Ford DCJ) directed the jury that, without it, the Crown had not succeeded even in proving, as against the appellant, that the fire at the High School had been caused by human intervention.
Held: On the evidence and findings presently before the Court, the conduct of the police officers did not require the exclusion of the statements on public policy grounds. The trial judge made no finding that the police officers had deliberately broken the law or had pursued a course of reckless conduct, not caring whether or not they were breaking the law in arresting the appellant, holding him in custody and interrogating him. A verdict of acquittal was decided – NOT GUILTY
Continued on page 4
Pretrial Criminal Procedure continued 4
Search and Seizure
Law Enforcement (Powers and Responsibilities) Act 2002;
ss 20-45 (search without warrant),
ss 46-80 (search with warrant or authority);
ss 81-87 (search, entry and seizure involving domestic violence offences)
Section 21 Power to search persons and seize and detain things without warrant
(cf Crimes Act 1900 , ss 357, 357E, Drug Misuse and Trafficking Act 1985 , s 37)
(1)
A police officer may, without a warrant, stop, search and detain a
person, and anything in the possession of or under the control of the
person, if the police officer suspects on reasonable grounds that any
of the following circumstances exists:
(a) the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,
(b)
the person has in his or her possession or under his or her control
anything used or intended to be used in or in connection with the
commission of a relevant offence,
(c) the person has in his or her
possession or under his or her control in a public place a dangerous
article that is being or was used in or in connection with the
commission of a relevant offence,
(d) the person has in his or her
possession or under his or her control, in contravention of the Drug
Misuse and Trafficking Act 1985 , a prohibited plant or a prohibited
drug.
(2) A police officer may seize and detain:
(a) all or
part of a thing that the police officer suspects on reasonable grounds
is stolen or otherwise unlawfully obtained, and
(b) all or part of a
thing that the police officer suspects on reasonable grounds may
provide evidence of the commission of a relevant offence, and
(c) any dangerous article, and
(d)
any prohibited plant or prohibited drug in the possession or under the
control of a person in contravention of the Drug Misuse and Trafficking
Act 1985, found as a result of a search under this section.
Section 23 Power to carry out search on arrest
(cf Cth Act, s 3ZE, common law)
(1)
A police officer who arrests a person for an offence or under a
warrant, or who is present at the arrest, may search the person at or
after the time of arrest, if the officer suspects on reasonable grounds
that it is prudent to do so in order to ascertain whether the person is
carrying anything:
(a) that would present a danger to a person, or
(b) that could be used to assist a person to escape from lawful custody, or
(c) that is a thing with respect to which an offence has been committed, or
(d) that is a thing that will provide evidence of the commission of an offence, or
(e) that was used, or is intended to be used, in or in connection with the commission of an offence.
(2)
A police officer who arrests a person for the purpose of taking the
person into lawful custody, or who is present at the arrest, may search
the person at or after the time of arrest, if the officer suspects on
reasonable grounds that it is prudent to do so in order to ascertain
whether the person is carrying anything:
(a) that would present a danger to a person, or
(b) that could be used to assist a person to escape from lawful custody.
(3)
A police officer may seize and detain a thing found in a search if it
is a thing of a kind referred to in subsection (1) or (2).
(4) Nothing in this section limits section 24.
Section 24 Power to carry out search of person in custody
(cf Cth Act, s3ZH, common law)
A
police officer may search a person who is in lawful custody (whether at
a police station or at any other place) and seize and detain anything
found on that search.
· Established by Clarke v Bailey (1933) prior to recognition by statute law.
* Police must give notice of presence, authority and purpose unless “exigent circumstances”.
Stop and Search
Section 36 Power to search vehicles and seize things without warrant
(cf Crimes Act 1900 , ss 357, 357E, Police Powers (Vehicles) Act 1998 , s 10, Drug Misuse and Trafficking Act 1985 , s 37)
(1)
A police officer may, without a warrant, stop, search and detain a
vehicle if the police officer suspects on reasonable grounds that any
of the following circumstances exists:
(a) the vehicle contains, or
a person in the vehicle has in his or her possession or under his or
her control, anything stolen or otherwise unlawfully obtained,
(b) the vehicle is being, or was, or may have been, used in or in connection with the commission of a relevant offence,
(c) the vehicle contains anything used or intended to be used in or in connection with the commission of a relevant offence,
(d)
the vehicle is in a public place or school and contains a dangerous
article that is being, or was, or may have been, used in or in
connection with the commission of a relevant offence,
(e) the
vehicle contains, or a person in the vehicle has in his or her
possession or under his or her control, a prohibited plant or
prohibited drug in contravention of the Drug Misuse and Trafficking Act
1985 ,
(f) circumstances exist on or in the vicinity of a public
place or school that are likely to give rise to a serious risk to
public safety and that the exercise of the powers may lessen the risk.
(2)
A police officer may, without a warrant, stop, search and detain a
class of vehicles on a road, road related area or other public place or
school if the police officer suspects on reasonable grounds that any of
the following circumstances exist:
(a) a vehicle of the specified
class of vehicles is being, or was, or may have been, used in or in
connection with the commission of an indictable offence and the
exercise of the powers may provide evidence of the commission of the
offence,
(b) circumstances exist on or in the vicinity of a public
place or school that are likely to give rise to a serious risk to
public safety and that the exercise of the powers may lessen the risk.
(3) A police officer may seize and detain:
(a)
all or part of a thing that the police officer suspects on reasonable
grounds is stolen or otherwise unlawfully obtained, and
(b) all or
part of a thing that the police officer suspects on reasonable grounds
may provide evidence of the commission of a relevant offence, and
(c) any dangerous article, and
(d)
any prohibited plant or prohibited drug in the possession or under the
control of a person in contravention of the Drug Misuse and Trafficking
Act 1985, found as a result of a search under this section.