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