The Law Enforcement (Powers and Responsibilities) Act 2002 contain the police powers relating to arrest in NSW. This post will offer a breakdown of arrest – when it is lawful and what a person’s rights are.
Under s 99 of LEPRA, a police officer may make an arrest without a warrant if they suspect, on reasonable grounds, that a person has committed an offence or is about to commit one. Reasonable suspicion must have factual information as a basis. It involves less than a belief but more than a possibility (see R v Rondo).
S 99(1)(b) contains a list of other instances in which an officer can make an arrest without a warrant, including but not limited to:
- To protect the safety of any person (including the offender).
- To prevent a person fleeing a crime scene.
- To establish a person’s identity if it cannot be established, or if it is believed to be a false identity.
- To preserve evidence of the offence.
Under s 101 of LEPRA, a police officer can arrest a person with a warrant out for their arrest. The officer does not have to be in possession of the document themselves, but the person being arrested must be named in the warrant.
Upon making an arrest, a police officer must provide evidence that they are an officer, their name, the reason for the arrest (s202). Upon being taken into police custody, the police are allowed a 6-hour investigation period (with rights to apply for an extension), at the end of which they must either charge or release the arrested person (s115).
Arrested person’s rights
A person’s rights after arrest are found in Part 9 division 3 of LEPRA. They include the requirement for a custody officer to inform the arrested person, orally and in writing, of their right to silence, and that anything said can be used as evidence (s122). It also includes the right to communicate with a friend, relative or Australian legal practitioner (s123). A person who is not an Australian citizen or permanent resident has the right to contact their country’s embassy (s124). Other rights include the right to an interpreter if the arrested person has insufficient English skills (s128), the right to medical attention if it is required (s129) and the right to refreshments and the use of facilities such as water and the use of the toilet (s130).
If you find yourself in such a situation, the most important thing to do is to remain calm and comply with the arrest. If you are under the impression that the arrest is unlawful, it can be established afterwards by a criminal lawyer. This is to prevent a person being charged with resisting arrest, which can carry a penalty of up to 1-year imprisonment and 10 penalty units under s 546C of the Crimes Act.
Under s 231 of LEPRA, police officers are empowered to use as much force as is reasonably necessary to conduct an arrest or to prevent the escape of a person being arrested. Whilst no definition of what qualifies as ‘reasonably necessary’ is provided, the NSW Police Force Handbook instructs officers to use the minimum amount of force that is required:
“To avoid excessive application of force and maintain an effective incident response you should use the minimum amount of force that is appropriate for the safe and effective performance of your duties and proportionate to the risks you face”.
This is an area which has led to many police officers abusing their power. If it happens to you during an arrest, remember to not resist and let the officers know you are not resisting. Your lawyer will then be able to enter into an action against the police on your behalf for an excessive use of force.
Police have the right to ask for you to identify yourself if they have a reasonable belief that you may assist them in the investigation of an indictable offence (s11). They may also exercise this power when giving a ‘move on’ order under Part 14 of LEPRA.
Under s177 of the Road Transportation Act 2013, police also have the right to ask for a person’s identity when you are pulled over on the roads. This is also covered in s14 of LEPRA.