Powers of NSW Police to arrest without a warrant

In NSW, Police can arrest a person without a warrant on reasonable suspension of having committed an offence. The NSW Police powers are contained in Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)with the power to arrest a person without a warrant in section 99 of LEPRA. 

Getting arrested can be a stressful and frightening experience. NSW Police are bound to follow the laws related to the arrest process which afford the person with rights and safeguards. In this post Blacktown Criminal Lawyers | AMA Legal explain the source of Police powers in relation to arrests without warrants.

Lawful Arrest without a Warrant

For an arrest without a warrant to be lawful, it must comply with section 99 of LEPRA. The following are the criteria for a lawful arrest, without warrants:

  1. The arresting Police officer has reasonable grounds to suspect that the person has committed an offence,
  2. The arrest must be for the purposes of commencing proceedings,
  3. The arresting officer must be satisfied that the arrest is reasonably necessary,
  4. The arresting officer must provide the information set out in Part 15 LEPRA unless it is not reasonably practicable, and
  5. Any force used must be reasonable.
1. Reasonable suspicion

In R v Rondo [2001] NSWCCA 540 at paragraph 53, Smart AJ provides the general principles of reasonable suspicion which can be summarised as:

  1. A reasonable suspicion involves less than a reasonable belief but more than a possibility.
  2. Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. It may be based on hearsay or material which may be inadmissible in evidence, but the material must have some probative value.
  3. What is important is the information in the mind of the police officer at the time of making the arrest. The question is then whether that information afforded (objectively) reasonable grounds for the suspicion which the officer formed.
2. Arrest must be for the purposes of commencing proceedings

The High Court in State of New South Wales V Bradford James Robinson [2019] HCA 46 unanimously held that in New South Wales, at common law, an arrest can only be for the purpose of taking the arrested person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for an offence.

3. Arresting officer must be satisfied that the arrest is reasonably necessary

A police office must be satisfied that the arrest is reasonably necessary for one or more of the following purposes:

  1. to stop the person committing or repeating the offence or committing another offence,
  2. to stop the person fleeing from a police officer or from the location of the offence,
  3. to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,
  4. to ensure that the person appears before a court in relation to the offence,
  5. to obtain property in the possession of the person that is connected with the offence,
  6. to preserve evidence of the offence or prevent the fabrication of evidence,
  7. to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
  8. to protect the safety or welfare of any person (including the person arrested), because of the nature and seriousness of the offence.
4. Part 15 LEPRA

Part 15 LEPRA provides the safeguards relating to powers exercised by the Police including their exercise of powers of arrests without warrants. It provides that the police must provide:

  1. Evidence that the police officer is a police officer unless the police officer is in uniform,
  2. The name of the police officer and their place of duty,
  3. The reason for the arrest.

The police must comply with the above as soon as reasonably practicable.

5. Use of reasonable force

The police have the power to use reasonable force to carry out the arrest. The reasonableness of force used will depend on the circumstances.

Rights following an arrest

Any person arrested with or without a warrant has a right to:

  1. Not to say anything and remain silent (with some exceptions),
  2. To communicate with friend, relative, guardian or independent person,
  3. To contact an Australian legal practitioner,
  4. To have an interpreter present.

What should you do if you are arrested?

After getting arrested, you may do any of the following:

  1. Ask the arresting officer’s name and place of duty (if not already provided),
  2. Ask for the reason of your arrest (if not already provided),
  3. Request to contract a friend, relative, guardian or independent person,
  4. Request to contact a lawyer,
  5. Remain silent (with some exceptions for identification or driving matters),
  6. Request an interpreter if required.  

Seek Legal Representation:

Blacktown criminal lawyers | AMA Legal can help by explaining how the law applies to the person’s individual circumstances. They can advise the arrested person of what their rights are and what rights they can exercise. Blacktown criminal lawyers can also assist with applying for bail and can represent the person in court.

What happens after arrest?

After the person arrested is charged with an offence/s. The issue of bail arises. The police can:

  1. Release the accused without bail,
  2. Grant bail (with or without conditions),
  3. Refuse bail.

If the NSW Police refuse bail to the accused, then they must present the accused before a Court as soon as practicable to be dealt with according to law.

Conclusion:

Each interaction with the police may potentially influence the outcome of your matter. If you or a loved one requires assistance of a criminal lawyer, consult a Criminal defence lawyers in Blacktown, AMA Legal.

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