Understanding the Scope of Police Powers of Arrest NSW

Being arrested by the police is a daunting experience for anyone. The balance of the scales is tipped in favour of the police in such situations. You often feel powerless against the process. In particular, the uncertainty of the arrest process, including whether the police are in fact misusing their powers of arrest, only adds to the isolating experience of it. This article seeks to set out and inform you of the scope of police powers of arrest (NSW) in the hope of reducing at least one element of the stress of the process, the uncertainty of whether the police are exercising their powers of arrest correctly or not. Maybe then the scales will be tipped a little more in the defendant’s favour.

When can police exercise their powers of arrest?

There are certain circumstances when police may exercise their police powers of arrest (NSW). They do not have a blanket power to arrest in any circumstance. A police officer can arrest a person in the following circumstances:

1. If the court has issued a warrant (s101 Law Enforcement (Powers and Responsibilities) Act 2002 (the Act)).

2. If the police officer suspects on reasonable grounds that the person is committing or has committed an offence and if the police officer is satisfied that the arrest is reasonably necessary for any one of the following reasons:

  • To ensure the appearance of the person before a court
  • To prevent a continuation of the offence or the commission of another offence.
  • To prevent interference with evidence.
  • To prevent the fabrication of evidence.
  • To preserve safety or welfare of any person; not just witnesses and including the defendant.
  • To stop the person fleeing.
  • To obtain property in possession of the person in connection with the offence.
  • Because of the nature or seriousness of the offence.

The circumstances set out above in number 2 are in s99 of the Act.

Relatively new law

These police powers of arrest (NSW) are relatively new (enacted in late 2013). Before, the police could arrest a person without a warrant if they had previously committed a serious indictable offence for which the person has not been tried. “Serious indictable offence” is an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.

However, in the new and current law, there is a noted absence of the ability of the police to arrest a person without a warrant for a previously committed a crime. So if a police officer wishes to arrest someone for a crime previously committed then a warrant is required if there are no circumstances that would otherwise justify proceeding by physical arrest.

Unlawful or improper conduct carrying out the arrest

Even if the police have a lawful power to arrest, they must exercise proper conduct when affecting that arrest. For example, a police officer must use such force as is reasonably necessary to make the arrest or prevent the subject fleeing. The use of unreasonable force can amount to an assault on you. A police officer must equally abide by the Crimes Act 1900. A complaint can be made against their behaviour.

If you experience an issue relating to an arrest, having expert legal support could help ensure that police officers who misuse their powers are held accountable.

In addition, the courts may look less favourably on the police if their powers of arrest where exercised in a situation that could have called for an alternative measure, such as a notice to attend court. In DPP v Carr [2002] NSWSC 194 it was held that for minor offences, such as using offensive language in public (as was in that case), the police ought to issue a court summons and not arrest the person. As a result of this misuse of power of arrest, the evidence of the defendant’s behaviour subsequent to police arresting him which involved resisting police, assaulting police and intimidating police was not admitted in court because the arrest was unlawful. Consequently, those charges for assault police and resisting arrest etc. were dismissed.

In practical terms what does this mean? If you resist arrest and it is later established that you were arrested unlawfully or that improper conduct was used, charges of resisting that arrest are no longer justified.

Being arrested can be a humiliating and intimidating experience. While some police are courteous and professional, there are others who overstep the mark and even those who do not properly understand their own powers of arrest. If you have been arrested and you believe police behaved improperly or didn’t need to arrest you, speak to your criminal lawyer. You lawyer will be able to ascertain if it involved a misuse of police powers of arrest and this has the potential to make a substantial difference to your case.

previous post: Why is Misuse of Public Office so Serious?

next post: Are the New Bail Laws here to Stay?

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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