Do we have Adequate Safeguards against False Imprisonment in NSW?

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Back in 2009, one lawyer managed to score a satisfying victory in court after police officers falsely arrested her.

57-year-old Andrea Turner was on a train and on her way to a bush walk.

A police officer doing a routine patrol on a train had mistakenly believed she was photographing them (which isn’t against the law, anyway).

The officer told her she was under arrest was then detained for 30 minutes while onlookers watched.

Three extra police appeared as backup, then a further five, including two detectives.

Since none of them, even with a few phone calls to their superiors, could work out exactly what offence Ms Turner was supposed to have committed, she was set free.

After Turner called to make a complaint, police actually falsified the records, saying she had illegally taken photos of railway property under new terrorism laws.

She successfully sued in the District Court, winning $20,000 in damages.

Five years on, where is the law today?

Despite several court cases like Andrea Turner’s, unfortunately police still often act unlawfully.

It was revealed in 2012 that the NSW police had to fork out five million dollars for false imprisonment and assault in the last financial year alone.

Since then, the latest NSW Police Force Annual Report (2012-13) shows that the number of customer service complaints has been dropping.

In 2012-13 there were 4,928 complaints made against police officers.

What protections do we have against false imprisonment in NSW?

Liberty is highly prized and false imprisonment has been protected against for many centuries.

A person should only be deprived of their personal liberty for a very good reason and the law does not deal kindly with those who illegally deprive a person of their liberty.

Despite recent increases in police powers, the law still contains safeguards against false arrest and a falsely arrested person is well within their rights to seek redress.

You can’t be arrested just for questioning, police must have a reasonable belief or suspicion that you have committed an offence.

It is possible to take civil action against those who unlawfully orchestrate false imprisonment in NSW. But how do you know if you are under arrest to begin with?

This may sometimes be obvious, but what if you are not sure whether or not you are under arrest?

If police approached you and after chatting to you for a while asked you to accompany them ‘for a chat’ to a police station, would you think that you are under arrest?

Sometimes ambiguity in the way that police request that you accompany them to the station means you are not exactly sure whether or not you are under arrest or can leave.

Many people in this situation would assume that they didn’t have a real choice in the matter, although in fact the police officer did not have the requisite grounds to arrest that person.

If you are unsure you should always ask police if you are under arrest.

If it is made clear to you that you are not free to leave, then you are under arrest.

Courts have consistently stated that if the person is under a reasonable belief that they are not free to go, then they are under arrest.

Police are prevented from later on stating that you were not formally under arrest and could have left if you wanted to.

According to the Law Enforcement (Powers and Responsibilities) Act, police can arrest you without a warrant, but only if they suspect you of committing an offence on reasonable grounds AND the arrest is necessary in order to:

  • Ensure that you will show up in court;
  • Stop you from committing or repeating an offence;
  • Stop you from fleeing;
  • Establish your identity;
  • Obtain property in your possession that is connected with the offence;
  • Preserve evidence of the offence and prevent fabrication of evidence;
  • Prevent the interference with potential witnesses or people who will give evidence;
  • Protect the safety and welfare of any person; or
  • Because of the nature and seriousness of an offence

While courts will uphold rights, it may seem too difficult or expensive to commence civil proceedings against the police force; you may just wish to ‘get on with your life’.

Unfortunately, this will result in police being less and less accountable for their heavy-handed or otherwise unlawful actions.

If you have concerns or about a potential false imprisonment in NSW, read our blog on making a complaint.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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