When Can Police Arrest a Person Without a Warrant in NSW?

by Sonia Hickey & Ugur Nedim

Rugby League player Curtis Scott had all criminal charges against him withdrawn and dismissed earlier this week; a decision that followed a seven-month long prosecution and numerous attempts by his criminal defence lawyers to persuade the police that the case against their client was baseless and amounted to an abuse of police powers and court process.

CCTV and police body camera footage played in the Downing Centre Local Court showed the appalling treatment of Mr Curtis at the hands of New South Wales police officers on the night of his arrest, when he fell asleep under a tree after boozy Australia Day celebrations.

And rather than fess up and apologise for the conduct of its officers, the NSW Police Force is doing all it can to keep the full body camera footage of the incident out of the public realm.

The story so far

Mr Scott was arrested in the early hours of 27 January 2020, and charged with seven offences, including assaulting two police officers who were supposedly in the execution of their duties.

He pleaded guilty to two offensive conduct charges, but both of those charges as well as all other charges including assault police charges were later dropped. NRL Chief Todd Greenberg, who had the discretionary power to terminate the league star, has decided not to do so after seeing the footage for himself.

The most damning indictment against the police involved was footage showing Mr Scott being tasered and capsicum-sprayed, as well as being handcuffed – whilst he is lying under a tree, barely conscious. The court also heard that a female police officer intentionally stood on Mr Scott’s foot and twisted the incapacitate man’s ankle.

Additional footage from security cameras mounted on fences surrounding Sydney Cricket Ground, shows an SCG security guard directing police officers to where Mr Scott is sleeping, which is next to a tree in a nearby driveway.

Mob policing

Three officers attend to Scott for the first nine minutes, before back-up is called. By the end of the sage, which lasts approximately 16 minutes, 12 officers arrive to ‘assist’ in the arrest.

The officers lead a shirtless Scott to the police vehicle, where he is pushed up against the back of the police van before officers take off his shoes and search him. A number of officers stand around and watch – a scene that’s becoming increasingly common in Australia – mob policing –  intimidatingly large groups of police officers patrolling the streets, or attending an arrest.

Mr Scott is treated by paramedics, who flush his eyes with water and solution and wrap him in a blanket. He needs assistance to get up from the footpath.

Tasered to the armpit

It’s also alleged that Mr Scott was tasered in the armpit, which is against police policy and could have had potentially life threatening consequences.

Tasers were introduced to Australian Police forces in the late 1990s, giving police a way to subdue suspects without physical contact or the use of firearms.

The taser has two modes: the first, pulse mode, causes muscles to contract at random, which is why people tend to ‘jolt’ when they have been tasered. The second mode, drive-stun, uses pain to get compliance.

The safety of tasers has been questioned numerous times over the years, and it has been well-documented that a taser to the chest area can potentially cause cardiac arrest.

A 2016 study in America also found that a taser shock can produce serious short-term impairment in a person’s ability to remember and process information. The findings raise serious questions about the ability of tased people to understand their rights at the point of arrest.

Magistrate Jennifer Giles will make a determination on costs on September 25. Mr Scott’s legal team is pursuing $100,000 in damages. However, Scott’s lawyers have urged him to take the matter further, and pursue civil action against New South Wales Police for wrongful arrest, malicious prosecution and assault.

Compensation may follow

Mr Scott’s legal team says it’s a matter of whether police acted ‘reasonably’. They also say that despite trying more than a handful of times to resolve the matter directly with Police, they were insistent that it would proceed to court.

They have foreshadowed the possibility of seeking compensation over his unlawful arrest.

The case is an important one for police accountability, ad  right across Australia there are growing concerns about police brutality, unlawful arrests and the use of excessive force by police officers against members of the public.

When can police arrest a person without a warrant in NSW?

While the Curtis Scott incident occurred in Victoria, here in New South Wales section 99(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (the LEPRA) provides that a police officer may arrest a person without a warrant if:

  • the police officer suspects on reasonable grounds that the person is committing or has committed an offence,

AND:

  • the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons:
  • to stop the person committing or repeating the offence or committing another offence,
  • to stop the person fleeing from a police officer or from the location of the offence,
  • 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,
  • to ensure that the person appears before a court in relation to the offence,
  • to obtain property in the possession of the person that is connected with the offence,
  • to preserve evidence of the offence or prevent the fabrication of evidence,
  • to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
  • to protect the safety or welfare of any person (including the person arrested), or
  • because of the nature and seriousness of the offence.

Section 99(3) makes clear that police must bring an arrested person before an ‘authorised officer’ – such as a Local Court Magistrate – as soon as is reasonably practicable after the arrest.

Excessive force

Section 230 of the LEPRA provides that a police officer may “use such force as is reasonably necessary” to perform an arrest, while section 231 makes clear that a police officer “may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.”

Any force outside the parameters of these sections amounts to assault, and police officer are accordingly liable to criminal prosecution as well as being sued civilly for assault and false imprisonment.

Illegal arrests

In addition to these rules, the High Court of Australia recently found that police officers are not permitted to arrest a person without intending to charge them with an offence, while courts have consistently found that assault charges against an arrested person may be thrown out if they occur during the course of an illegal arrest.

It has also been found that arrests are to be exercised as a measure of last resort and should not occur if there is an alternative means of bringing an alleged offender to account, such as through the issue of a future court attendance notice.

Going to court for a criminal offence?

If you have been charged with assault or another criminal offence, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first conference with an experienced criminal defence lawyer who will advise you of your options, the best way forward and fight for the optimal outcome.

Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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