Police powers of arrest

The Law Enforcement (Powers and Responsibilities) Act 2002 (‘LEPRA’) sets out the police’s powers of arrest. When a police officer arrests a person, he/she must:

  • Comply with the safeguards set out in LEPRA (evidence of being a police officer if the officer is not in uniform, name of police officer, providing reason/s for the arrest).
  • Have reasonable grounds for their suspicion that an offence has been committed by the person;
  • Ensure the arrest is executed with minimum force – only force that is reasonably necessary in the circumstances can be used;
  • Only use such force as is reasonably necessary to make the arrest. The amount of force a police officer can use should vary only according to the resistance to the arrest. If unnecessary force is used, please notify your lawyer as soon as practicable.

Once a person is lawfully arrested, the police will take that person to the police station. The police have the power to detain a person for a reasonable period of time for the purpose of investigating whether the person committed the offence for which the person is arrested. The police cannot arrest a person merely for questioning and only in limited circumstances can arrest a person without a warrant.

Personal search powers – stop-search-detain

Section 21 empowers police to stop, search and detain a person (and anything in the person’s possession or control), if the police officer suspects on reasonable grounds that the person has:
(a) anything stolen or otherwise unlawfully obtained;
(b) anything used or intended to be used in or in connection with the commission of a relevant offence (indictable offences and certain weapons/firearms offences);
(c) in a public place, a dangerous article that is being or was used in connection with the commission of a relevant offence or
(d) a prohibited plant or prohibited drug.
Police may seize and detain relevant items found as a result of a search. Section 21A was added by the Police Powers Legislation Amendment Act 2006. If a police officer suspects on reasonable grounds that a thing referred to in s.21(a)-(d) is concealed in the person’s mouth or hair, the police officer may request the person to open his or her mouth or to shake or otherwise move his or her hair. Subs(2) makes it clear that this does not authorise a police officer to forcibly open a person’s mouth.

Searching a person on arrest:

Once a person has been arrested, a police officer has the power to search a person if he/she suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything that:

  • would present a danger to a person
  • could be used to assist the person to escape or
  • may provide evidence of an offence

The search by the police officer may include requesting a person to open their mouth or shake their hair if you suspect on reasonable grounds one of these things is concealed in their mouth or hair.

Fingerprinting and photographing:

When a person of or over the age of 14 is in lawful custody for an offence, section 133 of LEPRA allows a police officer to take fingerprints and photographs for the purpose of identifying the person to a court.

Resisting arrest:

This offence requires active non-compliance with the requests of police officers while they are attempting to arrest you. You can also be charged with this offence even if the police decide not to charge you with the offence you were originally being arrested for.

Detention for Investigation:

As discussed above, a police officer may detain an arrested person for the purpose of investigating whether they have committed the offence for which they were arrested. The investigation time must be reasonable in all the circumstances and begins at the time of arrest. LEPRA provides that the investigation period must not exceed 4 hours. LEPRA provides for several ‘time out’ periods which are not to be included in calculating the 4 hours.
If the police require further time, they may apply to a Magistrate for a warrant to extend the investigation period by up to eight hours. The detained person or their legal representative has a right to make representations to the Magistrate about the application.

Right to legal representation:

A detained person at a police station has a right to communicate with a legal representative. A person in custody may at any time consult and communicate privately with a legal representative, whether in person or on the phone. Police quite often attempt to dissuade a detained person from getting legal advice and quite often put pressure on a detained person to participate in an ERISP (interview). It is imperative that a person in custody at a police station understands that they have a right to legal representation and also have the right to refuse to participate in an ERISP. Police are required to wait for 2 hours for a detained person’s contactable legal representative to arrive at the police station before continuing any further questioning or interview.

Common rights to remember

If anything is to be gained from reading the material on arrest, ensure that you remember the following essential rights:

  • It is your right to know the offence for which you have been arrested for;
  • It is your right to speak to a lawyer; and
  • It is your right to refuse to participate in an interview.

It is our job as solicitors to protect and advance the legal rights of our clients. If ever you, a  family member or a friend have been arrested and need assistance in protecting your rights, Ms. Trimmer, principal solicitor of our office is contactable 24 hours a day, 7 days a week on (02) 8251 0059 or 0416 145 242.

Alternatives to arrest:

Arresting a person is arguably an extreme action which is contrary to the right of individuals to be free. This is why LEPRA provides that a police officer must not arrest a person for the purpose of taking proceedings for an offence unless in certain limited circumstances.
The alternatives to arrest include the following:

  • Caution
  • Warning
  • Infringement notice
  • Penalty notice
  • Court Attendance Notice

Police granted bail:

Bail may be granted either by the police or the court. After you are arrested the police will decide on if they will give you police bail. A police officer of the rank of sergeant or above is authorised to grant bail.

Police bail allows you to go home however there may be some conditions you need to adhere to. You can be made to do certain things or forbidden to do other things. It is important to follow any conditions imposed upon you or your matter will become more complex.

Once you have been arrested and at the conclusion of the investigation period, the police will need to consider whether action should be taken against you and by which method (caution or court attendance notice with or without bail or a future court attendance notice). In the event that the police decide to refuse bail then you will be taken before a court the following day where you are given an opportunity to make a bail application. To ensure that you have the best possible chance in being granted bail, please remember to contact our office to arrange for a lawyer to represent in the bail hearing.

Right not to say or do anything:

When a police officer advises you are under arrest they will most likely tell you that you do not need to say or do anything, but anything that you say or do may be used in evidence. Even if you feel like telling your story, regardless of what happens it is always a good idea to exercise your right to not say anything unless a lawyer advises you to the contrary

However, this right to not say or do anything is not absolute. There are some legislative exceptions to this right. Examples of exceptions to this rule include:

  • Under the Road Transport (General) Act, police have the power to require drivers to state their names and residential address; and
  • Under the Road Transport (Safety and Traffic Management) Act, a police officer may require you to submit to a breath analysis. Most people who are arrested for the first time do not have a comprehensive understanding of the right to not say or do anything and the exceptions to this rule. It is for this reason that police must explain to you the particular law that requires you to answer a particular question or to do a particular act.