KEY TAKE OUTS:
- High Court reaffirms long standing principle that police only have powers to arrest when there is an intention to charge.
- An arrest for the purposes of questioning is unlawful.
- In order for an arrest without warrant to be lawful, a police officer must suspect on reasonable grounds that a person has committed or is committing an offence; that it is reasonably necessary for one of the prescribed reasons; that, at the time of arrest, the police officer must have an intention to bring the arrested person before an authorised officer to answer a charge for that offence, and therefore must have an intention to charge the person with an offence.
A recent decision of the High Court in New South Wales v Robinson  HCA 46 has found, on a narrow majority that the arrest of a person without the intention to charge them with a criminal offence is unlawful. The Police powers to arrest are found in Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”), with section 99 providing 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 that the police officer is satisfied that the arrest is reasonably necessary for one or more of the following reasons:-
(i) to stop the person committing or repeating the offence or committing another offence,
(ii) to stop the person fleeing from a police officer or from the location of the offence,
(iii) 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,
(iv) to ensure that the person appears before a court in relation to the offence,
(v) to obtain property in the possession of the person that is connected with the offence,
(vi) to preserve evidence of the offence or prevent the fabrication of evidence,
(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
(viii) to protect the safety or welfare of any person (including the person arrested),
(ix) because of the nature and seriousness of the offence.
The High Court took the opportunity to reiterate that the position of the law surrounding arrest in New South Wales is as follows:
“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. An arrest merely for the purpose of asking questions or making investigations in order to see whether it would be proper or prudent to charge the arrested person with a crime is an arrest for an improper purpose and is unlawful.” per Justices Bell, Gageler, Gordon and Edelman.
Police officers therefore have, in New South Wales, a power to arrest and detain a person where they suspect on reasonable grounds that an offence has been committed or is being committed, and that the person has committed or is committing the offence and the arrest is reasonably necessary. But that power is exercisable only for the purpose of taking the person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for that offence. Arrest cannot be justified where it is merely for the purpose of questioning.
Importantly, a police officer must have an intention to bring the arrested person before an authorised officer to be dealt with according to law to answer a charge for that offence. The police officer must therefore hold the intention to charge the arrested person with an offence. If there is no intention to comply with this requirement, the arrest is unlawful.
ABOUT LUISA GAETANI:
Luisa is a Senior Associate at Coutts Lawyers & Conveyancers and head of our Family and Criminal Law divisions. Luisa has practiced solely in the areas of criminal and family law. It is her sensitive yet pragmatic approach that has allowed her to develop a strong rapport and build trusting relationships with her clients.
Should a client’s matter proceed to court, Luisa has the skillset and experience to assist her clients through this process and where required, will draw upon her network of barristers to further benefit her client’s outcomes.
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