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The right of an individual to be free from arbitrary arrest or detention is a fundamental human right and highly regarded in our legal system. It is for this reason that police can only arrest individuals in certain circumstances.

The power for New South Wales Police to arrest without a warrant is found in section 99(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 which provides that a police officer may arrest without a warrant if:

  1. the police officer suspects on reasonable grounds that the person is committing or has committed an offence; and
  2. 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.

What is considered a ‘reasonable suspicion’ will vary from situation to situation however the case of R v Rondo [2001] establishes that ‘a reasonable suspicion involves less than a reasonable belief but more than a possibility’.

What will amount to an arrest?

An arrest is the act of detaining a person or property by legal authority or warrant and has been made when a police officer or another individual makes it clear to the person that they are no longer a free person.

A person does not need to be physically touched to be placed under arrest as words alone are capable of bringing about an arrest if they establish that the person is no longer a free person.

The effect of an illegal arrest

If it is decided by the court that an arrest is not justified under section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 the associated criminal offences the individual is facing may be withdrawn or dismissed.

Further, the police involved may also be exposed to civil proceedings seeking compensation.

If you require criminal legal advice or have any doubts as to whether a police search was legal or not, please contact our criminal team of lawyers. We are available 24 hours, 7 days a week and our first consultation is FREE.

 

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