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The laws on arrest and detention are regarded by the courts
as fundamental to the rights of any individual. All people
must be free from having their liberty restrained for unlawful
purposes or by improper procedures. The right to personal
liberty is regarded by the Courts as the most elementary and
important of all common law rights.
What is an arrest?
An arrest consists of the seizure or the touching of a
person's body with a view to his or her restraint. Words may
amount to an arrest if they are calculated to bring to the
person’s notice and do bring to the person’s notice that he or
she is under a compulsion to accompany the police officer and
he or she submits to the arrest.
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Effect of an arrest
The major effect of an arrest, beside the restraint of the
person's liberty, is that it starts the legal process that
puts the person before a justice to be dealt with according to
the law. This means that the person charged will appear before
a court to answer the charge that the police have laid against
him.
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Bail
In NSW, if a person is charged with an offence, he has the
right to have a decision made by a court or authorised police
officer with regard to bail. This is a right that is given to
every citizen by the Bail Act (NSW). If the authorised police
officer (being at least a sergeant or the officer in charge of
the Police Station at the time) refuses bail on the citizen
then the citizen has a right to be brought before the next
available court to have a bail decision made by the court. If
the court refuses bail on the person then the court can only
adjourn the matter for a period greater than eight (8) days
with the consent of the accused person. This is to ensure that
the person's rights to liberty are reviewed by the courts.
The criteria to be considered for bail is contained within
the Bail Act. The criteria in the Act is the only criteria
that is to be followed. The criteria is the same for an
authorised police officer as it is for a court.
If bail is granted it can be granted either conditionally
or unconditionally. If there are any conditions placed upon
the bail given to a person then the authorised officer or
court must state the reasons why such conditions were imposed
upon the person.
Any bail granted is for a specific period. The court or
authorised officer must indicate the date and place that the
person is to attend the court. The court will then need to
decide whether the bail should be continued, dispensed with,
changed or refused.
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Court
In NSW the police do NOT determine if a person is guilty or
not guilty of a charge. This decision is left to the courts to
determine. When a person appears in front of a court they will
be asked by the magistrate how they plead to the offence. If
they plead guilty then they the court will go directly to the
sentencing procedures. The police will furnish the court with
a "statement of facts" setting out the circumstances of the
offence and also a copy of the persons criminal and/or traffic
record. The court will listen to any mitigating factors from
the defendant or their legal representative and then impose a
penalty.
If the person pleads Not Guilty, then the matter will need
to be adjourned over to a day when all the witnesses can
attend the court. The court will then hear the evidence in the
matter and will be required to make a determination based upon
those facts applying the relevant law. In criminal matters the
Crown bears the onus of proof and must prove its case "Beyond
Reasonable Doubt" otherwise the court must dismiss the charge.
If the person is found guilty then the court will then proceed
to the sentencing procedures.
Everyone has a right to instruct a solicitor or barrister
to Act on their behalf in matters brought before a
court.
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LAW OF ARREST
An arrest consists of the seizure or the touching of a
person's body with a view to their restraint. Words may amount
to an arrest if, in the circumstances of the case, they are
calculated to bring, and do bring, to a person's attention
that he is under compulsion to accompany the police officer
and he thereafter submits to that arrest.
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Elements of a Lawful Arrest
Arrest is defined by legislation. It is also defined “at
common law” which means through court decisions. To be a
lawful arrest, if it is an arrest without a warrant, the
following criteria must be met:
- that the person arrested has committed or is committing
an offence;
- that the person effecting the arrest notifies the person
arrested as to the fact of the arrest;
- that the person effecting the arrest tells the person
arrested the reason for the arrest.
An arrest may be effected by the mere touching of the
person arrested. For example, if a constable touches a person
and tells him he is under arrest, then this is sufficient for
a valid arrest. If that person then resists or attempts to
escape, then he would be committing the offence of Resisting
an Officer in the Execution of his Duty or Escaping Lawful
Custody.
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Sources of Law of Arrest
Police have powers of arrest at both common law and in
Statute Law. Civilians have a restricted power of arrest which
is based on Statute Law.
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Statute Law Power of Arrest
The main power of arrest is created in section 352 of the
Crimes Act NSW. This section gives both police and civilians
the power of arrest. A police officer or civilian can arrest
without a warrant, any person who is in the Act of committing,
or immediately after having committed, an offence punishable,
whether by indictment, or on a summary conviction, under an
Act, and any person who has committed a felony for which the
person has not been tried.
A Police officer has a further power of arrest under that
section. A Police Officer can also arrest without warrant a
person whom the constable, with reasonable grounds, suspects
of having committed any such offence or crime. A constable can
arrest any person lying, or loitering in any highway, yard or
other place during the night, whom the constable, with
reasonable grounds, suspects of being about to commit any
felony.
The Crimes Act also gives the police the power to arrest
people for whom a justice has issued a warrant, to arrest
prisoners who are unlawfully at large and for some offences
that were committed in another state.
Other Acts, such as the Road Transport (Traffic Safety and
Management) Act, also provide for powers of Arrest. The Road
Transport (Traffic Safety and Management) Act provides a power
of arrest for a person who fails a breath test at the side of
the road so that the constable can take that person to the
nearest police station for the purpose of a breath
analysis.
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Common Law Power of Arrest
The common law gives police the power to arrest persons in
the following circumstances:
- persons who have committed a felony;
- persons who are causing a breach of the peace; and
- to prevent a breach of the peace.
An example of the powers in relation to a breach of the
peace would be a person arrested inside a football ground for
aggressive behaviour. The police can arrest such a person,
escort them out of the ground and then release them,
preventing a breach of the peace.
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Communicating the Reason for Arrest
The person effecting an arrest must notify the person
arrested of the reason for the arrest. If the person arrested
created a situation where it was not possible for the
constable to tell him the reason for the arrest then this
would not render the arrest unlawful. Police are confronted
with situations where people attempt to flee or assault the
police, and in such situations the conduct of the accused
prevents the constable from being able to discharge that
responsibility.
In those circumstances, Police are relieved of that
obligation until they are able to restrain the accused.
Further, if a constable tells a person he is under arrest
for an offence, the arrest does not become unlawful if the
constable ends up charging the person with another offence.
This is because Police are not lawyers and may not know the
exact offence that the accused is to be charged with at the
time of arrest, or the Police may come into additional
information after the arrest has been effected.
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Duties of Persons Arrested
A citizen must submit to a lawful arrest. If he or she does
not the citizen may commit an offence of Resisting a Police
Officer in the Execution of his Duty or Assaulting a Police
Officer if the resistance is in a violent manner.
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Evidence Act
The Evidence Act 1995 NSW expands the definition of arrest
for the purpose of the admittance into evidence of an
admission made by an accused person. Under the Act a person
under arrest includes:
- where the official believes that there is sufficient
evidence to establish that the person has committed an
offence that is to be the subject of the questioning; or
- where the official would not allow the person to leave
if the person wished to do so; or
- where the official has given the person reasonable
grounds for believing that the person would not be allowed
to leave if he or she wished to do so.
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