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This page was last updated 23 August 2010. 15 Arrest and Detention
If you are planning non-violent action, be sure that you are familiar with the contents of this and the following Chapter. Some people may be prepared to be arrested and to meet the consequences that may flow from arrest; others may not. Knowing how to act lawfully, knowing your rights and what to do if you are arrested will help you to deal with the stresses related to arrest and detention, and beyond. This Chapter outlines a number of legal and practical considerations surrounding arrest. Laws regarding arrest are slightly different under Commonwealth and State legislation, with the common law continuing to play a key role in both jurisdictions. It has already been noted that both the Federal and NSW Governments have passed numerous laws relating to terrorism. For the purposes of this Chapter, two things should be noted. First , the Federal Government has changed the legislative framework regarding the arrest, questioning and detention of terrorist suspects (including extending the period of detention and imposing an obligation to answer questions, as well as secrecy provisions).1 Second , the Federal Government has dramatically broadened the range of interventions or mechanisms to deal with terrorist suspects in this area, through the advent of control orders2 and preventative detention orders.3 Most protest actions fall well outside the ambit of these changes, notwithstanding the wide definition of terrorism.4 Beyond noting this change, therefore, arrest, control and detention powers for terrorist suspects are not considered further here. 15.1 Police DiscretionThe operation of the criminal law allows for, and depends on, a considerable amount of discretion to be exercised by those who administer it - police, prosecutors and courts. Police on the street often have the most discretion. For example, they can decide:
Given this discretion, it is no surprise that your conduct may often determine which course of action the police take. 15.2 When Can an Arrest Be Made?15.2.1 Arrest powers of policeYou can be arrested by a police officer if they have a warrant5 or they hold reasonable grounds for suspecting you have just committed, or are committing, an offence; you have committed a serious indictable offence;6 or you are unlawfully at large.7 Most arrests are made on the basis of this standard of a "reasonable suspicion",8 rather than under a warrant. In forming such a suspicion, police officers can rely on material that would not be admissible in Court (such as inferences and hearsay).9 When exercising the power of arrest in NSW, police have an obligation to provide reasons for the exercise of the power, show they are a police officer, and give their name and place of duty.10 Police are not supposed to use arrest powers for the purpose of taking proceedings for an offence unless they hold a reasonable suspicion that this course of action is necessary to achieve certain purposes, including to ensure you appear at Court and evidence is not lost, and to preserve the safety and welfare of the public and witnesses.11 The Federal police may arrest you if they hold a belief, on reasonable grounds, that you are committing, or have committed, any offence and proceeding by way of a summons would be unsuitable to:
15.2.2 Arrest powers of othersPrivate citizens, security guards and others such as State Forest Officers, Fisheries Officers or National Park Rangers have broadly analogous powers to arrest pursuant to the (NSW) Law Enforcement (Powers and Responsibilities) Act 2002. They can also arrest someone where they see that a person is in the act of committing, or has just committed, an offence or where a person has committed a serious indictable offence.13State Forest Officers, Environment Protection Authority Officers or National Park Rangers generally do not arrest people, despite their power to do so.14 Under Federal laws, a citizen may arrest you if they hold a belief, on reasonable grounds, that you are committing, or have committed, an indictable offence and proceeding by summons would not:
The arrestor has a duty to deliver you into the custody of a constable as soon as practicable.16 15.3 What is the Purpose of Arrest?You cannot be arrested merely for the purpose of questioning or to obtain evidence.17 The police need to have a reasonable "suspicion" (NSW) or "belief" (under Commonwealth law) that you have committed an offence before they can arrest you. You may then be detained for questioning. 15.4 How Can an Arrest be Made?15.4.1 Elements of a lawful arrestAn arrest takes place when a police officer plainly conveys to you - by what he or she says and/or does - the impression that you are not free to leave or to refuse to accompany them.18 Words may be sufficient.19 However, if you are merely asked to accompany an officer, you may not be under arrest.20 If you are in any doubt, ask the police officer whether you are under arrest. The distinction is important because it can affect the statutory obligations police have upon arrest and whether you are guilty of escaping from lawful custody. At the time of your arrest the police officer should tell you the reasons for your arrest unless this is impractical or obvious to all concerned.21 The police do not have to tell you the precise charges that will be laid.22 It is an offence to resist arrest or incite others to do so, regardless of whether you are innocent of the offence for which you have been arrested.23 Merely lying down or refusing to co-operate is not resisting arrest, as resistance must be active. However "passive resistance" could constitute the offence of hindering police.24 15.4.2 Use of forcePolice carrying out a lawful arrest are entitled to use the amount of force that is reasonable and necessary to secure the arrest or to prevent flight after arrest.25 Handcuffs can be used if they are considered necessary to prevent a person from escaping. If more than "reasonable or necessary" force is used in arresting you, the police involved are liable to charges of assault. This issue depends on all the circumstances at the time of the arrest and will ultimately be determined by a judge or magistrate. If you believe the force used is excessive, you should tell a lawyer as soon as possible. If you are injured you have the right to ask the police to arrange a doctor to attend to you as soon as possible. Keep a copy of the doctor's report and make sure you inform your lawyer. Take photographs of any injuries, remembering that bruises might not be obvious for a number of days. You may also want to make a complaint.26 See 15.10 below. 15.5 What Should I Do if I Am Arrested?Being arrested is serious and the first few hours may be crucial to your chances of escaping conviction or emerging relatively unscathed from the experience of arrest and detention. Try to remember three things: contact, co-operation and complaint. 15.5.1 ContactYou need to speak to a lawyer as soon as possible and to ask for them to be present during questioning. 15.5.2 Co-operationThere may be little to be gained from refusing to co-operate. You should not, however, talk to police (beyond providing your name and address) without first seeking legal advice. You need to remember that anything you say can be used in court as evidence against you (there is no such thing as saying something "off the record").27Without admissions, many police cases would simply not stand up in court. 15.5.3 ComplaintIf you believe you have been unlawfully arrested, you should make your complaint known in the presence of an independent witness. 15.6 Detention for QuestioningPolice can always ask you to accompany them to the station to answer questions but you are free to go when you please (unless they find grounds for arrest). In this situation, you are not under arrest and the police do not have to abide by the rules governing detention below (such as informing you of your rights). Under both Commonwealth and NSW law, if you have been arrested, the police may detain you for a period of time (up to twelve hours)28for questioning and take you to the nearest police station to be charged.29 So-called "time-outs" - for things such as transport, waiting for a lawyer or parent (for someone under 18), or waiting for medical treatment - do not count but act to extend this time.30 15.7 What May Happen When I Am in Detention?15.7.1 Under NSW lawa) The Custody Manager and your rights Once you are arrested, the police may detain you for a "reasonable period". For this purpose, you must be brought before a senior officer at a police station. He or she is known as the Custody Manager. It is the role of the Custody Manager to explain your rights to you - more formally, they are responsible for your care, control and safety while in detention.31 Specifically, their responsibilities include:
If you are in lawful custody, upon a charge of committing an offence, police may search you and take from you anything found in the search.43 More intrusive searches may be undertaken where there are reasonable grounds to believe that the search will reveal evidence as to the commission of the offence.44 c) Fingerprints and photographs Once you have been spoken to by the Custody Manager, the police may
need to identify you. Police can take fingerprints or photos, amongst
other things, where this is necessary The police will then proceed to interview you. For most environmental offences, a written record - either in a police notebook, computer or typewriter - will suffice. If an interview takes place at the police station, the police will usually provide you with a record of the interview to sign. Signing the record means that you agree with all the contents of the record. You do not, however, have to sign these records, and you should not sign anything until you get legal advice. An unsigned record can still be used in court, but if you deny the truth of the document it is less likely to be accepted as evidence. If you are under 18, police are required to interview you in the presence of a parent or other support person in order for that interview to be admissible in court. You should consider carefully whether to accede to a supposedly 'independent' person nominated by police. Most environmental offences will not be serious enough to require an interview to be taped. The police may try to tape record or video tape the interview, but they can only do so with your consent. Until you get legal advice, refuse to let them record you. If the interview is transcribed or taped, be sure to obtain a copy. Just as importantly, as soon as you are released from custody, write down everything that has happened, including the names of witnesses you are aware of, what you told the police and what they said to you. The purpose of detention is for investigation and questioning.46 This period is to determine what, if any, charges to lay. The charge is a statement of the precise crime(s) you are alleged to have committed and laws that are asserted to have been broken. 15.7.2 Under Commonwealth lawa) The Custody Manager and your rights Before questioning, the police have obligations to:
b) Fingerprints, photographs, etc The police officer in charge of the station or police officer of the rank of sergeant or above may take identification material (prints, voice recordings, handwriting samples or photos) for identification or evidential purposes.50 You may consent to have such identification material taken.51 If you do not consent, a police officer is allowed to take the identification material in certain circumstances, using an amount of force that is reasonable and necessary.52 A different regime applies for minors and those incapable of managing their own affairs, in which case magistrates have a greater role.53 Even so, prints can be taken from you so long as you are ten years old and so long as they are taken in accordance with the detailed provisions governing forensic procedures.54 Except where there are special reasons for not doing so,55 identification material should be destroyed as soon as practicable upon acquittal or where no conviction is recorded or, alternatively, after twelve months, where proceedings have not been instituted or have been discontinued.56 The police officer who is required to give you certain information (such as a caution) must , if practicable, tape record the interchange.57 Confessions or admissions will be inadmissible in court unless it can be shown that it was not reasonably practicable to tape record the questioning and admissions58 or a tape recording of a written record of the interchange being read back to you is made.59 You are entitled to a copy of the audio or video recording and any transcript, if prepared, within seven days.60 The (CTH) Crimes Act 1914 allows for you to be searched upon arrest, subject to the police forming a reasonable suspicion or belief about certain things. You may be frisked,61subject to an ordinary search,62 have your premises searched63 or, more rarely, strip searched64with a view to gathering seizable items65or evidence regarding the offence or others. In essence, the level of intrusion of the search depends on what is suspected, with more intrusive searches - such as strip searches - being subject to greater supervision and procedures.66 The police have the power to seize any relevant items found in such searches.67 As many environmental offences are minor, the power to search will generally only be for frisk searches. These can be conducted where the police reasonably suspect it is prudent to do so to determine whether you have a seizable item.68 15.8 Custody RecordsUnder NSW law, the Custody Manager must open a custody record and record the details of your detention.69 There is no such requirement under Commonwealth law. 15.9 What Happens When the Detention Period is Up?Police must either release you, take you before a magistrate to be formally charged70or give you a Court Attendance Notice (CAN) and bail. In NSW, the Custody Manager must ensure that a copy of your custody record is given to you as soon as practicable after you are released or taken before a magistrate.71 There is no such requirement under Commonwealth law. 15.10 What Happens if the Arrest is Unlawful?Where an arrest is unwarranted (for instance, there was no justification) or improper (for instance, the arrest was made for the purpose of questioning), there may be a few courses of action available to you. These will have different consequences for both you and the police concerned. First , you may have an action under tort law for trespass to the person or false imprisonment. It is important to remember that an arrest will not be unlawful just because you are innocent. Police may arrest on a "reasonable suspicion" (in NSW) or a "reasonable belief" (under Commonwealth law). Therefore, it is only when a police officer had no grounds or unreasonable grounds for arrest that an action will be sustainable. Any such action will usually be against the State in addition to, or instead of, the police officers concerned.72 Second , an unlawful arrest may allow for the court to exclude certain evidence obtained during the time of the impropriety or illegality.73The court's discretion as to how it deals with such evidence is bound by the need to consider factors such as the following:
Third , you may complain to the Commissioner or Ombudsman and seek disciplinary proceedings against the police concerned. If you do, you should first put your complaint in writing and deliver it by post to the Local Area Commander of the NSW Police Force.75 There is little point in contacting the Ombudsman first, as they generally only have an oversight function in relation to complaints against police.76 Consequently, they will regard it as a premature complaint and advise you to proceed as above.77 If you are not satisfied with the response from the Local Area Commander, you should then forward your complaint and the response (if any) to the Ombudsman.78 Text Box 15.1
Should I Exercise My Right to Silence? The right to silence is not absolute, as there are limited exceptions.79 Generally speaking, however, you do not have to answer questions or write anything down. Before deciding what you will do, it is important that you first speak to a lawyer. In any event, you should keep the following in mind:
If you decide not to say anything, make this clear from the outset. State your name and address and answer each and every question with something like "I do not want to say anything at this stage". You may need to be persistent; police may try a number of conversational gambits or tacks to get you to talk.
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