Detailed Notes on Police Powers: Arrest and Use of Force

Police Powers: Arrest and Use of Force

Disclosure of Identity

LEPRA Section 11

According to LEPRA s11 and cf Crimes Act 1900, s 563, a police officer can request someone's identity under specific circumstances:

1. If the officer reasonably suspects the person can assist in investigating an alleged indictable offense because they were near the location of the offense before, during, or soon after it occurred. An indictable offense is a serious crime that is generally tried by a judge and jury.

2. If the officer intends to issue a direction under Part 14 for the person to leave a location. This part of LEPRA gives police the power to direct people to move on from certain areas to maintain public order or safety.

Public Awareness

Most people are unaware of what constitutes an indictable offense or the specifics of s11. Similarly, some police officers may also lack a comprehensive understanding of these laws. Regular training and public education are essential to address this gap.

Practical vs. Legal Perspectives

Police often approach situations using common sense, addressing legal justifications later, contrasting with lawyers who start with established rules and apply them to the facts. This difference in approach can lead to misunderstandings and legal challenges.

Consequences of Answering Questions

People often incriminate themselves by answering police questions, thinking they can deceive or manipulate the situation. Generally, you are not obligated to answer questions. It's important to be aware of what LEPRA entails; it concerns interactions with police and potential self-incrimination. Legal advice before speaking to the police is always recommended.

Exclusion of Evidence: Evidence Act 1995 (NSW)

Section 138: Improperly or Illegally Obtained Evidence

Related to INTERACTION W/ EVIDENCE ACT 1995 (NSW) ● Part 3.11 discretionary and mandatory exclusions. Unlike the "fruit from a poisonous tree" doctrine in America, Australia retains the discretion to admit evidence obtained improperly (s138). Admission can be similar to a confession but remains subject to judicial discretion. Royal commission led to lepra - better than nothing.

• Fruit from the Poisonous Tree Doctrine: In the USA illegally obtained evidence and any evidence derived from it is inadmissible.

Factors in Admissibility

The court considers several factors under subsection (1) when deciding whether to admit evidence, including:

• (a) Probative Value: The evidence's relevance in proving a fact that needs to be proven.

• (b) Importance of the Evidence: Its significance in the legal proceeding.

• (c) Nature of the Offense/Action: The type of offense, cause of action, or defense.

• (d) Gravity of Impropriety: The seriousness of the violation or misconduct. Deliberate violations by police are viewed more seriously.

• (e) Intent: Whether the impropriety was deliberate or reckless.

• (f) International Rights: Whether it contradicts rights recognized by the International Covenant on Civil and Political Rights. Breaches of international human rights standards are significant.

• (g) Other Proceedings: Whether related proceedings have occurred or are likely.

• (h) Difficulty of Obtaining Evidence: How hard it would be to get the evidence lawfully. If evidence could have been easily obtained legally, its improper acquisition is less justifiable.

Admissibility Despite Impropriety

Even if police obtain evidence improperly (e.g., finding DNA on a knife), it might still be admissible in court. The court weighs the public interest in admitting the evidence against the public interest in protecting individual rights.

Arrest

Section 99: Power to Arrest Without a Warrant (cf Crimes Act 1900, s 352, Cth Act, s 3W)

A police officer can arrest someone without a warrant if:

1. (a) The officer reasonably suspects the person is committing or has committed an offense.

2. (b) The officer is satisfied the arrest is reasonably necessary for reasons such as:-

   • Stopping the person from continuing or repeating the offense.

   • Preventing the person from fleeing.

   • Establishing the person's identity (if it can't be readily established or if false information is suspected).

   • Ensuring the person appears in court.

   • Obtaining property related to the offense.

   • Preserving evidence or preventing its fabrication.

   • Preventing harassment or interference with potential witnesses.

   • Protecting the safety or welfare of any person, including the arrested individual.

   • Due to the nature and seriousness of the offense.

Additional Points on Arrest

• An officer can arrest someone without a warrant if directed by another officer, provided that officer could lawfully make the arrest themselves.

• The arrested person must be brought before an authorized officer as soon as reasonably practicable.

• Arrest can be discontinued at any time (section 105). If new information comes to light, the arrest may no longer be justified.

• Detention is allowed for investigating the offense (Part 9). However, detention must be reasonable in length and purpose.

• A person cannot be arrested for an offense they've already been tried for. Double jeopardy is prohibited.

Section 202: Police Officers to Provide Information When Exercising Powers

• An officer must provide evidence of their status as a police officer (unless in uniform), their name, place of duty, and the reason for exercising their power.

• This information must be provided as soon as reasonably practicable or, when dealing with a single person, before giving a direction, requirement, or request.

• If multiple officers are present, only one needs to provide this information.

• If asked for their name and place of duty, the officer must provide it.

Section 204A: Validity of Exercise of Powers

• Failure to provide the officer's name or place of duty doesn't invalidate the exercise of power unless the officer was asked for this information and failed to provide it.

Restrictions on Arrests

The restrictions on arrests are now less stringent due to lobbying from the police and the Madden case. This has led to concerns about potential abuses of power.

Civil Liability for Unlawful Police Action

If police act unlawfully, they may be considered private citizens, opening them up to tort cases. Civil lawsuits against the state are a significant avenue for police accountability, often resulting in settlements in the tens of millions. It used to be harder to bring a lawsuit. Changes in legislation have made it easier for individuals to sue for police misconduct.

Reasonable Suspicion

Rondo Case

A driver was pulled over because police thought he didn't match his car, and drugs were found. The driver won the case due to police misconduct. This case illustrates the importance of having a valid and reasonable basis for suspicion.

Suspicion vs. Belief

Suspicion is less than belief but more than possibility. It requires some factual basis but doesn't have to be extensive. Suspicion must be genuinely held, not arbitrary.

Carr Case

An individual was intoxicated in public, swore at police, resisted arrest, and assaulted them. Because police knew he was intoxicated, they had no reasonable basis to suspect he would flee. The unlawful arrest opened the door to civil litigation.

DPP v AM Case

A group of kids. One persistently swore after being cautioned. Because police didn't know where she lived or who she was, the arrest was deemed lawful.

General Advice

People should be cautious about speaking to police, who may be trying to gather information for an arrest. You can draft a witness statement instead of speaking directly to them to protect yourself from potential self-incrimination. Consulting with a lawyer before making any statement is advisable.

Limitations on Arrest Power

Police cannot arrest solely for further investigation or questioning. They need sufficient evidence before making an arrest. Fishing expeditions are unlawful.

Use of Force

General Principles

Use of force often accompanies arrest. It must be reasonably necessary. Even a citizen making an arrest can use force, but it's not recommended. Citizens should generally avoid using force unless in self-defense.

Proportionality

The force used must be proportionate to the harm being prevented.

Split-Second Decisions

Police often have to make split-second decisions, which courts later scrutinize. These decisions are assessed based on what a reasonable officer would have done in the same situation.

Body-Worn Cameras

Body-worn cameras significantly alter how events are perceived in news and courts. They provide an objective record of what happened, replacing potentially biased notes from officers. However, the footage is not always conclusive and can be subject to interpretation.

Standard Operating Procedures (SOPs)

Prosecutors need to be familiar with police SOPs. Deviations from SOPs can be evidence of improper conduct.

Legal Authority and Accountability

The authority to use force comes from the law. Individual officers are accountable and responsible for their use of force and must justify their actions legally. Any use of force must be reasonable as defined under LEPRA:

• Section 230 (General Power)

• Section 231 (Arrest)

Reasonableness

Police should only use force that is reasonable, necessary, proportionate, and appropriate to the circumstances, using no more force than necessary. The decision to apply force, including using a Taser, is an individual one for which every officer will be held accountable.

Taser Use Restrictions

A Taser should not be used in any mode:

• Near explosive materials, flammable liquids, or gasses.

• On persons where there is a likelihood of significant secondary injuries.

• Punitively for coercion.

• Against passive non-compliant subjects who are exhibiting non-threatening behavior (e.g., refusing to move, acting as a dead weight).

• To rouse an unconscious, impaired, or intoxicated subject.

• To target known pre-existing injury areas of a subject.

• As a crowd control measure.

• When the subject is holding a firearm.

• Against a mental health patient solely to make them comply or submit to medication or treatment.

• Unless it is in the performance of the officers' duties or at an approved weapons training day

• For any other investigative purpose. The video and audio capability of a Taser and Taser Cam should only be used as part of normal tactical deployment

Taser Types

• Drive stun: Basically a stun stick

• Compared to:

• From a distance with little thiging shoot shoot pew pew

Considerations

• Gender

• Size

• Whether the person is suffering mental illness.

Kristen White Case

The case of the officer who tasered a 95-year-old in a retirement home highlights the importance of body cams. His words "nah bugger it" would not have entered the public domain without the recording, revealing his state of mind. He lacked adequate training for dealing with elderly individuals.

Arrest for Breach of Bail

Bail Act 2013, Section 77: Police Officers May Take Actions to Enforce Bail Requirements

• If a police officer believes someone has failed to comply with a bail acknowledgment or condition, they may:-

  • Take no action.

  • Issue a warning.

  • Issue a notice to appear in court.

  • Issue a court attendance notice.

  • Arrest the person without a warrant.

  • Apply for an arrest warrant.

Considerations for Action

• Seriousness of the breach.

• Whether the person has a reasonable excuse.

• Personal attributes and circumstances of the person.

• Whether an alternative to arrest is appropriate.

Wood Calbery v The Queen Case

An officer saw Wood Calbery in a backyard after curfew (violating bail conditions). Calbery claimed to be assaulted, but the officer arrested him without informing him he was under arrest, then struck him. This case highlights that police must adhere to proper procedures; otherwise, it can be considered assault.

Overview of Criminal Procedure

Detecting the Offence

• Police need to be aware of crime committed - through observation, receiving info, come across evidence.

Investigating an Alleged Offense

• Person not compelled to answer police questions or assist police with inquiries. Police cannot arrest someone for seeing if they are involved (willism v r 1986). But can look for evidence of crime

• Police power to intiate investigation - law enforcemnet (powers and responibilities ) act 2002 (nsw) LEPRA.-

  • Enter premises to prevent breach of peace, prevent significant injury, or someone died. Otherwise no consent to entry (s9)

  • Enter premises to arrest (S10)

  • Demand name and address of person near or in a place of a indicitable offence - reasonable to believe person can assist with investigation (s11)

  • Require person to disclose idenitiy if police believes is subject to a AVO (s13)

  • Driver and passenger to produce idenitifcation + name + address- indictable crime (s14)

  • Driver to produce license and name and addres (road and transport act 2013 s175)

  • Stop traffic - breath test or soberity test

  • Search of a person in public place or school if bag has dangerous implement (s23)

  • Stop and search any person or vehible for stolen goods (s21 and 36)

  • Use dog to sniff for drugs (places like consumption of alcohol, sport event, concert, public entertainment, public transpect etc… S148) or for firearms s196

  • Estblish crime scene then further powers for seraching for evidence and the restriction on free movement of people but not for more than three hours (ss90-95)

Reasonable Suspicion

• Or reasonable grounds to suspect/believe. That a certian fact exists before excercing poewer to search or detain a person.

• George v rockett - "suspection and belief - it requires of facts which are sufficient to induce that state of mind in a reasonable person…"

• Suspection (lord devlin) = "in its ordinary meaning is a state of conjectiure or surmise where proof is lacking" 'i suspect but i cannot prove'. The facts which can reasonably ground a suspicipoin may be quite insufficient reasonably to ground a belief, yet some factual basisi for the suspcion must be shown. …'

• 'a suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a postive feeling of actual apprehension or misttrust amounting to a 'slight opinion but without sufficient evidence'

• 'a reason to suspect that a fact exists is more than a reason to consider or look into the possibilit of its exitence. The notion which 'reason to suspect' expresses in sub s4, i think something which in all the circumstances would create in the mind of a reasonable person in the postion of a payee an actual apprehension of fear that the situaiton of the

• Less than a reasonable belief but more than a possibility. Must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possbility of its existence payer is in actual fact that which the sub setion descibes - a mistrust of the payers ability to pay his debts as they become due and of the effect which the accpetance of the payment would ahve as between the payee and other creditors.

• The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, … Not to say the objective circumstances must estlish on the balance of probabiliites that the subject matter in fact occured or exitss" the assent of belief is given on more slender evidence than proof.

• Belief is an inclination of the mind otwards assenting to, rather than rejecting, a propostion and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances., leave something to surmise or conjecture."

• Reasonable suspecion in NSW applied in r v rondo - police had 'reasonable suspecion' to justify stopping and searching rondos car

  Explained concept of 'reasonable supicion as follows:

  • Reason suspection is not arbitrary. Some factual basis for the suspeicion must be shown. A suspecion may be based on hearsay material or materials which may be inadmissable in evidence. The material must have some probative value

  • What is important is the information in the mind of the police officier stopping the person or the vehicle or making the arrets at the time he did so. Having ascertianed that informationthe question is whether that information afforeded reasonable grounds for the suspection which the police officier formed. In answerin that question regard must be had to the source of information and its content, seen in the light of the whole of the surrounding circumstances

• In this case- he did not have reasonable grounds to form any of the suspicions mentioned in s357E. It was not open to him to 'reasonbly suspect' any of the matters reffered to in s357E. And stopping the appellenat was unlawful

• There must be some factual basis. To justify the suspecion - even if those facts cant determine guliyt. The facts may not be reliable in court.

• Hyder v the commonwealth - proppostitions 'extracted from decsions consdiering how a person required to have reasonable grounds either to suspect or believe certain matters for the purposes of issining a search warrent or arresting a person might be properly from that state of mind'

• Hyder v the commonwealth 2012 cca.

• Mccoll j= . "belief is an inclination of the mind toward assenting to, rather than rejecting, a propositiong and the grounds which can reasonably induce that inlcination of the may, depending on the circumstances leave something to surmise or conjecture (george v rockett 116)

• Judged agaiinst 'waht was known or reasonanably capcable of being known at the relevant time' (ruudock v taylor 2005)

• Prior v mole - an apprehending officer was entitled to rely on his past policiing experience to support the reasoanble grounds required by s128 of police admin act (nt) - rejected submission that the officier expereince was not sufficiently particuarlised. Dowse v state of NSW

Madden V The State of NSW 2022 - TORTS – applicability of Civil Liability Act 2002 (NSW) to wrongful arrest and false imprisonment claims – meaning of injury s 3B(1)(a) – applicability of s 11 in determining definition of injury

Background of Madden v The State of NSW

In Madden v The State of NSW [2022] NSWCA 134, the New South Wales Court of Appeal addressed several critical issues concerning tort law, civil liability, wrongful arrest, and false imprisonment. The case specifically examined the applicability of the Civil Liability Act 2002 (NSW) and the meaning of 'injury' under s 3B(1)(a) in the context of a wrongful arrest. It also considered the relevance of s 11 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) in determining whether an arrest was lawful.

Key Legal Issues Addressed

1. Applicability of the Civil Liability Act 2002 (NSW):

   • The court considered whether the provisions of the Civil Liability Act 2002 (CLA) applied to claims of wrongful arrest and false imprisonment. The CLA aims to limit liability for certain types of claims, particularly those involving negligence. The court needed to determine if these limitations extended to intentional torts like wrongful arrest.

2. Meaning of 'Injury' under s 3B(1)(a) of the CLA:

   • Section 3B(1)(a) of the CLA excludes certain types of harm from the Act's coverage. The court analyzed whether the harm suffered by the plaintiff as a result of the wrongful arrest constituted an 'injury' as defined under this section. This involved examining the nature and scope of the plaintiff's suffering.

3. Relevance of s 11 of LEPRA:

   • Section 11 of LEPRA outlines the conditions under which a police officer can request a person's identity. The court assessed whether the police officer's actions complied with s 11 of LEPRA and whether any non-compliance affected the lawfulness of the arrest. This analysis was crucial in determining whether the arrest was justified under the law.

Detailed Analysis

• Civil Liability Act 2002 (NSW):

  • The CLA generally aims to limit the amount of damages that can be awarded in personal injury claims. However, s 3B(1)(a) of the CLA provides an exception, stating that the Act does not apply to civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that constitutes sexual assault or other sexual misconduct.

• Section 3B(1)(a):
  - In Madden's case, the court had to determine whether the actions of the police officer constituted an 'intentional act' with the 'intent to cause injury.' The court considered whether the wrongful arrest was an intentional act and whether the resulting harm to Madden qualified as an injury under the Act.

• LEPRA and Lawful Arrest:
  - LEPRA provides the framework for police powers and responsibilities in NSW. Section 11 of LEPRA specifies the circumstances under which a police officer can demand a person's identity.
  - The court examined whether the police officer complied with s 11 of LEPRA when requesting Madden's identity. If the officer did not have reasonable grounds to suspect that Madden could assist with an investigation, the request for identity would be unlawful, potentially rendering the subsequent arrest unlawful as well.

Key Considerations from the Case

1. Intentional Act and Intent to Cause Injury:

   • The court needed to differentiate between an intentional act (the arrest) and the intent to cause injury. For the CLA not to apply, it had to be established that the police officer intended to cause harm to Madden through the arrest.

2. Causation:

   • The court considered whether the injury (e.g., psychological harm, emotional distress) was directly caused by the intentional act of the police officer. Causation is a critical element in establishing liability in tort law.

3. Reasonable Suspicion:

   • The existence of reasonable suspicion is crucial in determining the lawfulness of an arrest. The court assessed whether the police officer had a reasonable basis to suspect that Madden was involved in criminal activity or could assist with an investigation.

Implications and Conclusions

The Madden v The State of NSW case clarifies the boundaries of civil liability in the context of wrongful arrest and false imprisonment. It underscores the importance of adhering to proper legal procedures and respecting individual rights during law enforcement activities. The case also highlights the complexities of applying the Civil Liability Act to intentional torts and the necessity of proving intent to cause injury for the exclusion in s 3B(1)(a) to apply.

Impact on Police Practices

The decision influences police practices by reinforcing the need for officers to:

1. Ensure compliance with LEPRA, particularly s 11, when requesting a person's identity.

2. Act on reasonable suspicion based on factual grounds, avoiding arbitrary or discriminatory actions.

3. Understand the implications of their actions and the potential for civil liability if they act unlawfully.

4. Respect the rights of individuals during arrest and detention, adhering to procedural requirements to avoid claims of wrongful arrest and false imprisonment.