When Can Police Arrest A Person In New South Wales? Know Your Rights

In NSW, Police have the power to arrest members of the public without a warrant. These powers exist to maintain the safety of our society.

Their powers must, however, be balanced against each individual's right to liberty. As stated in the case of Donaldson v Broomby (1982) 60 FLR 124 at [126] by Deane J:

"A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable."

There are laws in place to ensure that Police do not abuse the arrest powers they have been granted.

The Legal Definition of an "Arrest"

An arrest is when it is made plain to the suspect by what is said and done that he or she is no longer a free person and that he or she understood the same. The question of whether there was an arrest is a question of fact that was outlined in the case of R v Inwood [1973] 2 All ER 645.

When Can Police Lawfully Arrest You?

Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA") sets out the law on what will constitute a lawful arrest by Police. In summary, a police officer in NSW can lawfully arrest you if each of the following is satisfied at the time of the arrest:

1. The police officer suspected on reasonable grounds that you have committed or are committing an offence under section 99(1)(a) of LEPRA, and
2. The police officer formed the conclusive view that the arrest was reasonably necessary for one or more of the reasons set out in section 99(1)(b) of LEPRA, namely:
   • Preventing you from engaging in further offending or fleeing,
   • Enabling enquiries to be made about your identity,
   • Ensuring that you attend court in relation to the offence,
   • Obtaining property that is in your possession and connected to the offence,
   • Preserving evidence or preventing the fabrication of evidence
   • Preventing interference with relevant witnesses,
   • Protecting the safety others, including yourself; or
   • Due to the seriousness of the allegation

Must Be Reasonable Grounds of Suspicion

A lawful arrest occurs when the police officer at the time of arrest suspects on reasonable grounds that the person being arrested is committing a crime or has committed a crime (section 99(1)(a) LEPRA).

Without a suspicion held on reasonable grounds, the arrest will be unlawful. The law says that a "reasonable suspicion" is less than a reasonable belief but more than a possibility. This principle of law was held in the case of R v Rondo [2001] NSWCCA 540; 126 A Crim R 562.

There must be a factual basis for the suspicion shown. To do this, the first step is to ascertain the information and source of the information in the officer's mind to determine the second step, namely, whether or not it affords reasonable grounds for the suspicion which the officer formed at the time of arrest. The second step is an objective determination by the court. Even hearsay material or information or evidence that is otherwise not admissible in court can form the basis for the police officer's suspicion.

Arrest Must be Reasonably Necessary

The Supreme Court case of DPP v Carr [2002] NSWSC 194 makes it clear that an arrest should only be used as a last resort. If it is not used as a last resort, the arrest may be improper.

In the case, in the Local Court of New South Wales, Magistrate Heilpern had dismissed charges against Mr Lance Carr for resisting Police, assaulting Police and intimidating Police in Wellington NSW.

The charges were dismissed because Magistrate Heilpern had found that the evidence relating to resisting Police, assaulting Police, and intimidating Police had been obtained in consequence of an improper act, namely, the improper arrest of Mr Carr for an offensive language charge. The arrest was deemed improper because, amongst other things, the Police did not consider a summons or any process that did not involve an arrest, and the Police said in evidence that an option other than an arrest was not selected because it was "far quicker" to arrest Mr Robinson than to issue a field court attendance notice.

The prosecution argued the evidence should be admitted pursuant to section 138 of the Evidence Act 1995(NSW), which allows a Judge to admit improperly obtained evidence if the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. The section sets out a non-exhaustive list of guiding criteria to be taken into account when reaching a decision about admitting improperly obtained evidence. Magistrate Heilpern refused to exercise their discretion and refused to admit the evidence under section 138 of the Evidence Act 1995 (NSW).

The Director of Public Prosecutions NSW appealed to the Supreme Court of NSW, seeking a declaration that Magistrate Heilpern had erred in law as to the construction and the application of section 138, and asked the Supreme Court to remit the matters to the Magistrate to be dealt with according to the correct application of the law.

The Supreme Court of NSW, however, disagreed with the DPP's appeal points in this regard. The Supreme Court of NSW reiterated that it had, in its appellate and trial division, for many years, been emphasising that it is inappropriate for powers of arrest to be used for minor offences where the defendant's name and address are known, there is no risk of the defendant departing, and there is no reason to believe that a summons will not be effective. The Court said that arrest is an additional punishment involving the deprivation of freedom hand cause public shame and fear. The consequences of an unlawful or improper arrest instead of a summons are often anger on the part of the person being arrested and an escalation of the situation, leading to the person resisting arrest or assaulting the police. The Court said this pattern was familiar, and it was about time that the statements of the Supreme Court are heeded.

The case demonstrates that an arrest must be used as a last resort for it to be a proper exercise of Police power.

When conducting a lawful arrest, the police officer conducting the arrest must comply with section 99(1)(b) of LEPRA, namely, the arrest was reasonably necessary for purposes of one or more of the reasons stated in the subsection. This requires the officer to first assess the situation and make an evaluative judgement. This involves considering alternatives to and less drastic measures than to arrest. This involves considering the officer's state of mind which is a subjective matter and must exist as a matter of fact at the time of arrest as was outlined and confirmed in the case of Jankovic v DPP [2020] NSWCA 31. The main question the officer must consider is whether the arrest was a proportionate response to the risk that the office perceived at the time. This requires proportionality into the officers decision making. The extent of the continuation of freedom creates a risk that the attainment of one or more of the states of law enforcement outcomes will be jeopardised.

Arrest for the Purposes of an Investigation is Unlawful

Police are not permitted to arrest someone for the purpose of an investigation.

In the High Court of Australia case NSW v Robinson (2019) HCA 46, Mr Robinson was subject to an AVO. Mr Robinson voluntarily entered Sydney City Police Staton. A constable arrested him and told him he was being arrested for breaching the AVO. The arresting officer had no intention at the time of the arrest to bring Mr Robinson to court unless there was sufficient reason to charge him after an investigation.

The constable offered Mr Robinson an interview, which Mr Robinson accepted. Mr Robinson was released without charge shortly after.

Mr Robinson brought a claim for damages for wrongful arrest and false imprisonment. The High Court of Australia unanimously held that an arrest under section 99 of LEPRA can only be for the purpose of taking the arrested person before a magistrate or other authorised officer to answer to a charge for an offence. A majority of the High Court held the constable did not have the power to arrest Mr Robinson when, at the time of the arrest, the constable had not formed the intention to charge him. The arrest was found to be unlawful.

A lawful arrest requires at the time of arrest, there must be an intention to charge which is also reflected in section 99(3), 107 and 202(1)(c) of LEPRA. This is the main purpose of an arrest.

This does not mean that a charge will certainly be forthcoming. Once arrested with an intention to charge, the arrested person can be detained for investigation purposes under Part 9 of LEPRA with the arrest being discontinued at any time.

Arrest Must Not Exceed Holding Period

Pursuant to section 115 of LEPRA Police can lawfully hold a person for a period which is "reasonable in the circumstances" and not for a period exceeding a maximum of 6 hours.

To determine what is "reasonable in the circumstances," section 116 of LEPRA states that the relevant considerations are the persons age, physical and mental condition, and the number, seriousness and complexity of the offences. The burden rests with the Prosecution to prove, on the balance of probabilities, that the time was "reasonable in the circumstances".

Note however that time can be paused pursuant to section 117 of LEPRA, for example the time taken to transport a person, communicate with a lawyer, receive medical treatment participate in an ID parade, recover from intoxication, or carry out forensic procedures, does not form part of the holding time.

Arrest Must Comply With Procedural Safeguards

There are also procedural safeguards contained in the law. A failure by Police to comply with the correct procedure could result in an arrest being unlawful.

Pursuant to section 202 of LEPRA the Police officer arresting you must as soon as it is "reasonably practicable" provide you with:

• Evidence of the fact that they are a police officer, unless the arresting Police officer is in uniform,
• Their name and their place of duty; and
• Information about why they are arresting you.

If two or more Police officers are arresting you, only one of them has to provide you with the information above. However, if the person being arrested asks any officer present their name and/or place of duty, the officer must give you information you have requested at least once.

Section 204A of LEPRA states that an arrest will still be lawful even if the Police officer does not provide you with their name or place of duty if you do not ask. However, if you request they officers name and place of duty and they do not provide it, the arrest is no longer lawful.

Section 204A of LEPRA does not protect an arrest from becoming unlawful in any capacity if the officer fails to provide you with the reason for the arrest, as required under section 202(1)(c). That is, if a police officer fails to tell you the reason for your arrest as soon as reasonably practicable, the arrest will be unlawful. Michaels v The Queen (1995) 184 CLR 117 at 119-120.

Arrest Must Not Use Excessive Force

Section 231 (and section 230) of LEPRA gives the Police the power to use reasonable force to make an arrestor to prevent a person from escaping after an arrest.

The police are only permitted to use "reasonable force", meaning that if the force is found to be excessive or is used for reasons other than to make the arrest, prevent escape, or another lawful function under the Act, the arrest will be unlawful.

An arrest which begins as lawful can become unlawful if excessive force is used. However, an arrest which begins as being unlawful, can become lawful, too: Michaels v The Queen (1995) 184 CLR 117.

Whether or not a reasonable person in the position of the police officer would have considered the use of force to be proportionate to the risk or danger sought to be prevents is an objective test made by the courts. This has been reflected in the case of DPP (NSW) v Greenhalgh [2022] NSWSC 980.

Arrest for breach of bail without section 77(3) Bail Act considerations unlawful

if you are on bail, and the police suspect that you are in breach of your bail conditions, the officer must consider the following non exhaustive factors set out in section 77(3) of the Bail Act 2013 (NSW) before arresting you:

• The seriousness or triviality of the failure or threatened failure
• Whether the person has a reasonable excuse for the failure or threatened failure
• The personal attributes and circumstances of the person, the extent known to the police
• Whether an alternative course of action to arrest is appropriate of the circumstances

A failure to consider the factors above will render an arrest for breach of bail unlawful: Bugmy v Director of Public Prosecutions (NSW) [2024] NSWCA 70 at [45] citing North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, Nettle and Gordon JJ.

Arrest no longer necessary is unlawful

What may commence as a lawful arrest may become unlawful if it becomes unnecessary. Section 105 of LEPRA and section 77(2) of the Bail Act 2013 (NSW) give the police power and require them to discontinue an arrest if it is no longer reasonably necessary.

What Happens if an Arrest in Unlawful?

if an arrest is found to be unlawful, the consequences that flow depend on the charges that have been laid against you.

Charges which require police to be acting in lawful execution of their duty

Some charges require the prosecution to prove beyond reasonable doubt, as an element of the offence, that the Police were acting "in lawful execution of their duty."

Examples of common charges which require to Police to be acting in execution of their duty include:

• Hindering Police
• Resisting Police
• Assaulting Police
• Escape lawful custody

If the prosecution fails to prove beyond reasonable doubt that the Police were acting in lawful execution of their duty, the charge will result in a not guilty verdict. An illegal arrest by a police officer will mean that the officer was not acting in the lawful execution of their duty. As a result, this element of the above offences will not be satisfied, which will result in an acquittal and dismissal of the charge(s).

General consequences of an unlawful arrest

In other charges, the Court has the discretion to exclude evidence pursuant to section 138 of the Evidence Act 1995 (NSW) which has been obtained in consequence of an unlawful arrest. This was the case in Robinson, discussed above.

There must be a causal link between the arrest and the obtaining of the evidence: Cornwell v The Queen [2010] NSWCCA 59 at [178]-[180], [292]. To prove causation, the court needs to be persuaded that were it not "but for" the unlawful arrest, the evidence would not have been obtained: R v Grech; R v Kadir [2017] NSWCCA 288 at [119].

Examples of evidence that could arguably be excluded include evidence of the accused assaulting, resisting or intimating police at or after the unlawful arrest, items such as drugs or weapons found during a search conducted after an unlawful arrest, or admissions made "in consequence of" an unlawful arrest

In these cases, the burden rests with defence to establish, on the balance of probabilities, that the evidence has been improperly obtained. Once this has been established, the burden rests upon the prosecution to show to the court why the evidence should still be admitted.

Suing the Police for Unlawful Arrest and False Imprisonment

Unlawful Police conduct can have devastating serious and lasting consequences on the person subject to the conduct due to the trauma that ensues. A remedy that may be available in the event you are unlawfully arrested and imprisoned is to sue the police in a civil claim for damages.

Victims of unlawful police conduct, including unlawful arrest can hold Police to account by filing civil claims, for example, for wrongful arrest, false imprisonment, and battery/assault, pain/suffering/humiliation.

It is important to contact a lawyer quickly, so that evidence of the Police's unlawful conduct can be secured before it disappears. For example, CCTV or Police body worn footage of the incident, Police records, Police accounts, photographs of injuries, medical records, and eyewitness accounts could be lost if there is delay in contacting experienced lawyer to raise the potential of a civil claim.

If you believe you are being unlawfully arrested or believe you have been unlawfully arrested, you should take photos of any injuries or anything else that is relevant, such as damage to your personal property, you should seek medical attention and keep your medical records, you should obtain contact details of anyone who you believe may have been the unlawful conduct by police, and you should write down your version of events, including the time, location, officers names/registration numbers or descriptions of appearance, and what happened while it is still fresh in your memory.

There are limitation periods which apply to a claim.

If you did not suffer an injury, your claim is a general claim, and you have 6 years to file your claim from the date of the arrest.

If you suffered an injury, you have 3 years to bring your claim.

You do not need to prove that the police acted maliciously, and an honest mistake on the part of the Police is not a defence.

Can you resist an unlawful arrest

It is never wise to resist an arrest using violence or aggression. If you believe you are being unlawfully arrested, it is important to stay calm, clearly state that you do not consent to the arrest, remember as many details as possible and write them down as soon as you can, and contact a lawyer

However, as stated above, if you are charged with the offence of resisting arrest, the Prosecution must prove that the arrest was lawful. If it was not, you will be found not guilty of the charge of resisting arrest. Similarly, if you assault police during an arrest, you may still be found not guilty of the offence if the arrest was unlawful.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.