Arrest and Bail

Question 1

When can police arrest without a warrant?

Answer 1

If they reasonably suspect the person has committed or is committing an offence
AND
The arrest is reasonably necessary

s 365(1) PPRA

Question 2

When can police arrest without a warrant for questioning or investigation?

Answer 2

If they reasonably suspect person has committed or is committing an indictable offence

s 365(2) PPRA

Question 3

When is an arrest (without warrant) “reasonably necessary”?

Answer 3

> To prevent continuation or reptition of offence
> To establish identity
> To preserve well-being of accused
> To preserve evidence
ETC

s 365(1)(a)-(k) PPRA

Question 4

What information must an arrest warrant contain?

Answer 4

> Name of officer
> Rank of officer
> Registered number
> Station of application for warrant
> Offence allegedly committed
> Must state that any officer can arrest the person named in warrant

Question 5

Does the officer need to physically have the warrant?

Answer 5

Yes! Should be produced if necessary.

s 255 CC

Question 6

What will happen to the officer if they arrest the wrong person?

Answer 6

If the wrong person is arrested in good faith - the officer will NOT be criminally responsible.

s 252 CC

Question 7

What will happen to the officer if the warrant is defective in substance or form?

Answer 7

If it was executed in good faith - the officer will NOT be criminally responsible.

s 253 CC

Question 8

Can a citizen make an arrest?

Answer 8

Yes! If they witness the person breaching the peace.

s 260 CC

Question 9

In what circumstances can a citizen make an arrest?

Answer 9

If the citizen:
> Is assisting an officer
> Finds a person committing an offence
> Reasonably believe person has committed an offence
> Find another person at night who they reasonably believe is committing an offence

s 546(b)-(e) CC

Question 10

What does a citizen have to do after making an arrest?

Answer 10

They have a duty to take the accused to police within a reasonable time.

s 552 CC

Question 11

What if a citizen fails to take an accused to the police after arrest?

Answer 11

Misdemeanour = 2 years imprisonment (max.)

s 137 CC

Question 12

Juvenile offenders - what age group do they fall into?

Answer 12

Must be:
> Under 18, OR
> Without id, they are ‘apparently’ under 18

s 6 Youth Justice Act

Question 13

When can an officer arrest a youth without a warrant?

Answer 13

Subject to terms of s 13 YJA - the officer must reasonably suspect the child of committing/has committed an offence.

s 365(3) PPRA

Question 14

What are the terms of s 13 YJA (which an officer must consider when arresting youth without warrant)?

Answer 14

An officer can use arresting powers under s 365(3) PPRA - ONLY IF they reasonably believe the arrest:
> Is necessary
> Will prevent an offence
> Will obtain/preserve evidence
> Will prevent fabrication of evidence
> Ensures the youths appearence in court

Question 15

When can an officer arrest a youth with a warrant?

Answer 15

Nothing prevents the arrest of a youth with a warrant.

s 13(4) YJA

Question 16

When can police use force? How much can be used?

Answer 16

Police may use ‘reasonabley necessary force’ in order to:
> Prevent a suspect escaping
> To exercise a power

s 615 PPRA

Question 17

When can police use lethal force?

Answer 17

Only when the suspect is committing an offence punishable by life AND warning (if practicable) has been given!

s 616(5) PPRA

Question 18

When can a citizen use force when arresting?

Answer 18

Reasonable force can be used to:
> Overcome resistance s 254 CC
> Prevent person escaping s 257(1) CC

Question 19

Can a citizen use lethal force when arresting?

Answer 19

Cannot use lethal force:
> To prevent escape s 257(2) CC
> Even when they believe it is necessary UNLESS the suspect is committing an offence for which they could be legally arrested without warrant
s 258(2) CC

Question 20

Can a person be detained by police for questioning or investigation?

Answer 20

Yes! It must be:
> For a reasonable amount of time
> Regarding an indictable offence of which they are suspected

s 403(1) PPRA

Question 21

When detaining a suspect, what will police consider when determing a “reasonable time” for questioning?

Answer 21

> Is the detention necessary for investigation
How many offences are involved
Seriousness of offences
Willingness of suspect
Mental/physical state and age of suspect

s 404(1) PPRA

Question 22

What is the maximum time a suspect can be detained for questioning?

Answer 22

Detained = 8 hours s 403(2) PPRA

Questioned = 4 hours s 403(4) PPRA

Question 23

Can the maximum time for detention and questioning be extended? What will be considered?

Answer 23

Yes! By application to Magistrate or judge ss 405-406 PPRA

Court will consider:
> Nature of offence
> How investigation is conducted
> Whether an extension will benefit evidence or questioning

s 406(1) PPRA

Question 24

What right does s 397 PPRA give an accused?

Answer 24

Right to remain silent!

• No adverse inference may be drawn from a suspects silence PETTY AND MAIDEN v THE QUEEN

Question 25

What right does s 418 PPRA give an accused?

Answer 25

Right to communicate with friend, family, or lawyer

Question 26

What right does s 419 PPRA give an accused?

Answer 26

Right to have friend, family, or lawyer present at questioning.

Question 27

What right does s 432 PPRA give an accused?

Answer 27

Right to be informed is friend, family, or lawyer has requested information about them.

Question 28

What right does s 433 PPRA give an accused?

Answer 28

Right to an interpreter.

Question 29

What right does s 434 PPRA give an accused?

Answer 29

Right to contact embassy if foreign.

Question 30

What duty does s 391 PPRA confer on arresting officer?

Answer 30

Inform arrested person "as soon as reasonably practicable": > They're under arrest > Nature of offence for which they were arrested AND/OR > Nature of warrant if present

Question 31

What duty does s 552 PPRA confer on arresting officer?

Answer 31

Must take accused before a Justice without delay.

Question 32

What duty does s 393(1) PPRA confer on arresting officer?

Answer 32

Must take accused before a court as soon as reasonably practicable.

Question 33

What duty does s 431 PPRA confer on arresting officer?

Answer 33

Before questioning them, must ensure they are informing them of rights in a language the accused understands.

Question 34

What right does s 435 PPRA give an accused?

Answer 34

Right to have everything recorded electronically.

Question 35

Special Circumstances: Indigenous Australian being questioned?

Answer 35

If education or understanding seems less than general Australian community - representative must be informed before questioning! s 420(2)-(3) PPRA Also, have right to have support person present. s 420(4) PPRA

Question 36

Special Circumstances: Children being questioned?

Answer 36

Children have right to talk to support person and have them present during questioning. s 421(2) PPRA

Question 37

Special Circumstances: Person of impaired capacity being questioned?

Answer 37

Impaired person have right to talk to support person and have them present during questioning. s 422(2) PPRA

Question 38

Special Circumstances: Intoxicated person being questioned?

Answer 38

Officer must delay questioning until they are no longer affected. s 423(2) PPRA

Question 39

What is bail? Is it mandatory?

Answer 39

Providing freedom to a person who has been deprived of their liberty by arrest - pending the outcome of their trial. * Bail is NOT guaranteed!

Question 40

Which two bodies of power can grant bail?

Answer 40

1) Police officer or watch-house manager s 7 Bail Act > Usually when person is arrested but can't be promptly jailed > Used in minor offences 2) Magistrates, District, or Supreme Court s 8 BA

Question 41

Which court has extended bail powers? What are they?

Answer 41

Supreme Court has two extended powers: > Serious offenders (those facing life imprisonment) can ONLY receive bail from SC s 13 BA > General powers to enlarge, vary, or revoke bail s 10 BA

Question 42

When is bail most often refused?

Answer 42

``` When there is an unacceptable risk the accused would: > Fail to appear in court > Fail to surrender to custody > Commit an offence on bail > Endanger victim while on bail > Interfere with witnesses while on bail > Obstruct justice ``` s 16(1)(a) BA

Question 43

If bail is refused, can the accused appeal the decision?

Answer 43

Yes! The onus will be on the accused to show why the bail should be granted. s 16(3) BA

Question 44

In regards to bail, what is a sureity?

Answer 44

"Guarantor" - a person who agrees to forfeit on behalf of the accused.

Question 45

Necessary conditions of bail: What are the 4 available options?

Answer 45

"Realeased on own undertaking..." (a) With NO deposit of money/security or sureity (b) With deposit of money/security (c) With sureity (d) With deposit of money/security AND sureity s 11(1) BA

Question 46

Special conditions of bail: What are the 4 possible options?

Answer 46

1) Ensure suspect appears in accordance with bail requirements 2) Prevent another offence 3) Prevent endangerment of public or victim 4) Prevent interfering with justice s 11(2) BA