Arrest Powers

Question 1

Can officers arrest somebody for ‘Breach of the peace’?

Answer 1

Yes - Common Law

Question 2

What is the purpose of arresting somebody for “Breaching the Peace”?

Answer 2

For the purpose of removing that person from the situation only. Generally no further action taken

Question 3

What is an example for arresting somebody for “Breach of the Peace”?

Answer 3

An intoxicated Australian football supporter decides to sit amongst English supporters and try to goad them into a fight.

Police may remove the supporter if they believe that a fight will start if they don’t. He/she is removed and then released. No further action is needed or taken

Question 4

An intoxicated Australian football supporter decides to sit amongst English supporters and try to goad them into a fight.

Police may remove the supporter if they believe that a fight will start if they don’t. He/she is removed and then released. No further action is needed or taken”

What powers can police use to diffuse the situation?

Answer 4

Police may place the person under arrest for “Breach of the Peace” - Common Law

Question 5

Apart from LEPRA s 99 - what other arrest powers do police have?

Answer 5

• Arrest by specific power other than LEPRA i.e. Bail Act or Road Transport Act
• Arrest by virtue of warrant
• Arrest for Breach of the Peace

Question 6

Can police discontinue an arrest?

Answer 6

Yes - at any time

LEPRA - s 105

Question 7

What does LEPRA s 105 cover?

Answer 7

Arrests may be discontinued

Question 8

Why would police discontinue an arrest?

Answer 8

the arrested person is no longer a suspect or the reason for the arrest no longer exists

or

police believe there is a more appropriate way to deal with the situation (i.e. warning, FPN, FCAN)

Question 9

What legislation allows you to arrest somebody by virtue of a warrant?

Answer 9

LEPRA 2002 (NSW) s 101 - Power to arrest with warrant

Question 10

LEPRA 2002 (NSW) s 101 - Power to arrest with warrant

T/F - The police officer must have the warrant with them when arresting the person

Answer 10

False - s 101 (2)

“The police officer may take action whether or not the warrant is in his or her possession”

Question 11

LEPRA 2002 (NSW) s 101 - Power to arrest with warrant

T/F - The police officer does not need the warrant with them when arresting the person

Answer 11

True - s 101 (2)

“The police officer may take action whether or not the warrant is in his or her possession”

Question 12

What is an example of “Arrest for a specified power other than LEPRA”?

Answer 12

• An arrest under the Bail Act 2013 (NSW) where a person has breached a bail condition
• An arrest under the Road Transport Act 2013 (NSW) where a person has failed a roadside breath test

Question 13

What are some alternatives to arrest?

Answer 13

• warning
• caution
• penalty notice
• field or future service CAN, or
• in the case of a child, dealing with the matter under the Young Offenders Act 1997 (NSW)

Question 14

What legislation covers “Use of force in making an arrest”?

Answer 14

s 231 - LEPRA 2002 (NSW)

Question 15

What does s 231 - LEPRA 2002 (NSW) cover?

Answer 15

Use of force in making an arrest

Question 16

How much force can police use to effect an arrest?

Answer 16

Use as much force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest

Question 17

What legislation covers “Use of force generally”?

Answer 17

s 230 - LEPRA 2002 (NSW)

Question 18

What does s 230 - LEPRA 2002 (NSW) cover?

Answer 18

Use of force generally by police officers

Question 19

Is it lawful for somebody assisting police to use force?

Answer 19

Yes - s 230 - LEPRA 2002 (NSW)

Question 20

What constitutes the act of arresting?

Answer 20

Seizure or touching of somebody - Seizure or touching of a person’s body with a view to his/her arrest

Submission - Seizure or touching of a person’s body with a view to his/her arrest
Officer states in terms that they are arresting the suspect and the suspect submits to the authority of the officer

Words or conduct -Words or conduct by the police officer make it clear the person is not free to go

Question 21

What is “reasonable suspicion”?

Answer 21

> does not amount to belief
is more than a mere idle wondering whether it exists or not
involves less than a reasonable belief, but more than a possibility,
i.e., “I suspect but I cannot prove”
does not have to be based on your own observations but can be formed using inadmissible evidence i.e. hearsay
depends on information you knew at the time you placed the person under arrest