Police Powers and Discretion Flashcards
Understand the law and practice of the police powers, analysis the legality of police powers, understand the discretionary exclusions of improperly obtained evidence, and the implications for the case against the accuse, underlying principles of the criminal justice system.
What is the appropriate legislation to cite in a Police Powers Question regarding resisting arrest?
s546C of The Crimes Act 1990
What is the relevant legislation to cite regarding the Exclusion of improperly or illegally obtained evidence by police?
s138 of the Evidence Act 1995
What is an obvious limitation of the use of s 138 of the Evidence Act 1995
The use of s138 is that it is a discretionary power to be exercised by a judge or magistrate in a criminal trial - evidence can still be admitted that breach LEPRA can still be admitted and cases resolved by way of guilty plea do not fall within its reach
What is the authority you must cite whenever the phrase ‘suspects on reasonable grounds’ is used in a police powers question.
R v Rondo (2001) 126 A Crim R 562, (See textbook 458-460)
What is the legal test for ‘suspects on reasonable grounds’
- “A reasonable suspicion involves less than a reasonable belief but more than a possibility.”
2 “some factual basis for the suspicion must be shown “ - “if the information afforded reasonable grounds for the suspicion which the police officer formed.”
What is the key extract to be taken from Hyder v Commonwealth [2012] NSWCA 336?
Hearsay evidence may be used as a basis for reasonable grounds. Police may take into account the source of the information and the context in which it is given in assessing whether it is likely to be trustworthy.
At what point has an arrest occurred? Cite a common-law case to illustrate.
“‘an arrest occurs whenever it is made plain by what was said and done by the police officer that the suspect is no longer a free person, words may be sufficient…. But they are not always necessary.” R v O’Donoghue (1988) 34 A Crim R 398, 401 (NSWCCA)
What is an appropriate example of caselaw to cite when discussing arrest as a last resort?
DPP v Carr [2002] NSWSC 194. ““inappropriate for powers of arrest to be used for minor offences where the defendant’s name and address are known, [where] there is no risk of him departing and there no reason to believe that a summons will not be effective. Arrest is an additional punishment.”
Why were the convictions of the the mother and brother of the shopllifter set aside in Williams V DPP (2011) NSWSC 1085?
The convictions were set aside on the basis that the officers were not acting in the execution of their duties because they did not have grounds for a lawful arrest under s 99 of LEPRA 2002.
When discussing voluntary or consensual cooperation secured by the exercise of formal powers of arrest, what is the relevant case to cite?
S and J (1983) 32 SASR 174. Facts of the case are;
2 Inidgenous Teenagers suspected of breaking and entering, came back to the police station, confession was given but was challenged on appeal for the boys not consenting and also not being under arrest.
What case Held the following: “once police conduct does cause a reasonable belief in the mind of the citizen as to arrest, or create as substantial ambiguity in his mind as to his right to go or stay and comfy he cannot be said to have a free choice a free right to elect whether to respond or not, until the police officers have Richard the onus on them of removing any doubts.
S and J (1983) 32 SASR 174
What do ss 11, 12 of LEPRA concern.
REQUEST FOR IDENTITY
11 Identity may be required to be disclosed(cf Crimes Act 1900, s 563)
(1) A police officer may require a person whose identity is unknown to the officer to disclose his or her identity if the officer suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because the person was at or near the place where the alleged indictable offence occurred, whether before, when, or soon after it occurred.
(2) A police officer may require a person whose identity is unknown to the officer to disclose his or her identity if the officer proposes to give a direction to the person in accordance with Part 14 for the person to leave a place.
12 Failure to disclose identity(cf Crimes Act 1900, s 563)
A person who is required by a police officer in accordance with section 11 to disclose his or her identity must not, without reasonable excuse, fail or refuse to comply with the requirement.
Maximum penalty—2 penalty units.
What sections of LEPRA give the police power to use force?
S230,S231.
230 Use of force generally by police officers
It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.
231 Use of force in making an arrest
A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.
What is the relevant legislation to cite regarding Police Power to arrest without a Warrant
LEPRA 2002 s99
Power of police officers to arrest without warrant.
Note exhaustive list of reasons in s99(1)(b).
