Principles of Criminal Investigation and Arrest & Illegally Obtained Evidence

Question 1

R v O’Donoghue (1988) 34 A Crim R 397

Answer 1

Ground of appeal rejected → he was not under unlawful arrest and was free to leave at any time.

The belief that he was compelled to go with the police for questioning was the product of his own mind and therefore he was not under arrest. An arrest happens when the person is no longer free to leave.

S 110 was introduced to protect people like O’Donoghue by introducing the status of the ‘protected suspect’ and they are entitled to the same rights as a person who is under arrest.

Question 2

Williams v R (1986) 161 CLR 278

Answer 2

No power to arrest for questioning, investigation, search or obtaining evidence.

The accused was arrested on a weekday at 6am for burglary charges. He was required to wait for the arrival of detectives, who arrived at 8:45am and Williams was then questioned. Williams was finally put before a trial judge at 2:15pm the following day.

Question 3

Michaels v R (1995) 184 CLR 117

Answer 3

An arresting officer must both have a lawful purpose and bring the arrested person before a court without delay. As soon as there is an unreasonable delay in taking the person before a judicial officer, the arrest becomes unlawful from the point in time where the delay arises.

Custody can be made to be lawful again after being unlawful, and this is what happened in this case.

Question 4

s 11 LEPRA

Answer 4

Identity may be required to be disclosed to police

(1)… 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.

Question 5

s 12 LEPRA

Answer 5

Failure to disclose identity

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.

Question 6

s 99 LEPRA

Answer 6

Power of police officers to arrest without warrant

(1) A police officer may, without a warrant, arrest a person if—
(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and
(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons— (see LEPRA for list)

(2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant.

(3) The arresting police officer or another police officer must, as soon as is reasonably practicable, take the person who has been arrested under this section before an authorised officer to be dealt with according to law.

Question 7

s 100 LEPRA

Answer 7

Power of other persons to arrest without warrant

(1) A person (other than a police officer) may, without a warrant, arrest a person if—

(a) the person is in the act of committing an offence under any Act or statutory instrument, or

(b) the person has just committed any such offence, or

(c) the person has committed a serious indictable offence for which the person has not been tried.

(2) A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.

Question 8

s 101 LEPRA

Answer 8

Power to arrest with warrant

(1) A police officer acting in accordance with a warrant issued under any Act or law may arrest or deal with the person named in the warrant in accordance with the warrant.
(2) The police officer may take action whether or not the warrant is in his or her possession.

Question 9

s 107 LEPRA

Answer 9

Part does not affect alternatives to arrest

(1) Nothing in this Part affects the power of a police officer to commence proceedings for an offence against a person otherwise than by arresting the person.

(2) Nothing in this Part affects the power of a police officer to issue a warning or a caution or a penalty notice to a person.

Question 10

R v Rondo [2001] NSWCCA 540

Answer 10

leading case for “reasonable suspicion”, which is:

a) less than a reasonable belief but more than a possibility.
b) not arbitrary, must show some factual basis for the suspicion and the material on which the suspicion is based must have some probative value.
c) did the information the police officer rely on have a reasonable basis (look at the source of the information and the circumstances).

Question 11

George v Rockett (1990) 170 CLR 104

Answer 11

Reasonable belief is something more than reasonable suspicion. It is a subjective belief formed by reference to objective circumstances.

Question 12

New South Wales v Robinson [2019] HCA 46

Answer 12

At [62]: A police officer does not have the power to arrest a person without warrant under s 99 of LEPRA if he had not formed the intention to charge the person at the time of the arrest.

At [63]: … an arrest can only be for the purpose of taking the arrested person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for an offence. An arrest merely for the purpose of asking questions or making investigations in order to see whether it would be proper or prudent to charge the arrested person with a crime is an arrest for an improper purpose and is unlawful.

Question 13

s 109 LEPRA

Answer 13

Objects of Part (Investigating and Questioning)

(a) to provide for the period of time that a person who is under arrest may be detained by a police officer to enable the investigation of the person’s involvement in the commission of an offence, and

(b) to authorize the detention of a person who is under arrest for such a period despite any requirement imposed by law to bring the person before a Magistrate or other authorised officer or court without delay or within a specified period, and

(c) to provide for the rights of a person so detained, and

(d) to provide for the rights of a suspect who is in the company of a police officer in connection with an investigative procedure but who is not so detained.

Question 14

s 110 LEPRA

Answer 14

Definitions

detention warrant means a warrant issued under section 118.

investigation period means the period provided for by section 115.

permanent Australian resident means a person resident in Australia whose continued presence in Australia is not subject to any limitation as to time imposed by or in accordance with law.

protected suspect means a person who is in the company of a police officer for the purpose of participating in an investigative procedure in connection with an offence if—
(a) the person has been informed that he or she is entitled to leave at will, and
(b) the police officer believes that there is sufficient evidence that the person has committed the offence.

Question 15

s 111 LEPRA

Answer 15

Persons to whom Part applies (Part 9)

(1) This Part applies to a person, including a person under the age of 18 years, who is under arrest by a police officer for an offence or who is a protected suspect in connection with an offence. It is immaterial whether the offence concerned was committed before or after the commencement of this Part or within or outside the State.

Question 16

s 114 LEPRA

Answer 16

Detention after arrest for purposes of investigation

(1) A police officer may in accordance with this section detain a person, who is under arrest, for the investigation period provided for by section 115.

(2) A police officer may so detain a person for the purpose of investigating whether the person committed the offence for which the person is arrested.

(3) If, while a person is so detained, the police officer forms a reasonable suspicion as to the person’s involvement in the commission of any other offence, the police officer may also investigate the person’s involvement in that other offence during the investigation period for the arrest. It is immaterial whether that other offence was committed before or after the commencement of this Part or within or outside the State.

(4) The person must be—
(a) released (whether unconditionally or on bail) within the investigation period, or
(b) brought before an authorised officer or court within that period, or, if it is not practicable to do so within that period, as soon as practicable after the end of that period.

Question 17

s 115 LEPRA

Answer 17

Investigation period

(1) The investigation period is a period that begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances, but does not exceed the maximum investigation period.

(2) The maximum investigation period is 6 hours or such longer period as the maximum investigation period may be extended to by a detention warrant.

Question 18

s 116 LEPRA

Answer 18

Determining reasonable time (for an investigation period)

(1) In determining what is a reasonable time for the purposes of section 115(1), all the relevant circumstances of the particular case must be taken into account.

(2) Without limiting the relevant circumstances that must be taken into account, the following circumstances (if relevant) are to be taken into account— (see list in Act)

(3) In any criminal proceedings in which the reasonableness of any period of time that a person was detained under this Part is at issue, the burden lies on the prosecution to prove on the balance of probabilities that the period of time was reasonable.

Question 19

s 117 LEPRA

Answer 19

Certain times to be disregarded in calculating investigation period

See Act for list of times

Question 20

s 118 LEPRA

Answer 20

Detention warrant to extend investigation period

Question 21

s 122 LEPRA

Answer 21

Custody manager to caution, and give summary of Part to, person under arrest or protected suspect

(1) As soon as practicable after a person who is detained under this Part (a detained person) comes into custody at a police station or other place of detention or after a person becomes a protected suspect, the custody manager for the person must orally and in writing—

(a) caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence, and

(b) give the person a summary of the provisions of this Part in the form prescribed by the regulations.

(2) The giving of a caution does not affect a requirement of any law that a person answer questions put by, or do things required by, a police officer.

(3) After being given the information referred to in subsection (1) orally and in writing, the person is to be requested to sign an acknowledgment that the information has been so given.

Question 22

s 123 LEPRA

Answer 22

Right to communicate with friend, relative, guardian or independent person and Australian legal practitioner

Question 23

s 128 LEPRA

Answer 23

Provision of interpreter by custody manager for people who have inadequate English knowledge or have a disability preventing them from communicating fluently.

Question 24

s 129 LEPRA

Answer 24

Right to medical attention

Question 25

s 130 LEPRA

Answer 25

Right to reasonable refreshments and facilities

Question 26

s 131 LEPRA

Answer 26

Custody records to be maintained by custody manager

Question 27

s 201 LEPRA

Answer 27

Police powers to which this Part applies (Part 15, Safeguards relating to powers)

(1) This Part applies to the exercise of the following powers by police officers—
(a) a power to stop, search or arrest a person,

Question 28

s 202 LEPRA

Answer 28

Police officers to provide information when exercising powers

(1) A police officer who exercises a power to which this Part applies must provide the following to the person subject to the exercise of the power—
(a) evidence that the police officer is a police officer (unless the police officer is in uniform),
(b) the name of the police officer and his or her place of duty,
(c) the reason for the exercise of the power.

(2) A police officer must comply with this section—
(a) as soon as it is reasonably practicable to do so, or
(b) in the case of a direction, requirement or request to a single person—before giving or making the direction, requirement or request.

(5) If a person subject to the exercise of a power to which this Part applies asks a police officer present for information as to the name of the police officer and his or her place of duty, the police officer must give to the person the information requested.

Question 29

s 203 LEPRA

Answer 29

Police officers to give warnings when giving or making directions, requirements or requests that must be complied with

(1) A police officer who exercises a power to which this Part applies that consists of a direction, requirement or request must give a warning to the person subject to the exercise of the power that the person is required by law to comply with the direction, requirement or request.

Question 30

s 204A LEPRA

Answer 30

Validity of exercise of powers

(1) A failure by a police officer to comply with an obligation under this Part to provide the name of the police officer or his or her place of duty when exercising a power to which this Part applies does not render the exercise of the power unlawful or otherwise affect the validity of anything resulting from the exercise of that power.

(2) Subsection (1) does not apply if the failure to comply occurs after the police officer was asked for information as to the name of the police officer or his or her place of duty (as referred to in section 202(5)).

(3) Subsection (1) does not apply to the exercise of a power that consists of a direction, requirement or request to a single person.

Question 31

s 204B LEPRA

Answer 31

Commission of offence in relation to exercise of powers where failure by police officer to comply with this Part

(1) A person does not commit an offence under this Act of failing to comply with a direction, requirement or request given or made by a police officer under or in connection with a power to which this Part applies unless the obligations under this Part are complied with when exercising the power.

(2) Subsection (1) does not apply to a failure by a police officer to comply with an obligation under this Part that does not render the exercise of the power by the officer unlawful because of section 204A.

Question 32

s 230 LEPRA

Answer 32

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.

Question 33

s 231 LEPRA

Answer 33

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.

Question 34

s 138 EA

Answer 34

Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained—
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.