Police Power and Your Rights - Arrest, Search and Move On Directions
Date: January 13, 2009
Authors: LAC Lawyers
ARREST
Under what circumstances are the Police allowed to arrest you?
The police may arrest you if they suspect on reasonable grounds that you have committed an offence, or you are committing an offence or you are in the act of committing an offence. See section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (the “Act”)
The police may also arrest you if there is a warrant out for your arrest (section 101 of the Act) or if you have breached your bail conditions (section 50 of the Bail Act 1978).
If you are arrested what should the Police tell you?
Section 201 of the Act provides that the police must tell you the reason for arresting you, their name and place of duty. This information must be provided to you before or during the arrest unless it is not practicable to do so.
Are the Police allowed to use force to arrest you?
The police can use force to arrest you, however it must be reasonable force. See section 231 of the Act. Anything in excess of reasonable force may be deemed as assault.
When are the Police not allowed to arrest you?
In accordance with section 99(3) of the Act the police must not arrest you unless they suspect on reasonable grounds that arresting you is necessary to:
- ensure you appear at court;
- prevent a repetition or continuation of the offence or the commission of another offence;
- prevent the concealment, loss or destruction of evidence relating to the offence;
- prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;
- prevent the fabrication of evidence in respect of the offence;
- preserve the safety or welfare of the person.
After arrest, how long can the Police detain you?
The police may detain you for up to four hours after you have been arrested for the purpose of questioning and investigation. You should be aware that the police may apply to the Court to extend your detention time to a further eight additional hours. The police must release you at the end of the period or take you to Court for Bail purposes.
MOVE ON DIRECTIONS
Can the police move you on from a public place?
Under section 197 of the Act the police may give you reasonable direction to move on in a public place if they have reasonable grounds to believe that your presence or conduct:
- is obstructing another person(s) or traffic; or
- constitutes harassment or intimidation of another person(s); or
- is likely to cause fear or is causing fear to another person(s) as long as that conduct would be such to cause fear to a person of reasonable firmness; or
- is for the purpose of supplying or obtaining a prohibited drug.
The exception to this law is where you are taking part in an industrial dispute, demonstration or protest, procession or organised assembly.
The direction must be reasonable in the circumstances in order to reduce or eliminate the above mentioned scenarios. See section 198(2) of the Act.
What if you refuse to obey a Police officers direction?
If you refuse to obey a reasonable direction given by the police then you are liable to a fine of $220.00 (section 199 of the Act). The police must however warn you once that any failure to comply with a direction is an offence.
SEARCH
When are the Police allowed to search you?
The powers of the police to search you are set out in section 23 of the Act and include the following:
- Where the police have a search warrant;
- You agree to be searched;
- Whilst under arrest or in custody;
- They suspect on reasonable grounds that you are carrying stolen goods, a weapon, something about to be used in a serious crime, a prohibited drug;
- Your car if the police believe it has been involved in an indictable offence or where there may be serious risk to public safety;
- Under emergency public disorder powers within a target area or target road. Under such circumstances the police do not need a warrant or reasonable suspicion.
The police in most cases only require reasonable suspicion that you have something, which may be illegal on you.
The police may search your vehicle without a warrant under the same circumstances mentioned above.
What type of searches can the Police conduct?
The are three main types of searches, they are a frisk search, an ordinary search and a strip search.
A frisk search is where an officer runs his/her hands over your outer clothing or by passing an electronic metal detection device over or close to your outer clothing.
An ordinary search means a search of you or articles in your possession such as removing your outer clothing and an examination of those items.
A strip search means you will have to remove all of your clothes and be subject to an examination of your body and clothes. This however must not be carried out unless it is necessary and there are serious and urgent circumstances. See section 31 of the Act.
If you require advice on the above mentioned or have any questions on police powers and your rights please contact our office at any time.
Contact us now for Fast, Accurate and Timely legal advice
Phone LAC Lawyers on NSW 1300 799 888 or VIC 1300 734 638 or send us an email
Criminal Law - Sentencing in the Local Court
Date: October 08, 2010
Author(s): Jana Whitby B.A., LL.B. (Hons.)
Often I am asked by my clients who have been charged with common offences such as assault or drink driving what the likely result will be if they enter a plea of “Guilty”. This is not a question which can be answered with much certainty given that even when to individuals are charged with exactly the same charge, the possible outcome when it comes to that individual’s sentencing can vary according to factors such as in which Local Court the matter is dealt with, which Magistrate determines the sentence, the sentencing options available to the Magistrate and the individual’s subjective circumstances.
Criminal Law - GBH - Grevious Bodily Harm
Date: August 12, 2009
Author(s): LAC Lawyers
These offences are in effect a more serious assault. To have committed these offences what is required is an act of malice that causes the wound or the grievous bodily harm. Such an act would, however, in the ordinary course constitute an assault as well.
Criminal Law - Have you been charged with assaulting police?
Date: April 03, 2009
Author(s): LAC Lawyers
It has been a long week at work, you decide to unwind and have a couple of beers at your local pub. Unfortunately you don’t know when to stop as you’re having a great time but are annoying some of the patrons at the same time. The management ask you to leave and you refuse.
Criminal Law - Affray
Date: December 08, 2008
Author(s): LAC Lawyers
The legislation introducing the offence of Affray into the Crimes Act in 1988, was prompted, among other things, by the difficulties for the prosecuting of the persons involved in the lengthy trials arising out of the clash between outlaw motor cycle clubs at the Viking Tavern, Milperra in September 1984 (“the Milperra Massacre’) and the clash between spectators and Police at Mount Panorama, Bathurst in April 1985 (‘the Bathurst riots’), which had attempted a prosecutions under the then common law offence of affray.
Criminal Law - Self Defence
Date: December 01, 2008
Author(s): LAC Lawyers
Self defence is an issue that needs to be disproved by the Crown beyond reasonable doubt. Normally a defence will apply once the Crown has proved its case to excuse the actions of the accused. However, if the Crown cannot disprove self defence then the accused is entitled to an acquittal.
Criminal Law - Does a threat equal an assault?
Date: December 01, 2008
Author(s): LAC Lawyers
Criminal Law - Need info on Bail, read this!
Date: September 25, 2008
Author(s): LAC Lawyers
Some handy information on Bail.
Criminal Law - The Pro's And Con's Of taking Part In A Police Interview
Date: September 25, 2008
Author(s): LAC Lawyers
The decision as to whether to participate in a record of interview with police is often a difficult one to make. There are various advantages and disadvantages in doing so, therefore, it is important that competent legal advice is obtained. LAC Lawyers are able to assist and advise you whether you should participate in such an interview.
What to expect when you call LAC Lawyers
Date: December 13, 2006
Author(s): LAC Lawyers
LAC Lawyers is a full service firm dedicated to the provision of superior legal services in Australia. Our aim is to provide unrivalled client satisfaction coupled with high quality service and advice. When you call LAC Lawyers our friendly reception staff will spend time with you to identify the area of law your enquiry relates to then pass you on to one of our qualified solicitor's who can help you.
Criminal Law - What Do I Do When I Am Arrested?
Date: March 15, 2006
Author(s): LAC Lawyers
No-one who is arrested should be left to the mercy of the system as it can be a very unkind friend when you are in need. While it is important to co-operate with the police it is extremely important that you understand your rights and do nothing to prejudice yourself whilst in custody.
Criminal Law - Sentence and penalty options available to courts if convicted of a criminal offence
Date: September 26, 2005
Author(s): LAC Lawyers
Murder. Bigamy. Robbery. Bushfires. Terrorism. Domestic violence. Computer offences. Concealing the birth of a child. Fraud. Rape. The list of criminal offences for which a person may be convicted in any Australian jurisdiction is extensive.