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Arrest Procedure after arrest/Police Interrogation Search and Seizure

Pre-Trial Criminal Procedure

Police powers of arrest, search and seizure, and some powers in respect of treatment of persons in custody have been codified in the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPAR). The Act commenced on 1 December 2005. The Act repeals a number of provisions of the Crimes Act 1900, and Acts involving police powers, including the Search Warrants Act 1985. Other acts governing the police powers of arrest, search, seizure and police interrogation are Evidence Act 1995 (NSW) and the Criminal Procedure Act 1986.

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Arrest Procedure after arrest/Police Interrogation Search and Seizure

1) Arrest
At common law, an arrest is established when a person is deprived of his or her liberty. The Court of Appeal (UK) in R v Inwood [1973] There is no magic formula; only the obligation to make it plain to the suspect by what is said and done that he is no longer a free man supported by R v ODonoghue CCA (1988). There are 2 types of arrest: 1. With warrant Section 101 Power to arrest with warrant This simply confirms that police may arrest a person upon a warrant, even if the warrant is not in the police officers possession. 2. Without warrant: The parliament of NSW have legislated the circumstances which police can arrest without a warrant: Section 99 Power of police officers to arrest without warrant This substantially replicates the existing police power in Crimes Act s.352(1) and (2). (1) 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 police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. (3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes: (a) to ensure the appearance of the person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence, (c) to prevent the concealment, loss or destruction of evidence relating to the offence, www.studentatlaw.com

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Arrest Procedure after arrest/Police Interrogation Search and Seizure

2) Procedure After Arrest/ Police Interrogation

Part 9 of the LEPAR: The investigation period after arrest before Defendant must be brought before a Justice/Magistrate. Law Enforcement (Powers and Responsibilities) Act 2002 Sections 109132 govern the INVESTIGATIONS AND QUESTIONING process.

Section 115 Investigation period (cf Crimes Act 1900 , s 356D) (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 4 hours or such longer period as the maximum investigation period may be extended to by a detention warrant. Section 117 sets out the certain times to be disregarded in calculating investigation period i.e. any time spent using facilities or communicating with a friend. 12. Admissions Made in Official Questioning Criminal Procedure Act 1986; s281

Admissions made in official questioning inadmissible unless ERISP (Electronically Recorded Interview with Suspected Person) or reasonable excuse for no ERISP

Section 281 Admissions by suspects (1) This section applies to an admission: (a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. (2) Evidence of an admission to which this section applies is not admissible unless: (a) there is available to the court: (i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or www.studentatlaw.com

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(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made. (3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995 ) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2). (4)In this section: "investigating official" means: (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or (b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations. "official questioning" means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. "reasonable excuse" includes: (a) a mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. "tape recording" includes: (a) audio recording, or (b) video recording, or (c) a video recording accompanied by a separately but contemporaneously recorded audio recording. Evidence Act 1995 (NSW), ss 84, 85, 86, 89, 90, 137-139

Sections 84, 89 and 137-139 Evidence Act. Circumstances in which admissions made by Defendant are not admitted into evidence at trial.

Section 84 Exclusion of admissions influenced by violence and certain other conduct (1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by: (a) violent, oppressive, inhuman or degrading conduct, whether towards the person who www.studentatlaw.com

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made the admission or towards another person, or (b) a threat of conduct of that kind. (2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced. 82. 83. 84. 85. 86. 89. 90. 137. 138. 139. Exclusion of evidence of admissions that is not first-hand Exclusion of evidence of admissions as against third parties Exclusion of admissions influenced by violence and certain other conduct Criminal proceedings: reliability of admissions by defendants Exclusion of records of oral questioning Evidence of silence Discretion to exclude admissions Exclusion of prejudicial evidence in criminal proceedings Exclusion of improperly or illegally obtained evidence Cautioning of persons

McKinney (1991) Where Defendant disputes record of interview, and no other evidence of admission, Judge must give jury warning on reliability of admission. Facts: The applicants, Vincent Peter McKinney and Michael Allan Judge, seek special leave to appeal from a decision of the Court of Criminal Appeal of New South Wales dismissing their appeals from convictions on three charges arising out of the breaking and entering of premises at Dharruk in the western suburbs of Sydney. The prosecution case was that the premises were entered by three men, one of whom was armed. The uncontested evidence was that an armed man demanded money from one of the occupants, and, a little later, another occupant was seriously injured when a single shot was fired from a gun. The prosecution case was that the applicants and a co-accused (who was acquitted of all charges) were each guilty, on the basis of common purpose or joint enterprise, of breaking and entering, assault with intent to rob and assault occasioning grievous bodily harm. The case against the applicants was substantially based on signed police records of interview. Each of the applicants signed a record of interview in which he stated that he, and he alone, had entered the premises at Dharruk and accidentally discharged the gun. The applicants were directly linked to the events at Dharruk only by their records of interview. Apart from the applicants' signatures, there was no independent evidence corroborating the making of those records or confirming their contents. The defence of each of the applicants was conducted on the basis that his record of interview was fabricated by the interviewing police officers and that he had signed the fabricated document only because his will was overborne. Each now seeks special leave to appeal on the ground that a warning should have been given as to the danger of convicting on the basis of those records of interview. Held: The accused did not dispute their signatures; in effect, each said that he had been forced to sign, by physical violence or threats, or both. When the directions are taken in their entirety, I do not think that a warning in general terms of the need to look at the confessional evidence with care was necessary for the jury's appreciation of the task they had to perform. Appeal allowed and new trial held. www.studentatlaw.com

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Foster (1993) Facts: Foster, was charged in the District Court of New South Wales, Criminal Jurisdiction, with the offence of maliciously setting fire to a public building. The public building in question was the High School building in the town of Narooma on the South Coast of New South Wales. The prosecution case against the appellant rested on a seven-line typed confessional statement which the appellant had signed while he was held in custody at the Narooma Police Station. That confessional statement constituted the only evidence of the appellant's involvement in the fire. Indeed, the learned trial judge (Ford DCJ) directed the jury that, without it, the Crown had not succeeded even in proving, as against the appellant, that the fire at the High School had been caused by human intervention. Held: On the evidence and findings presently before the Court, the conduct of the police officers did not require the exclusion of the statements on public policy grounds. The trial judge made no finding that the police officers had deliberately broken the law or had pursued a course of reckless conduct, not caring whether or not they were breaking the law in arresting the appellant, holding him in custody and interrogating him. A verdict of acquittal was decided NOT GUILTY

3) Search and Seizure

Law Enforcement (Powers and Responsibilities) Act 2002; ss 20-45 (search without warrant), ss 46-80 (search with warrant or authority); ss 81-87 (search, entry and seizure involving domestic violence offences) Section 21 Power to search persons and seize and detain things without warrant (cf Crimes Act 1900 , ss 357, 357E, Drug Misuse and Trafficking Act 1985 , s 37) (1) A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists: (a) the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained, (b) the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence, (c) the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,

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Arrest Procedure after arrest/Police Interrogation Search and Seizure

(d) the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985 , a prohibited plant or a prohibited drug. (2) A police officer may seize and detain: (a) all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and (b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and (c) any dangerous article, and (d) any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985 , found as a result of a search under this section. Section 23 Power to carry out search on arrest (cf Cth Act, s 3ZE, common law) (1) A police officer who arrests a person for an offence or under a warrant, or who is present at the arrest, may search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything: (a) that would present a danger to a person, or (b) that could be used to assist a person to escape from lawful custody, or (c) that is a thing with respect to which an offence has been committed, or (d) that is a thing that will provide evidence of the commission of an offence, or (e) that was used, or is intended to be used, in or in connection with the commission of an offence. (2) A police officer who arrests a person for the purpose of taking the person into lawful custody, or who is present at the arrest, may search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything: (a) that would present a danger to a person, or (b) that could be used to assist a person to escape from lawful custody. (3) A police officer may seize and detain a thing found in a search if it is a thing of a kind referred to in subsection (1) or (2). (4) Nothing in this section limits section 24. Section 24 Power to carry out search of person in custody (cf Cth Act, s3ZH, common law) A police officer may search a person who is in lawful custody (whether at a police www.studentatlaw.com

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station or at any other place) and seize and detain anything found on that search. Established by Clarke v Bailey (1933) prior to recognition by statute law. Police must give notice of presence, authority and purpose unless exigent circumstances.

13. Stop and Search Section 36 Power to search vehicles and seize things without warrant (cf Crimes Act 1900 , ss 357, 357E, Police Powers (Vehicles) Act 1998 , s 10, Drug Misuse and Trafficking Act 1985 , s 37) (1) A police officer may, without a warrant, stop, search and detain a vehicle if the police officer suspects on reasonable grounds that any of the following circumstances exists: (a) the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, anything stolen or otherwise unlawfully obtained, (b) the vehicle is being, or was, or may have been, used in or in connection with the commission of a relevant offence, (c) the vehicle contains anything used or intended to be used in or in connection with the commission of a relevant offence, (d) the vehicle is in a public place or school and contains a dangerous article that is being, or was, or may have been, used in or in connection with the commission of a relevant offence, (e) the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, a prohibited plant or prohibited drug in contravention of the Drug Misuse and Trafficking Act 1985 , (f) circumstances exist on or in the vicinity of a public place or school that are likely to give rise to a serious risk to public safety and that the exercise of the powers may lessen the risk. (2) A police officer may, without a warrant, stop, search and detain a class of vehicles on a road, road related area or other public place or school if the police officer suspects on reasonable grounds that any of the following circumstances exist: (a) a vehicle of the specified class of vehicles is being, or was, or may have been, used in or in connection with the commission of an indictable offence and the exercise of the powers may provide evidence of the commission of the offence, (b) circumstances exist on or in the vicinity of a public place or school that are likely to give rise to a serious risk to public safety and that the exercise of the powers may lessen the risk. (3) A police officer may seize and detain: (a) all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and www.studentatlaw.com

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(b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and (c) any dangerous article, and (d) any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985 , found as a result of a search under this section.

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