search powers unlawful arrest police officer
search powers unlawful arrest police officer

As with search powers (the subject of another dedicated post), unlawful arrest can itself provide a complete defence to a case, if the evidence obtained and relied upon by the prosecution flows from that arrest. It can also provide the basis for a nice costs order against the prosecution.

Earlier this year, we had a case where the client was charged with obstructing an officer in the execution of duty. The client was clearly caught on CCTV in a physical contest with Police. It was not disputed that he was there, that he resisted and even physically assaulted Police. Yet, we still managed to have the charges dismissed, and obtain a relatively large costs order. How?

Police Powers of Arrest

Police have fairly wide powers to arrest a person, even without a warrant. They include, suspecting on reasonable grounds that the person is committing or has committed an offence (a necessary element in all cases), and that the arrest is reasonably necessary for a range of reasons, including to stop the offending, to ensure the person appears before the Court in relation to the offence, or to protect the safety and welfare of the public. This is by far an exhaustive list. Because this power is so wide, it is rare that a wrongful or illegal arrest case is ever made out.

However, different rules apply when a person is on bail. When reprimanding or otherwise dealing with someone for a breach of bail, the arrest of a person without a warrant is effectively a last resort only. Before exercising that power, Police must consider a number of matters, including the relative seriousness or triviality of the offence, the personal attributes and circumstances of the person, and any alternative courses to arrest.

An Example from Our Experience:

In our case, the arrest of our client would have been lawful, but for the real reason Police were in his presence in the first place. The stated purpose for their visit was the arrest of another person in our client’s company for a breach of bail. That person was a small female, who had only failed to report at the station a few times. The pair were inside a residential unit with no other means to escape. They were surrounded at the front door by up to a dozen Police officers, and of course, neighbours in the apartment block. They were unarmed and were speaking with Police. They asked Police to get a warrant and come back. Police chose instead to use sledgehammers and kicks to knock the door down and physically restrain and arrest the female. They conveniently recorded it all for us on body-worn footage. They also admitted in cross-examination that arrest was their first consideration.

The Court found that they had failed to comply with the bail laws, and the arrest of the female was unlawful. It followed that the arrest of our client was unlawful. It then followed that all evidence obtained by Police was done in contravention of the law. The costs order in our favour then followed.

It pays to know your rights and the obligations of Police when it comes to exercising powers such as search or arrest, particularly when associating with people on bail for criminal charges. Contact us to learn more.

Please note: this is not legal advice to be relied upon, as circumstances in each case will be different.

For more information see: http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/leara2002451/

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