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This article was written by Michelle Makela - Legal Practice Director


The Power to Arrest

Police have the power to arrest people in certain circumstances. When exercising the powers of arrest an officer must comply with basic safeguards. These include that the person conducting the arrest must tell the person that they are under arrest and why they are being arrested.

There is a variety of provisions in the Crimes Act 1900 (NSW) that make it an offence to resist being arrested. Even if the police do not end up charging a person with any other offences, they may be charged with resisting arrest if they offer active resistance at the time of their arrest.

When can a Police Officer Arrest Me?

The NSW Supreme Court has held that police should exercise their arrest powers as a last resort, where issuing a summons or court attendance notice is impractical.

However, a police officer can arrest a person when:

  • a court has issued a warrant for their arrest (the warrant need not be in the officer’s possession)
  • they have committed or are about to commit an offence
  • the officer suspects on reasonable grounds that they have committed an offence
  • they have breached a bail undertaking or agreement, or the officer believes on reasonable grounds that they are about to do so
  • the officer suspects on reasonable grounds that they are unlawfully at large (other than because of escaping from lawful custody), meaning that they are at large at a time when they are required by law to be in custody in a correctional centre

In addition, an arresting police officer must suspect on reasonable grounds that arrest is necessary to:

  • ensure their appearance before a court in respect of the offence
  • 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
  • prevent the fabrication of evidence in respect of the offence
  • preserve the person’s safety or welfare

When can a Citizen Conduct an Arrest?

A person who is not a police officer may, without a warrant, arrest a person if they:

  • are in the act of committing an offence
  • have just committed an offence
  • have committed a serious indictable offence for which you have not been tried

A commander of an aircraft may, onboard the aircraft, arrest a person whom they reasonably suspect of having committed or having attempted to commit an offence on or in relation to, or affecting the use of, an aircraft. To prevent such an offence or to avoid danger to the safety of the aircraft or passengers, the commander may place the person under restraint or in custody, or remove them from the aircraft if it is not in the air.

What Happens if You are Arrested and the Police do not Follow the Rules?

There are a number of rules outlined in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) that govern arrests. Unlawful or improper conduct by a person carrying out an arrest can have significant consequences for the outcome of a person’s criminal case, particularly in relation to the following:

The use of force

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. The use of unreasonable force constitutes an assault. The judge or magistrate will determine whether the force used was reasonable in the circumstances.

The decision to arrest rather than exercise an alternate power

The courts have looked unfavourably on arrests that have been conducted in situations where an alternative power would have achieved the desired result. The NSW Supreme Court has held that a court attendance notice (CAN) or a summons is generally the appropriate way to deal with cases of alleged minor offences.

For example, in DPP v Carr [2002], the court held that evidence of resisting, assaulting and intimidating police was improperly obtained because the accused was arrested for using offensive language in circumstances where a summons should have been used. Consequently, the magistrate was entitled to exclude such evidence and dismiss the charges.

Special Arrest Provisions for Minors

The Young Offenders Act 1997 (NSW) provides that persons less than 18 years of age are entitled to be dealt with by way of a warning or, if a warning is not appropriate in the opinion of the investigating official, a caution rather than arrest.

This applies where the child has allegedly committed a summary offence (that is, one that is finalised in the Local Court) or an indictable offence that may be finalised in the Local Court.

These special provisions do not apply if the offence:

  • is a traffic offence committed by a minor who was old enough to obtain a learner licence to drive the vehicle to which the offence relates.
  • results in a death.
  • is in the nature of a sexual assault
  • is a domestic violence offence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW)
  • is a serious drug offence
  • involves violence
  • would be more appropriately dealt with by another means because it is not in the interests of justice to deal with the offence by warning or caution in the opinion of the investigating official

Note that a child is not entitled to a caution if the child has been dealt with by way of caution on three or more occasions.





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