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Class 11: Police Powers of Arrest The legislation governing arrest has recently been amended. This material is comprised of: extracts from Brown et al Criminal Laws (updated and edited); extracts (with editing) from the case law materials formerly used in Litigation 1 LAWS 2311 prepared by Annie Cossins.

1. The Power to arrest without warrant: Section 99

1.1 An illustration of discretion: summons or arrest? A defendant comes before a criminal court in one of three ways:

1. by arrest without warrant; 2. by arrest under warrant; 3. in response to a summons (now a court attendance notice).

The statutory powers of arrest are set out in Pt 8 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). The power of arrest without warrant contained in section 99 of LEPRA was repealed and re-enacted on 16 December 2013 by the Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013 (NSW) (LEPRA Amendment Act). The new provision expands the lawful authority of police to arrest in a number of ways. For detailed discussion of the arrest reforms and their rationale, see: Sentas, V & McMahon R (2014) Changes to the Police Power of Arrest Current Issues in Criminal Justice, vol 25 no 3. The current and repealed section 99 are set out below. What are the key differences between the two sections? In what ways has the police power to arrest expanded? Currently, section 99 provides:

99(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:

(i) to stop the person committing or repeating the offence or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to be made to establish the persons identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false, (iv) to ensure that the person appears before a court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested), (ix) because of the nature and seriousness of the offence.

(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) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law. Note: The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer-see section 105. (4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part.

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(5) This section does not authorise a person to be arrested for an offence for which the person has already been tried. (6) For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5.

The repealed section 99 provided:

99(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, (d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence, (e) to prevent the fabrication of evidence in respect of the offence, (f) to preserve the safety or welfare of the person.

(4) A police officer who arrests a 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.

Section 99 (as first enacted in 2002) follows the Crimes Act 1914 (Cth) ss 3W and 3Z in putting greater restraints on arrest powers. Arrest in the common law is to be used as a last resort for commencing proceedings. Under the repealed section 99, Police and others may effect an arrest without warrant only where the issue of a court attendance notice would be ineffective, because, for example, of the risk that the person would not appear in court; or would destroy, conceal or fabricate evidence; or would commit another offence; or would harass or interfere with witnesses; or because the persons own safety or welfare would be at risk. The new section 99 expands the reasons that a police officer may arrest to include; to stop a person fleeing a police officer or location of an offence; to establish a persons identification; to protect the safety and welfare of any person; and because of the nature and seriousness of the offence. The expanded reasons appear to erode the restraint on the circumstances when arrest can be used afforded by the previous section 99. R v McLean (extracted below) considers the role of section 99 (3) as a constraint on the power in 99 (2).

There is concern that the newly enacted section 99 may lead to the use of arrest as a first resort and not a last resort, as enshrined in the common law and the repealed s99 (Sentas and McMahon 2014) We discuss the common law purpose and consequence of arrest below, and consider how the new power of arrest departs from these purposes.

The consequences of arrest are somewhat more dramatic than those of being summonsed: forcible removal to a police station, detention there for some period of time, searching, finger-printing, interro-gation by the police, and so on. Even if an accused person is subsequently acquitted, the whole process of arrest involves the assertion of police authority and control which may entail physical violation and engender humiliation, shame and discomfort. Arrest is at least in part, in itself, punitive and disciplinary.

In Lake v Dobson (1981) 5 PS Rev 2221, Samuels JA expressed the view that the appellants who had been arrested for nude sunbathing (under s 5 of the Offences in Public Places Act 1979) should instead have been proceeded against by way of summons:

I acknowledge that I do not know precisely what the facts may have been which led the police to arrest However, since [nude sunbathing] can scarcely be regarded as ranking high in the criminal calendar, it is to

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be hoped that police will employ a summons in these cases whenever possible. Arrest, for the great majority of people, is equivalent to an additional penalty. It is a means of setting the criminal process in train which should be reserved for situations where it is clearly necessary, and should not be employed where the issues of summons will suffice. (at 2223)

The Royal Commission into Aboriginal Deaths in Custody recommended (Recommendation No 87) that all Australian police forces should adopt the principle and practice that, even where it is decided to initiate criminal proceedings, arrest should be a last resort. The Commonwealth House of Repre-sentatives Standing Committee on Aboriginal and Torres Strait Islanders Affairs in its report, Justice Under Scrutiny (1994) at 157-63, noted the inadequate response of the NSW government and Police Service to this recom-mendation. The Report was particularly critical of the Wilcannia Police Stations practice of posting a chart at the station detailing the number of arrests made by each officer, apparently as a measure of individual accomplishment or perfor-mance.

In Carr [2002] NSWSC 194, the DPP appealed Magistrate Heilperns decision to dismiss a familiar series of charges (resisting arrest, assaulting police, intimidating police) against an Abori-ginal man, Lance Carr. These charges arose out of conduct associated with his arrest for offensive language for swearing at a police officer. Magistrate Heilpern ruled that evidence from the police officers relating to these charges should be excluded (under s 138 of the Evidence Act 1995) because it had been obtained as a result of an improper act the arrest of Carr for offensive language in circum-stances where it would have been appropriate to proceed by way of summons or field court attendance notice.

The DPPs appeal to the Supreme Court of NSW was dismissed. Smart AJ stated: This Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendants name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and freq-uently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this Court were heeded. (at [35])

Smart AJ ruled that the only error Magistrate Heilpern had made was that, in determining whether the evidence had been improperly obtained, he had taken into account information obtained via his own research (including the NSW Aboriginal Justice Advisory Councils 1999 report) without adequately bringing this information to the attention of the prosecutor. For this reason only, the matter was remitted to the Local Court for Magistrate Heilpern to deal with according to law. Carrs case is extracted below. See M Dennis, Is This the Death of the Trifecta? (2002) 40(3) LSJ (NSW) 66; K Adams, A Commentary on DPP v Carr (2003) 27 Crim LJ 278; and C Feerick, Policing Indigenous Australians: Arrest as a Method of Oppression (2004) 29(4) Alt LJ 188.

The exercise of police discretion to arrest remains a significant issue in relation to Aboriginal deaths in custody. In two high profile cases (discussed in Brown et al at 3.4) Mr Ward in Western Australia and Mr Mulrunji Doomadgee on Palm Island the initial decision to arrest was highly questionable given the circumstances of each case and the recommendations of the Royal Commission.

Under the heading Exercising the power to arrest, the NSW Police Code of Practice for Custody, Rights, Investigation, Management and Evidence (CRIME) (updated January 2012) requires police officers always to consider if there is an alternative to arrest (at 13-14). It is important to note that CRIME has not been updated since the enactment of the new section 99, and thus all references are to the repealed section 99. The Code then refers officers to the provisions set out in the now repealed s 99(3) of LEPRA (see above) before stating the following in relation to Alternatives to arrest:

Be mindful of competing requirements between the rights of individuals to be free and the need to use the extreme action of arrest so you can commence proceedings against people who break the law. You must not arrest unless it is necessary to achieve one or more of the purposes set out in section 99(3) of LEPRA The alternatives to arrest include the following:

caution warning infringement notice penalty notice court attendance notice (eg field or future CAN) youth justice conference (at 14-15)

Section 107 of LEPRA provides that:

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(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.

The readiness of police to use the summons procedure to bring people before the courts rather than

arrest has varied significantly in different historical periods, and within the same period, between different offences and different police areas. In an historical study of policing in Newtown, Sydney, in the late 19th century, R Hogg and H Golder note that:

Newtown records show that the vast majority of arrests and summons for assaults on police, drunkenness and riotous behaviour were processed on Monday mornings. The pattern of police activity suggests that resistance in Newtown was substantially displaced into leisure activities, indicating that a certain domestication and habituation to work norms was already secured. The same hypothesis may serve to explain another interesting feature of police practice, that is the high proportion of summons issued in cases of public disorder. In 1891 55 per cent of police actions relating to riotous behaviour were carried on by summons. Why did the suburban police so often resort to this discreet procedure? It is possible that the police, surrounded by Saturday-night crowds, did not choose to provoke further collective resistance and avoided the drama of arrest. Court records do show that the majority (73%) of those riotous behaviour appearances that involved more than one defendant had originated in a summons. But police reliance upon the summons suggests a certain confidence as well as caution, confidence that they could locate the offender and serve the summons with-out significant neighbourhood or domestic resistance. Equally it suggests a measure of concilia-tion as if police decided to spare offenders and their families the stigma and disruption of arrest. The selective but frequent employment of the summons procedure is perhaps therefore an operationalisation of that discreet style of policing the urban populace that is suggested in the police rules and circulars referred to earlier. It possibly demonstrates in relation to a concrete urban setting the sensitivity to police legitimacy that was so obviously the concern of police administrators. (Policing Sydney in the late Nineteenth Century in M Finnane (ed), Policing in Australia: Historical Perspectives (1987) at 67)

It is unlikely that contemporary charges of riotous behaviour would often be brought before the court by way of summons.

Note that the summons has been largely supplanted by the Court Attendance Notice (CAN). Trial procedures in lower courts are initiated by the issue and filing of a CAN if a person has committed or is suspected of having committed an offence (Criminal Procedure Act 1986 s 172). Similarly, committal proceedings are to be commenced by a court attendance notice (s 47). The form a CAN should take is set out in s 175 and s 50 (committals) and service of the CANs is governed by ss 177 and 52. If the person does not attend court as required by the CAN a warrant can be issued for their arrest (ss 181 and 54).

1.2 Neither arrest nor summons: assisting police with their inquiries voluntary attendance and the realm of consent

Consideration of the scope of discretion in the mode of bringing suspects before the courts is not exhausted by the arrest or summons/attendance notice dichotomy. Another common characterisation of the interchanges between citizens and police is that formal powers were not invoked because the citizen consented to accompany police, a form of voluntary attendance, to assist them with their inquiries. The advantage from the police point of view is that legal requirements relating to police powers of entry, search or arrest are not brought into play unless those powers are formally invoked. So that if a householder invites the police inside, any subsequent search is with consent and not unlawful; any voluntary accompanying police to the station to assist with inquiries is not a formal arrest so that the legal prohibition on detention for questioning (Williams (1986) 161 CLR 278) is avoided.

A major difficulty here is that the circumstances of the exchange may well be such that from the citizens point of view the idea that they have any real choice in the matter seems somewhat fictional. Their choice may more accurately be described as a pragmatic (and often accurate) reading of the power relations involved in an interchange with (often armed) police, backed with the authority of law and state, and an assessment of the likely con-sequences of non-cooperation. Such power relations are not fixed, nor do they flow only one way. They will vary according to a wide range of factors, including, age, race, class, previous contact with police, time and place, etc. An illustration of the disputes sur-rounding the notion of voluntary or consensual cooperation and that secured by the exercise of formal powers of arrest can be found in the case of S and J (1983) 32 SASR 174, extracted below. The case involved the detention for questioning of two young Aboriginal men suspected of breaking and entering. The police involved said that they had not carried out a formal arrest as the

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youths had agreed to accompany them to the station and assist in their inquiries. The trial judge had admitted into evidence confessions obtained in the interrogation and this was challenged on appeal.

S and J (1983) 32 SASR 174 at 185

Mitchell J: Constable Delany gave evidence of questions which he asked J near Floreani Brothers where, according to his evidence, J admitted breaking into Floreani Brothers and obtaining the calculator; breaking into the Bowden and Brompton Community Workshop School; breaking into the Kilkenny College of Further Education; and breaking into the Challa Gardens Primary School and causing a fire. Constable Delany said that he then said to J: Would you mind coming back to the Port Adelaide CIB Office where we can talk about these matters further. You are not under arrest and you do not have to come with us. Do you understand? J said. Yeah thats OK. He asked J if he would like his parents to be contacted and J said that his father was in Yatala and that he had not seen his mother for five years. He asked J if there were anyone else he would like him to contact and J said: No, I dont want anyone, Ill go with you. Delany then had a uniformed patrolman convey Johnstone to the Port Adelaide CIB Office. He said that he informed that officer that J was not under arrest. At the Port Adelaide CIB he conducted a formal interview with J.

It is reasonable to assume that the police officers wished to avoid arresting either S or J until they had conducted formal interrogations. The learned trial Judge believed that they had avoided arrests and I find myself unable to say that he was wrong in reaching this conclusion. In R v Conley ((1982) 30 SASR 226 at 240)) King CJ said:

Frequently a police officer invites or requests a suspect to accompany him to a police station or to some other place for the purpose of pursuing police enquiries and the suspect voluntarily complies. Such an invitation or request does not amount to deprivation of liberty even though the police officer would have made an arrest if the suspect had not complied and even though the suspect believed that that would be the result of non-compliance. If, however, the circumstances are such that the words uttered, although in form an invitation or request, would in the circumstances convey to a reasonable person that he had no genuine choice as to whether to accompany the police officer, it becomes incumbent upon the police officer to make it clear that the suspect is not under arrest and is free to refuse to accompany him, and in the absence of such an intimation, the apparent invitation or request may constitute an apprehension.

The words which the learned trial Judge found to have been used by the police constables were sufficient to make it clear to the appellants that they were not under arrest. I might have had some doubt merely from reading those words as to whether they made it clear to the appellants that they were free to refuse to accompany the police, particularly in view of the fact that they were being watched by uniformed police officers in patrol cars and that they had been separated. They were certainly being guarded. But the learned trial Judge had a considerable advantage in this matter from having seen and heard the witnesses. In his ex tempore reasons for allowing the confessions to be admitted he said:

I accept the evidence of the two detectives and it is sufficient at this stage to say that in my opinion it is impossible to assert that the accused were in those circumstances under de facto arrest, if one applies the tests which were stated by King J, as he then was in R v Lavery and repeated by him in R v Conley ((1982) 30 SASR 226, at 239-240). It may be that the accused, as they say, felt that they had no option but I think it was made sufficiently clear to them they were not under arrest and that the proper way in which to regard their own conclusions, that they had no option, was the realisation on their part that they had been caught red-handed and they might well, in the words of one of them, get it over with.

Such a finding was open on the evidence and should not, in my opinion, be disturbed by this Court. In my opinion therefore each appellant has failed to establish ground 1.

White J: I have had the advantage of reading the reasons for judgment of Mitchell J. I agree with her Honours recitation of the facts with one exception. I would place more emphasis upon the fact that the appellants were separated by the police at an early stage after their discovery in Coglin Street at 4.30 am. They were kept separated for many hours and taken in different police cars to different locations, eventually to the Port Adelaide police station for interrogation. In my opinion, the fact, the method, and the length of the separation of these two part-Aboriginal youths aged sixteen years, all combined as factors likely to create at an early stage a substantial ambiguity in their minds about their legal position, that is, about whether they were in fact under arrest or not. A short-lived separation, while one officer spoke to one appellant and another officer spoke to the other, may or may not in the circumstances be sufficient to create such an ambiguity. However, in my view, pro-longed substantial separation which included that degree of control which resulted in the continued separation of friends, could only raise a substantial ambiguity in their minds about their legal position. Mitchell J was not prepared to disturb the finding of the trial Judge that they were not under arrest because, as he found, they realised that they need not comply. Her Honour entertained some doubt about whether the words you are not under arrest were sufficient in the circumstances to result in a free election by the youths to go with the police. In her recitation of the facts, her Honour thought that the inference from separation and control was no stronger than that the youths were being watched by the uniformed police and later the detectives. Her Honour did add that they were certainly being guarded. I find it most difficult to reconcile a real freedom to go (and no substantial ambiguity about that) with a situation where two part-Aboriginal youths aged sixteen years (who would, I infer, prefer to be together) were sitting in separate cars for long periods, watched and guarded by police officers and taken hither and thither separately. The two

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concepts of freedom to go, while having no real freedom to go, are so incompatible that one must yield way. I am driven to say that there was at least a substantial ambiguity in the legal position. While giving full weight to the trial judges findings on credibility and on subsidiary facts. I have come to the conclusion that his Honours findings should be disturbed, because he did not give any weight to the separation of the youths and subsequent guarding and watching by the police officers. The degree of de facto control over their freedom of movement, to my mind, leads either to an inference of de facto arrests or at least a substantial ambiguity about arrest which give rise to an onus on the police officers to disabuse the minds of the suspects about their position. The ambiguity must be resolved in an unambiguous way. I would apply the second part of the passage from R v Conley (at 226) quoted above by Mitchell J.

If, however, the circumstances are such that the words uttered, although in form an invitation or request, would in the circumstances convey to a reasonable person that he had no genuine choice as to whether to accompany the police officer, it becomes incumbent upon the police officer to make it clear that the suspect is not under arrest and is free to refuse to accompany him, and, in the absence of such an intimation, the apparent invitation or request may constitute an apprehension.

There are two things which the police officer must do once the substantial ambiguity arises in the mind of a reasonable person: first, they must inform the suspect that he is not under arrest; and second, they must also inform him that he is free to refuse to accompany them, that is, that he is free to go. The negative requirement was fulfilled on several different occasions by repeating from time to time the formula you are not under arrest. However, at no stage was either youth told that he was free not to comply with any such requests, indeed free to go. The continuing conduct of separating, searching, watching, guarding and driving here and there in different cars could only have given the contrary impression. The inference that they were free to not comply with requests, indeed were free to go, was not only improbable but highly improbable in the circumstances, in my view. It is under-standable that the police should, in the public interest, wish to clear up as many crimes as those youths might be prepared to admit to, caught as they were red-handed, with some evidence possibly linking them with some recent breaks. However, convictions of culprits might be achieved at too high a price, especially young deprived victims. Most crimes of breaking and entering are not sheeted home to the actual offenders. The non-detection of two more offenders does not weigh as heavily in the public interest as the exact observance by police officers of the laws concerning arrest, especially of underprivileged and vulnerable persons like these.

The difficulties of the draftsman of the police orders concerning the arrest of children, including Aboriginal children, reflects the difficulty which the police have in this area. Nevertheless, it is not for the police in their internal orders nor for this Court in its findings to deny or cut down the obvious policy of the legislature that children are to be taken as soon as reasonably practicable to a police station in order to be admitted to bail or to be assessed (ss 43 and 28 of the Childrens Protection and Young Offenders Act, 1979-1980). An arrest under the guise of no arrest is not to be the vehicle of further interrogation. I would think that the policy of an Act with respect to young offenders, especially parentless young part-Aboriginal offenders, would be applied more strictly than an Act with respect of adults

The choice whether to comply with a police request must be a genuine choice, a free choice upon proper information. Words uttered which indicate that the choice exists should not be hollow formulae a citizens election to forego his liberty of movement and to comply with a request by the police to go here or there and to answer questions, answers to which might well incriminate him, must be a genuinely free choice, as the second part of the quoted passage from Conley makes clear. A decision to comply may arise from all kinds of motives personal to the citizen, so long as the conduct of the police did not cause him to believe that he is under arrest, or may be under arrest, so that he has no genuine choice. However, once police conduct does cause a reasonable belief in the mind of the citizen as to arrest, or creates a substantial ambiguity in his mind as to his right to go or stay and comply, he cannot be said to have a free choice, a free right to elect whether to respond or not, until the police officers have discharged the onus on them of removing any doubts. It must be quite clear to him not only that he is not under arrest but that he is free not to comply, indeed free to go (see Conley supra). Further, the words spoken must be accompanied by suitable conduct on the part of the police which demonstrates that they mean what they say. It would be possible for the words to be uttered in such a way and in such circumstances that the suspect continued to believe, quite reasonably, that the words did not mean what they said. For example, a youth may be placed in a car surrounded by several police officers and the words might be stonily uttered formulae without any movement to allow him to leave. In those circumstances, the formulae could convey the very opposite impression to that intended by them. The utterance of hollow formulae is no more than mere tokenism.

All of the above may be said about an ordinary adult citizen in a substantially ambiguous situation as to arrest or no arrest. What I have said applied with even greater force to a child, a youth or to any other person under a disability.

[Matheson J agreed with Mitchell J and the appeal was dismissed.] In relation to powers of arrest, the NSW Police Code of Practice for Crime (Custody, Rights, Investigation, Management and Evidence) (updated January 2012) states:

You cannot arrest a person solely for questioning. The only purpose for which you can arrest a person without a warrant is for the purposes of taking the suspect before a justice to be dealt with according to law. However, once the person is lawfully arrested, you may detain a person for a reasonable period for the purpose of investigating whether the person committed the offence for which the person is arrested (at 12)

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However, the Code clearly provides for voluntary assistance and notes under the heading People at the police station voluntarily (at 62-3):

Treat people who are voluntarily at a station to help with an investigation with no less consideration than those in custody (eg: offer refreshments at appropriate times). They are entitled to obtain legal advice, communicate with anyone outside the station or leave at any time.

Investigating officers are directed that: Where someone, either in your company or by themselves, attends a station voluntarily to help you with inquiries, consider the nature of your inquiries and the likelihood that the person will be arrested. Where this is a possibility, albeit remote, take the person to the custody manager.

The Custody Manager should then inform the person: why they are at the station and they are not under arrest and free to leave they may seek legal assistance and can notify someone else they are at the station that if the investigating police decide the person is no longer free to leave the investigating police are

required to take the person back to the custody manager and advise that officer of the situation.

An important practical factor to consider in this regard is the general absence of legal advisers in police stations in New South Wales. Unlike England and Wales, where the Police and Criminal Evidence Act 1984 (PACE) (which to some extent operated as a model for CRIME) is associated with a legal advice scheme that ensures solicitors are readily available to provide free legal advice in a police station, solicitors are not routinely present in NSW police stations. This leaves those who attend voluntarily with little recourse to immediate legal assistance that might result in them exercising their formal rights to leave.

See also T Henning, A Little Knowledge is a Dangerous Thing or When is an Arrest Not an Arrest (1994) 6 Current Issues in Criminal Justice 90; T Henning, Commentary: Sammak (1994) 18 Crim LJ 168; NSWLRC, Police Powers of Detention and Investi-gation After Arrest, Report No 66 (1990); D Dixon et al, Consent and the Legal Regulation of Policing (1990) 17 J of Law and Soc 345; D Dixon, Law in Policing: Legal Regulation and Police Practices (1997); D Dixon, Legal Regulation of Policing in D Dixon (ed), A Culture of Corruption (1999); D Dixon Regulating Police Interrogation in T Williamson (ed), Investigative Interviewing: Developments in Rights, Research and Regulation (2006); D Dixon Authorise and Regulate: A Comparative Perspective on the Rise and Fall of a Regulatory Strategy in E Cape and R Young (eds), Regulating Policing: The Police and Criminal Evidence Act 1984 (2008); L Skinns Lets get it over with: early findings on the factors affecting detainees access to custodial legal advice (2009) 19 Policing and Society 58.

1.3 What is the Purpose of Arrest?

DPP v Carr [2002] NSWSC 194 4 On 25 February 1999 Cons Robins was on vehicular patrol in Wellington. He gave the following version of the facts. He saw Mr Carr and a female standing in the roadway and a number of rocks being thrown towards them. He saw Mr Carr throw a rock towards the residence from where the rocks were coming. A rock was thrown and hit the police vehicle. He left the vehicle and asked Mr Carr and the female a number of times who had thrown the rock at the police vehicle and Mr Carr refused to tell him. Mr Carr appeared to be moderately affected by liquor. The constable was under the impression that Mr Carr thought that the constable was accusing him of throwing the rock. This was not so. An argument ensued between the constable and Mr Carr used the term "fuck this" or something similar. The constable could not remember the exact words. Shortly after that Mr Carr commenced to walk away yelling and swearing. The constable said that he cautioned Mr Carr and told him to calm down and stop swearing. Mr Carr continued to walk away, then turned back and said "Fuck you. I didn't fucken do it, you can get fucked." The constable replied, "Lance, you are under arrest for offensive language." The constable stated that the words that led to the arrest were stated in the middle of Marsh Street about a metre or two from him. There were about five other adults in front of other residences. Mr Carr was facing the constable and the words were said in a hostile, aggressive manner. The constable said that in his view Mr Carr was being unco-operative by failing to tell him who threw the rock. 5 The constable said that when he told Mr Carr he was under arrest he (the constable) took a number of steps towards Mr Carr and took him by the arm as he tried to walk away. Mr Carr pushed him in the chest, broke free and ran. The constable said that he gave chase for about 25 metres and tackled Mr Carr. There was a general melee involving others. The constable said that after a short struggle he managed to restrain Mr Carr who stood calmly and walked towards the rear of the police vehicle. Cons Robins said that as Mr Carr neared the door he pushed him (Robins) again in the chest putting him off balance. Cons Robins said that he was still holding Mr Carr as he reached forward, took hold of the constable's shirt pulling him to the side, causing the front of his police shirt to

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tear. Cons Robins said that he tried to pull Mr Carr towards the rear door. However, he broke free from the constable's grip and ran down the side of the police vehicle. The constable took hold of Mr Carr near the driver's door and called for urgent assistance via the police radio. He then pulled Mr Carr back to the rear of the police vehicle and placed him partially within it. 6 Cons Robins had been a police officer for five years. He knew Mr Carr as a long term resident of Wellington and where he lived. There was no question as to his identity and his usual place of residence. Cons Robins was aware that it was open to him to proceed by way of summons or a field court attendance notice (FCAN). 7 In his evidence in chief Cons Robins said that eventually at the end of the day he ended up charging and bailing Mr Carr. This passage occurs: "Q. At any stage during that period were you gong to issue Mr Carr any field court attendance notices? A. My intentions were to issue both persons [Mr Carr and another man] with field court notices, until Constable Smith brought to my attention a conversation which was had between himself and the defendant." In that answer Cons Robins has telescoped the events that occurred in Marsh Street and those that occurred in the police station. The position was clarified in cross-examination. I interpolate that Cons Smith said that while in the dock at the police station Mr Carr became agitated and said to him: "I'm going to get you knocked, you go to Sydney I'll get you killed, you and that other cunt, I'm going to kill your kids and I'm going to kill you, I'm going to get my brothers to cut your throat, I'm going to kick the cunt right out of you." 8 Cons Smith conveyed the essence of what Mr Carr allegedly said to Cons Robins. It is still to be resolved whether this was the bluster of an angry man affected by alcohol, never intended to be carried out, or something more serious. 9 In cross-examination Cons Robins said that he did not proceed by way of summons because he had the field court attendance notice book in the police vehicle "and it's by far quicker to issue it on the roadside, than what is to later go and find the defendant and try and serve it on him at his residence." The constable also said that he did not issue the defendant with a field court attendance notice because "the defendant continued to walk away from me, which is the main reason why I placed him under arrest to take him back to the police vehicle, and at which time the incident escalated a little bit further, and it was no longer viable for me to do so on the roadside." Cons Robins agreed that he did not tell or ask Mr Carr to wait while he (Robins) gave Mr Carr a field court attendance notice as he was taking steps backwards and away from the constable, 10 Cons Robins agreed that he could have told Mr Carr that he would be reported for offensive language and typed out a breach report. Cons Robins said: "It was open to me to allow him to walk away, but he continued to yell offensive language, which is the reason why he was arrested if I allowed him to continue to walk down the street yelling abuse towards a police officer, the offence would continue, and that's the reason why he was arrested." Cons Robins said that he did not consider the option of a summons but he did consider the option of a field court attendance notice. Cons Robins agreed that he could have let Mr Carr walk away and later attended his residence and issued him with a field court attendance notice or served a summons which he had caused to issue. He did not take either of these courses because the offence was continuing. He reiterated that he had no intention of summoning Mr Carr. This was because he had the option of issuing a field court attendance notice. The constable agreed that the issue of such a notice did not require him to arrest Mr Carr. 11 The magistrate held that the arrest of Mr Carr was not unlawful because of s.352 of the Crimes Act 1900. He also referred to s.100AD(4) of the Justices Act 1902 which provided that the issue of an attendance notice does not render unlawful the arrest of the person to whom the notice is directed. The magistrate found that the stated purpose of the arrest in the first instance was the issue of a court attendance notice and then to stop the offence continuing. The magistrate concluded: "The defence has failed to satisfy me that the arrest was unlawful. This is due to the officer's evidence regarding the continuation of the offence." 12 The magistrate correctly next considered whether the evidence was obtained improperly or in consequence of an impropriety within the meaning of s.138 of the Evidence Act 1995. He sought to ascertain what the word "improperly" meant in the context of s.138. He held that it means "an act that is highly irregular, impermissible or clearly inconsistent with standards of acceptable police conduct and that the test was objective. The magistrate next relied on a series of cases in the Court of Appeal, this Court and the Federal Court to the effect that for the great majority of people, arrest is equivalent to an additional penalty and should not be used where the issue of a summons will suffice. 13 He also relied on the statement of the Court of Appeal in Fleet v District Court & Ors: 1999 NSWCA 363:

9

"Lawfulness of arrest is one thing, appropriateness is another. Nevertheless it is difficult to understand how it could have been thought appropriate to exercise any available power of arrest in the present circumstances where Mr Dymond and the third opponent knew the claimant's name and residential address and where there was nothing to suggest that the claimant was at risk of departing." The magistrate commented that the inappropriateness must be even greater where the maximum penalty is a fine, especially one of $550 (sic). The magistrate also applied the statement in Daemar v Corporate Affairs Commission, unrep. 4 September 1990, CA 40359.89 that the proper course to be taken by the police where the offence is minor, the name and address of the alleged offender are known and there is no reason to believe a summons would not be effectual is to proceed by way of summons. 14 The magistrate also relied on three passages from the guidelines in the Police Service Handbook: "Remember, arrest is an extreme action. Keep in mind other means of getting someone to Court (eg: summons, CAN)" "Do not arrest someone for a minor offence when a summons would get them before court. Do Not use CAN's to circumvent proceedings by summons." "Use arrest as the last resort in dealing with offenders. Detain in police custody only after considering all available alternatives eg: infringement notice, summons, court attendance notice etc. Do not arrest someone for a minor offence, when it is clear a summons or alternative process will do." 15 The magistrate further relied on what he deduced Parliament intended when in 1993 it allowed court attendance notices to be given by any police officer and thus in the field. Parliament anticipated that their use would lead to fewer arrests and fewer offenders being taken into custody. He also relied on what was described as a press release by the Police Minister, the Police Association and Acting Inspector York for the NSW Police Service. The magistrate believed that this was referred to in the Minister's Second Reading Speech. This is not correct. I could not find any such reference in the Speech. 16 The magistrate applied the meaning he had given to improper. He took into account the statements of the higher courts earlier mentioned, the Police Service Handbook, the second reading speech and the other secondary materials as to the purpose of FCANs, and these factual considerations, namely, the maximum penalty for the offence was a fine, there was no issue of public safety, there was no evidence of anything exceptional to justify diversion from the Handbook, the officer knew Mr Carr's name and address, did not consider a summons or any process that was absent arrest, did not use arrest as a last resort, had not read the Handbook and that a process not requiring arrest was not chosen because it was "far quicker" to arrest and then issue a field court attendance notice. The magistrate said that all this satisfied him on the balance of probabilities that the arrest was improper and that there was more than a mere technical breach. The magistrate said that he did not doubt the officer's integrity or honestly held belief regarding his actions. Nor did the magistrate wish to be unduly critical of the officer who was in a difficult situation.

17 Before turning to the particular grounds on which it is alleged that the magistrate erred I should note the general submissions of the DPP: (a) A constable has a discretion to arrest without warrant any person whom he with reasonable cause, suspects of having committed any summary or indictable offence: s.352(2)(a) Crimes Act 1900, Hazell v Parramatta City Council (1968) 1 NSWR 165 at 178-181. (b) In cases where an offence is threatened or is actually being committed or where the offender is apprehended immediately or on fresh pursuit after the offence, powers of arrest without warrant have long been recognised by the common law or by statutory provisions as necessary to prevent injury to the person or property of others, to preserve the peace or identify the wrongdoer [Deane J in Donaldson v Broomby (1982) 60 FLR 124 at 126]. (c ) Arrests are frequently made in circumstances of excitement, turmoil and panic. Minute retrospective criticisms should not be made of decisions made on the spur of the moment. (d) While the desirability of police proceeding by way of summons rather than arrest with respect to summary offences has been emphasised in a number of cases, none of them involved the exercise of the power of arrest in the context of a continuing public order offence in a public place.

18 Ground 1 - his Worship erroneously defined the word "improper" for the purpose of s.138. 19 Ground 2 - The evidence before the Local Court and the magistrate's findings did not enable a finding of "impropriety" under s.138(1) of the Evidence Act 1995. These grounds will be considered together. 20 The DPP reminded the Court that a finding of impropriety can have potentially serious consequences upon a criminal prosecution and that there is a legitimate public interest in the conviction of those guilty of crime. The DPP submitted that in describing conduct which was improper but not necessarily unlawful Mason CJ, Deane and Dawson JJ in Ridgeway v The Queen (1994-1995) 184 CLR 19 at 36 necessarily required bad faith and an abuse of power in such conduct. In the context of examining the matter of entrapment and what might amount to conduct which is improper their Honours said: " circumstances can conceivably exist in which a law enforcement officer intentionally brings about the opportunity for the commission of a criminal offence by conduct which is not criminal but which is quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement. Extreme cases of creating circumstances of temptation under which a vulnerable

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but otherwise law-abiding citizen commits an offence of a kind which (so far as the police are concerned) he or she might not otherwise have committed provide possible examples. As the Supreme Court of Canada pointed out in R v Mack 'there are inherent limits on the power of the state to manipulate people and events for the purpose of attaining the specific objective of obtaining convictions.' The rationale of the discretion requires that it extend to cases where those 'inherent limits' are exceeded." 21 Their Honours were dealing with a special area of the law and as I read their judgment I would not be prepared to go as far as the DPP suggests. I agree that in the context in which the Justices were speaking they had in mind an impropriety of a substantial kind. A serious offence had been committed. At 37 the Justices said: "The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in a criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community." 22 Again the Justices were dealing with instances of entrapment and analogous cases which perhaps fall short of entrapment. I doubt if they were intending to deal with every set of circumstances which may raise questions of impropriety. Their statement was probably not meant to be exhaustive but it does indicate the degree of impropriety required where serious offences are involved. Ridgeway involved a serious drug offence. With minor offences, any impropriety is likely to be of a lesser order with lesser consequences. Nevertheless, it will be important. As the Justices pointed out the enquiry is whether what was done (or not done) is inconsistent with minimum standards of acceptable police conduct in all the circumstances. The Justices did not attempt to define what "improper" meant. 23 The DPP submitted that the magistrate erred in law in defining the word improper in s.138 in that he: (a) determined that the test for such conduct was purely objective. The DPP submitted that for "lawful conduct" to be "improper" under s.138, a subjective element was required involving, at least, consciousness on the part of a police officer that his actions constituted an abuse of power (b) failed to attribute to the word "improper" the essential element of intentional wrongdoing or abuse of power which was necessarily inconsistent with the performance of police duties with integrity and in good faith (c) misapplied Ridgeway by excluding from the meaning of "improper" portions of the judgment which pointed to intentional wrongdoing or abuse of power which are necessarily inconsistent with an officer acting lawfully, with integrity and in good faith, namely, concepts of "harassment" and "manipulation". 24 In further submissions the DPP submitted that impropriety involves an element of moral turpitude or blameworthiness, such as an element of sharp practice or trickery or conduct that was underhand. More than a breach of good practice was required. It was further submitted that it was a rare case where a lawful arrest could be described as improper. 25 Mr Carr discounted the DPP's use of the phrase "continuing public order offence in a public place" and the contention that where this occurred the exercise of the power of arrest was proper. Mr Carr pointed to Lake v Dobson (NSWCA, 19 December 1980, Petty Session Review 2221) and submitted that it revealed conduct capable of falling within the description "continuing public order offence in a public place". The defendants were arrested and charged with offensive behaviour in a public place. They were sunbaking in the nude at Thompson's Bay, a narrow bay with a small beach and recreation reserve to the north of Coogee Beach. Samuels JA, with whom Moffitt P and Hope JA agreed, while appreciating that "this type of offence is capable of constituting, as it were, a continuing offence commented: " it can scarcely be regarded as ranking high in the criminal calendar. [Arrest] is a means of setting the criminal process in train which should be reserved for situations where it is clearly necessary, and should not be employed where the issue of a summons will suffice." 26 Mr Carr submitted that before an arrest should properly be made for offensive language there would need to be an actual or likely or potential breach of the peace. "Breach of the peace" means more than merely words or offensive language. It was further submitted that where the facts are simply that offensive words are being used, although the power of arrest exists, it is improper to effect an arrest where there is no harm (in the sense of physical harm) being done or likely to be done. 27 Mr Carr submitted that there is no need to define improper as what is improper will vary from case to case and will be determined by reference to the relevant facts and circumstances of each case. That submission is correct. Mr Carr relied upon the observations of Lord Upjohn in Customs & Excise Commissioners [1969] 1 WLR 1163 at 1171 that it is virtually impossible to attempt to place an accurate definition upon a word in common use and that the task of the Court - " is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and every day usage the known, proved or admitted or properly inferred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament."

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28 Mr Carr submitted that it was inappropriate to apply the concept of "improper" as discussed in Ridgeway to a case concerning offensive language as Ridgeway involved questions of entrapment and a serious drug offence for which the maximum penalty was imprisonment for 25 years. I agree. The observations of the Court in Ridgeway must be read in the light of the facts. The requirements of harassment or manipulation were appropriate to the facts and offence charged in Ridgeway. 29 Mr Carr contended that importing the concepts of "bad faith and abuse of process" was placing the test too high for a case of offensive language. 30 As to the DPP's submission that for lawful conduct to be improper a subjective element is required involving at least consciousness on the part of the police officer that his actions constitute an abuse of power, Mr Carr submitted that the subjective element, if relevant at all, was only relevant to the factors that may be considered pursuant to s.138(3) once an impropriety has been found. 31 The Australian Law Reform Commission Report which preceded the Evidence Act 1995 reviewed the then existing discretion to exclude improperly obtained evidence including the public interests supporting admission and those supporting exclusion. The ALRC did not discuss what "improperly" meant. It recommended that an approach based on the existing discretionary approach be adopted. It suggested that the conflicting concerns in this area and the wide variety of circumstances necessitated such an approach. It proposed some changes. It recommended that the nature of the conflicting interests which should be balanced should be indicated precisely and the articulation of factors which should be taken into account in the exercise of the discretion. The report adopted the comment of Stephen and Aickin JJ in Bunning v Cross (1978) 141 CLR 54 at 74 that what is involved "is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy." 32 The report listed a number of factors which it suggested were relevant to the balancing discretion. It was pointed out that if the impropriety was the result of a mistaken belief by an officer that he was entitled to do what he did this would tend to reduce the seriousness of the misconduct. However, it was noted that it was largely irrelevant to the criminal suspect that his rights were infringed deliberately or mistakenly. He has suffered the same damage regardless of the mental state of the officer. 33 The recommendations of the Law Reform Commission have largely been embodied in s.138. Among the matters that the Court is to take into account under s.138 is the nature of the relevant offence and the nature of the subject matter of the proceeding and the gravity of the impropriety. 34 Section 138(2)(a) deems evidence of an admission and evidence obtained in consequence to have been obtained improperly if the questioner knew or ought reasonably to have known that the act or omission of the questioner was likely to impair substantially the ability of the person being questioned to respond rationally. Section 138(2)(b) also deemed evidence to have been obtained improperly if the questioner made a false statement knowing or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person being questioned to make an admission. Actual knowledge is a subjective matter. The test of "ought reasonably to have known" is objective. Put very broadly, s.139 provides that for the purposes of s.138(1)(a) evidence of a statement made or an act done by a person during questioning or official questioning is taken to have been obtained improperly if the questioner does not administer a caution. Questions of knowledge or intent are not relevant under s.139. Under s.138(1) and (3) it is not necessary for there to be the subjective element of bad faith or abuse of process or abuse of power or intentional wrongdoing in relation to the offence of offensive language. Section 138(2) and s.139 indicate that the word "improperly" and the phrase "in consequence of an impropriety" should not be narrowly construed. 35 This Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant's name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this Court were heeded. 36 The DPP submitted that the findings of fact made by the magistrate, at their highest, constitute criticism of Cons Robins for not following what the magistrate considered to be good practice in the circumstances. The magistrate found that the constable had acted lawfully, with integrity and in good faith. The DPP submitted that the magistrate's findings did not satisfy the statutory test of improper. From what I have written it is apparent that I am unable to agree with this submission. The initial decision to arrest was born of expediency. It was open to the magistrate to make this finding: "Thus the evidence is that at the time of the arrest officers intention was to arrest a drunk, hostile, aggressive swearing man, take him by force to the vehicle and issue him with a roadside field court attendance notice. A

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process not requiring immediate arrest was not chosen because it was 'far quicker' to arrest and then issue a field court attendance notice." 37 Cons Robins arrested Mr Carr after he allegedly used the words earlier quoted and continued moving away. It is hard to resist the conclusion that in the present case the officer did not issue a summons because that procedure involved him in more work and took far more time. The actions of the officer, as he must have realised would happen, escalated the incident and led to the alleged commission of further offences. 38 I would reject Grounds 1 and 2. 39 Ground 3 is to this effect: "his Worship stated a proposition of law, namely that the desirability of police proceeding by way of summons rather than arrest with respect to summary offences, which he then purported to apply in a manner which excluded from consideration critical legal factors surrounding the exercise of the power of arrest."

40 The DPP's complaint is that the magistrate failed to have regard (or perhaps sufficient regard) to the law

concerning the duty and discretion of a constable with respect to public order and the discretionary exercise of powers of arrest. The magistrate expressly took into account s.352 of the Crimes Act 1900 and s.100AD(4) of the Justices Act 1902 when dealing with the question whether the arrest was lawful. He held that it was lawful. This

was primarily because of the evidence of Cons Robins that the appellant continued to use offensive language. The magistrate reviewed the cases as to when a summons should be issued. He recognized that Cons Robins was in a difficult situation. One difficulty for the DPP is that the decision to arrest was made as Mr Carr moved away and

his utterance of the words earlier quoted. Further words were, according to the constable, uttered by Mr Carr shortly afterwards. It was a classic case for issuing a summons and not inflaming the situation.

41 I am not persuaded that this ground has been established.

..

The purpose of arrest, being to commence proceedings against a person as a last resort, was enshrined in the repealed s99(3). Sentas and McMahon argue that the removal of the words for the purpose of taking proceedings for an offence against the person in the new s99(1)(b), reflect NSW Parliaments intent that arrest rates be increased in order to deter crime:

In his second reading speech for the LEPRA Amendment Bill, the Premier explained that the Reviewers, as well as being influenced by comparative legal jurisdictions:

were also influenced by a 2012 NSW Bureau of Crime Statistics and Research [BOCSAR] report on the effect of arrest and imprisonment on crime. That report assessed the extent to which the probability of arrest, the probability of imprisonment and imprisonment duration impacted on crime rates. Importantly, the BOCSAR report found the biggest deterrent to criminals is the risk of arrest. (OFarrell 2013b:60)

According to BOCSAR (2012), a 10% increase in the risk of arrest produces a 1.35% reduction in property crime, and just under a 3% reduction in violent crime. There has been only one other substantial Australian study comparing the effects of arrest and imprisonment on crime, and BOCSAR suggest this study has methodological limits (Wan et al 2012:2, 67). The relationship between criminal justice mechanisms and crime deterrence is a highly contested field of research internationally. As we explore shortly, the premise that arrest has a deterrent effect on offending, and that this is an objectively legitimate function of arrest specifically, and of criminal justice mechanisms more broadly, requires greater substantiation. The Premier did not mention that BOCSAR found the effects of increased income on crime reduction to be far stronger than those of arrest rates. For both property offences and violent crime, BOCSAR conclude that measures that affect the economic wellbeing of the community provide more potential leverage over crime than arrest (Wan et al 2012:1617). In their report, the Reviewers however only cite BOCSARs argument that policy makers should focus more attention on strategies that increase the risk of arrest and less on strategies that increase the severity of punishment in justifying the introduction of pro-arrest law (Tink and Whelan 2013:2). The Reviewers assert that the new arrest power reflects BOCSAR conclusions and will ensure police have the appropriate power of arrest to prevent criminal activity (Tink and Whelan 2013:2, emphasis added). The legislative reform of arrest as a crime-prevention strategy constitutes a major shift to the formal legal purpose of arrest. BOCSAR conclude that arrest has a deterrent effect only if arrest rates are increased above current levels (Wan et al 2012:16). The purpose of the legislative reforms appears to be to enable a substantive increase in arrest rates, on the premise that this will deter alleged offenders. Critically, the deterrence thesis of increasing arrest rates for crime control is premised on arrest as a first resort and conflicts with the common law principle of

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arrest as a last resort for commencing proceedings (2014: 789)

1.4 What amounts to suspects on reasonable grounds?

The LEPRA Amendment Act 2013 introduced two tests that a police officer must meet before an arrest is lawful. The first test is that the police officer suspects on reasonable grounds that the person is committing or has committed an offence (Section 99 (1)(a)). The second test is that the officer is satisfied that the arrest is reasonably necessary for any one of the reasons set out in 99(2). Sentas and McMahon argue that:

It is the second stage of the arrest power that is of concern that is, whether or not the arrest is necessary. The repealed provision required that the police officer must not arrest unless the officer suspects on reasonable grounds that the arrest was necessary to achieve one of the purposes set out in the subsection (s 99(3)). The new section provides that an officer may arrest if satisfied that it is reasonably necessary for one or more of the reasons that are then set out in s 99(1)(b). Magistrate Heilperns analysis of the language of the old s 99 highlighted the clear boundaries set by Parliament and intended by the inclusion of must not arrest:

The words must not arrest in subsection (3) are an unambiguous representation of parliamentary intent creating preconditions for a lawful arrest. Indeed, it is hard to imagine a clearer statement of parliamentary intent. (R v McClean at 25)

By replacing must not arrest with may arrest Parliament has watered down the unambiguous restrictions placed upon police with regards to the circumstances they are entitled to arrest (for a discussion of Parliaments intent in first enacting s 99, see Sanders 2013:212). The new formulation is more complex than previously. It is either necessary to arrest or it is not. The meaning of necessary is plain. It is that there is no other means of securing the purpose for the deployment of the arrest. Reasonably necessary, on the other hand, is arguably less susceptible of certain application when reading the shifts in language as a whole from the old to new provisions. The previous provision called for the officer to apply only one test, that of suspicion on reasonable grounds, to both establishing whether an offence had been committed and whether under s 99(3) arrest was necessary to achieve one of the purposes set out in that subsection. The section now imports two different tests that the officer must apply at the time of making arrest: the reasonable grounds test (s 99(1)(a)) and a reasonably necessary test (s 99(1)(b)). The principles in R v Rondo have provided clear guidance as to how the test suspects on reasonable grounds should be applied. The NSW Parliament imported the new formulation reasonably necessary from the Queensland legislation, without providing an explanation why this aspect of the test has changed. It has failed to indicate in any adequate detail the objective nature of the test in the context of the new s 99. Given that the Queensland test appears to require some objective test to be applied (Douglas and Harbidge 2008:26), it would still seem that the test is not a purely subjective one. The courts may well interpret reasonably necessary as requiring the officer be satisfied on an objective basis that the arrest was necessary (Griffith 2013:9). The courts may grapple with determining Parliaments intent in departing from the longstanding suspect on reasonable grounds test. As outlined, the shift away from mandatory language that makes arrest a last resort (from must not arrest to may arrest) reflects Parliaments intention that the statute expand police discretion to arrest as a first resort. If the courts do interpret reasonably necessary as meaning the same as the suspect on reasonable grounds test, the legislative intention of Parliament may well be thwarted. In the meantime, frontline police will struggle to give their own meaning to the phrase reasonably necessary to arrest (2014:791-2)

R v Rondo [2001] NSWCCA 540

27 SMART AJ: John Rondo appeals against his conviction by a jury in the District Court of

supplying a prohibited drug (cannabis leaf - 224 grams) and cultivate prohibited plant (59-63 cannabis

14

plants). The supply charge arose out of his possession of the cannabis leaf. He was acquitted of offering a bribe to a police officer.

29 In outline the police stopped a vehicle being driven by the appellant, searched it and allegedly found $860 in the console and some cannabis leaf in the glovebox. The appellant was arrested and taken to Chatswood Police Station but he refused to answer questions. The police obtained a detention warrant and a search warrant to search the home where he lived with his mother. Upon searching, they allegedly found some cannabis leaf and some cannabis plants.

49 The initial question was whether at the time Cons[tables] Gautier and Barnes stopped the appellant either reasonably suspected the appellant of having or conveying any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence or either reasonably suspected that in the vehicle being driven by the appellant there was anything stolen or otherwise unlawfully obtained or anything used or intended to be used in the commission of an indictable offence.

50 The judge did not canvass the legality of the police requiring the appellant to stop his vehicle. If there was no lawful stopping of the appellant it was submitted that the subsequent search was illegal. The subsequent search could not have taken place but for the stopping.

51 The evidence that the police had to support stopping the vehicle was that a young fresh faced man was driving a smart fast open coupe with some panel damage along Epping Road and when asked if the car was his, he replied "No". The mere fact that the appellant was driving a car which he did not own or lease or hire is not sufficient to give rise to a reasonable suspicion. Many late teenagers and young adults drive cars belonging to a parent or a sibling. At the time of stopping the appellant [the police] did not have any material on which he could form any of the reasonable suspicions referred to in s.357E [under the Crimes Act, this was the source of the power to search; now repealed; see s21 LEPRA]

52 In Streat v Bauer; Streat v Blanco I reviewed the authorities from other fields which help to elucidate s.357E and the words "suspects" and the clause "any person whom he [the member of the police force] reasonably suspects" .

53 These propositions emerge: (a) A reasonable suspicion involves less than a reasonable belief but more than a possibility.. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s.357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. (b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value. (c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.

54 On the information which Barnes had he did not have reasonable grounds to form any of the suspicions mentioned in s.357E. It was not open to him to "reasonably suspect" any of the matters referred to in s.357E. Hence the stopping of the appellant and his vehicle was unlawful.

55 The appellant contended that as the stopping was unlawful the evidence as to the search should not be admitted. That followed upon an illegal act and the prosecution should not be able to enjoy the fruits of its own illegal conduct. It does not follow that because the police have unlawfully stopped a vehicle they are precluded from investigating whether any offences have been committed. For example, they may see something which reasonably makes them suspect that a serious crime has been committed, for example, a balaclava with eye holes, a knife with blood or a housebreaking implement.

56 Where a vehicle has been unlawfully stopped it becomes a matter for the Court's consideration whether evidence obtained as a consequence revealing a criminal offence should be admitted: see s.138 of the Evidence Act 1995. Much will depend on the offence alleged and its relative seriousness as well as all the other circumstances.

57 Where a vehicle has been unlawfully stopped it is of importance where a search is subsequently conducted that such search be one that is lawful. The judge directed his attention to that issue rather than whether the appellant and the Supra had been lawfully stopped.

58 [T]he judge took the view that the appellant's alleged actions, after the Supra had stopped and the police had stopped behind it, in reaching across to the passenger's side of the Supra and appearing to place something in its glovebox might reasonably raise a suspicion within s.357E to enter the mind of the police officer and that he honestly did so. The judge recognized that this was a

15

borderline case. Placing an item in a glovebox at any stage is a very routine matter. Mostly it would be an innocent everyday act not calling for comment. The Crown relied on the time at which the item appeared to be placed in the glovebox, that is just after the vehicles had stopped and Cons Barnes was leaving the police vehicle to go to the appellant in the Supra. My mind has fluctuated as to whether the appellant's alleged actions were sufficient to ground the reasonable suspicion alleged. Not without doubt I have concluded that it was open to the judge to find that they were. Both the amount of money found, namely, $860 and the quantity of cannabis leaf found, namely 9.4 grams were small.

60 In the exercise of his discretion the judge did not take into account that the Supra was unlawfully stopped and that all else flowed from that. That stopping of the vehicle amounted to an unlawful interference with the appellant's freedom of movement and harassment. The failure to take such an important matter into account vitiates the judge's exercise of his discretion. Section 138 refers to evidence obtained "in consequence of" an impropriety or of a contravention of an Australian law. The words "in consequence of" are important in the present case.

64 Once the police officer found $860 in the console and the marihuana in the glovebox, he had reasonable cause to suspect that the appellant had committed an offence, albeit a relatively minor one. The subsequent arrest of the appellant and taking him to Chatswood Police Station were not unlawful nor was his detention for four hours However, the police officer did not become aware of any offence until after he had stopped the Supra unlawfully and searched it.

. Consider the relationship between the repealed s99(2) and (3): what does it tell us about the purpose of arrest? When is an arrest unlawful? What are the consequences of an unlawful arrest?

R v McClean [2008] NSWLC 11

1 MAGISTRATE D. HEILPERN: This is a matter where the defendant has been charged with two offences assault police and resist arrest under s58 of the Crimes Act 1900. The hearing thus far has been conducted on the basis of a preliminary voir dire . I am tasked to determine two matters in the voir dire; the admissibility of the evidence pursuant to s138 of the Evidence Act and whether the prosecution have proved beyond a reasonable doubt that the police were acting in the execution of their duties. The Facts

3 At 11.15pm [on 30 November 2007] Constable Eugenio and Constable Billing arrive[d] at 35-47 Wilson Street, Darlinghurst in relation to [a] radio call re a malicious damage occurring now. Upon arrival they saw the accused and a male companion Mita standing on the balcony in front of unit 108. Constable Billing asked why they were there. She was told by the defendant that the lady who lived in unit 108 had a dog that did not belong to her, that it once belonged to their friend who had recently passed away. Constable Billing spoke to the resident of unit 108 who told her that they (ie the defendant and Mita) had been banging on the door and window, and that she wanted them to leave her alone. By this time Senior Constable Cameron had arrived, in response to an urgent radio call that two people were attempting to break into a unit. Senior Constable Williams and Constable Carter joined the group shortly afterwards. Senior Constable Williams says that the call he responded to was for a suspected aggravated break enter and steal offence which was in progress. The area in which they all were present was a walkway approximately two metres wide passing outside the front entrance doors to the units . Senior Constable Cameron then states she had a conversation with the accused as follows:

Cameron: What is your name? Do you have any ID on you? The accused ranted for a while before handing me her license. I handed this license to Constable Eugenio and Eugenio recorded the details of her drivers license in his notebook. Senior Constable Cameron then had a conversation with the occupant of unit 108. The occupant was difficult to understand and distressed. Senior Constable Williams noticed that the defendant was raising her voice, that her clothing was dishevelled, and he could smell intoxicating liquor on her breath. He tu[r]ned and faced her and said: we have been called here because someone has tried to break into this unit while an elderly lady is at home inside. I have been informed that you were in the immediate vicinity and are suspected of trying to break into this ladys unit. As youve been told before you are not obliged to

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say or do anything, but anything that you say or do, will be taken down and used in evidence. Do you understand that?

The defendant said something (unknown) at this point. Senior Constable Williams said: At this point you have to wait here until we make further inquiries about what has happened. We will get some details from you and carry out some checks. Failure to comply and you may be committing an offence. Do you understand that?

The defendant said We dont have to stay here. Senior Constable Williams said: You have to stay here until we finish our inquiries and if there is

no offence committed then you will be free to go. After some discussion with the male Mita, Senior Constable Williams said: We will just do some checks on the radio and after we have completed our inquiries youll be right to leave.

Constable Eugenio took his notebook down to the vehicle on the ground level and sought information regarding the accused. This took some five minutes.

Again from Senior Constable Camerons Statement: At this time the accused walked toward Senior Constable Williams and said words to the effect of I dont have to stay here. Senior Constable Williams moved and stood in front of the accused (sic) arm and said: You cant go yet. The accused put both arms up and pushed [him] in the chest with her inner forearms. This caused [him to lose his balance and step backwards. He then moved forward and took hold of the accuseds right arm, she then immediately began to pull her arm away from him. I said: Thats it youre in.

4 A struggle then took place with the defendant continuing to attempt to pull free. She grabbed hold of the hand rail and would not release it until police, as described by Senior Constable Williams: escalated the force required and inflicting severe discomfort upon the accused. 5 Eventually [the defendant] was handcuffed with her wrists behind her with the assistance of other police. She was then told that she was under arrest for assault, and cautioned. She was transported to the police station, charged and released some hours later on a court attendance notice without bail or any bail conditions. 6 It is the push to Senior Constable Williams that gives rise to the assault charge, and the attempts to pull free and difficulties in handcuffing by Constable Cameron that give rise to the resist charge. It is conceded by the prosecution that the defendant was not charged in relation to the original matter. Submissions Defendant 7 The defendant submits that an element of each offence is that I must be satisfied beyond a reasonable doubt that the police were acting in the execution of their duty. Further, that pursuant to s99 (LEPRA) I cannot be satisfied that the police were acting in the execution of their duty. Further it is submitted that the detention or arrest in the first instance was so that an investigation could take place, and that is not a factor permitting arrest at common law or by the statute. Arrest later seems to have continued for the purpose of checking the identification by radio already given. Arrest is a last resort, and to arrest for investigation is ill advised and unnecessary. Accordingly I could not be satisfied beyond a reasonable doubt that the police were acting in the execution of their duty. 8 Alternately, the defendant submits that the evidence is inadmissible pursuant to s138 of the Evidence Act, in that it was illegally or improperly obtained . The expected consequence of an improper arrest in these circumstances was the resultant actions of the defendant. Submissions Prosecutions 9 The prosecution submits that the defendant was under arrest, and that the police were empowered to place the defendant under arrest as they had a reasonable suspicion that she had committed an offence. They were investigating the offence and were entitled to ensure a suspect was detained whilst that investigation took place. The prosecution submit[s] that the police required her to be there for the purposes of investigating the matter. Further, ss 11 and 12 of LEPRA make it clear that the police can require identification from a person, and that it is an offence not to provide it. The prosecution argue that it flows from those sections that the police have the power to detain a person while their identity is being checked. Accordingly, it is submitted, the police were acting in the lawful execution of their duty, and the arrest was for the purpose of s99(3)(a), of ensuring that the defendants identity was confirmed so that they could be brought before a court. In terms of s138 the prosecution concede that the assault police was at the lower end of the scale for this type of offence. Further Submissions

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10 Preparation of the reasons for decision in this matter led me to the conclusion that I required some further submissions from the parties, relating to the cases of Adams v Kennedy and Ors [2000] NSWCA 152 and Christie v Leachinsky (1947) AC 573. Mr Horan confirmed his submission that the arrest was lawful in that the arresting officer had reasonable grounds for suspecting an offence based on the radio message he had received, and the information received from other police. He gave clear reasons for the arrest, that it was not arrest for questioning, and that the other suspect was dealt with by a court attendance notice as he remained on the scene and did not resist. Accordingly, the police were acting in the execution of their duty. Ms Moody reiterated her previous submissions. Execution of Duty 11 For each of the offences an element required to be proved is that the police were acting in the execution of their duty: (my emphasis)

58 Assault with intent to commit a serious indictable offence on certain officers Whosoever: assaults any person with intent to commit a serious indictable offence, or assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriffs officer, or bailiff, or any person acting in aid of such officer, or assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be liable to imprisonment for 5 years.

12 It is now apparent that if an arrest is unlawful, (or that there is doubt as to this issue), the police officer is not acting in the execution of his duty, and the charge is to be dismissed. ....

13 The High Court considered this issue specifically in Coleman v Power and Ors [2004] HCA 39 per McHugh at 118: (my emphasis)

Each of the sub-sections under which the appellant was charged is predicated on the lawfulness of the action being resisted or obstructed. It is not part of an officer's duty to engage in unlawful conduct. If the officer acts outside his or her duty, an element of the offence is missing. In Re K, after reviewing the authorities on the scope of an officer's duty, the Full Court of the Federal Court said :

"The effect of all those cases is that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein."

An officer who unlawfully arrests a person is not acting in the execution of his or her duty. In Nguyen v Elliott, the Supreme Court of Victoria set aside convictions for assaulting and resisting an officer in the execution of his duty when the arrest was unlawful and therefore not made in the execution of the officer's duty. The accused was approached by two constables who believed that he might have been involved in drug dealing. The accused attempted to walk away but was detained by the first officer who wished to search him. The accused became aggressive and kicked the first officer. The second officer crossed the street to assist the first officer to control the accused. The accused was forced into the police vehicle and continued to protest. He was then taken out and handcuffed during which the accused bit the second officer on the hand. Before the magistrate, the first officer acknowledged that he did not reasonably suspect that the accused was in possession of drugs but was merely curious about whether the accused possessed drugs. The charges relating to the first officer were dismissed. The prosecution claimed the second officer's position was different because he had good reason to believe he was lawfully assisting his partner to effect an arrest for what the second officer assumed was an assault on the first officer. Hedigan J held that the conviction for resisting arrest could not stand:

"... it cannot be said that a police officer is acting in the execution of his duty to facilitate an unlawful search and arrest. The right of citizens to resist unlawful search and arrest is as old as their inclination to do so. The role of the courts in balancing the exercise of police powers conferred by the State and the rights of citizens to be free fr