POLICE POWERS of ARREST (without a warrant)

Police often perform arrest in the community without a warrant. Arrests occur as part of a police officer’s normal duties. However, the police words of you’re under arrest come with certain duties on police.

The most fundamental of those is: –

Police can ONLY arrest you if they intend to charge you; charging you means taking you before an authorised officer (such as Magistrate).

A recent case heard in the High Court has affirmed that a police officer does not have power to arrest a person without a warrant if at the time of the arrest the police officer had not formed the intention to charge the arrested person with an offence (see State of NSW v Robinson [2019] HCA 46).

This means that an intention to charge a person must be evident in the police officers mind at the time of arrest.

This will then require that the police officer has formed the opinion that the person is to be charged with an offence and the sole purpose of arresting the person is to   take the arrested person before an officer of the Court to answer for that charge.

That being the case police are not allowed to arrest you simply to:

    1. Ask you questions;
    2. Investigate a crime;
    3. Conduct a search.

HOWEVER, police can stop, detain, and ask you certain questions (for instance you need to give police your correct name to identify you).

Plus, they can search your person or belongings IF they have reasonable suspicious

(a)  you have in your possession/control anything stolen; or

(b)  you have in your possession/control anything used or intended to be used in or in connection with the commission of a relevant offence; or

(c)  you have in your possession/control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence; or

(d)  you have in your possession/control a prohibited plant or drug.

Reasonable suspicion must be something more than mere wondering from the police officer. But it need not be based on evidence. Instead it should be based on some sort of reasonable proposition that the police officer can point to that something criminal is taking place or has taken place.

If reasonable suspicious is met, then police can conduct a search of you and things in your possession.

If you or someone you know has been charged with a criminal offence, contact Rep-Revive Criminal Lawyers for a free initial consultation.


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