LAWS1206 Lecture Notes - Lecture 4: Centrelink, Section 28, False Imprisonment
Week 3 Monday
Monday, 6 March 2017
09:06
Overview
Police Obligations
Provide reasons for arrest
Christie v Leachinsky; Adams v Kennedy
Use of force
Caution
Police Interview
How long can police hold a person?
Investigation period
Determining a reasonable time and what times are excluded?
Vulnerable persons
Legal assistance and support people
Police obligations
CRIME Guidelines page 16
“Safeguards
When you exercise your power to arrest, you must comply with Part 15 of LEPRA
(safeguards). This requires you to provide the arrested person with the following:
evidence you are a police officer (unless you are in uniform),
your name and place of duty, and
the reason for the arrest.
You must do this as soon as it is reasonably practicable to do so.”
See section 202 LE(PR)A
Need to provide evidence that the person was a police officer
Must provide with their names, place of duties, why the obligation was
there
Must tell the person the reason for the exercise of power
Section 202(1) commences… ‘A police officer who exercises a power to
which this Part applies must provide the following to the person subject to the
exercise of this power:’
See s 201 LE(PR)A
LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 -
SECT 201
Police powers to which this Part applies
201 Police powers to which this Part applies
(1) This Part applies to the exercise of the following powers by police officers:
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(a) a power to stop, search or arrest a person,
(b) a power to stop or search a vehicle, vessel or aircraft,
(c) a power to enter or search premises,
(d) a power to seize property,
(e) a power to require the disclosure of the identity of a person (including a
power to require the removal of a face covering for identification purposes),
(f) a power to give or make a direction, requirement or request that a person
is required to comply with by law,
(g) a power to establish a crime scene at premises (not being a public place).
This Part applies (subject to subsection (3)) to the exercise of any such power
whether or not the power is conferred by this Act.
Note : This Part extends to special constables exercising any such police
powers-see section 82L of the Police Act 1990 . This Part also extends to
recognised law enforcement officers (with modifications)-see clause 132B of
the Police Regulation 2008 .
(2) This Part does not apply to the exercise of any of the following powers
of police officers:
(a) a power to enter or search a public place,
(b) a power conferred by a covert search warrant,
(c) a power to detain an intoxicated person under Part 16.
(3) This Part does not apply to the exercise of a power that is conferred by an Act
or regulation specified in Schedule 1.
Provide reasons for arrest
Burn's Justice of the Peace [1755] endorsed in Christie v Leachinsky [1947] AC 573:
“If another person has a lawful reason for seeking to deprive him of that liberty,
that person must as a general rule tell him what the reason is, for, unless he is
told, he cannot be expected to submit to arrest, or blamed for resistance.”
See Adams v Kennedy (2000) 49 NSWLR 78 available on WATTLE- Christie
Christie v Leachinsky, Viscount Simon stated:
(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or
of other crime of a sort which does not require a warrant, he must in ordinary
circumstances inform the person arrested of the true ground of arrest. He is not
entitled to keep the reason to himself or to give a reason which is not the true
reason. In other words a citizen is entitled to know on what charge or on
suspicion of what crime he is seized.
(2) If the citizen is not so informed but is nevertheless seized, the policeman,
apart from certain exceptions, is liable for false imprisonment.
(3) The requirement that the person arrested should be informed of the reason
why he is seized naturally does not exist if the circumstances are such that he
must know the general nature of the alleged offence for which he is detained.
(4) The requirement that he should be so informed does not mean that technical
or precise language need be used. The matter is a matter of substance, and turns
on the elementary proposition that in this country a person is, prima facie, entitled
to his freedom and is only required to submit to restraints on his freedom if he
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knows in substance the reason why it is claimed that this restraint should be
imposed.
(5) The person arrested cannot complain that he has not been supplied with the
above information as and when he should be, if he himself produces the situation
which makes it practically impossible to inform him, eg, by immediate counter-
attack or by running away.
There may well be other exceptions to the general rule in addition to those I have
indicated, and the above propositions are not intended to constitute a formal or
complete code, but to indicate the general principles of our law on a very
important matter. These principles equally apply to a private person who arrests
on suspicion.
Exceptions
Lord Simonds spoke to the same effect
[20] ‘…if a man is to be deprived of his freedom he is entitled to know the reason why’
[21] ‘Lord Simonds said (at 592-3) that the qualifications which he thought should be
imposed upon the fundamental rule were:
(a) an arrest would not be wrongful if the arresting constable told the person
arrested that he was to be charged for one felony, say murder, notwithstanding that
the person was subsequently charged with another felony, say manslaughter, so
long as the arresting constable reasonably suspected that murder had been done;
(b) there was no need to explain the reason of arrest if the arrested person was
caught red-handed;
(c) nor when it was important to secure a possibly violent criminal;
(d) nor when a person was arrested and detained upon a stated charge of which the
person was reasonably suspected, with a view to further investigation of a second
charge.
A little later he said that "the principle" which was "the heart of the matter" was that
the arrested person was entitled to be told what was the act for which the arrest was
made (at 593).’
Exceptions in Christie v Leachinsky are still applicable despite LE(PR)A.
For example, see State of NSW v Delly [2007] NSWCA 303, Basten JA
stated:
‘The failure of the arresting officer to identify the grounds of the respondent’s
arrest must be tested against general law principles explained in Christie v
Leachinsky, it not being suggested that those principles have been abrogated
or modified by statue in this State.’
LEPRA S202-POLICE OFFICERS MUST PROVIDE REASON FOR
ARREST
Use of force
S231 LE(PR)A
Use of force in making an arrest
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Document Summary
When you exercise your power to arrest, you must comply with part 15 of lepra (safeguards). This requires you to provide the arrested person with the following: evidence you are a police officer (unless you are in uniform), your name and place of duty, and the reason for the arrest. You must do this as soon as it is reasonably practicable to do so. Need to provide evidence that the person was a police officer. Must provide with their names, place of duties, why the obligation was. Must tell the person the reason for the exercise of power. Section 202(1) commences a police officer who exercises a power to which this part applies must provide the following to the person subject to the exercise of this power:". Law enforcement (powers and responsibilities) act 2002 - This part applies (subject to subsection (3)) to the exercise of any such power whether or not the power is conferred by this act.
