YOUR RIGHTS WHEN UNDER ARREST The laws regarding arrest are governed mostly by common law and are not extensively written in statute. Arrest is regarded as very serious, as it is the lawful removal of liberty. Liberty and freedom of movement are fundamental human and common law rights, and to be lawfully removed requires strict adherence to the law. Courts take any deviation from lawful arrest by police or any other person very seriously, and when an unlawful arrest has occurred it can often destroy a police case. WHO CAN PERFORM AN ARREST? In all states, any person can arrest any other person where they are found committing an arrest. To be found committing an offence, a person needs to be caught in the act or found in circumstances that a reasonable person would conclude that an offense has just taken place. Eg: a person who is found standing over a body, holding a bloodied knife, would lead a reasonable person to conclude that a stabbing has just taken place and the person holding the knife had committed it. Police have extended powers to arrest on a reasonable belief that a crime has been committed, is about to be committed or that the person knows something about an *indictable* offense (such as assault or murder). While the every-day Joe is restricted to finds committing police can find reasonable belief through investigation. Note that belief and suspicion are two different things, belief being an assentation of thought toward a conclusion, and suspicion being a mere entertainment of a proposition that is pure conjecture: see George v Rockett (1990) 170 CLR 104. WHEN CAN AN ARREST BE PERFORMED? Universally, the goal of an arrest is to bring a person before a court. Other reasons for justifying an arrest is to protect public order, to protect the safety of others or to protect the safety of the person. Police cannot arrest someone simply for the purposes of questioning: Foster v The Queen (1993) ALR 1 8. An arrest with a warrant only requires a reasonable belief that the arrestee is the person named on the warrant. However, a nameless warrant is not a licence for police to enter a premises and arrest anyone they please: Wilkes v Wood (1763) 98 ER 489; Huckle v Money (1763) 95 ER 768. An arrest warrant and a search and seizure warrant are also two different things. The latter authorises the police to enter a premises, while the latter does not. Unless an arrest warrant is attached to a search warrant, police cannot enter a home. WHAT CONSTITUTES A LAWFUL ARREST? For an arrest to be lawful, 4 elements need to be fulfilled. If only 3 or less elements are fulfilled, they arrest will be unlawful and the arrestee is entitled to escape, and to use force: Coleman v Power (2004) 220 CLR 1. These elements are: - The arrester must hold a reasonable belief. - The arrestee must be informed they are under arrest. - There must be physical contact between the arrestee and arrester. - The person must understand why they are under arrest. Physical contact does not need to be anything more than a light touch. The force used must not be disproportionate to the goal of effecting an arrest. For example: even though theft is an indictable offense, police are in no way within their rights to clobber a thief over the head with their baton when the thief is not posing a threat and is otherwise being co-operative. There is no need for any technical language when informing a person why they are under arrest; a simple statement of youre under arrest for bashing that guy is enough. But police *must* give the person the reason why, especially when requested. Because Im a cop is certainly not good enough. The person understanding why they are under arrest is a very important one. If the arrestee is deaf, for example, the police must communicate to the person why they are under arrest in a way they would understand. The same goes for someone who does not speak English. If someone is mentally handicapped, police must also communicate the arrest and the reason why in a way they would understand. Failure to do so will make an arrest unlawful.
Posted on: Mon, 22 Dec 2014 08:17:33 +0000
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