THE MILLION DOLLAR QUESTION
What powers do the police have? Can I be searched? What if police want to speak to me in relation to a criminal matter? These are questions which we, as criminal defence lawyers, are often asked when a client, family member or friend is curious about their rights under the law. As a democratic nation which upholds legal principles such as “the presumption of innocence” and “due process of criminal proceedings”, the police, in their exercise of power, are duty bound and restricted from undertaking certain actions which are deemed to be unlawful in the eyes of the law.
WHERE DO POLICE GAIN THEIR AUTHORITY?
In New South Wales, police are contained within the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’). Under LEPRA, police have the power to undertake lawful actions in the course of carrying out their duties.
The most commonly identified powers include, but are not limited to:
- Section 10: The power to arrest or detain;
- Section 19: The power to request your identity;
- Section 21: The power to search, seize and detain without a warrant;
- Section 31: The power to conduct strip searches;
- Section 36: The power to search vehicles without a warrant;
- Section 87: The power to enter and search dwellings (such as your home) without a warrant; and
- Section 138F: The power to require a person to provide a breath analysis for the presence of alcohol.
Although there are many other powers which police are lawfully able to exercise, LEPRA also sets a variety of restrictions which are intended to protect the rights and liberties of the general public, and of course, those suspected of a criminal offence.
WHAT ARE YOUR RIGHTS?
According to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), individuals who are suspected of a criminal offence are entitled to law–given rights and protections which are derived from the principles referred to in our introductory paragraph. The “presumption of innocence” is an ancient common law right which affords every person the benefit of being innocent until proven guilty. Should allegations be made against you, regardless of formal charges or indeed any evidence, a court of law will only determine your guilt if the prosecution satisfies each element of the criminal offence beyond a reasonable doubt (Leach v The Queen). Similarly, the right to “due process of criminal proceedings” ensures that the police and/or the prosecution, make their case in accordance with principles of justice, fairness and the rules of evidence. It is for these reasons that LEPRA contains provisions which limit and (in some cases) criminalise actions by police where there is a misuse of power.
To give you a general understanding of your rights under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), it is important that you refer to the following provisions (please keep in mind that the comments attached to the below listed provisions are intended to provide our readers with a general understanding of the law and does not constitute professional legal advice):
- Section 99: Police may arrest you without a warrant if they suspect on reasonable grounds for any of the following;
- to stop a person committing or repeating an offence or committing another offence;
- to stop a person fleeing from a police officer or from the location of the offence;
- to ensure that a person appears before a court in relation to the offence;
- to obtain property in the possession of a person that is connected with the offence; and/or
- to protect the safety or welfare of any person (including the person arrested).
- Section 201: If you are arrested, police must state the reason for your arrest and should provide you with;
- Evidence that they are a duly sworn police officer (unless they are in uniform);
- Their name and place of duty (Local Area Command); and
- The reason for your arrest
- Section 230 and 231: Police can only use reasonable force as reasonably necessary to exercise an arrest or detention, should police exceed “reasonable force” the law may treat the police officer’s conduct as an assault on the arrested person;
- Section 31: If police decide to conduct a strip search, the need for the strip search must be necessary, urgent and serious, if you are concerned about the legality of a strip search, contact our team immediately;
- Section 139: Police must caution an arrested person before commencing any form of questioning. Should you be cautioned and answer any questions of police, they may later be used against you in any criminal proceedings. If a caution was not given, any evidence of a statement made during the questioning is taken to be improperly obtained and may be inadmissible in court. As a general rule, if you have been arrested and cautioned for an alleged crime, it is advisable not to answer questioning and that you make a formal request for a lawyer immediately; and
- Section 115(2): Police can only detain a person for investigation for a period of up to 6 hours. Should police obtain a detention warrant, this period may be extended under section 118.
CASE STUDY: SEARCH DEEMED ‘UNLAWFUL’; CHARGES WITHDRAWN AND COSTS AWARDED
Our Blacktown Criminal Defence Lawyers often appear on behalf of clients who have been searched, arrested and charged in circumstances which would be deemed unlawful in the eyes of the law. For example, our Specialist Criminal Lawyers at National Criminal Lawyers® recently secured a withdrawal of charges due to the unlawful nature of a search conducted by police.
The search, which found our client to be in possession of a box cutting knife, was discovered after our client was walking down Kildare Road in a black hoodie late at night. After viewing the police BWV (body worn video), our team at National Criminal Lawyers® formed the view that the basis for the search and the subsequent arrest did not comply with section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). This provision states, any search undertaken without a warrant must only be carried out if police possess a suspicion based on reasonable grounds. In order to gauge what a “reasonable suspicion based on reasonable grounds” might be in any circumstance, Smart AJ’s judgment in R v Rondo  NSWCCA 540, at paragraph 53 states:
‘(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 […]. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence’.
During the viewing of the BWV, police can be heard questioning our client in relation to his purpose walking down Kildare Road at that time of night. Our client, who had experienced negative interactions with NSW police in the past, became visibly nervous and started shaking. Police could then be heard asking “do you have any prohibited drugs on you?” to which our client denied. After police decided to conduct a search of our client, the box cutting knife was discovered in our client’s hoody pocket.
Our client was subsequently cautioned and conveyed to Blacktown Police Station where he refused to participate in a police interview and was charged under section 11C of the Summary Offences Act 1988 (NSW).
Maximum penalty: 20 penalty units or imprisonment for 2 years, or both.
(2) Without limitation, it is a reasonable excuse for the purposes of this section for a person to have custody of a knife, if:
(a) the custody is reasonably necessary in all the circumstances for any of the following:
(i) the lawful pursuit of the person’s occupation, education or training,
(ii) the preparation or consumption of food or drink,
(iii) participation in a lawful entertainment, recreation or sport,
(iv) the exhibition of knives for retail or other trade purposes,
(v) an organised exhibition by knife collectors,
(vi) the wearing of an official uniform,
(vii) genuine religious purposes, or
(b) the custody is reasonably necessary in all the circumstances during travel to or from or incidental to an activity referred to in paragraph (a), or
(c) the custody is of a kind prescribed by the regulations.
(3) However, it is not a reasonable excuse for the purposes of this section for a person to have custody of a knife solely for the purpose of self defence or the defence of another person.
Shortly after being released on police bail, our client contacted Kyrillos Rizkalla, one of our experienced Criminal Defence Lawyers. After looking at the evidence and attending court, Kyrillos made strenuous submissions that the search did not show “suspicion based on reasonable grounds” which could warrant the search of our client at the time of his arrest. After hearing further evidence of our client’s past troubles with police, evidencing his nervous demeanour at the time of his search and arrest, the Magistrate accepted our submissions and reprimanded the prosecution for being unable to substantiate a factual basis for the suspicion to search our client (Azar v DPP  NSWSC 132). As the search and the evidence gathered from it was deemed to be inadmissible, the police could no longer rely on the search to prove our client was in possession of the box cutter knife.
In addition, police did not have any additional evidence to satisfy our clients alleged criminality. The prosecutor therefore had no choice but to withdraw the charge laid against our client. In order to offer our client some much needed recompense for the expenses involved in defending the criminal charge, as well as the mental toll incurred with being involved in the criminal justice process, Kyrillos also made a successful costs application pursuant to section 213 the Criminal Procedure Act 1986 (NSW).
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