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Police P:Owers, of Arre'stand D'etentton If you have issues viewing or accessing this file contact us at NCJRS.gov. 6 ~~B~ri NEW SOUTH WALES ,•• ,., ..... :.~ LAW REFORM COMMISSION ........., '" ••II.~ CRIMINAL PROCEDURE I',f • " - ' I POLICE P:OWERS, OF ARRE'STAND D'ETENTTON . ;~. -, ~ .... ,t. A DISCUSSION P.APER FOR COMMUNITY CONSULTATION DP 16 1987 1307 s-Lf NEW SOUTH WALES LAW REFORM COMMISSION CRIMINAL PROCEDURE j \ POLICE POW~RS OF ARREST ANtDETENTION DISCUSSION PAPER 130754 u.s. Department oi Justice National Institute of Justice This document has been reproduced exactly as received from the person or organization originating iI. Points of view or opinions stated In this document are those of the authors and do not necessarily represent the oHiclal position or policies of the National Institute of Justice. Permission to reproduce this copyrighted material has been granted by New South Wales Law Refonn DP 16 Conmission August 1987 to the Natlonat Criminal Justice Aeference Service (NCJAS). Further reproduction outside of the NCJRS system requiles permis­ sion of the copyright owner. 70820-20~90-1 New South Wales Law Reform Commission Sydney 1987 ISSN 0818-7924 National Library of Australia Cataloguing-in-Publication entry New South Wales. Law Reform Commission. Criminal procedure. Police powers of arrest and detention. Bi bli og raphy. ISBN 0 7305 4456 7. 1. Arrest - New South Wales. 2. Criminal procedure - New South Wales. 3. Police power ~ New South Wales. 1. Title. II. Ti tIe: Police powers of arrest and detent ion. (Series: Discussion paper (New South Wales. Law Reform Commission); 16). 345.944'0527 ,', iii. Part.icipants For the purpose of this project under the Criminal Procedure reference the following members of the Commission have acted as a Division of the Commission: Paul Byrne (in charge of this reference) Greg James QC The Honourable Justice Jane Mathews Ronald Sackville The Honourable Mr Justice J R T Wood Research Director: Wi lliam J Tearle Research: Mr Robert Pelletier Mr Kimber Swan Secretary: Mr John McMillan Word Processing: Mrs Margaret Edenborough Mrs Nozveen Khan Librarian: Ms Beverley Caska Administrative Assistance: Ms Zoya Howes Ms Diane Wood v. Terms of Reference On 17 January 1982, the Attorney General of New South Wales, the Honourable F J Walker QC, MP, made the following reference to the Commission: To inquire into and review the law and practice relating to criminal procedure, the conduct of criminal proceedings and matters incidental thereto; and in particular, without affecting the generality of the foregoing, to consider - (a) the means of instituting criminal proceedings; (b) the role and conduct of committal proceedings; (c) pre-trial procedures in criminal proceedings; (d) trial procedures in matters dealt \-/i th summarily or on indictment; (e) practices and procedures relating to juries in criminal proceedings; (f) procedures followed in the sentencing of convicted persons; (g) appeals in criminal proceedings; (h) the classification of criminal off~nces; (i) the desirability and feasibility of codifying the law relating to criminal procedure. vii. Preface The Commission was asked by the Attorney General, the Honourable Terry Sheahan BA, LLB, MP, to give priority under its current reference on criminal procedure to a review of the law relating to police powers of arrest and detention Following a preliminary review of the issues involved, the Ccmmission published a short consultative document which invi ted submissi-:..ns on the matters under consideration.. The response to this document was most encouraging and this has been particularly helpful in the preparation of this Discussinn Paper. No other issue which we have considered under the Criminal Procedure reference has generated more interest. The Commission wishes to formally record its appreciation to those people who are acknowledged in the following pages. Among many who deserve special mention, I would like to thank John Kable, barrister and solicitor of the Supreme Court of Tasmania, for his generous assistance with this project. At an early stage of its work on this project, the Commission determined that before reporting to the Attorney General with specific recommendations, it should publish a Discussion Paper containing tentative proposals for reform so as to gi ve those people interested the opportunity to comment on our proposals and to allow a period for public debate of the issues canvassed by this Paper. It was also decided that this work should cover not only the central question of police powers of arrest, but also those matters which are, for practical purposes, inseparable from it. The proposals in Chapter 4 are accordingly submitted for consideration and comment. Paul Byrne August 1987 ix. Acknowledgments The Commission would like to thank the following for the assistance, suggestions and comments they provided in the course of preparing this Discussion Paper and for their response to the consultative document: D B Armati, Magistrate W R Atktnson John K Avery, Commissioner of Police R 0 Blanch QC, Director of Public Prosecutions R J Blissett QPM C J Bone, Magistrate The Honourable Sir Gerard Brennan KBE The Honourable Mr Justice J P Bryson Sir M H Byers eBE, QC D Cluff, Chief Inspector of Police E J Considine, Magistrate The Council for Civil Liberties (NSW) G J Cusack, Public Defender K C Dale, Magistrate T S Davidson QC, President, Mental Health Review Tribunal W G Dawe, Crown Prosecutor The Honourable Sir Daryl Dawson KBE His Honour Judge Denton QC K Drew, Superintendent of Police His Honour Judge Ducker His Honour Judge Dunford QC S A Flood, Public Defender T Game The Honourable Justice Mary Gaudron Sir Harry Gibbs GCMG, AC, KBE Sergeant D Gilligan C A Gilmore, Magistrate Geoffrey Graham, Public Defender Malcolm Gray QC, Crown Advocate Sergeant G Greerr W H Gregory DSC QC, Senior Crown Pro~ecutor R V Gyles QC, President, NSW Bar Association Howard Hami lton K G Hammond, Magistrate Sergeant W Harran N A Harrison, Crown Prosecutor Anne Healey Terrence M Healey G M Henderson, Crown Prosecutor P J Hidden QC, Deputy Senior Public Defender Michael Hogan J E S Hooke, Solicitor K Horler QC His Honour Judge W D Hosking QC R N Howie QC, Deputy Director of Public Prosecutions T R Hoyle, Crown Prosecutor The Honourable Mr .Justice D A Hunt Sergeant C Ireland x. R W Job QC, Chairman, State Drugs Crime Commission H J Kable (Tasmania) T J Kelly, Senior Deputy Director, Legal Aid Commission The Honourable Justice Michael Kirby CMG His Honour Judge E P Knoblanche QC D M Lenihan Helen L'Orange, Director, Women's Co-ordination Unit The Law Society of New South Wales The Honourable Mr Justice J A Lee Legal Aid Commission of New South Wales The Honourable Mr Justice D L Mahoney M Manetta (South Australia) John Marsden, Solicitor T J Martin QC The Honourable Sir Anthony Mason KBE C K Maxwell, Crown Prosecutor W P Meehan, Magistrate Andrew Menzies OBE The Honourable Mr Justice J A Miles His Honour Judge Nash National Crime Authority Barry Newport QC, Deputy Senior Crown Prosecutor John Nicholson, Public Defender Stephen Norrish,Public Defender TAW Nyman, Solicitor N O'Neill Office of the Solicitor for'Public Prosecutions John Parnell, Magistrate W B Power, Magistrate Terence Purcell, Director, NSW Law Foundation H F Purnell AM QC A S Reason, Magistrate Mark Richardson, Legal Aid Commission Brian Roach, Crown Prosecutor Ms L Rogers, Legal Aid Commission G J L Scragg J L Seberry, Magistrate His Honour Judge Shillington QC M L Sides, Public Defender His Honour Judge Sinclair QC The Honourable Mr Justice D G Stewart The Honourable Sir Laurence Street KCMG Sergeant L W Taylor MAG Tedeschi, Crown Prosecutor W C Terracini, Public Defender D R Thompson, Crown Prosecutor His Honour Judge Thorley Justice John Toohey AO K M Waller, Magistrate The Honourable Mr Justice Ray Watson Meredith Wilkie J S Williams, Magistrate John Willis (Victoria) Dr G Woods QC L Yeomans George Zdenkowski xi. The Commission invites submissions on the issues raised in this Discussion Paper. Submissions and comments should reach us by 20 November 1987 when it is intended that the Commission will begin the preparation of the final Report to the Attorney General on the issues raised in this Discussion Paper. All inquiries and comments should be directed to: Mr John McMillan Secretary NSW Law Reform Commission GPO Box 6 SYDNEY NSW 2001 xiii. Table of Contents Para Page Participants in this Report iii Terms of Reference v Preface vii Acknowledgments ix Summary of Tentative Proposals xix Chapter 1: THE NEED FOR REFORM Footnotes 18 Chapter 2: THE CURRENT LAW IN NEW SOUTH WALES I. Introduction 2.1 21 II. The Power of Arrest 2.6 23 A. Arrest Without Warrant: Common Law Powers 2.6 23 B. Arrest Without Warrant: Statutory Powers 2.10 24 C. The Distinction Betwe~n Felonies and Misdemeanours 2.14 28 D. The Requirement of a "Reasonable Suspicion" 2.15 28 E. Arrest Under Warrant: Common Law Powers 2.17 29 F. Arrest Under Warrant: Statutory Provisions for Indictable Offences 2.21 31 G. Arrest Under Warrant: Statutory Provisions for Summary Offences 2.22 32 H. The Act of Arrest 2.23 32 I. Communication of the Fact of Arrest 2.24 33 J. Notification of the Reason for Arrest 2.25 33 xi v. Para Page K. The Use of Force in Effecting an Arrest 2.26 34 L. Entry into Premises to Effect Arrest 2.29 36 III. Police Powers of Search and Seizure Without Warrant 2.:31 37 A. Common Law Powers 2.31 37 B. Statutory Powers 2.33 38 C. Personal Searches 2.35 39 D. Power to Take Fingerprints 2.37 41 E. Power to Take Photographs 2.38 41 IV. Powers in Relation to People Who Have Not Been Arrested 2.39 42 A.
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