A common question asked of lawyers, other than can you defend someone if they tell you they are guilty of a crime, is what is the extent of Police powers particularly in relation to arrest. A recent decision of the NSW Court of Appeal found that in the circumstances of that matter the Police Officer had not acted in accordance with the law and the plaintiff was compensated to the tune of $115,000.00.
The circumstances involved Lytha Owlstara driving to her home at Menangle Road, Douglas Park. She had been pursued for about 3kms by a Police car with its lights flashing and siren sounding when she turned and drove into her own driveway stopping the car in her garage. A Police Officer ran into the garage with his firearm drawn, and although there was conflicting evidence as to exactly what was said and done during 19 seconds which was not captured on the Police vehicle’s camera, it was not in dispute that the Police Officer drew his gun pointing it at Ms Owlstara’s chest and directing her to face the car whilst he handcuffed her hands behind her back and then directed her to leave the garage and sit on the ground in front of the Police car. She was later transported in handcuffs to Narellan Police Station where she was held in custody for six hours and charged with five offences before being released on bail. She pleaded guilty to four offences relating to driving an unregistered and uninsured vehicle on which motor vehicle tax had not been paid and failing to stop when directed. A further charge of resisting an Officer in the execution of his duty was withdrawn by the Police.
Ms Owlstara was unsuccessful initially before the District Court. Notably it took that Judge two years to hand down the decision. She was successful on Appeal on the basis that the Police Officer did not have reasonable grounds for concluding that it was necessary to “arrest Ms Owlstara to either prevent fabrication of evidence of the offences of which she was suspected or to prevent a continuation or repetition of her offending”. The Court reasoned that the offending had ceased and that arresting and releasing her on bail was unlikely to prevent her from reoffending.
The take away is that whilst Police Officers do have wide coercive powers those powers must be exercised lawfully and at least in this case they were not resulting in a successful claim for compensation.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
