Police Powers
The powers exercised by police in relation to members of our community come from primary (2) sources:
- The Law Enforcement (Powers and Responsibilities) Act (LEPRA),
- The ‘Common Law'.
Other Acts of Parliament both NSW and Commonwealth also allow the police to take certain action towards members of the community.
It is, of course, most important that police exercise those powers in a proper manner so that the freedoms that we as a community enjoy are maintained.
It is also vital that if a person has been charged with a criminal offence that the actions of the police, where necessary are held up to scrutiny so as to ensure the person's rights have not been infringed or that the case against that person is not compromised.
When can a police officer demand my name and address?
A police officer can request a person to provide his or her name and address if those details are unknown to the police officer and if the police officer believes on reasonable grounds that the person may be able to assist in the investigation of an alleged offence because the person was at or near the place where an alleged indictable offence occurred around the time when the offence occurred.
When can a police officer search me?
The police have no power at common law to search someone prior to arrest. However, under LEPRA they may stop and search anyone whom they reasonably suspect has something stolen anything or otherwise unlawfully obtained or anything used in an indictable offence.
Reasonable suspicion involves less than a belief but more than a mere possibility. There must be some factual basis for the suspicion.
A police officer has the power to stop and search a motor vehicle if he/she believes on reasonable grounds that the vehicle is being or may have been used in the commission of an indictable or firearms offence, or if the police officer believes on reasonable grounds that the vehicle contains drugs or anything used or intended to be used in the commission of such an offence, or if the police officer believes on reasonable grounds that there is a serious risk to public safety and the search might lessen that risk. A person who has been arrested may be searched under LEPRA.
When is a police officer lawfully entitled to arrest me?
The police must have reasonable grounds to believe that the person has or is in the act of committing an offence. An arrest for the purpose of investigating whether or not the person has committed a crime, or obtaining more evidence, is an illegal arrest.
When the police decide to arrest or charge someone they should so inform the person of that fact and the grounds of the arrest and caution the person that they do not have to answer any questions.
The power to arrest should only be exercised as a last resort where alternatives (such as issuing a summons or a court attendance notice) are impractical.
When can a police officer photograph or fingerprint me?
A police officer can take details necessary to identify a person in custody including fingerprints, palm prints and photographs for the purpose of identification of persons over 14.
Where an officer of or above the rank of sergeant has reasonable grounds for believing a medical examination will provide evidence, can request a doctor to examine a person in custody.
Under the Crimes (Forensic Procedures) Act (2000) police have been given wide powers to obtain forensic samples from members of the community during the course of investigating criminal offences.
Broadly speaking, there are (2) types of forensic samples:
(a) non intimate, and
(b) intimate.
Non-intimate forensic procedures include:
- examining, photographing, taking a swab or sample or cast or impression or measurement of part of the body other than the genitals, buttocks, or (in the case of a woman) the breasts,
- taking a sample of hair other than pubic hair,
- taking a sample of or from under a nail,
- taking a hand print, fingerprint, foot print, or toe print,
- intimate Forensic Procedures.
Intimate forensic procedures include:
- examining, photographing, taking a swab or sample from the genitals, buttocks or (in the case of a woman) breasts,
- taking a sample of blood, taking of a sample of saliva other than by buccal swab,
- taking a sample of pubic hair,
- taking a dental impression.
Intimate forensic procedures can only be carried by order of a magistrate or other authorised justice, after a hearing at which the suspect must normally be present.
Before making such an order, the magistrate must be satisfied of a number of relevant facts before an order is made regarding an intimate procedure.
Contact Sharon Ramsden on sramsden@marsdens.net.au or phone (02) 4626 5077.