The laws on arrest and detention are regarded by the courts as fundamental to the rights of any individual. All people must be free from having their liberty restrained for unlawful purposes or by improper procedures. The right to personal liberty is regarded by the courts as the most elementary and important of all common law rights. 

What is an arrest?

An arrest consists of the seizure or the touching of a person's body with a view to his or her restraint. Words may amount to an arrest if they are calculated to bring to the person’s notice and do bring to the person’s notice that he or she is under a compulsion to accompany the police officer and he or she submits to the arrest. 

Effect of an arrest

The major effect of an arrest, beside the restraint of the person's liberty, is that it starts the legal process that puts the person before a justice to be dealt with according to the law. This means that the person charged will appear before a court to answer the charge that the police have laid against him. 

Bail

In NSW, if a person is charged with an offence, he has the right to have a decision made by a court or authorised police officer with regard to bail. This is a right that is given to every citizen by the Bail Act (NSW). If the authorised police officer (being at least a sergeant or the officer in charge of the Police Station at the time) refuses bail on the citizen then the citizen has a right to be brought before the next available court to have a bail decision made by the court. If the court refuses bail on the person then the court can only adjourn the matter for a period greater than eight (8) days with the consent of the accused person. This is to ensure that the person's rights to liberty are reviewed by the courts.

The criteria to be considered for bail is contained within the Bail Act. The criteria in the Act is the only criteria that is to be followed. The criteria is the same for an authorised police officer as it is for a court.

If bail is granted it can be granted either conditionally or unconditionally. If there are any conditions placed upon the bail given to a person then the authorised officer or court must state the reasons why such conditions were imposed upon the person.

Any bail granted is for a specific period. The court or authorised officer must indicate the date and place that the person is to attend the court. The court will then need to decide whether the bail should be continued, dispensed with, changed or refused. 

Court

In NSW the police do NOT determine if a person is guilty or not guilty of a charge. This decision is left to the courts to determine. When a person appears in front of a court they will be asked by the magistrate how they plead to the offence. If they plead guilty then the court will go directly to the sentencing procedures. The police will furnish the court with a "statement of facts" setting out the circumstances of the offence and also a copy of the persons criminal and/or traffic record. The court will listen to any mitigating factors from the defendant or their legal representative and then impose a penalty.

If the person pleads Not Guilty, then the matter will need to be adjourned over to a day when all the witnesses can attend the court. The court will then hear the evidence in the matter and will be required to make a determination based upon those facts applying the relevant law. In criminal matters the Crown bears the onus of proof and must prove its case "Beyond Reasonable Doubt" otherwise the court must dismiss the charge. If the person is found guilty then the court will then proceed to the sentencing procedures.

Everyone has a right to instruct a solicitor or barrister to act on their behalf in matters brought before a court. 

LAW OF ARREST 

An arrest consists of the seizure or the touching of a person's body with a view to their restraint. Words may amount to an arrest if, in the circumstances of the case, they are calculated to bring, and do bring, to a person's attention that he is under compulsion to accompany the police officer and he thereafter submits to that arrest. 

Elements of a Lawful Arrest

Arrest is defined by legislation. It is also defined “at common law” which means through court decisions. To be a lawful arrest, if it is an arrest without a warrant, the following criteria must be met:

• that the person arrested has committed or is committing an offence;
• that the person effecting the arrest notifies the person arrested as to the fact of the arrest;
• that the person effecting the arrest tells the person arrested the reason for the arrest.

An arrest may be effected by the mere touching of the person arrested. For example, if a constable touches a person and tells him he is under arrest, then this is sufficient for a valid arrest. If that person then resists or attempts to escape, then he would be committing the offence of Resisting an Officer in the Execution of his Duty or Escaping Lawful Custody. 

Sources of Law of Arrest

Police have powers of arrest at both common law and in Statute Law. Civilians have a restricted power of arrest which is based on Statute Law. 

Statute Law Power of Arrest

The main power of arrest is created in section 352 of the Crimes Act NSW. This section gives both police and civilians the power of arrest. A police officer or civilian can arrest without a warrant, any person who is in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on a summary conviction, under an Act, and any person who has committed a felony for which the person has not been tried.

A Police officer has a further power of arrest under that section. A Police Officer can also arrest without warrant a person whom the constable, with reasonable grounds, suspects of having committed any such offence or crime. A constable can arrest any person lying, or loitering in any highway, yard or other place during the night, whom the constable, with reasonable grounds, suspects of being about to commit any felony.

The Crimes Act also gives the police the power to arrest people for whom a justice has issued a warrant, to arrest prisoners who are unlawfully at large and for some offences that were committed in another state.

Other Acts, such as the Road Transport (Traffic Safety and Management) Act, also provide for powers of Arrest. The Road Transport (Traffic Safety and Management) Act provides a power of arrest for a person who fails a breath test at the side of the road so that the constable can take that person to the nearest police station for the purpose of a breath analysis. 

Common Law Power of Arrest

The common law gives police the power to arrest persons in the following circumstances:

• persons who have committed a felony;
• persons who are causing a breach of the peace; and
• to prevent a breach of the peace.

An example of the powers in relation to a breach of the peace would be a person arrested inside a football ground for aggressive behaviour. The police can arrest such a person, escort them out of the ground and then release them, preventing a breach of the peace. 

Communicating the Reason for Arrest

The person effecting an arrest must notify the person arrested of the reason for the arrest. If the person arrested created a situation where it was not possible for the constable to tell him the reason for the arrest then this would not render the arrest unlawful. Police are confronted with situations where people attempt to flee or assault the police, and in such situations the conduct of the accused prevents the constable from being able to discharge that responsibility.

In those circumstances, Police are relieved of that obligation until they are able to restrain the accused.

Further, if a constable tells a person he is under arrest for an offence, the arrest does not become unlawful if the constable ends up charging the person with another offence. This is because Police are not lawyers and may not know the exact offence that the accused is to be charged with at the time of arrest, or the Police may come into additional information after the arrest has been effected. 

Duties of Persons Arrested

A citizen must submit to a lawful arrest. If he or she does not the citizen may commit an offence of Resisting a Police Officer in the Execution of his Duty or Assaulting a Police Officer if the resistance is in a violent manner. 

Evidence Act

The Evidence Act 1995 NSW expands the definition of arrest for the purpose of the admittance into evidence of an admission made by an accused person. Under the Act a person under arrest includes:

• where the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or
• where the official would not allow the person to leave if the person wished to do so; or
• where the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so. 

BAIL 

Once a person has been charged with a criminal offence they are entitled to apply for bail. When at the Police Station, the authorised officer will make the bail determination. An authorised officer is an officer of or above the rank of sergeant or the officer in charge of the police station at the time. If that officer refuses bail, then the accused must be brought before the next court for a bail determination to be made by the court. If the court refuses bail the accused can force the matter to be adjourned for a period of no longer than eight (8) days before the bail is reviewed again. The accused can also appeal to the Supreme Court for a bail review. In such an appeal, the Supreme Court can impose a bail on the accused that it thinks fit.

The law with regard to bail is to be found within the Bail Act (NSW). There are presumptions, either for or against bail. For minor matters there is a presumption for bail. This right to bail can be affected by the intoxication of the accused, if the accused has previously failed to appear before the court or the person stands convicted of the offence. Section 9 groups offences to which there is a presumption in favour of bail. With regard to Domestic Violence Offences this presumption in favour of bail is removed. With regard to these offences there is no presumption either in favour or against bail being granted. Section 8A of the Act creates a presumption against bail for major drug offences.

When an accused is charged with an offence he or she is entitled to be handed a Form 1 and a Form 2 by the police to notify them as to the entitlement to bail. Further, if the court or the authorised officer either refuses bail, or imposes a conditional bail, the authorised officer or court must state the reasons why unconditional bail was not granted in writing. This again is a safeguard to ensure that a person's freedom is not interfered with unduly.

The most important section of the Act is section 32 as it sets out the criteria that the court or authorised officer is to follow when making a bail determination. No other criteria can be considered other than what is in that section and the relevant presumption. Factors that can affect bail are the person's background, community ties, criminal record and previous failure to appear before the court. The circumstances of the offence include its nature and seriousness, severity of the penalty and MOST IMPORTANTLY whether the person will appear to answer the charge. 

COURT 

In NSW there is a hierarchy of courts. The courts are as follows:

• HIGH COURT
• COURT OF CRIMINAL APPEAL
• SUPREME COURT
• DISTRICT COURT
• LOCAL COURT

Local Court

Over 90% of all criminal matters are dealt with in the Local Court. The matters that are dealt with in the Local Court to finality come under three categories:

• summary charges;
• indictable charges that can be dealt with summarily without the consent of the accused (Table 2 matters); and
• indictable charges that can be dealt with summarily with the consent of the accused (Table 1 matters).

Summary Charges

A summary charge is a charge that can only be dealt with before a Local Court. With these charges there is no right for the accused to have the matter heard before a jury. The charge will be determined before a magistrate without jury who will decide all issues of both fact and law. Upon conviction of a summary charge there are avenues of appeal open to an accused. Such options include an appeal to the District Court on the basis that the accused is NOT GUILTY. The Judge in the District Court will then review the evidence to decide whether the accused is guilty of the offence appealed against or not. There is also a right of appeal to the District Court on the basis that the penalty imposed by the magistrate in the Local Court was too harsh. In these cases the Judge can review the case and either, increase the penalty, reduce the penalty or leave the penalty as imposed by the magistrate. On such appeals the Judge is restricted to the penalty that the magistrate could impose in the Local Court. 

Indictable charges

These are matters which were previously dealt with in the District Court as a trial before a jury. However, due to the costs of such trials the legislators passed legislation that these matters are to be dealt with as summary matters. These matters include offences such as assault, stealing and other property matters where the property value is under $5,000.00. A list of these offences is contained in Table 2 of the Criminal Procedure Act NSW. With these matters, only the prosecution can elect for the matter to be dealt with on indictment so that the accused will be sent to the District Court to face trial on those matters. If the matter is dealt with summarily, in the Local Court, then the maximum penalty the court can impose is reduced from what the penalty would be if the matter was dealt with in the District Court on indictment. A matter finalised in the Local Court can be appealed to the District Court in the same manner as a summary offence.

The Table 1 matters are also indictable matters. They are more serious than the matters in Table 2. Some of the offences are the same, for example, stealing. However, under Table 1 the limit of the Local Courts jurisdiction is $15,000.00. The offences in Table 1 are also listed in the Criminal Procedure Act. The penalties that can apply in the Local Court for offences that are listed in Table 1 are also restricted under the Criminal Procedure Act.

One important difference between Table 2 offences and Table 1 offences is that with Table 1 offences both the prosecution and the defence can elect for the matter to be dealt with on trial in the District Court. If that election is made, then the matter is dealt with as an indictable matter. 

Indictable Matters

Where an accused is charged with an indictable matter, or an election is made for a Table 1 or Table 2 matter the Local Court still has limited jurisdiction. Initially, when people are charged they will be brought before the Local Court. A bail determination may be required to be made by the court.

If the matter is a plea of guilty, then the magistrate will read the Police brief of evidence to ensure that there is sufficient evidence to have the accused committed to the District Court for sentencing.

If the matter is a plea of not guilty then the Local Court will set the matter down for a Committal Hearing. This is so the magistrate can assess the evidence of the Crown to ensure there is sufficient evidence to commit the accused to a trial in the District or Supreme Court. If the magistrate is of the opinion there is not sufficient evidence, he or she will then discharge the accused from the inquiry they have conducted and the accused is released. Note the magistrate cannot dismiss the charge in a committal and it is open to the police to recharge at a later date or apply for an ex officio indictment before the District Court. That is, the accused could end up facing a trial even if the magistrate discharges him or her from the committal hearing. 

District Court

The District Court, as indicated above, can deal with an appeal from the Local Court where the appeal is on the basis that the accused is Not Guilty or that the Penalty was too severe.

The District Court also conducts criminal trials on indictable charges after the committal proceedings in the Local Court have been finalised. In trials, the decision of guilt is determined by the jury. The Judge determines questions of Law and instructs the jury on the relevant law. If the accused is found guilty then the Judge also imposes a penalty upon the accused. 

Supreme Court

The Supreme Court also can do jury trials as the District Court can. However, in practice, trials in the Supreme Court are limited generally to murder trials and some other serious indictable offences.

The Supreme Court also can determine appeals from the Local Court on questions of Law or a mixed question of Law and fact. These appeals are heard before one Justice of the Court. On the hearing of such an appeal, the Justice can find that the magistrate was correct or that the magistrate was in error. If in error, then the Justice can quash a conviction, which means it is reversed and the accused is found not guilty, or may order the matter be remitted to the Local Court for further hearing. 

Court of Criminal Appeal

The Court of Criminal Appeal hears and determines appeals on questions of Law from the District and Supreme Courts. They also determine appeals on whether convictions in the lower courts are safe and satisfactory. The Court of Criminal Appeal usually has three Justices sitting on the bench when deciding an appeal but it can be as high as seven on special matters. 

High Court

The High Court can hear appeals from the Court of Criminal Appeal on a question of Law only. The High Court normally has three to seven Justices sitting on the bench when making a decision on appeal from the Court of Criminal Appeal. 

FURTHER INFORMATION

This information is provided by the firm of Ryan & Bosscher Lawyers who specialize in this area of law. They are located at Level 1, 255 Castlereagh Street Sydney 2000, or call them on (02) 9266 0708. 

Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become a leading Criminal Defence firm in New South Wales. We are committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.