LAWS1021 EXAM Notes PDF

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LAWS1021 EXAM NOTES Problem Question and Legislation • First question is a problem question that requires you to provide legal advice in relation to a factual scenario. This question is designed to test your knowledge of substantive offences and police powers

SECTION 21: SEARCH AND SEIZURE WITHOUT A WARRANT (LEPRA) Under s21 LEPRA, police may lawfully search a person without a warrant if the following circumstances exist: 1.

Reasonable Suspicion (s21(1)) (1) A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists: (a) the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained, (b) the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence, (c) the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence, (d) the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985 , a prohibited plant or a prohibited drug. R v Rondo for common law guidance on reasonable suspicion Darby v DPP [2004]: dogs actions arouse reasonable suspicion for police to search someone under s21 LEPRA 2.

Items to seize and detain if found (s21(2)) (2) A police officer may seize and detain: (a) all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and (b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and (c) any dangerous article, and (d) any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985 , found as a result of a search under this section.

OTHER SEARCH AND SEIZURE PROVISIONS S21A (1) In conducting a search of a person under section 21, a police officer may, if the police officer suspects on reasonable grounds that a thing referred to in section 21 (1) (a), (b), (c) or (d) is concealed in the person's mouth or hair, require the person: (a) to open his or her mouth to enable it to be searched, or (b) to shake, or otherwise move, his or her hair. (2) Subsection (1) does not authorise a police officer to forcibly open a person's mouth. (3) A person must not, without reasonable excuse, fail or refuse to comply with a requirement made by a police officer in accordance with this section. Maximum penalty: 5 penalty units. S22: Power to Seize and Detain Dangerous Articles on Premises A police officer who is lawfully on any premises may seize and detain any dangerous article that the police officer finds on the premises, if the police officer suspects on reasonable grounds that the dangerous article is being or was used in or in connection with the commission of a relevant offence. Note : Premises include vessels, vehicles, aircraft and other places. S23: Power to search persons for dangerous implements without warrant in public places and schools (1) A police officer may, without a warrant, stop, search and detain a person who is in a public place or a school, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that the person has a dangerous implement unlawfully in the person's possession or under the person's control.

Under s21(1) LEPRA, police may lawful search, search and detain a person without a warrant, and anything in possession if police officer suspects on reasonable grounds person has in possession: Anything stolen or unlawfully obtained Anything used or intended to be used in connection with commission of offence Dangerous article in public place used in connection with commission of relevant offence Prohibited plant or drug S21(2) LEPRA- items can be seized if found

(2) To avoid doubt, if the person is in a school and is a student at the school, the police officer may also search the person's locker at the school and examine any bag or other personal effect that is inside the locker. (3) For the purposes of this section, the fact that a person is present in a location with a high incidence of violent crime may be taken into account in determining whether there are reasonable grounds to suspect that the person has a dangerous implement in the person's possession or under the person's control. (4) In conducting a search of a student in a school under this section, a police officer must, if reasonably possible to do so, allow the student to nominate an adult who is on the school premises to be present during the search. (5) A police officer may seize and detain anything found as a result of a search under this section that the police officer has reasonable grounds to suspect is a dangerous implement that is unlawfully in the person's possession or under the person's control. (6) For the purposes of this section: (a) "locker" includes any facility for the storage of a student's personal effects, and (b) anything inside a person's locker is taken to be under the control of the person.

SECTION 99: POWER OF POLICE TO ARREST WITHOUT A WARRANT (LEPRA) Pursuant to s99 of LEPRA, police officers may arrest an individual without a warrant. For the arrest to be lawful, it must satisfy the two-stage test: 1.

Reasonable Suspicion (s99(1)(a)) o The police officer suspects on reasonable grounds that the person is committing or has committed an offence o According to R v Rondo, reasonable suspicion involves: § ‘less than a belief but more than a possibility’ – must be something which would create an apprehension of fear in the mind of a reasonable person. Reasonable suspicion must not be arbitrary. Some factual basis must be shown § Reasonable in the mind of the arresting officer – an objective test but also subjective as it applies to individual person in scenario. Need to have regard for information in police officers mind considered against surrounding circumstances 2. Arrest must be reasonably necessary s99(1)(b) o The arrest must be reasonably necessary, whereby the officer is satisfied on one or more of the following reasons: (i) to stop the person committing or repeating the offence or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false, (iv) to ensure that the person appears before a court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested), (ix) because of the nature and seriousness of the offence. Other Factors • S99(2): A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant. • S99(3): A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law. o Note : The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer--see section 105. • S99(4): A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part. • S99(5): This section does not authorise a person to be arrested for an offence for which the person has already been tried. • S99(6): For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5. Other Conditions • Arrest as a last resort (DPP V Carr) • Convenience and expediency not grounds for arrest (DPP V Carr) • Investigation and questioning are not grounds for arrest (R v McLean)

Two conditions for arrest without a warrant to be lawful 1. Reasonable suspicion, person committed or has committed offence under s99(1)(a) LEPRA (R v Rondo) 2. Arrest reasonably necessary and satisfies one of the reasons under s99(1)(b) a. Arrest last resort (DPP v Carr) b. Convenience and expediency not grounds for arrest (DPP V Carr) c. Investigation and questioning not grounds (R v McLean)

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Police must tell the suspect that they are under arrest (R v Inwood [1973]) Police must tell the suspect the reason for the arrest (Christie v Leachinsky [1947])

SEARCH OF PERSONS ON ARREST OR WHILE IN CUSTODY (LEPRA) S27: Power to Carry Out Search on Arrest (1) Where the individual is arrested for an offence or under a warrant under s27 LEPRA, a police officer may lawfully search the individual if there is suspicion on reasonable grounds that the person is carrying anything: (a) that would present a danger to a person, or (b) that could be used to assist a person to escape from lawful custody, or (c) that is a thing with respect to which an offence has been committed, or (d) that is a thing that will provide evidence of the commission of an offence, or (e) that was used, or is intended to be used, in or in connection with the commission of an offence. (2) A police officer who arrests a person for the purpose of taking the person into lawful custody, or who is present at the arrest, may search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything: (a) that would present a danger to a person, or (b) that could be used to assist a person to escape from lawful custody. (3) A police officer may seize and detain a thing found in a search if it is a thing of a kind referred to in subsection (1) or (2). (4) Nothing in this section limits section 28A. S28: Ancillary Power to Search Persons (1) In conducting a search of a person under section 27, a police officermay, if the police officer suspects on reasonable grounds that a thing of a kind referred to in section 27 (1) or (2) is concealed in the person's mouth or hair, require the person: (a) to open his or her mouth to enable it to be searched, or (b) to shake, or otherwise move, his or her hair. (2) Subsection (1) does not authorise a police officer to forcibly open a person's mouth. (3) A person must not, without reasonable excuse, fail or refuse to comply with a requirement made by a police officer in accordance with this section. Maximum penalty: 5 penalty units.

Where individual is arrested for offence or under warrant under s27 LEPRA, police may lawfully search individual if suspicion on reasonable grounds that person caring anything that: Present danger to person Assist person escape lawful custody Thing with respect to offence committed Thing that will provide evidence for commission of offence Used or intended to use or in connection with commission of offence S27(3): police offer can seize and detain anything found in search

S28A: Power to carry out search of person in lawful custody after arrest (1) A police officer may search a person who is in lawful custody after arrest and seize and detain anything found on that search. (2) Any such search may be carried out at a police station or other place of detention or immediately before or during transportation of the person to or from a police station or other place of detention.

DRUG DETECTION DOGS (LEPRA) S146: General Authority to Use Drug Detection Dogs (1) If a police officer is authorised to search a person for the purpose of detecting a drug offence, the officer is entitled to use a dog for that purpose. (2) A police officer is, for the purpose of detecting a drug offence, entitled to be accompanied by a dog under the officer's control if the officer is entitled to enter, or be in or on, particular premises in the exercise of the officer's functions. (3) Neither the State nor a police officer is liable to any action, liability, claim or demand merely because a dog entered, or was in or on, premises as provided by this section. S147: Use of Dogs for General Drug Detection Authorised A police officer is authorised to use a dog to carry out general drug detection, but only as provided by this Division. S148: General Drug Detection with Dogs in Authorised Places (1) A police officer may, without a warrant, use a dog to carry out general drug detection in relation to the following persons: (a) persons at, or seeking to enter or leave, any part of premises being used for the consumption of liquor that is sold at the premises (other than any part of premises being used primarily as a restaurant or other dining place),

S148 LEPRA: Police officer may use dog to carry out general drug detection without a warrant if satisfies one of these conditions: • Premise used for liquor consumption • Sporting event, concert, artistic performance, dance party, parade or other entertainment • Public passenger vehicle travelling on route (e.g. train, light rail, bus) Premise of Tattoo Parlour •

(b) persons at, or seeking to enter or leave, a public place at which a sporting event, concert or other artistic performance, dance party, parade or other entertainment is being held, (c) persons on, or seeking to enter or leave, a public passenger vehicle that is travelling on a route prescribed by the regulations, or a station, platform or stopping place on any such route, (d) persons at, or seeking to enter or leave, any part of premises that the officer is authorised to enter under the Tattoo Parlours Act 2012 to carry out general drug detection using a dog, (e) persons at any public place in the Kings Cross precinct (being the area including and bounded by the parts of streets specified in Schedule 2 to the Liquor Act 2007 ). (2) In this section: "public passenger vehicle" means a train, light rail vehicle or bus that is used to provide a public passenger service. (3) A reference in this section to Schedule 2 to the Liquor Act 2007 is a reference to that Schedule as in force on the commencement of this subsection. S149: General Drug Detection with Dogs by Warrant (1) A police officer may use a dog to carry out general drug detection if authorised to do so by a warrant under this section. (2) A police officer who has reasonable grounds for believing that the persons at any public place may include persons committing drug offences may apply to an authorised officer for a warrant under this section. (3) An authorised officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a warrant authorising any police officer to use a dog to carry out general drug detection in the public place during the period or periods specified in the warrant. (4) An application for a warrant under this section must disclose whether any general drug detection to be carried out under the warrant will be part of a covert police operation. S150: Provisions Relating to General Drug Detection (1) A police officer carrying out general drug detection under this Division is to take all reasonable precautions to prevent the dog touching a person. (2) A police officer is required to keep a dog under control when the officer is using the dog to carry out general drug detection under this Division. (3) General drug detection under this Division may be carried out as part of a covert police operation, but only if it is authorised by a warrant under this Division. (4) The provisions of this Division do not affect: (a) the search of a person whom a police officer reasonably suspects is committing a drug offence, or (b) any search of premises that does not involve a search of persons in or on the premises. (5) Nothing in this Division confers on a police officer a power: (a) to enter any premises that the officer is not otherwise authorised to enter, or (b) to detain a person who the officer is not otherwise authorised to detain.

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Any public place in Kings Cross

S146- if police officer authorised to search person, entitled to use dog for purpose (need to go through s21 LEPRA first to see if can search and seize without a warrant) S149- police officer may use dog to carry out general drug detection if authorised to do so by warrant under section S150(1): police officer must take all reasonable precautions to prevent dog touching person S150(2): police officer required to keep dog under control when using for general drug detection Darby v DPP [2004]: Dogs actions can arouse reasonable suspicion for search under s21. Dog’s actions must be performed for purpose, sniffing in vicinity of person does not constitute search

Common Law Provisions: • Darby v DPP [2004]: dogs actions arouse a reasonable suspicion to allow police to search someone under s21 of LEPRA. Still scope for the court to find that a sniffer dog made improper contact with a person, and evidence can be excluded (s138 of Evidence Act) o Using a dog to sniff the vicinity of a person does not constitute a search. If dog accidently touches person’s pocket or clothing with its nose, not a battery. If it did, must ask whether the dog had a reasonable suspicion before they did search. Dog’s actions must be performed for a purpose • Phillip Rusty Harris: Contact of dog before any reasonable suspicion could amount to battery, and lead courts discretionary exclusion of evidence under s138 Evidence Act 1995

PART 18: EXERCISE OF REASONABLE FORCE (LEPRA) S230: Use of Force Generally by Police Officers It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.

S230 LEPRA: Lawful for police officers to use force that is reasonably necessary to exercise function

S231: Use of Force in Making an Arrest A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.

S231 LEPRA: force reasonably necessary to make arrest or prevent escape of person after arrest

Common Law: • Woodley v Boyd [2001]: use of force as is reasonably necessary to effect an arrest

R v Ali Alkan: arrest unlawful as unnecessary and excessive; other means

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R v Ali Alkan: Alkan complied with police directions, did not struggle between taser applications. Arrest was unlawful as unnecessary and excessive force forced. Other means available to apprehend defendant, no reasonable basis for violent confrontation. No reasonable risk to police officers. Use of taser was improperunnecessary, unreasonable and failed to comply with police guidelines. R v Bugmy: in deciding reasonable force, objective test applied (in a realistic environment, considering subjective factors). Taser should only be used with violent confrontation. Reasonable police officer would have calmed the situation down. Arrest unlawful. DPP v Carr: force should be used as a last resort

available; no reasonable risk to officers; didn’t comply with guidelines R v Bugmy: objective test considering subjective factors DPP v Carr: force last resort

PERSONAL SEARCHES (INCLUDING STRIP SEAR...