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Tuesday, 7 September 2010

Summon or arrest?

Twitter — yes, twitter! — is yet another great source of legal information.

For example, Associate Professor Alex Steel at UNSW tweets at crimlawnsw, with some great tips.

One recent tweet referred to an appeal against hindering police. It seems that the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99(3) expressly prohibits police from arresting people unless for one of a several prescribed reasons (similar to s 458(1) in the Victorian Crimes Act).

In DPP v Carr (2002) 127 A Crim R 151; [2002] NSWSC 194 the NSW Supreme Court held a magistrate was correct to conclude the evidence of resisting, assaulting and intimidating police was improperly obtained and subject to exclusion under s 138 of the Evidence Act because it resulted from an arrest for a summary offence of offensive language. (The DPP appeal succeeded on a different point about procedural fairness.)

Crimes Act 1958 s 461(2) provides that police need not arrest a person when a summons or notice to appear will effectively commence proceedings. Children, Youth & Families Act 2005 s 345 sounds like it's even stronger — children to be proceeded against by summons except in exceptional circumstances — though the section restricts registrars from issuing first-instance arrest warrants, rather than proscribing arrest and charge by police.

Neither of those provisions go as far as the NSW one above, which provides police must-not-arrest-unless-necessary.

But, combined with Charter s 21(2) (freedom from arbitrary arrest or detention), and perhaps also s 12 (freedom of movement), s 13 (right to privacy and reputation), and perhaps s 10 (protection from cruel, inhuman or degrading treatment) and s 25 (presumption of innocence), I think the reasoning in DPP v Carr gains greater significance.

The riposté from prosecutors will probably be Crimes Act s 461 (arrest on reasonable grounds not taken to be unlawful) and cases such as Jensen v Eleftheriou [1982] VR 184.

It remains to be seen which approach will triumph. There haven't been any resounding wins with application of the Charter of Human Rights and Responsibilities so far — but that could be about to change with the High Court poised to consider its first Charter case soon!

2 comments:

Anonymous said...

Twitter is not a great source of anything

Ask Stephanie Rice

Anonymous said...

its the source on twitter that counts, not the medium. Don't ask Stephanie ...