Monday, September 20, 2010

Police Powers To Search & Arrest In Western Australia

Arrest

·                     The police can arrest a defendant without a warrant if they have reasonable grounds for believing or suspecting that the defendant has broken the law.[1]

·                     An arrest may be lawful even if the defendant has not committed an offence. The existence of a belief or of a suspicion based on reasonable and probable grounds is sufficient to render the police officer’s taking a person into custody lawful.  When the police make an arrest they should:

(a)                tell the defendant that they are under arrest; and

(b)                tell the defendant why they are being arrested.[3]

·                    If a person has been arrested, the police can, for identification purposes, take the persons photograph, fingerprints, palm print and measurements.[4] The police might also request that the person participate in an ‘Identification Parade’. The person has the right to refuse to participate and should get legal advice before they make any such decision.

·                    The police can use reasonable force to restrain, effect an arrest or execute a warrant.[5]

·                    A defendant can be charged with resisting arrest if they resist or struggle and the police have to restrain them whilst the arrest is taking place.[6]

·                    If the defendant thinks that unreasonable force has been used or if they have been injured by the police, they should:

(a)        report the matter to the officer in charge of the police station straight away. A written       complaint which is dated and signed is best, but at least a verbal report should be made.

 

(b)        have a doctor examine and document their injuries as soon as possible. If possible have photographs taken of their injuries; and

 

(c)        get legal advice about their situation.

Name and Address

·                     Under s16 of the Criminal Investigations (Identifying People) Act 2002, the police can:

a)         request that a person provide their personal details to a police officer where the police officer reasonably suspects that an offence is being, has been, or is about to be committed or if they believe that the defendant may be able to assist in the investigation of an offence or a suspected offence; and

b)         request that a person provide evidence of the correctness of any personal details provided where the police officer reasonably suspects those details to be false.

A person, who, without reasonable excuse, fails to comply with any such request or where in response to any such request provides false personal details or evidence, commits an offence.

Licensed Premises

·                     Under s126 of the Liquor Licensing Act 1988, police officers and hotel/bar staff have the right to ask any person who is on premises where alcohol is served, for proof of age. It is an offence not to comply with such a request or to provide false information.

Road Traffic Matters

·                     The police can require the driver of a motor vehicle to state their name and address and the name and address of the owner of the vehicle.[7]

·                     The police can request the driver of a motor vehicle to produce a licence or to take it to a police station within a reasonable time (usually 24 to 48 hours is considered reasonable).[8]

·                     The police can require the driver or person in charge of a motor vehicle, or any person the police officer reasonably believes to have been the driver or person in charge of a motor vehicle, to undergo a preliminary breath test. It is an offence to fail to comply with any such requirement.[9]

·                     The police can require any owner or driver of a motor vehicle to provide to the police any information that the person may have about the identification of any person who was driving or who was in charge or control of a motor vehicle when a traffic offence was committed.[10]

Drugs

·                     Under s23 of the Misuse of Drugs Act, where there are reasonable grounds to suspect that a person has in their possession, something that has been or maybe used for the purposes of committing an offence, the police can:

a)         stop and detain that person (using any such force as is reasonably required); and

b)         search that person and any baggage, package, vehicle or any other thing in that person’s possession, and for that purpose may also stop and detain any vehicle.

A member of the same sex or a medical examiner must conduct any search carried out under the Act.

·                     Under s25 of the Misuse of Drugs Act, a police officer acting under s23 of the Act or by way of a search warrant, may:

a)         seize, detain or make extracts from any books, paperwork or documents found during the course of that exercise; or

b)         may require any person to give or cause to be given to the police, any such information as the case requires.

Prostitution

·                     Under s23 of the Prostitution Act 2000, where the police are investigating a person who has attempted to get another person to act as a prostitute or any offence involving a child, the police can require that person to provide a copy of any documents or information requested and answer any questions put them.

·                     Under s25 of the Act, the police can stop, detain and search any person they suspect of committing an offence or any person who may have evidence regarding an offence or stop, detain and search a motor vehicle for as long as is necessary to search it.

·                     Under s26 of the Act, the police can, without a warrant, enter any business premises suspected of carrying on prostitution activities and search anyone they find there and seize anything they suspect will provide evidence of an offence.

DNA

·                     The Criminal Investigations (Identifying People) Act 2002 sets out police powers with respect to obtaining DNA samples from ‘serious offenders’ and people on remand for ‘serious offences’ as required under the Act. DNA samples can be obtained by any of the following means:

a)         ‘mouth cell swab’ – where a buccal swab is taken on the inside of a persons mouth; or

b)         ‘hair sample’ – taken by pulling about 12 hairs (with roots) from the persons head; or

c)         ‘blood sample’ – taken by pricking fingertip and collecting a drop of blood.

A mouth cell sample will be taken if the person agrees to give a sample. However, hair and blood samples will only be taken if the person does not agree to give a sample.

·                     If the person is in prison and refuses to provide a sample, they can be ordered by the police to do so. If they continue to refuse to provide a sample despite being ordered to do so, then a sample can be taken against their will.

 

·                     The police are allowed to use any force necessary to overcome any resistance that they suspect might take place and they may also request assistance from prison officers.

·                     If the person is not in prison and refuses to provide a sample, they can be arrested. Again, police can order that a sample be provided and can use force, if necessary, to obtain the required sample.

Criminal Investigation (Exceptional Powers) and Fortification Removal Act

·                     The Criminal Investigation (Exceptional Powers) and Fortification Removal Act 2002 gives the police powers of entry, search (including personal searches) and seizure without a warrant.[11]

·                     The Act also gives the police increased powers of surveillance and allows in certain circumstances, the substitution of a ‘reasonable suspicion’ for the criterion of a ‘reasonable belief’ as set out in the Surveillance Devices Act 1998.[12]

·                     The Act is limited in its operation by reference to ‘section 4 offences’. That term is defined in section 4 to mean a Schedule 1 offence committed in the course of organised crime. Schedule 1 sets out a number of offences that are relevant to the Act and lists offences from the Criminal Code, Criminal Property Confiscation Act 2000, Firearms Act 1973 and the Misuse of Drugs Act 1981.

Protective Custody Act 2000

·                     The Protective Custody Act gives the police and community officers the power to seize drugs, alcohol or inhalants from a child who is in a public place or detain people who are intoxicated in a public place but only where they need to be detained to protect them or some other person or to prevent serious damage to property.

·                     The police can detain any person for any of the above reasons until the person is no longer deemed to be intoxicated. If the person has been detained at a police station, the police do not have to release the person between midnight and 7.30am if it is felt that it would not be in their best interests to do so.

·                     If the police detain any person under the Act, they may conduct a search of the person or require that person to undergo a medical examination. If the police require a search, reasonable force may be used.

Power to Search

·                     Once an arrest has been made, the police have the power the person arrested and any property that they have in their possession.

·                     Police powers to search without arrest can be found in numerous pieces of legislation, such as the Weapons Act, the Misuse of Drugs Act, the Prostitution Act, the Protective Custody Act, the Criminal Property Confiscation Act and the Criminal Investigation (Exceptional Powers) and Fortification Removal Act.

·                     The police can stop, search and detain any person or vehicle, if they reasonably believe that an offence has been or is about to be committed.

·                     The police may search a person’s premises if that person agrees or if the police have a search warrant. The Police also have special powers to enter onto a person’s premise under the Misuse of Drugs Act, the Prostitution Act, the Criminal Property Confiscation Act and the Criminal Investigation (Exceptional Powers) and Fortification Removal Act (see above).

Answering Questions

 

·                     As a general rule, a defendant does not have to answer questions, sign a statement or take part in a video interview. Anything they do say or sign will whether or not they have been arrested, probably be used as evidence in court. Apart from providing their name and address, they should generally get legal advice before answering any questions.

·                     Sometimes a defendant will have to answer police questions. Under the Misuse of Drugs Act or the Prostitution Act, the police have the power to require a defendant to give such information as it is in their power to give. Failure to co-operate may constitute an offence.

Search Warrants

·                     The laws relating to search warrants and searching the person can be complex. Often different laws will apply depending on the situation. If a defendant has a query about the validity of a search conducted by the police, either of their person or of their premises, they should get legal advice.

·                     Where the police have a reasonable suspicion that a person has committed a crime they can enter a property without a warrant to make an arrest.

·                     Once an arrest has been made, police can search the defendant and any property they have in their possession.

·                     Under the Misuse of Drugs Act, the Prostitution Act, the Criminal Property Confiscation Act and the Criminal Investigation (Exceptional Powers) and Fortification Removal Act, where the police have reasonable grounds to suspect the commission of certain offences, they have very wide powers, which include entering onto premises without a search warrant and searching a person and their property

1See s45 Police Act 1892

2See s45 Police Act 1892; Langton v O’Toole SCL 9214/1992 unreported, BC9102871.

3 See s43 Police Act 1892; s232 Criminal Code and Romito v Williams SCL 920649 unreported.

4 See s50AA Police Act 1892

5 See s231 Criminal Code

6 See s151 and s172 Criminal Code.

7 See s53(1) Road Traffic Act 1974

8 See s53(2) Road Traffic Act 1974

9 See s66 and s67 Road Traffic Act 1974

10See s58 Road Traffic Act 1974

11 See Part 5 Criminal Investigation (Exceptional Powers) and Fortification Removal Act 2002

12See Part 5 Criminal Investigation (Exceptional Powers) and Fortification Removal Act 2002



[1] See s45 Police Act 1892
[2] See s45 Police Act 1892; Langton v O’Toole SCL 9214/1992 unreported, BC9102871.
[3] See s43 Police Act 1892; s232 Criminal Code and Romito v Williams SCL 920649 unreported.
[4] See s50AA Police Act 1892
[5] See s231 Criminal Code
[6] See s151 and s172 Criminal Code.
[7] See s53(1) Road Traffic Act 1974
[8] See s53(2) Road Traffic Act 1974

[9] See s66 and s67 Road Traffic Act 1974
[10] See s58 Road Traffic Act 1974
[11] See Part 5 Criminal Investigation (Exceptional Powers) and Fortification Removal Act 2002
[12] See Part 5 Criminal Investigation (Exceptional Powers) and Fortification Removal Act 2002

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