Arrest

Generally, a police officer may arrest a person without a warrant if the officer is satisfied on reasonable grounds that the person:

• is committing an offence; or
• has committed an offence;

and if the officer is satisfied the arrest is reasonably necessary for any of the following reasons:

• to stop the person committing or repeating the offence or committing another offence;
• to stop the person fleeing from a police officer or from the location of the offence;
• to enable enquiries 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;
• to ensure that the person appears before a court in relation to the offence;
• to obtain property in the possession of the person that is connected with the offence;
• to preserve evidence of the offence or prevent the fabrication of evidence;
• to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence;
• to protect the safety or welfare of any person (including the person arrested); and
• due to the nature and seriousness of the offence.

The discretion to arrest carries the following obligation to:

• use the minimum force that is necessary in the circumstances;
• advise the person that they are arrested and the reason for the arrest; and
• take the arrested person to a designated police station without delay.

There may be instances where a lawyer representing an individual must examine the specific circumstances surrounding an arrest to determine its legality or whether a lawful arrest later became unlawful. Any evidence obtained from a person who is subsequently found by a court to have been unlawfully detained may be subject to exclusion under the Evidence Act 1995 (NSW). The test for reasonable grounds is inherently subjective.

In certain limited situations, police may question, search, or detain individuals without making an arrest. However, a person is not obligated to assist the police in their investigation or accompany them to a police station unless they are formally under arrest.

About Post Author

Mark Racca

Principal Solicitor & Director
LLB, GradDipLegPrac, MPA

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