Can what you say be admissible as evidence if you are unlawfully arrested? A recent case may have an impact here. First of all, let’s examine the powers of arrest which are granted by LEPRA (Law Enforcement (Powers and Responsibilities) Act) in NSW.
What is LEPRA?
LEPRA is the Law Enforcement (Powers and Responsibilities) Act.
Arrest powers from LEPRA
Section 99 of the LEPRA confers power on a police officer to arrest a person without warrant on reasonable suspicion of having committed an offence. This section was amended by the Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013, with effect from 16 December 2013.
However, before LEPRA was enacted in NSW, s352 of the Crimes Act relevantly provided that any constable or ‘other person’ without warrant may apprehend any person in the act of committing, having committed an offence punishable under any Act.
LEPRA came into effect on 1 December 2005 and the ‘power to arrest’ was outlined in section 99 which affirms a police officer may, without warrant, arrest a person if they are in the act of committing an offence, just committed an offence or committed a serious indictable offence for which they have not been tried.
Why someone can be arrested
More crucially, s 99 (3) outlines that a police officer must not arrest a person for the purpose of taking proceedings against them unless they suspect on reasonable grounds it is to either:
- Ensure the appearance of that person before a court
- Prevent continuation of the crime
- Prevent concealment or destruction in regards to the offence
- Prevent harassment of a person who may be required to give evidence
- Prevent fabrication of evidence
- Preserve the safety or welfare of the person
It is important to note that in the Attorney-General’s Second Reading Speech (NSW Legislative Assembly Hansard, 2002) that he stated, ‘An arrest should only be used as a last resort as it is the strongest measure that may be taken to secure an accused person’s attendance at court.’ It is important to note that the power to arrest is discretionary as outlined in s 9(1) of the Interpretation Act 1987 (NSW) which provides that the word ‘may’, if used to confer a power, indicates that the power may be exercised or not, at discretion.
However, look at the more recent and essential case of Robinson v State of NSW which was handed down by the NSW Court of Appeal on 16 October 2018. It has dramatically altered this outdated interpretation of the law as it relates to arresting someone without a warrant.
This case has now confirmed that if an arrest is deemed to be unlawful, then any admissions that have been made during it can be excluded from evidence pursuant to the court’s discretion. In addition to this decision, more significantly, the majority in the Court of Appeal have held that the charging decision of someone must be made before the decision to arrest them.
This means that if a police officer does not have an intention to charge at the time of the arrest, then your arrest is unlawful. See Robinson v State of New South Wales  NSWCA 231.