What is an Arrest?
An arrest is to seize someone and take them into custody, usually in response to the committing of a crime.
There are three important elements of a lawful arrest in New South Wales:
- You must be informed that you are being arrested;
- You must be told why, if it is not already obvious;
- You must be informed, either by words or conduct that you are not free to go.
The police must as soon as reasonably practical, provide you with their name and place of duty, and evidence that they are a police officer if they are not wearing a uniform.
Arrest without a warrant
The Law Enforcement (Powers and Responsibilities) Act provides police power to arrest without a warrant if they suspect, on reasonable grounds that you are committing an offence, or have committed an offence; and that officer is satisfied that an arrest is reasonably necessary. It is important that these two elements exist together.
An arrest will be considered reasonably necessary if:
- it stops you committing or repeating another offence;
- it prevents you from fleeing the location;
- enables police to establish your identity;
- ensure you appear before a court;
- obtain property that is connected to an offence which is in your possession;
- it preserves evidence or prevent the fabrication of evidence;
- it prevents harassment or intimidation of witnesses;
- it protects the safe of or welfare of any person, including yourself;
- the nature of the offence is serious.
An arrest under s 99 must be made for the purpose of commencing proceedings.
You cannot be arrested for some other purpose, like questioning.
This common law principle has not been displaced by LEPRA, said the court High Court in Williams v R.
An example of this principle in practice:
In 2014, William Bennett appealed against conviction for assaulting police following an unlawful arrest. The arresting officer gave evidence that he suspected Bennett had committed an offence, though had only stopped him “for a chat” and had not intended to commence proceedings at that time. It was accepted that an arrest for this purpose is unlawful. You must not be arrested for questioning, or for investigations to take place. Therefore, the court held that evidence of the assault against police must be excluded.
If you have been arrested under s 99, you must also be taken before an authorised officer as soon as reasonably practical. An authorised officer is a Magistrate or Registrar. This further reflects the common law’s position that an arrest is for the purpose of commencing proceedings, for a person to be dealt with according to law.
Arrest with a warrant
Under s 101 of LEPRA, Police may arrest or deal with a person if they act in accordance with a warrant issued under any act or law. They may do this whether or not they have the warrant in his or her possession.
A warrant is an order made my a judicial officer, either a Magistrate or a Judge or in some cases a registrar or authorised officer. It provides police power to arrest a person for the purpose of bringing them before the court for a number of circumstances such as:
- failure to appear before the court;
- breach of bond or other sentencing matters;
- pre-court arrest, where police cannot locate you to charge you with an offence;
- witness in proceedings, where you have failed to comply with a subpoena.
Once a warrant has been issued for your arrest this will display on all police and court databases. In some cases, police may receive a system notification that there is a warrant issued for your arrest during routine traffic stops.
Police may discontinue an arrest at any time, if you are no longer a suspect or the reason for arrest no longer exists. They may also discontinue an arrest if it is more appropriate to deal with the matter in some other manner, such as a warning, penalty notice or court attendance notice.
Arrest as a last resort
The power to arrest is discretionary. Police may or may not, exercise this power. This is because the law recognises that applying the letter of the law to the practical and real life situations requires a certain level of discretion, and the ability to use their own judgment.
The law also holds that where there is a power to exercise discretion it must, at least be considered.
This means that it is not enough for an officer to suspect you have committed an offence; there must also be an ‘effectual exercise’ of their discretion to arrest you: Zaravinos v NSW [2004] NSW CA 320.
There is extensive case law which supports arrest as a last resort. This is because arrest is a deprivation of liberty, which is a fundamental human right. An arrest will not be appropriate for minor offences, or where a summons would suffice.
In DPP v Carr, a man was arrested for a minor summary offence of offensive language. The arrest was held to be improper because police knew his name and address, and there was no indication that a summons would not be effective in bringing the accused to court.
Arrest for breach of bail
Under s 77 of the Bail Act, police may arrest you without warrant if the reasonably suspect you have, or will fail to comply with a bail condition. In these circumstances, failure to consider another alternative to arrest will not always render the arrest improper. Particularly in circumstances where an offender flees the scene and there is not sufficient time for police to consider every other option.
Use of force
Police are empowered to use any reasonable and necessary force required to make an arrest or to prevent a person from escaping. However, they may not do anything that is likely to cause death or grievous bodily harm to a person unless they believe it is necessary to protect life or prevent serious injury to another.
As it stands, there is no authority that supports that the use of excessive force will make an arrest unlawful. However, the law holds that the force used must be proportionate to the offence.
Criminal Lawyers
Lamont Law specialise in criminal law.
If you have been charged with a criminal offence, you need expert legal advice.
Call us anytime on 1300 365 075 to book a free initial consultation.
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Joanna Pasternak represented me today. She is very knowledgeable and professional. Great outcome. Time to get on with the rest of my life.
Jelena an Amazing Lawyer Experienced and understanding I could not be happier after leaving the court today. Thank You Kindly to You Jelena and Your Team.God Bless.
Jelena is the best and very professional and very easy to work with and talk to. I done exactly what I was asked and I was lucky enough to walk out with no conviction thanks to jelena. I couldn’t be happier. If I went this alone without Jelena, I had no chance of getting that outcome that’s a fact As the old saying goes, You get what you pay for Thank you again Forever grateful
I’d like to thank Jelena and Lamont Lawyers for all your help, I couldn’t have done it with out you! I greatly appreciate it. Thank you very much.
I would like to thank Jenela Dobric, for being such a superb solicitor in attending to my case. I would like to thank Jenela and Kristina for the work they did on my case. I would recommend Lamont Lawyers to anyone. Try to get Jenela Dobric. Her dedication is 2nd to none. Jenela is understanding and gives great guidance when it is required. I cannot thank Jenela enough, for getting the outcome the was achieved. Thank you, Charles Hudson
I had a very positive experience with Joanna Pasternak representing my domestic violence matter. She was kind, friendly, supportive, and she took the time to hear my version of events. It was obvious that after our consultation, she was willing to do everything she could to get the best possible outcome for me, in which she was able to get my charges withdrawn before a hearing. This has saved me a lot of time and stress knowing that the matter has been resolved, and that I can get on with my life. I highly recommend having Joanna represent anyone who needs legal assistance with domestic violence matters. Thank you so much Joanna it was lovely meeting you. All the best.
Joanna knew exactly what was relevant and efficiently navigated through complex matters to simplify the process, which ended up with a quick solution. Money well spent and hassle free.
I had the misfortune of having the need for representation in court and used Lamont Lawyers. Jelena represented me. She gave me sound advice which prepared me for the hearing and while there wasn’t much more she could have added, she spoke on my behalf calmly and professionally which I believe helped. Following Jelena’s advice, I did not record a conviction. I hope I don’t need her services again, but would not hesitate to engage her and Lamont Lawyers again. Thank you Jelena.
Jelena and Joanna recently assisted my son with a criminal matter. They provided excellent support and advice. Thank you for ensuring a good outcome.
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Jelena was incredibly helpful with her advice and directions on my legal matter. The relief I feel right now . I can move on to the next step of the process with confidence. I thank you for the reassurance you gave to me. Chris Hawkins
Would like to thank Jelena, she was very professional and made me feel comfortable with the court process, Very happy with my outcome. Would highly recommend this law firm.
Jelena Dobric was absolutely amazing. I can’t thank her enough, she went above and beyond for me to help me achieve an extraordinary outcome in my traffic matter with her astute diligence. An outcome I didn’t even think would be possible. I’m so truly grateful and appreciate all the hard work, I couldn’t have asked for a better lawyer. Jelena is extremely professional, compassionate and amicable. She guided me through the whole process with expert legal advice from start to finish and ensured I understood everything efficiently. It made me feel relaxed and at ease during a very stressful time for me. I would definitely highly recommend Jelena and the Lamont Law legal services to anyone in need. She would be my first choice if I need any representation in the future. It was a pleasure to meet and work with Jelena.
I had a very positive experience with Jelena who was very professional, and went above and beyond to ensure I had received the best possible outcome. Couldn’t have asked for better.
I had a very positive experience with Jelena who was very professional, and went above and beyond to ensure I had received the best possible outcome. Couldn’t have asked for better.
I had a very positive experience with Jelena who was very professional, and went above and beyond to ensure I had received the best possible outcome. Couldn’t have asked for better.
Couldn’t be happier with the outcome Jelena worked hard to attain for myself. She went above and beyond to provide a service that left me feeling confident in my decision in hiring her. Her high work ethic and dedication to her career was shown multiple times. I would highly recommend anyone who needs a confident solicitor who gets results to reach out and speak to Jelena.
I had a very positive experience with Jelena representing me, she was very calm and assuring. I had the best outcome possible for my case and her guidance and assurance was crucial to that. Even if the court had not ruled in my favour I feel that I was still well represented. She went above and beyond to ensure I was informed and comfortable. I could not recommend her highly enough.
Recently found myself in need of a lawyer. Contacted Lamont Lawyers, Jelena was excellent. Very thorough & professional. Secured a great outcome. Wouldn’t hesitate to use their expertise again. Many thanks..!
I was represented by Jelena for a very difficult appeal for a speeding offence. I set my expectations very low given the seriousness of my offence but Jelena provided accurate, meticulous and measured advice on the best approach for my licence appeal. I am happy to say that I can drive again after successfully appealing a 6 month suspension and life can go back to normal. 100% recommend Jelena and Lamont for their dedication and professionalism throughout the process.
Rosie handled my matter excellently, her legal advice was excellent and she was so easy to discuss matters with, as well as keeping cost and time minimal. I’m extremely happy with the service provided.
Absolutely amazing when I needed help with a matter and phone service when asking advice
I highly recommend Jelena Dobric. She is lovely to speak with, very professional and achieved the outcome I was hoping for. I could not have asked for a better lawyer in what was a very stressful time for myself and my family.
I would like to thank Jelena Dobric for her response on my case and getting a positive outcome. She was extremely professional and helpful. Would highly recommend.
Joanna was very Professional dealing with my case. She provide all the information with all the possible outcomes. Always ready to help me with the case. Highly recommended as you will not find anyone like her to Represent you in your court matter. Thank you so much Joanna for your time. It was lovely meeting you ??
Outstanding Service, Lamont Lawyers went above and beyond. Outcome was very pleasing, my matter was dismissed. They Always rang me when they said they would, and followed it up ,they took time to hear my side of the story without rushing me. I suffer from Anxiety and was extremely nervous about going to court for the first time. Joanna really helped by being friendly and professional, just to have people with experience on my side was brilliant. Can’t thank Joanna enough.
Rosie from Lamont Law went above and beyond for me in this traffic matter. As it was all new to me she guided me through the process and achieved a much better outcome than I was expecting. Would Highly Recommend.
Alex was professional, compassionate, informative & efficient throughout our case. He was honest & direct but also sincere. We felt confident and calm knowing that Alex would do his very best on our behalf, in and out of court, and that he really knew what he was doing to get the best possible outcome for us. Thank you Alex, we really appreciated having you on our team. We are truly grateful ???
Jelena Dobric Helped with traffic law and represented at the court on the day. She was well prepared and helped me with everything from day1. I had positive outcome at the court I highly recommend Jelena.
I was so lucky that I got Rosie Philips as my solicitor.I am extremely happy that I received no conviction for my appeal.Thanks again to Rosie who is extremely good in her profession.Would highly recommend to any one.
I would like to say a big thank you to Jelena Dobric who is one of Lamont Law professional solicitors. Her responsive action in traffic law helped me get a positive outcome in my case. I highly recommend her with regards to her expertise & insightful knowledge in traffic law.! Jelena was diligent with communication & could not have asked for a more professional person. Once again thank you.
Alex was great. With my initial email enquiry he got back to me immediately. Jelena took my case. She is nothing short of Professional and Cleary respected my the court and the Magistrate assigned on my day at Court. Jelena was always available, gave me all the information and tools I needed and got the me the best possible outcome regarding my situation. Jelena was so caring and friendly and Non judgemental. I can’t thank her enough. Especially ladies looking for a caring and understanding solicitor , please look no further than Jelena. Alex, jelena is a huge asset to your business . Thank you so much.
My deepest thanks to Rosie Phillips for helping me through the most stressful time of my life and for saving my career. I couldn’t have done any of this without her knowledge and skill. I highly recommend Rosie for anyone in need of a professional and first-class solicitor. 5 stars!
I would like to say a very Big Thank you to Jelena at Lamont Lawyers. She has been incredible to work with as our family lawyer, she handled my brothers matter with such great Professionalism and care. Jelena was responsive to all my emails and provided great advise. She clarified any queries I had & really went above, by keeping me up to date in all correspondence with other parties. As a result we achieved the outcome we were hoping for. It was such a pleasure to work with her! & I Truly wish her all the best in her future endeavours.
I would like to say a very Big Thank you to Jelena at Lamont Lawyers. She has been incredible to work with as our family lawyer, she handled my brothers matter with such great Professionalism and care. Jelena was responsive to all my emails and provided great advise. She clarified any queries I had & really went above, by keeping me up to date in all correspondence with other parties. As a result we achieved the outcome we were hoping for. It was such a pleasure to work with her! & I Truly wish her all the best in her future endeavours.
“The relief I feel is today is palpable, so many thanks to Lamont Lawyers and in particularly Jelena Dobric who was a delight to work with. Jelena was very clear and very helpful with all aspects of my case. She was wonderful with the magistrate, keeping the plea going until the end to achieve a no conviction result.” Geoffrey S
We had the best outcome and excellent experience with Alex and Jelena…..they achieved a brilliant outcome with Alex ‘s representation in court so professional and highest legal performance… thankyou again for all your help for our family ?
Attention to detail from Alex resulted in the best possible outcome.Highly recommended.
Very professional and understanding. Wouldn’t hesitate to contact them again if I ever need it. Thank you very much!
We couldn’t be happier with the work Alex and Lamont Lawyers did on our behalf. The professionalism but importantly the flexibility and understanding that was shown was outstanding and exceed my expectations. I am pleased to recommend Lamont Lawyers.
I would like to extend my heartfelt gratitude to Rosie Philips for handling my daughter’s case with so much professionalism and compassion. We could not have gone thru such a traumatic legal situation like this unscathed without you. During the whole process you took time to explain matters to us patiently with a lot of empathy and sensitivity. Comforting us with your calming and soothing words and at the same time managing realistic expectations of case outcome. You gave us strength when we had lost ours. You gave us hope when we were crushed and devastated. And you were always, always there – responsive to our emails and text messages and accessible by phone when we needed you. With your expert legal knowledge, skill and diligence you brought a favourable end to our case. We are very, very happy with the outcome of the court decision. No conviction and no suspension. My daughter still has a bright future ahead of her – thanks to you. I will highly recommend you to my family and friends. R M Devi
Very happy with the services provided by Alex Angel-Graham ! Delivered the best possible outcome in only very little time! Thanks alot Alex and Lamont Law ! ??
