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  • NSW Police cannot arrest without intending to charge, High Court finds
  • By Nick Bonyhady
  • 06/12/2019 Make a Comment
  • Contributed by: Sol ( 20 articles in 2019 )
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The High Court has ruled police cannot arrest people solely for the purpose of questioning them in a decision that preserves a longstanding civil liberty.

The state of NSW appealed to the High Court to overturn a lower court ruling that upheld the principle but was knocked back by the nation's highest court in a rare split decision, with a tight four to three majority.

The High Court's decision preserves constraints on the situations in which police can arrest people.

"Arrest cannot be justified where it is merely for the purpose of questioning," a majority of the High Court found on Wednesday.

Shopfront Youth Legal Centre principal solicitor Jane Sanders said the High Court's decision in NSW v Robinson confirmed that arrest was an "extraordinary power" involving a deprivation of liberty, which should only be used as a last resort.

"It's really important that the High Court has confirmed that arresting someone in connection with suspected criminal offence is a significant thing and it should only be used where police are actually intending to lay charges," Ms Sanders said.

Ms Sanders said the High Court's decision would help protect people from being put under pressure to talk to police as a result of "the trauma and stress of being under arrest".

Four judges of the High Court found the legislation governing NSW Police has not effectively changed on arrest powers since a 1935 decision, which found police have to intend to charge a suspect when they are arrested.

"Nothing ... has displaced that single criterion," Justices Stephen Gageler, James Edelman, Virginia Bell and Michelle Gordon wrote.

The other three judges, including Chief Justice Susan Kiefel, agreed police officers must intend to charge anyone they arrest, but held that intention can be qualified.

Police can request an interview with anyone but people are generally not required to agree to it.

They are also able to arrest suspects with an intention to charge and later release them if new information comes to light.

The case was brought by Brad Robinson, who was subject to an apprehended violence order.

He was arrested by a NSW Police constable, questioned and then released without charge in late 2013. The court found police had no intention to charge him when he was arrested.

NSW Greens justice spokesman David Shoebridge said: "It is very troubling that NSW Police took this appeal to the High Court with a clear plan to radically increase police arrest powers".

"For centuries we have had explicit legal protections from arbitrary arrest, and this appeal was a deliberate assault on that right without going to Parliament," Mr Shoebridge said.

A NSW Police spokeswoman said police had noted the High Court decision and "will be considering the judgment and its implications".

"The NSW Police Force treats all matters of domestic and family violence seriously," the spokeswoman said.

A NSW government spokeswoman said the government "is committed to ensuring our police have appropriate powers to ensure the safety of our community".

Source: https://www.smh.com.au/national/nsw/nsw-police-cannot-arrest-without-intending-to-charge-high-court-finds-20191204-p53gp4.html


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