User:Shuns1250/sandbox

In New South Wales(NSW), there are two types of police forces. One is the NSW Police Force other is the Australian Federal Police, however the same principles of law would be applied when looking at their powers and its discretion. Legal regulations in this context mainly comes from the Law Enforcement (Powers and Responsibilities) Act 2002. Some other laws arise from the common law principles and other relevant legislations such as the Crimes Act 1900 and Evidence Act 1995.

As Gareth Griffith had stated "a police service which cannot act due to lack of discretionary powers is near useless... (, but)... a police service whose acts are free from check or oversight is likely to be danger".

At all occasions when concerning the police powers and its discretion, things must be considered objectively on “reasonable grounds”, not arbitrary and focused on the information available to the police at the time the power is to be exercised. That objective standard does not require the court to look beyond what facts were in mind of the arresting officer at the time. Hence, the information amounting to the ‘reasonable’ suspicion could be wrong or anonymous. Nonetheless, those facts must be sufficiently convincing to induce that state of mind in the arresting officer as a 'reasonable’ person at least.

Search without a warrant
A police officer has an authority to search a person and detain things without a warrant if he believes on reasonable grounds that the person possesses drugs, anything stolen or anything dangerous. A frisk search or an ordinary search according to s3 of the Law Enforcement (powers and Responsibilities) Act may be conducted during those times. Generally the search would only involve a quick run of his or her hand over the person's outer clothing, requiring the person to remove his or her jacket, examining anything in possession of the person and passing an electronic detection device. Whereas a strip search may only be conducted if it would be necessary and it must also be done at a police station unless the situation is serious and urgent. The law applies to vehicles similarly. There is also a legislation where it lays that a police officer may enter and remain in a dwelling if he/she was invited by a person who resides at that dwelling, even if other dwellers refuses it. This legislation is often referred to when police enters a household to help a person inside a private area, for example domestic violence. The officer who has entered the dwelling in accordance to this section may also direct a person to leave, prevent the person from entry, removing evidence from or otherwise interfering with the dwelling as well. If a police officer wishes to carry out a search which requires a warrant, the office must so in accordance to s47. Even then, the officer would have their search discretion within what is stated in the warrant which has been made by granting authority.

Arrest without a warrant
A defendant comes before court by either: arrest without warrant; arrest under warrant; and in response to a summons, otherwise known as attendance notice. A police officer may arrest a person without a warrant if he/she suspects on a reasonable ground that the person is committing or has committed an offence. However. that arrest must be reasonably necessary. In addition, it has been established in the case of Williams v DPP that arrest should not be employed where less intrusive mechanisms such as the use of summons is sufficient and should only be used as a last resort. In fact, in Rv Carr Justice Smart AJ had stated that"Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. Inappropriate arrest instead of summons often anger the person and escalate the situation leading to assault of the police as well". Besides, a police officer has no power to arrest solely for the purpose of investigation: such as questioning, hence it must be in accordance to s99(1) of the Law Enforcement (Powers and Responsibilities) Act 2002.

Whereas, instead of arresting a person, an officer may request for that person to comply with their investigation and follow them to the police station. A major difficulty here is that the conversation and the arm authority tends to give people without legal knowledge the idea that non-corporation is somewhat fictional. However in S and J, it was supplementarily concluded that the choice of whether to comply with the officer must be genuine. Even if the officer would not be stating that the person is under arrest at the time, they must regardless state that the person is free to go at any time.

Questioning and investigation
Although there are limitations when considering arrest, a police officer may legally ask an individual for their identity if the officer suspects on reasonable grounds that the person’s identity would be helpful with their investigation. A "right to silence" is refers to the right of a suspect to not answer police questions after detention, therefore it would not be applicable in this case. Besides, failure to comply with the officer on those occasions without a reasonable excuse would result in maximum of 2 penalty units. Giving false or misleading information about the identity would also result in maximum of 2 penalty units. Currently a penalty unit in New South Wales is $110. Whereas with other questions, the person is free to not answer to that if he/she wishes not to assist the officer. Even then s89 of Evidence Act provide that an unfavourable inference should not be drawn from the fact that the person refused to answer one or more questions. In this section, inference includes an consciousness of guilt or a relevance of a party's credibility.

A police officer may detain a person who is under arrest for the purpose of investigating whether the person has committed the offence for which he/she is arrested. The investigation period begins when that person is arrested and is determined by multiple factors such as, but not limited to, the person’s age, complexity of the offence and that individual’s willingness to answer questions. The upper limit this investigation period is 6 hours unless extended by a detention warrant. Unless the person is brought before the court, he/she must be released within the investigation period. Prior to commencing the investigative procedures, the custody manager must inform the person orally and in writing that he or she may communicate or attempt to communicate with a friend, relative independent person and inform that they are detained and their current location. The person may also contact a legal practitioner and the lawyer may attend and be present during such investigative procedures.

As a measure against terrorism, a preventative detention order may be made against a person if there are reasonable reasonable grounds that the person will either engage in, possess anything that is connected with or has done an act in preparation for terrorism within the next 14 days. A preservation order may also be made against a person if a terrorist act has occurred within the last 28 days. The term terrorism in this paragraph refers to actions done with the intention of advancing a political, religious or ideological cause, and coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign county, or of part of them Some of the actions included in this section are serious ham and damage to a person, building a d endangering a person's life. However, under s3 (2) of the Act, advocacy and industrial actions that does not intent to cause serious harm to a person and endanger their life are excluded from the above subsection.

Safety guards on the police exercise of power
An officer must provide with his/her name, evidence that he/she is a police officer and the reason for enforcing their legal authorities. This must be done as soon as practical to do so. If there are multiple police officers at a time, only one needs to comply with this rule. Similarly, the confirmation steps are not required to be repeated to individual person in a group. The officer must also give a warning that the he/she is legally required to comply with those authoritative directions given by the officer. However, failure to comply to these legislations by the officer does not render the exercise of the power unlawful.

In order to prevent excessive police investigations, the Evidence Act provides that evidence that was obtained improperly or illegally are to be excluded. This is further ensured by section 281 of Criminal Procedure Act, where it has been laid out that evidence without a tape recording is inadmissible unless there is a reasonable excuse as to why the recording would not be made. However, section 13 of the Evidence Act also states that if desirability outweighs the undesirability of accepting it, it may be admitted. Although this leaves some discretion to the court to admit evidence if can be said as crucial and would otherwise be rejected, those discretions are necessary for the court to have the authority to very serious matters.