The criminal process starts with the investigation of an actual or alleged crime. The power for New South Wales Police to search, arrest and detain a person for interrogation comes from the Law Enforcement (Powers & Responsibilities) Act 2002 which sets out when and in what circumstances these powers may be used.

The rules aim to balance the need for enforcement of the law with the protection of an individual’s civil rights. Being requested entry to a private residence by a police officer may be daunting and, in such circumstances, it is easy to overlook these rights. So what are a person’s rights and are they obliged to let the police in? What if the police officer asks for a son or daughter?

The starting point is that police powers of entry are generally confined to emergency situations, for the purposes of arrest or detention or to execute a search warrant.

Emergencies and arrest

Police officers may enter any premises if they have reasonable grounds to believe an offence or breach of the peace is being, or is likely to be, committed or a person has suffered significant injury or is in imminent danger. Entry of the premises must be necessary to prevent the breach or stop an ongoing breach or injury to a person. These entry powers are found in s 9 of the Act and often involve emergency-type scenarios.

The ‘knock at the door’ situation might stem from s 10 of the Act. Police have the right to enter premises to arrest or detain a person under an Act or arrest a person named in a warrant. A police officer may enter and stay on the premises to search for the person provided the officer believes on reasonable grounds that the person is in the dwelling and only for as long as is reasonably necessary.

General safeguards are in place when police officers exercise these powers. Police officers should be in uniform or provide evidence of their position. They should state their name and station and give their reason for entering the premises. A person has the right to request this information from a police officer.

If a police officer does not produce a warrant for arrest then the arresting officer must have reasonable grounds to suspect that the person has or will commit an offence and that the arrest is reasonably necessary to:

  • stop an actual offence or prevent a further offence;
  • confirm the identity of the suspect;
  • ensure the suspect appears at court;
  • obtain property and / or preserve evidence;
  • prevent interference with evidence or a witness; or
  • protect the safety and welfare of a person (including the person arrested).

The police officer must make it clear to the apprehended person that he / she is being arrested and advise the person why.

Criminal proceedings may be initiated by a Court Attendance Notice. Accordingly, arrest is generally not necessary in all criminal processes. Unless bail provisions have been breached, arrest should be a last resort and confined to the above circumstances.

Search warrants

A police officer with an appropriate search warrant has authority to enter premises. Unless a covert search warrant is obtained, the occupier of the premises must be issued an ‘occupier’s notice’ by the police officer setting out details of the search warrant. The occupier may also request inspection of the actual search warrant. If a search warrant is produced then it is an offence to hinder or obstruct the officer executing the warrant.

The right to silence and additional considerations for minors

A valid arrest enables a suspect to be questioned and identified by police. However, unless a formal arrest is made a person is not obliged to accompany a police officer. Arresting a person for investigatory processes only is prohibited.

Apart from limited situations (such as traffic offences) a person has a right to silence and need not answer questions. A person however may be required to disclose their identity to a police officer who suspects on reasonable grounds that the person can assist with enquiries regarding an alleged offence due to the fact that the person was within the vicinity of the alleged crime.

Persons confronting the criminal justice system who are under 18 years have additional protective provisions in place. Minors are considered vulnerable in the criminal justice system and must have a ‘support person’ with them when being questioned whilst in custody. The role of a support person is to ensure the interrogation is conducted fairly, assist with communication problems and help the minor assert their rights. A support person might include the minor’s parents, guardian or a lawyer.

A statement or admission made to a police officer during an interview is inadmissible in court unless the minor was accompanied by an independent adult when making that statement.

Summary

Police officers have the necessary search and arrest powers to assist in law enforcement. These should be balanced with a person’s civil liberties.

Being approached by a police officer may be daunting however it is wise to stay calm, ask questions, and take notes if necessary of the reasons given for the police visit.

Minors have additional protective rights such as having a support person with them during questioning.

This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.

If someone you know is concerned about their rights and obligations in the criminal justice system or needs help or advice, please contact us on (02) 9818 2888 or email info@dsplawyers.com.au.