Many people receive a CAN (Court Attendance Notice) as a direction to attend Court. This can be handed to you, posted or served. When there are no other options, Police use arrest to ensure your attendance at Court.
The grounds upon which police can arrest a person may be summarized as being when they reasonably suspect you have committed a crime, you have or are about to commit a crime or when they have a warrant.
Although not very common, a Citizen can arrest a person who is committing an offence or has just committed an offence. The obvious difference between a police officer and a citizen, is that a citizen does not have the power to arrest on suspicion.
It is interesting to note that security guards have no more power than any other citizen to arrest. Arrest is intended to be a last resort method of dealing with a situation. The police must not arrest unless the purpose is to ensure an appearance before court, to prevent crime, to preserve evidence, or for someone’s safety. If an officer does not consider those reasons, or unreasonably considers them, the arrest could be unlawful.
The consequences of an unlawful arrest are that evidence obtained as a result of that arrest may not be admissible, and the person may be able to recover damages via a civil remedy. Arrest has been likened to additional punishment. If the person is known to police, with little risk of the person failing to attend court, arrest should not be used as it could inflame the situation.
After being arrested, the police must, as soon as reasonably practicable, have the person appear in Court.
After you are arrested, you are still entitled to remain silent. It can often be advisable to merely state your identity details until you have calmed down from the ordeal of arrest.
Generally, the police can detain you for up to four hours before they must either release you without charge or charge you and either release you on bail or if bail is not granted by Police they must put you before a Bail Court as soon as practicable thereafter.
As you can see, the accused has not even seen a Court room yet, and there has already been discretion at many levels. The decision to investigate, the decision to detain, arrest, interview, to grant bail have all been made by the Police officers.
If you have any questions you would like answered either confidentially or via this medium, please email us at office@mjolegal.com.au
This is intended for general information and does not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought