Case Study: Police Powers

Part 1: Reasonable Force

Relevant Law: Part 18 of LEPRA

Part 18 Use of force

S230 Use of force generally by police officers
It is lawful for a police officer exercising a function under this Act or any
other Act or law in relation to an individual or a thing, and anyone helping
the police officer, to use such force as is reasonably necessary to exercise
the function.

S231 Use of force in making an arrest

A police officer or other person who exercises a power to arrest another
person may use such force as is reasonably necessary to make the arrest
or to prevent the escape of the person after arrest.

Refer to the Sydney Criminal Lawyers webpage. Define what is meant by

the concept of “reasonable force”.
https://www.sydneycriminallawyers.com.au/blog/what-is-considered-reasonable-force-in-
nsw/

The concept of reasonable force is the moral/ethical actions taken by police to protect the
society without infringing on our rights.
Read the articles below. Summarise the key points and make sure you
write down the best quotations from each article. Make sure you record
the names of the author, title of the article and the publication name
in your notes.

https://www.abc.net.au/news/2019-10-25/nsw-police-officer-charged-with-assault-over-
byron-bay-incident/11638982
- Mark Reddie “NSW Police Officer charged with assault after allegedly hitting 16y/o with baton multiple times
- “Police said the 16 year old was aggressive and highly intoxicated.”
- “The Law Enforcement Conduct Commission probed the incident and found police were correct to arrest the
boy but there was no justification for “use of grossly excessive force”.
- “Inquiry suggested the officer could be prosecuted over the incident for assault occasioning actual bodily
harm and sacked by the police commissioner”
- “The officer insisted that the degree of force he used was necessary”
- “Charged with common assault”

https://www.theage.com.au/national/victoria/police-officers-to-fight-charges-over-alleged-
assault-of-pensioner-20190423-p51ghl.html

- Adam Cooper - “Police Officer to fight charges over alleged assault of pensioner”
- “Three Police Officers fighting charges of unlawfully assaulting a disability pensioner”
- “The Independent Broad based Anti-corruption Commission, / alleges onne of the officers unlawfully punched
John in the stomach and sprayed him in the face/second unlawfully struck John with a baton and third,
sprayed to the face with pressure hose”.
- “Charged unlawful assault and assault with a weapon.”
- “They are on bail and Victoria Police has confirmed they are suspended with pay.”

Has this happened before? Read and summarise the facts of the case R v
Ralph [2014] Local Court (Unreported)
https://www.theguardian.com/australia-news/2014/dec/16/police-officer-roberto-curtis-
fatal-arrest-escapes-conviction-assault

What are your thoughts on the outcome?

With the reason why he wasn’t convicted was due to PTD from what
happened.

Hint: Ask Mr Pyne or Mr Laurence what the NSW Coroner thought of

the officers involved in Roberto Curti’s death.

Themes and Challenges

Using the table below, brainstorm how the abuse of the concept of
reasonable force relates to the syllabus themes and challenges.
You need to consider the case study and how it reflects the following themes and
challenges:
The role of discretion in the criminal justice system
- Depending on the situation, it is shows how much force or what they do to carry out their action. The role of
discretion in the criminal justice system views the just circumstances on a certain event/incident. It allows for a
broader picture of what was right.

Issues of compliance and non-compliance in regard to criminal law

- There isn’t a specific criteria of what compliance and non-compliance looks like, although it is easy to identify at the
time. Regarding the use of reasonable force, there is an issue regarding whether the use of force was necessary, looking
at the individual, seeing if they were compliant or non-compliant.

The extent to which law reflects moral and ethical standards

- Unfortunately, the concept of reasonable force can have the moral and ethical standards questioned at times.

The role of law reform in the criminal justice system

- There isn’t a criteria of what compliance and non-compliance looks like, although it is easy to identify at the time. Is
to amend flaws in certain legislation.
- Law reform may take place to enhance and adjust the criminal justice system to make the system more just and
reflects moral and ethical standards.

The extent to which the law balances the rights of victims, offenders and society
- The law balances the rights
- Law does not balance the rights of the victim with the ‘offenders’ (police), offenders get more rights

The effectiveness of legal and non-legal measures in achieving justice.

Legal measures in achieving justice is very effective as it is what defines the justice
system, to follow a procedure. Non-legal measures help with achieving justice via the
legal process.

Part 2: Strip Searches

Watch the Redfern Legal Centre video below: According to LEPRA, under
what circumstances can the Police to strip search you? If they suspect on
reasonable grounds that you have something illegal in your possession
such as drugs, a weapon or something stolen.
- What rights do you possess in this situation?

Make sure they comply with the legislation. You can say you do not
consent to a strip search. If you are between 10-17, police are legally
required to obtain a support person such as a parent/guardian.

https://rlc.org.au/publication/strip-searches-and-law-nsw

For additional information, read section 31 of LEPRA:

http://www5.austlii.edu.au/au/legis/nsw/consol_act/leara2002451/s31.html
Read the Guardian Article below: Write down the major points and
relevant quotations.
https://www.theguardian.com/australia-news/2019/oct/22/nsw-police-officer-admits-his-
19-strip-searches-at-music-festival-may-have-been-illegal

What are the implications of this article with respect to the legality of strip
searches in NSW?
There isn’t a specific requirement to what defines urgency and
seriousness. Strip searches in NSW are a last resort and when used
against an individual you have to be careful as it could result in doing the
wrong actions. It is also know that the training regarding this wasn’t
sufficient and many officer’s were left not known what to do.

Themes and Challenges

Using the table below, brainstorm how the abuse of the power to strip
search relates to the syllabus themes and challenges.
You need to consider the case study and how it reflects the following themes and
challenges:
The role of discretion can cause implications regarding the power to strip search. Leaving
it up with the officers judgement in regards to strip searching.

Issues of compliance and non-compliance in regard to criminal law

Compliance is what the law aims to achieve, for the individuals to comply with the
criminal law. In terms of the power to strip search there is the issue of compliance as the
criminal law regarding strip searching is unjustified. Non-compliance in regards to
criminal law especially the power to strip search is a very personal issue which can cause
a lot of issues.

The extent to which law reflects moral and ethical standards

Underage strip search is happening as well it may evade someone’s privacy. The law to
strip search allows for possible illegal things to be taken away from people who could be
harmed. Although, the actual act of being strip searched may evade someone’s privacy
and especially with people under 18 being stripped searched reflects unethical standards.

The role of law reform in the criminal justice system

The role of law reform in the criminal justice system is a good way to fix and adjust
current laws which may not be clear or can cause a disturbance in the society.

The extent to which the law balances the rights of victims, offenders and society
Evades the privacy of being stripped searched, for offenders it also evades privacy but for
society as a whole, it protects the society.

The effectiveness of legal and non-legal measures in achieving justice.

 LECC investigation (Law Enforcement Conduct Commission), due to a number of specifc
complaints to a number of strip searches, underage and suspicious activity

Homework:
In a two paragraphs, assess the impact of compliance and
noncompliance on the criminal investigation process.
- Paragraph 1: Reasonable Force - Discretion
- Paragraph 2: Police use of strip searches. – (Another theme)

STEAL paragraph

Discretion in relation to reasonable force usually has a positive impact on the criminal
investigation process, however, in some cases it can be negative. Police possess the right to
use reasonable force to arrest a suspect. This ensures that police can easily detain a suspect,
prevent further crimes being committed and prevents the suspect from escaping. Part 18 of
the Law Enforcement (Powers and Responsibilities) Act 2002 states, “A police officer or
other person who exercises a power to arrest another person may use such force as is
reasonably necessary to make the arrest or to prevent the escape of the person after
arrest.” This shows how police have to use discretion when arresting someone and deciding
if using force is needed in that certain situation. However, there has been examples of cases
where police have abused that power as seen in the case of R v Ralph where police tasered
21-year-old, Roberto Curti 14 times resulting in his death after he was suspected in being
involved in an armed robbery. In a coronial inquest report the NSW Coroner, Mary Jerram
said, “The policeman acted like schoolboys from the Lord of Flies.” This case highlights the
dangers of using discretion with reasonable force when arresting and detaining suspects
and how police could abuse that power. In conclusion, when discretion is used in relation to
reasonable force it usually has a positive impact on the criminal investigation process.

Throughout a criminal investigation, police are allowed to go through with the use of Strip
searching someone if they believe on reasonable grounds that the person is holding an
illegal something. Non compliance with strip search laws in New South Wales is having an
incredibly negative impact on alleged offenders and consequently the criminal justice
system as a whole. Strip search laws in New South Wales include the Law Enforcement
(Power and Responsibilities) Act 2002 which states in section 31b of the Act, “the police
officer suspects on reasonable grounds that the strip search is necessary for the purposes of
the search and that the seriousness and urgency of the circumstances make the strip search
necessary.” However, police are carrying out strip searches on alleged victims without
reasonable grounds. An example of this was seen in the Splendour in the Grass Music
Festival where an officer carried out 19 illegal strip searches. This resulted in the Law
Enforcement Conduct Commission (LECC) Investigation of NSW Police Force Strip Search
after a number of specific complaints from community organisations. In a news report in
The Guardian written by Michael McGowan he stated, “The inquiry previously heard
evidence that drugs were found in less than 10% of the 143 strip searches carried out at the
festival.” This shows how the police had no reasonable grounds to carry out strip searches
and police are breaching LEPRA. In conclusion, non-compliance with strip searches in New
South Wales are having a negative impact on alleged offenders and the criminal justice
system as police officers are carrying out strip searches illegally.