Unlawful & Wrongful Arrest Lawyers In Australia
Police can’t just arrest anybody they want. The High Court in George v Rockett (1990) noted that statutory provisions permitting the arrest of individuals “authorise the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect”. The High Court indicated that in those circumstances strict compliance with the conditions on the exercise of the powers is required.
In the common law, it is well known that arrest is a measure of last resort. It must be necessary and there must not be other, less drastic options available to Police. For example, Deane J pointed out in Donaldson v Broomby [1982] FCA 58; (1982) 60 FLR 124 at [126] that:
“Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable.”
Justice Deane was right – taking away someone’s liberty is something that should not be done lightly. It is one of our most fundamental and basic human rights.
In every State and Territory, there are statutes which govern the strict circumstances in which police can arrest somebody without a warrant. If police breach that statute, then you may be able to sue them for false imprisonment, battery and/or assault.
What Constitutes Wrongful Arrest?
Police can’t just arrest anybody they want. If there is no warrant issued for somebody’s arrest, police can only arrest that person in very strict circumstances.
For example, in New South Wales, police can only arrest somebody without a warrant if:
- The police officer suspects on reasonable grounds that the person is committing or has committed an offence; and
- The police officer is satisfied that the arrest is reasonably necessary to achieve a particular person.
The courts have been clear that arrest is a measure of last resort. It must be necessary and there must not be other, less drastic options available to Police.
Taking away someone’s liberty is something that should not be done lightly. It is one of our most fundamental and basic human rights.
In every State and Territory, there are statutes which govern the strict circumstances in which police can arrest somebody without a warrant. If police breach that statute, then you may be able to sue them for false imprisonment, battery and/or assault.
If you believe you have been arrested unlawfully, we can help.
Do You Believe You Were Unlawfully Arrested?
If you believe you have been arrested unlawfully, we can help you with making a claim against the police.