The Law Handbook 2024

Chapter 3.5: Arrest, search, interrogation and your rights 175 Arrest by warrant Arrests by warrant are the exception, rather than the rule. A warrant names the person to be arrested, and should be read and shown to that person at the time of arrest. It does not have to be handed to the person. A warrant is normally used in situations where a person on bail or summons has failed to attend court as required, if there is a hunt proceeding for an identified major offender, or in the case of an escapee from prison. A magistrate or registrar should not issue an arrest warrant if a summons would be just as effective in ensuring the appearance of the accused at court. Before issuing a warrant, a magistrate or registrar must be satisfied that: • the defendant won’t answer a summons; or • the defendant has absconded or is likely to abscond; or • it is required for another good cause (s 12(5) CP Act). Justices of the peace cannot issue warrants. For Commonwealth offences committed in the state where a warrant has been issued, federal police and customs officers are obliged to apply the law of the state in which the offence was committed. A significant exception to the general require­ ments in relation to arrest and detention is contained in the Australian Security Intelligence Organisation Act 1979 (Cth). The Act provides for the detention of a person (not necessarily a suspect) for up to 24 hours – or, if an interpreter is required, for up to 40 hours – for questioning under a warrant, where there are reasonable grounds for believing that this questioning will assist in the collection of intelligence in relation to espionage, politically motivated violence, or acts of foreign interference. Power to search with warrant Courts can issue a warrant requiring someone to be brought in for the hearing of an application for an order requiring that person to undergo a forensic procedure. In this case, the warrant gives police power to break, enter and search any place where that person is suspected to be. Extradition A person may be apprehended and brought before a court if there is a warrant to ‘extradite’ them from one state to another. All that needs to be shown is that the court has before it a warrant showing that, by proper process, a prosecution has begun in the other state against the person. No evidence is needed that a crime has been committed in the state from which extradition is sought. Further, no evidence is needed that the person is guilty of the crime that they are alleged to have committed, in the state to which their extradition is sought. The court hearing the extradition application can: • order the person to be returned to the other state by delivering them into police custody; or • release the person on bail with specific cond- itions; or • if the warrant is not produced after an adjourn- ment to allow time for it to be produced, order the person be released; or • if satisfied the warrant is invalid, order the person be released (s 83 Service and Execution of Process Act 1992 (Cth)). While most extradition proceedings result in the suspect being returned to the other state for the hearing of a charge, it is often useful for the suspect to be legally represented at the extradition hearing. Cross-examination of police officers involved may uncover vital information as to the strength of the police case, thus enabling more adequate defence preparation. A transcript of those proceedings could be useful at a later time. Method of arrest Arrest or ‘apprehension’ involves the actual seizure or touching of a person’s body with a view to detaining them. Actual capture is not essential. If there is no touching of the person’s body, then there is no arrest, unless the person submits and goes with the arresting officer. This applies, even when the words of arrest are pronounced. The person arrested must be informed of the substance of the charge (even if only in general terms). This rule is designed to help people arrested to clear themselves, if desired, by giving an explanation at the earliest opportunity. The requirement that information about the charge must be given does not apply where the circumstances are such that the suspect must know the nature of the alleged offence (e.g. if they are caught ‘red-handed’) or where the suspect makes it impossible for the police to supply the necessary