THE STORY
The difficult times have brought out the best and the worst of all of us.
As New South Wales begins to relax these strict Codiv-19 restrictions, members of the public have taken a stand for their freedom.
A young Sydney mother, Ms. Renee Altakrity stood firmly and exercised her rights to freedom by protesting against what appears to be hard times. Shortly after, she was arrested by police for allegedly breaching the social distancing rules.
The News reported that Ms. Altakrity refused to give police her name to which the police responded with words to the effect of “I’m trying to speak to you…I am asking for your name because I do believe you are committing an offence”. The basis by which Ms. Altakrity refused to provide her name is unclear but in one of the videos she states, “Am I being detained”? by which the police responded “no you are not”.
The young mother was not alone in her protest, alongside her was her four-year-old son. Sadly, this did not stop police from exercising their discretionary powers to arrest the young mother with her son crying at the top of his lungs in fear of being separated from his mother.
According to nine news, the mother of three shouted at police saying words to the effect of “my son is with me. I am not under arrest for anything. You need to get your hands off me” as the police tried to separate her from her four-year-old son.
The young mother was then arrested and fined with an infringement notice for breaching the social distancing rules.
Interestingly enough, the Sydney Morning Herald stated yesterday that the number of fines issued under the public health order fell from 116 over the Easter period to no more than approximately five a day.
According to the police officer, there was a “belief that Ms Altakrity was committing an offence”.
National Criminal Lawyers® has watched the video and on behalf of the community our message to the police is simple – Arrest is a last resort!
IF POLICE ASK ME FOR MY DETAILS , DO I HAVE TO PROVIDE IT?
Whether you are walking down the street or driving in a car, if you are stopped by police, first step is to not panic. To avoid any issues, it is always best to provide police with your correct name, address, and date of birth.
This is because, pursuant to section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (‘LEPRA’ hereafter):
“(1) A police officer may, without a warrant, arrest a person if—
(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and
(i) to stop the person committing or repeating the offence or committing another offence,
(ii) to stop the person fleeing from a police officer or from the location of the offence,
(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false”.
In other words, you may be lawfully arrested if you fail to provide your details to the police if the police believe on reasonable grounds that you have or are about to commit an offence.
In the current case, the police stated, “I do believe you are committing an offence”, whereas they contradict themselves in other times of the videos by saying “you are not being detained”.
Police also have powers to deal with these matters using other discretionary powers. For example, in this case it was open for the police to their powers to issue a move along direction or warn her that she may be arrested.
WHAT IS A MOVE ON DIRECTON?
A move on direction, in simple terms, is the police telling you to leave a particular area to put an end to your conduct if it is considered inappropriate. These powers are governed under Schedule 3 of the Law Enforcement (Powers and Responsibilities) Regulations 2016. Click here for further information on move on directions. More importantly, section 1 of the Regulations states the following:
(1) A police officer has the power to give directions to a person or group of people for the purpose of putting an end to certain conduct in a public place.
(2) This Code of Practice provides police officers with guidance relating to the exercise of these powers and the rights of persons to whom directions are given”.
WHAT EXACTLY WERE POLICE RELYING ON TO MAKE THE ARREST?
As criminal lawyers we look at the facts. When assessing the facts, we at the full picture.
When we break this down, it was no different from an ordinary citizen breaking the social distancing rules. However, in this case, the police decided to take a different approach and arrest the young mother without a warrant on grounds that are not even clear. Under The Act, the police may seek to rely on the following subsection:
“(i) to stop the person committing or repeating the offence or committing another offence”.
Should this matter proceed to a defendant hearing, it would be open to Ms. Altakrity to persuade the Court that the arrest was unlawful.
UNLAWFUL ARREST
In this case, the offence was one which is considered trivial and the Superior Courts have often stated that arrest should be a last resort. Furthermore, this often would need to be accompanied by conduct of police during the circumstances of the discussions with the person alleged to have committed the offence. For example, was there any warning to the suspect that if she does not provide her license, she would be arrested?
The police could have dealt with the matter by simply issuing a move on direction to Ms. Altakrity which would have put an end to the situation or at the very least warn Ms. Altakrity that failure to provide her details may result in her being arrested. None of these powers were exercised, it appears from the footage.
ARREST AS A LAST RESORT?
Unfortunately, in this case, the decision to arrest the young mother was not a last resort. As discussed, during the COVID-19 pandemic, police are dealing with these matters by issuing infringements for breaching social distancing rules. This will have an everlasting impact on Ms Altakrity, her son, and the wider community. This experience would be extremely traumatic for the young boy. We can only hope that this never happens to any of us in the future.
WHAT EXACTLY DOES THE CASE LAW SAY?
The case law suggests, when a person has committed a trivial offence such as offensive language or conduct, often-time this allows police to consider issuing further more serious offences such as assault or resist arrest.
The well-known case of Christie v Leachinsky (1947) AC 573 held the following:
“Putting things first, I would say that it is the right of every citizen to be free from arrest”
This principle is consistent with the very principle laid down in DPP v Carr (2002) NSWSC 194 where the Court states
“Arrest is a means of setting the criminal process in train which should be reserved for situations where it is clearly necessary and should not be employed where the issue of a summons will suffice”.
It is clear in this case that the police could have dealt with the matter by way of a summons. Sadly, this was not done.
It has well been noted that if an arrest was unlawful, then anything that follows, such as resisting police arrest, would be considered lawful.
WHAT IS CONSIDERED “REASONABLE GROUNDS”?
Fortunately, the police can only exercise their discretion under LEPRA if the following factors are satisfied:
“(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and
(b) the police officer is satisfied that the arrest is reasonably necessary”
To satisfy the threshold of reasonable grounds, the police must have an objective basis. What that means is there must be some factual reason or grounds to stop you and ask for your name. For example, if you were seen walking in the direction shortly after a crime was committed, this may be considered a reasonable ground.
The police search manual provides a quick guide outlining what powers the police have. Click here to read the police search manual.
WHAT DO YOU DO IF YOU HAVE BEEN STOPPED AND NEED ASSISTANCE?
It is always best to exercise your right to silence but if you ever feel trapped or in need of a assistance, contact us immediately for a free consultation. Our Sydney criminal lawyers are second to none and we are there to ensure that your rights are never breached and we get you the best possible result.