Define 'Duty of Care'
A legal obligation to ensure no harm comes to a person.
Identify & Explain the legislation that imposes a duty of care on police.
- Police Act 1990 - Oath of Office
- NSW OH&S Act 2000 - Duties of Employees
- Part 9 Lepra - s109 to provide for the rights of a person so detained
- In the discharge of your duty you must:
- 1) take all reasonable steps to avoid an act or omission that might harm another
- 2) protect people from risks that are foreseeable.
Explain Reasonable Foreseeability
- *When you can foresee the possibility of something happening
- * predict/envisage the event happening
- * could a reasonable person see something could possible happen.
- *a danger which a reasonable person should anticipate as the result from his/her actions
the breach of duty owed by one person to another, a duty to take care, to do the things a reasonable prudent man would do and not do.
What 2 factors will be examined in determining whether a police officer was negligent in their duty of care?
- 1. was it reasonably foreseeable?
- 2. was it negligent by a reasonable prudent man - were all reasonable steps taken to avoid an act or omission that may harm another.
Define Legal access
The lawful right to arrest or detain a person.
- a) do you have sufficient evidence
- b) has an offence been committed
- c) duty requires response (intoxicated person, mentally-ill, medical assistance, RBT etc)
- a) compliance
- b) prevent from leaving
- c) restrain
when control and legal access are combined you have custody
The suspect is not free to leave.
Under what section in LEPRA pertaining to search powers, allowing police to take property to ensure no harm comes to a person.
s24 - A police officer may search a person who is in lawful custody (whether at a police station or at any other place) and seize and detain anything found on that search.
Explain Part 9 of Lepra and how it pertains to Police
- Part 9 - Investigations & Questioning
- sections 109 - 132
- s109 states that the objects of this part are:
- a) to provide for the period of time that a person who is under arrest may be detained by a police officer to enable the investigation of the persons involvment in the commission of an offence, and
- b) to authorise detention of a person who is under arrest for such a period despite any requirement imposed by law to bring the person before a magistrate without delay and
- c) to provide for the rights of a person so detained.
s110 Lepra - what is the definition of a person under arrest.
- s110(a) the pO believes that there is sufficient evidence to establish that the person has committed an offence that is or is to be the subject of the investigation. or
- (b) the PO would arrest the person if the person attempted to leave
- c) the PO has given the person reasonable grounds for believing that the person would not be allowed to leave if the person wished to do so.
Explain s110(3) LEPRA - Part 9 Investigations & questioning.
A person is not taken to be under arrest because of subsection (2) merely because the PO is exercising a power under a law to detain & search the person or to require the person to provide information or to answer questions.
Explain s115 Investigation Period - Part 9 Investigations & questioning
s115 (1) The investigation period is a period that begins when the person is arrested & ends at a time that is reasonable but does not exceed the max inv time
s115(2) The max inv time is 4hrs or as the max inv period may be extended to by a detention warrant. up to another 8 hrs per s118.
Explain s116 - Part 9 Lepra investigation & questioning
Determining Reasonable time
* taking into account a persons age, physical capacity & mental capacity
* whether the person is necessary for the investigation
* whether the person has indicated a willingness to make a statement or answer questions.
*Is the interview room available
Explain s117 - Part 9 Lepra Investigation & questioning Powers - Time Outs
- The following 14 exclusions are not to be taken into account as part of the 4hrs investigation time
- a) to convey the person from place of arrest to nearest investigative facilities (IE police station)
- b)time spent waiting for the arrival of specialist police officers
- c) waiting for ERISP facilities to become available ( s281 Criminal procedures Act 1986)
- d) time to communicate with friend, relative,guardian, lawyer etc
- e) time for the friend, relative, guardian or lawyer to arrive at the police station
- f) time for the friend, relative, guardian or lawyer to consult with the offender
- g) Medical attention
- h) Interpreter
- i) identification parade to be arranged & conducted
- j) rest/refreshments for offender
- k) time allowed for person to recover from affects of drugs/alcohol
- l) preparation of detention warrant or search or crime scene warrants
- m) charging procedures
- n) forensic procedures
Explain s112 Vulnerable persons
- a) person under 18
- b) ATSI
- c) NESB
- d) physical or intellectual disability
Explain s114(6) LEPRA Investigation & questioning
If a person is arrested more than once within any period of 48hrs the inv period for each arrest othr than the first is reduced by the amount in the first arrest.
Explain s114(7) LEPRA Investigation & questioning
The investigation time is not reduced if the later or next arrest relates to an offence that the person is suspected of having committed after the person was released or taken before justice in respect to the earlier of firt arrest.