MHCC Mental Health Rights Manual

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Part 6 Section B: Role and powers of the police

6B.1: Introduction

This section includes information about:

6B.2: The NSW Police Force

Australia has state and territory police forces, for example, in NSW there is the NSW Police Force, and a separate national police force called the Australian Federal Police. The state and territory police deal with the state and territory criminal laws. The Australian Federal Police deal with Commonwealth criminal laws and general policing in the Australian Capital Territory.

The NSW Police Force states that its main roles are:

Other major services that the NSW Police Force provide include:

  • traffic control; and
  • criminal intelligence analysis.

6B.3: What is a crime?

You have committed a crime when you have done something wrong according to a criminal law and that is punishable by a court. Another term for crime is 'offence' or 'criminal offence'. A person who has committed a crime is called an 'offender'. If a person is thought to have committed a crime, they may be referred to as an 'alleged offender'.

There is a range of crimes, some are considered far more serious than others. The seriousness of a criminal offence is usually reflected in the maximum penalty that can be imposed when a person commits that offence.

Some crimes can be dealt with 'on the spot' with the issuing of an on-the-spot fine. These tend to be relatively minor crimes, such as travelling on public transport without a ticket, and some driving offences. For more about fines, click here.

Other crimes can result in the person accused of the crime being arrested and held in police custody. These are usually more serious crimes and are more likely to be dealt with formally through a court hearing. For more about criminal cases in the courts, click here.

6B.4: Who else polices activities

As well as the police, there are other people who have some powers similar to the police, such as CityRail and CountryLink Transit Officers, and Local Government Rangers.

CityRail Transit Officers can:

  • issue infringement notices (on-the-spot fines) for railway offences such as fare evasion, smoking under cover on a railway station, and other conduct that is an offence under the Rail Safety Act 2008 (NSW) and the Rail Safety (Offences) Regulation 2008 (NSW);
  • require people they suspect of committing a railway offence to provide their correct name and address; (unless they are 'special constables', Transit Officers don't have a general power beyond this limited situation to demand identification);
  • require a person to leave a train or railway station if they are believed to have committed certain offences (including railway offences) or are causing nuisance to others;
  • check passenger's tickets and concession cards;
  • in certain circumstances, arrest alleged offenders and hand them over to the NSW Police; (unless they are 'special constables', Transit Offices don't have any special power of arrest beyond a citizen's arrest).

CountryLink Transit Officers have similar powers.

There are also Revenue Protection Officers who do a similar job and have similar powers on buses and ferries.

If you believe you have been wrongly fined or dealt with by any of these officers, you should first contact the authority they work for to make a complaint. You can also go to the Local Court to challenge a fine. To find out about getting advice, click here.

6B.5: Police powers 'on the streets'

Sometimes people with mental illness find themselves homeless, and therefore physically vulnerable. Sometimes people with mental illness find that their behaviour or way of speaking means they become the focus of attention in public places. Both of these situations have the potential to lead to situations were the police may be called.

Police take their role in maintaining public order seriously.

People are allowed to be in public places and generally the police do not have the power to do anything unless a criminal offence has been committed or the police have a 'reasonable suspicion' that an offence will be committed.

However, recent changes to the law have given the police more powers to intervene to 'maintain public order'. An example is that members of the NSW Police Force have the power to order a person to 'move on' if they are 'noticeably' drunk.

For more information on police 'street' powers: click here to access Legal Aid NSW's information page on police powers in NSW, 'Get Street Smart', or click here to access the Shopfront Youth Law Centre's information page about police powers and your rights.

For information on police powers of arrest, click here to go to the next page of the Manual.

6B.6: Police powers of arrest

If the police reasonably suspect that you have committed a crime, they can arrest you. Reasonable suspicion is very different from proof beyond reasonable doubt, which is the standard of proof required when you finally go to court for the hearing of a criminal charge. If a person told the police that you did something that was a crime, unless the police have a lot of other evidence that you didn't do what that person said you did, this would be enough for the police to have a reasonable suspicion that you had committed a crime.

Criminal cases can begin either by the police arresting the alleged offender or by giving or sending the alleged offender a document ordering them to be at court at a particular time and date for the hearing of the criminal charge (this document is called a 'summons'). Cases dealing with street offences (such as 'resist arrest' or 'use offensive language'), even though they are not as serious as other offences, often begin with the person being arrested by the police.

Police have some discretion (that is, choice) about whether to arrest someone or not. This usually depends on the seriousness of the crime. Some crimes can be dealt with by the police giving a warning. Some less serious crimes, including most traffic and parking offences, are dealt with by a 'penalty' or 'infringement' notice (an 'on-the-spot fine'). If you are given a penalty notice you can either decide to pay the amount of the fine or choose ('elect') to have the matter go to court .

Police also have power under the Mental Health Act 2007 (NSW) to take you, using force if necessary, to a psychiatric hospital or unit. Sometimes the police have a choice of whether to charge a person with mental illness with having committed a relatively minor crime or to take them to a psychiatric hospital.

If you find yourself in a situation where you want to go to a hospital and fear that you may be arrested instead, you should make sure the police know:

  • You want to go to a hospital and are willing to be treated for a mental illness;
  • Who you have had contact with in mental health services previously (if at all) including the names and contacts for any treating caseworkers and/or doctors;
  • The contact details of your family and friends.

The next page gives you information on what to do and what not to do if arrested, click here.

6B.6.1: What to do if you are arrested

If you are arrested, it is important:

  • NOT to resist arrest
  • NOT to yell, swear or be abusive
  • NOT to answer any questions except to give your name and address
  • NOT to say anything without legal advice
  • NOT to sign any statement or document, or make any statement, without legal advice
  • NOT to plead guilty (that is, say you did what you are being accused of) without legal advice
  • TO ask why you are being arrested
  • TO give your correct name and address
  • TO ask the police for a telephone so you can contact a lawyer
  • TO ask for bail.

The NSW Law Society has an advice sheet, 'Under arrest?' that you might find useful.

 

Disclaimer

  • The legal and other information contained in this Section is up to date to 13 September 2010
  • This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
  • MHCC does not guarantee the accuracy nor is responsible for the content or the currency of the content of external documents and websites linked to this Manual.