Part 18Arrest

Part 18—Arrest 75—Power of arrest A police officer, without any warrant other than this Act, at any hour of the day or night, may apprehend any person whom the officer finds committing, or has reasonable cause to suspect of having committed, or being about to commit, an offence. 76—Arrest by owner of property etc (1) If the owner of any property, or the servant or agent of the owner of any property, finds a person committing an offence on, or with respect to, that property, the owner, or the servant or agent, may apprehend the offender and deliver the offender as soon as reasonably practicable into the custody of a police officer to be dealt with according to law. owner, in relation to property consisting of land, a building or other premises, includes an occupier of, and a person resident on or in, the land, building or premises. 77—Arrest of persons pawning or selling stolen goods (1) If a person to whom any property is offered (for sale, as a pawn or in some other kind of commercial transaction) has reasonable cause to suspect that the person offering the property has stolen it, or obtained it by unlawful means, the person may— (a) apprehend and detain that other person until he or she can be delivered into the custody of a police officer; and (b) seize and detain the property until it can be delivered into the custody of a police officer. (2) A person who exercises a power of apprehension or seizure under this section must take the necessary action to have the person or property delivered into the custody of a police officer as soon as reasonably practicable. 78—Person apprehended without warrant—how dealt with (1) Subject to this section, a person who is apprehended without warrant must, as soon as reasonably practicable, be delivered into the custody of— (a) the police officer in charge of the nearest custodial police station; or (b) a police officer at a designated police facility. (2) If a person is apprehended without warrant on suspicion of having committed a serious offence, a police officer may, for the purposes of investigating the suspected offence, before dealing with the person in accordance with subsection (1)— (a) detain the person for whichever is the lesser of— (i) the period necessary to complete the immediate investigation of the suspected offence; or (ii) 4 hours or such longer period (not exceeding 8 hours) as may be authorised by a magistrate; and (b) take the person, or cause him or her to be taken, during the course of detention under paragraph (a), to places connected with the suspected offence. (2a) In determining the period that has elapsed since the apprehension of a person for the purposes of subsection (2)(a), the following will not be taken into account: (a) any delay occasioned by arranging for a solicitor or other person to be present during the investigation; (b) any delay occasioned by allowing the person to receive medical attention; (c) the time that would have been reasonably required to convey the person from the place of apprehension to— (i) the nearest custodial police station; or (ii) the designated police facility, (assuming that the person had been taken as soon as reasonably practicable to the custodial police station or designated police facility). (3) If a person has been detained in custody under subsection (1), the person may, on the authorisation of a magistrate, be temporarily removed from that custody to the custody of a police officer for a purpose related to the investigation of an offence. (3a) A person who has been apprehended without warrant and detained in custody at a designated police facility must, as soon as reasonably practicable, be delivered into the custody of the police officer in charge of the nearest custodial police station if any of the following occurs: (a) the person declines to make an application for release on bail; (b) a decision is made to refuse an application for bail made by the person; (c) 2 hours, or such longer period (not exceeding 4 hours) as may be authorised by a magistrate, has elapsed since the person has been detained in custody at the police facility and the person has not been released (whether on bail or otherwise). (3b) In determining the period that has elapsed since detention in custody at a designated police facility for the purposes of subsection (3a)(c), the following will not be taken into account: (a) any delay occasioned by arranging for a solicitor or other person to be present; (b) any delay occasioned by allowing the person to receive medical attention; (c) any period during which the person is temporarily in the custody of a police officer under subsection (3). (3c) A person who is detained in the custody of a police officer at a designated police facility may be transferred into the custody of another police officer at the police facility. (4) An application to a magistrate for an authorisation under this section may be made by telephone and, if an application is so made, a written record must be made in the prescribed form stating— (a) the grounds on which the application was made; and (b) whether the application was granted and, if so, the terms and conditions on which it was granted, and the record must be confirmed by the signature of the magistrate to whom the application was made. (5) If it is decided not to charge a person who is apprehended on suspicion of having committed an offence, the police officer who is in charge of the investigation of the suspected offence must ensure that the person is, if the person so requires— (a) returned to the place of apprehension; or (b) delivered to another place that may be reasonably nominated by the person. (6) The Commissioner may, by instrument in writing, approve the use of any of the following as a designated police facility: (a) a specified room, building or structure (whether permanent or temporary); (b) a specified vehicle; (c) a vehicle of a specified class. (7) An approval under subsection (6) of a designated police facility must— (a) specify the use of the designated police facility— (i) for a specified event or purpose; or (ii) for a specified police operation; or (iii) for an event or a purpose of a specified class; or (iv) for a police operation of a specified class; or (v) for a specified area of the State outside Metropolitan Adelaide (within the meaning of the Development Act 1993); and (b) specify conditions for the use of the designated police facility. (8) The Commissioner may, by subsequent instrument in writing, vary or revoke an approval under subsection (6). (9) In proceedings, a certificate apparently signed by the Commissioner certifying as to a matter relating to an instrument under subsection (6) or (8) constitutes proof, in the absence of proof to the contrary, of the matters so certified. (10) In this section— custodial police station means a police station at which cell facilities are available for the continuous care and custody of an apprehended person; designated police facility, in relation to a person apprehended without warrant, means— (a) in the case of a person apprehended within an area of the State in respect of which there is an approval in force under subsection (6)— (i) the place or vehicle used as a designated police facility in accordance with the approval that is nearest the place of apprehension; or (ii) if the person is apprehended at, or in connection with, an event or police operation in respect of which there is an approval in force under subsection (6)—a place or vehicle used as a designated police facility in accordance with the approval; or (b) in any other case— (i) the police station nearest the place of apprehension; or (ii) if the person is apprehended at, or in connection with, an event or police operation in respect of which there is an approval in force under subsection (6)—a place or vehicle used as a designated police facility in accordance with the approval; nearest custodial police station, in relation to a person apprehended without warrant, means— (a) in the case of a person apprehended within a radius of 30 kilometres from the General Post Office at Adelaide— (i) the police station at Adelaide known as the City Watch House; or (ii) any other custodial police station within that radius; (b) in any other case—the custodial police station nearest the place where the person is apprehended; serious offence means an indictable offence or an offence punishable by imprisonment for 2 years or more. 78A—Power of arrest in cases of certain offences committed outside the State (1) This section applies to an offence— (a) that is an offence against the law of a State (other than this State) or a Territory of the Commonwealth; and (b) that consists of an act or omission which, if it occurred in this State, would constitute— (i) an indictable offence; or (ii) an offence punishable by imprisonment for two years or more. (2) Any police officer may, without any warrant other than this Act, at any hour of the day or night, apprehend a person whom the officer has reasonable cause to suspect of having committed an offence to which this section applies. (3) Subject to section 78, a person apprehended pursuant to this section must be brought as soon as practicable before the Magistrates Court and the Court— (a) may discharge the person; or (b) may— (i) admit the person to bail on such conditions and guarantees as the Court thinks fit; or (ii) commit the person to custody, pending the issue of a warrant for the person's apprehension under the law of the State or Territory in which he or she is alleged to have committed the offence, and the execution of that warrant. (4) Where a person has been detained or admitted to bail pursuant to subsection (3) and a warrant for the person's apprehension is not issued and executed within a reasonable time (not exceeding seven days), that person must be discharged from custody or released from bail (as the case may require) by the Court. (5) The provisions of the Summary Procedure Act 1921 apply, with any necessary modifications, in relation to proceedings under this section. 79—Arrest without warrant if warrant has been issued (1) A police officer may, without a warrant, take into custody a person whom the officer has reasonable cause for believing or suspecting to be a person for whose apprehension or commitment a warrant has been issued by a justice. (2) If a police officer, without a warrant, takes into custody a person whom the officer has reasonable cause for believing or suspecting to be a person for whose committal a warrant has been issued by a justice, the officer must, as soon as reasonably practicable, deliver that person into the custody of the police officer in charge of the nearest police station and must, as soon as conveniently may be, produce or cause to be produced to the person taken into custody the warrant of commitment (if any), and the person must then be dealt with as required by the warrant. (3) If a person taken into custody is in need of medical treatment before being delivered as required under this section, the requirement to deliver the person as soon as reasonably practicable does not prevent the immediate provision of necessary medical treatment. 79A—Rights on arrest (1) Subject to this section, where a person is apprehended by a police officer (whether with or without a warrant)— (a) the person is entitled to make, in the presence of a police officer, one telephone call to a nominated relative or friend to inform the relative or friend of his or her whereabouts; and (b) where the person is apprehended on suspicion of having committed an offence— (i) the person is entitled to have a solicitor, relative or friend (in the case of a minor the relative or friend must be an adult) present during any interrogation or investigation to which the person is subjected while in custody; and (ii) if English is not the person's native language—the person is entitled, if he or she so requires, to be assisted at an interrogation by an interpreter; and (iii) the person is, while in custody, entitled to refrain from answering any question (unless required to answer the question under this or any other Act or law). (1a) Where a minor has been apprehended on suspicion of having committed an offence and— (a) the minor does not nominate a solicitor, relative or friend to be present during an interrogation or investigation relating to the suspected offence; or (b) the solicitor, relative or friend nominated by the minor is unavailable or unwilling to attend the interrogation or investigation, then, subject to subsection (1b), the minor must not be subjected to an interrogation or investigation until the police officer in charge of the investigation of the suspected offence has secured the presence of— (c) a person, or a person of a class, nominated by the Chief Executive within the meaning of the Youth Justice Administration Act 2016 to represent the interests of children subject to criminal investigation; or (d) where no such person is available, some other person (not being a minor, a police officer or an employee of the Police Department) who, in the opinion of the police officer, is a suitable person to represent the interests of the minor. (1b) An interrogation or investigation may proceed despite subsection (1a) if— (a) the suspected offence is not an offence punishable by imprisonment for two years or more; and (b) it is not reasonably practicable to secure the presence of a suitable representative of the child's interests as contemplated by that subsection. (2) The police officer who is in charge of the investigation of a suspected offence in relation to which a person has been apprehended may decline to permit— (a) the person in custody to make a telephone call to a particular person (being a relative or friend); or (b) a particular person (being a relative or friend of the person who has been taken into custody) to be present at an interrogation or investigation, if the officer has reasonable cause to suspect that communication between the person in custody and that particular person would result in an accomplice taking steps to avoid apprehension or would prompt the destruction or fabrication of evidence. (3) A police officer must, as soon as is reasonably practicable after the apprehension of a person— (a) inform that person of his or her rights under subsection (1); and (b) warn the person that anything that he or she may say may be taken down and used in evidence. 79B—Removal and storage of vehicle in case of arrest of driver (1) Subject to subsection (2), where a police officer arrests the driver of a motor vehicle, the officer may remove, or arrange for the removal of, the motor vehicle to a place at which it may be safely and conveniently stored. (2) A police officer may not remove, or arrange for the removal of, a motor vehicle under subsection (1) if— (a) the driver referred to in subsection (1) is being accompanied by another person who is lawfully entitled to drive the vehicle; and (b) the driver authorises that other person to remove the vehicle; and (c) the vehicle is removed within a reasonable period. (3) No liability attaches to a police officer in relation to any damage to a motor vehicle caused while the motor vehicle is being removed or stored under this section. (4) A liability that would, but for subsection (3), lie against a police officer lies against the Crown. (5) A police officer who removes, or arranges for the removal of, a motor vehicle under this section must notify the driver in writing of the place to which the vehicle has been removed. (6) A vehicle removed and stored under this section must be returned to a person entitled to possession of the vehicle upon payment of the reasonable costs of removal and storage calculated in accordance with a scale in force under subsection (7). (7) The Commissioner may prepare and from time to time revise a scale of costs for the purposes of subsection (6). (8) If no application for the return of the vehicle is made within 2 months after it was taken into storage, it may be dealt with as unclaimed property under the Police Act 1998. 80—Power of entry and search in relation to fires and other emergencies A police officer may, at any time of the day or night, with or without assistance— (a) enter and inspect land, premises or an object for the purpose of determining the cause of a fire or other emergency; or (b) remove an object or material that may tend to prove the cause of a fire or other emergency; or (c) retain possession of an object or material for the purpose of an investigation or inquiry into the cause of the fire or other emergency. 81—Power to search, examine and take particulars of persons (1) A person who is taken into lawful custody may be searched in accordance with this section and anything found as a result of the search may be removed. (2) The following provisions apply to a search under this section: (a) the search may only be carried out by a police officer or a medical practitioner or registered nurse acting at the request of a police officer, but an intrusive search may only be carried out by such a medical practitioner or registered nurse; (b) the person carrying out the search may use such force as is reasonably necessary for the purpose and may be assisted by a police officer or other person; (c) where a medical practitioner or registered nurse is to carry out an intrusive search, the detainee must be allowed a reasonable opportunity to arrange for the attendance, at the detainee's expense, of a medical practitioner or registered nurse of his or her choice to witness the search. (3) The following further provisions apply to an intimate search: (a) if an intimate search is to be carried out on a detainee who is a minor, the search must not be carried out unless a solicitor or adult relative or friend, nominated by the minor, is present (but this paragraph need not be complied with if, in the opinion of a police officer, it is not reasonably practicable to do so in view of the urgency of the search); (b) if an intimate search is to be carried out on a detainee whose native language is not English and who is not reasonably fluent in English, the detainee must be informed that he or she may request the assistance of an interpreter; (c) if a detainee requests the assistance of an interpreter under paragraph (b), the search must not be carried out unless an interpreter is present (but paragraph (b) and this paragraph need not be complied with if, in the opinion of a police officer, it is not reasonably practicable to do so in view of the urgency of the search); (d) except where it is not reasonably practicable to do so, an intimate search must be carried out by a person of the same sex or gender identity as the detainee (unless the detainee requests otherwise); (e) except where it is not reasonably practicable to do so, an audio visual record of an intimate search must be made (but that part of an intimate search that consists of an intimate intrusive search will not be recorded if the detainee objects); (f) if, apart from the question of whether or not the detainee objects to the recording, it is otherwise reasonably practicable to make an audio visual record of an intimate search, the police officer supervising the search must, before the search is carried out— (i) give the detainee a written statement in a form approved by the Minister outlining— (A) the value of making an audio visual record of the search; and (B) that the detainee may object to the search being so recorded; and (C) where relevant, that if the detainee objects to an intimate intrusive search being recorded, the intimate intrusive search will not be recorded; and (ii) read the statement to the detainee (with the assistance of an interpreter if one is to be present during the search); (g) if an audio visual record of an intimate search, or that part of an intimate search that consists of an intimate intrusive search, is not to be made, the police officer must ensure— (i) that a written record of the search is made at the time of or as soon as practicable after the search, documenting all items found on the detainee and everything said and done by all persons present; and (ii) that, as soon as practicable after the search, the record is read aloud to the detainee and an audio visual record of the reading is made; and (iii) that, when the audio visual recording begins (but before the reading begins) the detainee is invited to interrupt the reading at any time to point out errors or omissions in the record; and (iv) that, if the detainee in fact interrupts the reading to point out an error or omission, the detainee is then allowed a reasonable opportunity to do so; and (v) that, at the end of the reading, but while the audio visual recording continues, the detainee is again invited to point out errors or omissions in the record and allowed a reasonable opportunity to do so; and (vi) that, if the police officer agrees that there is an error or omission in the record, the officer amends the record to correct the error or omission and if the officer does not agree that there is an error or omission in the record, the officer nevertheless makes a note of the error or omission asserted by the detainee in an addendum to the record. (3a) In deciding whether it is reasonably practicable to make an audio visual record under this section, the following matters must be considered: (a) the availability of recording equipment within the period for which it would be lawful to detain the detainee; (b) mechanical failure of recording equipment; (c) any objections made to the recording by the detainee; (d) any other relevant matter. (3b) If an audio visual record is made under this section, the police officer must, as soon as is reasonably practicable, give the detainee a written statement of his or her right— (a) to have the audio visual record played over to the detainee or his or her legal adviser (or both); and (b) to obtain a copy of the audio visual record. (3c) Arrangements must be made, at the request of a detainee, for the playing of an audio visual record at a reasonable time and place to be nominated by the police officer. (3d) A detainee must be provided, on request and on payment of the fee fixed by regulation, with a copy of an audio visual record made under this section. (3e) A person (other than the detainee) must not play, or cause to be played, an audio visual record made under this section except— (a) for purposes related to the investigation of an offence or alleged misconduct to which the person reasonably believes the recording may be relevant; or (b) for the purposes of, or purposes related to, legal proceedings, or proposed legal proceedings, to which the recording is relevant. (3f) An audio visual record made under this section or a written record of an intimate search must be destroyed— (a) if the Commissioner of Police is satisfied that it is not likely to be required for any of the purposes referred to in subsection (3e); or (b) if a court or tribunal so orders. (3g) The Governor may, by regulation, provide for the storage, control, movement or destruction of audio visual records and written records made of intimate searches under this section. (4) Where a person is in lawful custody on a charge of committing an offence, a police officer may, if the officer believes on reasonable grounds that it is necessary to do so for the purpose of identifying that person or identifying that person as the person who committed an offence— (a) take, or cause to be taken, photographs of that person and prints of the hands, fingers, feet or toes of that person, and may use, or cause to be used, such reasonable force as is necessary for that purpose; (c) make a recording of the voice of that person; (d) request that person to supply a sample of his or her handwriting. (4a) A police officer may not exercise a power under subsection (4) for the purpose of identifying a person in lawful custody as the person who committed an offence unless— (a) the person has been charged with the offence; or (b) the police officer is acting upon the authorisation of a magistrate given under this section. (4b) For the purposes of subsection (4a), a police officer may obtain the authorisation of a magistrate upon application made in person or, if it is impracticable to do so in person, upon application made by telephone. (4c) A magistrate to whom application is made under subsection (4b) may give the authorisation if the magistrate thinks it proper to do so in all the circumstances of the case. (4d) Where application is made under subsection (4b) in person, the magistrate must give an authorisation in writing and where application is made under that subsection by telephone, the magistrate must, as soon as is practicable after giving the authorisation, cause a written memorandum of the authorisation to be forwarded to the police officer who made the application. (4e) A person who refuses or fails to comply with the reasonable directions of a person who seeks to obtain a sample of his or her voice or handwriting under subsection (4) is guilty of an offence. Maximum penalty: $1 250 or imprisonment for 3 months (4g) A procedure under this section— (a) must be carried out humanely and with care— (i) to avoid, as far as reasonably practicable, offending genuinely held cultural values or religious beliefs; and (ii) to avoid inflicting unnecessary physical harm, humiliation or embarrassment; and (b) must not be carried out in the presence or view of more persons than are necessary for properly carrying out the procedure and satisfying any relevant statutory requirements. (5) The powers given by this section are in addition to, and do not derogate from, any other powers of police officers. (5a) No civil or criminal liability is incurred by a person who carries out, or assists in carrying out, a procedure under this section for an act or omission if— (a) the person genuinely believes that the procedure is authorised under this section; and (b) the act or omission is reasonable in the circumstances. intimate intrusive search means an intrusive search of the rectum or vagina; intimate search means a search of the body that involves exposure of, or contact with the skin of, the genital or anal area, the buttocks or, in the case of a female, the breasts, and includes an intimate intrusive search; intrusive search means an internal search involving the introduction of anything into a bodily orifice; medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student); registered nurse means a person registered under the Health Practitioner Regulation National Law— (b) in the registered nurses division of that profession. 82—General powers, privileges, duties etc of police A police officer has, in addition to the powers, privileges, duties and responsibilities conferred or imposed by this or any other Act, all such powers, privileges, duties and responsibilities as a constable has by the common law. 82A—Prohibition on use of spit hoods (1) A police officer must not place a spit hood on the head of a person. (2) Subsection (1) applies despite any other provision of this Act or any other Act or law. spit hood means a covering (however described) that is intended to be placed over a person's head to prevent the person from spitting on, or biting, another person.