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Reasonable and Probable Grounds in Australian Law

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In the scope of law, there is an overarching doctrine of reasonableness. It is derived from the hypothetical legal reasonable person, a standard by which the law is explained to the jury.[1] The reasonable person, and reasonableness itself, extends to the concept of reasonable and probable grounds as a justification for the exercise of power or discretion.

Reasonable and probable grounds differs from that of the reasonable person, by virtue of the fact that it is separately accounted for in the law. There are separate references to reasonable and probable grounds which can be seen in common law judgments,[2] and explicitly referenced in state and federal statute. [3]

Reasonable and probable grounds is predominately used by police officers, as the precondition behind the exercise of certain powers in their function as enforcers of law. Constructed from the Australian common law, it is a prerequisite to most police powers including; arresting without a warrant, searching without a warrant, requesting disclosure of identity,[4] and for investigating terrorist activity.[5]

The abstract nature of reasonable and probable grounds recurs throughout Australian law, in both common law decisions and enacted in statute. At the turn of 21st century, reasonable and probable grounds was introduced to the Australian legal system, and there remains to be inconsistencies about what is reasonable and probable.

Development in the Common Law

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Balanced scale of Justice

In Australian law, reasonable and probable grounds has evolved from common law judgments. This involves balancing the scale of justice.[6]

Reasonable Suspicion

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One avenue by which this has occurred is through the abstract development of reasonable suspicion.[7] First discussed in 2001, reasonable suspicion is the legal standard that must be met before police officers can exercise certain powers.[8] Reasonable suspicion is based on the information of the mind of the police officer, that involves less than a reasonable belief, but more than a possibility, and is not arbitrary.[9]

This has been reaffirmed in the common law since the 20th century.[10] Take, for example, there is a common law requirement of reasonable suspicion that police must hold before exercising powers of search and arrest, and other discretionary powers.[11]

There are ten propositions as to how a person forms reasonable suspicion as a state of mind.[12] These are formed in the preliminary stage of investigation, and is objectively determined by the court whether the grounds for reasonable suspicion have been met.

Reasonably Necessary

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What constitutes reasonable and probable grounds in the common law has also divulged from that what is reasonably necessary, and this is an unfettered judgment on all grounds.[13]

Development in Statute

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In Australia, police, on reasonable and probable grounds, are capable of exercising discretionary powers, including arrests, searches, requests for identity and for investigating terrorist activity. These powers are conferred by the relevant state legislation of police powers, such as for New South Wales general police powers,[14] and for specific police powers relating to terrorism. [15] Importantly, regardless of the type of police power, there is an undying importance of reasonable grounds as the only substantial doctrine by which police officers can function as law enforcers.[16]

Arrest without a Warrant

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Under legislation, police have the power to arrest, without a warrant, on reasonable and probable grounds.[17] Reasonable grounds for exercising such an arrest, partly involves what is reasonably necessary for the relevant situation.[18] In Australia, this is preserved by statutory reforms which create a standard by which a police can exercise an arrest without a warrant.[19] This statutory basis invokes an objective test by which police must be satisfied that an arrest is the best conceivable option.[20]

However, the common law requires that this power is to be exercised only as a last resort, where it is necessary to deprive freedom of the individual.[21]

Search without a Warrant

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Similar to the powers of arrest, police can search, without a warrant, any person, vehicle and premises, on reasonable and probable grounds. These grounds do not specifically require that what is reasonably necessary, however it is implied under common law.[22] This power is again preserved by legislation.[23] The reasonable grounds by which a police officer exercises the search of a person, vehicle or premises, is usually based on the purposes of discovering and preserving evidence.[24]

Disclosure of Identity

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Within the boundaries of reasonable grounds, the police are afforded the power to require a person to disclose their identity if the person is capable of assisting the police in their investigations of alleged indictable offences.[25] There is also an implied power in the common law to verify someone's identity in circumstances where police can request this information.[26]

Investigating Terrorist Activity

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A more recent development of reasonable and probable grounds is the addition of special powers to investigate terrorist activity, and conduct and authorise certain processes relevant to preventing terrorist acts, on the basis of reasonable and probable grounds. This is authorised by state and federal legislation in Australia.[27] and includes powers such as obtaining disclosure of identity, search persons, vehicles and premises, to seize and detain things, and use force, in any situation in which a terrorist act could occur.[28]

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On the whole spectrum, reasonable and probable grounds is based on tests of objectivity, incorporating rationality and proportionality.[29] However, there are some cases that indicate elements of non-justiciability of the regulation of the exercise of such grounds, beyond the broad boundaries of the powers as explained by legislation.[30]

For example, the death of Beto Laudisio, or better known as the 'Roberto Curti Inquest', involved an inappropriate and disproportionate use of force in the police officers' exercise of power to arrest Curti. The legitimacy and legality of the reasonable and probable grounds to use force in an attempt to arrest Curti was undermined by irrationality and poor assessment of the situation.[31]

Legislation has undergone significant reform in an attempt to clarify the boundaries of reasonable and probable grounds. The most prominent of these reforms was in 2013, which narrowed the grounds of reasonableness and probability with a twofold test by which police officers must satisfy before exercising an arrest.[32]

With respect to powers relating to terrorism, there have been criticisms of the statutory use of reasonable grounds, because of the arbitral abuse of this ground to justify undue searches and detentions of persons in public places at risk of ‘large-scale public disorder’.[33] This is primarily as a result of the inconsistent interpretations of what reasonable grounds constitutes, and the manifestation of such different interpretations.[34]

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Parallel to the Canadian system of law, reasonable grounds are distinguished in the law as an articulated standard by which police an lawfully arrest, and search a person.[35] In Canada, however, it is explicitly clear in statute, that this standard has both objective and subjective reasoning behind it.[36] In Australia, it is unclear as to the extent of the subjectivity of reasonable grounds.

In comparison to the United States of America, probable cause is what governs the exercise of police powers, and is argued as different from reasonableness because it prevents random and unnecessary searches.[37]

References

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  1. ^ ‘Reasonable person’, Wikipedia, the free Encyclopedia, (Article, 13 January 2019) <https://en.wikipedia.org/wiki/Reasonable_person>.
  2. ^ David Brown et al, Criminal Laws: Materials and commentary on criminal law and process in NSW (Federation Press, 6th ed, 2015), 445-446 (‘Brown et al, Criminal Laws’), discussing R v Rondo [2011] NSWCCA 540.
  3. ^ Jane Sanders, Legal Aid NSW, ‘Police powers of arrest and detention’ (February 2018) (“Jane Sanders, 'Police Powers 2018’”), discussing Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
  4. ^ Jane Sanders, 'Police Powers 2018'.
  5. ^ Anthony Gray, ‘The rule of law and reasonable suspicion’ (2011) 16(2) Australian Journal of Human Rights 53, 57-59 (‘Anthony Gray, ‘The rule of law and reasonable suspicion’).
  6. ^ Brown et al, Criminal Laws, 444-450.
  7. ^ Terry Skolnik, ‘The Suspicious Distinction between Reasonable Suspicion and Reasonable Grounds to Believe’ (2016) 47(1) Ottawa Law Review 223, 223-249.
  8. ^ Jane Sanders, 'Police Powers 2018', discussing R v Rondo [2001] NSWCCA 540.
  9. ^ Jane Sanders, ‘Police Powers 2018’ 4[5].
  10. ^ Anthony Gray, ‘The rule of law and reasonable suspicion’, 54.
  11. ^ Jane Sanders, Legal Aid NSW, ‘Police powers to search and seize mobile phones’ (August 2017) 3[2.3] (“Jane Sanders, ‘Police Powers 2017’”), discussing R v Beekman [2011] NSWDC 126.
  12. ^ Jane Sanders, ‘Police Powers 2018’ 4[5], discussing Hyder v Commonwealth of Australia [2012] NSWCA 336.
  13. ^ Jane Sanders, ‘Police Powers 2017’, 3[2.3], discussing Clarke v Bailey [1933] 33 SRNSW 303.
  14. ^ Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
  15. ^ Terrorism (Police Powers) Act 2002 (NSW).
  16. ^ Jane Sanders, 'Police Powers 2018'.
  17. ^ LexisNexis, Halsbury’s Laws of Australia, (online at 5 February 2015) 320 Police and Emergency Services, ‘2 Functions and Powers of Police’ [235]-[400].
  18. ^ Jane Sanders, ‘Police Powers 2018’, 1-2.
  19. ^ Jane Sanders, ‘Police Powers 2018’, 1-2, discussing Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99.
  20. ^ Gareth Griffith, ‘Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Bill 2013, (Research Paper No 4, Parliamentary Library Research Service, Parliament of NSW, 2013), 9 ('Gareth Griffith, LEPRA Amendment (Arrest Without Warrant) Bill 2013').
  21. ^ Brown et al, Criminal Laws, 439, discussing DPP v Carr [2002] NSWSC 194.
  22. ^ Jane Sanders, 'Police Powers 2017' 1-4.
  23. ^ Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 21.
  24. ^ Gareth Griffith, ‘Police Powers in NSW: Background to the Law Enforcement (Powers and Responsibilities) Bill 2001’, (Research Paper No 11, Parliamentary Library Research Service, Parliament of NSW, 2001) 13-14.
  25. ^ Brown et al, Criminal Laws, 448.
  26. ^ Jane Sanders, 'Police Powers 2018' 27-29.
  27. ^ Terrorism (Police Powers) Act 2002 (NSW).
  28. ^ Anthony Gray, ‘The rule of law and reasonable suspicion’, 57-59.
  29. ^ Gareth Griffith, LEPRA Amendment (Arrest Without Warrant) Bill 2013, 9.
  30. ^ Brown et al, Criminal Laws 436.
  31. ^ Paul Bibby, 'Police used 'excessive, unnecessary, unlawful' force on Brazilian student Roberto Curti, court hears', Sydney Morning Herald (online, 17 November 2014). <https://www.smh.com.au/national/nsw/police-used-excessive-unnecessary-unlawful-force-on-brazilian-student-roberto-curti-court-hears-20141117-11o3tr.html>
  32. ^ Gareth Griffith, LEPRA Amendment (Arrest Without Warrant) Bill 2013, 9, discussing the Law Enforcement (Powers and Responsibilities) Amendment (Arrest Without Warrant) Act 2013 (NSW).
  33. ^ Anthony Gray, ‘The rule of law and reasonable suspicion’, 57-59.
  34. ^ Anthony Gray, ‘The rule of law and reasonable suspicion’, 57-59.
  35. ^ Terry Skolnik, ‘The Suspicious Distinction between Reasonable Suspicion and Reasonable Grounds to Believe’ (2016) 47(1) Ottawa Law Review 223, 233.
  36. ^ Terry Skolnik, ‘The Suspicious Distinction between Reasonable Suspicion and Reasonable Grounds to Believe’ (2016) 47(1) Ottawa Law Review 223, 233.
  37. ^ 'Probable cause', Wikipedia, the free Encyclopedia, (Article, 25 April, 2019) <https://en.wikipedia.org/wiki/Probable_cause>.

Sources

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  • Anthony Gray, ‘The rule of law and reasonable suspicion’ (2011) 16(2) Australian Journal of Human Rights 53.
  • David Brown et al, Criminal Laws: Materials and commentary on criminal law and process in NSW (Federation Press, 6th ed, 2015).
  • Gareth Griffith, ‘Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Bill 2013, (Research Paper No 4, Parliamentary Library Research Service, Parliament of NSW, 2013).
  • Gareth Griffith, 'Police Powers in NSW: Background to the Law Enforcement (Powers and Responsibilities) Bill 2001', (Research Paper No 11, Parliamentary Library Research Service, Parliament of NSW, 2001).
  • Jane Sanders, Legal Aid NSW, ‘Police powers of arrest and detention’ (February 2018).
  • Jane Sanders, Legal Aid NSW, ‘Police powers to search and seize mobile phones’ (August 2017).
  • LexisNexis, Halsbury’s Laws of Australia, (online at 5 February 2015) 320 Police and Emergency Services, ‘2 Functions and Powers of Police’ [235]-[400].
  • Paul Bibby, 'Police used 'excessive, unnecessary, unlawful' force on Brazilian student Roberto Curti, court hears', Sydney Morning Herald (online, 17 November 2014).
  • 'Probable cause', Wikipedia, the free Encyclopedia, (Article, 25 April, 2019) <https://en.wikipedia.org/wiki/Probable_cause>.
  • ‘Reasonable person’, Wikipedia, the free Encyclopedia, (Article, 13 January) <https://en.wikipedia.org/wiki/Reasonable_person>.
  • Terry Skolnik, ‘The Suspicious Distinction between Reasonable Suspicion and Reasonable Grounds to Believe’ (2016) 47(1) Ottawa Law Review 223, 223-249.
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