Reasonable and probable grounds in Australia: Difference between revisions

Revision as of 07:33, 22 January 2020

Reasonable and probable grounds is most prominent in the law that regulates police officers, as the precondition behind the exercise of certain powers in their function as enforcers of law.^[1] Constructed from the Australian common law, it is a prerequisite to most police powers including arresting without a warrant,^[2] searching without a warrant,^[3] requesting disclosure of identity,^[4] and for investigating terrorist activity.^[5] In Canada, it is defined as the point where probability replaces suspicion based on a reasonable belief. Reasonableness construes as a legitimate expectation in the existence of specific facts. The belief in individual circumstances can be "reasonable without being probable."^[6] In Australia, it is less clearly defined. It depends on the circumstances of the case, rather than the reasonable and probable grounds in itself. Often it involves a practical assessment of the circumstances of a potential crime.

In the scope of the 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. 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 differ from that of the reasonable person, by virtue of the fact that it is separately accounted for in the law, distinct from the reasonable person and the test of reason. There are explicit references to 'reasonable and probable grounds' in common law judgments,^[7] and in statutory authorities,^[4] across both State and Federal jurisdiction.

The concept of reasonable and probable grounds was introduced to the Australian legal system at the turn of the 21st century. This continues to develop further in Australian law. However, inconsistencies about what is reasonable and probable to a person remain.

Development in the Common Law

In Australian law, reasonable and probable grounds have evolved from common law judgments. Judicial discretion is the guiding principle as to how these judgments evolve. In every light, the judiciary construes the issues with reasonable and probable grounds towards balancing the scale of justice.^[8]

In the common law, there are two principles that must be developed, at the least, to form the reasonable and probable grounds necessary to act on certain powers.^[4] These principles are reasonable suspicion and what is reasonably necessary.^[1] Along with other considerations relevant to the circumstances of the case, the foundations of reasonable and probable grounds can be observed.

Reasonable Suspicion

One avenue by which this has occurred is through the abstract development of reasonable suspicion,^[9] which is the legal standard that must be met before police officers can exercise certain powers.^[4]^[10] Reasonable suspicion is based on the information of the mind of the police officer at the time the power is actioned. It involves less than a reasonable belief, but more than a possibility. Additionally, it is not an arbitrary exercise of power.^[4]

This has been reaffirmed in the common law since the 20th century.^[11] Take, for example, the development of reasonable suspicion as one of the bases to forming the reasonable and probable grounds to exercise the police power of search and arrest, as well as other discretionary powers.^[12]^[13]

There are ten propositions as to how a person forms reasonable suspicion as a state of mind.^[4]^[14] These are formed in the preliminary stage of the investigation, and it is objectively determined by the court whether the grounds for reasonable suspicion have been met. These propositions include:

Reasonably Necessary

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. What is reasonably necessary is confined to an obligation that develops in the mind of the police officer to undertake an act that gives effect to the relevant police power.^[12]^[16]

Development in Statute

InAustralia, 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 on the relevant legislation that regulate the general police officers, such as the Law Enforcement (Powers and Responsibilities) Act 2002 for New South Wales,^[17] or those that regulate specific powers such as the Terrorism (Police Powers) Act 2002 (NSW).^[18] 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.^[4]

Arrest without a Warrant

Under the legislation, police have the power to arrest, without a warrant, on reasonable and probable grounds.^[19] In Australia, this is preserved by statutory reforms which create a standard by which police can exercise an arrest without a warrant.^[4] This can be found under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).^[2] Reasonable grounds for exercising such an arrest involves what is reasonably necessary for the relevant situation.^[4] This is an objective test by which police officers 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 the freedom of the individual.^[21]

Search without a Warrant

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.^[12] This power is preserved by s 21 of the Law Enforcement (Powers and Responsibilities) Act (NSW).^[3] The reasonable grounds by which a police officer exercises the search of a person, vehicle or premises is legitimized for the purposes of discovering and preserving evidence.^[22]

Disclosure of Identity

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.^[23] There is also an implied power in the common law to verify someone's identity in circumstances where police can request this information.^[4] This power, whilst not as contentious as arresting or searching without a warrant, is still subject to the confines of reasonable and probable grounds so that fundamental human rights to privacy and dignity are not impinged upon.^[1]

Investigating Terrorist Activity

A more recent development in the scope of reasonable and probable grounds is the addition of special powers by police officers to investigate terrorist activity, investigate conduct, and to authorize certain processes relevant to preventing terrorist acts, on the basis of reasonable and probable grounds. This is authorized by the Terrorism (Police Powers) Act 2002 (NSW) in the State jurisdiction and the Australian Federal Police Act 1979 (Cth) in the Federal jurisdiction.^[18]^[24] This specifically identifies the police powers that can be exercised, such as requiring disclosure of identity, searching a person, vehicle or premises, seizing and detaining things, and use force, in any situation in which a terrorist act has occurred or could occur.^[5]

Evaluation of Use in the Legal System

On the whole spectrum, reasonable and probable grounds is based on tests of objectivity, incorporating rationality and proportionality.^[20] The role of the police officer in exercising police powers is to ensure that the relevant reasonable and probable grounds exist to justify the exercise of power.^[25] This remains a pertinent issue to the practicality of reasonable and probable grounds as it is open to interpretation, depending on the person exercising the power.^[26] Furthermore, there are some cases that indicate elements of non-justiciability of the regulation of the existence of such grounds when police officers exercise power, beyond the broad boundaries as defined by legislation.^[27]

The most contentious powers of police officers, including arresting and searching a person, involve those that directly concern fundamental human rights such as the right to liberty and privacy.^[28] An incorrect presumption by police officers as to the existence of reasonable and probable grounds for the exercise of power poses a risk that fundamental human rights, as aforementioned, are encroached upon, or wholly violated.^[29] For example, the death of Beto Laudisio, or better known as the 'Roberto Curti Inquest', involved 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.^[30] Similarly, the arrest of a disability pensioner in Melbourne as reported by the Australian Broadcasting Corporation, where 6 police officers tackled the one man and arrested him, is another demonstration of police brutality and the misjudgment that may occur when exercising reasonable and probable grounds.^[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.^[20] The reform set out the criteria that must be satisfied before exercising an arrest without a warrant.^[32] As a matter of discretion, police officers may arrest a person if they suspect on the reasonable grounds that an offence may be or has been committed.^[4] Secondly, as a matter of criminal deterrence, police officers must also be satisfied that the arrest is reasonably necessary to prevent the commission of another offence, to protect the victims, witnesses and community, and to ensure that the offence is dealt with properly and justly.^[32]

With respect to powers relating to terrorism, there have been criticisms of the statutory use of reasonable grounds, because of the arbitrary abuse of this ground to justify undue searches and detentions of persons in public places at risk of ‘large-scale public disorder’.^[5] This is primarily as a result of the inconsistent interpretations of what reasonable grounds constitutes, and the manifestation of such different interpretations.^[5] In 2017 and 2018, terrorism laws underwent reform as to the extent and scope of police powers to better enable police to prevent terrorism.^[33] However, there are concerns that the introduction of 'extraordinary' police powers broadens the scope of reason to exercise power to a degree that is not proportionate to the possibility of an offence.^[34] For example, a person, even without a criminal record, can be arrested and detained for up to four days.^[33]

Comparison to Other Legal Systems

Parallel to the Canadian system of law, reasonable grounds are distinguished in the law as an articulated standard by which police can lawfully arrest, and search a person. In Canada, however, it is explicitly clear in statute, that this standard has both objective and subjective reasoning behind it.^[35] In Australia, it is unclear as to the extent of the subjectivity of reasonable grounds. In a more practical sense, the Canadian system of police powers, on reasonable and probable grounds, is more clearly defined, with specific reference to the reliability of a tip from an informer that is reporting a crime, in that it is not sufficient to establish reasonable and probable grounds.^[36] In Australia, however, it depends on the circumstances of the case, rather than the reasonable and probable grounds in itself.^[4]

In comparison to the United States of America, the doctrine of probable cause is what governs the exercise of police powers, and is argued as different from reasonableness because it prevents random and unnecessary searches.^{[citation needed]} This is reaffirmed in the United States Constitution, pursuant to the Fourth Amendment.^{[citation needed]} This can be directly contrasted to the Australian system of law in which the powers of police officers are subject to legislative amendments and common law developments when new issues arise for police officers when exercising police powers, which is not as enduring or substantive as constitutional law, such as the United States of America's, provides.^[37]

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