Can the Police stop me to ask why I left my home during the coronavirus lockdown?
Despite a common misconception, the NSW Police does not have a general power that permits them to stop a person and ask them questions about where they are going, why they have left their homes, or what they are doing. This has not changed.
In New South Wales, police powers to stop and interact with a person, largely comes from the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
The only additional powers available to the police is under Section 112 of the Public Health Act 2010 (NSW).
Police power under Section 112 of the Pubic Health Act
Section 112 of the Public Health Act 2010 (NSW), allows a police officer to “direct” that a person provide his or her name, if the police officer suspects that they are in breach of the coronavirus lockdown Order.
The word “suspect” has an important part to play, that is because the power to stop and ask a person for their name and address is subject to the olice officer forming a suspicion that the person is breaching the coronavirus lockdown order.
Admittedly, “suspect” is something less than the term “reasonably suspects” that is used in Section 99 of the Law Enforcement (Powers and Resonsibilities) Act 2002 (NSW). However, that does not mean that the term “suspects” should be ignored.
The word “suspect” is not defined in the Public Health Act 2010 (NSW), however the ordinary dictionary meaning of suspect is:
“To have an idea or impression of the existence, presence, or truth of (something) without certain proof”
Applying that definition, prior to a police officer being able to stop a person and ask them for their name and address, the police officer must have a basis for “suspecting” that the person in breach of the coronavirus lockdown order. The basis need not be “reasonable” but there still has to be a basis for the suspicion.
Does a “suspicion” arise simply because a person is outside their home?
Does a “suspicion” arise simply because a person is outside their home?
No. We don’t think, just because a person is outside their home, this is enough to arouse a suspicion that a person is in breach of the coronavirus lockdown order.
There are at least 17 defined examples in Schedule 1 of the coronavirus lockdown Order, that allows a person to leave their home legitimately. We are also of the view that a “a reasonable excuse” for leaving home is not limited to those 17 examples, as we discussed in our previous blog, The Stage 3 Coronavirus Lockdown Laws Explained.
Given the number of reasons that a person can legitimately leave home for, it would be impossible for a police officer to suspect any wrongdoing, solely on the basis that person was outside their home. For example, a person could have left to do their grocery shopping, for work, for exercise, or to care for someone who is vulnerable.
There needs to be something more than the fact that person is outside their home. Some of the following examples we believe might attract a “suspicion”:
Example 1:
If a person were driving on a freeway and a police officer were to run the number plate of their vehicle in the database indicated that the person lived 4 hours away from that location.
Example 2:
If 5 people were sitting together in a group at a park.
Our view is that there needs to be some basis for the suspicion, other than the fact that a person was outside their home. If Parliament intended to give the police the power to stop and ask everyone who left their home such questions, it would have made that clear in the law.
What police questions do I have to answer?
Even if the police were to legitimately form a “suspicion” that a person was in breach of the coronavirus lockdown order, there are only two questions that a police officer can “direct” a person to answer. That is regarding the persons name and address.
The police do not have the power to compel a person to answer anything more than their name and address and a person does not need to answer anything more than their name and address.
What is the “right to silence”?
A person’s right to silence is one the most fundamental rights that a person has. It is a right that is available to everyone.
Despite the confidence that Police officers use to approach people, a person is not required to provide the Police anything more than their name and address. This includes if they are stopped because of a suspicion that they have breached the coronavirus lockdown orders.
This does not mean that Police officers are not allowed to ask a person questions; they certainly can and they will. However, a person is not obliged to answer them, and a Police officer cannot direct the person to answer them.
His Honour Justice McHugh when highlighting the importance of the right to silence, in the High Court case of RPS v R (2000) 199 CLR 620 at [61] – [62] said that:
“The privilege is one of the bulwarks of liberty. History, and not only the history of totalitarian societies, shows that all too frequently those who have a right to obtain an answer soon believe that they have a right to the answer that they believe should be forthcoming. Because they hold that belief, often they do not hesitate to use physical or psychological means to obtain the answer they want. The privilege against self-incrimination helps to avoid this socially undesirable consequence. … The privilege exists to protect the citizen against official oppression.”
Can the Police use my silence against me?
No, definitely not.
The Police cannot use a person’s choice to remain silent against them. For example, they cannot say that a person is guilty because they failed to answer questions about why they were outside their home.
Evidence of a person’s silence is inadmissible, and no negative inference can be drawn from a persons choice to remain silent.
Do the Police have to “caution” a person before they speak to them?
If you don’t know what a “caution” means, that’s OK, because you’ve probably witnessed a “caution” take place in hundreds of movies and films.
A caution is the requirement for a Police officer to inform a person of their right to silence and further that anything that they say or do can be used against them as evidence in court.
Section 139(2) of the Evidence Act 1995 (NSW) provides that evidence is taken to be improperly obtained if:
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- The questioning was undertaken by an investigating officer where the person was not under arrest; and
- The person made the statement, after the investigating officer formed a belief that there was sufficient evidence to establish that the person has committed an offence; and
- The investigating officer did not caution the person prior to the making of the statement.
There have been many concerns that police officers have not been complying with the requirement to caution persons before questioning them.
If a Police officer fails to caution a person, the evidence that they get can then be held to have been improperly obtained. As per Section 138 of the Evidence Act (1995) NSW, the Court can exclude this inadmissible evidence. In other words, what the person said to the Police cannot be used in Court as evidence.
Do I have to prove to the Court that I had a “reasonable excuse” for leaving home?
No, it is the Police who must prove that a person did not have a reasonable excuse for leaving home. A person is not required to prove that they had a reasonable excuse for leaving home.
At all times the “onus of proof” will remain with the police. Nothing in the legislation as we read it changes that position. If the legislation intended on reversing the onus of proof to the defendant, it would have done so clearly.
A practical example is, a person is stopped by the Police walking in the CBD on a regular weekday. There is nothing to suggest that the person is doing anything other than walking to an unknown destination. The police ask the person why he has left his home, the person respectfully invokes his right to silence.
If the Police were to fine the person and the matter was contested in court, it would be for the Police to prove that the person left home without a reasonable excuse. Given that they cannot use the person’s silence, there is no evidence to suggest that the person did not have a “reasonable excuse” for leaving home.
On the other hand, if a person was stopped by the Police driving 6 hours away from their residence, they can use that as evidence to suggest that the person did not have a reasonable excuse for leaving home, especially because holidays to regional areas are specifically prohibited under the order. In those circumstances, a person might need to explain their reasonable excuse in Court.
Can the Police issue me with a “move on direction”?
The answer is no, they cannot.
In New South Wales, if a person is not intoxicated, the police can only issue a “move on direction” in 5 circumstances as set out in Section 197 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Those circumstance are if a person’s conduct:
(a) is obstructing another person or persons or traffic, or
(b) constitutes harassment or intimidation of another person or persons, or
(c) is causing or likely to cause fear to another person or persons, so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness, or
(d) is for the purpose of unlawfully supplying, or intending to unlawfully supply, or soliciting another person or persons to unlawfully supply, any prohibited drug, or
(e) is for the purpose of obtaining, procuring or purchasing any prohibited drug that it would be unlawful for the person to possess.
In New South Wales, the Police do not have a general “move on direction” power. If none of the above circumstances apply, a police officer does not have the power to issue a person with such a direction.
However, if a person is in breach of the coronavirus lockdown order and the person refuses to stop breaching the order, they can be arrested. We discuss this further below.
Can a Police officer arrest me for breaching the coronavirus lockdown order?
In New South Wales, a police officer can only arrest a person in a limited number of circumstances. These circumstances are set out in Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
We will not discuss each of those circumstances, but only the most relevant one. That is, the power to arrest a person to stop the person from continuing or repeating an offence.
One important prerequisite to being able to arrest a person, is that a police officer must have a “reasonable suspicion” that the person has committed an offence or is committing an offence.
The term “reasonable suspicion” that is required to arrest a person under Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) is different than the term “suspicion” that is used in Section 112 of the Public Health Act that allows a police officer to ask for a person’s name and address.
The degree of suspicion required to arrest a person is substantially greater than that needed to ask for a person’s name and address. Not only does there need to be a suspicion, but that suspicion also needs to be “reasonable“.
The term “reasonable suspicion” has been defined in several cases. It has been held that, reasonable suspicion needs to be more than a possibility but something less than a belief.
To demonstrate an example of reasonable suspicion and arrest, let’s consider the example of a person eating a juicy kebab on a park bench. As per the current lockdown Order, all community facilities have been closed to the public. So sitting on a park bench is a breach of the Order.
If a police officer were to see the person eating the kebab on the park bench, that would give rise to a reasonable suspicion that the person was in breach of the coronavirus lockdown Order.
The police officer can then choose to fine the person for being in breach of the coronavirus lockdown order or use his or her discretion not to fine the person, and instead ask the person to leave.
If the person continued eating their kebab and refused to get off the park bench, that would invoke the police officers power to arrest the person to stop them from continuing to commit the offence of breaching the coronavirus lockdown order.
Although, it is extremely doubtful that a person would be arrested for sitting on a park bench, at least we hope. It should be remembered, that the decision to arrest a person should always be the last resort.
What should I do if I am stopped by the Police regarding the coronavirus lockdown?
As a general guide, if a person is stopped by the Police and questioned about why they have left their home, we recommend that they take the following steps:
- Respectfully inform the Police officer that you intend on recording the conversation on your mobile phone. Do not shove the phone in the officer’s face and do not be rude about the process.
- Ask the police officer to identify themselves, including their name, rank and station.
- Ask the officer why they have stopped you.
- Ask them what gave them a suspicion that you are in breach of the coronavirus lockdown order.
- Respectfully inform them you do not wish to participate in any form of questioning or interview.
- Ask them if you are free to leave?
- If they request your name and address provide these details to them.
- Again, respectfully indicate to them that you would like to remain silent and that you would like to leave.
- If you are given a fine do not argue or discuss this further with the officer, it will not change the outcome. Take the ticket and walk away. The place to challenge the infringement is at court.
- Keep in mind, being rude or discourteous to police will not get you anywhere. You can invoke your rights in a peaceful and respectful way. We do not in any way support rude or discourteous behaviour toward the police.
Free legal advice
If you believe that you have been dealt with improperly by the Police, our office would like to talk to you. We will offer free telephone advice and, depending in the circumstances, we may even offer to represent you for free.
Our office will remain open during the coronavirus lockdown, this includes our 24 hour, 7 days a week free legal advice hotline.
