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Reasonable suspicion in NSW is a critical legal concept that affects both police powers and individual rights. This threshold, while lower than probable cause, requires officers to have legitimate grounds for their suspicions before taking certain actions. This article explores the definition, implications, and examples of reasonable suspicion in the NSW legal system.
The ability of law enforcement officers to search a person without a warrant is limited by legislation, such as the Law Enforcement (Powers and Responsibilities) Act 2002 and common law, whereby police must suspect on reasonable grounds before search power is lawfully enlivened in New South Wales.
Accordingly, the test for reasonable grounds of suspicion in New South Wales is summarised at common law in R v Rondo [2001] NSWCCA 540 at [53] where:
“A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear… A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence”.
If an officer claims to have suspicion, the reasonable suspicion must have some factual basis. This factual basis may be based on hearsay or materials that can be inadmissible in evidence; therefore, the evidence obtained must have some probative value.
Thus, appearing nervous, being in the company of individuals suspected of having an illegal drug, or being in an area that may be associated with drugs (such as a music festival) will not warrant police officers’ engaging in a search without a warrant, as there must be a genuine reason underlying the search.
Additionally, what is important is the information in the mind of the police officer stopping the person or vehicle or making the arrest at the relevant time. Having ascertained that information, the question is whether that information, in the surrounding circumstances, afforded reasonable grounds for the suspicion that the police officer formed.
Reasonable suspicion and probable cause are two evidentiary legal standards that if satisfied by a factual basis, authorise police with specific powers related to their function as enforcers of the law.
The standards of reasonable suspicion and probable cause are employed to ensure that every person’s fundamental human rights of liberty and privacy are not encroached upon unnecessarily and unlawfully in a free and civilised society through arbitrary arrest or an illegal search.
The main difference between reasonable suspicion and probable cause is that probable cause relies on the objective surrounding circumstances and evidence that creates a reasonable belief. In contrast, reasonable suspicion requires observations, behaviours and circumstances that would cause a reasonable person to suspect criminal behaviour.
Consequently, probable cause necessitates a higher evidentiary standard than what reasonable suspicion involves.
While reasonable suspicion allows a police officer to stop and search a person, their belongings, or their vehicle, personal searches are limited to frisk or strip searches and do not extend to forensic procedures such as a cavity search. Furthermore, police can temporarily detain an individual to question them.
Probable cause, however, allows an arresting officer to take specific actions such as obtaining search warrants to conduct more intense searches or making arrests due to having enough evidence to do so.
Although police have a right to conduct searches without a warrant, this power is not unlimited.
It is, thus, important to be aware of the limitations surrounding the circumstances in which police can conduct searches and your legal rights, as it can often be intimidating when you are stopped by police.
Regarding personal searches, section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 specifies that a police search on a person can only be conducted if the officer suspects that the person has in their possession or control;
Regarding the power to search vehicles, section 36 specifies that a police search can only be conducted if the officer suspects that any of the following circumstances exists in section 21 (but within the vehicle) and the addition of;
Police powers also extend to the ability to stop vehicles if the police officer has reasonable grounds to exercise a power of arrest, detention or a search on a person in the vehicle as per section 36A.
Importantly, traffic law stipulates that police cannot rely on their statutory roadside breath test power to justify the arbitrary stopping of vehicles, interrogating of occupants or searching of the vehicle for crime detection.
If a police officer does not have reasonable grounds to constitute suspicion, the Court may find that the evidence was improperly or unlawfully obtained, which will become inadmissible according to section 138 of the Evidence Act.
However, in some circumstances where the probative value of the evidence outweighs its undesirability to be admitted, the courts have the discretion to admit the evidence.
If an officer claims to have reasonable grounds for suspicion to conduct a search, as a suspect, you have the right to be informed of the following:
Additionally, this information must be given as soon as is reasonably practicable to do so.
Furthermore, police officers can also search people if they have received informed consent from the person. It is important to be aware that if you have given your informed consent to the search, police do not have to prove that they had reasonable grounds for suspicion.
Consequently, you have a right not to give your consent to the police for consensual search purposes.
In criminal law, it requires that all lawyers should understand that breaches of the law by police go to the heart of the criminal justice system and the fundamental rights it was designed to protect, as these abuses of powers can often be undetected by an everyday person.
Here, the role of a criminal lawyer is to uphold the basis of society’s recognition of the superior value of protecting our fundamental human rights over detecting and prosecuting every criminal matter, however small.
If you are being charged with a criminal offence in NSW, it is vital that you seek legal advice and legal representation. An experienced criminal defence lawyer will be able to advise you on how to proceed and assist you through every step of the process. Contact our expert Criminal Defence Lawyers now.
Hamilton Janke Lawyers are one of the top rated Criminal Law Firms in the region. We treat every client with the respect and commitment they deserve. This commitment to our profession has earned us a reputation which we are very proud.
Going to court? Or maybe you just need advice? Contact us now.
