The very act of being arrested is at least in part punitive. It involves being removed to a police station, being detained, searched, fingerprinted and questioned. It is not surprising that the common law position (which is also reflected in the Crimes Act) is that the police should use arrest as a last resort for commencing proceedings.
An interesting case where the court found that the police should have proceeded by way of summons (or now Court Attendance Notice) rather than arrest was Lake v Dobson (unreported NSWSC, 19/12/80) where Samuels JA said: “I acknowledge that I do not know precisely what the facts may have been which led the police to arrest….however, since [nude sunbathing] can scarcely be regarded as ranking high in the criminal calendar, it is hoped that the police will employ a summons in these cases whenever possible….”
Arrest might not have been the correct procedure but it was probably a lot more fun (….unless it was the gentleman in the photograph)!
Creative commons acknowledgement for the photograph.
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