Synopsis:
Constitutionality of s 49(2) of the Criminal Procedure Act, the use of force to carry out an arrest. On behalf of a unanimous Court Kriegler J held that s 49(1) should be interpreted as generally excluding the use of firearm unless the suspect (a) poses an immediate threat of serious bodily harm to the arrester or to someone else; (b) is reasonably suspected of having committed a serious crime involving or threatening such harm. Read this way the section is constitutionally justifiable and the order of the High Court declaring it partially invalid not confirmed. The Court held further that s 49(2) authorises the use of lethal force for arrests in circumstances that are so wide as to be constitutionally unjustifiable. The subsection struck down in its entirety. The Court also held that the trial judge does not have power to differ from the Supreme Court of Appeal on a question of constitutional interpretation and he should deal with the constitutional issue only when it is necessary for his verdict.
