Powers of arrest are set out in sections 458, 459 and 459A of the Crimes Act 1958 (Vic) ("Crimes Act (Vic)"); there are no common law powers of arrest. The following is a summary of these sections, but check the Act for exact wording.
If an arrest does not fit within any of the categories listed below, it is unlawful and can be resisted through the use of reasonable force.
Section 457 provides that no person shall be arrested without warrant except under the Crimes Act (Vic) or some other Act giving express power to arrest without warrant.
Section 458(1)(a) means that any person found committing an offence (other than a breach of regulations) can be arrested without warrant by anyone (not only the police) who reasonably believes the arrest is necessary for any of the following reasons:
- to ensure the appearance of the offender (person committing the offence) before court;
- to preserve public order;
- to prevent the continuation or repetition of the offence or the commission of a further offence; or
- for the safety or welfare of the public or offender.
The basic requirement is that person making the arrest (the arrestor) finds the offender committing the act. The arrestor must then exercise discretion in deciding whether one or more of the other criteria are present before making an arrest.
Section 461(2) states that police do not have to take into custody or take before a justice any person found committing an offence, if they believe on reasonable grounds that the case can effectively be brought by way of summons. The summons could be sent to the person at a later date.
Section 462 of the Crimes Act (Vic) means that the expression "found committing" extends to the case of a person found doing any act, or behaving in some way or in circumstances that mean that there are reasonable grounds for another person to believe that the person found is guilty of an offence. This is an extremely wide definition. For instance, a man found washing blood from his hands or standing over or running away from a bloodied victim could be the subject of lawful arrest for assault under section 458(1)(a), although he was not actually found committing an assault on another person.
Section 458(3) means that anyone apprehended for a summary offence (not being an indictable offence punishable summarily) (see: "Classification of offences", in Chapter 3*4 Types of Crime: Which Court?) shall be held in custody only so long as any of the above reasons continue (i.e. s.458(1)(a)). If before a charge has been laid the reasons cease to apply, then the person must be released without bail whether or not a summons has been issued. However, in practice, police often detain people while a summons is prepared.
The practice of detaining a person while a summons is prepared is more difficult to justify with the introduction of the "Notice to Appear" procedure under Part 2.3 Division 2 of the Criminal Procedure Act 2009 (Vic) ("CP Act"). The CP Act came into effect in October 2009. The notice procedure allows a police officer or public official to serve a notice on a person, who they reasonably suspect has committed a summary offence or an indictable offence able to be determined summarily, requiring the person to attend a specified Magistrates' Court at a specified time and date.
Section 459 provides that any police officer (but not a citizen) may at any time without warrant apprehend any person believed on reasonable grounds to have committed an indictable offence (including one which may be heard in the Magistrates' Court) in Victoria or elsewhere if that offence is an indictable offence against the law of Victoria. Under this arrest power, there is no need for the accused person to be found committing the offence.
In the case of indictable offences already committed, police may either arrest or proceed by summons, although they almost always arrest for serious offences. Note that only police have this power. It does not extend to summary charges. (They only have power to arrest where they find the summary offence being committed.) This procedure is used when interstate offenders are taken into custody other than by warrant. (See: "Classification of offences", in Chapter 3*4 Types of Crime: Which Court?, for the differences between indictable and summary offences, etc.)
For Commonwealth offences (e.g. importing drugs, customs matters, tax or social security fraud), the primary arrest power is contained in section 3W of the Crimes Act 1914 (Cth) ("Crimes Act (Cth)"). Police can arrest without warrant a suspect who they reasonably believe has committed or is committing an offence, if charging the person by summons would not deal with one or more of the following problems:
- making sure the suspect appears at court to answer the charge;
- stopping the suspect from committing further offences;
- stopping any evidence being lost, destroyed or concealed;
- stopping any harassment of witnesses;
- stopping the fabrication of evidence; and
- safeguarding the safety or welfare of the suspect.
Special broader powers of arrest apply in relation to people who are reasonably believed to have escaped from lawful custody or who are reasonably believed to have broken, or to be about to break, any bail condition that they must comply with (ss.3X & 3Y Crimes Act (Cth)).
Section 459A of the Crimes Act (Vic) gives a member of the police force power to enter and search any place without warrant for the purpose of arrest where it is believed, on reasonable grounds, that a person may be found, who:
- has committed a serious indictable offence in Victoria;
- has committed an offence elsewhere which, if committed in Victoria, would be a serious indictable offence;
- has escaped from legal custody; or
- is committing a serious indictable offence.
A serious indictable offence in this context means any offence for which the law provides for imprisonment for life or for five years or more (s.325). This includes offences such as theft (including shoplifting) as well as the most serious offences, such as armed robbery, rape or murder.
Reasonable force may be used to gain entry to the premises or other place.
Section 157 of the Family Violence Protection Act 2008 (Vic) gives a member of the police force power to enter and search any premises for a person believed to have breached that Act, provided the police officer has a reasonable belief that any one of the following requirements is satisfied:
- that the person has assaulted or threatened to assault a family member;
- that the person is on the premises in breach of an intervention order or family violence safety notice;
- that the person is refusing or failing to comply with a direction given to the person by a police officer to remain at, or go to, a specified place or to remain in the company of a police officer; and
- that they have permission (whether express or implied) to enter from one occupant of the premises, even though another occupant is denying them entry.
Police can search any movable vehicle without a warrant if they reasonably believe that:
- a thing which is relevant to an indictable offence is in or on that vehicle;
- if the search is not done right there and then, the thing will be concealed, destroyed or lost; and
- the circumstances are serious and urgent.
Any such search which is conducted without a warrant must be conducted in a public place. It must be completed as quickly as possible and using no more force than is necessary (ss.3T & 3U Crimes Act (Cth)).
Police may also enter any house or other premises without any warrant for the purpose of arrest if they reasonably believe that a suspect in relation to an indictable offence is there (s.3ZB Crimes Act (Cth)). Police should not enter a dwelling house, including a conveyance, to arrest a person between 9 pm and 6 am unless it would not be practical to arrest the person at another time or it is necessary to prevent the destruction or concealment of evidence (s.3ZB(3) & (4)).
Arrests by warrant are the exception rather than the rule. The warrant names the person to be arrested and should be read and shown to that person at the time of arrest. It does not have to be handed to the person. A warrant is normally used in situations where a person on bail or summons has failed to attend court as required, there is a hunt proceeding for an identified major offender, or in the case of an escapee from prison. A Magistrate or Registrar should not issue an arrest warrant where a summons would be just as effective in ensuring the appearance of the accused at court.
Before issuing a warrant, the Magistrate or Registrar must be satisfied that:
For Commonwealth offences committed in the state where a warrant has been issued, the federal police and customs officers are obliged to apply the law of the state in which the offence was committed.
A significant exception to the general requirements in relation to arrest and detention was created by the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth). The Act provides for the detention for up to seven days (168 hours) of a person (not necessarily a suspect) for questioning under a warrant where there are reasonable grounds for believing that it will assist in the collection of intelligence in relation to a terrorism offence.
Where a court issues a warrant requiring a person to be brought in for the purpose of hearing an application for an order requiring the person to undergo a forensic procedure, the warrant will give police power to break, enter and search any place where that person is suspected to be.
A person may be apprehended and brought before a court if there is a warrant to extradite them from one state to another. All that needs to be shown is that the court has before it a warrant showing that by proper process a prosecution has begun in the other state against the person. No evidence is needed that a crime has been committed in the state from which extradition is sought. Further, no evidence is needed that the person is guilty of the crime they are alleged to have committed in the state to which their extradition is sought.
While the court hearing the extradition application cannot determine guilt or innocence, the warrant should be discharged where it appears that, on undisputed facts, the person should be acquitted (found not guilty). This rarely happens. Apart from ordering the person to be returned to the other state by delivering them into police custody, the court has power to release the person on bail with specific conditions, or to discharge the warrant (ss.83 & 84 Service and Execution of Process Act 1992 (Cth)).
While the majority of extradition proceedings result in the suspect being returned to the other state for the hearing of a charge, it is often useful for the suspect to be legally represented at the extradition hearing. Cross-examination of police officers involved may uncover vital information as to the strength of the police case, thus enabling more adequate defence preparation. A transcript of those proceedings could be useful at a later time.
Arrest or apprehension involves the actual seizure or touching of a person's body with a view to detainment. Actual capture is not essential. If there is no touching of the body there is no arrest, unless the party submits and goes with the arresting officer. This is so even though the words of arrest are pronounced.
The person arrested must be informed of the substance of the charge (even if only in general terms). This rule is designed to help people arrested to clear themselves, if desired, by giving an explanation at the earliest opportunity.
The requirement that particulars must be given does not apply where the circumstances are such that the suspect must know the nature of the alleged offence (e.g. caught "red-handed") or where the suspect makes it impossible for the police to supply the necessary information (e.g. by resisting arrest).
Whatever the case, the suspect should be informed of the reason for the arrest at the earliest opportunity.
The situation is the same for Commonwealth offences.
The amount of force which anyone can lawfully use to make an arrest is that which is reasonably necessary to effect the arrest. Thus, if the suspect resists, the arrestor can lawfully increase the force used in proportion to the force of that resistance. It follows that, where a suspect is killed in the ensuing confrontation, the killing is justified if the arrestor used no more than reasonable force. The use of greater force than is reasonably necessary is unlawful.
Where a person is arrested for a Commonwealth offence, police must use no more force or subject the suspect to no more indignity than is necessary and reasonable. Further, police must not do anything which is likely to cause death or serious harm to the suspect, unless they reasonably believe this is necessary to protect their own life or someone else's or to prevent serious harm. If the suspect is trying to avoid arrest by fleeing, police must also call on the suspect to surrender (if practicable) before using such force and must also reasonably believe that the suspect cannot be apprehended in any other way (s.3ZC Crimes Act (Cth)).
Section 462A of the Crimes Act (Vic) provides that any person may use such force as is believed on reasonable grounds to be necessary to:
- prevent the commission, continuance or completion of an indictable offence; or
- lawfully arrest a person committing or suspected of committing any offence,
so long as the force is proportionate to the particular objective.
The arrest must always be lawful and thus an ordinary citizen must still abide by section 458. The arrestor must not only suspect a person of committing an offence but must find the person committing the offence, unless the arrestor is either:
- acting on the lawful instructions of a police officer; or
- arresting a person who is believed to be escaping from a lawful custody.
With Commonwealth offences, any person may arrest without warrant a suspect if they reasonably believe that the suspect is committing, or has just committed, an indictable offence, and that the case is not one that can be properly dealt with by police sending the suspect a summons to attend at court. The person who makes the arrest must hand the suspect over to police as soon as practicable (s.3Z Crimes Act (Cth)).
A "citizen's arrest" is any arrest by a person other than a police officer or under a warrant to arrest. Therefore, an arrest by a security guard, store detective or other such person is a citizen's arrest and must comply with the requirements of a citizen's arrest.
So far as the use of firearms by police is concerned, police are required to comply with the relevant parts of the Operations section of the Victoria Police Manual. These requirements are administrative directions issued by the Chief Commissioner and do not have the force of law.
The Victoria Police Manual – Operations 101-3 "Operating safety and other equipment" states:
Issue of firearms: Members are issued with firearms:
- to enable police to protect themselves and the public; and
- for the lawful destruction of animals.
Use of firearms: A member:
- must only discharge a firearm when they reasonably believe it is necessary to protect life or prevent serious injury. Warning shots should not be fired;
- issued with a firearm must not draw the firearm unless extreme danger is anticipated.
These criteria do not apply to the lawful destruction of animals.
Carriage of firearms: The carriage of firearms is based on the needs of the duties to be performed. Generally, firearms are only to be carried by police members who have completed the requisite Operational Safety and Tactics Training (OSTT) and whose primary duties may bring them into contact with an armed person. Station or Unit commanders are to determine whether the duties to be performed satisfy the general requirement for the carriage of firearms. Firearms must be carried when performing those duties. Police members falling outside of the general requirement are not to be armed without the approval of an officer. All operational police must be armed in the normal course of their duties unless otherwise directed.
Because of the inherent danger to all parties concerned, firearms are not to be carried by members while performing dedicated duty such as crowd control at demonstrations, industrial disputes, sporting events and other public entertainment events, without the approval of the Operations Commander. In those situations only arrest teams may be authorised to carry a firearm: Victoria Police Manual – Operations 101-3 "Table 101-3, section 5.1 – Carriage of operational safety equipment – general".
Members are not to carry a firearm unless they have been trained and qualified in all aspects of the use of the particular firearm within the preceding six months. Members may only carry police issued firearms when authorised by a Police Commissioner.
The arresting officer must make it plain to the suspect by what is said and done that the suspect is no longer free. The restraint of liberty must be total. It is not necessary that after arrest the person should be touched, but force must be used or threatened. There is, however, a grey area in the law of arrest which arises where the person goes or stays with the police believing that there is an obligation to do so. Technically, this does not constitute an arrest.
In Victoria, a person is said to be in custody if they have been arrested or are in the company of an investigating officer and are being, or are going to be, questioned or are otherwise being investigated, so long as the investigating officer has enough information to justify the arrest of the person for an offence (s.464(1) Crimes Act (Vic)). If the investigating officer has no power of arrest, as is the case for some summary offences, then the person will not be defined as being in custody even though they believe they cannot walk away.
The definition of having been arrested has been extended to cover the situation of a person suspected of having committed an offence against a Commonwealth law, where that person is in the company of police and reasonably believes that they would not be allowed to leave. For arrest, there must be a total restraint of liberty and actual forceful restraint or action taken by the arrestor, creating a reasonable belief that if the suspect tried to leave then force would be used to stop them from doing so.
A person cannot be detained in custody except under an arrest. Generally, there is no power for the police, or anyone else, to "detain a person for questioning" (except for the power contained in the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth) referred to in "Arrest by warrant", above). There are exceptional powers for Australian Federal Police and state police to stop, detain and search persons in a Commonwealth place if they suspect they might have committed or be about to commit a terrorist act. This power applies to any person who is in a "prescribed security zone" (ss.3UA–3UK Crimes Act (Cth)).
Unless a person is under arrest, they are not obliged to accompany police to a police station for any reason. The police often leave the situation as to whether the person has been arrested unclear so that they can rely on the person's "consent" to be questioned, etc.
If a person attempts to leave a place and is prevented from doing so by the police, then an arrest has taken place and the substance of the charges must, therefore, be stated.
Police have no power to search a person prior to arrest, unless they are operating under a specific statutory power, such as the "stop and search" power in relation to possession of drugs contained in section 82 of the Drugs, Poisons, and Controlled Substances Act 1981 (Vic). A police officer can lawfully search the body, clothing and property in the immediate possession of a person arrested, if such a search is reasonably believed to be necessary either:
- for the purpose of discovering a concealed weapon or any article which might be used by the person to injure themself or used by others to assist the person to escape; or
- to secure or preserve evidence with respect to the offence for which the person is in custody.
Within this context, such searches should be confined to "frisk" or "pat-down" types searches and not be extended to more intrusive searches of the body. A pat-down search may involve a person being required to empty their pockets, submit to an external pat-down, remove headgear, shoes, socks, and outer clothing for examination and have handbags searched. It does not involve the removal of inner clothing.
Strip searches: The extent of police powers to conduct strip searches under Victorian law has been confused by the laws relating to body samples and forensic procedures (see: "Body samples and forensic procedures", below). There has been much argument that the forensic procedures requirements mean that police may only carry out strip searches with either the informed consent of the person, an order of a Magistrates' Court, or under common law powers to search prisoners.
The Chief Commissioner, Victoria Police, issued instructions setting out the policy and powers governing searches by police. These instructions are contained in the Victoria Police Manual – Operations 105-1 "Searches of Persons". The guidelines state:
Note
Search of a person — a procedure for the discovery of evidence, concealed weapons or other articles with which the person being searched may cause mischief, e.g. injury, damage or to effect an escape.
Full searches: These are defined as those that involve the removal and examination of clothing, but should not generally involve physical touching of the body and should not involve the external physical examination of body cavities by touching a person's body. The conduct of full searches is limited to situations where prior express authority of an officer has been obtained, or without authority in the case of an urgent or serious situation.
All searches, including initial pat down searches, must now be recorded on the Patrol Duty Return or in their notebook or Official Diary, and all persons to be searched must be informed of the reasons for the search. There are additional requirements for conducting and recording the conduct of full searches and consensual searches.
If reasonably practical, male persons must be searched by male police officers, and females by female officers. Every search must be conducted with due consideration for the privacy, dignity, modesty and rights of the person concerned. Police are not to forcibly remove rings, ear-rings, studs, etc., which are not suspected to be stolen property.
It is clear that the police maintain that they can conduct strip searches, although with greater circumspection, once the power to conduct a search arises either under statute or the common law. The uncertainty of the law in relation to strip searches will only be resolved by either the courts or the Victorian Parliament.
Body searches are divided into three categories, namely:
- frisk search: quickly running the hands over the suspect's outer clothes and examining anything worn or carried by the suspect that they agree to remove;
- ordinary search: search of a suspect or articles in the suspect's possession, which may include requiring the suspect to remove any coat, jacket, gloves, shoes or hat so that such articles can be examined; and
- strip search: search requiring the suspect to remove all their clothes and an examination of the person's body (but not of body cavities) and clothes.
A frisk search may be conducted on arrest if police reasonably believe it would be prudent to find out whether the suspect is carrying any "seizable item" (anything which could present a danger or might be used by the suspect to assist with an escape).
An ordinary search may be conducted either (ss.3ZE–3ZI Crimes Act (Cth)):
- once a suspect is arrested, if police reasonably believe the suspect is carrying either some evidence in relation to an indictable offence or some "seizable item"; or
- once a suspect is brought to a police station.
A strip search may be conducted (ss.3ZH–3ZI Crimes Act (Cth)):
- once a suspect is arrested and brought to a police station, if police reasonably believe the suspect is carrying either some evidence, other than forensic material, in relation to an indictable offence or some "seizable item";
- the police officer suspects on reasonable grounds a strip search is required to recover the item or evidence; and
- the officer has approval of an officer of the rank of superintendent or higher.
In many situations, police have discretion to arrest a suspect or to proceed by way of summons. The behaviour of a suspect will often influence which course the police adopt. It is most important to remain calm and not use abusive language or behave badly when being questioned by the police. The same may be said of police behaviour. If an arrest proves to be unlawful, actions for assault and false imprisonment may be brought at a later stage. For some very minor offences, polite conduct towards the police may prevent a charge being laid at all.
Police have the power to require the name and address of any person they reasonably believe:
- has committed, or is about to commit, any offence; or
- may be able to assist the investigation of an indictable offence.
A person who is required to give their name and address may require the police officer to give their name, rank and place of duty. A person (including a police officer) who refuses to give their name and address, or who gives false details, can be fined up to $500.
The power in relation to Commonwealth offences is similar, but places two further duties upon the police. Police must explain why they are making the request and, if they are not in uniform, then they must, if requested, provide some proof that they are a police officer.
Other situations in which a citizen must give their name and address include:
- name and address must be given and driver's licence produced in relation to traffic offences when driving a motor vehicle, if this is requested by police;
- name and address must be given and proof of identity produced where a person has contravened the Transport (Compliance and Miscellaneous) Act 1983 (Vic); and
- deportees and prohibited immigrants must answer certain questions.
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ARREST :: Last updated: Thu Jul 1st 2010