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Arrest Without Warrant

Most arrests are made without a warrant. Under the Criminal Code 1924, a police officer can arrest a person without a warrant when the person is committing a crime; when the person is found loitering in circumstances which suggest they may be about to commit a crime; where the police officer believes on reasonable grounds that they have committed a serious crime; or the person is committing, or is about to commit, a breach of the peace.

A police officer has additional powers to arrest people for committing all but trivial offences under the Police Offences Act 1935. However they are duty bound to consider whether using a summons to bring the person before the court should not be used instead.

A police officer may also arrest a person whom they believe to have breached their bail or is reasonably believed likely to do so or appears to be in breach of a restraint order.

Under the Crimes Act (Cth) any police officer can arrest a person without warrant when a breach of the peace has been committed or is thought, on reasonable grounds, to be about to be committed (the breach must involve an offence against the Crimes Act (Cth); or the police officer believes, on reasonable grounds, that a person has committed an offence against a law of the Commonwealth, and a charge against the person could not be effectively dealt with by summons.

Many Acts have powers for arrest without warrant where there is reasonable suspicion of an offence being committed under the Act. Parks and Wildlife Service officers for instance can arrest without warrant where the officer has reasonable grounds for believing that a person has committed an offence under the National Parks and Reserves Management Act 2002 (Tas) and for the purpose of arresting that person can enter, by force if necessary, any premises on which the officer has reasonable grounds for believing that person to be present (s66). Customs officers have similar powers.

Arrest With Warrant

A warrant is a written authority from a justice, magistrate or judge for the arrest of a named person. It can be issued for an offence, failure to pay a fine or failure to appear in court. A warrant authorises all police officers to arrest the person named wherever and whenever they may be found. A person arrested on warrant must be brought before the court.

Valid Arrest

There are three elements of a valid arrest. Firstly, words indicating that the person is being arrested (for example, "you are under arrest"). Secondly either touching the arrested person, or that person submitting by going with the police officer or staying where they are told. Thirdly indicating a reason for the arrest. It is not necessary to specify precisely the charge so long as the person knows why they are being arrested. If it is obvious from the situation, then it is not necessary to formally tell the person. It is not necessary for the police to stop and tell the person the reason if the person makes communication difficult, for example, by trying to escape.

Force in Arrest

A police officer may use as much force as is reasonably necessary to arrest the person. Unreasonable force is assault. It is up to the judge or magistrate to decide whether or not the force used was reasonable in the circumstances. Private citizens are also entitled to use such force as they believe on reasonable grounds to be necessary to prevent the commission of a crime (Criminal Code s39).

Entering Private Property

Whenever a police officer has a right to make an arrest, with or without warrant, they have a right to enter private property to make such an arrest. However, this does not extend to entering private property for the purpose of taking a person into custody following refusal to submit to a breathalyser test.

Arrest when Trespassing

A police officer cannot arrest a person trespassing on land without first giving that person an opportunity to leave that land by the shortest practicable route.

Resisting Arrest

It is an offence to resist or hinder or to incite any person to assault, resist or hinder a police officer in the execution of their duty, including the making of a lawful arrest. The resistance must be active. Merely lying down and refusing to co-operate is not resisting arrest. Neither is running away from a police officer before a valid arrest has been completed. However, running away is evidence of ‘consciousness of guilt’ and is used against a person in court.

An arrest may be valid if the police reasonably suspect that a person has committed an offence, even if they are completely innocent. If the person resists arrest, they commit a further offence and can be charged with resisting even if the police do not proceed with any other charge.

Citizen's Arrest

The right of arrest by a private citizen is limited to situations such as where a crime has been committed or attempted; where there is immediate danger of a crime being committed; where a ‘breach of the peace’ has been committed or is thought, on reasonable grounds, that it is about to be committed; or where there has been or is serious danger of substantial injury to a person or a person's property or public property.

‘Breach of the peace’ justifies an arrest when there is an assault, public alarm and excitement is created, or a person obstructs a police officer in the execution of their duty. Mere annoyance, disturbance, or insulting or abusive language are not sufficient to allow a person to arrest another person.

When a security guard at a retail store, for example, makes an arrest, they do so as a citizen.
A person exercising a power of arrest must be careful or the person arrested may sue and obtain damages for false imprisonment. To lessen the chance of this, the person arrested should, without delay, be handed over to the police with a full recorded explanation of the reasons for the arrest.

A person is obliged to hand over a person arrested to the police as soon as practicable in any event and the police must bring that person before a justice as soon as is practicable after they have been taken into custody (Justices Act 1959 s34A). A person taken into custody may however be detained by a police officer for a reasonable time for questioning, carrying out investigations, or to arrange for the person to be brought before the court (Criminal Law (Detention and Interrogation) Act 1995 s4(2)). Thus, in practice a person should be brought before the next available court. Special courts will sit at weekends and in the evening to protect this very important right of every citizen.

What to do if Arrested

Information cards and pamphlets are available from community legal centres that set out what to do in the case of arrest.  These may be useful particularly for vulnerable groups with little knowledge of the law or police powers. There are several rights and obligations that you have when under arrest. You should:

  • Be polite and courteous
  • Refrain from being rude
  • Not resist arrest, as this can be the basis of a further charge against you

You are obliged to:

  • Give your name and address
  • Your age if you are on a licensed premise
  • State your source of supply if you are found in possession of drugs

You have the following rights:

  • If you are over 17, you can ask to make a telephone call, but in some situations can be denied
  • If you are under 16 years of age, ask to make a telephone call
  • Ask for bail
  • State clearly that you won’t answer any questions until you have spoken to a lawyer
  • Silence – you do not have to say anything

If a police officer asks a person “to accompany them to the station” and they do not want to go, they should ask whether they are being arrested. If the police officer says they are being arrested, the person should ask “what for?” as the police are bound to tell them. The person can also ask the police officer to identity themselves.  If the police say they are not arresting the person then the person may walk away.

Where a person has been arrested and suspects that the arrest is not lawful, verbal objection should be made as frequently as possible, preferably in the presence of independent witnesses.

In almost every case, it is advisable to make some independent person aware of the fact of the arrest and of where the person is being held. A lawyer should be contacted and requests for the presence of a lawyer should be made (see below).

No attempt should be made to resist the arrest. It is up to the police officer to decide whether a suspect is to be arrested or summonsed. The conduct of a person will often influence which course the police adopt. In the case of minor offences, polite conduct towards the police may prevent a charge being laid at all. Co-operation with the police is always advisable where there is nothing to be lost by co-operating.

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