The Law Handbook 2024

Chapter 3.5: Arrest, search, interrogation and your rights 173 Arrest Arrest without warrant 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. NOTE 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: 1 to ensure the appearance of the offender (person committing the offence) before court; 2 to preserve public order; 3 to prevent the continuation or repetition of the offence or the commission of a further offence; or 4 for the safety or welfare of the public or offender. The basic requirement is that the 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 a person found committing an offence into custody or before a judge, if they believe on reasonable grounds that the case can effectively be brought by way of summons (an order to appear before a court), which could be sent to the person at a later date. Found committing 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 being in circumstances after the completion of a criminal act that means 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 froma 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 (an offence that can be dealt with by a judge alone, as opposed to an ‘indictable’ offence, which must be heard before a judge and jury – see ‘Classification of offences’ in Chapter 3.7: Which court for which crime?) shall be held in custody only so long as any of the reasons listed above for the arrest continue (i.e. s 458(1)(a)). If, before a charge has been laid, the reasons for arrest cease to apply, then the person must be released without bail, whether or not a summons has been issued. However, in practice, sometimes police detain people while a charge and summons are 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 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’ (which the accused can choose to have heard before a jury) – requiring the person to attend a specified Magistrates’ Court at a specified time and date. Section 459 provides that any police officer or protective services 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 that can be determined summarily) 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. A protective services officer must hand the person arrested over to a police officer as soon as practicable after the arrest. In the case of indictable offences that have already been committed, police may either arrest the person or charge them by summons, although they almost always arrest for serious offences. Note that only police and protective services officers have this power. It does not apply to summary offences; police only have power to arrest if they find a summary offence being committed, as outlined above.