The Law Handbook 2024

174 SECTION 3: Fines, infringements and criminal law This procedure is used when interstate offenders are taken into custody other than by warrant. (See ‘Classification of offences’ in Chapter 3.7: Which court for which crime?, for the differences between indictable and summary offences, etc.) Commonwealth offences 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; • preventing the suspect from committing further offences; • preventing any evidence being lost, destroyed or concealed; • preventing harassment of any witness; • preventing the fabrication of evidence; and • safeguarding the safety or welfare of the suspect. Special broader powers of arrest apply to people who are reasonably believed to have committed a terrorism offence (including advocating the commission of a terrorism offence), escaped from lawful custody, or who are reasonably believed to have broken (or are about to break) any bail condition that they must comply with (ss 3WA, 3X, 3Y Crimes Act (Cth)). Power to search without warrant Victorian offences Section 459A of the Crimes Act (Vic) gives a police officer the 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: 1 has committed a serious indictable offence in Victoria; 2 has committed an offence elsewhere which, if committed in Victoria, would be a serious indictable offence; 3 has escaped from legal custody; or 4 is committing a serious indictable offence. In this context, a serious indictable offence is 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) and 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. The Family Violence Protection Act 2008 (Vic) (s 157) gives a police officer power to enter and search any premises of a person believed to have breached that Act, provided the police officer has a reasonable belief that one of these requirements is satisfied: • the person has assaulted or threatened to assault a family member; • the person is on the premises in breach of an intervention order, family violence safety notice, or a recognised interstate or international domestic violence order; • the person is refusing or failing to comply with a direction given to them by a police officer to remain at, or go to, a specified place, or to remain in the company of a police officer; and • they have permission (whether express or implied) to enter from one occupant of the premises, even though another occupant is denying them entry. Commonwealth offences Police can search any vehicle without a warrant if they reasonably believe that: • a thing that 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 that is conducted without a warrant must be conducted in a public place. It must be completed as quickly as possible and use 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 house where someone is living, including a vehicle, to arrest a person between 9pm and 6am, 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)).