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.
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 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 judge), which 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 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 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 (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, police often 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.
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.) It does not include summary charges, police only have power to arrest if they find a summary offence being committed, as outlined above.
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
Section 459A of the Crimes Act (Vic) gives a police officer 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 police officer 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;
- 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.
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)).
Arrest with a warrant
Arrests by warrant are the exception, rather than the rule. A 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, if 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 if a summons would be just as effective in ensuring the appearance of the accused at court.
Before issuing a warrant, a magistrate or registrar must be satisfied that:
- the defendant won’t answer a summons; or
- the defendant has absconded or is likely to abscond; or
- it is required for another good cause (s 12(5) CP Act).
Justices of the peace cannot issue warrants.
For Commonwealth offences committed in the state where a warrant has been issued, 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 is contained in the Australian Security Intelligence Organisation Act 1979 (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.
Power to search with warrant
Courts can issue a warrant requiring someone to be brought in for the hearing of an application for an order requiring that person to undergo a forensic procedure. In this case, the warrant gives 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 that they are alleged to have committed, in the state to which their extradition is sought.
The court hearing the extradition application can:
- order the person to be returned to the other state by delivering them into police custody;
- release the person on bail with specific conditions; or
- if the warrant is not produced after an adjournment to allow time for it to be produced, order the person be released; or
- if satisfied that the warrant is invalid, order the person be released (s 83 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.
Method of arrest
Arrest or ‘apprehension’ involves the actual seizure or touching of a person’s body with a view to detaining them. Actual capture is not essential. If there is no touching of the person’s body, then there is no arrest, unless the person submits and goes with the arresting officer. This applies, even when 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 information about the charge must be given does not apply where the circumstances are such that the suspect must know the nature of the alleged offence (e.g. if they are 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.
Use of force in arrest
A person can lawfully use an amount of force to make an arrest that is reasonably necessary to affect 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 (see the note to section 462A of the Crimes Act (Vic)). 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, a police officer must not do anything that is likely to cause death or serious harm to a suspect, unless they reasonably believe that 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 they must also reasonably believe that the suspect cannot be apprehended in any other way (s 3ZC Crimes Act (Cth)).
Citizen’s arrests are allowed under the Crimes Act (Vic) (s 462A), which states that a 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.
This applies so long as the force they use is proportionate to the particular objective.
The arrest must always be lawful, and thus an ordinary citizen must 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 a suspect without a warrant if they reasonably believe 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, a protective services 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.
Use of firearms
In using firearms, police must comply with 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 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
- 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. (Victoria Police Manual, operations 101–3: operating safety and other equipment.)
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.
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. (Victoria Police Manual, operations 101–3, table 101–3, section 5.1: carriage of operational safety equipment – general.)
With the increased threat of terrorist attacks directed specifically at police, operational police were directed in 2015 to work in pairs and to carry their firearms.
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 that 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 considered 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 person’s arrest 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 is not in custody, even if they think they can’t leave.
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 Act 1979 (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)). At the time of writing (1 July 2021), the powers created by sections 3UA–3UK were subject to a sunset provision coming into effect on 7 September 2021; this means that these powers must not be exercised after that date.
Unless a person is under arrest, they are not obliged to accompany police to a police station for any reason. In practice, the police are often quite unclear in their communication about whether a person has been arrested, so that they can rely on the person’s ‘consent’ to be questioned.
If a person attempts to leave a place and is prevented from doing so by the police, then an arrest has taken place. If this happens, then the substance of the charges must be stated.
A special obligation is placed on investigating officials where the person taken into custody is an Aboriginal or Torres Strait Islander person. The investigating official must notify the Victorian Aboriginal Legal Service (VALS) within one hour of taking the person into custody. If it is not practicable to do so within one hour, then as soon as it is practicable to do so. The investigating official must also notify the Aboriginal or Torres Strait Islander person that they have notified VALS as soon as practicable after making the notification (s 464FA Crimes Act (Vic)).
Personal search (on arrest)
Personal search (on arrest) for Victorian offences
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 that 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’ 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.
The common law police power to conduct a ‘safety and evidence search’ following arrest includes the power to require a person to remove their clothing, if the circumstances require it. However, searches involving the removal of underwear should be rare (see DPP v Tupper  VSC 285).
The Chief Commissioner of the Victorian Police has issued instructions setting out the policy and powers governing searches by police officers:
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.(Victoria Police Manual, operations 105–1: searches of persons)
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 the police officer’s 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 full searches and consensual searches.
If reasonably practical, a person must be searched by a police offiver of the same sex. 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, earrings, studs, etc. that are not suspected to be stolen property.
The Chief Commissioner requires police officers to conduct all searches in a way that limits the person’s loss of privacy and indignity. This position reflects the common law set out in DPP v Tupper  VSC 285.
Personal search (on arrest) for Commonwealth offences
Body searches are divided into three categories:
- 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 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 that could present a danger or might be used by the suspect to assist with an escape) (s 3ZE Crimes Act (Cth)).
An ordinary search may be conducted either (ss 3ZF–3ZH 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.
Behaviour on arrest
Conduct can make a difference
In many situations, police have discretion to arrest a suspect or to proceed by way of summons. The behaviour of a suspect often influences which course the police adopt. It is extremely 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.
Giving name and address
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.
If you are required to give your name and address, you are in turn entitled to ask the police officer to tell you their own name, and their rank and place of duty. In these circumstances, if either you or the police officer refuse to supply the required information – or if either of you supply false information – you 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 person must give their name and address include:
- name and address must be given and driver 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 or is about to contravene the Transport (Compliance and Miscellaneous) Act 1983 (Vic) or the Graffiti Prevention Act 2007 (Vic); and
- name and address must be given by deportees and prohibited immigrants, who must also answer certain questions.