8.14.1 - Charge: Arrest when person found committing an offence

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[This charge is designed to be given as part of the “without lawful excuse” element in Charge: False Imprisonment or Charge: Assault - Application of Force where there is evidence from which a jury might infer that the accused was acting in accordance with Crimes Act 1958 s458(1)(a) to perform a lawful arrest. Where lawful arrest is raised in relation to other offences, it should be adapted as required.

If the basis for the lawful arrest relates to Crimes Act 1958 s459, see Charge: Police arrest due to an indictable offence or Charge: Protective Services Officer arrest due to an indictable offence.

If the basis for the lawful arrest relates to Crimes Act 1958 s458(1)(b) or (c), this charge must be modified accordingly.]

Lawful excuse

This element relates to the argument that NOA was performing a lawful arrest when s/he [insert relevant act].

To explain this element, I’m first going to give you some background on the power of police to arrest a person, and then explain the legal components of a lawful arrest.

Background

As a free and democratic society, all people are protected from arbitrary arrest and detention. The law gives all people, police and non-police alike, certain powers to arrest a person in order to prevent crime, these powers can only be exercised in limited and defined circumstances.

An arrest occurs when a person has made it plain to another person that the other person is no longer a free person. As part of this, the first person must inform the other person that the other person is arrested and the reason for the arrest. This is often done by saying something like “Mr Smith, I am arresting you because you are committing” and then identifying the crime in question.

It is not always necessary to spell this out. In some cases, it may be obvious from the circumstances why the person is being arrested. It is also not necessary to immediately inform the other person if that other person makes it impractical to do so, such as by running away. When informing the other person, a person does not need to use technical or precise language. The focus is on whether the other person has been adequately informed of the reason for the arrest.

As I said, an arrest involves making it plain that the other person is not free to go. If someone gives the impression that the other person is free to refuse a request, or free to leave, then there is no arrest. In other words, whether there is an arrest may depend on the words and actions of those involved, and the surrounding circumstances.

One limit on the power to arrest a person is that there must be a valid reason for the arrest. A desire to question a person is not a valid reason.

Components of lawful arrest

I’m now going to explain the components of a lawful arrest.

The accused will have lawfully arrested NOC if:

To prove that NOA was acting without lawful excuse, the prosecution must disprove at least one of these five components of a lawful arrest.

The prosecution argues that the [identify component numbers, e.g. first and third] components of a lawful excuse did not exist. I will now explain those components in more detail.

Note: The judge should only direct on those parts of a lawful arrest which are in issue.

Found committing an offence

The [number] way in which the prosecution can prove that NOA was not performing a lawful arrest is to prove, beyond reasonable doubt that NOA did not find NOC committing an offence.

The law gives a wide meaning to the idea of finding a person committing an offence. It covers the situation where the accused sees a person committing an offence. It also covers the situation where the accused finds a person [acting / behaving /in circumstances] so as to create a reasonable belief that the person committed an offence.

The prosecution argues that NOA did not find NOC committing an offence. The defence dispute this and say that NOA did find NOC committing [identify relevant offence].

[Summarise evidence and arguments relating to circumstances in which NOC was found when NOA effected the arrest].

Belief on reasonable grounds that arrest was necessary

The [number] way in which the prosecution can prove that the accused was not performing a lawful arrest is to prove, beyond reasonable doubt, that the accused did not believe on reasonable grounds that arrest was necessary for a lawful reason.

This component looks at the basis for the arrest. The basis must be lawful and the accused must have believed on reasonable grounds that it was necessary to arrest NOC on that basis.

For this purpose, an arrest is lawful if it is necessary:

There is an important difference between a belief and a suspicion. The accused must have actually believed that NOC had committed an indictable offence. A state of mind such as “I think s/he might have committed an offence” or “I suspect s/he has committed an offence” is not sufficient. A belief means thinking something is true, even if there is still some uncertainty. A belief is a more certain state of mind than a suspicion, but does not depend on concrete proof.

There must also be reasonable grounds for that belief. This means that the accused must have known facts which would be sufficient to cause a reasonable person to also believe that the other person had committed an offence.

This means you are looking both at what NOA believed, and whether there was a reasonable basis for NOA to believe arrest was necessary for this purpose.

The prosecution argues that [identify relevant prosecution evidence and arguments]. The defence respond by saying [identify relevant defence evidence and arguments].

If you are satisfied NOA did not believe it was necessary to arrest NOC to [identify relevant lawful purposes of arrest] or that NOA did not have a reasonable basis for that belief, then you must find that NOA was not performing a lawful arrest.

Communication of arrest

The [number] way in which the prosecution can prove that NOA was not performing a lawful arrest is to prove, beyond reasonable doubt, that NOA did not communicate to NOC that [he/she] was being arrested.

NOA must have done everything a reasonable person in the circumstances would have done to inform NOC that [he/she] was under arrest. NOC must have understood that the [he/she] was acting under compulsion and not voluntarily.

[If there is evidence to suggest that the accused was prevented in any way from communicating to the other person that they were under arrest, add the following shaded section.]

In certain circumstances, a person will be excused from immediately informing the other person that they are under arrest. These circumstances include:

In these circumstances, the other person must be informed that they are under arrest at the earliest reasonable opportunity.

[Summarise evidence and arguments about whether NOA communicated that the arrestee was under arrest].

Communication of reason for arrest

The [number] way in which the prosecution can prove that NOA was not performing a lawful arrest is to prove, beyond reasonable doubt, that NOA did not communicate the reason for the arrest.

The accused did not need to use precise or technical language. It is sufficient if NOA informed NOC of the facts constituting the alleged offence.

[If there is evidence to suggest that the accused was prevented in any way from communicating the reason for the arrest, add the following shaded section.]

In certain circumstances, a person will be excused from immediately informing the other person that they are under arrest. These circumstances include:

In these circumstances, the other person must be informed that they are under arrest at the earliest reasonable opportunity.

[Summarise relevant evidence and arguments].

Use of force not disproportionate to objective of arrest

The [number] way in which the prosecution can prove that NOA was not performing a lawful arrest is to prove, beyond reasonable doubt, that NOA used excessive force.

The right to use force for the purpose of an arrest only authorises using the amount of force reasonably necessary to carry out the arrest. The force must not be disproportionate to the objective of the arrest.

For this component, you must look at whether the force used was disproportionate objectively. That is, you decide whether the force used was proportionate. You are not deciding whether NOA thought the force used was proportionate.

[Summarise evidence and arguments about force used to effect arrest].

Relate law to the evidence

[If not previously done, apply the law to the relevant evidence here.]

Summary

To summarise, for this element, the prosecution must prove that NOA was not exercising a lawful power of arrest. Based on the evidence, this means the prosecution must prove that NOA did not:

[Identify only those matters that are in issue:

Unless you find that the prosecution has disproved one or more of these matters beyond reasonable doubt, you must find NOA not guilty of [offence].

Remember, it is for the prosecution to prove, beyond reasonable doubt, that the accused acted without lawful excuse by showing that he/she was not performing a lawful arrest. NOA does not need to prove that [he/she] was performing a lawful arrest.

Last updated: 17 May 2019

See Also

8.14 - Powers of arrest

8.14.2 - Charge: Police arrest due to an indictable offence

8.14.3 - Charge: Protective services officer arrest due to an indictable offence