A person is arrested when police make it plain to him or her that he or she is not free to leave (R v Lavery (1978) 19 SASR 515).
The Crimes Act 1958 contains several provisions empowering police officers to make arrests in various circumstances.
In addition, other legislation provides additional bases for arrests without warrant (see, e.g. Bail Act 1977 s24). These other bases for arrest without warrant are beyond the scope of this commentary.
While powers of arrest are now governed by statute in Victoria, the common law still dictates the requirements of a lawful arrest (Slaveski v State of Victoria & Ors  VSC 441; Crimes (Powers of Arrest) Act 1972).
Unless stated otherwise, all statutory references are to sections of the Crimes Act 1958.
To Which Crimes are Police powers of Arrest Available as a Defence?
Police powers of arrest provide a lawful excuse for what would otherwise be an unlawful application of force. The defence is therefore most likely to arise in relation to offences such as:
assault (Slaveski v State of Victoria & Ors  VSC 441); and
false Imprisonment (Biddle v State of Victoria & Ors  VSC 275).
General powers of arrest without warrant (s458)
Section 458 provides three situations in which any person (including a police officer) may arrest a person without a warrant.
Accused finds a person committing an offence (s458(1)(a))
The first situation applies where:
a person (including a police officer) found the other person committing an indictable or summary offence; and
a person (including a police officer) believed on reasonable grounds that apprehension was necessary for one or more of the prescribed reasons (s458(1)(a)).
A person (including a police officer) finds a person committing an offence including when a person (including a police officer) finds a person:
doing any act or so behaving or conducting himself or in such circumstances that the person finding him believes on reasonable grounds that the person so found is guilty of an offence (s462).
“Finds committing” is intended to be given an extended meaning to encompass circumstances beyond actually finding an offender engaged in the relevant act (De Moor v Davies  VSC 416).
Section 462 extends the point of discovery of the commission of the offence to encompass:
the actual perpetration of the offence;
finding a person behaving or conducting him or herself so as to create a reasonable belief of guilt; or
finding a person in such circumstances so as to create a reasonable belief of guilt (De Moor v Davies  VSC 416; Lynch v Hargrave  VR 99; Lunt v Bramley  VR 313).
The prescribed reasons are:
(i) to ensure the attendance of the offender before a court of competent jurisdiction;
(ii) to preserve public order;
(iii) to prevent the continuation or repetition of the offence or the commission of a further offence; or
(iv) for the safety or welfare of members of the public or of the offender (s458(1)(a).
Accused instructed by an authorised police officer (s458(1)(b))
The second situation under s458 applies where a person (including a police officer) was instructed to apprehend a person by a police officer who had the power to apprehend that person.
Arrested escaping from custody or evading arrest (s458(1)(c))
The third situation under s458 applies where a person (including a police officer) believed on reasonable grounds that the other person was:
escaping from legal custody; or
aiding and abetting another person to escape from legal custody; or
avoiding apprehension by some person with authority to apprehend the person.
Duration of arrest under s458
A person who has been apprehended under s458 may only be held as long as the reason for their apprehension continues. If the reason ceases to exist, the arrested person must be released (s458(3)).
Police-specific powers of arrest without warrant (s459)
Section 459 provides powers that only apply to police or protective services officers. Under section 459 a person is lawfully arrested if a person (including a police officer):
is a police or protective services officer; and
believed on reasonable grounds that the other person has committed:
an indictable offence in Victoria; or
an offence elsewhere which would be an indictable offence in Victoria.
A protective services officer exercising this power must hand the person into the custody of a police officer as soon as practicable (s459(2)).
A protective services officer can only exercise this power in relation to a person who is at or in the vicinity of a “designated place” as defined in the Victoria Police Act 2013 (s459(3)).
Where an arrest is made under a belief held on reasonable grounds, the apprehension does not cease to be lawful if it later turns out the person arrested did not commit the offence alleged against him (s461).
“Reasonable grounds” requires the existence of facts which are sufficient to induce that state of mind (e.g. belief, suspicion) in a reasonable person (George v Rockett (1990) 170 CLR 104; Walsh v Loughnan  2 VR 351).
The person (including a police officer) must believe that the person being arrested has committed an indictable offence and this belief must be based on facts that would induce that state of mind in a reasonable person (Slaveski v State of Victoria & Ors  VSC 441).
Belief has been distinguished from suspicion (George v Rockett (1990) 170 CLR 104). The facts grounding a suspicion may be insufficient to ground a belief (Walsh v Loughnan  2 VR 351).
Belief is a more certain state of mind than suspicion and involves an inclination of the mind towards assenting to, rather than rejecting, a proposition (George v Rockett (1990) 170 CLR 104).
Suspicion is a positive feeling of actual apprehension of mistrust, amounting to a slight opinion, but without sufficient evidence. Suspicion is not enough to justify an arrest without warrant (Slaveski v State of Victoria & Ors  VSC 441).
The information upon which the arrester forms their belief depends on all of the circumstances that prevailed at the relevant time, including what the arrester saw, heard or did.
The person (including a police officer) must have believed that a particular indictable offence occurred, and not simply any indictable offence generally (R v Vollmer  1 VR 95).
Use of Force
Section 462A authorises a person to use force to effect or assist in effecting the lawful arrest of a person committing or suspected of committing an offence (s462A).
The force used must not be disproportionate to the objective as the person believed on reasonable grounds to be necessary (s462A).
Section 462A of the Crimes Act does not confer a power of arrest, it merely provides that proportionate force may be used to effect an arrest. The lawful power of arrest must be derived from either section 458 or section 459 (Slaveski v State of Victoria & Ors  VSC 441).
The right to use force is a corollary of the right to effect an arrest, as without such a right, a power of arrest would be ineffective (R v Turner  VR 30).
The right to use force only authorises using the amount of force reasonably necessary to carry out the arrest. The force must not be disproportionate to the “evil to be prevented” (R v Turner  VR 30).
The level of force that is reasonable is to be determined objectively.
Arrest with Warrant
In addition to the various bases for arrest without warrant, Victorian law provides a range of bases for a court to issue a warrant to arrest (see, e.g., Criminal Procedure Act 2009 s12; Evidence Act 2008 s194).
Where there is an arrest with warrant, the person must comply with any conditions on the warrant, along with the common law elements of lawful arrest described below.
Common Law Elements of Lawful Arrest
While the powers of arrest are largely governed by statute, the common law still dictates the process of a lawful arrest (Slaveski v State of Victoria & Ors  VSC 441).
These procedural requirements are:
The other person was deprived of his or her liberty;
The accused informed the other person that he or she was under arrest; and
The accused informed the other person of the reason for the arrest.
Deprivation of Liberty
There is no requirement that the other person be seized or subjected to physical force. There may be an arrest by mere words (Alderson v Booth  2 QB 216).
There will be a sufficient deprivation of liberty if the other person submits to the arrester’s control after the arrester has indicated his or her intention to effect the arrest (Slaveski v State of Victoria & Ors  VSC 441).
If the other person does not comply, the deprivation of liberty must be formalised by the accused touching the other person (Sandon v Jervis (1859) 120 ER 760).
Communication of arrest
A person (including a police officer) must do everything that a reasonable person in the circumstances would do to inform the person being arrested that they are under arrest (R v Stafford (1976) 13 SASR 392; Hull v Nuske (1974) 8 SASR 587).
The person being arrested must comprehend that they are acting under compulsion and not voluntarily (Alderson v Booth  2 QB 216; R v O ’Donoghue (1988) 34 A Crim R 397).
The question of whether it was clear to the person being arrested that they were under compulsion is a question of fact dependant on the circumstances of the case (R v Inwood  2 All ER 645).
Communication of reason for arrest
A person (including a police officer) must inform the person being arrested, at the time of the arrest, of the offence or facts constituting an offence, for which they are being arrested (Christie v Leachinsky  AC 573; Adams v Kennedy (2000) 49 NSWLR 78; R v Tipping  SASCFC 41).
The reason given must be the true reason. A person cannot keep the reason for arrest to himself or herself, or give a reason which is not the true reason (Christie v Leachinsky  AC 573).
An arrest for the mere purpose of questioning is unlawful (Bales v Parmenter (1935) SR (NSW) 182).
The reason for arrest does not need to be communicated using technical or precise language (Christie v Leachinsky  AC 573).
In certain circumstances, the accused will be excused from immediately informing the person being arrested, for example:
if the other person resists arrest or absconds (Christie v Leachinsky  AC 573);
if the circumstances of the arrest are such that the offence or reason for arrest is apparent to the other person (Christie v Leachinsky  AC 573); or
if the other person is unable to understand the reason because of disability, intoxication or lack of English language skills, as long as the accused does all that a reasonable person would do in such circumstances (Tims v John Lewis & Co Ltd  AC 676).
In these circumstances, a person (including a police officer) must inform the person being arrested of the reason for the arrest at the earliest reasonable opportunity (Christie v Leachinsky  AC 573).
In assessing the second exception described above, the focus must be on the circumstances of the arrest itself, rather than the subjective knowledge of the arrested person. The prosecution must show that, in the circumstance, the other person must have known the reason for the arrest (State of NSW v Delly (2007) 70 NSWLR 125).