Citizen’s Arrests (NSW)

While most arrests are carried out by police, in New South Wales there is legislation that empowers any member of the public to arrest a person under certain circumstances. An arrest that is carried out by someone who is not a police officer is called a citizen’s arrest. This article outlines the laws around citizen’s arrests in New South Wales.

Who carries out citizen’s arrests?

Citizen’s arrests are usually carried out by security guards and shopkeepers. However, any member of the public can carry out an arrest if they have grounds for doing so. The arrestor must then take the person who has been arrested before an authorised officer to be dealt with. Despite the name, there is no requirement that the person carrying out the arrest actually be an Australian citizen.

When can a citizen’s arrest occur?

Under section 100 of the Law Enforcement (Powers and Responsibilities) Act 2002, a person may arrest another person without a warrant if:

• They are in the act of committing an offence;
• They have just committed an offence;
• They have committed a serious indictable offence for which they have not been tried.

A serious indictable offence means an offence that attracts a maximum penalty of five years’ imprisonment or more.

Unlawful arrests

Citizen’s arrests must be carried out within the limits prescribed by law.

A person is allowed to use reasonable force when carrying out a citizen’s arrest. If more than reasonable force is used, the person being arrested may take legal action against the arrestor. This may include suing them for damages or making a statement to police.

A person who carries out a citizen’s arrest must do so based on actual knowledge that the being arrested has committed an offence. A member of the public may not carry out an arrest based on a reasonable suspicion only, as the police may do.

If the person arrested is injured, unnecessarily humiliated or degraded, or if they are not delivered promptly into police custody, this may render the arrest unlawful.

An unlawful arrest may lead to civil consequences such as an action in tort law. It could also lead to criminal consequences. The police may lay a charge such as assault or deprivation of liberty.

A citizen’s arrest should only be carried out where it is absolutely necessary as it comes with significant risks such as the possibility of either party getting injured, or the arrestor exposing themselves to legal consequences.

Other states and territories

Each state and territory of Australia has its own laws about the circumstances under which a citizen’s arrest may be carried out. There are significant differences in the situations where the law permits this to occur from one jurisdiction to another.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.