Citizen’s Arrests (NSW)

While almost all arrests are (and should be) carried out by police, in New South Wales a member of the public is able to arrest a person in certain circumstances. An arrest that is carried out by someone who is not a police officer is called a citizen’s arrest. The requirements around a citizen’s arrest are strict. There can be serious consequences if a ‘citizen’s arrest’ is carried out improperly, unlawfully or with excessive force, including criminal charges. 

Who can perform a citizen’s arrest?

Citizen’s arrests are usually carried out by security guards and shopkeepers. However, any member of the public can technically carry out an arrest if they have grounds for doing so. The person who performs the arrest must take the person who has been arrested before an authorised officer to be dealt with. In practice, this usually means calling the police and detaining the person until they arrive.  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; or
• 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. This includes offences such as Assault Occasioning Actual Bodily Harm, Sexual Touching, Supply Prohibited Drug, Break and Enter and Intimidation, but doesn’t include offences such as Common Assault, Drink Driving, Possess Prohibited Drug or Trespass (Enter Inclosed Lands). 

Unlawful arrests

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

A person is allowed to use reasonable force when carrying out a citizen’s arrest. If more than reasonable force is used, the arrest could be unlawful. This could result in the person performing the arrest being charged, a complaint made to police about them or a civil suit being filed against them. In the past, persons have been charged with serious offences as a result of a ‘citizen’s arrest’, including manslaughter where the person arrested and detained has died.

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.

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 person performing the arrest 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.