Arrest Without A Warrant (Vic)

In Victoria, an arrest can be made for a range of reasons by a range of people. In some circumstances, an arrest can be made without a warrant. This article will explain those situations.

Arrest without a warrant

A lawful arrest without a warrant can be made by police and others in some situations. These are listed in sections 458 and 459 of the Crimes Act 1958. They include:

• when a person is found committing an offence, and arrest is needed:
  • to ensure that person attends court;
  • to preserve public order;
  • to prevent continuation or repetition of the offence, or further offences;
  • for the safety and welfare of the public or the offender;
• when a person is instructed by police to make an arrest;
• when a person believes another person is escaping from custody or helping someone else to escape custody or avoid apprehension.

“Found committing” means a person is found doing any act, or behaving in a way, or in any circumstances, where it is reasonable for another person to believe the person is guilty of an offence.

A person who has been arrested without a warrant can be held only as long as the reason for arrest exists.

In addition to the above reasons, a police or protective services officer can apprehend a person without a warrant if they believe on reasonable grounds that the person has committed an indictable offence (a serious offence that usually carries a maximum penalty of more than 2 years in prison). This also applies to an offence committed elsewhere that would be classed as an indictable offence in Victoria.

A “protective services officer” is someone who protects:

• public officials;
• the general public in certain places or in an emergency;
• certain places of public importance.

A protective services officer can arrest someone without a warrant only at a “designated place”, which means a railway, bus area, taxi rank, car park, tram stop or other public transport site. The officer must present a person they have arrested to a police officer as soon as practicable.

Entering and searching premises

The Act permits a police officer to enter and search a place to arrest a person if the officer believes on reasonable grounds that the person is committing or has committed an indictable offence or equivalent offence; or is escaping from custody.

If a person who made an arrest reasonably believed the apprehended person committed an offence, and it subsequently appears the apprehended person did not, the arrest will not be taken to be unlawful.

Use of force

The Act authorises a person to use force to effect or help effect the arrest of someone who is committing or is suspected of committing an offence. The force used must be proportionate and only that which is reasonably necessary.

Arrests with a warrant

A warrant for arrest is issued under section 12 of the Criminal Procedure Act 2009. A court can issue an arrest warrant for many reasons, including when:

• it believes a person will not answer a summons to appear;
• it believes a person has absconded or is likely to abscond, or is avoiding service of a summons;
• a person has failed to comply with their bail conditions;
• a person has tried to evade police;
• there is a reason under another Act, or there is a good cause.

Lawful arrest

To make a lawful arrest, three elements must be satisfied. These are that the arrested person:

1. was deprived of their liberty;
2. was informed they were under arrest;
3. was told the reason for their arrest.

In some circumstances, the person carrying out the arrest will be excused from immediately informing the other person that they are under arrest. Such situations include when:

• the other person resists or absconds;
• the offence or reason for arrest is apparent to the other person;
• when the other person cannot understand the reason because of disability, intoxication or lack of English language skills.

There is no requirement for a person to be seized or subjected to physical force when they are arrested; an arrest can be made by using words.

An arrest cannot be made for the sole purpose of questioning.

Commonwealth offences

Under the Crimes Act 1914, police can arrest a person without a warrant if they reasonably suspect that a person is committing, or has committed, a Commonwealth offence, such as importing drugs or social security fraud. In addition, the police must reasonably believe an arrest without a warrant is necessary to:

• ensure the suspect appears in court to answer the charge;
• prevent the suspect from committing further offences;
• prevent evidence from being lost, destroyed or concealed;
• prevent harassment of any witness;
• prevent fabrication of evidence;
• preserve the safety or welfare of the suspect.

Under the Act, arrest without warrant is also permitted where a person is suspected to be committing or have committed a terrorism offence, or to be a prisoner at large, or to be a person breaching bail.

For advice or representation in any legal matter, please contact Armstrong Legal.