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Victoria Police have the power to arrest people in certain circumstances.

When exercising the powers of arrest, an officer must comply with basic safeguards. These include that the person arresting you tells you that you are under arrest and why.

It is an offence under the Crimes Act 1958 and the Summary Offences Act 1966 to resist arrest. Even if police do not charge you with any other offence, you may still be charged with resisting arrest if you offer active resistance at the time of your arrest.

When Can A Police Officer Arrest?

Police are not obliged to arrest someone where they reasonably believe proceedings can be brought against the person by summons or a notice to appear in court.

However, a police officer can arrest you when:

  • a court has issued a warrant for your arrest;
  • the officer suspects on reasonable grounds that you have committed an offence;
  • the officer finds you committing an offence;
  • you have breached a bail undertaking or an officer believes on reasonable grounds that you are likely to breach your bail conditions;
  • the officer believes on reasonable grounds that you are escaping from legal custody or are helping someone else to escape from legal custody or to avoid apprehension;
  • the officer sees you committing an offence against traffic regulations and you either decline to give your name and address, or you supply one that the officer believes is false.

An officer who arrests you on suspicion of committing an offence must believe on reasonable grounds that the arrest is necessary to:

  • ensure your attendance at court for the offence;
  • preserve public order;
  • prevent the continuation or repetition of the offence or the commission of another offence;
  • protect the safety or welfare of members of the public or you.

When Can a Citizen Arrest?

A person who is not a police officer can arrest you without a warrant if:

  • you are in the act of committing an offence;
  • they are instructed to make the arrest by a police officer;
  • they believe on reasonable grounds that you are escaping from legal custody or are helping someone else to escape from legal custody or avoid apprehension.

A citizen making an arrest, just like a police officer, must also have a reasonable belief that the arrest is necessary to achieve the objectives listed above (such as ensuring the person’s attendance at court or protecting the safety or welfare of members of the public).

A commander of an aircraft may, on board the aircraft, arrest a person who they find committing and offence, or they reasonably suspect of having committed or attempted to commit an offence on or in relation to, or affecting the use of, an aircraft.

To prevent such an offence or to avoid danger to the safety of the aircraft or passengers, the commander may place you under restraint or in custody, or remove you from the aircraft if it is not in the course of a flight.

What Happens if Police do not Follow the Rules when Arresting?

There are certain rules outlined in the Crimes Act 1958 that govern arrest. Unlawful or improper conduct by a person carrying out an arrest can have significant consequences for the outcome of your case, particularly in relation to the following:

Use of Force

A police officer or other person who exercises a power to arrest another must not use force that is disproportionate to the objective they reasonably believe is necessary to effect the lawful arrest of someone committing or suspected of committing an offence. The same applies in order to prevent the commission, continuation or completion of an offence.

The use of disproportionate or unreasonable force will constitute an assault. It is up to the Judge or Magistrate to determine whether the force used was disproportionate in the circumstances.

Unlawful arrest

Police must exercise the power to arrest in good faith and for the purpose it exists, and not for some other reason. If not, the arrest may be unlawful.

Depending on the circumstances, police may not be allowed to use evidence that has been obtained as a result of an unlawful arrest. A person can also use reasonable force to resist arrest that is unlawful. But if the arrest is later found to be lawful, then your belief that it was unlawful is not a defence to a charge of resisting arrest.

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

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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