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Frank Walker
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Stacks/The Law Firm - News Room


MAKING A CITIZEN’S ARREST

5/10/2011


It’s something we don’t hear about too often – an everyday citizen arresting someone for a crime.

Sure, there are occasional media reports, like the arrest of Nai Yin Xue in 2008, a murder suspect and the father of toddler ‘Pumpkin’ found abandoned in a Melbourne train station. A group of Chinese American citizens reportedly recognised him and took action, tying his hands up with his belt and calling the police.

And there was the much publicised ramming by a Japanese whaling ship of a Sea Shepherd Conservation boat in the Southern Ocean last year. The New Zealand skipper boarded the Japanese boat with a view to making a citizen’s arrest of the Captain for ‘attempted murder’. It didn’t quite pan out as planned (he was himself arrested). Great PR though.

So what does the law say? Can anyone make an arrest?

Yes. It dates back to medieval Britain when sheriffs encouraged ordinary people to help them catch law-breakers.

But the rules vary across Australian jurisdictions.

In NSW, the Law Enforcement (Powers and Responsibilities) Act says that someone who is not a police officer can, without a warrant, arrest a person if they are committing an offence, or have just committed one. That goes for offences against “any act or statutory instrument”. So technically, you can arrest anyone you catch committing a crime.

But you probably wouldn’t. For one, you could get hurt. You don’t have the protections or weapons the police do. They’re insured against injury.

And if the person you arrest thinks you used unreasonable force (even if they’re found guilty of the crime), they could charge you with assault. You can only use force that is ‘reasonably necessary to make the arrest or prevent the escape of the person after arrest’.

In other words, it’s not OK to beat them up and stand over them in an intimidating fashion for hours (however tempting). The circumstances dictate what’s reasonable (ie - more force for someone committing a violent assault who resists arrest; less for a terrified shoplifter who doesn’t).

You then need to get the arrested person to the police as soon as is ‘reasonably practicable’.

Unlike the police, we ordinary folk can’t arrest on the grounds of suspicion. For example, a shop manager can’t arrest someone just because the theft alarm sounds when they leave.

It’s a waste of time to make an arrest if you can’t get sufficient evidence to the police to prove the crime "beyond reasonable doubt". Being an untrained citizen, you might muck up crucial evidence. And you need to be aware that if the person you arrested is released without charge, they could sue you for false imprisonment.

So while it’s good to know you can, it does carry risk.

 

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