Making a citizen’s arrest – myth and reality
The recent sight of Northern Territory politician John Elferink trying to make a citizen’s arrest during a television interview raises some interesting legal questions.
It just happens Mr Elferink is an ex-policeman with a law degree. So when a man wandered over from a nearby pub and kicked Elferink from behind while he was doing a TV interview, it brought out his judicial instincts.
He grabbed the man and told him he was making a citizen’s arrest and would hold him till police arrived.
The man struggled until another man arrived and helped him escape. They ran off while the TV crew kept filming. What started out as a routine local Darwin story hit the national news.
In Sydney last week pub patrons held down an armed robber until police arrived.
So what is a citizen’s arrest? Can we all do it? Is it wise?
All States have a legal basis to make a citizen’s arrest. In NSW it’s under Section 100 of the Law Enforcement (Powers and Responsibilities) Act 2002. It reads:
(1) A person (other than a police officer) may, without a warrant, arrest a person if:
(a) the person is in the act of committing an offence under any Act or statutory instrument, or
(b) the person has just committed any such offence, or
(c) the person has committed a serious indictable offence for which the person has not been tried.
(2) A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.
Police strongly advise people not to even think about doing it if it could put you or other people in danger. You aren’t entitled to search the detainee or their property. You can use only “reasonable force” to detain them – force that is “reasonable” to the situation.
There’s also a catch in the law. You can’t detain someone too violently as you have a “duty of care” to the person you detain. You also have a “duty of care” if you decide to release a person before police arrive. A juvenile should only be released into the care of a parent, guardian or police.
Remember – using too much force could result in the detainee charging you with assault or seeking civil damages. Finally, if the person you ‘arrested’ is released without charge, they might be able to sue you for false imprisonment. Self-defence and Good Samaritan laws may be a defence, but you can’t play cop and investigate yourself.