After the recent headlines surrounding Carlton AFL coach and Brisbane Lions legend Michael Voss’s recent citizen’s arrest, it is important to be aware that the legislation surrounding these arrests is complicated and carries risk.
Performing a citizen’s arrest is a dangerous exercise as there are risks to the physical safety of everyone involved. Further to the physical risks, any person attempting to conduct a citizen’s arrest may be liable to be sued on a civil basis should they do so outside the strict laws permitting such an arrest.
The circumstances in which a person can lawfully conduct a citizen’s arrest are outlined within the Criminal Code (Qld) 1899. Chapter 58 of the code lists prescribed circumstances for which a person may complete a citizen’s arrest in relation to certain offences. These include:
- if asked by a police officer to help with the arrest of another person suspected of committing an offence, unless they know there is no reasonable basis for the officer’s suspicion;
- witnesses someone committing an offence for which the police can make an arrest without a warrant;
- reasonably believes that a person has committed an offence for which an arrest can be made by police without a warrant, regardless of whether the person actually committed the offence;
- reasonably believes that property offered to them for sale, pawn, or delivery has been obtained through an offence for which a person can be arrested without a warrant;
- is in command of an aircraft, is on board the aircraft, or has authority on the aircraft, and finds someone committing an offence, or reasonably believes that the person has committed, attempted to commit, or intends to commit an offence related to or affecting the use of the aircraft;
- witnesses someone committing an indictable offense at night or believes on reasonable grounds the other person is committing the offence; and
- finds someone who they reasonably believe has committed an offence and is escaping from another person who they reasonably believe has the authority to arrest that person for the offence.
Arrest procedure
In order to comply with the law, it is not enough to simply ‘tackle’ or ‘detain’ a person. The proper procedure to conduct a lawful citizen’s arrest necessitates the following:
- Clearly state that you are making a citizen’s arrest and why;
- Do not use any more force than is both reasonable and necessary;
- Immediately call the police;
- Do not question or search the person other than to ensure they do not have weapons;
- Stay with the person until police arrive;
- Hand over the arrested person to police as soon as they arrive.
Upon arrest, it is the duty of the person who has arrested another to take the other person before a justice, or police officer, to be dealt with according to law.
It is important to note the person being arrested has rights that must be observed, such as:
- To be advised of the reason for their arrest;
- Be treated with reasonable care and not subjected to unnecessary force;
- Be permitted to remain silent and not be forced to answer questions;
- To be handed over to police as soon as practicable;
- To be released immediately if it is determined there are no reasonable grounds for arrest;
- To be permitted to seek legal representation;
- To make a complaint or take legal action if they believe the arrest was unlawful
The types of crimes a person must have or suspected to have committed are restricted to more serious offences, such as:
- Indictable offences (those that must be dealt with in District or Supreme Court);
- Offences of violence;
- Property crimes such as stealing.
It is important to note that minor offences and matters such as civil disputes do not empower a person to perform a citizen’s arrest.
The risks of deciding to perform a citizen’s arrest are significant, and include the following:
False imprisonment
If it is determined the citizens’ arrest is unlawful, you could face both civil and/or criminal charges.
Assault charges
Even if the arrest was permitted by law, the use of excessive force could lead to assault charges, such as common assault, assault occasioning bodily harm or even grievous bodily harm.
Civil liability
The person arrested could sue for damages, even if the arrest was justified but improperly executed.
Safety risk
There is a significant risk of the situation becoming violent, endangering yourself and others, including the person being ‘arrested’.
Whilst the idea of conducting a citizen’s arrest may sound appealing given the recent publicity surrounding property crimes, it is a decision that carries significant risks and potentially serious consequences.
Arrests such as the one conducted this week by Michael Voss make for compelling media stories, but it is usually little more than good luck that these types of arrests occur without incident.
Purely from a legal perspective, it is our advice that the physical and legal risks to a person outweigh the benefits of stopping a suspected crime from occurring.
Should you need any advice in relation to a citizen’s arrest, please contact Jones + Associates on (07) 3229 3166.