Contrary to their portrayal in popular culture, citizens’ arrests don’t always end so well in reality. There are cases where individuals who have intervened when witnessing somebody commit an offence have ended up being charged with assault or other offences.
There is also the question of whether citizens’ arrests are actually legal in Australia? The short answer is ‘yes’, they are enabled by common law and statutes across Australian jurisdictions. However, the laws pertaining to citizens’ arrests are mainly directed at people like security guards and are complicated.
Also, a number of factors need to be considered before carrying out a citizen’s arrest, as it may result in more harm than good. Not only could you end up on the wrong side of the law, but you could also place yourself and the person you are purporting to arrest at risk of harm.
Senior Lecturer in the Faculty of Law Dr Michael Grewcock doesn’t recommend carrying out a citizen’s arrest for a number of reasons. He says there is often a fine line between citizens’ arrests and vigilantism.
“Citizens conducting arrests may not understand the relevant law or the potentially adverse consequences of making an arrest,” explains Dr Grewcock. “In NSW, for example, if an arrest doesn’t satisfy the relevant legislation, it would be unlawful and may constitute an assault.
“It might lay a person conducting the arrest open to a civil claim for damages. And even if the arrest satisfies the legislation, it doesn’t automatically follow that an arrest or subsequent charge by a police officer will occur,” says Dr Grewcock. “Before the police can arrest the individual, they must first determine whether the legal requirements for an arrest have been met.”
A citizen’s arrest involving a milk crate and a chair
A recent citizen’s arrest in Sydney’s CBD fortunately ended with minimal injury to those detaining a 21-year old male, who allegedly ran through the city streets brandishing a bloodied knife. Five members of the general public eventually restrained the knifeman using a cafe chair and a milk crate until police arrived.
“In this case, it appears that no further injuries were sustained, but it was an unpredictable and high-risk situation. While my general view is that citizens’ arrests are highly problematic, it is not an either/or situation,” says Dr Grewcock. He says in these circumstances, it can be highly dangerous for a member of the public to intervene and it could also escalate the situation, putting both the public and the person with the weapon at risk.
Dr Grewcock says police are trained and equipped to conduct arrests and, theoretically at least, are best placed to minimise risks to all parties and the public.
Unlike police officers who can use ‘reasonable suspicion’ to arrest somebody, a member of the public cannot make a citizen’s arrest based on suspicion of a crime. The citizen’s arrest needs to be on the basis of having seen that individual committing an offence.
However, there is also the provision for a citizen’s arrest if someone has committed a serious indictable offence for which they have not been tried. This is not time-specific, but the citizen must be confident that the person has committed or is suspected of committing that offence. In NSW, a serious indictable offence carries a penalty of five years or more.
If you detain a person, you must take the individual and any property found on them to an authorised officer as soon as possible. If you fail to deliver the detained individual to the police as soon as possible, you could potentially find yourself facing charges for assault, false imprisonment or deprivation of liberty. A recent citizen’s arrest in Western Australia resulted in a shop owner being charged with deprivation of liberty and assault after he locked a nine-year-old in a storeroom who had allegedly shoplifted.
Excessive force can also leave you open to assault charges, so as a general rule, any force used must be reasonable and proportionate.
“It is safer and often evidentially more useful to make a record of your observations, especially video recording with a phone rather than intervening. Having said that, there may be situations where a citizen might intervene to protect someone’s safety, but that should be the focus rather than the arrest.”