Each State and Territory in Australia provides statutory permission for ordinary members of the public (not limited to actual citizens) to make an arrest without a warrant, if it is patently obvious that a person has committed an unlawful act. While each jurisdiction provides notable variation, there are clear conceptual overlaps enabling a lot of discussion of this power concerning all jurisdictions at once. The definition of arrest is unitary across the jurisdictions, as is the concept that the purpose of the arrest is to hand the suspect or offender over to police.

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​The power of citizen's arrest tends to be understood by the security guarding industry in a fairly basic manner. This section sheds further light on the matter, identifying both restrictions and liberties not commonly understood.

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The relevant statutory provisions are as follows:

Australian Capital Territory – Crimes Act 1900, section 218;

New South Wales – Law Enforcement (Powers and Responsibilities) Act 2002, section 100;

Northern Territory – Criminal Code Act 1983, section 441;

Queensland – Criminal Code Act 1899, section 546;

South Australia – Criminal Law Consolidation Act 1935, section 271 (See also Summary Offences Act 1953, section 77);

Tasmania – Criminal Code Act 1924, section 26, 27 and 31  (see also Appendices A and B);

Victoria – Crimes Act 1958, sections 458, 462 and 462A;

Western Australia – Criminal Investigation Act 2006, section 25.

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Is Committing or Has Committed - Arrest for Attempted Crimes?

The above provisions expressly allow for a private person to effect an arrest of a criminal offender who either has committed, or is in the process of committing, an offence. This means that there is no need for the common practice of retail security operations to wait for a shoplifter to depart from the store with the goods they are stealing before affecting an arrest. The notion that an arrest within the store is a false arrest ignores important wording of the statutes. If the evidence of the offender’s behaviour after acquiring goods surreptitiously – in particular their avoidance of the checkout queue – shows clearly an intention to steal, then they can be arrested while still within the premises. It remains common sense, however, to wait until the theft is fully committed due to the potential for an absent-minded person to take goods toward the exit negligently, and because if the person is prevented from exiting the store, then the only crime they can be charged with is attempted theft.

 

Reasonable Use of Force and Victorian Statutes

In Victoria, the wording of Section 458 of the Crimes Act is obtuse, and appears to allow only for an arrest to be effected upon a crime still in commission. Section 462, however, defines the phrase “finds committing” so as to include instances when it is reasonable to assume the guilt of the person being arrested. Another note on the Victorian legislation is that the use of force in making an arrest or putting an end to a crime, is limited in Section 462A to that which is reasonable in the situation for purposes of preventing or stopping a crime or making an arrest. This is in essence a re-statement of the common law principle of reasonable use of force, and a point applicable to all jurisdictions. [1]

 

Citizen’s Arrest and Crimes in Attempt

Whether the power of citizen’s arrest extends to all forms of attempted crime or crimes in development, however, needs further consideration. It is clear that an arrest can be undertaken for a crime in commission, and that there is no statutory distinction between an ongoing crime and a criminal act in the making. It depends on the nature of the crime whether any attempt at committing a crime is the same as being in the process of committing it. An affray is an example of a crime that is fully committed as soon as the act commences, even if it will go on for some time. A citizen seeking to arrest the guilty party(ies) does not have to wait until it is over. Shoplifting, on the other hand, requires a series of steps before the crime is committed in the form of the offender exiting the building with goods they intend not to pay for. The wording of the statutes does not exclude arresting an offender when taking steps in attempt, such as tampering with door locks to make possible an entry to a building after hours.

 

If a person arrives at a locked premises at night with tools that may be used in a burglary, and looks intently at the premises, arousing suspicion of an intent to commit a burglary,  unless they enter the property, they have not yet commenced the commission of the crime. Anywhere except Tasmania where an express allowance exists, a citizen’s arrest would be a false arrest in these circumstances unless the person was already doing something more particular to the crime alleged, or evidence came to light showing a plan to commit a burglary. If the said offender approached a door or window and began to prize at it or pick a lock to break in, then a citizen’s arrest for attempted burglary would be lawful. An assailant approaching a person with a knife can be arrested before they manage to hurt the proposed victim. So too a shoplifter can be arrested en route to exit a retail store they intend to steal from, before having finalised the unlawful taking of goods by exiting into a public space. The danger that exists for security providers and retailers in arresting a person while still in the store is that a person who simply forgets they are carrying goods in a handbag or pocket, or who is relocating to another part of the store, can sue for the trespass of false arrest. If they have left the premises, however, they cannot argue that they did not give every necessary impression of their criminal intentions.

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[1] Crimes Act 1958 (Vic).

[2] Criminal Code Act 1924 (Tas), s 27(7).

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