Today’s question is about ‘citizen’s arrest’ in NSW. Perhaps not an ‘emergency law’ question save that the stimulus for the question comes from the TV show ‘Bondi Rescue’ so the people making the arrest are the lifeguards ie emergency personnel. The question is:

I watched the following video: https://www.youtube.com/watch?v=DZLH3vK8PwM

It’s a Bondi beach and they actually grab supposed thieves. Is this allowed? At 13:58 you can see one example. The one with the black shorts is a probable thief (they have seen him taking an unattended bag), the other one is a lifeguard.

I haven’t watched the whole video and I’m not going to comment on the particular incidents, but the law is clear.

The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) s 100 says:

(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.

(The power of police to make an arrest is set out in s 99 and has more extensive circumstances that we don’t need to consider).

Stealing (or Larceny) is an offence punishable ‘under any Act’, in particular the Crimes Act 1900 (NSW) s 117.

Sub-section 2 may appear to be problematic and is a carry-over from old legislation. It says the person making the arrest must take the person before an ‘authorised officer’. An ‘authorised officer’ is (s 3):

(a) a Magistrate or a Children’s Magistrate, or

(b) a registrar of the Local Court, or

(c) an employee of the Attorney General’s Department authorised by the Attorney General as an authorised officer for the purposes of this Act either personally or as the holder of a specified office.

No-one who makes a citizen’s arrest actually takes the offender to court, they hand them over to police. Police can then ‘take over’ the arrest, that is effectively ‘end’ the citizen’s arrest and then exercise their powers of arrest.  Further the case law dealing with the old Crimes Act 1900 (NSW) s 352 (that was in similar terms) says that delivering the person to police is sufficient compliance.

Brown v GJ Coles trading as Coles New World Supermarket [1985] FCA 114 was a decision of the Full Court of the Federal Court of Australia hearing an appeal from a judge of the Federal Court. The matter was in the Federal Court because the events occurred in the Australian Capital Territory before the passage of the Australian Capital Territory (Self-Government) Act 1988 (Cth). At that time NSW law applied in the ACT so the court was interpreting s 352 of the Crimes Act 1900 (NSW) (now repealed) that said that a citizen, when making an arrest, was required to take the person ‘before a Justice to be dealt with according to law’.  In this case the store loss prevention officer had taken the alleged offender to the office and called police who after making inquiries continued the arrest. Davis J said:

The principal burden of Dr O’Connor’s submissions [Dr O’Connor was the lawyer for the defendant] was that a citizen who arrests another under the powers conferred by s.352 must take the arrested person immediately before the appropriate authority and is not entitled to delay such taking while consulting with a more senior person or calling in aid an officer of the police. Yet that view has been distinctly rejected.

In Leachinsky v Christie [1947] UKHL 2; (1946) 1 KB 124 Uthwatt LJ said, at pp.148-9 :

“. . . Arrest is a step in criminal procedure directed to leading to an adjudication in due course of law on the conduct in the matter in hand of the person arrested. For it is the duty of a constable arresting without warrant with all due speed to bring the individual arrested before a court of justice having jurisdiction in the matter, and it is the duty of the private citizen either to take that course or to hand the supposed offender over to a constable with a view to that course being taken. Neither can justify private detention. There is no lawful arrest therefore unless the interference with the individual’s liberty is made as a preliminary step to an investigation by a court of justice. . . “

In John Lewis & Co Ltd v Tims (1952) AC 676, where the facts were similar to those with which we are concerned, Lord Porter said, at pp.687-8:

“Where the right of arrest is given to a private person, it is obviously desirable that the arrested man should be entrusted to some official care as soon as possible, and statements to that effect are to be found in, I think, all the textbooks, old or new. . . . “

At pp.691-2, his Lordship said:

“The question throughout should be: Has the arrester brought the arrested person to a place where his alleged offence can be dealt with as speedily as is reasonably possible? But all the circumstances in the case must be taken into consideration in deciding whether this requirement is complied with. A direct route and a rapid progress are no doubt matters for consideration, but they are not the only matters.

Those who arrest must be persuaded of the guilt of the accused; they cannot bolster up their assurance or the strength of the case by seeking further evidence and detaining the man arrested meanwhile or taking him to some spot where they can or may find further evidence. But there are advantages in refusing to give private detectives a free hand and leaving the determination of whether to prosecute or not to a superior official. …

Sheppard J (dissenting, on other grounds) said

It appeared to me that counsel’s argument went so far as to suggest that s. 352 conferred only one power, namely a power to apprehend and to take the person apprehended before a justice. If the person making the arrest did not take the arrested person before a justice, the power had not been exercised according to law with the consequence that the arrest was unlawful. I would reject that submission. A similar submission was rejected by Asprey J.A. in Jobling’s case; see (1969) 1 N.S.W.R. at p. 135. I would respectfully agree with what his Honour there said.

Everett J said:

As I understood the argument of counsel for the appellant, it was submitted that the provisions of sub-section 352(1) were in effect one and indivisible, to the extent that the two physical acts to which the provision refers – namely, the apprehension and the taking of the arrested person before a Justice to be dealt with according to law – are not severable but are strictly joint. That is to say, the argument was that unless the second of the two physical acts is in fact done by the person who makes the arrest, the whole arresting process is without lawful justification and therefore actionable.

Such an interpretation of sub-section 352(1) is, in my opinion, without authority, illogical and overlooks the purpose of the arresting process.

I would reject the argument for the reasons expressed by Mr Justice Davies and against the background of the authorities to which he has referred. In my opinion, the actions of the store detective [in holding the offender until the arrival of police] were lawful.

In other words, notwithstanding that s 352 of the Crimes Act said, and s 100 of LEPRA now says that a citizen is to ‘take the person, and any property found on the person, before an authorised officer’, holding the person until police arrive is consistent with that obligation, and police can then form the view to take over the arrest and continue the prosecution or release the person (LEPRA s 105).

As for the use of force, LEPRA s 231 says (emphasis added):

A police officer or other person who exercises a power to arrest another person may use such  force  as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.

I have not (and will not) go through the case law on the mental state required for a lawful arrest suffice to say that being wrong does not make the arrest unlawful. If the arrested person is acquitted or after further investigation the arrest is discontinued or charges are withdrawn, that does not make the original arrest unlawful. What is critical is whether the decision to arrest was reasonable the circumstances, that is whether the arresting citizen, or police officer, ‘reasonably believed’ that the circumstances in s 100(1) existed (see the various cases cited in Brown v GJ Coles and in particular, Leachinsky v Christie (1946) 1 KB 124 and John Lewis & Co Ltd v Times (1952) AC 676).

Conclusion

If a life saver, or life guard, or any person sees someone take a bag in circumstances where they reasonably believe the person has committed an offence they may, with reasonable force, detain the person and hold them until they can be delivered to police.

This post has been made with reference to NSW law but a citizen’s arrest is permitted in every jurisdiction. The law allows a citizen to ‘actually grab supposed thieves’.

For another posts on  lifeguards and lifesavers acting as law enforcement, see: