Elements of a Lawful Arrest and the Use of Force
Unless a person has a lawful excuse, the touching of another person is an assault: Collins v Wilcock [1984] 1 WLR 1172. Lawful excuses include:
a) self-defence or the defence of another;
b) arrest;
c) to prevent the commission, continuance or completion of an indictable offence (s462A Crimes Act);
d) a lawfully conducted search (check if use of force is authorised, if relevant);
e) consent.
When do police have legislative power to arrest in Victoria?
Under s458 Crimes Act 1958; if they find a person committing any offence AND they believe on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons, namely— (i)to ensure the attendance of the offender before a court of competent jurisdiction; (ii) to preserve public order; (iii)to prevent the continuation or repetition of the offence or the commission of a further offence; or (iv)for the safety or welfare of members of the public or of the offender;
Under s351 Mental Health Act 2014: if the police or PSOs are satisfied that—
(a) the person appears to have mental illness; and
(b) because of the person's apparent mental illness, the person needs to be apprehended to prevent serious and imminent harm to the person or to another person.
Under s491 Children Youth and Families Act 2005, if requested to do so by the officer in charge of a youth justice centre.
Under s124 Family Violence Protection Act 2008 if the police believe on reasonable grounds that a person has breached a Family Violence Protection Order.
A lawful arrest however, is not merely one where the police have the power to arrest. Police must also comply with seven common law principles for that arrest to be lawful.
What are the elements of a lawful arrest?
The police must be acting in the lawful execution of their duty. All police activities, including stop and/or search/entry into the building (see Halliday v Neville [1984] HCA 155 CLR 1) prior to arrest must be for a lawful purpose and be performed on lawful grounds Nguyen v Elliot (Unreported, Supreme Court of Victoria, Hedigan J, 9 February 1995). If the police are acting unlawfully, (in breach of the Charter of Human Rights and Responsibilities 2006, or using excessive force, for example) they are not acting in execution of their duty. Similarly any vehicle stop power used must be used for its lawful purpose not as a pretext for another type of investigation. R v Arthur [2018] SADC 116, R v Buddee [2016] NSWDC 422, Queen v Gehan [2019] NTSC 91. In Morris v Beardmore [1981] AC 446, a trespass meant that the police request for the defendant to be breathalysed was invalid.
The arrestor must believe on reasonable grounds that the person has committed an offence. George v Rockett [1990] HCA 26, De Moor v Davies [1999] VSC 416 (3 Nov 1999), O’Donoghue 34 A Crim R 1988. DPP v Hamilton [2011] VSC 598 (25 November 2011). Prior v Mole [2017] HCA 10. R v De Simone [2008] VSCA 216. Carrie Peters (a Pseudonym) v State of Victoria [2023] VCC 1791 (31 October 2023).
The arrestor must communicate to the arrestee that they are under arrest (ie that the arrestee is no longer free to leave -this can be done by action or words) O’Donoghue v R 1988 34 A Crim R p401
The arrestor must communicate to the arrestee the true basis for the arrest. This is essential unless an exception arises, or the basis is “patent to high heaven”. Adams v Kennedy and Others [2000] NSWCA 152, Christie v Leachinsky [1947] AC 573 Article 9 of the International Covenant of Civil and Political Rights. State of NSW v Delly [2007] NSWCA 303, s21 of the Charter of Human Rights and Responsibilities Act 2006. See also DPP v Patterson & Anor [2024] VCC 487 (16 April 2024).
The reasonably believed offence must be an arrestable offence. Some offences specify they are to be conducted by summons only. Christie v Leachinsky [1947] AC 573. Also see Webster v McIntosh (1980) 49 FLR 317. An otherwise lawful arrest can be improper when proceeding by summons or alternative would have been appropriate: DPP v Carr [2002] NSWSC 194. See also s459 Crimes Act where there is a presumption in favour of proceeding by summons for a child
The discretion to arrest must be exercised for a proper purpose and must be appropriate in all the circumstances. Zaravinos v State of New South Wales [2004] NSWCA 320 – the exercise of the discretion to arrest must not be an abuse of process, Williams v Spautz (1992) 174 CLR 509, for an improper purpose, exercised by taking irrelevant considerations into account. For example, if the sole purpose of arrest is to question someone, it is unlawful: DPP v Hamilton [2011] VSC 598 (25 November 2011) ,Carrie Peters (a Pseudonym) v State of Victoria [2023] VCC 1791 (31 October 2023). Arrests should not be for oppressive purposes: R v Sumpton [2014] NSWSC 1432.
The reasonably believed offence must be an offence that exists in law: Coleman v Power [2004] HCA 39.
The failure of the prosecution to establish any one of these elements may render the arrest unlawful and any use of force it involved, an assault. The offence does not need to be proven for the arrest to remain a lawful arrest. That is, a reasonably held but mistaken belief as to fact does not vitiate the lawfulness of an otherwise lawful arrest (Section 461 of the Crimes Act 1958). In contrast, a reasonably held but mistaken belief in the law will vitiate the lawfulness of an arrest. (Coleman v Power). A statute which authorises arrest must be strictly construed because the law places a high value on personal liberty: Williams v The Queen (1986) 161 CLR 278 at 292 and 296.
When can the police use force?
The use of force in Victoria is governed by Section 462A of the Crimes Act 1958 permits a person to “use such force not disproportionate to the objective as he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence”. Force may be used to prevent the continuation of an indictable offence, but, other than arrest, no force may be used to prevent the continuation of a summary offence.
Gebrehiwot v State of Victoria [2020] VSCA 315 (8 December 2020) [paragraph 118] contains a clear description of when force is authorised in making an arrest.
The use of force to effect the arrest must be subjectively believed by the officer to be necessary, as well as necessary based on reasonable grounds (according to the reasonable person) AND be, according to the reasonable person, objectively proportionate. The force used must be objectively proportionate to the outcome sought to be achieved (ie the arrest). ‘The jury had to ask itself the core question: would a reasonable person have considered that there were other alternatives available involving the use of less force that would still have achieved the arrest? If the answer was ‘yes’, and there was no proper explanation as to why a less coercive alternative was not taken, then the takedown was disproportionate to the outcome to be achieved.’ Gebrehiwot v State of Victoria [2020] VSCA 315 (8 December 2020) [2020] [paragraph 118].
The power to use force to conduct a search maybe dependent on the statute authorising the search power. The power to use force to conduct a search is unquestionably dependent on the lawfulness of the use of the search power (Botton v Winn, Nguyen v Elliot). An inappropriate search is an assault (for example a strip search in public place or by a person of the wrong gender or where the search is unjustifiably intrusive): See VPM Search Persons.
The police have an obligation to ensure their use of force (such as the use of OC spray) does not effect innocent bystanders: State of Victoria v Richards [2010] VSCA 113.
There are many situation where it is possible for the police not to use force at all, but decide to come back another day, de-escalate, or send a fine by another means. Victoria Police’ 1994 ‘Project Beacon’ was aimed at reducing the use of force by Victoria Police through asking police to consider whether other options such as cordon and contain, calling for backup or walking away are available. The different tactics available to police are listed in the Victoria Police Manual (2022).
In the Northern Territory the use of force by police must be ‘necessary and reasonable.’ Rigby v Ross [2023] NTLC 1 (6 February 2023)
Right to resist excessive force
Where any force is used, it must proportionate to what is necessary to affect the lawful arrest: section 462A. As per R v Galvin [1961] VR 733 the police must not use excessive force in effecting a lawful arrest, or in overcoming any resistance. If police use excessive force, that force is an assault, and a person is entitled to defend themselves from the action. The issue is then whether the arrestee themselves have used undue violence. The onus of negativing legitimate self-defence is on the prosecution. A person acting in self-defence is entitled to be acquitted from charges such as resist, obstruct, assault police.
Right to resist unlawful arrest
Where the arrest is unlawful, proportionate resistance is self-defence and is lawful. It does not constitute an assault. A person has the right to resist an unlawful arrest: Adams v Kennedy and Others [2000] NSWCA 152. “If a person is unlawfully apprehended by a constable, he is justified, even though he knows him to be a constable in resisting and endeavouring to escape, provided he does not use undue violence in doing so.” (p738 Galvin). See also DPP v Patterson & Anor [2024] VCC 487 (16 April 2024)
Resistance must be proportionate or it may itself be an assault: Nguygen v Elliot Supreme Court of Victoria, Hedigan J 6 February 1995 at p 6-7, however, cannot form the basis for a charge of “assault police in course of duty” where no lawful arrest takes place Coleman v Power. Resistance to an unlawful assault (such as a grab) is self -defence: Kenlin v Gardiner [1967] 2 QB 510. In Kenlin v Gardiner, the two young people being arrested did not know it was the police and resisted until they became aware that their assailants were police. “The right of citizens to resist unlawful search and arrest is as old as their inclination to do so.”: Nguyen v Elliot (Unreported Supreme Court of Victoria, Hedigan J 6 February 1995).
What happens if force is excessive after arrest?
Perkins v County Court of Victoria & Ors [2000] VSCA 171 (27 September 2000) where the court said (in obiter):
“….there is no general rule that persons arrested and being conveyed to or from a place of detention to a court must be handcuffed. An arresting officer is entitled to take proper precautions when conveying a person in custody, and all the circumstances must be considered to determine whether there are reasonable grounds for the arresting officer to handcuff the prisoner. But the right to handcuff must be found in some additional circumstance, such as the necessity to prevent the prisoner's escaping; or committing some further offence; or endangering the safety of persons or property. If the police officers arresting this appellant had no justification for handcuffing their prisoner, it would in my opinion follow that in attempting to do so, they were not acting in the course of their duty, and the appellant was not guilty of the offence of resisting the police in the course of their duty.”
In the Findings into the Inquest of Veronica Nelson, the Coroner stated:
‘Handcuffing an offender is a use of force and any decision to use force must be made consistent with applicable policy. Although there may be a standard practice or procedure to handcuff an offender in the station, this does not mean that this practice is appropriate in every circumstance, or indeed, consistent with policy. Members failed to turn their minds to this.’ [225]
The Coroner found that the use of handcuffs on Veronica Nelson after her arrest was disproportionate and unnecessary and breached Ms Nelson’s rights under the Charter. [226]
Consequences of unlawful arrest
Criminal case implications
1.Any resist police related charges can be dismissed;
2.Any evidence obtained in consequence of the impropriety may be excluded under s138 Evidence Act.
Civil claim implications
1.The arrest, and any force used, is a battery;
2.Because the arrest is unlawful any subsequent detention may constitute false imprisonment;