Making a Citizen's Arrest In NSW
Situations occur in our day-to-day life where we witness criminal activity such as theft. As a result, you may instinctively decide to take matters into your own hands and attempt to make a citizen’s arrest. A citizen’s arrest is when someone who isn’t a police officer detains an individual.
Under most circumstances, it is illegal to detain another person against their will. However, there’s an exception when being done as part of a citizen’s arrest. One must state the reason as to why they are being detained and should be taken to an authorised officer as soon as possible.
The Law on making a Citizen's Arrest in NSW
Under Section 100 of the Law Enforcement (Powers and Responsibilities) Act 2022, members of the public are able to arrest individuals without a warrant under the circumstances:
- The person Just committed an offence;
- The person is committing the offence; or
- The person has committed an indictable offence which they haven’t been tried for.
An individual who makes a citizen’s arrest is required to present the detainee and their property to an authorised officer to be dealt with accordingly; this must be with reasonable force in relation to the offence being committed whereby enough force is used to not let the detained escape. Legally they must also make the detained person aware of the reason why they’re under citizens unless it is impractical to inform them.
When should you make a Citizen's Arrest in NSW and Its Necessity
The basis of a citizen’s arrest should be it’s a necessity in the situation. For example, witnessing a robbery at a convenience store. Where the robber has stolen funds from the cashier and began to run away, in most instances, citizen arrests are made by security guards or hired personnel on the premises. Although it’s always better to leave law and protection to police officers, scenarios may arise where they’re not available to be of aid in time or arresting the person will prevent them from harming themselves if they appear to be under the influence of alcohol or drugs.
Necessity for a citizen’s arrest can also be based off:
- Preserving public order;
- Preventing further offences from being committed; and
- The safety of the public or the offender.
Although, it may be challenging to do so as there are limits and factors to consider when making doing this.
Factors to consider when making a Citizen's Arrest in NSW
Legal requirements must be in place for a citizen’s arrest to be considered legal. Suppose you perform a citizen’s arrest without justifiable cause or don’t bring the detained individual to a police officer as soon as possible. In that case, you could face the following criminal charges:
- Deprivation of liberty;
- Assault;
- Assault occasioning actual bodily harm; or
- False Imprisonment.
When doing this, the individual must have certainty that the crime occurred, typically having seen the offence being committed as opposed to suspicion. If the defendant isn’t charged or acquitted of the offence, the arrest is rebutted and becomes unlawful. If an arrest you’ve made has been invalidated, be sure to get advice from a criminal lawyer.
There is a possibility of harming yourself or endangering others when making a citizens arrest. The Australian Federal Police advises individuals must take into consideration:
- Safety, as under no circumstance you should risk your personal safety or the safety of others to perform a citizen’s arrest;
- Do you have knowledge of the person committing the offence? If so, it is better to inform the police instead of taking matters into your own hands;
- Proportionate force; and
- Possible harm to the detained.
Doing this can often be dangerous as the detained individual could be violent, aggressive, and possibly carrying a concealed weapon. The arresting individual must prioritise their safety and seek help immediately from authorised officers. In addition, citizens’ arrests can go wrong, as in the case in Perth, where a 36-year-old man had died whilst being detained under a citizen’s arrest.
