Arrest 458/459 And 456AA

Question 1

What is the purpose of placing someone under arrest?

Answer 1

To enable them to be prosecuted.

Question 2

What are the three main methods of bringing someone to court?

Answer 2

• Arrest without warrant.
• Arrest with warrant.
• Summons.

Question 3

What is the definition of Arrest?

Answer 3

Arrest is the total restraint of a person for however short a time.

Question 4

What must happen on the arrest of a person? (3)

Answer 4

They must be told that they are under arrest and what for. The language in telling the accused why they are under arrest does not have to be technical.

Question 5

Are handcuffs necessary for an arrest? (2)

Answer 5

No, though merely telling a person they are under arrest is not sufficient unless the party submits and goes with the Police Officer. However, if the effect of the words is that the accused feels compelled to submit, there is an arrest.

Question 6

What is the introduction for Section 458 of the Crimes Act?

Answer 6

Any person, whether a Police Officer or not, may at any time without warrant apprehend and take before a Bail Justice to be dealt with according to law or deliver to a Police Officer to be so taken, any person…

Question 7

What are the three main headings for Section 458 of the Crimes Act?

Answer 7

• He finds committing any offence (whether an indictable offence or an offence punishable on summary conviction) where he believes on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons (4 sub-sections)
• When instructed to do so by any Police Officer having power under this Act to apprehend that person.
• He believes on reasonable grounds is escaping from legal custody or aiding and abetting another person to escape from legal custody or avoiding apprehension by some person having authority to apprehend that person in the circumstances of the case.

Question 8

What are the four sub-headings underneath Paragraph (a) of Section 458 of the Crimes Act?

Answer 8

• To ensure the attendance of the offender before a court of competent jurisdiction.
• To preserve Public Order.
• To prevent the continuation or repetition of the offence or the commission of a further offence.
• For the safety or welfare of members of the public or of the offender.

Question 9

Define “Finds Committing”? (2)

Answer 9

The person arresting must have found the offender either:

• Actually committing the offence.
• Or behaving or conducting himself, or in such circumstances that from that behaviour or conduct or circumstances, he believed he was the offender.

Question 10

What happens under section 458 when the offender is witnessed by someone who points them out to you?

Answer 10

You have not “found” the offender within the meaning of this section and you cannot arrest him, but the person pointing him out may well be able to exercise his power of arrest if he had found the offender committing, and may hand him over to you under section 458(1).

Question 11

What is the criteria for exercising arrest under Section 458?

Answer 11

Arrest under section 458 is exercisable under the criteria of CAPS.

• To prevent the CONTINUATION or repetition of the offence or the commission of a further offence.
• To ensure the ATTENDANCE of the offender before a court of competent jurisdiction.
• To preserve PUBLIC order.
• For the SAFETY or welfare of members of the public or of the offender.

Question 12

What is the Introduction for Section 459 of the Crimes Act 1958? (2)

Answer 12

459(1) In addition to exercising any of the powers conferred by Section 458 or by or under any other Act a Police Officer, or a Protective Services Officer on duty at a designated place, may at any time without warrant apprehend any person…

Question 13

What are the sub-sections for Section 459 of the Crimes Act 1958? (2)

Answer 13

• He believes on reasonable grounds has committed an indictable offence in Victoria (including any indictable offence which may be heard or determined summarily).
• He believes on reasonable grounds has committed an offence elsewhere which if committed in Victoria would be an indictable offence against the law of Victoria (Including any indictable offence which may be heard or determined summarily).

Question 14

What is Section 459A?

Answer 14

Power of Entry.

Question 15

What are the Sections under Section 459A of the Crimes Act 1958?

Answer 15

• A Police Officer may, for the purpose of arresting under section 458 or 459 or any other enactment a person whom he…
• In order to enter a place pursuant to sub-section (1), a Police Officer may, if it is necessary to do so, use reasonable force.
• In this section serious indictable offence has the same meaning as it has in section 325.

Question 16

What are the sections under sub-section 1 of Section 459A of the Crimes Act 1958?

Answer 16

-Believes on reasonable grounds -
(- to have committed in Victoria a serious indictable offence.
(- to have committed an offence elsewhere which if committed in Victoria would be a serious indictable offence.
(- To be escaping legal custody.
- Finds committing a serious indictable offence (may) -
Enter and search any place where the police officer on reasonable grounds believes him (offender) to be.

Question 17

How can belief on reasonable grounds be determined?

Answer 17

• Nature of the offence.
• Demeanour of the person arrested.
• Circumstances of the offence.
• Evasiveness or lying when answering questions.
• Any evidence from other persons present indicating the suspect is lying.

Question 18

What is the test conducted by courts to determine reasonable Belief on the part of Officers?

Answer 18

‘Reasonable Man’ test deduces whether a typical juryman would have drawn the same conclusions from the Officer’s evidence.

Question 19

What is a Breach of the Peace?

Answer 19

Any disturbance of Public Order involving the threat of violence or harm to property.

Question 20

What is the common law definition of a Breach of the Peace?

Answer 20

“Wherever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance” (R v. Howell 1981)

Question 21

What powers does a Breach of the Peace grant Police Officers?

Answer 21

• Power to enter a premises. (Police may enter a home without a warrant on reasonable suspicion that a Breach of the Peace is occurring or about to occur)
• Power to remove items. (Police may temporarily take items/articles from a person if such action is reasonably necessary to prevent a breach of the peace)
• Power to give directions. (Police may direct a person believed to be breaching or likely to breach the peace to leave a particular location)
• Power to restrain or detain. (Less than an arrest, police may use reasonable force to restrain or detain a person where necessary)
  Note: There is no power of arrest that is granted under Breach of the Peace.

Question 22

What is Section 462A of the Crimes Act 1958?

Answer 22

A person may 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.

Question 23

What are the offences that can occur after arrest?

Answer 23

• Rescuing of prisoner from lawful custody. (Section 479A, Indictable, max penalty: 10 years)
• Aiding a prisoner in escaping (IOTS, Possible 5 years maximum)
• Escape and Related offences (IOTS, Possible 5 years maximum escape from Police Prison or Gaol, Any place where he is lawfully detained, maximum penalty: 2 years)

Question 24

What defines a “person in custody” 464(1)?

Answer 24

A person who is…

• Under lawful arrest by warrant.
• Under lawful arrest under section 458 or 459 or any other act.
• In the company of an investigating official and is being questioned/ to be questioned/ otherwise being investigated to determine his involvement in an offence IF the official could justify the arrest of that person in respect of that offence.

Question 25

What factors constitute a reasonable time in regards to detainment of an individual?

Answer 25

• Time required to bring the person before a Magistrate or Justice.
• The number of offences and the complexity of the offences being investigated.
• The need for the investigator to prepare for the questioning.
• The need to move the person from the place of apprehension to a place with facilities for interview or investigation.
• The number of other people who need to be questioned during the period of custody in respect to the same offence.
• Any need to visit the place where the offence was committed, or any other place connected with the investigation.
• The time taken to communicate with a lawyer, friend, relative, parent, guardian or independent person.
• The time taken by the lawyer, interpreter, parent, etc. To arrive at the place where questioning or investigation is to take place.
• Any time during which the questioning or investigation of the person is delayed to allow for the person to receive medical attention.
• Rest periods for the subject.
• The total period of time the suspect has been in custody.
• Any other relevant matters.

Question 26

Do we as Officers have an open licence to keep a person in custody?

Answer 26

Absolutely not, Police Officers must be prepared to justify to the court that the time spent in custody, based on the criteria set, was reasonable.

Question 27

What are the stages of arrest?

Answer 27

• Preliminary stage.
• Execution stage.
• Security stage.

Question 28

Is there a power to take photos of people in custody?

Answer 28

There is no legal requirement or power to take a photograph of a person in Police custody other than in accordance with the Corrections (Police Gaols) Regulations 1995. However it is good practice for Police Officers to take photographs of all persons entered into the attendance module, with the prisoner’s cooperation.

Question 29

What are the enforcement options available to Police Officers?

Answer 29

• Charge and Remand.
• Charge and Bail.
• Charge and Summons.
• Infringement notices.
• Cautions/ Official Warnings.

Question 30

What is Section 456AA of the Crimes Act 1958?

Answer 30

Section 456AA of the Crimes Act 1958 provides that a police officer may request a person to state his or her name and address if the police officer believes on reasonable grounds that the person.

• Has committed or is about to commit an offence, whether indictable or summary.
• May be able to assist in the investigation of an indictable offence which has been committed or has been committed or is suspected of having been committed.

Question 31

Is Section 456AA an arrest power?

Answer 31

IT IS NOT.

Question 32

Is it an offence not to give information under 456AA?

Answer 32

Any person who, in response to a request made by a police officer under 456AA(1), refuses to give his details, or gives false details is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units).

Question 33

What is the Police Officers obligation under Section 456AA?

Answer 33

Section 456AA provides that a person, asked by a police officer for his details under section 456AA, may request the member to state, orally or in writing, his or her name, rank and place of duty.

Question 34

Who can Police Officers enact 456AA upon?

Answer 34

• Witnesses to an indictable offence. (Direct and indirect, manager of a nightclub who may have CCTV of an indictable offence, medical doctor who conducted an examination of a victim of an indictable assault).
• People committing a summary offence (found committing)
• People who on reasonable grounds are believed to have committed an indictable offence.