Criminal Procedure - Seminar Week 2 Notes PDF

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Seminar notes / answers week two MLL218...

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SEMINAR WEEK 2 Seminar question 1: May a private security guard employed by the Geelong Football Club at the GMHBA Stadium lawfully tackle and arrest a streaker who invades the field during a football match between Geelong and Collingwood? (Streaking is an offence under the Victorian Summary Offences Act (1996), s. 17) 1. Find your legislation that allows a private citizen to arrest someone without a warrant. - Arrest Without Warrant - s. 458 Crimes Act 1958 (Vic) http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s458.html 2. Find the definition of ‘finds committing’ an offence - Section 462 of the Crimes Act - http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s462.html 3. Can reasonable grounds be satisfied? - Go to s 458(1)(a) of the Crimes Act to see what situation the security guard needs to establish by arresting without a warrant. - http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s458.html (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;

Case law for reasonable grounds: Rocket (1990) 170 CLR 104 – Note in an exam that it is an OBJECTIVE TEST – Facts would give rise to belief in a hypothetical reasonable person.

4. Was the arrest itself conducted lawfully? - Elements of lawful arrest are governed by Common Law. - Slaveski v State of Victoria & Ors [2010] VSC 441, the court determined the following three actions must have occurred for an arrest to be lawful. 1. 2. 3.

The person being arrested was deprived of their liberty; The person performing the arrest must inform the person being arrested that they are under arrest; and The person performing the arrest must inform the person being arrested of the reason for their arrest.

5. In the circumstances, was the force reasonable?

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Section 462A of the Crimes Act - Use of force to prevent the commission of an indictable offence Note: This section also applies to force used ‘to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence. http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s462a.html

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Use of force must be necessary and proportionate to the objective. Reasonableness depends on circumstances (Slaveski v State of Victoria & Ors [2010] VSC 441)

6. Conclusion -

Make your argument about whether you believe a tackle is proportionate in the circumstances. Try to incorporate the language of the statute where possible. As this is a summary offence, pursuant to s 458(3) of the Crimes Act. The arresting private citizen, must release the individual when the danger or need for arrest has subsided. CRIMES ACT 1958 - SECT 458 Person found committing offences may be arrested without warrant by any person (austlii.edu.au)

Seminar question 2: Would your answer differ if the streaker was a well-known Geelong identity, who was also known to the security guard? -

No – Same elements of above apply. However, an argument can be made in relation to s 458(1)(a), which provides that the arresting individual must believe on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons, namely—

(v)

to ensure the attendance of the offender before a court of competent jurisdiction;

(vi)

to preserve public order;

(vii) to prevent the continuation or repetition of the offence or the commission of a further offence; or (viii) for the safety or welfare of members of the public or of the offender; -

It could therefore be argued that subsection (v) does not apply if the streaker is known to the security guard.

Seminar question 3: Assume that ‘streaking’ is a federal indictable offence. Would the private security guard have the power to lawfully tackle and arrest the streaker? The common law power to arrest a person for a Commonwealth offence has been abolished. Now, the power of arrest in federal jurisdiction is governed by statute. That applies for both a warrantless arrest and an arrest with a warrant. In this Unit, we focus on the powers of arrest that are referred to in the Crimes Act 1914 (Cth). The relevant provisions are sections 3W-3ZA of the Crimes Act 1914 (Cth). 1. Find relevant legislation allowing a warrantless arrest for a private citizen in COMMONWEALTH LEGISLATION. SECT 3Z Power of arrest without warrant by other persons http://www8.austlii.edu.au/cgibin/viewdoc/au/legis/cth/consol_act/ca191482/s 3z.html 2. Consider whether proceeding by summons against the person would achieve one or more of the purposes for arrest outlined in s 3W(1)(b) http://www8.austlii.edu.au/cgibin/viewdoc/au/legis/cth/consol_act/ca191482/s3w.html

Seminar question 4: Assume it was Constable Jack Smith of Victoria Police who chased and arrested the streaker. He did not inform the streaker at the time of the arrest why he had been arrested. Was the arrest lawful? ISSUE: Was the actual EXECUTION of the arrest lawful? -

Execution of arrest, we are looking towards common law rather than statute. Slaveski v State of Victoria & Ors [2010] VSC 441, the court determined the following three actions must have occurred for an arrest to be lawful. 1. The person being arrested was deprived of their liberty; 2. The person performing the arrest must inform the person being arrested that they are under arrest; and

3. The person performing the arrest must inform the person being arrested of the reason for their arrest. -

Requirement to inform an individual of the reason for their arrest does not exist if it is obvious why person is detained (Christie v Leachinsky). However, the arresting police officer has a duty to provide information at the first reasonable circumstance (Christie v Leachinsky).

Seminar question 5: If Constable Smith finds a person singing an obscene song near a public park at night and the person identifies himself with his driving license, may Constable Smith arrest the person? (Singing obscene songs in or near a public place is an offence under the Victorian Summary Offences Act (1996), s. 17) 1. Find your legislation that allows a police officer to arrest someone FOR A SUMMARY OFFENCE without a warrant. - Arrest Without Warrant - s. 458 Crimes Act 1958 (Vic) http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s458.html -

If it was a police officer arresting someone for an INDICTABLE OFFENCE without a warrant, we would refer to s 459 of the Crimes Act.

2. Find the definition for committing an offence - Section 462 of the Crimes Act - http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s462.html 3. Can reasonable grounds be satisfied? - Go to s 458(1)(a) of the Crimes Act to see what situation the police officer needs to establish by arresting without a warrant. - http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s458.html

(ix)

to ensure the attendance of the offender before a court of competent jurisdiction;

(x)

to preserve public order;

(xi)

to prevent the continuation or repetition of the offence or the commission of a further offence; or

(xii)

for the safety or welfare of members of the public or of the offender;

Conclusion – Note that the driving license may help secure his attendance at court. Make an argument about whether arresting the individual would be necessary to preserve public order, are their alternatives (?).

Seminar question 6: May a police officer lawfully arrest a person near a service station who he is informed by the salesperson working in the service station and another customer who was present when the alleged incident occurred that the person has threatened to kill the salesperson working in the store. -

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Threatening to kill is an indictable offence in Vic, s 20 of the CA 1958 (Vic). The power to arrest a person can be based on s 458 CA 1958 (Vic) or s 459 CA (CA) as the arrestor is a police officer. CRIMES ACT 1958 - SECT 459 - Powers of police officer or protective services officer to apprehend offenders http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s459.html ‘belief on reasonable grounds’ = common law (find a case to provide you with what reasonable grounds means) ‘Reasonable belief test’ - George v Rocket (1990) 170 CLR 104 •

An objective test (facts would give rise to belief in a hypothetical reasonable person).

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Reasonable grounds for believing requires higher level of factual support than reasonable ground for suspicion (George v Rocket (1990) 170 CLR 104).

 Belief is a more certain state of mind than suspicion and involves an inclination of the mind towards assenting to, rather than rejecting, a proposition.  Suspicion is a positive feeling of actual apprehension, mistrust, amounting to a slight opinion, but without sufficient evidence. Suspicion is not enough o justify an arrest without warrant . •

The person (including a police officer) must believe that the person being arrested has committed an indictable offence and this belief must be based on facts that would induce that state of mind in a reasonable person (Slaveski v State of Victoria [2010] VSC 441).

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The police officer must have believed that a particular indictable offence occurred, and not simply any offence generally (R v Vollmer [1996] 1 VR 95). Information is supplied by third parties. Constable must assess the reliability and credibility of the information.

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