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Damien Carrick: Hi, welcome to the Law Report, Damien Carrick here. Today Rachel Carbonell brings you a special episode on citizen arrests.

Rachel Carbonell: There aren't any official figures on how many citizen's arrests take place in Australia each year. Police say they're rare but recently the news seems to have been full of them.

Today we talk to lawyers and police about citizen's arrests, the good and the bad. They can be critical to keeping the peace but they're also fraught with risk.

Ian Geddes: Arresting anyone at any time can be a dangerous activity.

Rachel Carbonell: But what is a citizen's arrest? Everyone has heard the term, but do you know what it is and how to legally perform one?

Honorary Associate Professor at La Trobe University, Christopher Corns, taught powers of arrest to law students for many years.

Christopher Corns: It may sound extraordinary but there's nothing in statute that answers your question, and so we have to go back to the common law, and a lot of these principles can be traced back several centuries. It's not new, and in fact it was the normal way for many centuries until the advent of modern police forces. I think a lot of people have this idea that the police have been there forever, but in fact the modern police, certainly in England, started I think it was about 1820.

Rachel Carbonell: With the advent of police forces in places like Australia and England, the citizen's arrest powers have remained.

Christopher Corns: The contemporary citizen's arrest powers are contained in section 458 of the Victorian Crimes Act. It's essentially the same provisions in most jurisdictions in Australia.

Rachel Carbonell: What is the difference between an arrest that is conducted lawfully by a police officer and an arrest that is conducted by a private citizen?

Christopher Corns: Well, the actual legal effect of the arrest would be the same. The person has lost their ability to go wherever they wish. The difference in the actual powers is very significant however. Police have much broader powers than a citizen. Specifically the police can arrest a person lawfully, even though they have not found that person committing an offence, so long as the police officer believes on reasonable grounds that the person has committed an offence, whereas with a private citizen, for historical reasons the law has been much more constrained and the citizen has to find the person committing the offence.

Rachel Carbonell: Tell me, how does one go about performing a citizen's arrest? Do you have to speak certain words or make certain actions?

Christopher Corns: The first element is called the physical element, and the person carrying out the arrest has to make it clear to the arrestee that they have lost their liberty, and this can be done in various ways, depending on the circumstances.

Rachel Carbonell: So what are some ways that you might arrest someone?

Christopher Corns: Well, it's more about making it clear to that person that they have lost their liberty. So if you say, 'You are under arrest,' and you touch them on the shoulder, then that is a sufficient act of arrest. But only if the person submits.

Rachel Carbonell: So if somebody performing a citizen's arrest verbally indicates that they are arresting you and the person being arrested doesn't submit to that and takes off, well then, that's it, that's a failed citizen's arrest?

Christopher Corns: Yes, I think that that would be a failed citizen's arrest, yes.

Rachel Carbonell: However, something as simple as touching that person on the shoulder puts it into an entirely different category.

Christopher Corns: Yes, because it's a symbolic gesture.

Rachel Carbonell: What else do you need to do?

Christopher Corns: You have to give them the reason why you are doing this, and there are a number of appeal cases that explain why. It's important that the arrestor do this.

Rachel Carbonell: Can you give me an example of why that is critical?

Christopher Corns: One reason is that the deprivation of a citizen's liberty is regarded by the courts as the most significant breach of a person's civil liberty, and there has to be a very good reason for deprivation of that civil liberty. Another reason is that you ought to give the citizen an opportunity to explain their actions because they may be innocent of what is perceived to be wrongdoing but in fact it is not.

Rachel Carbonell: And what's the final aspect that one has to adhere to in order for a citizen's arrest to be lawful?

Christopher Corns: This relates to how much force the arrestor can use in carrying out the arrest, and hopefully in most situations no violence at all would be required. But if it is required, which it often is, the courts do have to determine whether the degree of force that was used was reasonable. The general principle is that you can use whatever degree of force is reasonable in the overall circumstances.

Rachel Carbonell: One of the things that I find curious about the whole idea of a citizen's arrest is that it actually just means civilian or non-police officer, doesn't it, because you don't have to be, for example, a citizen of Australia to make a citizen's arrest, is that right?

Christopher Corns: Yes, that's correct, it's not using the word 'citizen' in that sense, it's simply making a distinction, a clearer distinction is private versus public arrest. So we are really talking about private arrests.

Rachel Carbonell: And is it possible to perform a citizen's arrest legally on a police officer?

Christopher Corns: Yes, in principle. It doesn't matter what the status of the alleged offender is, whether they are police officer in uniform or another citizen. If the prerequisites under section 458 are satisfied, then the arrest is lawful. And the essential prerequisites is that you have to find them committing an offence, and you believe that it's necessary to arrest them in order to prevent the continuation of the offence or to bring them before a court. So I could imagine a circumstance where a police officer is seen committing an offence, very clearly seen committing an offence, and a citizen's arrest could very well be lawful.

Rachel Carbonell: One of the better known citizen's arrests in recent years was by the Northern Territory Justice Minister John Elferink, who famously performed one in the middle of a television interview.

Journalist: The opposition was announcing it would introduce one-punch assault legislation…

John Elferink: There is no excuse whatsoever for someone who finds himself in a position where they resort to violence.

Journalist: When a man came up behind politician John Elferink and kicked him in the leg. The former police officer tried to make a citizen's arrest.

John Elferink: Sit down, just sit down please. I'm apprehending you and I'm waiting for the police to arrive. You have no right to do what you just did.

Journalist: And the situation escalated…

Rachel Carbonell: Mr Elferink is a former police officer with a law degree, so he knew exactly what he was doing.

But what happens if someone attempts a citizen's arrest and doesn't undertake the necessarily steps?

Christopher Corns: If the arrest is deemed to be unlawful, then what you have is one citizen committing a tort. If we are just talking about civil litigation they are committing a tort on another citizen, the tort of assault, and therefore they could be sued by the person arrested and substantial damages claimed.

Rachel Carbonell: What other ramifications do you potentially face if you engage in a citizen's arrest? And let's just say it's found to be unlawful, you didn't do all the things that you had to do. Could you be charged with anything to do with the false detention of somebody, depriving somebody of their liberties when you weren't in fact entitled to?

Christopher Corns: Yes, that's a very interesting question Rachel. In theory you could be liable for a criminal prosecution, as you say, of unlawful detention. That raises very difficult questions for the prosecution, whether it's a police prosecutor or whether it's the DPP, because there's a question there about whether prosecuting that person would be in the public interest because this requirement that the prosecution be in the public interest is absolutely fundamental to all prosecutions, whether it's a police prosecution decision or a decision by the DPP. So in that situation of a…I suppose it's a good Samaritan scenario which has gone wrong, there are difficult questions there about should you actually prosecute the good Samaritan.

Rachel Carbonell: Christopher Corns, Honorary Associate Professor at La Trobe University.

I'm Rachel Carbonell, this is the Law Report on RN, Radio Australia, ABC News Radio and on the ABC radio app.

Legal trouble is not the only kind of trouble you can get yourself into if you perform a citizen's arrest. People can and do get hurt. In fact in the last few years a number of people have died during citizen's arrests, on both sides.

Ian Geddes is an Inspector with Victoria Police.

Ian Geddes: Arresting anyone at any time can be a dangerous activity.

Rachel Carbonell: How common are citizen's arrests?

Ian Geddes: Look, it's a fairly uncommon occurrence, and it's not something that we promote because of the dangers that are inherent in arresting anyone. The power of arrest that exists in the Crimes Act for a member of the public is a finds committing power of arrest. So it means that any arrest that a person does has to be in the heat of the moment. And I think the phrase 'in the heat of the moment' actually tells you how emotive an arrest of someone can actually be.

Rachel Carbonell: There are probably two kinds of citizen's arrest. There's those rare ones where people actually consciously decide they are going to make a citizen's arrest, and perhaps the less rare ones where somebody jumps into the fray in the spur of the moment and perhaps in the wash-up it becomes clear that what they were doing legally was a citizen's arrest.

Ian Geddes: That's probably the best way to describe it, that someone will intervene in something that's happening in the community, being a good Samaritan, and then in the process they will affect an arrest. They won't actually be aware of what they are doing at the time or any legislative authority that they have to do that, they just see that it's the right thing to do. But in saying that, being a good Samaritan can end quite tragically, and we've seen that with people like Luke Mitchell who was a young man who intervened in an incident that was occurring at a convenience store late at night. As a result of that he was stabbed and died. That matter has now been dealt with by the courts. But unfortunately Luke is no longer with us.

Rachel Carbonell: What are the other sorts of things that in your line of work you see go wrong when people leap into the fray?

Ian Geddes: Look, it's about injury, it's about creating the opportunity for escape. If you don't step in and the person is milling around after offending, the police may get there on time and be able to arrest him without a further investigation, but once you show your hand they are liable to get away. And you've got to remember that this person is more desperate than you. You are just stepping in to do what you think is right. This person's liberty is at risk, and if it's a person who has offended before and knows what the consequences are, they may not want to go back to jail and so may be prepared to seriously harm you to get away.

The situation is…arresting someone is something that police are trained to do. Arresting someone isn't as simple as just jumping on top of them and holding them down until someone comes along to help. That can cause you some issues. Police are trained in relation to that. We are trained in what to do, we are trained in making arrests. We are trained when to avoid an arrest. We also are equipped to make an arrest. We are equipped with our training, and we are equipped with assistance if we need it to make the arrest, and lastly we are equipped with operational safety equipment that we can use to assist us in that arrest, and the public just don't have any of those resources.

Rachel Carbonell: Even with those things at your disposal, it doesn't always go well for police either, does it, arrests can be volatile situations.

Ian Geddes: If we are talking about an arrest that has been made while someone is committing an offence, and the arrest power available to the public is a finds committing power, so someone is committing an offence. So in those situations it's always volatile. Police are lucky enough to have other powers of arrest which means that we can go around and arrest someone later when things have cooled down. And so those arrests are planned and the risk isn't as great. Because arrests are all about bringing people to justice, preventing the offence from continuing, and bringing people before the appropriate court. If we can do that by another means then that's what we'll do.

Rachel Carbonell: So would you then advise the public to try and take a similar approach? If you see somebody who is shoplifting or committing a minor offence where no one is going to get hurt, then take what details you can and call the police because this is not a life-and-death situation and can be perhaps dealt with in other ways?

Ian Geddes: Look, that's the best way to deal with any situation, to be honest with you, because one thing that you don't know is who that person is, how volatile they are, where they have come from or where they are going, if they are armed, what their history is. So we have ways we approach these things that come from their training so that we can avoid confrontation and we can avoid putting ourselves at risk or putting the public at risk. So it's far better for you to note what's happened, call the police, give them what details you can and allow them to carry out an investigation and arrest that person at a later date.

Rachel Carbonell: If you decide to engage in a citizen's arrest you may not just be putting yourself in danger but potentially you could be putting other people in the public in danger. An example might be if you went in pursuit of somebody.

Ian Geddes: Exactly. Look, if you go in pursuit of somebody, particularly if it's a vehicle pursuit, that is creating a whole raft of dangers for you, and dangers for other members of the public. You know that Victoria police has a policy around police pursuits and it's quite a rigorous policy, and it's not about not pursuing, it's about pursuing in the right circumstances. So we've examined through our history what pursuits result in, how we pursue, the risks associated with pursuits, and we know that they create huge risks and something that is only to be attempted in appropriate circumstances.

Rachel Carbonell: In March this year, country Victorian mechanic Joe Fontana took his chances and pursued someone who had stolen his ute. In this case, all ended well. He gave an account of what happened afterwards to Fairfax media.

Joe Fontana: Someone came running in, one of our customers, and told us that basically your ute is getting stolen as we speak, and I came out the front and sure enough it was gone. We got in the closest car we could and gave chase down the road. It's not the fastest ute in the world, so we caught up pretty quickly. We told him to pull over a few times, we got next to him. After that we got down the road a bit further, near Burrumbeet, and he turned off near the train line, and that's when we decided that was enough. We pushed him off the road there into the side of the train line and that was the end of that.

Reporter: And why did you decide to do the citizen's arrest?

Joe Fontana: It's my car, it's not his car. At the end of the day I'll protect my stuff. I know the police can't chase anymore but I can, so I did. I can't say much more than that I guess.

Rachel Carbonell: What are some other situations in which the risk might not only be to yourself if you think you need to do a citizen's arrest but might create a risk for other people around you?

Ian Geddes: Look, you don't know if the person that you are about to arrest is drug affected or has some sort of psychiatric disorder. They might be armed with a weapon that you don't know about. They may have come from committing a more serious crime. So they may think that you are arresting them for that. You don't know what they've done, where they've come from, and so the reaction that you get may not be about the shoplifting, it may be about something more serious that they've done earlier that they think you know about. These are all things that you don't know when you go forward and just approach someone that you've just come across. These are things that the police face on a daily basis but are trained and equipped to deal with.

Rachel Carbonell: If you see something happening that is unlawful or potentially very dangerous, it's a personal decision as to whether or not you intervene, you are giving some very sage cautionary advice to try in all circumstances not to become involved. What are the kinds of situations where people may feel compelled, where a citizen's arrest is perhaps warranted?

Christopher Corns: Look, if someone has been I suppose injured to the point where you are fearing that they may lose their life or become so severely injured that they are incapacitated, then it's a matter for you as an individual to…if you believe you have the sufficient means to step in and not escalate the situation and actually control it, and I'd say that would be by getting some help, not necessarily help from the police, but if it's so dramatic that you think you need to step in, do that. Someone perhaps trying to abduct a child probably is the other where you may feel that you need to step in. But it's not something that we would recommend. Even in those situations we would say call the police, because the risk to you is huge. You may not be helping the situation at all, you may actually make it worse. So in the first instance, always try and get the police there.

Rachel Carbonell: But in the moment, it's always a tough call.

Last month, some passers-by intervened when they heard a woman being assaulted in Brunswick in Melbourne's inner north.

Journalist: Good Samaritans chased down that alleged attacker and held him down until police arrived, performing that citizen's arrest. It happened around 10.30 on Sunday night. A number of people heard a woman's screaming and they followed her yells for help. They found a man attacking a woman on Florence Street in Brunswick, and when those bystanders approached, the man ran away…

Rachel Carbonell: As a police officer, just speaking personally and from your own anecdotal experience, do you ultimately find that citizen's arrest powers are more harm than help?

Ian Geddes: As I think I said at the start, you don't see it happen that often. And meddling in something that perhaps isn't your business can often be harmful. When police are investigating something we are very mindful that we don't do anything that causes a destruction of evidence or damages our prosecution in any way. And so when we are approaching an arrest, that's foremost in our mind, as well as preventing the harm that is being caused and protecting the community. But those things wouldn't be on the mind of anyone who is untrained, unskilled in that area.

Rachel Carbonell: Inspector Ian Geddes from Victoria Police.

Often security guards who detain shoplifters and nightclub bouncers who restrain rowdy punters are exercising their citizen's arrests powers.

Adrian Snodgrass is a senior lawyer at Fitzroy Legal Centre in Melbourne. He says the issue of citizen's arrests often comes up in relation to domestic violence and the troubles taxi drivers have with unpaid fares.

Adrian Snodgrass: I do a lot of work with taxi drivers. We've had a few cases where there have been disputes over a fare and the taxi driver has got into a physical altercation with a passenger. It's always really vexed. It's a tricky situation when you are using force against somebody. If you are going to physically restrain somebody without any kind of lawful excuse or justification, that becomes an assault. And because there has to be some kind of communication that you are affecting the arrest, in situations where you might think someone is committing a crime and you go in to do something about it, you are not always acting in a way that you will be protected if you are accused of committing an assault. Almost every situation, you are better off taking footage of somebody on your phone, remaining present, calling the police, following them if necessary (often not advisable either), but doing everything short of actually putting your hands on somebody. That's a really serious thing and that can lead to criminal charges against you.

Rachel Carbonell: Can you explain to me, in the context of a taxi driver, they are feeling really upset and annoyed that somebody hasn't paid a fare. They may not be thinking in terms of making a citizen's arrest but they may think, well, I've got some rights here. They can't just get out of the taxi and not pay. So I can see they might get into a situation where they say, no, I'm not letting you out until you've paid. Can you explain to me how you go through those kinds of complicated pros and cons with a taxi driver?

Adrian Snodgrass: The first thing that we would say is to exercise any alternative. We've had situations where taxi drivers have taken passengers to police stations to complain about non-payment of the fare, and the police haven't done very much about it. They've treated it as a dispute about non-payment of services rather than, say, a theft, which is the way that the taxi driver might see it. So locking the doors and taking people to the police station might be counter-productive anyway, and you are risking antagonising somebody, and for the sake of one cab fare you are risking your entire career as a taxi driver. So there is no cost benefit to performing a citizen's arrest in most cases.

Rachel Carbonell: And presumably also in that situation if the taxi driver hasn't done a proper citizen's arrest in that case, they've just locked the doors and gone to a police station, if you've got somebody who was particularly upset by that, could they press charges for deprivation of liberty…?

Adrian Snodgrass: They sure could, yes. It could be an assault, it could be false imprisonment. If it comes up, what's the way to lawfully arrest somebody as a citizen, you can go through those options with people, but in the heat of the moment you are probably not going to do it in the right way. You have to use reasonable and proportionate force, for example, and that depends on the context, it depends on how the other person reacts when you are trying to arrest them. Making those sorts of judgements in the heat of the moment is very difficult.

Rachel Carbonell: Are there any other situations where citizen's arrest issues come to your attention?

Adrian Snodgrass: I think it's related to the criminal work that we do. When you are accused of an assault there is a defence of self-defence or protecting your own safety, the safety of other people, or protecting property. And that goes hand in hand with a citizen's arrest. You are stopping somebody from doing something to protect somebody else, and I think that's the only context where it might be the only option that you've got, where somebody is in risk of imminent harm and the only thing you can do to stop that harm is to step in.

Rachel Carbonell: Do you think that people are aware that they are conducting citizen's arrests when they are doing it, in your line of work?

Adrian Snodgrass: People don't think like lawyers. They are not thinking about what are the provisions of the Crimes Act or what does the common law say about what I'm allowed to do, they step in and they act according to the situation. So no, usually it's not in a legal context when they are performing the action. In the wash-up the court will look at what they did and see whether it fits in with what is allowed under the scope of the law.

Rachel Carbonell: And sometimes that means it may be defined in the court or in the legal processes as a citizen's arrest and it's viewed through the prism of the powers around that.

Adrian Snodgrass: That's right, but there are all sorts of issues about whether the person knew that they were being arrested for the offence or whether it was just an assault, the person came at them.

Rachel Carbonell: And as a lawyer generally what advice would you give people on making a decision to make a citizen's arrest?

Adrian Snodgrass: Generally don't, because you are putting yourself in a situation where you are risking a physical confrontation with somebody, and that has the possibility that you could be accused of assaulting that person.

Rachel Carbonell: Do you think there's still a place for citizen's arrest powers in Australia, or do you think they are more trouble than they are worth?

Adrian Snodgrass: I think the only time when a citizen's arrest would be the best option is where you are preventing imminent harm to yourself or another person.

Rachel Carbonell: And what would be an example of that?

Adrian Snodgrass: To give an extreme example, let's say you are in the Lindt cafe and you see Man Haron Monis pulling out a gun, you grab the gun and you hold him until the police arrive.

Rachel Carbonell: So really emergency situations.

Adrian Snodgrass: That's right, emergencies.

Rachel Carbonell: What about citizen's arrest in domestic violence issues, because you can witness it, you can record it, you can call 000 and that means that there will be some course of action that can be taken. The person who has committed the assault can be charged. It's not actually going to stop that person from being assaulted and you may feel you need to jump in. So tell me, what about citizen's arrest in the domestic violence context? That's a tricky one, isn't it?

Adrian Snodgrass: I had an incident just the other night which made me think about these sorts of issues. It was about a block away from here, by coincidence, and there was a man who had been to the bodybuilding convention, he had a bodybuilding convention T-shirt on, and he was very, very angry with a woman. He was screaming into her face, his fist was raised a few times. She couldn't get out, she was trapped up against a plate glass window, and this was outside of a hotel. I told the hotel staff. They called the police.

My friends and I stayed at a safe distance, watched what was going on and waited for the police to arrive. There was no way in the world I was going to step in and grab this guy. But what we would have done if he had started hitting her is another problem. What did happen in the end was that his friend arrived and the situation diffused. The police didn't get there, it took more than 20 minutes of them having this discussion, the police never arrived but the friend did and they all walked away.

So what I would suggest to people is the best way of dealing with those situations where you think there is a threat of violence, unless you can jump in and stop somebody from being hurt, you monitor it, you make sure the police are informed, maybe grab some footage on your camera phone that can be used as evidence later on. Make sure that you stay close to the situation but try not to get involved if at all possible.

Rachel Carbonell: And I know you said just then that you're not sure what you would have done had that violence actually erupted. What do you think you would have done?

Adrian Snodgrass: To be completely honest, I'd be too much of a coward to jump in in that fight. This guy was huge and I probably wouldn't have been able to do very much to stop this lady from being hurt. We might have come up and tried to distract him or something like that. I still don't think I would have gone to the extent of grabbing the guy and trying to hold him.

Damien Carrick: Adrian Snodgrass, lawyer with the Fitzroy Legal Service. Gee, I wonder what I would have done.

And that feature on citizen's arrests by RN's Rachel Carbonell.

That's the Law Report for this week. Thanks to producer Anita Barraud and also to technical producer Alex Stinson.