What is an Arrest?
An arrest encompasses detention of a person, for any lawful purpose, other than punishment.
'There are a number of cases, both ancient and modern, as to what constitutes an arrest, and whereas there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching, it is quite clear that that is no longer the law. There may be an arrest by mere words, by saying "I arrest you" without any touching, provided, of course, that the defendant submits and goes with the police officer. Equally it is clear, as it seems to me, that an arrest is constituted when any form of words is used which in the circumstances of the case were calculated to bring to the defendant's notice, and did bring to the defendant's notice, that he was under compulsion and thereafter he submitted to that compulsion.'
Alderson v Booth [1969] 2 QB 216.
In Bulsey v State of Queensland [2015] QCA 187, [13] Fraser JA approved the decision in Wilson v New South Wales that 'the requirements for an arrest are (1) communication of intention to make an arrest, and (2) a sufficient act of arrest or submission.'
'There are a number of cases, both ancient and modern, as to what constitutes an arrest, and whereas there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching, it is quite clear that that is no longer the law. There may be an arrest by mere words, by saying "I arrest you" without any touching, provided, of course, that the defendant submits and goes with the police officer. Equally it is clear, as it seems to me, that an arrest is constituted when any form of words is used which in the circumstances of the case were calculated to bring to the defendant's notice, and did bring to the defendant's notice, that he was under compulsion and thereafter he submitted to that compulsion.'
Alderson v Booth [1969] 2 QB 216.
In Bulsey v State of Queensland [2015] QCA 187, [13] Fraser JA approved the decision in Wilson v New South Wales that 'the requirements for an arrest are (1) communication of intention to make an arrest, and (2) a sufficient act of arrest or submission.'
When can police exercise the power of arrest without a warrant?1. Section 365(1)Police Powers and Responsibilities Act 2000 (Qld):
If the officer making the arrest has reasonable suspicion: An offence has been or is being committed AND the arrest is reasonably necessary: * for one or more of the reasons articulated in the legislation: Eg. To prevent the continuation/repetition of the offence, ensure appearance before the Court, obtain/preserve/prevent fabrication of evidence, preserve the safety/welfare of any person, including the person arrested; or * because the offence is of a particular nature/type 2. Section 365(2) Police Powers and Responsibilities Act 2000 (Qld): Can arrest for questioning/investigation if officer reasonably suspects the person has/is committing an indictable offence. 3. See also s 366 Police Powers and Responsibilities Act 2000 (Qld): when someone is reasonably suspected to be escaping from custody, or seomeone is unlawfully at large, or someone who has failed to/is likely to fail to comply with particular bail conditions/there is a reasonable suspicion that someone given a notice to appear/summons is interfering with a witness/likely to fail to appear. |
When can police exercise the power of arrest with a warrant?Warrant removes the requirement for reasonable suspicion upon the officer making the arrest.
Any police officer can execute the warrant for a person named in the warrant: s 369 Police Powers and Responsibilities Act 2000 (Qld). The warrant must be carried if reasonably practicable and produced if required: s 255(1) Criminal Code. Criminal Code provides protection for officers executing warrant from civil/criminal action if:- Warrant issued without authority (s 250)/jurisdiction (s 251), or warrant is defective (s 253) or officer arrests wrong person, as long as they act in good faith, and believe on reasonable grounds that is the person named in the warrant (s 252). When can an arrest warrant be issued?A police officer must apply for a warrant by swearing and stating grounds for warrant (s 370).
A warrant can be issued by a Justice if satisfied that there are reasonable grounds for suspecting the person has committed an offence (and if not indictable offence other methods of proceeding must be ineffective) (s 371). The warrant must include the alleged offence among its contents (s 372). |
Effecting an arrest
Must inform person they are under arrest and what for as soon as reasonably practicable (s 391(1)) Police Powers and Responsibilities Act (2000).