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Module 10 of 10 Arrest and police powers

Module 10 · Arrest and police powers

Attack plan

Find the power, test the belief, check how the arrest was made and the force used, then state what follows.

The power. Who arrested, and for what class of offence (ss 457, 458, 459).
Belief on reasonable grounds. Under s 459, that the person committed a particular indictable offence (Vollmer). Under s 458(1)(a), that arrest is necessary for a prescribed reason, with “finds committing” extended to a belief that the person found is guilty of an offence (s 462).
The wrong person. Apply s 461(1).
The common law requirements. Deprivation of liberty, notice of the arrest, and the true reason, subject to the excusing circumstances (Christie v Leachinsky).
Force. The three elements (s 462A) and, on a killing, the relation to s 322K.
Consequences. An unlawful arrest takes the officer outside the execution of duty. Resistance to it can be self-defence (s 322K).
Custody and interview. Release or a court within a reasonable time; the caution, contact, interpreter and recording rules; then exclusion of evidence (ss 464–464J; Evidence Act s 138).
Charge. Charge sheet, summons instead of arrest, and the decision to prosecute (s 461(2)).
Bail. Find the Schedule, run the step 1 test, then the unacceptable risk test (Bail Act ss 4AA–4F).

Police powers of arrest “provide a lawful excuse for what would otherwise be an unlawful application of force”.¹ The question arises most often on charges of assault and false imprisonment, and in self-defence where the accused says the police were “acting unlawfully in attempting to arrest the accused”.² The powers are statutory, but “the common law still dictates the requirements of a lawful arrest” (see Slaveski).³

Cases at a glance

Cases at a glance (20)

Click a case to see its facts, issue and decision.

Case	Facts in a line	The rule
	A man sued 23 police officers over seven years of dealings; the court restated the law of arrest.	Suspicion cannot justify arrest without warrant; common law governs how arrest is made; s 462A gives no arrest power.
Slaveski v State of Victoria & Ors [2010] VSC 441 Supreme Court of Victoria · persuasive only Facts: Lupco Slaveski, from Melbourne’s north, sued 23 current and former police officers and the State. He alleged assault, false imprisonment, malicious prosecution and trespass over seven years of dealings with police. He ran most of the 115-day trial himself. Issue: What must police show to justify an arrest without warrant, and what does s 462A add to the power of arrest? Decision: Kyrou J dismissed every claim except one trespass by seven officers in December 2005, for which he awarded damages. Along the way, his Honour restated police powers. An arrest under s 459 needs an actual belief, held “on reasonable grounds”, that the person committed an indictable offence; suspicion is not enough. Statute supplies the power, but the common law still governs how an arrest is made: deprivation of liberty, notice of the arrest and the reason. Section 462A permits force to effect a lawful arrest but confers no power of arrest. A single-judge decision. The right to use force is a corollary of the right to effect an arrest. Kyrou J, at [126] Use it. Power paragraph: test for an actual belief, not suspicion, then run the common law steps; never cite s 462A as the power. Go to the section
	A hotel manager chased and held a patron suspected of dishonesty offences using an EFTPOS card.	Section 458(1)(a) sets two tests: “finds committing”, as s 462 extends it, and a reasonable belief arrest is necessary.
De Moor v Davies [1999] VSC 416 Supreme Court of Victoria · persuasive only Facts: A hotel manager chased a patron who had used an EFTPOS card in committing dishonesty offences, and apprehended him. The lawfulness of that citizen’s arrest under s 458(1)(a) came before Warren J in the Supreme Court. Issue: When may a private citizen arrest without warrant under s 458(1)(a), and how far does s 462 extend “finds committing”? Decision: Warren J held that s 458(1)(a) sets two cumulative requirements before a citizen may take away another person’s liberty. The arrester must find the person committing an offence, and must believe “on reasonable grounds” that arrest is necessary for a listed reason, such as securing the person’s attendance at court. Section 462 carries “finds committing” beyond catching someone in the act. It covers a person found behaving, or in circumstances, that give the finder a reasonable belief of guilt. A single-judge decision. In summary, the provision empowers a citizen's arrest at any time of any person so as to deliver that person to the police where the apprehending person finds the other person committing any offence and where the apprehending person believes on reasonable grounds that the apprehension is necessary for the specified reasons. Warren J, at [13] The section extends the point of discovery of the commission of the offence to encompass the actual perpetration of the offence, alternatively, to finding a person behaving or conducting him or herself so as to create a reasonable belief of guilt, or, alternatively, to find a person in such circumstances so as to create a reasonable belief of guilt. Warren J Use it. Citizen’s arrest: test both limbs of s 458(1)(a), using s 462 where the arrester did not see the offence itself. Go to the section
	A magistrate issued a warrant to search a solicitor’s office for documents linked to a former police commissioner.	“Reasonable grounds” requires facts that would lead a reasonable person to that state of mind; belief is firmer than suspicion.
George v Rockett (1990) 170 CLR 104 High Court of Australia Facts: In 1989 Detective Sergeant Rockett swore a complaint before a magistrate to obtain a search warrant under the Queensland Criminal Code. He sought documents in the handwriting of Sir Terence Lewis, a former Police Commissioner facing perjury charges. Police seized documents at the office of Lewis’s solicitor, George. The Queensland Full Court refused to review the warrant. Issue: What must a sworn complaint show before a justice can find “reasonable grounds” for suspecting and believing under a search warrant power? Decision: The joint judgment of all seven Justices allowed the appeal. A statute requiring “reasonable grounds” for a state of mind requires facts that would produce that state of mind in a reasonable person. Suspicion and belief differ. Suspicion is conjecture where proof is lacking; belief needs facts pointing more clearly to its subject, though less than proof. The complaint did not show grounds to believe the documents would afford evidence of the offences, so the warrant was invalid. Victorian courts apply the test to arrest under s 459 and to force under s 462A. When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. The joint judgment, at [8] Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture. The joint judgment, at [14] Use it. Belief paragraph: name the facts the arrester knew and show they ground a belief, not a mere suspicion. Go to the section
	Appeal against convictions arising from a death; the court also stated the belief needed to arrest without warrant.	The belief must point to a specific indictable offence; a belief in unspecified indictable offending is not enough.
R v Vollmer [1996] 1 VR 95 Victorian Court of Appeal Facts: Vollmer and co-accused appealed to the Court of Appeal against convictions arising from a death. The case is cited on the belief police need to arrest without warrant, and on what police must tell a suspect before questioning. Issue: Is a belief that the person committed some indictable offence enough, or must the arrester have a particular offence in mind? Decision: The Court of Appeal required the arrester’s belief to relate to a particular indictable offence. A general belief that the person has done something indictable does not engage the power in s 459. The Court of Appeal applied the point again in James v The King. In a problem, name the offence the officer had in mind and test the grounds against it. Use it. Belief paragraph: identify the particular indictable offence the officer believed was committed before testing the grounds. Go to the section
	James appealed against conviction; the lawfulness of police conduct in arresting him was in issue.	Excess force or an unlawful arrest takes police off duty; an available lawful basis can still validate an arrest.
James v The King [2025] VSCA 140 Victorian Court of Appeal Facts: James appealed to the Court of Appeal against conviction. The appeal raised the lawfulness of the police conduct in arresting him, and its bearing on offences against an emergency worker on duty and on self-defence. Issue: When do an unlawful arrest or excess force take police outside their duty, and what must the jury be told about lawful arrest? Decision: The Court of Appeal restated the law of arrest. Belief, not suspicion, is required, and it must relate to a particular indictable offence. An arrest can stand where a lawful basis existed, even though the officer relied on an unlawful one. Officers making an unlawful arrest, or using force beyond s 462A, act outside the scope of their duty. That matters for offences against an emergency worker “on duty”. Where lawful arrest is in issue, the judge may need to direct on every live component, both the power and the manner of arrest. Use it. Unlawful-arrest paragraph: show the arrest or force fell outside the power, so the officer was not on duty under s 31(1)(b). Go to the section
	Police put a hand on Lavery’s arm and asked him to come to the station for questioning.	A request is an arrest if the circumstances show the person has “no real choice” about going.
R v Lavery (1978) 19 SASR 515 South Australia · persuasive only Facts: Police put a hand on Lavery’s arm and asked him to come to the police station to be questioned. The judge found the request a mere formality; Lavery was under restraint from that moment. He was not told he was under arrest, or the substance of the allegations against him. Issue: Is a person who goes with police at their request, after being touched on the arm, under arrest? Decision: King J held that words of request do not settle the matter. A suspect who goes along voluntarily is not restrained, even if police would have arrested him on refusal. But if the circumstances convey that he has “no real choice”, he is not going voluntarily. Lavery was in substance under restraint, and was not told he was under arrest or why. King J still admitted his challenged admissions in evidence. Victoria adopts the test: a person is arrested when police make it plain he or she is not free to leave. Persuasive only in Victoria. The suspect’s liberty is not under restraint simply because the police officer would or might arrest him if he were to exercise his right to depart or to refuse to accompany the police officer. If, however, the circumstances are such as to convey, notwithstanding the use of words of invitation or request, that the suspect has no real choice, his freedom is under restraint and he cannot be regarded as accompanying the police officer voluntarily. King J, at 516 Use it. What-is-arrest paragraph: where police invite a suspect to come along, ask whether the suspect had any real choice. Go to the section
	Michaels escaped from custody after police questioning, before he was brought before a justice.	Arrest is “a question of fact”; detention can become lawful or unlawful, and delay merely to question is unlawful.
Michaels v The Queen (1995) 184 CLR 117 High Court of Australia Facts: Police invited Michaels at his workplace to come to headquarters to answer questions; they would have arrested him had he refused. After a struggle he was handcuffed, though not told he was under arrest. He was held under a federal customs power and questioned. He escaped before being brought before a justice, and was charged with escaping lawful custody. Issue: Was Michaels in lawful custody when he escaped, given how long police held him before taking him to court? Decision: The High Court dismissed his appeal. In a joint judgment, Brennan, Deane, Toohey and McHugh JJ held that police may not delay taking an arrested person before a justice in order to question the person or make further inquiries. Some interval is allowed, if it is not excessive in the circumstances. Whether there has been an arrest is a question of fact. It turns on whether the person has been deprived of liberty, not on whether the arrest was lawful. The lawfulness of a detention can change over time, so each stage must be tested. In Victoria, s 464A now governs the time allowed. It is unlawful for a police officer to delay taking an arrested person before a justice in order to question the person or to make further inquiries relating to the offence for which the person has been arrested, or to some other offence. Brennan, Deane, Toohey and McHugh JJ, at 124 Use it. Custody paragraph: fix when the arrest occurred, then test each stage of detention, since lawful custody can become unlawful. Go to the section
	After a positive roadside breath test, an officer asked Booth to come to the station for further tests.	Words alone can arrest, but only if they bring home to the person that he is under compulsion.
Alderson v Booth [1969] 2 QB 216 Divisional Court (England) · persuasive only Facts: After a road accident, Booth gave a positive roadside breath test. The officer said, “I shall have to ask you to come to the police station for further tests.” Booth went, and tests showed alcohol over the limit. The justices were not satisfied he had been arrested and dismissed the charge. The prosecutor appealed. Issue: Can words alone amount to an arrest, and did the officer’s request to come for further tests arrest Booth? Decision: The Divisional Court dismissed the prosecutor’s appeal. Lord Parker CJ held that touching is no longer needed: an arrest can be made by words alone, provided the person submits. The words must, in the circumstances, bring to the person’s notice that he is under compulsion. The justices were entitled to find that this polite request did not do so. Victoria follows the case on arrest by words and on the need for the person to grasp the compulsion. Persuasive only in Victoria. 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. Lord Parker CJ, at 220–1 Use it. Deprivation-of-liberty paragraph: where no hands were laid on, ask whether the words made the compulsion plain and the person submitted. Go to the section
	Liverpool police arrested Leachinsky for “unlawful possession” of a bale of cloth while suspecting he stole it.	The arrester must tell the person the true reason for arrest, unless notice is impossible or the reason is obvious.
Christie v Leachinsky [1947] AC 573 House of Lords (England) · persuasive only Facts: In 1942 Liverpool police arrested Leachinsky at his premises for “unlawful possession” of a bale of cloth under a local Act. That Act gave no power to arrest him. The officers in fact suspected he had stolen or feloniously received the cloth, but did not tell him so. He sued for false imprisonment. Issue: Can an arrest without warrant be justified by a suspicion the officer held but did not disclose to the person arrested? Decision: The House of Lords held the first arrest unlawful. Viscount Simon stated the rules. A person arrested without warrant must in ordinary circumstances be told the “true ground of arrest”. No notice is needed where the circumstances show the general nature of the offence. A person who makes notice impossible, as by counter-attack or flight, cannot complain. No technical language is needed. A later arrest of Leachinsky outside a court was held lawful. Victoria applies these rules as part of the common law of arrest. Persuasive only in Victoria. If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. Viscount Simon, at 587 The person arrested cannot complain that he has not been supplied with the above information as and when he should be if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away. Viscount Simon Use it. Reason paragraph: check the reason given was the true reason, then whether resistance, flight or obviousness excused immediate notice. Go to the section
	Police took Bales to a station to question her about missing linen, without reasonable cause to suspect her.	Police may not arrest or hold a person merely to ask questions.
Bales v Parmeter (1935) 35 SR (NSW) 182 New South Wales · persuasive only Facts: A woman told police that linen and towels went missing after Bales stayed with her. Officers searched the flat where Bales was living and took her to Darlinghurst Police Station, where she was questioned, and no charge was laid. A jury found she was arrested without reasonable cause and awarded damages for trespass, unlawful arrest and false imprisonment. The officers appealed. Issue: Can police arrest a person, or hold her, for the purpose of questioning her about a suspected offence? Decision: Jordan CJ, with whom Stephen and Street JJ agreed, found against the officers. He accepted that police acting on reasonable suspicion deserve protection. But suspicion justifies arrest only for a purpose it supports: taking the person before a justice without delay. Arrest and imprisonment cannot be justified merely to ask questions. Victoria applies the rule, and s 464A now regulates questioning after a lawful arrest. Persuasive only in Victoria. [S]uspicion that a person has committed a crime cannot justify an arrest except for a purpose which that suspicion justifies; and arrest and imprisonment cannot be justified merely for the purpose of asking questions. Jordan CJ, at 188–9 Use it. True-reason paragraph: if the real purpose was to question, the arrest is unlawful whatever reason was given. Go to the section
	After a killing in her flat, police took Delly to a station without saying she was arrested, or why.	The obvious-reason exception applies only if the person must have known the reason, not merely may have.
State of New South Wales v Delly (2007) 70 NSWLR 125 New South Wales · persuasive only Facts: A man was killed in Delly’s flat during a party, and she cleaned up the blood. Next morning police entered with a search warrant and arrested others there. An officer took her name and date of birth and said she would be taken to Queanbeyan Police Station. She was not told she was under arrest, or why. She sued the State for false imprisonment and won damages. Issue: When is an arrester excused from stating the reason because it was apparent to the person arrested? Decision: The Court of Appeal upheld the finding that she was unlawfully detained, varying only the damages. Tobias JA, with Basten JA agreeing, held that the exception applies only if the person “must have known (not may or likely to or ought to have known)” the general nature of the offence. Knowing she was suspected of something connected with the killing was not enough. Ipp JA agreed, stressing that the circumstances of the arrest, not the person’s private knowledge, decide the point. Persuasive only in Victoria. At the very least, the police would only be discharged from complying with the requirement that the respondent be informed of the reason why she was being arrested if she must have known (not may or likely to or ought to have known) that she was being arrested for some criminal offence that was connected to Harris’ murder. Tobias JA, at [64] Use it. Excusing-circumstances paragraph: the reason is excused only if the person must have known it, judged on the arrest’s circumstances. Go to the section
	Police took Gebrehiwot to the ground in a Footscray square; his finger was fractured and later partly amputated.	Section 462A has three elements; proportionality is objective and asks whether less forceful alternatives would have achieved the arrest.
Gebrehiwot v Victoria [2020] VSCA 315 Victorian Court of Appeal Facts: In November 2014 four officers spoke to Gebrehiwot in Maddern Square, Footscray, while investigating an unrelated attempted armed robbery. A senior constable pushed him and took him to the ground, and he was handcuffed; his finger was fractured and later partly amputated. He sued for battery and false imprisonment. The State relied on s 462A, and a County Court jury found for the State. Issue: How must a jury be directed on whether force used in an arrest was justified under s 462A? Decision: The Court of Appeal (Tate, Kaye and Emerton JJA) set aside the verdict and ordered a retrial, because the jury had no direction on s 462A. The section needs a belief that the force is necessary, held on reasonable grounds, and force “not disproportionate to the objective”, judged objectively. The jury had to ask whether a reasonable person would have seen less forceful alternatives that would still achieve the arrest. It must judge without hindsight, allowing for the pressure of the moment. Use it. Force paragraph: run the three s 462A elements, then weigh the alternatives the officer had, without hindsight. Go to the section
	Turner fired a warning shot at a man near his car; the bullet struck and killed him.	Force must be reasonably believed necessary and not disproportionate to the “evil to be prevented”.
R v Turner [1962] VR 30 Victorian Court of Criminal Appeal Facts: Turner saw a man at his car and fired a shot over his head to frighten him. The bullet struck the man in the head and killed him. Turner was charged with manslaughter. On appeal he relied on a right to use force to stop the man. Issue: How much force may a person use to effect an arrest, and what limits that force? Decision: The Full Court stated a two-part test for force used by a member of the public to prevent a felony or to apprehend the offender. The person may use the force he reasonably believes necessary for that purpose. But a reasonable person in his position must not consider the means “disproportionate to the evil to be prevented”. The felony distinction has gone, and s 462A now governs force in arrest, but courts still cite the test. What is reasonable depends upon two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented (i.e. the commission of a felony or the escape of the felon). The Full Court, at 36 Use it. Force paragraph: test the force the arrester believed necessary, then weigh it against the seriousness of what the arrest prevents. Go to the section
	Police sprayed OC foam on a protester at a 2019 mining conference protest while arresting pole climbers.	Proportionality under s 462A weighs the offence behind the arrest; a minor non-violent offence justifies less force.
Brown v State of Victoria (No 3) [2025] VSC 765 Supreme Court of Victoria · persuasive only Facts: In October 2019 protesters at a mining conference at the Melbourne Convention and Exhibition Centre climbed two poles and hung a banner. Police were directed to arrest the climbers for trespass. Two officers sprayed OC foam on Brown, a protester nearby. He sued the State for battery in a group proceeding. Issue: When assessing proportionality under s 462A, may the court consider the offence for which the arrest is made? Decision: Harris J held both deployments of OC foam on Brown were batteries. They were not shown to be proportionate to effecting an arrest, or justified as self-defence. The objective of an arrest includes why it is made, so an arrest for a minor offence without violence warrants less force than one for murder. The arrested person’s reaction, such as violent resistance, also counts. Section 462A does not cover force used to process a person already under police control. A single-judge decision. An arrest for a relatively minor offence, not involving violence, is undoubtedly an objective of a different quality to an arrest for an offence of murder, and the proportionality assessment relating to those different objectives will necessarily be different. Harris J, at [59] Use it. Proportionality paragraph: name the offence behind the arrest and the person’s resistance, then measure the force against both. Go to the section
	Perkins resisted police who tried to handcuff him after his arrest, and was charged with resisting police.	Arrest alone does not justify handcuffs; some further circumstance, such as a risk of escape, is needed.
Perkins v County Court of Victoria & Ors [2000] VSCA 171 Victorian Court of Appeal Facts: After arresting Perkins, police tried to handcuff him. He resisted and was charged with resisting police in the course of their duty. Whether the officers were entitled to handcuff him came before the Court of Appeal. Issue: Are police entitled to handcuff a person merely because he has been arrested? Decision: The Court of Appeal reasons state there is no general rule that an arrested person must be handcuffed. Police may take proper precautions, but the right to handcuff needs some further circumstance, such as a need to prevent escape, a further offence, or danger to people or property. Without that justification, officers trying to handcuff would not be acting in the course of their duty, and the person resisting them would not commit the offence charged. Victorian courts apply it. But the right to handcuff must be found in some additional circumstance, such as the necessity to prevent the prisoner's escaping; or committing some further offence; or endangering the safety of persons or property. A judge of the Court of Appeal, at [44] Use it. Force paragraph: if handcuffs were used, identify the further circumstance; without one, the officer may not be on duty. Go to the section
	Officers stayed in a garage after being told to leave; one was struck while producing his warrant card.	Police who stay on premises after being told to leave are trespassers and are not performing their duty.
Davis v Lisle [1936] 2 KB 434 English court · persuasive only Facts: Two officers saw a lorry obstructing the road outside a garage. When it was moved inside, they entered the garage to ask who was responsible. They were told to leave, and as one officer produced his warrant card, he was struck. The man was convicted of assaulting and obstructing police in the execution of duty. Issue: Were officers who stayed on private premises after being told to leave still acting in the course of their duty? Decision: The Divisional Court quashed both convictions. The officers entered lawfully, but once told to leave they became trespassers. Producing a warrant card asserted a right to stay that they did not have. They were therefore not acting in the course of their duty. Victoria applies the principle: police unlawfully arresting, detaining or trespassing exceed their authority and are not on duty. Persuasive only in Victoria. Use it. Unlawful-arrest paragraph: police acting beyond their authority are not on duty, so an offence needing an officer on duty fails. Go to the section
	Wilson was charged with assault with intent to resist lawful apprehension; was an unlawful apprehension enough?	Assault to resist apprehension needs an apprehension that was lawful, or would have been.
R v Wilson [1955] 1 All ER 744 English court · persuasive only Facts: Wilson was charged with assault with intent to resist lawful apprehension, under an English provision like s 31(1)(c). The case raised whether the offence is committed where the apprehension resisted was not lawful. Issue: Can a person be guilty of assault with intent to resist lawful apprehension if the apprehension was unlawful? Decision: The court held that the offence requires a lawful apprehension. Victorian law takes the same view of s 31(1)(c): the apprehension or detention resisted must have been lawful, or would have been. So the lawfulness of the arrest is an element the prosecution must prove. If the arrest was unlawful, the charge fails, and the accused’s resistance may be self-defence. Persuasive only in Victoria. Use it. Section 31(1)(c) paragraph: prove the arrest was lawful first; an unlawful arrest defeats this charge. Go to the section
	Plain-clothes officers held a schoolboy’s arm to question him; the boys struggled and were convicted of assaulting police.	Holding someone without arresting them is an assault; reasonable resistance to it is lawful self-defence.
Kenlin v Gardiner [1967] 2 QB 510 Divisional Court (England) · persuasive only Facts: Two 14-year-old schoolboys were calling at houses to remind teammates of a rugby match. Two plain-clothes officers grew suspicious. The boys did not believe they were police; one made to run, and an officer held his arm. The boys struggled, punching and kicking, and were convicted of assaulting police acting in their duty. Issue: May a person use force to resist police who detain him without arresting him? Decision: The Divisional Court (Lord Parker CJ, Winn LJ and Widgery J) quashed the convictions. Winn LJ held the officers held the boys not as a step in arresting them, but to keep them for questioning. That was “a technical assault”, so the boys could defend themselves. Self-defence cannot justify resisting force that is lawful, such as a lawful arrest. In Victoria, run the resistance as self-defence under s 322K. Persuasive only in Victoria. That is subject to this, that if the self-defence, in this case self-defence by the two boys against a prior assault such as had been committed, in a technical sense, by the police officers taking hold of an arm of each of these boys, was self-defence against an assault which was justified in law, as, for instance, a lawful arrest, then in law self-defence cannot afford justification for assault in resistance to justified assault by police officers. Winn LJ, at 518 Use it. Resistance paragraph: if police detained without a lawful arrest, run the accused’s resistance as self-defence under s 322K. Go to the section
	The DPP appealed in a case raising whether police held two suspects beyond a reasonable time.	Reasonable time under s 464A turns on why detention lasted as long as it did, not length alone.
DPP v Hollis & Hull [2019] VSCA 110 Victorian Court of Appeal Facts: The Director of Public Prosecutions appealed to the Court of Appeal in a prosecution of two accused, known by pseudonyms. Whether their time in police custody exceeded a reasonable time under s 464A was in issue. Issue: How does a court decide whether custody lasted longer than a reasonable time under s 464A? Decision: The Court of Appeal held that the length of detention, alone, says little about whether it was reasonable. The court asks why the detention continued as long as it did, measured against the s 464A(4) matters. These include transport, the number and complexity of offences, preparation, other suspects, waiting for a lawyer or interpreter, medical attention and rest. Each period of custody needs an explanation. The wide variety of potentially relevant circumstances highlights the fact that the length of the period of detention, by itself, is likely to shed little light on the question of reasonableness. Rather, the inquiry must be directed at understanding why the detention continued for as long as it did and whether — having regard to the sub-s (4) factors — the period of detention was reasonable. The Court of Appeal, at [10] Use it. Custody paragraph: list what police did in each period of detention and test each against the s 464A(4) matters. Go to the section
	Two accused were convicted on police evidence of confessions made in custody, which they disputed.	A disputed custodial confession without reliable corroboration requires a warning about the danger of convicting on it.
McKinney v The Queen (1991) 171 CLR 468 High Court of Australia Facts: McKinney and Judge each appealed to the High Court against conviction. In each case the prosecution relied on police evidence of a confession made in custody. The accused disputed that the confession was made. Issue: Must a jury be warned before convicting on a disputed confession said to have been made in police custody without reliable corroboration? Decision: A majority (Mason CJ, Deane, Gaudron and McHugh JJ) held that the judge must warn the jury of the danger of convicting on a confession allegedly made in police custody that is disputed and not reliably corroborated. Raising a doubt about police evidence of a confession is a heavy practical burden, since it implies police perjury. The “isolation and powerlessness” of a suspect in custody make both fabrication and false confession possible. In Victoria, s 464H now makes an unrecorded admission in an indictable case inadmissible unless exceptional circumstances justify it. Once it is accepted that a record of interview may be fabricated, it must also be accepted that the atmosphere, including the isolation and powerlessness of a suspect held in police custody, which allows for its fabrication may also be conducive to the suspect signing a false document. Mason CJ, Deane, Gaudron and McHugh JJ, at [15] Use it. Policy answer: use it to explain why ss 464G and 464H require custodial admissions to be recorded. Go to the section

Statutes at a glance

Statutes at a glance (45)

Section	What it says	Use it
s 457Crimes Act	No person to be arrested without warrant except under this Act etc. “no person shall be arrested without warrant except pursuant to the provisions of— (a) this Act; or (b) some other Act expressly giving power to arrest without warrant.”	Requires a statutory source for every arrest without a warrant. The arrester must point to a power in this Act or another Act. → The power to arrest without warrant: ss 457–459
s 458Crimes Act	Person found committing offences may be arrested without warrant by any person (1)(a)“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” (3)“shall be held in the custody of the person apprehending him only so long as any reason referred to in the said paragraph for his apprehension continues”	Gives any person a power of arrest in three situations. For a purely summary offence, custody lasts only while the reason for arrest continues. → Any person: s 458
s 459Crimes Act	Powers of police officer or protective services officer to apprehend offenders (1)(a)“he believes on reasonable grounds has committed an indictable offence in Victoria (including any indictable offence which may be heard and determined summarily)” (2A)“may only exercise the power to apprehend without warrant under this section in relation to a person who is at, or in the vicinity of, a designated place”	Lets police arrest without warrant a person the officer “believes on reasonable grounds has committed an indictable offence”, including one triable summarily. → Police and protective services officers: s 459
s 462Crimes Act	Definition of finds committing “extends to the case of a person found doing any act or so behaving or conducting himself or in such circumstances that the person finding him believes on reasonable grounds that the person so found is guilty of an offence”	Extends “finds committing” in s 458(1)(a) to an arrester who “believes on reasonable grounds” that the person found “is guilty of an offence”. → Any person: s 458
s 461Crimes Act	Arrest on reasonable grounds not to be taken to be unlawful (1)“the apprehension shall not cease to be lawful or be taken to be unlawful where it subsequently appears or is found that the person apprehended did not commit the offence alleged” (2)“if the police officer believes on reasonable grounds that proceedings can effectively be brought against that person by way of summons or notice to appear”	Keeps an arrest made under “a belief on reasonable grounds” lawful though the person did not commit the offence. Police may proceed by summons instead. → Arrest of the wrong person: s 461
s 462ACrimes Act	Use of force to prevent the commission of an indictable offence “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”	Authorises force “not disproportionate to the objective” to prevent an “indictable offence” or effect “the lawful arrest” of a person. It gives no arrest power. → Force to arrest or to prevent an offence: s 462A
s 322KCrimes Act	Self-defence (2)“the person believes that the conduct is necessary in self-defence; and (b) the conduct is a reasonable response in the circumstances as the person perceives them” (3)“This section only applies in the case of murder if the person believes that the conduct is necessary to defend the person or another person from the infliction of death or really serious injury.”	Unlike s 462A, the belief need not be reasonable, but on murder the feared harm must be “death or really serious injury”. → Section 462A and self-defence under s 322K
s 138Evidence Act	Exclusion of improperly or illegally obtained evidence (1)“is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained” (3)(d)“the gravity of the impropriety or contravention”	Excludes evidence obtained “improperly or in contravention of an Australian law” unless the case for admitting it prevails. Arrest and custody breaches can engage it. → Interview safeguards
s 456AACrimes Act	Requirement to give name and address (1)“may request a person to state his or her name and address if the police officer or the protective services officer believes on reasonable grounds that the person” (2)“must inform the person of the grounds for his or her belief in sufficient detail to allow the person to understand the nature of the offence or suspected offence”	Lets police request a name and address short of arrest, giving their grounds. Refusing is an offence. It confers no power to detain. → The power to arrest without warrant: ss 457–459
s 459ACrimes Act	Entry and search of premises (1)“enter and search any place where the police officer on reasonable grounds believes him to be” (2)“a police officer may, if it is necessary to do so, use reasonable force”	Lets police enter and search a place to arrest someone for a “serious indictable offence” or escape from custody, using “reasonable force” if needed. → Entry and search to arrest: s 459A
s 464ICrimes Act	No power to detain person not under arrest “Nothing in sections 464 to 464H (except as provided by an order made under section 464B(5)) confers a power to detain against his or her will a person who is not under arrest.”	Denies police any power under the custody provisions to hold a person not under arrest. A volunteer stays free to leave. → After arrest: custody and questioning
s 31Crimes Act	Assaults (1)(b)“assaults or threatens to assault, resists or intentionally obstructs an emergency worker on duty” (1)(c)“assaults or threatens to assault a person with intent to resist or prevent the lawful apprehension or detention of a person”	Creates offences of assaulting or obstructing police “on duty” and of assault to resist “the lawful apprehension” of a person. An unlawful arrest defeats both. → When the arrest is unlawful
s 322ICrimes Act	Onus of proof (2)“the prosecution has the legal onus of proving beyond reasonable doubt that the accused did not carry out the conduct in self-defence”	Once the accused points to evidence of self-defence, the prosecution must disprove it “beyond reasonable doubt”. → When the arrest is unlawful
s 322LCrimes Act	Self-defence does not apply to a response to lawful conduct “Section 322K does not apply if— (a) the person is responding to lawful conduct; and (b) at the time of the person’s response, the person knows that the conduct is lawful.”	Bars self-defence where the accused responds to lawful conduct, such as a lawful arrest, knowing it is lawful. → When the arrest is unlawful
s 464ACrimes Act	Detention of person in custody (1)“Every person taken into custody for an offence (whether committed in Victoria or elsewhere) must be— (a) released unconditionally; or (b) released on bail; or (c) brought before a bail justice or the Magistrates’ Court— within a reasonable time of being taken into custody.” (3)“an investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence”	Requires release, or production before a bail justice or court, “within a reasonable time”. Questioning may occur within it, after the caution. → After arrest: custody and questioning
s 464BCrimes Act	Questioning or investigation of person already held for another matter (5)“order the transfer of the custody of the person who is the subject of the application to the applicant for the purpose of questioning or investigation for a maximum period of time specified in the order”	Lets a court transfer a person held for another matter to police for questioning. Such an order is the one exception in s 464I. → After arrest: custody and questioning
s 464Crimes Act	Definitions (1)(b)“under lawful arrest under section 458 or 459 or a provision of any other Act” (1)(c)“if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence”	Defines “in custody”: “under lawful arrest”, or being questioned by an official who has enough information to justify arrest. That status triggers the safeguards. → After arrest: custody and questioning
s 464CCrimes Act	Right to communicate with friend, relative and legal practitioner (1)(b)“may communicate with or attempt to communicate with a legal practitioner” (1)“the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication”	Requires police to tell the person they may contact a friend or relative and a lawyer, and to defer questioning, unless a listed exception applies. → Interview safeguards
s 464DCrimes Act	Right to an interpreter (1)“an investigating official must, before any questioning or investigation under section 464A(2) commences, arrange for the presence of a competent interpreter and defer the questioning or investigation until the interpreter is present”	Requires an interpreter, and deferred questioning, when the person’s English is not enough to understand the questioning. → Interview safeguards
s 464ECrimes Act	Persons under 18 years (1)(a)“a parent or guardian of the person in custody or, if a parent or guardian is not available, an independent person is present”	Bars questioning a person under 18 unless a parent, guardian or “independent person” is present, subject to the exceptions in s 464E(2). → Interview safeguards
s 464AABCrimes Act	Investigating official to ask whether person in custody is an Aboriginal or Torres Strait Islander person “an investigating official must ask the person whether they are an Aboriginal person or a Torres Strait Islander”	Requires police to ask whether the person is Aboriginal or a Torres Strait Islander, soon after custody begins and before any questioning. → Interview safeguards
s 464FACrimes Act	Victorian Aboriginal Legal Service to be notified if Aboriginal person or Torres Strait Islander taken into custody (1)“An investigating official must notify VALS if— (a) a person is taken into custody; and (b) either— (i) the person states (whether or not in response to a question asked by an investigating official) that they are an Aboriginal person or a Torres Strait Islander” (2)“The notification must be made— (a) within one hour of the person being taken into custody; or (b) if it is not practicable to do so within one hour, as soon as it is practicable to do so.”	Requires police to notify VALS within an hour, if practicable, of an Aboriginal or Torres Strait Islander person’s custody. No lawyer need attend the interview. → Interview safeguards
s 464GCrimes Act	Recording of information required to be given to person in custody (1)“must record (by audio recording or audiovisual recording), if practicable, the giving of that information and the person’s responses, if any”	For an “indictable offence”, requires an audio or audiovisual record, if practicable, of the caution, the s 464C and s 464F information, and the responses. → Interview safeguards
s 464HCrimes Act	Recording of confessions and admissions (1)“is inadmissible as evidence against the person in proceedings for an indictable offence unless” (2)“if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances— (a) are exceptional; and (b) justify the reception of the evidence.”	Makes an unrecorded confession or admission by a suspect “inadmissible” on an indictable charge, unless the circumstances “are exceptional” and justify admitting it. → Interview safeguards
s 464JCrimes Act	Right to remain silent etc. not affected (a)“the right of a person suspected of having committed an offence to refuse to answer questions or to participate in investigations” (d)“the discretion of a court to exclude illegally or improperly obtained evidence”	Preserves the right to refuse to answer questions and the court’s discretion to exclude “unfairly obtained evidence” or “illegally or improperly obtained evidence”. → Interview safeguards
s 139Evidence Act	Cautioning of persons (1)“evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if” (1)(c)“before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence”	Treats a statement made under arrest, without a caution from an official able to arrest, as “obtained improperly”, so s 138 applies. → Interview safeguards
s 4Bail Act	Entitlement to bail “is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act”	Gives an accused held in custody an entitlement to bail unless the Act requires refusal. → Bail
s 3Bail Act	Definitions “bail decision maker means any of the following empowered under this Act to grant bail, extend bail, vary the amount of bail or the conditions of bail or revoke bail— (a) a court; (b) a bail justice; (c) a police officer”	Defines the “bail decision maker”: a court, a bail justice or a police officer, among others. → Bail
s 13Bail Act	Treason, murder, certain other offences (2)“Only the Supreme Court, or a court on committing the person for trial, may grant bail to a person accused of murder.” (3)“Only a court may grant bail— (a) to a person accused of a Schedule 1 offence”	Reserves bail for murder to the Supreme Court or a committing court, and bail for a Schedule 1 offence to a court. → Bail
s 4AABail Act	When 2 step tests apply (1)“The step 1—exceptional circumstances test applies to a decision of whether to grant bail to a person accused of a Schedule 1 offence.” (3)“The step 1—show compelling reason test applies to a decision of whether to grant bail to a person accused of a Schedule 2 offence if subsection (2) does not apply.”	Picks the step 1 test from the charge: “exceptional circumstances” for Schedule 1, “compelling reason” for Schedule 2. Offending on bail can raise the test. → Bail
s 4ABail Act	Step 1—exceptional circumstances test (1A)“The bail decision maker must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.” (2)“The accused bears the burden of satisfying the bail decision maker as to the existence of exceptional circumstances.”	Requires refusal of bail unless the accused shows “exceptional circumstances” that justify bail; if shown, the unacceptable risk test follows. → Bail
s 75ACrimes Act	Armed robbery (1)“A person is guilty of armed robbery if he commits any robbery and at the time has with him a firearm, imitation firearm, offensive weapon, explosive or imitation explosive”	Armed robbery is a Bail Act Schedule 1 offence. The accused must clear the step 1 test in Bail Act s 4A. → Bail
s 77Crimes Act	Aggravated burglary (1)“A person is guilty of aggravated burglary if the person commits a burglary and” (1)(a)“at the time has with them any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive”	Aggravated burglary is a Bail Act Schedule 1 offence. The accused must clear the step 1 test in Bail Act s 4A. → Bail
s 16Crimes Act	Causing serious injury intentionally “A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence.”	Causing serious injury intentionally is a Bail Act Schedule 2 offence. The step 1 test is in Bail Act s 4C, unless s 4AA(2) applies. → Bail
s 4CBail Act	Step 1—show compelling reason test (1A)“The bail decision maker must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.” (2)“The accused bears the burden of satisfying the bail decision maker as to the existence of a compelling reason.”	Requires refusal of bail unless the accused shows a “compelling reason” that justifies bail; if shown, the unacceptable risk test follows. → Bail
s 4DBail Act	When unacceptable risk test applies (b)“on a decision of whether to grant bail to which, under section 4AA, neither the step 1—exceptional circumstances test nor the step 1—show compelling reason test applies”	Applies the unacceptable risk test after a step 1 test is passed, or directly where no step 1 test applies. → Bail
s 4EBail Act	All offences—unacceptable risk test (1)“A bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that” (2)(b)“that the risk is an unacceptable risk (whether because of section 4F or otherwise)”	Requires refusal of bail where the prosecutor satisfies the decision maker of a listed risk and “that the risk is an unacceptable risk”. → Bail
s 3AAABail Act	Surrounding circumstances (1)“the bail decision maker must take into account all the circumstances that are relevant to the matter including, but not limited to, the following” (1)(b)“the strength of the prosecution case”	Lists the “surrounding circumstances” the decision maker must take into account, including the offence’s seriousness, the strength of the case and criminal history. → Bail
s 3ABail Act	Determination in relation to an Aboriginal person (1)“a bail decision maker must take into account (in addition to any other requirements of this Act) any issues that arise due to the person’s Aboriginality” (1)(b)“the risk of harm and trauma that being in custody poses to Aboriginal people”	For an “Aboriginal person”, requires the decision maker to take into account issues arising from Aboriginality, including over-representation and custody’s risk of harm. → Bail
s 1BBail Act	Guiding principles (1AA)“The Parliament recognises the overarching importance of maximising, to the greatest extent possible, the safety of the community and persons affected by crime.”	States guiding principles for applying the Act. Community safety now has “overarching importance”, alongside “the presumption of innocence and the right to liberty”. → Bail
s 30BBail Act	Offence to commit indictable offence while on bail “An accused on bail must not commit an indictable offence while on bail.”	Makes committing an “indictable offence” while on bail an offence again. Charging it can bring the compelling reason test under s 4AA(4A). → Bail
s 4FBail Act	Risks that are unacceptable for persons accused of certain offences (2)“is an unacceptable risk unless the bail decision maker is satisfied that there is a high degree of probability that the accused would not commit an indictable offence referred to in subsection (1)(a) if released on bail”	Where a listed offence is alleged on bail for one, a reoffending risk is unacceptable without a “high degree of probability” against it. → Bail
s 21Charter	Right to liberty and security of person (2)“A person must not be subjected to arbitrary arrest or detention.” (4)“A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention”	Protects liberty against “arbitrary arrest” and requires the reason to be given at the time of arrest. Use it to test police powers. → Writing a strong answer
s 22Charter	Humane treatment when deprived of liberty (1)“All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.”	Requires humane treatment of people in custody; a standard for testing custody and interview protections. → Writing a strong answer
s 25Charter	Rights in criminal proceedings (2)(k)“not to be compelled to testify against themselves or to confess guilt”	Guarantees a person charged freedom from being compelled to “confess guilt”; a standard for testing interview safeguards. → Writing a strong answer

Text quoted from the authorised versions on the Victorian Legislation website: Crimes Act 1958 as at 30 September 2026; Evidence Act 2008 as at 25 March 2024; Bail Act 1977 as at 30 September 2026; Charter of Human Rights and Responsibilities Act 2006 as at 1 June 2022.

The power to arrest without warrant: ss 457–459

RULE. ArrowEvery arrest without warrant needs a statutory power.

Crimes Act 1958 (Vic) s 457
… no person shall be arrested without warrant except pursuant to the provisions of—
(a) this Act; or
(b) some other Act expressly giving power to arrest without warrant.

The Act gives one power to any person (s 458) and a wider power to police (s 459).

Name and address. Short of arrest, a police officer may request a person’s name and address if the officer believes on reasonable grounds that the person has committed, or is about to commit, an offence, or may be able to assist in investigating an indictable offence (s 456AA(1)). The officer must tell the person the grounds for the belief (s 456AA(2)). Refusal, or a false name or address, is a summary offence (s 456AA(3)). The section gives no power to detain.

Any person: s 458

The three situations. Section 458(1) gives any person a power of arrest in three situations.⁴

s 458(1)
(1) Any person, whether a police officer or not, may at any time without warrant apprehend … any person—
(a) 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, namely—
(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;
(b) when instructed so to do by any police officer having power under this Act to apprehend that person; or
(c) he believes on reasonable grounds is escaping from legal custody or aiding or 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.

Finds committing. Section 462 widens “finds committing” in s 458(1)(a).

s 462
In this Act the expression finds committing and any derivative thereof extends to the case of a person found doing any act or so behaving or conducting himself or in such circumstances that the person finding him believes on reasonable grounds that the person so found is guilty of an offence.

The expression “is intended to be given an extended meaning to encompass circumstances beyond actually finding an offender engaged in the relevant act” (see De Moor).⁵

Duration. Section 458(3) limits custody after an arrest under s 458(1)(a).

s 458(3)
(3) A person who has been apprehended without warrant pursuant to the provisions of paragraph (a) in subsection (1) in respect of any offence punishable on summary conviction (not being an indictable offence that may be heard and determined summarily) and taken into custody shall be held in the custody of the person apprehending him only so long as any reason referred to in the said paragraph for his apprehension continues …

For a purely summary offence, if before charge it appears to the arrester that the reason no longer continues, the arrester must release the person (s 458(3)). The rule does not apply to an indictable offence, even one that may be heard summarily.

Police and protective services officers: s 459

The police power. Section 459(1) adds a police power to the s 458 powers.

s 459(1)
(1) … a police officer, or a protective services officer on duty at a designated place, may at any time without warrant apprehend any person—
(a) he believes on reasonable grounds has committed an indictable offence in Victoria (including any indictable offence which may be heard and determined summarily); or
(b) 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 and determined summarily).

Protective services officers. A protective services officer may arrest only a person “who is at, or in the vicinity of, a designated place” (s 459(2A)), and must hand the person to police “as soon as practicable after the person is arrested” (s 459(2)).

Entry and search to arrest: s 459A

Entry. Section 459A(1) adds a power of entry.

s 459A(1)
(1) A police officer may, for the purpose of arresting under section 458 or 459 or any other enactment a person whom he—
(a) believes on reasonable grounds—
(i) to have committed in Victoria a serious indictable offence;
…
(iii) to be escaping from legal custody; or
(b) finds committing a serious indictable offence—
enter and search any place where the police officer on reasonable grounds believes him to be.

The officer “may, if it is necessary to do so, use reasonable force” (s 459A(2)).

Belief on reasonable grounds

RULE. Keyring“Reasonable grounds” requires “the existence of facts which are sufficient to induce that state of mind (e.g. belief, suspicion) in a reasonable person” (see George v Rockett).⁶

Two parts. The arrester “must believe that the person being arrested has committed an indictable offence”, and the belief “must be based on facts that would induce that state of mind in a reasonable person” (see Slaveski).⁷

Belief, not suspicion. “Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition” (George v Rockett). Belief “is a more certain state of mind than suspicion” (see George v Rockett).⁸ “Suspicion is not enough to justify an arrest without warrant” (see Slaveski).

Objective support. “There must be objective support for the belief. There can be an element of surmise or conjecture” (see George v Rockett and Prior v Mole).⁹

A particular offence. The arrester “must have believed that a particular indictable offence occurred, and not simply any indictable offence generally” (see Vollmer).¹⁰

The wrong basis. “While the primary focus of arrest powers is the person’s subjective belief, it is possible for an arrest to be valid where the person has a lawful basis for the arrest, but mistakenly relies on an unlawful basis” (see James).¹¹

Application. An officer sees a man trying the doors of parked cars and thinks he might be up to something. That is at most a suspicion, and it points to no particular indictable offence. The arrest is not lawful under s 459 (Slaveski; Vollmer).

Arrest of the wrong person: s 461

RULE. TwistSection 461(1) protects an arrest of the wrong person.¹²

s 461(1)
(1) Where an apprehension is made under a belief on reasonable grounds in accordance with the provisions of section 458 or section 459 the apprehension shall not cease to be lawful or be taken to be unlawful where it subsequently appears or is found that the person apprehended did not commit the offence alleged.

What s 461 protects. The section protects only an arrest made on such a belief. It does not supply a belief that was absent or a ground that was unreasonable.

A lawful arrest at common law: liberty, notice and the true reason

RULE. ChecklistThe common law “still dictates the process of a lawful arrest” (see Slaveski).¹³ The requirements are:

“The other person was deprived of his or her liberty”;
“The accused informed the other person that he or she was under arrest”; and
“The accused informed the other person of the reason for the arrest”.

What an arrest is. “A person is arrested when police make it plain to him or her that he or she is not free to leave” (see Lavery).¹⁴ Whether there is an arrest is a question of fact. It turns on whether the person was deprived of liberty, not on whether the arrest was lawful (Michaels v The Queen (1995) 184 CLR 117). A request is an arrest if the circumstances convey “that the suspect has no real choice” (Lavery). A person who goes with police by real choice is a volunteer, and police cannot detain a volunteer (s 464I). The lawfulness of a detention can change over time (Michaels).

Deprivation of liberty

Words can be enough. “There is no requirement that the other person be seized or subjected to physical force. There may be an arrest by mere words” (see Alderson v Booth).¹⁵ Liberty is sufficiently restrained “if the other person submits to the arrester’s control after the arrester has indicated his or her intention to effect the arrest” (see Slaveski). “If the other person does not comply, the deprivation of liberty must be formalised by the accused touching the other person” (see Sandon v Jervis).¹⁶

Notice of the arrest

Reasonable steps. The arrester “must do everything that a reasonable person in the circumstances would do to inform the person being arrested that they are under arrest” (see Stafford).¹⁷ The person “must comprehend that they are acting under compulsion and not voluntarily” (see Alderson v Booth).¹⁸

The reason, and the true reason

The reason. The arrester must inform the person, “at the time of the arrest, of the offence or facts constituting an offence, for which they are being arrested” (see Christie v Leachinsky).¹⁹ The reason “does not need to be communicated using technical or precise language” (see Christie v Leachinsky).

The true reason. “The reason given must be the true reason. A person cannot keep the reason for arrest to himself or herself, or give a reason which is not the true reason” (see Christie v Leachinsky). “An arrest for the mere purpose of questioning is unlawful” (see Bales v Parmeter).²⁰

The excusing circumstances

When notice may wait. The arrester is excused from informing the person immediately:²¹

“if the other person resists arrest or absconds” (see Christie v Leachinsky);
“if the circumstances of the arrest are such that the offence or reason for arrest is apparent to the other person” (see Christie v Leachinsky); or
“if the other person is unable to understand the reason because of disability, intoxication or lack of English language skills, as long as the accused does all that a reasonable person would do in such circumstances” (see Tims).²²

The earliest reasonable opportunity. Even then, the arrester “must inform the person being arrested of the reason for the arrest at the earliest reasonable opportunity” (see Christie v Leachinsky).²³

An apparent reason. For the second exception, “the focus must be on the circumstances of the arrest itself, rather than the subjective knowledge of the arrested person” (see Delly).²⁴ “The prosecution must show that, in the circumstance, the other person must have known the reason for the arrest” (see Delly).²⁵

Application. An officer who tells a woman she is under arrest for unpaid fines, when the officer’s purpose is to question her about a burglary, gives a reason that is not the true reason. The arrest is likely unlawful (Christie v Leachinsky).²⁶

Force to arrest or to prevent an offence: s 462A

RULE. ChecklistSection 462A authorises force for two purposes.

s 462A
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.

The three elements. The authorisation has three elements (Gebrehiwot):²⁷

“The accused believed that the use of force was necessary for the relevant objective”;
“The accused’s belief was based on reasonable grounds”;
“The use of force was not disproportionate to the relevant objective”.

The two objectives. The relevant objective is either “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” (s 462A).²⁸ The prevention limb is confined to “an indictable offence”; the arrest limb extends to “any offence” (s 462A). The prevention limb “is independent of the use of force to effect an arrest” (see Slaveski).²⁹

No power of arrest. “Section 462A of the Crimes Act does not confer a power of arrest, it merely provides that proportionate force may be used to effect an arrest. The lawful power of arrest must be derived from either section 458 or section 459” (see Slaveski).³⁰

Force follows the power. “The right to use force only authorises using the amount of force reasonably necessary to carry out the arrest” (see Turner).³¹ The force must not be disproportionate to the “evil to be prevented” (Turner).

Proportionality. The third element “is assessed objectively. It does not require a fine-grained analysis” (see Gebrehiwot).³² The acts “must not be out of proportion to the peril to be avoided” (Gebrehiwot). The test “will require some assessment of alternative options, both considered by the accused and which the accused did not consider” (see Gebrehiwot).³³ The jury must be reminded “Not to judge these matters with the wisdom of hindsight” and to “Take into account the exigencies of the moment and the dynamic nature of the circumstances” (see Gebrehiwot).³⁴

The offence and the response. “An arrest for a minor offence, which does not involve violence, involves different considerations for the purpose of proportionality compared to an arrest for a more serious offence” (see Brown).³⁵

Handcuffs. An arrest alone does not justify handcuffs. The right to handcuff needs some further circumstance, such as a need to prevent escape (Perkins v County Court of Victoria [2000] VSCA 171, [44]).

Excess force. “Use of force beyond that permitted by s 462A will take the police outside the scope of their duty” (see James).³⁶

Section 462A and self-defence under s 322K

Self-defence. “Unlike common law self-defence, s 322K does not require the accused’s belief in necessity to be based on reasonable grounds”.³⁷ On a murder charge, s 322K(3) adds a threshold.³⁸

s 322K(3)
(3) This section only applies in the case of murder if the person believes that the conduct is necessary to defend the person or another person from the infliction of death or really serious injury.

The difference. Section 462A requires the belief to rest on reasonable grounds; s 322K does not, though the conduct must be “a reasonable response in the circumstances as the person perceives them” (s 322K(2)(b)). But s 462A “does not require that the threat be one of death or really serious injury”.³⁹ An officer charged with murder who killed in response to a perceived threat short of death or really serious injury therefore cannot rely on s 322K, but might rely on s 462A if the force was not “disproportionate to the objective”.⁴⁰

When the arrest is unlawful

RULE. Twist“Members of the police force who are unlawfully arresting a person, unlawfully detaining a person or trespassing on a person’s property are acting in excess of their authority and so are not acting in the execution of their duty” (see Davis v Lisle).⁴¹

Assault on an officer on duty. Section 31(1)(b) covers a person who “assaults or threatens to assault, resists or intentionally obstructs an emergency worker on duty or a youth justice custodial worker on duty, or a custodial officer on duty, knowing or being reckless as to whether the person is an emergency worker or a youth justice custodial worker or a custodial officer”. A police officer making an unlawful arrest, or using force beyond s 462A, is not on duty (James v The King [2025] VSCA 140, [160]). So the lawfulness of the arrest decides both s 31(1)(b) and s 31(1)(c).

Assault to resist a lawful arrest. Section 31(1)(c) covers a person who “assaults or threatens to assault a person with intent to resist or prevent the lawful apprehension or detention of a person”. “A person can only be found guilty under this sub-section if the apprehension or detention was, or would have been, lawful” (see Wilson).⁴²

Resisting an unlawful arrest. If an attempted arrest is unlawful, or the officer is not acting in the execution of duty, the person may resist it. Such resistance can be a defence to a charge (Kenlin v Gardiner).⁴³ In Victoria, run it as self-defence under s 322K. Did the accused believe the conduct was necessary? Was it “a reasonable response in the circumstances as the person perceives them” (s 322K(2)(b))? Once the accused points to evidence of self-defence, the prosecution must disprove it beyond reasonable doubt (s 322I). Section 322K does not apply to a response to lawful conduct that the person knows is lawful (s 322L).

A mistaken belief that the arrest is unlawful. The accused “can submit that he/she/they acted in self-defence due to an honest but mistaken belief that the arrest was unlawful” (see Thomas). But contrary authority exists (Fennel; De Moor).⁴⁴

The arrester as accused. Where the arrester is charged with assault or false imprisonment, lawful arrest goes to the “without lawful excuse” element. A lawful arrest under s 458(1)(a) has seven components, and “the prosecution must disprove at least one of these seven components of a lawful arrest”.⁴⁵

Application. A man who pushes away an officer who has arrested him only to question him likely commits no offence under s 31(1)(c), because the arrest is unlawful (Wilson).⁴⁶ His push is lawful if it is self-defence under s 322K (Kenlin v Gardiner).

After arrest: custody and questioning

RULE. Section 464A(1) limits custody.

s 464A(1)
(1) Every person taken into custody for an offence (whether committed in Victoria or elsewhere) must be—
(a) released unconditionally; or
(b) released on bail; or
(c) brought before a bail justice or the Magistrates' Court—
within a reasonable time of being taken into custody.

Questioning after arrest. After arrest, police often question the person or conduct forensic examinations, “but they may not detain a person purely for such purposes”.⁴⁷ That limit goes to the purpose of the arrest: police may not arrest a person merely to question them (Bales v Parmeter). Once a person is lawfully in custody, an investigating official may “question the person or carry out investigations in which the person participates” within the reasonable time (s 464A(2)). Section 464I adds a related limit.

s 464I
Nothing in sections 464 to 464H (except as provided by an order made under section 464B(5)) confers a power to detain against his or her will a person who is not under arrest.

In custody. A person is “in custody” if under lawful arrest. A person not under arrest is also in custody while with an investigating official who is questioning or investigating them, if the official holds “sufficient information … to justify the arrest” (s 464(1)(c)). Police still cannot detain that person (s 464I).

A reasonable time. Section 464A(4) lists the matters that fix a reasonable time. They include the time needed to reach a bail justice or court, the number and complexity of offences, preparation, transport, other suspects, time to contact or await a lawyer, interpreter or independent person, medical attention, rest, and the total time with police. Length alone decides little. Ask why the detention lasted as long as it did, against the s 464A(4) matters (DPP v Hollis & Hull [2019] VSCA 110, [10]). A detention that was lawful can become unlawful when the reasonable time runs out (Michaels).

The caution. Section 464A(3) requires a caution before questioning.

s 464A(3)
(3) Before any questioning (other than a request for the person's name and address) or investigation under subsection (2) commences, an investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence.

Interview safeguards

RULE. Before any questioning or investigation under s 464A(2), the investigating official must give the caution and meet the duties in ss 464C to 464FA.

Friend, relative and lawyer. The official must tell the person they may communicate with a friend or relative and with a legal practitioner. The official must then “defer the questioning and investigation for a time that is reasonable in the circumstances” (s 464C(1)). The duty to defer does not apply if the official believes on reasonable grounds that contact would let an accomplice escape or evidence be fabricated or destroyed, or that the questioning or investigation is too urgent, for the safety of others, to delay (s 464C(1)(c)–(d)). Section 464C does not apply at all to questioning about an offence under s 49(1) of the Road Safety Act 1986 (s 464C(4)).

Interpreter. If the person’s English is not sufficient to understand the questioning, the official must arrange “a competent interpreter” and defer questioning until the interpreter is present (s 464D(1)).

A person under 18. A parent or guardian, or else an independent person, must be present, unless an exception in s 464E(2) applies (s 464E(1)).

Aboriginal and Torres Strait Islander people. The official must ask whether the person is Aboriginal or a Torres Strait Islander, before any questioning (s 464AAB). If so, the official must notify VALS “within one hour of the person being taken into custody”, or as soon as practicable (s 464FA(2)). The Act requires notice to VALS. It does not require a lawyer at the interview.

Recording. For an indictable offence, the official must record, if practicable, the giving of the information required by ss 464A(3), 464C(1) and 464F(1) and the person’s responses (s 464G(1)). That covers the caution, the right to contact a friend, relative or lawyer and, for a person who is not an Australian citizen or permanent resident, the right to contact a consular office. In proceedings for an indictable offence, a confession or admission by a suspect is “inadmissible” unless it, or its confirmed substance, was recorded (s 464H(1)). A court may still admit it if the circumstances “are exceptional” and justify it (s 464H(2)).

Silence. Nothing in these sections affects the right to refuse to answer questions, or a court’s discretion to exclude unfairly, illegally or improperly obtained evidence (s 464J).

The consequence of a breach. A breach seldom excludes evidence automatically. Section 464H(1) is the exception. Otherwise, use the Evidence Act 2008 (Vic). Evidence obtained improperly or in breach of an Australian law is not admitted unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in that way (s 138(1)). Weigh the s 138(3) matters, such as the gravity of the impropriety and whether it was deliberate or reckless. An answer to questioning after arrest, given without the caution, is taken to have been obtained improperly (s 139(1)). An unlawful arrest, detention beyond a reasonable time, or a breach of ss 464C to 464FA can each ground a s 138 argument.

Charge

RULE. A charge is a formal allegation that the accused committed an offence. Arrest is not needed to charge.

The charge sheet. Police record the charge on a charge sheet. It goes to the accused, and to the court or a bail justice. Police may also release a person without charge, and charge later.

Summons instead of arrest. A police officer “shall not be bound to take into custody” a person found committing an offence if the officer believes on reasonable grounds that “proceedings can effectively be brought against that person by way of summons or notice to appear” (s 461(2)).

The decision to prosecute. Under the Policy of the Director of Public Prosecutions for Victoria, a prosecution may proceed only if there is a reasonable prospect of conviction and it is in the public interest. A victim’s wish to withdraw is one public-interest factor. It does not decide the question.

Bail

RULE. An accused held in custody “is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act” (Bail Act 1977 (Vic) s 4).

Who decides. A court, a bail justice or a police officer may decide bail (s 3). Only the Supreme Court, or a court on committing the person for trial, may grant bail for murder (s 13(2)). Only a court may grant bail for a Schedule 1 offence (s 13(3)).

Step 1: the Schedule. The charge’s Schedule fixes step 1. For a Schedule 1 offence, the accused must show exceptional circumstances (ss 4AA(1), 4A). Schedule 1 includes murder, armed robbery (Crimes Act s 75A), aggravated burglary (Crimes Act s 77), home invasion and carjacking. For a Schedule 2 offence, such as manslaughter or causing serious injury intentionally (Crimes Act s 16), the accused must show a compelling reason (ss 4AA(3), 4C). The exceptional circumstances test applies instead if the Schedule 2 offence is alleged to have been committed while on bail for a Schedule 1 or Schedule 2 offence (s 4AA(2)(c)).

Step 2: unacceptable risk. After step 1, or where no step 1 test applies (s 4D), the prosecutor must satisfy the decision maker of a risk and “that the risk is an unacceptable risk” (s 4E(2)). The decision maker must take into account the surrounding circumstances (s 3AAA). For an Aboriginal person, the decision maker must also take into account the issues in s 3A, including “the risk of harm and trauma that being in custody poses to Aboriginal people” (s 3A(1)(b)).

The 2023 and 2025 reforms. The Bail Amendment Act 2023 (from 25 March 2024) repealed the offences of breaching a bail conduct condition and of committing an indictable offence on bail, and replaced s 3A. The Bail Amendment Act 2025 turned the other way. From 26 March 2025, Parliament recognises “the overarching importance of maximising, to the greatest extent possible, the safety of the community and persons affected by crime” (s 1B(1AA)), and committing an indictable offence on bail is again an offence (s 30B). From 26 August 2025, armed robbery, aggravated burglary, home invasion and carjacking are Schedule 1 offences. The Bail Further Amendment Act 2025 added a “high degree of probability” test for an accused charged with one of those offences while on bail for one of them (s 4F, from 30 September 2025). From 31 March 2026, the compelling reason test also applies to an indictable offence allegedly committed on bail where s 30B is also charged (s 4AA(4A)), unless the exceptional circumstances test applies (s 4AA(4A)(e)). The later offence is excepted if it is “not punishable by a term of imprisonment”, is a Schedule 4 offence, or is a Schedule 5 offence and the prosecutor does not satisfy the bail decision maker that the Schedule 5 threshold is met (s 4AA(4B)–(4C)).

A worked example

Worked example (hypothetical). At 2 am Constable Reid sees Dan climbing out through the smashed rear window of a dark house, holding a laptop. Reid identifies himself and tells Dan to stay where he is. Dan runs. Reid catches him in the street, grips his arm and tells him he is under arrest. Dan swings an elbow at Reid’s face. Reid takes Dan to the ground and handcuffs him, then tells him he is under arrest for burglary. Dan is charged under s 31(1)(c).

Reid had power to arrest Dan under s 459. Reid is a police officer, and burglary is an indictable offence. A smashed window, the hour and a laptop in hand give “objective support for the belief” (see George v Rockett). Reid likely believed on reasonable grounds that Dan had committed a particular offence, burglary (s 459(1)(a); Vollmer).

The arrest met the common law requirements. Dan did not submit, so Reid’s grip on his arm formalised the deprivation of liberty (Sandon v Jervis). Reid said Dan was under arrest. Dan ran, which excused immediate notice of the reason, and Reid likely gave it at the earliest reasonable opportunity (Christie v Leachinsky).

The force was likely within s 462A. Taking Dan to the ground after an elbow to the face is likely force not disproportionate to effecting the arrest (Gebrehiwot). Handcuffs need a further reason beyond the arrest itself (Perkins). Dan’s flight and the elbow likely supply one.

Dan likely committed the s 31(1)(c) offence. The apprehension was lawful when Dan struck at Reid, so the s 31(1)(c) requirement is met (Wilson). An elbow thrown at the moment of arrest likely supports an inference that Dan acted “with intent to resist or prevent the lawful apprehension”.⁴⁸ The arrest was lawful, so Dan cannot say he resisted an unlawful arrest (Kenlin v Gardiner). If he knew it was lawful, s 322K does not apply at all (s 322L).

Conclusion. Dan is likely guilty under s 31(1)(c).

Writing a strong answer

The power first. A strong answer names the arrester’s status and the section, then the class of offence: any person under s 458, police under s 459.

Only the live components. The judge “should only direct on those parts of a lawful arrest which are in issue”.⁴⁹ Give an uncontested component one line.

Likelihood language. Each conclusion states a likelihood, and names the facts that ground a belief rather than a suspicion.

A policy answer. Name each protection by section: ss 464A(3), 464C, 464D, 464H, 464AAB and 464FA for interviews; Bail Act ss 1B, 3A and 3AAA for bail. Then test how well each works. Section 464FA requires notice to VALS, not a lawyer at the interview. Interview risks to weigh include fabricated or pressured admissions (McKinney v The Queen (1991) 171 CLR 468; Kelly v The Queen (2004) 218 CLR 216). Use the Charter of Human Rights and Responsibilities Act 2006 (Vic) (ss 21, 22, 25(2)(k)) and the over-representation of Aboriginal people in custody. Answer the proposal actually asked. Link the topics in the introduction and the conclusion.

Critical pitfalls

Trap. Suspicion treated as belief. “Suspicion is not enough to justify an arrest without warrant” (see Slaveski). See Belief on reasonable grounds.

Show the other 5 traps

Trap. Section 462A treated as a power of arrest. It “does not confer a power of arrest” (see Slaveski). See Force.

Trap. Section 461 run without the belief. It protects only an apprehension “made under a belief on reasonable grounds” (s 461(1)). See Arrest of the wrong person.

Trap. A reason given that is not the true reason. “The reason given must be the true reason” (see Christie v Leachinsky). See The true reason.

Trap. The s 322K murder threshold carried into s 462A. Section 462A “does not require that the threat be one of death or really serious injury”, but it does require reasonable grounds.⁵⁰ See Section 462A and self-defence.

Trap. Resistance to an unlawful arrest charged under s 31(1)(c). The offence requires that the apprehension “was, or would have been, lawful” (see Wilson). See When the arrest is unlawful.

Take it to the practice bank

The Criminal Law practice bank drills this module. Write a focused response and compare it with a concise model. Your drafts and progress save in this browser.

Practice prompts

On a set of facts, name the power of arrest relied on and test each of its statutory requirements.
Run the three common law requirements of a lawful arrest, and say whether an excusing circumstance applies.
Apply the three elements of s 462A to force used during an arrest, weighing the alternatives.
Explain what an unlawful arrest means for a charge under s 31(1)(c) and for the accused’s self-defence.
Test a period in custody against s 464A(4), then check each interview safeguard and say what follows from any breach.
Find the bail test for a charge: its Schedule, the step 1 test and who bears each burden.

Check your understanding

Quick checks. Answer, then see the authority in the feedback. View or export your progress.

Notes

Charge Book 8.14 [6]. ↩
Charge Book 8.14 [6]–[7]. ↩
Slaveski v State of Victoria & Ors [2010] VSC 441; Charge Book 8.14 [4]. ↩
Charge Book 8.14 [8]. ↩
De Moor v Davies [1999] VSC 416; Charge Book 8.14 [11]. ↩
George v Rockett (1990) 170 CLR 104; Walsh v Loughnan [1991] 2 VR 351; James v The King [2025] VSCA 140, [107]. ↩
Charge Book 8.14 [22]. ↩
James, [107]. ↩
Charge Book 8.14 [41]. ↩
R v Vollmer [1996] 1 VR 95; James, [107], [126]. ↩
James, [116]; Warke v Daire [1983] 32 SASR 321; Kershaw v The King [2024] NSWCCA 27, [78]–[80]. ↩
Charge Book 8.14 [20]. ↩
Charge Book 8.14 [48]; the requirements: Charge Book 8.14 [49]. ↩
R v Lavery (1978) 19 SASR 515. ↩
Alderson v Booth [1969] 2 QB 216. ↩
Sandon v Jervis (1859) 120 ER 760. ↩
R v Stafford (1976) 13 SASR 392; Hull v Nuske (1974) 8 SASR 587. ↩
R v O’Donoghue (1988) 34 A Crim R 397. ↩
Christie v Leachinsky [1947] AC 573; Adams v Kennedy (2000) 49 NSWLR 78; R v Tipping [2019] SASCFC 41. ↩
Bales v Parmeter (1935) 35 SR (NSW) 182. ↩
Charge Book 8.14 [60]. ↩
Tims v John Lewis & Co Ltd [1952] AC 676. ↩
Charge Book 8.14 [61]. ↩
State of NSW v Delly (2007) 70 NSWLR 125. ↩
Charge Book 8.14 [62]. ↩
Bales v Parmeter. ↩
Gebrehiwot v Victoria [2020] VSCA 315, [119]; Charge Book 8.14 [39]. ↩
Charge Book 8.14 [40]. ↩
Slaveski, [121]; Charge Book 8.14 [37]. ↩
Charge Book 8.14 [31]. ↩
R v Turner [1962] VR 30. ↩
Gebrehiwot, [110]. ↩
Gebrehiwot, [115]–[116]. ↩
Gebrehiwot, [112], [119]; Charge Book 8.14 [45]. ↩
Brown v State of Victoria (No 3) [2025] VSC 765, [59]–[61]. ↩
James, [160]; Charge Book 8.14 [35]. ↩
Charge Book 8.1 [35]. ↩
Charge Book 8.1 [36]. ↩
Waller & Williams 14.23. ↩
Waller & Williams 14.23. ↩
Davis v Lisle [1936] 2 KB 434; R v Galvin (No 1) [1961] VR 733; Collins v Wilcock [1984] 1 WLR 1172; James, [142]–[143]. ↩
R v Wilson [1955] 1 All ER 744; Galvin (No 1). ↩
Kenlin v Gardiner [1967] 2 QB 510; Bales v Parmeter; Nguyen v Elliott 6/2/1995 SC Vic; Zecevic v DPP (1987) 162 CLR 645; James, [115]. ↩
R v Thomas (1992) 65 A Crim R 269; Kenlin v Gardiner; but cf R v Fennel [1971] 1 QB 428; De Moor v Davies; Charge Book 7.4.9 [40]. ↩
Charge Book 8.14.1. ↩
Bales v Parmeter. ↩
Waller & Williams 2.59. ↩
Charge Book 7.4.9 [37]. ↩
Charge Book 8.14.1. ↩
Waller & Williams 14.23; Charge Book 8.1 [35]. ↩