Arrest 458/459 And 456AA Flashcards
(34 cards)
What is the purpose of placing someone under arrest?
To enable them to be prosecuted.
What are the three main methods of bringing someone to court?
- Arrest without warrant.
- Arrest with warrant.
- Summons.
What is the definition of Arrest?
Arrest is the total restraint of a person for however short a time.
What must happen on the arrest of a person? (3)
They must be told that they are under arrest and what for. The language in telling the accused why they are under arrest does not have to be technical.
Are handcuffs necessary for an arrest? (2)
No, though merely telling a person they are under arrest is not sufficient unless the party submits and goes with the Police Officer. However, if the effect of the words is that the accused feels compelled to submit, there is an arrest.
What is the introduction for Section 458 of the Crimes Act?
Any person, whether a Police Officer or not, may at any time without warrant apprehend and take before a Bail Justice to be dealt with according to law or deliver to a Police Officer to be so taken, any person…
What are the three main headings for Section 458 of the Crimes Act?
- He finds committing any offence (whether an indictable offence or an offence punishable on summary conviction) where he believes on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons (4 sub-sections)
- When instructed to do so by any Police Officer having power under this Act to apprehend that person.
- He believes on reasonable grounds is escaping from legal custody or aiding and abetting another person to escape from legal custody or avoiding apprehension by some person having authority to apprehend that person in the circumstances of the case.
What are the four sub-headings underneath Paragraph (a) of Section 458 of the Crimes Act?
- To ensure the attendance of the offender before a court of competent jurisdiction.
- To preserve Public Order.
- To prevent the continuation or repetition of the offence or the commission of a further offence.
- For the safety or welfare of members of the public or of the offender.
Define “Finds Committing”? (2)
The person arresting must have found the offender either:
- Actually committing the offence.
- Or behaving or conducting himself, or in such circumstances that from that behaviour or conduct or circumstances, he believed he was the offender.
What happens under section 458 when the offender is witnessed by someone who points them out to you?
You have not “found” the offender within the meaning of this section and you cannot arrest him, but the person pointing him out may well be able to exercise his power of arrest if he had found the offender committing, and may hand him over to you under section 458(1).
What is the criteria for exercising arrest under Section 458?
Arrest under section 458 is exercisable under the criteria of CAPS.
- To prevent the CONTINUATION or repetition of the offence or the commission of a further offence.
- To ensure the ATTENDANCE of the offender before a court of competent jurisdiction.
- To preserve PUBLIC order.
- For the SAFETY or welfare of members of the public or of the offender.
What is the Introduction for Section 459 of the Crimes Act 1958? (2)
459(1) In addition to exercising any of the powers conferred by Section 458 or by or under any other Act a Police Officer, or a Protective Services Officer on duty at a designated place, may at any time without warrant apprehend any person…
What are the sub-sections for Section 459 of the Crimes Act 1958? (2)
- He believes on reasonable grounds has committed an indictable offence in Victoria (including any indictable offence which may be heard or determined summarily).
- He believes on reasonable grounds has committed an offence elsewhere which if committed in Victoria would be an indictable offence against the law of Victoria (Including any indictable offence which may be heard or determined summarily).
What is Section 459A?
Power of Entry.
What are the Sections under Section 459A of the Crimes Act 1958?
- A Police Officer may, for the purpose of arresting under section 458 or 459 or any other enactment a person whom he…
- In order to enter a place pursuant to sub-section (1), a Police Officer may, if it is necessary to do so, use reasonable force.
- In this section serious indictable offence has the same meaning as it has in section 325.
What are the sections under sub-section 1 of Section 459A of the Crimes Act 1958?
-Believes on reasonable grounds -
(- to have committed in Victoria a serious indictable offence.
(- to have committed an offence elsewhere which if committed in Victoria would be a serious indictable offence.
(- To be escaping legal custody.
- Finds committing a serious indictable offence (may) -
Enter and search any place where the police officer on reasonable grounds believes him (offender) to be.
How can belief on reasonable grounds be determined?
- Nature of the offence.
- Demeanour of the person arrested.
- Circumstances of the offence.
- Evasiveness or lying when answering questions.
- Any evidence from other persons present indicating the suspect is lying.
What is the test conducted by courts to determine reasonable Belief on the part of Officers?
‘Reasonable Man’ test deduces whether a typical juryman would have drawn the same conclusions from the Officer’s evidence.
What is a Breach of the Peace?
Any disturbance of Public Order involving the threat of violence or harm to property.
What is the common law definition of a Breach of the Peace?
“Wherever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance” (R v. Howell 1981)
What powers does a Breach of the Peace grant Police Officers?
- Power to enter a premises. (Police may enter a home without a warrant on reasonable suspicion that a Breach of the Peace is occurring or about to occur)
- Power to remove items. (Police may temporarily take items/articles from a person if such action is reasonably necessary to prevent a breach of the peace)
- Power to give directions. (Police may direct a person believed to be breaching or likely to breach the peace to leave a particular location)
- Power to restrain or detain. (Less than an arrest, police may use reasonable force to restrain or detain a person where necessary)
Note: There is no power of arrest that is granted under Breach of the Peace.
What is Section 462A of the Crimes Act 1958?
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.
What are the offences that can occur after arrest?
- Rescuing of prisoner from lawful custody. (Section 479A, Indictable, max penalty: 10 years)
- Aiding a prisoner in escaping (IOTS, Possible 5 years maximum)
- Escape and Related offences (IOTS, Possible 5 years maximum escape from Police Prison or Gaol, Any place where he is lawfully detained, maximum penalty: 2 years)
What defines a “person in custody” 464(1)?
A person who is…
- Under lawful arrest by warrant.
- Under lawful arrest under section 458 or 459 or any other act.
- In the company of an investigating official and is being questioned/ to be questioned/ otherwise being investigated to determine his involvement in an offence IF the official could justify the arrest of that person in respect of that offence.
