"Let's Go D'Andrews" Ackland Street PLA Strike - Breadstick Battalion- St Kilda 23/10/21 Melbourne

"Let's Go D'Andrews" Ackland Street PLA Strike - Breadstick Battalion- St Kilda 23/10/21 Melbourne

A person is arrested when police make it plain to him or her that he or she is not free to leave (R v Lavery (1978) 19 SASR 515).

Police powers of arrest provide a lawful excuse for what would otherwise be an unlawful application of force. The defence is therefore most likely to arise in relation to offences such as:
assault (Slaveski v State of Victoria & Ors [2010] VSC 441); and false Imprisonment (Biddle v State of Victoria & Ors [2015] VSC 275).

Section 458 provides three situations in which any person (including a police officer) may arrest a person without a warrant.
Accused finds a person committing an offence (s458(1)(a))

The first situation applies where:
a person (including a police officer) found the other person committing an indictable or summary offence; and
a person (including a police officer) believed on reasonable grounds that apprehension was necessary for one or more of the prescribed reasons (s458(1)(a)).
A person (including a police officer) finds a person committing an offence including when a person (including a police officer) finds a person:
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 (s462).

“Finds committing” is intended to be given an extended meaning to encompass circumstances beyond actually finding an offender engaged in the relevant act (De Moor v Davies [1999] VSC 416).
Section 462 extends the point of discovery of the commission of the offence to encompass:
the actual perpetration of the offence;

finding a person behaving or conducting him or herself so as to create a reasonable belief of guilt; or finding a person in such circumstances so as to create a reasonable belief of guilt (De Moor v Davies [1999] VSC 416; Lynch v Hargrave [1971] VR 99; Lunt v Bramley [1959] VR 313).

A person (including a police officer) must inform the person being arrested, at the time of the arrest, of the offence or facts constituting an offence, for which they are being arrested (Christie v Leachinsky [1947] AC 573; Adams v Kennedy (2000) 49 NSWLR 78; R v Tipping [2019] SASCFC 41).

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 (Christie v Leachinsky [1947] AC 573).
An arrest for the mere purpose of questioning is unlawful (Bales v Parmenter (1935) SR (NSW) 182).

The reason for arrest does not need to be communicated using technical or precise language (Christie v Leachinsky [1947] AC 573).
In these circumstances, a person (including a police officer) must inform the person being arrested of the reason for the arrest at the earliest reasonable opportunity (Christie v Leachinsky [1947] AC 573).

In assessing the second exception described above, the focus must be on the circumstances of the arrest itself, rather than the subjective knowledge of the arrested person. The prosecution must show that, in the circumstance, the other person must have known the reason for the arrest (State of NSW v Delly (2007) 70 NSWLR 125).

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