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The recent sight of Northern Territory politician John Elferink
trying to make a citizen's arrest during a television interview
raises some interesting legal questions.
It just happens Mr Elferink is an ex-policeman with a law
degree. So when a man wandered over from a nearby pub and kicked
Elferink from behind while he was doing a TV interview, it brought
out his judicial instincts.
He grabbed the man and told him he was making a citizen's
arrest and would hold him till police arrived.
The man struggled until another man arrived and helped him
escape. They ran off while the TV crew kept filming. What started
out as a routine local Darwin story hit the national news.
In Sydney last week pub patrons held down an armed robber until
police arrived.
So what is a citizen's arrest? Can we all do it? Is it
wise?
All States have a legal basis to make a citizen's arrest. In
NSW it's under Section 100 of the Law Enforcement (Powers and
Responsibilities) Act 2002. It reads:
A person (other than a police officer) may, without a
warrant, arrest a person if:
the person is in the act of committing an offence under any
Act or statutory instrument, or
the person has just committed any such offence,
or
the person has committed a serious indictable offence for
which the person has not been tried.
A person who arrests another person under this section
must, as soon as is reasonably practicable, take the person, and
any property found on the person, before an authorised officer to
be dealt with according to law.
Police strongly advise people not to even think about doing it
if it could put you or other people in danger. You aren't
entitled to search the detainee or their property. You can use only
"reasonable force" to detain them – force that
is "reasonable" to the situation.
There's also a catch in the law. You can't detain
someone too violently as you have a "duty of care" to the
person you detain. You also have a "duty of care" if you
decide to release a person before police arrive. A juvenile should
only be released into the care of a parent, guardian or police.
Remember - using too much force could result in the detainee
charging you with assault or seeking civil damages. Finally, if the
person you 'arrested' is released without charge, they
might be able to sue you for false imprisonment. Self-defence and
Good Samaritan laws may be a defence, but you can't play cop
and investigate yourself.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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