As reports of multiple people being stabbed in Sydney’s CBD flooded news feeds, busy streets went into lockdown and social media went into overdrive.
And even as the full story unfolded we saw the footage of the alleged assailant being pinned down by members of the public with chairs and a milk crate until the police arrived.
Which immediately raised a bunch of questions. For example: while you might enthusiastically applaud the actions of the brave people who restrained the man, is it legally permissible?
Could they be also be charged? Actually, what happens if I crate someone in the street myself?
And these questions have answers.
Can you even carry out a citizen’s arrest in NSW?
Short answer: yes.
The longer answer is in Section 100 of the Law Enforcement (Powers and Responsibilities) Act 2002: “Power of other persons to arrest without warrant”.
(1) A person (other than a police officer) may, without a warrant, arrest a person if:
(1) A person (other than a police officer) may, without a warrant, arrest a person if:
(a) the person is in the act of committing an offence under any Act or statutory instrument, or
(b) the person has just committed any such offence, or
(c) the person has committed a serious indictable offence for which the person has not been tried.
(2) 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.
…so the people that crated that fellow up were acting within the law to carry out a citizen’s arrest.
But if it turned out that they got the wrong guy (or he’s released without charge) then the person in the crate could sue for unlawful imprisonment or even level assault charges, so you really do want to be pretty confident about the situation.
What can’t you do?
Anything other than detain them until the police arrive, really. You don’t have the right to search them or their property, and you have to ensure that the person is detained but safe. More on that in a second.
The police would also rather you didn’t do citizen’s arrests for the most part, since the chances of you or someone else being hurt in the process are pretty high and on balance they’d rather you didn’t make things more complicated. That includes legally, as you’ll see.
Are you liable if the person you’re detaining gets hurt?
Yes. You have a duty of care for the person you’ve detained, exactly as the police do, and can only use “reasonable force” which is a hard thing for a citizen to estimate – which is another reason why the police don’t like people doing arrests.
Detained people can – and do – sue for civil damages or even allege criminal assault, so it’s a high risk strategy.
Oh, and if you carry out a citizen’s arrest you also have a duty of care if you let them go before the police arrive – so if you do detain someone, commit to doing so until the authorities arrive.
