Classification of Offences & PSO Powers - Crime Act

Classification of Offences

Crimes can be classified into the following categories:

  • Indictable Offences

  • Summary Offences

Importance of correct classification

  • identifying relevant arrest and search powers.

  • to identify available resolutions i.e infringement or handover to police.

  • to identify what paperwork is required.

Summary Offences

Less serious in nature that other offences and are heard and determined in the Magistrates’ Court unless appropriate to be dealt with by issuin an ‘on the spot’ infringement notice. Most offences are summary and are spread throughout the various Acts of Parliament.

Strict Liability Summary Offences

Strict liability offences are offences for which there are no Mens Rea requirement. Conviction is secured by simply proving Actus Reus.

However for strict liability offences, if the accused acted under an honest and reasonable mistake of fact, the prosecution will need to negate that claim beyond reasonable doubt.

Indictable Offences

Indictable offences are more serious offences involving harm to person or property e.g. r*pe, m*rder, serious assault, and criminal damage.

Indictable offences are distinguishable from summary offences as they require trial by judge and jury.

All offences found in the Crime Act are indictable offences unless the contrary intention appears.

Attempts

An attempt to commit an indictable offence is also an indictable offence under Section 321M of the Crimes Act.

Points of proof of an offence

Points of proof are the vital elements of the offence which must be proved regardless of whether the offender is being dealt with by the way of an infringement notice or a charge.

(Condensed) There are certain essential facts that must always be proven for an offence, no matter how the case is handled.

Identity

The first point of proof for any offence is identity.

  • Admissions

  • Witnesses

  • Circumstantial evidence

  • Similar facts

  • Fingerprints

  • DNA

  • Handwriting

PSO Powers - Crime Act

Designated Place

For the purpose of section 52 of the Police Regulation Act, a place on or within any of following places is a designated place:

  • railway premises

  • rail premises on or adjoining railway premises including any car parking area on the rail premises

  • any area on or adjoining rail premises or specified bus premises used by other modes of transport including taxi ranks

  • bus premises

  • a road on which a specified route bus or rail replacement bus provides a bus service at the time the service is in operation.

  • car park controlled by council that is adjoining rail premises or specified bus premises

Designated Place - Public Safety (Sec. 3A Victoria Police Act)

In 2020, legislation was passed allowing the Chief Commissioner of Police to declare a place or area to be a designated place for a specified period and/or time not exceeding 12 month.

This enables PSOs to be deployed to locations or to incidents (outside Public Transport Network) without losing access to legislative powers.

The declaration of a location will only occur pursuant to Section 3A, declaration is necessary or desirable for:

  • Community safety or public reassurance

  • To assist police

  • To deter criminal or antisocial behaviour

Purpose of Arrest

The main purpose of arresting an offender is simply to enable them to be prosecuted. The power of arrest was never intended as a punitive measure but simply as a means of bringing a person to court.

(condensed) The main purpose of arrest is to bring an offender before the court for prosecution, not to punish them.

Arrest defined

  • Arrest is the total restraint of a person for however short a time

  • The actual seizure or touching of a person with a view to detaining them, is an arrest

  • On arrest, the person must be told that he is under arrest and for what offence.

  • Merely telling a person that they are uner arrest is not sufficient unless the party submits and goes with the arresting member. However, if the affect of the words is that the accused feels he is COMPELLED to submit, there is an arrest.

    • Just saying “you’re under arrest” is not always enough on its own.
      An arrest only happens if the person either:

      • submits (accepts they are not free to leave and goes with police), or

      • is effectively forced to comply.

    • If the person feels they have no real choice and obeys, then legally that can still count as an arrest, even without physical force.

  • Police say: “You’re under arrest, come with me.” and the person walks with them → arrest.

  • Police say it in a way that makes the person believe they cannot leave, so they comply → still an arrest.

  • Police just say it, but the person ignores them and walks away → not an effective arrest unless they are physically restrained or detained.

Sectin 456AA of the Crimes Act — Powers to request name and address.

S456AA - A police officer or a protective services officer on duty at a designated place may request a person to state his or her name and address if the officer believes on a reasonable grounds that the person —

  1. Has committed or is about to commit an offence, whether indictable or summary, or

  2. May be able to assist in the investigation of an indictable offence which has been committed or is suspected of having been committed.

Section 458 - Power of Arrest without a Warrant

Section 458(1) - Any person, whether a member of the police force or not, may at any time without warrant apprehend and take before a justive to be dealt with according to law or deliver to a member of the police force to be so taken, any person -

  • He finds a person committing an offence (whether indictable offence or offence punishable on summary conviction) and reasonably believes apprehension is necessary for one or more of the following reasons:

    • to ensure the attendance of the offender beofre a court 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

Finds Committing

Section 462: “Finds committing” includes situations where a person’s behaviour or circumstances give reasonable grounds to believe they are committing an offence, even if the offence is not directly seen.

The person arresting must have found the offender either:

  • actually committing the offence

  • Behaviour or circumstances that lead to a reasonable belief the person is the offender.

Arrest for Indictable Offences

Additional powers of arrest for indictable offences are found in Section 459 of the Crimes Act.

Section 459(1): In addition to powers under section 458 or any other Act, a police officer or on-duty protective services officer at a designated place may arrest a person without a warrant at any time —

  • they believe on reasonable grounds has committed an indictable offence in Victoria

  • They reasonably believe the person has committed an offence elsewhere that, if it had been committed in Victoria, would constitute an indictable offence under Victorian law.

The PSO must hand the person into the custody of a member of the police force as soon as practicable after the person is arrested.

  • A Protective Services Officer can only arrest someone without a warrant under this section if the person is at, or near, a designated place.

Reasonable Grounds

It is stressed that in all cases the arresting officer must possess sufficient information in order to have the necssary “belief” on reasonable grounds.

The arresting officer must first honestly believe that the arrest is necessary and based on reasonable grounds. Then, the court will check whether a reasonable person in the same situation would have made the same decision.

A “reasonable man” is a mythical person who has been described by the courts as the ordinary man in the street — or the typical juryman.

Arrest not deemed to be unlawful

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

(condensed) If a person is arrested based on a reasonable belief under sections 458 and 459, the arrest is still lawful even if it is later found that the person did not actually commit the offence.

Body Worn Cameras and Arrest

  • Where a person is to be taken into custody (as defined by s.464, Crimes Act) or otherwise detained, a recording must be started in line with the Activation Framework

  • If caution and rights are provided or a confession /admission is made before the BWC recording is started, then the provision of caution and rights of those admissions should be confirmed by the person when the BWC is started.

Common Law allows an arresting member or officer to search an offender in order to locate and seize weapons which may be used to inflict harm on themselves or others.