Section 459 arrest power: when are there reasonable grounds to believe an indictable offence has been committed?

S 459(1)(a) of the Crimes Act empowers police officers to arrest a person without a warrant if the they believes on reasonable grounds that the person has committed an indictable offence. The legislation requires two things: the police officer must have an actual belief that the person to be arrested has committed an indictable offence; and that belief must be on reasonable grounds. 

When considering this arrest power, Her Honour noted:

“The powers of arrest afforded to police must balance two competing considerations: the high value the law places on personal liberty and the public interest in detecting crime and bringing criminals to justice.”

Ms Peters alleged that the relevant officers in her case had neither an actual belief she had committed an indictable offence, nor reasonable grounds to hold such a belief, and therefore her arrest was invalid and constituted a false imprisonment.

Did the police officers hold an actual belief that Peters had committed the offence? 

Her Honour determined that, in order for the arrest to have been valid, the belief must have been held by two of the key police officers involved in the incident. The first was Officer Harbis, who responsible for arresting Ms Peters at her parent’s home. The second was Officer Phelan, who was responsible for the whole operation and took over Ms Peters detention at the police station where he interviewed her. Harbis’s belief was relevant to the initial arrest and Phelan’s belief was relevant to her detention at the police station.

Her Honour found that the nature of the belief which needed to be held in order for the s 459 power to be enlivened was only that they had “an inclination of the mind toward assenting rather than rejecting a proposition”. She found that “the belief does not have to be on the balance of probabilities but the circumstances must point more clearly to the subject matter of the belief” and that “a belief must be something more than suspicion but does not need to be a certainty.”

Officer Phelan gave evidence that his belief that Ms Peters had committed an indictable offence was based on viewing the subject image in circumstances where he was told by SOCIT officers that they had found child abuse material involving Ms Peters. 

Officer Harbis gave evidence that he formed a belief that Ms Peters had committed the relevant offence based on viewing the subject image itself combined with information about Ms Peters that he was given by Officer Phelan.

While Her Honour found that the delay in in arresting Ms Peters (which was a delay of five days from the time the image was located and the relevant belief was formed) and their failure to seize numerous electronic devices from her home at the time of her arrest weighed against a finding that Harbis and Phelan held an actual belief Ms Peters had committed the relevant indictable offence, Her Honour was not able to conclude that, in spite of these factors, they did not have an actual belief.

Was the belief held on reasonable grounds? 

While Her Honour was satisfied that the two police officers responsible for the arrest had an actual belief that Ms Peters had committed the offence, she went on to determine that there were no reasonable grounds for the belief and therefore the arrest power was not enlivened. In doing so, Her Honour remarked that police failed to bring an observant, receptive and open mind to the analysis of the subject 

image, and taken by itself, the image alone did not provide a reasonable basis to conclude it depicted a child, and therefore that Ms Peters had committed the relevant offence. 

The State argued there were other circumstances that created reasonable grounds for the belief that Peters had committed an indictable offence.

1. Many police officers formed the same belief.

The State relied on the fact that so many officers independently came to the “firm belief” that the subject image showed a child and suggested this was an important argument in favour of a finding that the belief was on reasonable grounds. 

However, Her Honour was not satisfied that each of the police officers independently arrived at the conclusion that unknown person was a child, and instead, as each of the police witnesses had been told the subject image showed a child by other police officers, and so they were pre-disposed to see a child when viewing the subject image. 

Further, Her Honour stated that this factor would only be persuasive if the court was satisfied that all the police witnesses had examined the subject image with care and attention, and with an open mind. Her Honour found that the evidence did not demonstrate that the witnesses had brought that requisite care, attention, and open mind to the task of viewing the image. 

2. Were the officers entitled to rely on the expertise of other police officers (SOCIT)? 

The State said that Harbis was entitled to rely on the on the expertise and opinion of police officers from the Sexual Offence and Child Abuse Investigation Team (SOCIT), that the unknown person was child, and other information provided to him by Phelan. Her Honour accepted that the information provided, and any relevant expertise relied upon, would be relevant to an assessment of reasonable grounds. However, Her Honour found there was no evidence that SOCIT officers received specialist training in identifying the age of people in photographs or generally, and there was no evidence that any such training had been applied to form the opinion the unknown person was a child. Phelan said he based his assessment of the age of the second person in the photograph on his experience as a father of three boys. 

As a result, Her Honour concluded that Harbis was not entitled to rely on the expert opinion of SOCIT officers in determining that the unknown person was a child, as the police were not entitled to rely on an expertise that did not exist. 

3. Had Mr Hills been excluded as the second person in the photograph? 

Her Honour found that only one police witness had looked at a photograph of Mr Hills in order to compare him to the unknown person in the photograph, and no police witnesses had investigated features of the unknown person which, had they been considered, would have allowed them to readily identify Mr Hills as the person in the image. As such, Her Honour found that steps taken to exclude Mr Hills as the person in the photograph were inadequate, and therefore neither Harbis nor Phelan were entitled to rely on information or assumption that he had been excluded. 

4. What information was known or capable of being known by police? 

Her Honour found that in assessing circumstances which might give rise to reasonable grounds, the Court must consider the reality of what was known or reasonably capable of being known by police at the relevant time. 

Her Honour considered the following as matters with respect to what was known and what was capable of being known at the time of the arrest: 

•  Ms Peter’s husband Hills had been accused of sexually assaulting a child, and Ms Peters had provided extensive cooperation in their investigation. Her Honour found that the fact that Mr Hills had offended against children did not provide reasonable grounds for a belief that Ms Peters was also likely to have offended against a child, and their knowledge of her extensive assistance to police in their investigation of Mr Hills ought to have caused police to pause and reflect. 
• The person in the subject image was wearing a wedding ring. While Her Honour found that the existence of the ring was not sufficient to exclude the possibility that the unknown person was a child wearing a “prop”, it should also have been enough to prompt a question in the minds of the officers whether the unknown person was a married man, and if such a question had been asked, the obvious candidate to investigate would have been Mr Hills.
•  The distinctive features of the unknown person in the image; particularly, a bent middle finger on the right hand and a small scar on the person’s abdomen. Her Honour referred to the matter of Dumbell v Roberts, where obvious inquiries which ought to have been made were not made prior to an arrest, and therefore made the arrest unlawful. Her Honour rejected the State’s submission that there were no obvious enquiries or exculpatory materials before the officers, and found that it was incumbent on police to perform a deep analysis of the image which would have allowed Mr Hills to be readily identified. 

In conclusion, Her Honour found that the photograph did not, in all the circumstances, provide reasonable grounds for the police to believe that Ms Peters had committed an indictable offence. As such, the arrest was not lawful and her detention during and after arrest amounted to a false imprisonment. 

Is there a common law requirement in Victoria for an intention to charge when arresting a suspect?

During the trial, Ms Peters argued that even if the relevant officers held a belief on reasonable grounds that she had committed an indictable offence, the arrest was still invalid because of a further issue – namely, that at the time of her arrest, the officers were not intending to charge her but simply question her about the photograph. Ms Peters relied on the common law principle that detention of a suspect for the purpose of questioning is unlawful, and alleged that police contravened this principle during her arrest which made the arrest unlawful and a false imprisonment.

The State acknowledge the common law principle existed, however it went on to make a novel argument that a recent decision of DPP v Hollis reversed the common law principle.

Her Honour found that it was not necessary to determine this issue between the parties because she had already decided the arrest was unlawful due to the absence of reasonable grounds to believe Ms Peters had committed an indictable offence. However, Her Honour did comment that Hollis dealt primarily with the question of “reasonable time” for detention of a suspect and whether the suspect had been detained for an improper purpose, but there was no analysis in that case of whether the police had an intention to charge the suspect. 

As such, Her Honour was not persuaded by the State’s argument that Hollis displaced the decision by the High Court in State of New South Wales v Robinson, and therefore the intention to charge remains a requirement for arrest under Victorian law. 

Author： Gemma Ross-McGlynn