Smit v State of Victoria 1 examines the legal framework governing lawful arrests and false imprisonment. The plaintiff, Smit, was arrested at a Melbourne anti-lockdown protest in October 2020. Smit claimed that three consecutive arrests amounted to instances of false imprisonment. The Court was required to examine each of these events with reference to the arrest powers under section 458 of the Crimes Act 1958.
Case Background
During the Covid-19 pandemic, Smit formed Reignite Democracy Australia (RDA), a group which actively opposed government policies relating to lockdowns. On 31 October 2020, Smit attended an anti-lockdown protest at the Treasury Gardens, claiming to be an independent journalist for RDA.
Legal Framework
Victoria Police officers have the power to arrest an individual if they find them committing an offence. The arrest will only be lawful if the arresting officer believes on reasonable grounds that the individual has committed an offence. The arresting officer must also believe on reasonable grounds that the arrest is necessary for one of the following purposes:
- ensuring the attendance of the offender before a court of competent jurisdiction;
- preserving public order;
- preventing the continuation or repetition of the offence or the commission of a further offence; or
- for the safety or welfare of members of the public or of the offender. 2
Finally, the arresting officer must inform the individual that they are under arrest, as well as the grounds for arrest. This must occur unless a good reason exists for not doing so.
The First Arrest
Police stopped Smit (and others) to enquire about face mask exemptions. During this stop, Smit’s work permit was checked by police. Judge Tran found that during this interaction the arresting officer formed the necessary belief that Smit was committing an offence, as her work permit was invalid, and she was not attending the protest in a journalistic capacity.
Her Honour also found that the arresting officer believed the arrest was necessary for the preservation of public order and safety. However, the arrest was ultimately not lawful as Smit was not informed of the reason for her arrest. Therefore, the claim for false imprisonment in relation to the first arrest was made out. Smit was awarded $3000 in damages in relation to the first arrest. 3
The Second Arrest
While police completed an infringement notice for Smit, the arresting officer informed Smit that she was more than 25km from her home, which was not permitted without a valid work permit under Covid-19 restrictions. Smit maintained that she was not required to leave the area as she had a work permit to be outside of her permitted zone. Her Honour found that the arresting officer reasonably believed that Smit was 25 km from her home without a valid work permit.
Her Honour was also satisfied that the officer also believed on reasonable grounds that Smit’s arrest was necessary to prevent the continuation of the offence. The arresting officer informed Smit why she was under arrest, and the Court ultimately found that this arrest was lawful.
Her Honour stated that had she been satisfied that this arrest was unlawful such that Smit had been falsely imprisoned, she would have awarded Smit $4000 in damages.4
The Third Arrest
Smit was released after the second arrest while still at Treasury Gardens. Police informed Smit that she would be arrested if she joined a gathering of more than ten people.
Smit’s partner was speaking to a crowd of protestors, which Smit joined. Police encircled the group and began arresting members of the crowd. Smit was one of the last individuals to be arrested.
Her Honour found that the arresting officer had reasonable grounds to believe that Smit had committed an offence by gathering with a group of more than ten people. However, her Honour held that there were no reasonable grounds to believe that the arrest was necessary for one of the permitted purposes （see above） as Smit was one of, if not the last protestor arrested, such that she was no longer committing the offence of gathering with more than ten people. 5
Smit demonstrated that she had been falsely arrested in this instance and her claim for false imprisonment was made out. She was awarded $1000 in relation to the third arrest. 6
Key Takeaways
Smit discusses the interaction between police’s arrest powers under s 458 of the Crimes Act 1958 and the tort of false imprisonment. If the correct arrest procedures are not followed, or the arresting officer does not form a belief on reasonable grounds regarding the offence committed or the necessity of arrest, then the arrest will be deemed unlawful. In turn, this allows individuals to make a civil claim for false imprisonment.
It is also worth noting that while the awards of damages in this case are relatively small, the Plaintiff was self-represented and seemingly did not produce or lead any evidence about damages including medical reports or otherwise. The case law in respect to awards for damages for false imprisonment does vary somewhat, but the recent Victorian case of Carrie Peters v State of Victoria (Peters) stands for the proposition that a Plaintiff can be awarded general damages for the deprivation of liberty for hurt, humiliation, harm and the loss of reputation. In Peters, the Plaintiff was awarded $60,000.00 in damages for the deprivation of liberty for false imprisonment, noting that medical material and viva-voce evidence was submitted to the Court on the issue of hurt, humiliation, harm and loss of reputation to the Plaintiff caused by the false imprisonment.
Authors: Jeremy King and William Bonney
1 [2024] VCC 1411 (‘Smit’)
2 Crimes Act 1958 (Vic), s 458
3 At [254]
4 At [256]
5 At [233]
6 At [255]
How can I learn more?
Jeremy King.
Principal.
- Injury Law & Police Misconduct
- 03 9890 3321
- Email Address: j.king@robinsongill.com.au
Jeremy King is a Principal Lawyer and head of the Police and Prisons team at Robinson Gill. With an imposing track record of high-profile actions against the Victorian police, Jeremy is at the forefront of the fight for police oversight and accountability. Through both his landmark litigation and advocacy work, he has played a key role in shaping legislative reform across Australia.
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