Police Arrest Powers (WA)

Police can arrest a person for a range of reasons in a range of situations. These arrest powers in Western Australia are contained in Part 12 of the Criminal Investigation Act 2006.

Arrest powers

Under section 128 of the Act, a police officer can arrest a person if they believe the person has committed or is committing a “serious offence”. “Serious offence” means an offence:

• for which the penalty is imprisonment for five years to life;
• which is a breach of a Family Violence Restraining Order or police order;
• that involves family violence or a threat of family violence;
• that involves failure to comply with an order from police at an out-of-control gathering.

A police officer can arrest someone for an offence that is not a serious offence if the officer reasonable suspects the person has committed, is committing, or is about to commit the offence, and if not arrested:

• it will not be possible to obtain and verify the person’s personal details;
• the person will continue or repeat the offence;
• the person will commit another offence;
• the person will endanger another person’s safety or property;
• the person will interfere with witnesses or otherwise obstruct the course of justice;
• the person will conceal or disturb evidence;
• the person’s safety will be endangered.

Entry to places and vehicles

A police officer can enter and search a place, or stop, enter and search a vehicle if the officer reasonably believes a suspect is in it. If the officer finds anything that could be considered evidence of an offence, they have a right to seize it or examine if forensically.

If a person is arrested for a serious offence, a police officer can enter the place or vehicle where the person was arrested or from where the person fled. The officer can search for any evidence of the serious offence or a connected offence, or any victim of the serious offence. The officer must have written permission from an independent senior officer to take these actions.

A police officer can enter and search any place the officer reasonably suspects an escapee has been since their escape from lawful custody, or is likely to go while at large.

Searches in custody

Once a person has been arrested, they can be searched for “a security risk item”. This is an item that could be used to endanger a person, help the arrested person to escape, or adversely affect the security, good order or management of the place at which they are detained.

Rights of an arrested person

Under section 137 of the Act, a person arrested by police is entitled to:

• any necessary medical treatment;
• a reasonable degree of privacy from the media;
• a reasonable opportunity to contact a relative or friend;
• help from an interpreter or other qualified person if the person cannot understand or communicate in spoken English sufficiently.

The arrested person must also be informed of the offence for which they were arrested, cautioned before being interviewed, and allowed to communicate with a lawyer.

The arrested person may be denied the right to contact another person if police suspect this may lead to:

• an accomplice taking steps to avoid being charged;
• evidence being concealed, disturbed or fabricated;
• a person’s safety being endangered.

Under section 139, police can detain an arrested person to:

• conduct a search;
• investigate any alleged offence;
• interview the suspect about any alleged offence;
• decide whether to charge the suspect.

A person cannot be held for more than 6 hours, unless the arresting officer gains permission from a more senior officer to hold the suspect for up to a further 6 hours, or from a magistrate for up to a further 8 hours.

If an arrested person is not charged, they must be released unconditionally. If an arrested person is charged with a simple offence, or some indictable offences, they must be released unconditionally unless there are concerns such as that the suspect will commit another offence, or the suspect or others will be placed in danger. If an arrested person is charged with a serious offence, they can be remanded in custody. If a suspect is charged and not released unconditionally, then as soon as practicable they must be brought before a court and considered for bail, or a mental health assessment must be arranged for them.

Citizen’s arrest

Under section 25 of the Act, any person can arrest another person (the suspect) if they reasonably believe the suspect has committed or is committing an “arrestable” offence. An “arrestable” offence is an offence that carries a jail term.

A person cannot enter a place or vehicle to arrest a suspect. Once a person has arrested a suspect, they must, as soon as practicable, arrange for police to attend the scene or take the suspect and any evidence to police. The citizen’s arrest lasts until the suspect is handed to the police.

For advice or representation in any legal matter, please contact Armstrong Legal.