3. Police Powers — Lawful? → Excluded? (Vic + Cth)¶
Scope and currency
Comprehensive cheat sheet · Crimes Act 1958 & Evidence Act 2008 (Vic) · web-verified, current to 12 July 2026
No general power — every coercive act needs a statutory (or narrow common-law) source; there is no general common-law power to arrest or search (DPP v Tupper [2018] VSC 285).
Illegality ≠ exclusion — s 138 Evidence Act 2008 is a discretionary balance, not automatic exclusion.
Route: arrest (ss 457–463B) · force (s 462A) · search (s 465; COWA s 10; DPCSA s 82; and Act-by-Act tables below) · questioning (ss 464A–464J) · forensic/prints (ss 464K–464ZFB). For each act: test lawfulness (Stage 1) → if unlawful/improper, run the exclusion balance (Stage 2) → apply the Charter overlay throughout.
Foundations — sources of power & the two states of mind¶
• Three sources: common law (residual, narrow); statute (the main game); consent — must be genuine and freely given, may be limited or revoked at any time; scrutinise power imbalance (child, cognitive impairment, ABI, Aboriginality).
• Consent to search: valid even if person unaware of the right to refuse (DPP v Leonard (2001) 53 NSWLR 277); but challengeable for no capacity, no authority (visitor, not occupier), or no consent at all. If consent given, police need not prove reasonable suspicion. Call for contemporaneous notes/diary; voir dire.
• State of mind is decided at the time of the act: belief/suspicion must be formed before the search/arrest commences, on the circumstances then before the officer — not on past events alone (e.g. a prior drug bust) and not by hindsight (Williams v The Queen (1986) 161 CLR 278).
Suspicion vs Belief — the threshold hierarchy¶
| Threshold | Meaning | Typical trigger | Authority |
|---|---|---|---|
| Reasonable suspicion (lower) | Conjecture/surmise where proof lacking — a positive feeling of actual apprehension or mistrust amounting to a slight opinion; more than idle wondering / mere possibility; needs a rational connection to supporting material. | Searches (e.g. s 82 DPCSA) | George v Rockett (1990) 170 CLR 104; R v Rondo [2001] NSWCCA 540 |
| Reasonable belief (higher) | An inclination of the mind toward assenting to a proposition; facts enough for a suspicion may be insufficient for a belief; may rest on inadmissible/hearsay material. | Arrests (s 459 Crimes Act) | George v Rockett; Walsh v Loughnan [1991] 2 VR 351; DPP v Mitchell [2002] VSC 326 |
| TEST Reasonable grounds — the 3-step structure (Prior v Mole [2017] HCA 10) | |||
| Was the officer's state of mind lawfully formed? Quality of belief (Carrie Peters (a pseudonym) v State of Victoria [2023] VCC 1791): police must bring an observant, receptive and open mind, conduct a deep analysis of cogent evidence and make obvious inquiries that could exculpate. A firm belief shared by several officers born of common bias / tunnel vision (e.g. told it is CAM before viewing) does not satisfy the objective test — arrest and ensuing detention unlawful. → 1 · Subjective: what did the officer actually believe/suspect? (from what the officer says). → 2 · Objective circumstances: what did they know / observe at the time? → 3 · Marry up 1 & 2: would those facts induce that state of mind in a reasonable person in the officer's position? Policing experience can bridge a gap only when coupled with specific observable facts (Prior v Mole). |
STAGE 1 · ARREST (Crimes Act 1958)¶
GATE 1 Is there a statutory arrest power, exercised on the required state of mind?
s 457: no arrest without warrant except as this or another Act allows — the anchor. s 461: an arrest on reasonable grounds does not become unlawful merely because the person is later found not to have committed the offence; police need not arrest where a summons/notice to appear would be effective (s 461(2)). Powers to Arrest: → Any person [Citizen’s Arrest Power] — found committing (s 458): may arrest a person found committing any offence when reasonably believes apprehension necessary to (i) bring to court, (ii) preserve public order, (iii) prevent continuation/repetition, or (iv) protect safety/welfare. Only provision available to citizens & PSOs. → Police — indictable (s 459): arrest where believes on reasonable grounds the person committed an indictable offence in Vic or elsewhere; applies to past conduct; no found committing needed. PSO only at/near a designated place (s 459(2A); reg 27 Vic Police Regs 2014) and must hand to police ASAP. → Entry to arrest (s 459A): enter & search premises without warrant only for a serious indictable offence (5 yrs+, s 325(6)) or a person escaping legal custody. Threshold shift from s 459 — entering a home for a minor/summary offence is trespass; evidence then obtained in consequence of illegality (trespass ab initio) s 138. → Suicide / aircraft (ss 463A, 463B): person in command of aircraft may arrest a person committing/suspected of an offence; any person may arrest to prevent suicide (no entry/search power unless s 459A).
"Found committing" (s 462): extends to a person doing an act / so behaving that the finder believes on reasonable grounds they are guilty (De Moor v Davies [1999] VSC 416 — extended meaning; witnessing the act is not required). Requires contemporaneity: caught in the act, found in the immediate vicinity and continuously pursued, or found attempting escape. Beware the temporal disconnect — arresting hours later off CCTV is not found committing, so s 458 is not enlivened. An Intergraph/radio message about a shoplifter can supply reasonable belief (R v De Simone [2008] VSCA 216; cf Lynch v Hargrave [1971] VR 99; Lunt v Bramley [1959] VR 313).
GATE 1A Procedural requirements of a lawful arrest (common law, preserved) — Slaveski v State of Victoria [2010] VSC 441
Failure to communicate the reason is fatal even within the statutory frame (Smit v State of Victoria [2024] VCC 1411 — first protest arrest unlawful for non-communication; third unlawful as no reasonable grounds arrest was necessary for public order once Smit was the last person detained). → Deprivation of liberty: words or conduct must convey that the person is under arrest. → Tell of the arrest: R v Stafford (1976) 13 SASR 392. → Tell the reason: the facts said to constitute the crime, not a technical charge (Christie v Leachinsky [1947] AC 573; State of NSW v Delly [2007] NSWCA 303 — circumstances of the arrest govern, not the suspect's private knowledge).
Vic arrest powers at a glance¶
| Power | Provision | Threshold | Key condition |
|---|---|---|---|
| Any person / citizen | s 458 | Found committing | Strict necessity (s 458(1)(a)): court / public order / prevent repetition / safety |
| Police — indictable | s 459 | Reasonable belief | Subjective belief + objective facts; past conduct |
| Entry to arrest | s 459A | Reasonable belief | Serious indictable (5 yrs+) or escaping custody |
| Use of force | s 462A | Reasonable belief | Not disproportionate to the objective |
| Prevent suicide / aircraft | ss 463A, 463B | Reasonable belief/suspicion | No entry-search power unless s 459A |
Arrest — discretion & limits (do not change lawfulness of the source, but defeat the arrest)¶
• Improper purpose: the discretion must not be an abuse of process or for an improper purpose; arrest solely to question is unlawful (Zaravinos v State of NSW [2004] NSWCA 320).
• Last resort: a lawful power may be exercised improperly where a summons/notice would suffice (DPP v Carr [2002] NSWSC 194; DPP v Hamilton [2011] VSC 598 — arrest is a measure of last resort; running from police, without more, is not resisting).
• Mistaken basis: an arrest may still be valid if a lawful basis existed (e.g. s 459) even if the officer relied on the wrong basis at the time (James v The King [2025] VSCA 140).
• Timing of belief: grounds must exist at the arrest; evidence found afterwards cannot retro-justify the detention (Williams v The Queen (1986) 161 CLR 278).
GATE 2 Use of force (s 462A) — composite subjective + objective test
s 462A: force not disproportionate to the objective, which the person believes on reasonable grounds necessary to prevent an indictable offence or to effect/assist a lawful arrest. Four components a jury must be directed on (Gebrehiwot v State of Victoria [2020] VSCA 315; Slaveski [2010] VSC 441): - genuine subjective belief the specific degree of force was necessary; - that belief on reasonable grounds; - force objectively not disproportionate to the objective — comparing force against objective, including whether a less coercive alternative was available; assessed realistically (agony of the moment, no hindsight). James v The King [2025] VSCA 140: no reasonable grounds to believe an assault occurred where the person's attention was fixed on a licence plate — a bite could be a proportionate response to an unlawful headlock.
Consequence of an unlawful arrest
Where an offence requires the police to be acting in the execution of duty (assault/resist emergency worker; emergency-worker driving offences), the prosecution must prove the arrest was lawful. An unlawful arrest = arrest illegal ab initio: force used may be an assault, and the person may resist in self-defence (Nguyen v Elliot (6 Feb 1995) VSC — right to resist unlawful search/arrest; charges dismissed). Watch the welfare check that turns into a prosecution — where no offence is suspected, where is the power to detain/touch/restrain? This platform feeds a s 138 EA (excludes impropriety and illegality) application to exclude all downstream evidence.
Arrest powers across other statutes (Vic + Cth)¶
| Source | Provision | Power |
|---|---|---|
| Summary Offences Act 1966 | s 26 | Any person may arrest a person in possession of property reasonably suspected stolen/unlawfully obtained (s 15 drunk-and-disorderly arrest no longer the law) |
| Bail Act 1977 | s 24 | Arrest a person on bail on reasonable grounds/cause they will/are breaching a condition, or on surety notice |
| Road Safety Act 1986 | s 76(1) | Arrest where a road-rule offence + refuses name/address or gives details reasonably suspected false |
| Children, Youth & Families Act 2005 | s 491 | Arrest an adult serving a YJC sentence at the officer-in-charge's request for an offence in the YJC |
| Mental Health & Wellbeing Act 2022 | s 232 | Not an arrest — care & control where person appears to have mental illness AND necessary to prevent imminent serious harm |
| Crimes Act 1914 (Cth) | ss 3W, 3WA | Police arrest on reasonable belief person committed offence + summons inadequate (3WA: terrorism / advocating terrorism) |
| Crimes Act 1914 (Cth) | ss 3X, 3Y, 3Z | 3X unlawfully-at-large prisoner; 3Y bail contravention; 3Z any-person arrest for indictable offence |
With-warrant arrest: CPA 2009 s 12(4)–(5) (registrar must issue summons or warrant; warrant at first instance only if accused unlikely to answer — Mortimore v Stecher [1971] VR 866), s 81 (after failure to answer); Magistrates' Court Act 1989 ss 61, 65(2) (bring before bail justice/court within reasonable time); CYFA ss 345–347 (child: exceptional circumstances; within 24 hrs; remand centre); Judiciary Act 1903 (Cth) s 68; Crimes Act 1914 (Cth) s 3ZA (oath, affidavit, reasonable grounds).
STAGE 1 · SEARCH & SEIZURE¶
GATE 3 Warrant, or a warrantless power on reasonable suspicion/belief?
No general common-law search power — at common law police may search only incident to a lawful arrest, strictly limited to evidence of that offence, weapons, or means of escape (DPP v Tupper [2018] VSC 285). Identify the exact statutory power, what was being looked for, and how the reasonable suspicion/belief was formed. Warrant formalities: issued by a Magistrate (remand by bail justice); on oath/affidavit; execution copy in writing, signed/authenticated, returned to court after execution (Magistrates' Court Act 1989 ss 61–79).
Warrantless search powers¶
| Act | Provision | Trigger / scope |
|---|---|---|
| Crimes Act 1958 | s 459A | Enter & search premises to arrest for a serious indictable offence (5 yrs+) or escapee |
| Control of Weapons Act 1990 | s 10 | Search person/vehicle on reasonable grounds to suspect a controlled/prohibited weapon or dangerous article in a public place; must give name/rank/place, intention, grounds, power (s 10L obstruct offence) |
| Control of Weapons Act 1990 | ss 10D, 10GA | Designated area (executive declaration): suspicion-less, warrantless stop/search for weapons; remove face covering / direct to leave |
| Drugs, Poisons & Controlled Substances Act 1981 | s 82 | Search person/vehicle/vessel/aircraft in a public place on reasonable grounds to suspect a drug of dependence — must suspect the person actually (not possibly) has drugs |
| Firearms Act 1996 | ss 149, 112Q, 112R | s 149 search vehicle/thing on reasonable suspicion of an Act offence + firearm; ss 112Q/112R search where an FPO applies (premises/vehicle/person, not strip) |
| Family Violence Protection Act 2008 | ss 157, 159 | s 157 enter on reasonable belief of assault/threat/breach of IVO or safety notice (s 157(2) reasonable force); s 159 search for firearms/weapons |
| Road Safety Act 1986 | ss 84F, 84GA | Search for / seize / impound a vehicle used for an Act offence; s 84GA enter garage/land without consent or warrant to seize a vehicle to be impounded |
| Graffiti Prevention Act 2007 | ss 13, 14 | Search at a designated place on reasonable suspicion of a graffiti implement + evidence loss if delayed (person under 14 must not be searched) |
| Summary Offences Act 1966 | s 22 | Enter any public place to secure observance of the Act (not a trespass) |
| Crimes Act 1914 (Cth) | ss 3T, 3ZE–3ZH, 3UEA | 3T conveyance search, serious & urgent; 3ZE/3ZF frisk/ordinary search of arrestee; 3ZH strip search; 3UEA terrorism entry without warrant |
Search warrant powers¶
| Act | Provision | Scope (issuer / threshold) |
|---|---|---|
| Crimes Act 1958 | s 465 | Mag warrant for anything re/evidence of an indictable offence committed / suspected / likely within 72 hrs; oath/affidavit of officer ≥ Sergeant; hold for investigation/proceeding (s 465(1A)) |
| Crimes Act 1958 | ss 92, 317, 341, 466, 470 | s 92 stolen goods; s 317 explosive substances (officer ≥ Snr Sgt); s 341 extra-territorial (Pt 2A) offences; s 466 gunpowder/felony implements; s 470 female unlawfully detained (officer ≥ Sgt) |
| Control of Weapons Act 1990 | s 11 | Mag warrant on affidavit of officer ≥ Sgt: reasonable grounds to suspect prohibited weapons/imitation firearms present |
| Firearms Act 1996 | ss 146, 53/53A/53B | s 146 warrant on reasonable belief of an Act offence; ss 53 search/seize for failure to surrender firearms/licence |
| Drugs, Poisons & Controlled Substances Act 1981 | s 81 | Mag warrant on oath/affidavit of officer ≥ Sgt: reasonable grounds to believe a thing re a suspected Act offence |
| Summary Offences Act 1966 | ss 27, 41E, 41F | s 27 stolen goods/wreck; s 41E upskirting evidence (now/within 3 days); s 41F seizure of un-listed things |
| Family Violence Protection Act 2008 | s 160 | Mag warrant to search premises/vehicles for Act offence or firearm/weapon; ≤ 7-day life; premises-warrant covers vehicles on the premises |
| Crimes Act 1914 (Cth) | s 3E | Warrant on reasonable suspicion of evidential material now or within 3 days |
| GATE 3A Common-law seizure & scope limits | ||
| Search incident to arrest must be sufficiently close to the arrest as to be incidental to it, having regard to physical exigencies (Reeves (a pseudonym) v The Queen [2017] VSCA 291; Field v Sullivan [1923] VLR 70). → Chance discovery (Ghani v Jones [1969] 3 All ER 170): 5 conditions: - reasonable grounds a serious offence committed; - grounds the item is linked to the crime; - grounds the possessor is perpetrator/linked; - no unreasonable retention; - judge lawfulness at the time of seizure. Cf Chic Fashions v Jones [1968] 1 All ER 229. → Un-listed goods under a warrant (Siddique and Martin [2016] VSCA 274): seizure extends to un-listed goods adventitiously found only if the officer holds a reasonable belief they are evidence of a serious offence — then deemed seized under the warrant. → Scope of a warrant (Slaveski [2010] VSC 441; Baker v Campbell (1983) 153 CLR 52; R v Applebee [1983] VR 751): a warrant authorises search/seizure to implicate a person in the offence under investigation only — not carte blanche; confined in kind and scope (looking for a motorbike ≠ opening a drawer). |
Lawful exercises of search & seizure powers¶
| Case | Facts | Held — was the power lawfully exercised? |
|---|---|---|
| Chic Fashions (West Wales) Ltd v Jones [1968] 1 All ER 229 | Police executed a search warrant at premises, lawfully looking for specifically identified stolen clothes. During that search they inadvertently came across other items of clothing not listed on the warrant, which they reasonably believed to be stolen. | Yes — seizure lawful. The police had inadvertently discovered the property while engaged in an otherwise lawful search. Establishes the common law "chance discovery" rule for adventitious finds. |
| Siddique and Martin [2016] VSCA 274 | Police executed search warrants at premises and seized items not of a kind named or described in the warrants. The officers held a reasonable belief the unlisted goods were evidence of contraventions of the Customs Act 1901 (Cth). | Yes — seizure lawful. The common law extends the power of seizure under a warrant to unlisted goods, provided they are adventitiously found and the officer holds a reasonable belief they constitute evidence of a serious offence. |
Unlawful exercises of search, seizure & arrest powers¶
| Case | Facts | Held — was the power lawfully exercised? |
|---|---|---|
| Nguyen v Elliot (unreported, VSC, 6 Feb 1995) | Police were on surveillance in a high drug-activity area in Footscray. Nguyen sat on a park bench appearing nervous; men approached, spoke with him and left, but police saw nothing handed over. Const. Elliot attempted to search him without consent. Nguyen resisted and assaulted police. | No — search and arrest unlawful. Elliot lacked reasonable suspicion under s 82 DPCSA; he was "merely curious". As the search was unwarranted, Nguyen was justified in using force to resist the unlawful search and arrest. |
| Carrie Peters (a pseudonym) v State of Victoria [2023] VCC 1791 | Police found a single ambiguous photograph of two people in a sexual act, faces obscured. They believed one was Ms Peters and the other a child and arrested her at home under s 459. She was detained four hours before being shown the photo, then immediately identified the other person as her 32-year-old husband — pointing to a wedding ring and an abdominal scar. | No — arrest unlawful. No reasonable grounds for the belief: police failed to conduct a "deep analysis" of the image and failed to make obvious exculpatory inquiries before arresting. Multiple officers agreeing did not make the belief reasonable — the agreement was born of common bias / tunnel vision. Confirmation bias. |
| Smit v State of Victoria [2024] VCC 1411 | The plaintiff was arrested three separate times at a protest for allegedly breaching Chief Health Officer directions. On the first arrest the officer failed to communicate the reason. On the third, a tactical cordon and arrest was used — by then she stood alone, surrounded by dozens of officers, isolated from the group. | No — first and third arrests unlawful. The first breached the fundamental common law safeguard requiring the reason for arrest to be given. The third was no longer "necessary" for a permitted purpose under s 458: surrounded and isolated, she was already prevented from continuing the offence, extinguishing the necessity to preserve public order or prevent continuation. |
| DPP v Kaba [2014] VSC 52 | Police made a random, routine traffic stop to check licence and registration. Kaba was a passenger. He got out and walked away. Without any statutory power or reasonable suspicion, police coercively and persistently demanded his name and address. He responded abusively and was arrested. | No — questioning improper and unlawful. Police may ordinarily ask questions, but the line is crossed into coercion once a person is made to feel they cannot leave or cease cooperating. There was no common law or statutory authority to demand a passenger's details. Breached his common law rights and his Charter rights to privacy and freedom of movement → evidence excluded. |
Unlawful execution of ancillary powers & warrants¶
| Case | Facts | Held — was the power lawfully exercised? |
|---|---|---|
| George v Rockett (1990) 170 CLR 104 | Police applied to a magistrate for a warrant to search a solicitor's office and seize a bundle of A4 pages of handwritten notes by Sir Terence Lewis. The sworn complaint merely asserted that "there are reasonable grounds for suspecting" and "believing" the items would afford evidence, but failed to set out the foundational facts justifying that state of mind. The warrant issued and the documents were seized. | No — warrant invalid. Where a statute prescribes "reasonable grounds" it requires the existence of objective facts sufficient to induce that state of mind in a reasonable person. The magistrate had no power to issue the warrant on a "bald assertion" or parrot-like recitation of the statutory threshold, without the underlying facts for judicial evaluation. |
| Watkins v State of Victoria [2010] VSCA 138 | Watkins attended a police station, was arrested for assault, and refused to provide fingerprints. Police forced him to the ground and struck him to take the prints. The station Sergeant claimed he had self-authorised the use of force under s 464K and produced a signed "authorisation to use reasonable force" — but the document was falsified and backdated to 9:45 pm, when Watkins was still being interviewed and had not yet refused. | No — unlawful; actionable assault. Police completely failed to comply with the mandatory statutory preconditions for using force under s 464K. Because the safeguards were flouted and the authorisation falsified, the officers were stripped of any lawful justification for the force used. |
| R v Ireland (1970) 126 CLR 321 | Investigating a murder, police required the accused — in custody — to submit to having his right hand photographed, asserting he had to comply. Photographs were taken against his will. A medical practitioner later used them to testify the scratches were consistent with a broken knife found at the scene. | No — no power to compel. Neither at common law nor under the Police Offences Act 1953 (SA) could police compel a suspect to submit to photography for any purpose other than strict identification. The examination and photography were procured by unlawful acts, enlivening the trial judge's public policy discretion to reject the evidence. |
Reading the table in an answer¶
• Lawful pair: both turn on the search being otherwise lawful and the find adventitious — the officer's reasonable belief must attach to a serious offence (Siddique).
• Unlawful cluster: each fails at a different point — no suspicion (Nguyen), unreasonable belief (Carrie Peters), no reason given / no necessity (Smit), no power at all (Kaba).
• Ancillary cluster: the failure is in the authorising step — a warrant issued on a bald assertion (George v Rockett), a falsified force authorisation (Watkins), a compulsion with no source (Ireland).
• Then run Stage 2: unlawfulness feeds s 138 Evidence Act 2008 (Vic) — accused shows impropriety, prosecution justifies admission; Charter breaches aggravate under s 138(3)(f) (Kaba).
Digital devices: distinguish a seize-and-hold power (warrant / incident to arrest) from a forensic-extraction power. Authority to seize a phone does not authorise a deep forensic download; extraction outside the warrant's scope is vulnerable under s 138 as an improper privacy intrusion. Right to silence/privilege against self-incrimination means you may refuse a PIN/password — but police may bypass via forensic software, and an assistance order (Crimes Act 1958 ss 465AA/465AAA; Cth s 3LA) compels reasonable and necessary assistance, abrogates the privilege, and makes refusal a separate offence (up to 2 yrs s 465AAA / 5 yrs s 465AA; Cth up to 10 yrs).
GATE 3B s 82 DPCSA — 'actually' vs 'possibly' has drugs
Did the officer suspect the person actually has drugs, on objective facts? Murray, Hale & Olsen (Pseudonyms) v The Queen [2017] VSCA 236: reasonable-suspicion factors scrutinised (BMW, cash, evasive turns); search unlawful — yet evidence admitted on the s 138(3) balance (impropriety mid-spectrum, high probative value). → Valid: actual apprehension/mistrust on a working hypothesis with a rational connection to supporting material. → Invalid: mere curiosity, speculation or idle wondering about the possibility — falls short (Nguyen v Elliot; R v Rondo). The Factual Matrix of Murray, Hale & Olsen (Pseudonyms) v The Queen In Murray, Hale & Olsen (Pseudonyms) v The Queen VSCA 236, the Victorian Court of Appeal examined the strict limits of warrantless police search powers and the subsequent admissibility of evidence obtained following an unlawful search. The Factual Scenario The facts of the case centred on a police car chase that ultimately led to a search where drugs of dependence were found on the applicant or within their motor vehicle. To justify the warrantless search, the police officers argued they had formed the requisite "reasonable suspicion" based on a combination of circumstantial observations. Specifically, the officers relied on three factors: The applicant was driving a BMW, a make of vehicle the officers asserted is commonly driven by drug traffickers. The applicant was carrying $455 in cash in his pocket, which he explained was simply money for going out to dinner. The applicant had executed a "second left-hand turn," a driving manoeuvre the officers characterised as evasive and typical of people attempting to avoid police detection. Procedural Expertise: The Lawfulness of the Search The Court of Appeal determined that these factors did not objectively establish a reasonable suspicion, rendering the search unlawful. The Court noted that the statutory requirement for police to possess reasonable grounds for suspicion prior to conducting a search under the Drugs, Poisons and Controlled Substances Act 1981 (Vic) is not a mere procedural hurdle. Rather, it must be understood as a fundamental safeguard necessary to protect individuals from arbitrary invasions of their privacy and property. Relying on broad generalisations—such as the make of a car, carrying a moderate amount of cash for dinner, or making left-hand turns—fell short of the objective threshold required to lawfully enliven the power to search. Evidentiary Issues: Application of Section 138 of the Evidence Act 2008 (Vic) Because the search was unlawful, the admissibility of the drugs was enlivened under the exclusionary provisions of section 138 of the Evidence Act 2008 (Vic). In assessing this, the Court in Murray acknowledged that section 138 and its underlying purposes are significantly derived from the common law public policy discretions developed in foundational High Court cases such as Bunning v Cross, Cleland v The Queen, R v Ireland, and Ridgeway v The Queen. The application of section 138 requires a careful balancing of two competing public policy interests: the public need to bring criminal offenders to conviction, weighed against the public interest in protecting individuals from unlawful treatment and ensuring the courts do not demean themselves by countenancing or encouraging police impropriety. The Court's Conclusion on Admissibility Despite finding that the search was unlawful, the Court ultimately admitted the drug evidence after balancing the factors under section 138(3). In evaluating the gravity of the police contravention, the Court found that the officers' impropriety sat in the "middle of the spectrum" of improper conduct. Weighed heavily against this was the nature of the evidence itself; the drugs obtained from the search were of significant probative value. The Court concluded that the desirability of admitting this highly probative evidence outweighed the undesirability of the manner in which it was obtained, leading to its admission in the proceeding
GATE 3C Designated areas (COWA ss 10D–10KA) — is the declaration itself valid? (Browne [2026] FCA 15)
In a designated area police search without warrant or suspicion — but if the declaration is invalid, every search under it is unlawful. Browne v Assistant Commissioner of Police, North West Metro Region [2026] FCA 15 (Bennett J, 23 Jan 2026): a 6-month s 10D(1)(b) declaration over the Melbourne CBD (30 Nov 2025 – 29 May 2026), conferring warrantless no-suspicion searches of persons and vehicles plus the s 10KA de-masking direction, was held unlawful and invalid. Brought by Invasion Day organiser Tarneen Onus-Browne, artist Benny Zable and David Hack (searched 7 Dec 2025 en route to a Palestine rally). → Jurisdictional error (grounds 1–2): the Assistant Commissioner misunderstood the precondition. "Necessary" in s 10D(1)(b) means essential / cannot be dispensed with — stronger than "reasonably necessary" in s 10D(2)–(3): from the deliberate change of wording [72], NSW authority (NSW v Robinson [2016] NSWCA 334; Owlstara v NSW [2020] NSWCA 217) [67]–[69], the principle of legality [80] and Charter s 32 [79]. His affidavit (a complete record) applied "appropriate" / "easiest to enforce" / "reasonably necessary", never connected the apprehended violence to necessity, and gave no basis for the area chosen — so he never formed the required state of satisfaction [97]–[103]. → Charter s 38 — both limbs (grounds 8–9): substantive (s 38(1)(a)) — a rights limitation cannot be justified if the underlying decision is unlawful [120]–[121]; procedural (s 38(1)(b)) — failure to give proper consideration to the right to privacy (s 13), squarely engaged by the broad de-masking power [135]. → s 10KA de-masking upheld: the implied-freedom-of-political-communication challenge was dismissed — a moderate, heavily-conditioned burden for the legitimate purpose of weapons safety, reasonably appropriate and adapted [144]–[173] — but only on the stricter reading of "necessary".
Why Browne matters (and how to use it): hard statutory guardrails now apply to lengthy designated areas — reliance on general crime statistics without a particularised threat is insufficient, and defaulting to the maximum 6-month duration with no explanation cannot recur.
The decision exposes systemic failures in Victoria Police decision-making and casts doubt on earlier declarations and the thousands of searches under them: a live s 138 platform where real/derivative evidence was obtained via a search under a designated-area declaration — attack the validity of the declaration first.
Note the search sequence in a designated area is prescribed: electronic wand search first, then examine things / pat-down (same-gender, least invasive, reasonable privacy), then strip search only on suspicion + necessity/urgency.
Distinguish a designated area (COWA (control of weapons); temporary executive declaration; warrantless & suspicion-less search) from a designated place (Crimes Act reg 27; permanent transport-hub boundary defining where a PSO may exercise the standard reasonable-grounds arrest power).
STAGE 1 · CUSTODIAL QUESTIONING (Subdivision 30A, ss 464–464J)¶
GATE 4 Is the person 'in custody'? (s 464(1)) — the safeguards attach here
→ In custody (s 464(1)): - under arrest by warrant; - under arrest per s 458/459; or - in the company of an investigating official for questioning/investigation, where there is enough information to justify arrest. → Functional / de facto custody: objective test — would a reasonable person feel free to leave? Delaying a formal arrest to dodge the rights does not defeat custody; un-cautioned admissions are improperly obtained. → No detention without arrest (s 464I): no power to detain a non-arrested person against their will (except s 464B(5) order to question a prisoner held on another matter).
The rights suite (must be complied with)¶
| Right | Provision | Content / case |
|---|---|---|
| Caution | s 464A(3) | Before questioning (bar name/address): need not say/do anything, but anything said/done may be given in evidence; person must understand it (Li [1993] 2 VR 80) |
| Advise of offence | s 464A(2) | Enough facts/circumstances to make an informed decision on rights; not in legal terms (R v Lancaster [1998] 4 VR 550) |
| Reasonable time | s 464A(1),(4) | Release / bail / before court within a reasonable time; s 464A(4) multi-factor list (below) |
| Communicate | s 464C | Friend/relative (whereabouts) + legal practitioner before interview; defer a reasonable time; as-far-as-practicable not overheard — unless accomplice escape, evidence loss/fabrication, or safety (s 464C(1)©–(d)); not applicable to s 49(1) RSA drink/drug driving |
| Interpreter | s 464D | Competent interpreter before questioning where English insufficient (R v Mohammed [2004] VSC 408) |
| Child / impaired | s 464E | No questioning without parent/guardian or independent person; ITP is active, not a potted palm (DPP v Toomalatai [2006] VSC 256; R v JPD [2001] VSC 202) |
| Consular (foreign) | s 464F | Non-citizen/non-PR may contact their consulate |
| Recording of rights | s 464G | Caution, rights & responses must be recorded |
| Recording admissions | s 464H | Admission for an indictable offence inadmissible unless audio/AV recorded or confirmed (below) |
| GATE 4A "Reasonable time" (s 464A(1),(4)) — multifactorial, not a clock | ||
| Factors (s 464A(4)): number/complexity of offences; time to collate/prepare; transport & crime-scene visits; number of others in custody; time to reach lawyer/family/ITP and for them to arrive; suspension for rest/medical; total time in the official's company. Length alone tells little — ask why the detention continued (R v Frugtniet). A no comment does not compel release; police may continue gathering material for a resumed interview (DPP v Hollis & Hull [2019] VSCA 110 — welfare & Charter over convenience). But detention for the improper purpose of overwhelming the right to silence exceeds reasonable time (Carrie Peters; Pollard v R (1992) 176 CLR 177). |
GATE 4B Recording of admissions (s 464H) — a strict admissibility rule
→ Rule: a confession/admission to an investigating official by a person suspected (or who ought reasonably to have been suspected) is inadmissible unless audio/AV recorded, or its substance confirmed on tape (s 464H(1)); read with s 86 EA (note-book admission must be signed). → Escape clause: may be admitted if exceptional circumstances justify reception (s 464H(2); R v Nicoletti [2006] VSCA 175); turning off the recorder at the suspect's request can be a reasonable excuse (Nicholls and Coates v The Queen [2005] HCA 1). → Currency: Lynn v The King [2025] VSCA 315 — non-compliance (unrecorded van confession + station "confirmation") renders the admission inadmissible; strong directions cannot cure the unfairness.
Right to silence — restated (s 464J) & its exceptions¶
• Name & address: compellable on reasonable belief of an indictable offence or ability to assist (s 464AA Crimes Act; s 456AA — reason must be explained; false name a summary offence).
• Communicate — when it arises: on the suspect making the wish known, even before caution (R v Shaw (1991) 57 A Crim R 425); rights need only be made clear, not offered (Pollard v R (1991) 56 A Crim R 171); official contacting the lawyer does not satisfy it (R v Crupil (1995) 86 A Crim R 229); breach → discretion (ss 90, 138) turning on deliberate/reckless vs isolated/accidental.
• Other statutory exceptions: s 55A RSA drug-impairment assessment; ss 60/60A RSA owner-of-vehicle info; MCIPA 2004 organised-crime examinations (below).
• Aboriginal suspects: inquire as soon as in custody, before questioning (s 464AAB); notify VALS within one hour or ASAP (s 464FA).
Commonwealth questioning (Crimes Act 1914): s 23C detain a reasonable time up to 4 hrs (2 hrs child/ATSI); ss 23DA/23DF Mag extension up to 8/20 hrs (terrorism 23DB); s 23F caution; s 23G communicate + have lawyer present; s 23K child (lawyer/parent/interview-friend); s 23N interpreter; s 23P consular; s 23U record rights; s 23V confessions inadmissible unless recorded / written & read back. Right to silence restated (s 23S).
STAGE 1 · FINGERPRINTS, FORENSIC PROCEDURES & IDENTIFICATION¶
GATE 5 Fingerprints (ss 464K–464Q) — age-gated (changed 30 Sep 2025)
Destruction (s 464O): within 6 months if not charged / not proceeded with / found not guilty (police may seek one ≤6-month extension); improperly retained prints must not place the person at another scene (R v Sarlija (2005) 158 A Crim R 125). Admissibility (s 464Q): prima facie inadmissible if requirements unmet; admissible only on exceptional circumstances or consent — probative value alone is not exceptional (s 464Q(3)). Short-cuts (back-dated authorisations, force without rank approval) increase gravity of impropriety (Watkins v State of Victoria [2010] VSCA 138). → 15 and over (s 464K): take on reasonable belief the person committed an offence; must inform purpose/offence/use-in-court/force-may-be-used/6-month destruction (s 464K(2)); reasonable force needs OIC or Sergeant authorisation; recorded; parent/guardian/ITP for 15–17. → 12–14 (s 464L(2), 464M): consent of child + parent/guardian, OR Children's Court order (reasonable grounds child committed the offence + order justified on seriousness/involvement/age); parent/guardian present. → Under 12 (s 464L(1)): must not be fingerprinted (Cth: under 10). Age raised 10→12 on 30 Sep 2025. → Fingerscan (s 464NA): 15+ but only to identify the person.
GATE 5A Forensic procedures / DNA (ss 464R–464ZFB)
Taken by informed consent, senior-officer authorisation, or court order? → Threshold (s 464R): reasonable grounds the procedure would tend to confirm or disprove involvement, and the person is a suspect (or charged) for an indictable offence. → Informed consent (ss 464S, 464SC): only after police explain purpose, procedure, right to a doctor/nurse, the suspected crime, DNA-database use, the right to refuse, and the consequence of refusal; giving of info recorded (may consent even if refused a lawyer — R v Su (2003) 7 VR 13). → Senior officer (ss 464SA, 464SE, 464SF): not the investigator; on refusal, may authorise a non-intimate sample / adult DNA in custody where reasonable grounds + justified; lawyer must get a reasonable chance to make submissions; written authorisation to the suspect/lawyer. → Court order (ss 464T, 464V): Mag on balance of probabilities: reasonable grounds person committed the offence + a s 464T(3) circumstance (material at scene/on victim etc.); suspect present unless interim (s 464V); reasons for making, not refusing (Kirsch v Dolman [2001] VSC 234). → Compel / caution (ss 464X, 464Y): warrant to detain for a compulsory procedure; caution that no answer to the practitioner is required but may be used.
Intimate vs non-intimate (s 464(2)):
Intimate = blood; pubic hair; swab/washing from genital/anal area, buttocks or (female) breasts; dental impression.
Non-intimate = saliva/buccal scrape; hair (non-pubic); nail scrapings; external swab/washing.
Fingerprints are not a forensic procedure in Vic (separate s 464K subdivisions); the Cth definition (s 23WA) does include prints, photos and footprints.
Secondary transfer: touch/trace DNA proves presence of material, not presence of the person or the criminal act (Fitzgerald v R [2014] HCA 28) — demand exhibit-handling logs for contamination pathways.
Forensic sample — pathways & destruction¶
| Pathway | Provision | Notes |
|---|---|---|
| Informed consent (adult DNA) | s 464SC | Over 18 + suspected indictable; buccal swab/blood most common; destroy at 12 months if not charged (s 464SD) |
| Senior-officer authorisation | ss 464SA, 464SE | Non-intimate sample / adult DNA in custody after refusal; must be justified; lawyer submissions (s 464SF) |
| Court order | ss 464T–464V | Relevant suspect + a s 464T(3) circumstance; child 12–17 via Children's Court (s 464U), notice + parent/ITP present |
| Post-conviction | ss 464ZF, 464ZFB | Forensic-sample offence (Sch 8/any indictable); court has wide discretion — guilt alone insufficient (R v Skura [2003] VSC 290; R v Abebe [1999] VSC 214); appeal by judicial review only (R v Sari [2008] VSCA 137) |
| Registrable offender | s 464ZFAB | Direct a registrable offender to undergo a procedure; 28 days from personal service; may be retained indefinitely |
| Destruction / admissibility | ss 464ZE, 464ZG | Results inadmissible if steps not followed unless consent or justified (s 464ZE); destroy identifying info if not charged within 12 months / not convicted (s 464ZG) |
Photographs, ID parades & compelled samples¶
• Photographs (common law): probably a power to photograph for identification only, not to record injuries/markings indicating guilt (R v Ireland [1970] HCA 21); a suspect may take evasive action short of assault; Cth s 3ZJ identification material with senior-officer authority.
• Identification parade: no one can be compelled; refusal is admissible only to explain why lesser means were used; s 114 EA gives parade evidence priority (other visual ID inadmissible unless a parade was held or good reason not); lawyer/friend a passive observer; Cth s 3ZO prefers parades over photos.
• Voice/handwriting: protected by the privilege against self-incrimination unless compelled by court/statute.
• Cognitive impairment (CMIA): where the suspect cannot give informed consent, police must apply to a Magistrates' Court for a forensic procedure.
STAGE 2 · IF UNLAWFUL/IMPROPER — IS THE EVIDENCE EXCLUDED? (s 138 EA)¶
GATE 6 s 138 threshold + balance
Was the evidence obtained improperly / in contravention of a law — or in consequence of it? (s 138(1)) s 138(1): such evidence is inadmissible unless the desirability of admitting outweighs the undesirability, given how it was obtained. s 139: no caution (or wrong-language caution, s 139(3)) makes the questioning improper → feeds s 138. Onus (DPP v Marijancevic; DPP v Preece [2011] VSCA 355; (2011) 33 VR 440): accused shows impropriety on the balance of probabilities (Downes v DPP [2000] NSWSC 1054; Willis v The Queen (2016)) → prosecution justifies admission. Lineage: a modified Bunning v Cross (1978) 141 CLR 54 discretion (Ridgeway (1995) 184 CLR 19) — but s 138 reverses the onus and is broader, reaching civil/civilian conduct (Kadir & Gretch v The Queen [2020] HCA 1; (2020) 267 CLR 109 — inability to obtain evidence lawfully does not weigh in favour of admission).
s 138(3) factors — the court MUST consider (non-exhaustive)¶
• (a)–© probative value; importance in the proceeding; nature of the offence/subject-matter (serious offending militates both ways — McElroy v The Queen).
• (d)–(e) gravity of the impropriety/contravention; whether deliberate or reckless. Spectrum (Marijancevic [67]): least — no knowledge of illegality, no advantage gained; middle — known-improper but not for advantage; most — known-illegal, pursued for an unobtainable advantage; plus whether the practice is widespread/entrenched.
• (f)–(h) whether contrary to an ICCPR right (art 17 privacy); whether other proceedings are likely; the difficulty of obtaining the evidence without the impropriety (Kadir).
Exclusion pathways at a glance (admissions → also run ss 84/85/90)¶
| Provision | Applies to | Trigger | Onus | Effect |
|---|---|---|---|---|
| s 138 | Any evidence (real, derivative, admissions) | Improperly/illegally obtained, or in consequence | Accused shows impropriety → prosecution justifies | Discretionary balance (s 138(3)) |
| s 139 | Answers from questioning | No caution / wrong-language caution | — | Deems obtaining improper → feeds s 138 |
| s 84 | Admissions | Violence, oppression, or threat of it | Prosecution (once raised) | Mandatory exclusion |
| s 85 | Admissions to investigating official | Circumstances make truth unlikely reliable | Prosecution | Mandatory exclusion |
| s 90 | Prosecution admissions | Unfair to the accused to use it | Accused | Discretionary exclusion |
| Bunning v Cross | Common-law residue | Unlawful/improper investigative conduct | Common-law balance | Public-policy discretion; s 138 now governs |
Voir dire checklist: which search power is relied on? what were police looking for (a particularised item)? how was the reasonable belief/suspicion formed? were the goods seized under that statutory/common-law power? was the search & seizure lawful? — then run s 138(1) (defence) → s 138(3) (prosecution).
OVERLAY · Charter of Human Rights and Responsibilities Act 2006¶
• s 38(1): a police breach of a human right is a contravention of a law engaging s 138(1) (DPP v Kaba (2014) 44 VR 526); no breach where they could not reasonably have acted differently (s 38(2)).
• Rights engaged: privacy (s 13(a)); liberty & no arbitrary detention (s 21(1)–(2)); freedom of movement (s 12); humane treatment / dignity in arrest (s 22(1), with s 462A — Gebrehiwot).
• Feeds s 138(3)(f): a Charter/ICCPR breach (liberty art 9(1); movement art 12(1); privacy art 17(1)) aggravates toward exclusion (Kaba). A pretextual stop escalated into suspicion-less questioning is arbitrary (DPP v Kaba [2014] VSC 52).
• Interpretation & remedy (ss 32(1), 39(3)): read statutes compatibly so far as possible (Momcilovic (2011) 245 CLR 1; Slaveski v Smith (2012) 34 VR 206); no damages for a Charter breach alone (s 39(3); confirmed in Gebrehiwot).
• Public-authority decisions (s 38): a public authority that misreads its power and ignores privacy breaches s 38 on both limbs — the decision (and every search made under it) falls (Browne [2026] FCA 15; see GATE 3C).
ANNEX · Further coercive & investigative powers¶
Coercive questioning (organised crime & integrity)¶
• Major Crime (Investigative Powers) Act 2004: s 5 police apply to Supreme Court (with Chief Commissioner approval) on reasonable suspicion of an organised crime offence (s 3AAA: indictable, level 5+ / 10 yrs, 2+ offenders, planning/systemic-profit or declared members); s 8 order if reasonable grounds + public interest; ss 14/15 witness summons; s 30 not bound by rules of evidence; s 39 privilege against self-incrimination abrogated (LPP preserved s 40); ss 37/38 failure/false evidence an offence (Chief Examiner v Camilleri [2006] VSC 442 — 6 months for refusal); ss 20/43 confidentiality/non-publication (AJH v Chief Examiner [2011] VSC 499).
• ACIC (Australian Crime Commission Act 2002 (Cth)): s 7A functions; s 22 search warrants (eligible person, reasonable suspicion re a special ACC operation/investigation); s 24A pre/post-charge examinations; abrogated privilege with use restrictions.
• Other: Police Integrity Act 2008 (examinations, ss 61–83); Crimes (Controlled Operations) Act 2004 (controlled conduct, ss 28–31); CPA 2009 ss 103–106 compulsory examination (before committal; accused not a party); Public Prosecutions Act 1994 s 22 indemnities/undertakings.
Surveillance, intercepts & specialist search¶
• Surveillance Devices Act 1999 (Vic): s 3 device types; s 14 SC judge any warrant, Mag tracking-device only; s 15 apply on reasonable suspicion an offence committed + device necessary; s 19 what the warrant authorises; ss 20C–20H retrieval warrant.
• Commonwealth: Telecommunications (Interception and Access) Act 1979 (s 9 AG-authorised interception, security); Surveillance Devices Act 2004 (Cth) (offences ≥ 3 yrs); Customs Act ss 219L–219ZE (frisk/external/internal searches); Confiscation Act 1997 s 79A (tainted/forfeited property).
• Name/address & LPP: s 464AA Crimes Act / s 3V Cth (Cth needs belief the person committed the offence, not mere assistance); legally privileged documents may not be inspected/seized under warrant (Baker v Campbell (1983) 153 CLR 52).
Family violence — powers & firearm consequences (FVPA 2008)¶
• Entry & search: s 157 enter on reasonable belief of assault/threat/breach (reasonable force s 157(2)); s 159 search without warrant premises/vehicle for firearms where an FVSN/FVIO/recognised DVO applies + awareness/reasonable grounds of possession; s 160 warrant (Mag, ≤ 7 days) for Act offence or firearm; ss 159A/163 extra rules for interstate orders.
• Family Violence Safety Notice (ss 24–35): Sergeant+ may issue on the spot where an IVO is not in place and a notice is necessary for safety/property/child; doubles as an FVIO application + summons (first mention ≤ 5 working days).
• Firearm return/forfeiture (ss 164–165): on a final order, a seized firearm returns only if the person is declared not a prohibited person (Firearms Act 1996) and it is not needed as evidence; otherwise forfeited/sold with proceeds paid. Prohibited person (s 3(1)) includes FVIO respondents (order + 5 yrs), CCO supervision, indictable/firearm findings of guilt (12 months), FPO subjects, serious-offender orders.
Currency watch (dated)¶
• 1 Sep 2025 — machetes classified as prohibited weapons (blade > 20 cm) in Vic; sale/possession banned — expands COWA s 10/s 11 search scope (web-verified).
• 30 Sep 2025 — minimum age for fingerprinting raised 10 → 12 (ss 464L, 464M); also forensic-procedure age floor 12.
• 1 Jul 2025 — Victorian Institute of Forensic Medicine Act 2024 ss 50–51 commenced (forensic-procedure context).
• 2025 (COWA reform) — designated-area declarations extendable up to 6 months (was 12 hrs); s 10D expanded (incl. s 10D(2A) key transit points) and s 10I(4) electronic search notices, inserted by the Terrorism (Community Protection) and Control of Weapons Amendment Act 2025 (web-verified).
• 10 Dec 2025 & 4 Mar 2026 — Justice Legislation Amendment (Police and Other Matters) Act 2025 commenced in stages; incl. transitional saving of ss 464T–464X.
• 23 Jan 2026 — Browne v Assistant Commissioner of Police [2026] FCA 15: 6-month Melbourne CBD designated-area declaration held invalid (jurisdictional error + Charter s 38); casts doubt on prior COWA declarations and searches under them (web-verified).
• 4 Mar 2026 (now in force) — Summary Offences Act 1966 protest powers: direction to remove a face covering at a public protest; lock-on device offences (ss 6E–6H); expanded seizure/search-warrant powers (web-verified).
• Verify — not yet confirmed in force — "Jack's Law" Control of Weapons Amendment (Establishing Jack's Law, Use of Electronic Metal Detection Devices) Bill 2025 (random suspicion-less wanding in public places) was introduced Nov 2025; commencement not web-confirmed as at 12 Jul 2026 — check before relying.