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Police allegations

The police have indicated that, in support of their overall position that Steven should not be granted bail, they will make the following two submissions (amongst others):

1.That on 4 May 2018, Steven intentionally fled from Constable Matthews’ legal custody (the police want to use this as an example of the unacceptable risk of Steven absconding).

2.That on 6 May 2018, John legally arrested Steven and therefore Steven’s assault of John was an unlawful assault (the police want to use this as an example of the unacceptable risk of Steven absconding, or committing further offences).

Written Submissions

At the end of the hearing of the evidence, the Magistrate decided that she would hear legal submissions about whether or not Steven should be granted bail on another occasion. Her Honour noted that she would be greatly assisted by written submissions being provided prior to the adjourned date, in particular, written submissions that addressed the following questions (with reference to legal authority):

1.On 4 May 2018, had Steven been arrested, and did his actions therefore constitute an escape from legal custody?

2.On 6 May 2018, did John have power to arrest Steven?

3.Generally, having regard to the proper legal tests that apply to Steven’s situation, should Steven be granted bail? And if so, what conditions should she impose?

To that end, please prepare written submissions that address these three questions.

Oral submissions

Following your written submissions, more information will be sent to your re your oral submission (time, method etc). Each oral submission should take about approximately 10-15 minutes. Within the 10-15 minutes you will be given an opportunity to summarise the essence of your written submission and to respond to questions from the assessor about your written submission.

The Learning Outcomes that this assessment task is designed to assess are as follows:

Unit Learning Outcome (ULO)

Graduate Learning Outcome (GLO)

Explain and apply the law that governs police powers of arrest. appropriate to the level of study related to a discipline or profession

Explain and apply the principles of law that decide whether bail is granted. using oral, written and interpersonal communication to inform, motivate and effect change

Effectively communicate a bail application.

Using technologies to find, use and disseminate information evaluating information using critical and analytical thinking and judgment creating solutions to authentic (real world and ill-defined) problems.

Police Allegations

Tracing back at the facts of 4 May 2018. Steven was at Doncaster Shopping Center in JB Hi-Fi looking at DVDs. Coincidentally, Constable Matthews was also present in the area. It is immaterial whether he was on duty or off duty because a cop is a cop every day of his life: whether on uniform or not. He is still able to, and is expected to undertake his roles as a cop even when off duty.  So upon seeing Steven looking at DVDs, the constable yells loudly at Steven and makes the statement “Oi, Steven, come here!” The question here is whether Steven was arrested and his actions constitute an escape from legal custody. Whether the shouted statements made by the constable constitute an arrest and subsequently, Steven’s act of walking away constitute an escape from legal custody.

An arrest occurs when an officer or person with the right to arrest seizes or forcibly restrains another person. Four elements have to be proven for an arrest to have occurred: intent, authority, detention and understanding. A look into the facts of 4th May will help assess whether all of these elements were evident in the constable actions towards Steven.

Intent entails an officer transmitting his or her desire to undertake an arrest on an individual either verbally or through actions. The absence of it means there is no arrest. When the constable yelled at Steven, his statements were as basic as they were. There was an absence of will in the act which consummates the crime being committed. One could not tell the aim of the sentiments being made. There was no formulated design in them so that it could have turned out to something like “Steven, you are under arrest.” Precisely, there was no portrayal of the desire to arrest in the yelling made by Steven. It was a plain statement that a reasonable person would assume as a call up.

The question of authority is indisputable. Federal laws allow police officers to make arrests on citizens whether they are on duty or not. Constable Matthews was still a police officer capable of undertaking an arrest and that cannot be questioned.

Seizure and understanding are the other aspects of arrest which are absent in Steven’s case. Indeed these aspects can only be achieved if the suspect cooperates with the officer and the lack of cooperation means an escape from legal custody. However, the fact that the officer failed in his show of intent to arrest Steven means that the suspect had no reason to submit himself before the officer. Since Steven did not submit himself to the police officer –having no knowledge that he was being sought after-, there was no component of arrest in the name of seizure or detention. Should the police officer have managed to control him in his actions, then an arrest would have occurred. As for understanding, there was no sufficient communication between the officer and the suspect to warrant an understanding that the latter was being arrested.

Written Submissions

In the foregoing, it is evident that no arrest had taken place. The failure of a police officer to show intent means there is no arrest in place. His statement would suffice as a mere calling on another person. The individual being called has the option of either heeding to the call or walking away. No one can be forced to heed to a mere call. Additionally, in as long as the suspect has neither been taken into custody nor has he voluntarily submitted to the police officer’s authority, there is no arrest. The lack of these elements in the interaction between Constable Matthews and Steven disqualify his actions as an arrest. Consequently, Steven’s act of walking away does not constitute an escape from a legal arrest. His acts were justified since the police officer had given him the chance to either heed to his call, or walk away.

On 6 May 2018, John claims to have witnessed Steven rob the Doncaster McDonalds. In the foregoing, the question is whether John had the power to arrest Steven.

Section 100 of the Law Enforcement (Powers and Responsibilities) Act 2002 outlines the circumstances under which a citizen, other than a police officer, is allowed to undertake a legal arrest. This encompasses where a person is in the act of committing a crime or has just committed the crime. However, there are certain limitations to undertaking a citizen arrest and one of these is the lack of a justifiable cause. Making a citizen’s arrest has to be on the basis of having seen the individual you are arresting committing the offence and not just a mere suspicion that he could be the person. In other words, one has to be certain that the person he is arresting has taken part in the crime in question. It is opposed to the police officer’s principle of probable cause. So the question to the citizen arresting is whether he has positive identification of the person he is arresting.

According to the description given by John, the man whom he saw at the McDonald’s counter had black hair and was wearing a brown jacket. Additionally, John was certain that the man he saw at the restaurant was 170 cm tall. He had measured his height against stickers on the side of the door as the man exited the restaurant. However, these facts that prove his identification of the supposed robber does not correlate with the person he arrested an hour later. Steven is 180cm tall. When apprehended at the bus stop, he was wearing a brown jacket.  

Oral Submissions

Notable is the fact that John did not wait at the restaurant to see what happened next. After seeing the manager make a phone call, and being convinced that he had witnessed a robbery, it was reasonable for him to wait around to find out. He left McDonald’s and only arrested Steven an hour later.

Going by the facts on description stated, it is evident that there was likelihood of mistaken identity. The contrast in color of attire and the inconsistency in supposed height is proof of a possible mismatch. The underlying rule for taking a citizen’s arrest is that there has to be a justifiable cause. Any ground of suspicion deletes the right to undertake a citizen arrest. There were conflicting ideas of the person seen at the restaurant and the personality arrested at the bus stop, enough to wipe out John’s right to undertake an arrest. What happened was a mere suspicion and there was a great chance of mistaken identity. As a result, John had no powers to arrest Steven and the arrest was prima facie unjustifiable.

The reaction that followed is equally reasonable. John ought to have considered his personal safety prior to making an unlawful arrest. There were avenues of doubt created by the inconsistent descriptions. Ideally, one would react that way for being falsely accused. Besides instead of initiating a charge for assault, Steven has the right to successfully institute a legal suit on the grounds of false imprisonment.

The legal tests to be considered prior to granting bail is the probability that the accused person will appear before the court, the accused person’s interests and the welfare and protection of the community. While considering appearance, the officer looks at the any previous account of failed appearance, nature and seriousness of the offence and the suspect’s background as well as community ties. The nature of the crime in question is not one that would prompt a failure to appear before the court. It is not a capital offence. Besides, the fact that Steven is well known to the police means that he is unlikely to get out of their vicinity.

The condition to be looked at here is the interest of the accused person. While considering this, a number of factors have to be taken into account. As provided in the Bail Act, one factor that has to be considered by an officer in making bail decisions is the interests of the accused: asking questions such as whether the respondent is injured or has special needs arising from a mental incapacity or intellectual disability. With respect to this, Steven suffers from bipolar disorder. It would be a contravention of law placing Steven in remand knowing that he is mentally ill.

Another aspect of the accused person’s interest is whether or not the individual is, in the view of the court or authorized, incapacitated by intoxication, injury or use of a drug or is culpable of physical injury or requires physical protection. Steven is addicted to methamphetamine and has repeatedly sought treatment in the past but frequently relapses back into drug use. It is a contravention of the Bail Act to deny him Bail knowing that he is a drug addict and incapacitated by the use of such drugs.

Finally, a mitigating factor of consideration in this case is the welfare situation of the accused person. In the foregoing, Steven is a sole trader and he is the breadwinner for his family. Without him, the family cannot move on. He has a daughter who is seriously ill with leukemia for whom his presence and support is essential for her well-being. It beats the presumption of innocence till proven guilty to put an innocent person in custody especially when the person is instrumental in the well-being of his family and his sickling child.

As already proven, Steven did not flee from Constable Matthews’ legal custody. The officer did not show an intent to arrest and the accused merely walked away from an unheard call. Therefore, the police’s reliance on such an allegation as an example of the unacceptable risk of Steve absconding is unjustifiable. It has also been proven that the assault charges on Steven are frivolous and unfounded. The police’s reliance on such charges as an example of the unacceptable risk of Steven absconding is also unfounded. It is inappropriate to reject bail application on the basis of any of these factors. For the reasons stated above, the accused person deserves to be given bail.


Del Carmen R V Criminal procedure: Law and practice. (Cengage Learning, 2013).

Wilson J Q and Petersilia J Crime and public policy (Oxford University Press, 2010)

Australian Federal Police Citizen’s Power of Arrest <>

Barrett J, In what situations can you make a citizen's arrest? (2017). <>

Burton’s Legal Thesaurus 4E Arrest <>

Devine F E “Bail in Australia” Australian Institute of Criminology (2006). <>

Victoria LegalAid Police Powers: Your Rights in Victoria (2017). <>

Whalen W Elements of an Arrest (2017) <>

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