“The complainant was of a different physique to the woman in the CCTV stills and she used a mobility scooter rather than a wheelchair. Further, the suspect in the stills was an amputee whereas the complainant had both of her legs.”
Police realised they had the wrong woman on arrival at the police station and apologised after taking her home in the back cage of the car again.
Mr Zilko wrote the woman was left shaken and was still in fear of police and receiving counselling.
“She also suffered a shoulder injury in entering and exiting the rear unit of the vehicle,” he wrote.
“I understand that the police have recently undertaken to reimburse her for her out-of-pocket medical expenses, but I am not aware whether this has occurred.”
The woman was arrested without a warrant, which is allowed under the Criminal Investigation Act where a police officer believes a serious offence has or could take place.
Stealing can carry a penalty of seven years imprisonment but Mr Zilko said it was fanciful to propose anyone would receive at least five years in jail for stealing hair dye.
“No reasonable person could have thought such an outcome likely,” he wrote.
“In my view a reasonable observer would conclude that, once the arresting officers realised that they were not in possession of the case file, they should have returned to the police station, which was some two minutes away, to retrieve the file and thereby ensure that their suspicions were well-founded.”
The CCC takes a different view
Mr Zilko wrote to the CCC in December saying he believed the arrest had been unlawful since the offence could not be considered ‘serious’ and the two police officers should be charged with unlawful arrest.
But the CCC told Mr Zilko it had concluded, taking into account what the officers knew at the time, they had reasonable grounds to make the arrest.
Mr Zilko wrote the CCC did note the powers of arrest were discretionary and the incident was a reviewable police action.
The inspector was still disturbed, however, by the treatment of the complainant and the potential broader implications.
He said no matter how trivial, a stealing offence could be considered ‘serious’ and not require a warrant even if the item taken only had a few dollars of value, like a chocolate bar.
Mr Zilko concluded a law change could be desirable and has written to the Attorney-General John Quigley to consider amending police powers for arresting people without a warrant.
The issue has been passed on to Police Minister Paul Papalia, who is now considering whether changes are needed.
WA Police, the minister, and the Attorney-General were contacted for comment.