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Communtity Law Manual | Common crimes | The shop’s powers and your rights

Shoplifting

The shop’s powers and your rights

Does a shop have the right to search my bag?

Shop staff have no right to search your bag, even if they have a sign by the entrance or inside the store that says they can do this. If they ask to search your bag you can refuse. If they then use force to search your bag, they may be committing a criminal assault, and you may also have a civil claim against them for damages (compensation).

However, shops can require you to leave your bag outside the store before you come in. They can also require you to leave the shop if you’re inside.

Trespass Act 1980, s 3

Even if shop staff or security guards carry out a lawful “citizen’s arrest” for shoplifting and forcibly keep you in the shop until police arrive (see below), they still have no right to search you or your bag.

Can a store stop me from leaving if they think I’ve been shoplifting?

Not usually. Shop staff or security guards can forcibly prevent you leaving the shop only in two kinds of situations:

Crimes Act 1961, ss 35, 37, 39, 219, 223

  • expensive items – if the things they suspect you of stealing are worth $1,000 or more (a higher-end laptop for example), or
  • night time – if it’s between 9.00 pm and 6.00 am (when you’re in an all-night service station for example).

They also need to have “reasonable and probable grounds” for believing that you’ve stolen the items. A vague suspicion won’t be enough.

In these cases, the shop staff or guard would be carrying out what’s sometimes called a “citizen’s arrest”, and they can use reasonable force to hold you. However, they still don’t have the right to search you or your bag without your consent.

If neither of those situations justifying a citizen’s arrest apply, the shop can ask you to remain but you don’t have to do so – you can simply walk away. The shop can then call the police if they choose to. If you do agree to staying or going back to the shop, you can change your mind at any time. You also don’t have to give them any information.

If the shop staff or security guards forcibly hold you when they’re not entitled to – for example, by locking you in a room – they may have committed a criminal assault. You may also have a civil claim against them for damages for false imprisonment or civil assault or both.

Can the shop make me pay them a fee or fine on top of the cost of the goods?

Some stores send out “civil recovery notices” to shoplifters, saying they have to pay a flat fee within a set time – for example, a fee of $275 to be paid within 21 days. It’s doubtful whether these notices are legally enforceable in themselves, and you can refuse to pay them.

You don’t have any legal responsibility to pay the amount stated in the notice unless and until the store proves a civil claim against you for that amount in the Disputes Tribunal or the District Court. To do that they would need to show that in your particular case you caused the specific loss they’re claiming, as opposed to simply claiming a “blanket” fee from all shoplifters.

If a store does obtain a decision in their favour from the Tribunal or the courts, they can then use the available measures to enforce the decision – such as getting a warrant from the court for your property to be seized so they can recover the amount of their claim.

Can a shop give me a trespass notice to prevent me entering?

Trespass Act 1980, ss 3, 4, 11

Yes. A shop is private property and the owner or manager can refuse to allow you to enter or can ask you to leave once you’re inside, so long as they don’t breach the anti-discrimination laws in doing this (see the chapter “Discrimination”). If you stay in the shop after you’ve been told to leave, you’re committing the criminal offence of trespass.

While you’re in the shop or after you’ve left, the shop can warn you to stay out of the shop, if they have good reason to think you’re likely to come back. The warning doesn’t have to be in writing. If you then go back into the shop within the next two years after the warning, this is a criminal offence. When the shop gives you a trespass warning, people sometimes call this “trespassing” you.

The courts can also give you a warning to stay out of the shop if you’re convicted of trespassing, and the same two-year ban will apply.

If you commit any of those trespass offences, you can be fined up to $1,000 or jailed for up to three months.

Note: If you go back into the shop after getting a trespass warning and you shoplift again, you could also be charged with “burglary”, rather than just being charged with trespass and theft. This is because you no longer have a legal right to enter the shop (unlike other members of the public).

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