When is detention of a suspected shoplifter reasonable?

In two recent Magistrates’ Court decisions, Dibbs Abbott Stillman acted on behalf of Woolworths limited, where the issue addressed was ‘when it is reasonable to detain a suspected shoplifter?’.
In the cases of Joyce Bosch v Woolworths Limited, and Maxine Bosch v Woolworths Limited, Norsworthy and Hebbard considered the claimants’ allegations that they had been wrongfully arrested and falsely imprisoned.

Joyce Bosch (the First Claimant) and Maxine Bosch (the Second Claimant), mother and daughter, were suspected of shoplifting by the store security guard and arrested with the assistance of the store manager. 

It was not disputed that the security guard had arrested the Claimants, that they had been detained for approximately 2 hours until the Police arrived and that, should either the security guard or store manager be liable, Woolworths would be vicariously liable.

The First Claimant alleged to have had a faulty can of deodorant for which she had been given permission to exchange.  She said that, on the instruction of an unidentified Woolworths employee, she had selected a new item from the store shelves, placed it in her handbag and shown it to a checkout operator as she walked through the checkout. She admitted to being an avid shopper and one that had exchanged goods on previous occasions. She also admitted that putting the deodorant into her handbag, as she did, would constitute a suspicious circumstance. 
The Second Claimant admitted that she passed through a checkout and paid for two items, with a value of $4.60, and that she had almost $200 worth of goods in her trolley which were not paid for. She alleged that she did not have her purse with her and that the checkout operator had told her to pass through the checkout area and wait for her mother to arrive with her purse. She denied putting Woolworths goods into plastic bags, such as shopping bags marked with a Big W logo. She said that she did not leave the store boundary to proceed into the Mall of the shopping centre. 

The security guard said that she saw the First Claimant place the deodorant into her handbag and that she saw both Claimants moving about the shopping trolley in order to conceal their actions of transferring goods from the basket or trolley into shopping bags. Further that she observed the Second Claimant leave the store with goods she suspected were not paid for. She said that she arrested the Second Claimant about 3 or 4 metres into the Mall area. 

Magistrate Boothman held that an ordinary citizen’s power of arrest was derived from Section 564(2) of the Criminal Code of Western Australia and that, where a person is reasonably suspected of committing an arrestable offence of stealing, a citizen may arrest that person and hold them until the Police are able to arrive.  Accordingly, for the Defendants to be liable for wrongful arrest, the claimants needed to show that the third defendant acted dishonestly or that her suspicions were unreasonable.

Magistrate Boothman held that, by putting a deodorant into her handbag the First Claimant had acted in ‘suspicious circumstances’, this was admitted by the First Claimant. He also held that the Second Claimant, by  passing through the till in circumstances not in keeping with the ordinary course of business of selection and purchase of goods, would also have been in ‘suspicious circumstances’.    

Accordingly, he held that the security guard and the store manager had ‘acted reasonably within the terms of section 564 of the Criminal Code’. The claims of the first and Second Claimants were dismissed.


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