· Web viewHalliday v Nevill (1984) 155 CLR 1 at 12; [1984] HCA 80 per Brennan J; Williams at 292 – 293 per Mason and Brennan JJ. At common law it was compulsory for a constable,

Court of AppealSupreme Court

New South Wales

Case Name: Robinson v State of New South Wales

Medium Neutral Citation: [2018] NSWCA 231

Hearing Date(s): 28 June 2018

Decision Date: 16 October 2018

Before:

McColl JA at [1];Basten JA at [131];Emmett AJA at [196]

Decision:

(1) Appeal allowed. (2) Set aside the orders of Taylor DCJ and in their place make the following orders: (a) Judgment for the plaintiff in the sum of $5000, such judgment to take effect from 3 August 2017;(b) Defendant to pay the plaintiff’s costs. (3) Respondent to pay the appellant’s costs of the appeal and the application for leave to appeal.

Catchwords:

TORTS – intentional torts – false imprisonment and wrongful arrest – where no decision to charge made at time of arrest – whether arrest lawful – purpose of arrest – Law Enforcement (Powers and

Responsibilities) Act 2002 (NSW), s 99 STATUTORY INTERPRETATION – contextual construction – relevance of pre-existing common law to construction of statutory scheme – principle of legality – use of legislative history and extrinsic materials WORDS AND PHRASES – “arrest” – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14Crimes Act 1900 (NSW), ss 352, 353, 353A, 355, 356B, 356C, 356D, 356W; Pt 10ACrimes Amendment (Detention after Arrest) Act 1997 (NSW), Pt 10ACriminal Code (Qld), s 679Criminal Law Amendment Act of 1883 (46 Vic. No.17), s 429Criminal Procedure Act 1986 (NSW), s 281Crown Proceedings Act 1988 (NSW), s 5Justices Act 1959 (Tas), s 34A(1)Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 3, 4, 7, 99, 105, 107, 109, 111, 113, 114, 115, 116, 117, 121, 131, 201; Pt 8, Pt 9Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6, 8, 8KPolice Administration Act (NT), ss 123, 133AB, 137Road Transport Act 2013 (NSW), Sch 3Terrorism (Police Powers) Act 2002 (NSW), s 25E; Pt 2AA

Cases Cited:

A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10Adams v Kennedy (2000) 49 NSWLR 78Alderson v Booth [1969] 2 QB 216Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; [2014] HCA 42Attorney-General (NSW) v Dean (1990) 20 NSWLR 650Bales v Parmeter (1935) 35 SR (NSW) 182Christie v Leachinsky [1947] AC 573CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2Clarke v Bailey (1933) SR (NSW) 303Cleland v The Queen (1982) 151 CLR 1; [1982] HCA 67Clyne v State of New South Wales [2012] NSWCA 265Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; [1955] HCA 27Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; (2001) 21 NSWCCR 389Director of Public Prosecutions v Nicholls [2001] NSWSC 523; (2001) 123 A Crim R 66Donaldson v Broomby (1982) 60 FLR 124Dowse v New South Wales [2012] NSWCA 337; (2012) 226 A Crim R 36Drymalik v Feldman [1966] SASR 227Foster v The Queen [1993] HCA 80; (1993) 67 ALJR 550George v Rockett (1990) 170 CLR 104; [1990] HCA 26Glinski v McIver [1962] AC 726Halliday v Nevill (1984) 155 CLR 1; [1984] HCA 80John Lewis & Co Ltd v Tims [1952] AC 676Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422Leachinsky v Christie [1946] KB 124Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39Lule v State of New South Wales [2018] NSWCA 125Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001]

HCA 37Mighty River International Ltd v Hughes; Mighty River International Ltd v Mineral Resources Ltd [2018] HCA 38Minogue v Victoria [2018] HCA 27; (2018) 92 ALJR 668Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194Nolan v Clifford (1904) 1 CLR 429North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28R v Bathgate (1946) 46 SR 281R v Dungay [2001] NSWCCA 443; (2001) 126 A Crim R 216R v Walsh (Court of Criminal Appeal (NSW), 18 October 1990, unrep)Regional Express Holdings Ltd v Australian Federation of Air Pilots [2017] HCA 55; (2017) 92 ALJR 134Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48Sharp v Biggs (1932) 48 CLR 81; [1932] HCA 54Smith v Corrective Services Commission of NSW (1980) 147 CLR 134; [1980] HCA 49State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185State of New South Wales v Smith [2017] NSWCA 194SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936Thompson v Vincent [2005] NSWCA 219; (2005) 153 A Crim R 577Trobridge v Hardy (1955) 94 CLR 147; [1955] HCA 68Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5Webster v McIntosh (1980) 49 FLR 317Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88Wilson v New South Wales (2010) 207 A Crim R 499; [2010] NSWCA 333Wilson v New South Wales [2011] HCATrans 218Wright v Court (1825) 4 B&C 596; 107 ER 1182Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320

Texts Cited:

Law Enforcement (Powers and Responsibilities) Bill 2002 (NSW) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2002 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 October 2013 New South Wales Legislative Assembly, Second Reading speech for Law Enforcement (Powers and Responsibilities) Amendment (Arrest Without Warrant) Bill 2013 (30 October 2013) P Gillies, The Law of Criminal Investigation (Law Book Co, 1982) Parliament of New South Wales, House and Tabled Papers, Review of the Law Enforcement (Powers and Responsibilities) 2002 (25 October 2013)

Category: Principal judgment

Parties:Bradford James Robinson (Appellant)State of New South Wales (Respondent)

Representation:

Counsel:D Toomey SC / D Woodbury (Appellant)J K Kirk SC / G J Bateman and P F Herzfeld (Respondent) Solicitors:Foott, Law & Co (Appellant)McCabes Lawyers Pty Ltd (Respondent)

File Number(s): 2016/145043

Decision under appeal:

Court or Tribunal: District Court of New South Wales

Jurisdiction: Civil

Citation: [2017] NSWDC 289

Date of Decision: 03 August 2017

Before: P Taylor SC DCJ

File Number(s): 2016/145043

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE[This headnote is not to be read as part of the judgment]

At 5 pm on 22 December 2013, the appellant attended a Sydney police station

in response to attempts by police to contact him. Upon attendance he was

immediately arrested, without warrant, for breach of an apprehended violence

order. The appellant was offered, and accepted, the opportunity to participate

in a record of interview. He was released without charge at 6.18pm, following

the conclusion of the interview.

The appellant commenced proceedings against the State of New South Wales,

claiming damages for wrongful arrest and false imprisonment. The trial judge

(P Taylor SC DCJ) dismissed the appellant’s claim.

The trial judge accepted the arresting officer’s evidence that a decision whether

to charge the appellant depended on what he said in the interview and that, at

the time of the arrest, he had not decided to charge him.

On appeal, the key issue was whether the arrest of the appellant was lawful

under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

(LEPRA), s 99, in circumstances where there was no positive intent to lay

charges at the time of arrest.

Section 99 of LEPRA relevantly provides:

99 Power of police officers to arrest without warrant

(1) A police officer may, without a warrant, arrest a person if:

(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and

(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons:

…

(iv) to ensure that the person appears before a court in relation to the offence,

…

(ix) because of the nature and seriousness of the offence.

…

(3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law.

Note. The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer—see section 105.

(4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part.

The Court (McColl JA and Basten JA, Emmett AJA dissenting) allowed the appeal and held:

Per McColl JA and Basten JA:

1. LEPRA s 99 must be construed in its context, including general law

principles concerning the scope and purpose of arrest: [34]-[35]; [132].

North Australian Aboriginal Justice Agency Limited v Northern Territory (2015)

256 CLR 569; [2015] HCA 41; CIC Insurance Ltd v Bankstown Football Club

Ltd (1997) 187 CLR 384, applied.

2. In legal terminology, “arrest” is generally used to identify that deprivation of

liberty which is a precursor to the commencement of criminal proceedings

against the person arrested, justified as necessary for the enforcement of the

criminal law. The power to arrest exists, and must be exercised, for the

purpose of bringing the person arrested before a justice as soon as reasonably

practicable: [46]; [95]; [136]; [154].

Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88; Zaravinos v State

of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320; Dowse v New

South Wales [2012] NSWCA 337; 226 A Crim R 36; Bales v Parmeter (1935)

35 SR (NSW) 182; Christie v Leachinsky [1947] AC 573, applied; Clyne v State

of New South Wales [2012] NSWCA 265, not followed.

3. Neither the text nor context of the statute suggests an intention to depart

from these general law constraints: [120]; [124]-[127]; [165]-[167]; [173].

Rather, they are embedded in the language of s 99, and expressly preserved

by LEPRA, s 4: [35]; [44]; [132]-[134]. As no decision whether to charge the

appellant had been made at the time of arrest, the arrest was not for the

purpose of commencing the criminal process; accordingly, it was unlawful:

[128]-[129]; [194].

Per Emmett AJA, dissenting:

4. The legislative scheme contemplates a distinction between the decision to

arrest and the decision to charge. A positive intent to charge at the time of

arrest is not a necessary precondition of the valid exercise of the power of

arrest under s 99; accordingly, the appellant’s arrest was lawful: [251]; [253];

[257]; [270]-[274].

JUDGMENT1 McCOLL JA: The appellant, Bradford James Robinson, appeals pursuant to

leave to appeal granted on 20 February 2018 against Taylor SC DCJ’s

decision of 3 August 2017, in which his Honour held that Mr Robinson’s arrest

without a warrant by a Leading Constable Adam Smith on 22 December 2013

and subsequent detention by police was lawful.1 In so doing, his Honour

rejected Mr Robinson’s submission that his arrest was unlawful having regard

to the fact that, at the time of his arrest, Constable Smith had not formed an

intention to charge him with any offence.

2 The respondent, the State of New South Wales (SNSW), is vicariously liable

for the tortious conduct of police officers pursuant to s 8(1) of the Law Reform

(Vicarious Liability) Act 1983 (NSW). Mr Robinson brought proceedings against

the SNSW claiming he had been wrongfully arrested, and thereby falsely

imprisoned, and sought to recover damages.

1 Robinson v State of New South Wales [2017] NSWDC 289.

3 Mr Robinson relies upon a single ground of appeal. He submits that the

primary judge erred in finding that his arrest and subsequent detention were

lawful in circumstances where, at the time of the arrest, Constable Smith had

not formed an intention to charge him with any offence.

4 For the reasons that follow, I would allow the appeal.

Factual background

5 The factual background is uncontroversial.

6 On 9 October 2013, Mr Robinson was served with a Provisional Order (ex

parte) Apprehended Personal Violence Order based upon a complaint made by

a Ms Roselyn Singh.

7 On 16 October 2013, the Local Court made an Apprehended Violence Order

(AVO) against Mr Robinson in standard terms with additional orders that he

must not approach or contact or enter the premises at which Ms Singh lived or

worked.

8 On 20 December 2013 Ms Singh complained to police that Mr Robinson had

threatened her by emailing one of her employees, falsely claiming that her

company was being wound up. Ms Singh’s complaint was recorded in a file,

which the primary judge found Constable Smith had read earlier on the day of

Mr Robinson’s arrest.

9 After receiving the complaint, at 11.15am on Sunday, 22 December 2013,

police, including Constable Smith, tried unsuccessfully to locate Mr Robinson.

10 Mr Robinson voluntarily attended Day Street Police Station at 5pm on

22 December 2013 and was immediately arrested by Constable Smith who told

him he was being arrested for breaching the AVO. Mr Robinson was offered,

and accepted, the opportunity to participate in a record of interview. Constable

Smith then conducted an interview with Mr Robinson. At 6.18pm, after the

interview concluded, Mr Robinson was released without charge. 2

11 At the time Constable Smith arrested Mr Robinson, he had not decided to

charge him with any offence. He gave evidence that he “did not believe there

2 Ibid at [1].

was enough to charge him.”3 He said the decision whether to charge him

depended on what Mr Robinson said in the interview. He said he did not

charge him after the interview as Mr Robinson had given an explanation during

it which led Constable Smith to believe further evidence would need to be

obtained.

Legislative framework

12 In the Second Reading Speech made on the introduction of the Law

Enforcement (Powers and Responsibilities) Bill 2002 (NSW) which became the

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), the

Attorney General, the Hon Bob Debus, explained that the Bill was the outcome

of the consolidation process envisaged by the Royal Commission into the New

South Wales Police Service to help strike a proper balance between the need

for effective law enforcement and the protection of individual rights.4 In dealing

with the powers relating to arrest, the Attorney General said that Pt 8 of the Bill

“substantially re-enacts arrest provisions of the Crimes Act 1900 and codifies

the common law.”5

13 At the time of Mr Robinson’s arrest, Pt 1 (Preliminary) of LEPRA relevantly

provided:

4 Relationship to common law and other matters

(1) Unless this Act otherwise provides expressly or by implication, this Act does not limit:

(a) the functions, obligations and liabilities that a police officer has as a constable at common law, or

(b) the functions that a police officer may lawfully exercise, whether under an Act or any other law as an individual (otherwise than as a police officer) including, for example, powers for protecting property.

(2) Without limiting subsection (1) and subject to section 9,6 nothing in this Act affects the powers conferred by the common law on police officers to deal with breaches of the peace.

…

7 Provisions in this Act

3 The SNSW accepts that the references in Constable Smith’s evidence to charging Mr Robinson were a loose way of describing the process under the Criminal Procedure Act 1986 (NSW) by which criminal proceedings are commenced against a person by a police officer issuing, and then filing, a Court Attendance Notice (CAN).4 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2002 at 4846.5 Ibid at 4848.6 Section 9 dealt with a police officer’s power to enter premises in emergencies.

Nothing in any Part of this Act limits any functions, or prevents a police officer from exercising any functions, that the police officer has under any other Part of this Act.

Note. The general functions of police officers and other members of the NSW Police Force, and matters relating to police discipline, are dealt with in the Police Act 1990. For other Acts containing significant police and law enforcement powers, see Schedule 1.

14 Section 99 appeared in Pt 8 (Powers relating to arrest).7 Note 2 at the

commencement of Pt 8 stated “Safeguards relating to arrests by police officers,

including the requirement to state the reason for an arrest, are set out in Part

15”.

15 Section 99 relevantly provided:

99 Power of police officers to arrest without warrant (cf Crimes Act 1900, s 352, Cth Act, s 3W)




(i) to stop the person committing or repeating the offence or committing another offence,

(ii) to stop the person fleeing from a police officer or from the location of the offence,

(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,


(v) to obtain property in the possession of the person that is connected with the offence,

(vi) to preserve evidence of the offence or prevent the fabrication of evidence,

(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, to protect the safety or welfare of any person (including the person arrested), because of the nature and seriousness of the offence.

(viii) to protect the safety or welfare of any person (including the person arrested),

(ix) because of the nature and seriousness of the offence.7 Section 99 as it applied to the present case and subsection (3) of s 105 were inserted by the Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013 (NSW) (LEPRA Amendment Act).

(2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant.

(3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law.8

Note. The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer – see section 105.


(5) This section does not authorise a person to be arrested for an offence for which the person has already been tried.

(6) For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5. [Emphasis added.]

16 Section 99 had been significantly amended by the LEPRA Amendment Act with

effect from 16 December 2013, six days before Mr Robinson’s arrest.

17 Section 105, which also appeared in Pt 8, provided:9

105 Arrest may be discontinued

(1) A police officer may discontinue an arrest at any time.

(2) Without limiting subsection (1), a police officer may discontinue an arrest in any of the following circumstances:

(a) if the arrested person is no longer a suspect or the reason for the arrest no longer exists for any other reason,

(b) if it is more appropriate to deal with the matter in some other manner, including, for example, by issuing a warning or caution or a penalty notice or court attendance notice or, in the case of a child, dealing with the matter under the Young Offenders Act 1997.

(3) A police officer may discontinue an arrest despite any obligation under this Part to take the arrested person before an authorised officer to be dealt with according to law. [Emphasis added.]

18 Section 107 in Pt 8 relevantly provided:

107 Part does not affect alternatives to arrest

(1) Nothing in this Part affects the power of a police officer to commence proceedings for an offence against a person otherwise than by arresting the person ...” [Emphasis added.]

8 In the LEPRA, authorised officer means (a) a Magistrate or a Children’s Magistrate, or (b) a registrar of the Local Court, or (c) an employee of the Attorney General’s Department authorised by the Attorney General as an authorised officer for the purposes of this Act either personally or as the holder of a specified office: s 3(1).9 Section 105 had also been amended by the LEPRA Amendment Act, Sch 1[2].

19 The objects of Pt 9 (Investigations and questioning) as set out in Div 1

(Preliminary) s 109(b) and (c) include “to authorise the detention of a person

who is under arrest for such a period despite any requirement imposed by law

to bring the person before a Magistrate or other authorised officer or court

without delay or within a specified period, and … to provide for the rights of a

person so detained.”

20 Section 113, which also appears in Pt 9, Div 1 provides relevantly:

113 Effect of Part on other powers and duties (cf Crimes Act 1900, s 356B)

(1) Existing powers relating to arrest and other matters

This Part does not:

(a) confer any power to arrest a person, or to detain a person who has not been lawfully arrested, or

…

(c) independently confer power to carry out an investigative procedure. [Emphasis added.]

21 Part 9, Div 2 (Investigation and questioning powers) includes the following:

114 Detention after arrest for purposes of investigation (cf Crimes Act 1900, s 356C)

(1) A police officer may in accordance with this section detain a person, who is under arrest, for the investigation period provided for by section 115.

(2) A police officer may so detain a person for the purpose of investigating whether the person committed the offence for which the person is arrested.

(3) If, while a person is so detained, the police officer forms a reasonable suspicion as to the person’s involvement in the commission of any other offence, the police officer may also investigate the person’s involvement in that other offence during the investigation period for the arrest. It is immaterial whether that other offence was committed before or after the commencement of this Part or within or outside the State.

(4) The person must be:

(a) released (whether unconditionally or on bail) within the investigation period, or

(b) brought before an authorised officer or court within that period, or, if it is not practicable to do so within that period, as soon as practicable after the end of that period.

(5) A requirement in another Part of this Act, the Bail Act 1978 or any other relevant law that a person who is under arrest be taken before a Magistrate or other authorised officer or court, without delay, or within a specified period, is affected by this Part only to the extent that the extension of the period within which the person is to be brought before such a Magistrate or officer or court is authorised by this Part.

(6) If a person is arrested more than once within any period of 48 hours, the investigation period for each arrest, other than the first, is reduced by so much of any earlier investigation period or periods as occurred within that 48 hour period.

(7) The investigation period for an arrest (the earlier arrest) is not to reduce the investigation period for a later arrest if the later arrest relates to an offence that the person is suspected of having committed after the person was released, or taken before a Magistrate or other authorised officer or court, in respect of the earlier arrest. [Emphasis added.]

115 Investigation period (cf Crimes Act 1900, s 356D)

(1) The investigation period is a period that begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances, but does not exceed the maximum investigation period.

(2) The maximum investigation period is 4 hours or such longer period as the maximum investigation period may be extended to by a detention warrant.

22 Section 116 made provision for determining what a reasonable time is for the

investigation period referred to in s 115. Section 117 identified certain times

which could be disregarded in calculating the investigation period.

23 Pursuant to s 121, also in Pt 9, Div 2, a person’s detention after arrest for

purposes of investigation may count towards sentence (cf Crimes Act 1900,

s 356W)

24 Part 9, Div 3, deals with safeguards relating to persons in custody for

questioning. Section 131(1) requires the “custody manager for a detained

person [to] open a custody record in the form prescribed by the regulations for

the person.” Section 131(2)(c) requires the custody manager to record the

grounds for the person’s detention in the custody record for the person.

25 Section 201 which appears in Pt 15 (Safeguards relating to powers) relevantly

provided that:

(1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following:

…

(c) the reason for the exercise of the power.

…

(2) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (other than subsection (3) (g), (i) or (j)):

(a) if it is practicable to do so, before or at the time of exercising the power, or

(b) if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power.

…

(3) This section applies to the exercise of the following powers (whether or not conferred by or under this Act):

(a) a power to search or arrest a person … [Emphasis added.]

Primary judgment

26 The primary judge found, and Mr Robinson did not dispute at trial nor on

appeal, that at the time of his arrest, Constable Smith suspected Mr Robinson

had committed the offence of breaching the AVO.10 His Honour also held that

that Constable Smith had reasonable grounds for his suspicion that an offence

had been committed.11 Finally, relevantly, his Honour held that at the time of

the arrest, Constable Smith was satisfied that Mr Robinson’s arrest was

necessary to ensure his appearance before a court (s 99(1)(b)(iv), LEPRA) and

because of the nature and seriousness of the offence (s 99(1)(b)(ix), LEPRA).12

27 Mr Robinson’s primary challenge to the question whether Constable Smith was

satisfied that his arrest was reasonably necessary to ensure that he appeared

before a court was that Constable Smith had conceded that he had not

determined at the time of the arrest whether he would charge Mr Robinson.13

He argued that if, in the belief of Constable Smith, Mr Robinson might not be

charged, Constable Smith could not be satisfied that an arrest was necessary

to ensure that Mr Robinson appeared in court since his appearance in court

might never be necessary.14

28 Mr Robinson relied in this respect on Zaravinos v State of New South Wales,15

where Bryson JA held that an arrest was unlawful as being for an extraneous

purpose if made “for the purpose of questioning [the arrested person] and

investigating the circumstances of the suspected offence or of any other

offence”.

10 Primary judgment at [14].11 Ibid at [24].12 Ibid at [44], [48].13 Ibid at [38].14 Ibid.15 (2004) 62 NSWLR 58; [2004] NSWCA 320 (Zaravinos) at [37] (Santow JA and Adams J agreeing).

29 The primary judge rejected Mr Robinson’s submission in this respect. His

Honour held that if Mr Robinson’s interpretation of s 99(1)(b)(iv) were adopted:

“[A] person who was a known flight risk could not be arrested in reliance upon s 99(1)(b)(iv) unless the police officer was already persuaded that the person should be charged (or that the arrest would not be withdrawn under s 105). But a charge requires reasonable and probable cause, namely a positive belief and a sufficient (or reasonable) basis for the belief (see A v New South Wales [2007] HCA 10 at [77]), a higher obligation on the police officer to that imposed by s 99(1)(a), which requires only a suspicion on reasonable grounds.”16

30 Accordingly, the primary judge held that Constable Smith was satisfied that Mr

Robinson’s arrest was reasonably necessary to ensure that he appeared

before a court within the meaning of the LEPRA, s 99(1)(b)(iv).17

31 The primary judge also held that he was satisfied that Mr Robinson’s arrest

was necessary because of the nature and seriousness of the offence such that

the elements of the LEPRA, s 99(1)(b)(ix), were satisfied.18

Consideration

32 The competing contentions are whether, as Mr Robinson submits, a police

arrest without warrant is unlawful unless, at the time of arrest, the arresting

officer intends to charge the person arrested or, as the SNSW frames Mr

Robinson’s case, at the time of arrest an arresting police officer must have

decided and intended to charge the plaintiff with an offence. Alternatively, as

the SNSW contends, whether an arrest without warrant is lawful if effected for

the purpose of investigating whether to charge the person arrested.

33 The SNSW accepted in the course of oral submissions in this court that

Constable Smith’s evidence that at the time of the arrest he had not decided if

Mr Robinson was going to be charged was a sufficient evidentiary foundation

for Mr Robinson’s submission that he was unlawfully arrested.

34 Resolution of the issues raised on the appeal turns primarily upon issues of

statutory construction. As emphasised most recently by the plurality in SZTAL v

Minister for Immigration and Border Protection,19 the starting point for the 16 Primary judgment at [42].17 Ibid at [44].18 Ibid at [47] – [48].19 [2017] HCA 34; (2017) 91 ALJR 936 (SZTAL) at [14] per Kiefel CJ, Nettle and Gordon JJ; see also [35] – [39] per Gageler J; Mighty River International Ltd v Hughes; Mighty River International Ltd v Mineral Resources Ltd [2018] HCA 38 at [42] per Kiefel CJ and Edelman J.

ascertainment of the meaning of a statutory provision is the text of the statute

whilst, at the same time, having regard to its context and purpose. Context

should be regarded in its widest sense. Considerations of context and purpose

simply recognise that, understood in its statutory, historical or other context,

some other meaning of a word may be suggested, and so too, if its ordinary

meaning is not consistent with the statutory purpose, that meaning must be

rejected.20

35 Notwithstanding the necessity to construe s 99 by reference to its text, the pre-

existing law concerning the common law power of arrest is necessary context

for the purposes of the construction exercise.21 That is not just because the

modern approach to statutory interpretation uses “context” in its widest sense

to include such things as the existing state of the law,22 but also because the

LEPRA, s 4, presupposes the continued existence of a police officer’s powers

at common law.23

36 The SNSW however criticises Mr Robinson’s submissions as failing to grapple

with the textual and contextual matters concerning s 99. It contends that,

instead, Mr Robinson’s submissions proceed by reference to a body of case

law decided by reference to other provisions of the LEPRA including s 99 as it

stood prior to the LEPRA Amendment Act. While the SNSW accepts that the

case law may be relevant to the construction of s 99 to the extent that any

analogy is persuasive or general principle is relevant, it submits that cases on

previous provisions are not binding with respect to the new form of s 99 and

that judicial decisions are not substitutes for the text of the legislation. Such

decisions should not be given primacy.24 As much may be accepted.

Nevertheless, as I explain below, earlier decisions on powers of arrest without

warrant form part of the interpretative context, and inform the process of

interpreting s 99.20 SZTAL at [14].21 Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; [2014] HCA 42 per Crennan, Bell and Gageler JJ.22 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 per Brennan CJ, Dawson, Toohey and Gummow JJ; Regional Express Holdings Ltd v Australian Federation of Air Pilots [2017] HCA 55; (2017) 92 ALJR 134 at [19] per Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ.23 Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334 at [21] per Leeming JA (Ward and Emmett JJA agreeing).24 Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37 at [62] per McHugh J; referred to with approval in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 at [31] per curiam (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).

37 The SNSW emphasises the statement in Commissioner of Taxation v

Consolidated Media Holdings Ltd,25 that (footnote included):

“[39] ‘This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. [67 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.” [Emphasis added].

38 It is “plainly of critical importance to the existence and protection of personal

liberty under the law that the circumstances in which a police officer may,

without judicial warrant, arrest or detain an individual should be strictly

confined, plainly stated and readily ascertainable.”26 There is “a legal immunity

from arrest and from the threat of arrest unless and until the conditions

governing the exercise of the arresting power are fulfilled.”27

39 Finally, “the principle of legality favours a construction, if one be available,

which avoids or minimises the statute’s encroachment upon fundamental

principles, rights and freedoms at common law”.28

The text

40 The SNSW accepts that the effect of s 4 of LEPRA was to preserve the

common law power of arrest, although it argues that that power had, to a

significant extent, been overtaken by the LEPRA (no doubt by reason of the

words “Unless this Act otherwise provides expressly or by implication”) or, at

least, by virtue of s 7, that the s 99 power of arrest without warrant was not

inhibited by the continuation of the common law power.

41 The SNSW recognises that an arrest is the start of a process which must end

within a limited time, either by the person arrested being taken before an

25 (2012) 250 CLR 503; [2012] HCA 55 (Consolidated Media Holdings) at [39] per curiam (French CJ, Hayne, Crennan, Bell and Gageler JJ).26 Donaldson v Broomby (1982) 60 FLR 124 at 126 per Deane J (Kelly J agreeing) referred to with approval in Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441 at [22] per Gageler J and North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 (NAAJA v NT) at [222] per Nettle and Gordon JJ; Smith v Corrective Services Commission of NSW (1980) 147 CLR 134 at 139; [1980] HCA 49 per curiam (Stephen, Mason, Murphy, Aickin and Wilson JJ); Minogue v Victoria [2018] HCA 27; (2018) 92 ALJR 668 at [46] – [48] per Kiefel CJ, Bell, Keane, Nettle and Edelman JJ.27 Webster v McIntosh (1980) 49 FLR 317 at 322 per Brennan J (Deane and Kelly JJ agreeing).28 NAAJA v NT at [11] per French CJ, Kiefel and Bell JJ.

authorised officer or released pursuant to s 105. However, the SNSW argues

that the fact that one of the two possible endings to the process is that the

arrested person is charged does not mean that there must be a positive

intention to charge that person at the time of arrest.

42 It contends that the effect of Mr Robinson’s argument is to read in a third

condition, namely that at the time of arrest a decision had to have been made

by the arresting officer or his superior (s 99(2)) to charge the arrested person.

The SNSW contends that there was no textual foundation for that contention. It

concedes, however, that the requirement in s 99(3) to take the arrested person

before an authorised officer “as soon as is reasonably practicable … to be

dealt with according to law” supports Mr Robinson’s argument.

43 That concession is properly made. As I explain below, at common law, the

requirement to take the arrested person before an authorised officer is

intended to enable that person to be charged and to seek to regain his or her

personal liberty as soon as practicable either absolutely or on bail by a justice’s

order. It is therefore unlawful for a police officer having the custody of an

arrested person to delay taking that person before a justice in order to provide

an opportunity to investigate that person’s complicity in a criminal offence,

whether the offence under investigation is the offence for which the person has

been arrested or another offence.29

44 What the SNSW’s concession, and a contextual analysis of s 99, demonstrates

is that common law principles are embedded in s 99, in particular, in ss 99(1)

(a) and 99(3). It is necessary to turn to the common law at this stage to

demonstrate why that is so. The principles of common law, expressly

preserved by s 4, provide both contextual background to the LEPRA and

inform its interpretation.

45 “Arrest … ‘may be called the beginning of imprisonment’”. Those who arrest a

person must justify the whole imprisonment and not its beginning alone.30

29 Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 (Williams) at 299 – 301 per Mason and Brennan JJ, at 305 per Wilson and Dawson JJ.30 Christie v Leachinsky [1947] AC 573 (Christie) at 600 per Lord du Parcq.

46 Arrest is the first step in a criminal proceeding against a suspected person on a

charge which is intended to be judicially investigated.31 The power to arrest

exists for the purposes of bringing the person arrested before a justice and

conducting a prosecution.32 The point at which an arrested person is brought

before a justice upon a charge is the point at which the machinery of the law

leading to trial is put into operation, the point from which the judicial process

commences and purely ministerial functions cease.33

47 The common law conferred on constables a power to arrest without warrant on

suspicion on reasonable grounds of commission of a felony, but the authority to

keep the person arrested in custody was limited “till he can be brought before a

justice of the peace”.34 At common law it was compulsory for a constable, in

order to justify an arrest, to show that he had taken the arrested person without

delay, and by the most direct route, before a justice, unless some

circumstances reasonably justified a departure from these requirements.35 An

arrested person could not be detained for the purposes of being questioned.36

48 Section 99(1)(a) substantially reflects s 352(2)(a) of the Crimes Act 1900

(NSW) considered in Bales v Parmeter,37 albeit, whereas s 352(2)(a) enabled

an arrest without a warrant where a constable had “reasonable cause [to]

suspect”, s 99(1)(a) requires the suspicion to be held “on reasonable grounds”.

49 In Bales v Parmeter, Jordan CJ held that s 352(2)(a) “like the common law …

authorise[d] the [arresting officer] only to take the person so arrested before a

justice to be dealt with according to law.”38 In so holding, his Honour referred 31 Christie at 584 – 585 per Viscount Simon approving Scott LJ’s statement to that effect in the Court of Appeal: Leachinsky v Christie [1946] KB 124 (Christie CA) at 130.32 Zaravinos at [37] per Bryson JA (Santow JA and Adams J agreeing).33 Williams at 306 per Wilson and Dawson JJ; cited with approval in NAAJA v NT at [24] per French CJ, Kiefel and Bell JJ.34 Halliday v Nevill (1984) 155 CLR 1 at 12; [1984] HCA 80 per Brennan J; Williams at 292 – 293 per Mason and Brennan JJ.35 Clarke v Bailey (1933) SR (NSW) 303 at 309 per Davidson J giving judgment for the Supreme Court in banco.36 NAAJA v NT at [23]; Williams at 292 – 293 per Mason and Brennan JJ referring to Wright v Court (1825) 4 B & C 596 at 598; 107 ER 1182; at 305 per Wilson and Dawson JJ; see also Foster v The Queen [1993] HCA 80; (1993) 67 ALJR 550 (Foster) at 555 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ (Brennan and McHugh JJ agreeing with their Honours’ orders); Nolan v Clifford (1904) 1 CLR 429; Zaravinos at [37] per Bryson JA (Santos JA and Adams J agreeing).37 (1935) 35 SR (NSW) 182.38 Ibid at 189 (Stephen and Street JJ agreeing). At that time, s 352(2)(a) of the Crimes Act empowered a constable to arrest without a warrant “any person whom he, with reasonable cause, suspects of having committed any such offence or crime … and take him …before a justice to be dealt with according to law.” The words “such offence” referred to the expression “offence punishable, whether by indictment, or on summary

with approval to Clarke v Bailey, where Davidson J held the effect of s 352(2)

(a) was “merely to reinforce the common law principle, and [was] not intended

to give the constable discretion in the matter except to the same extent as

existed before.”39

50 In Foster, the appellant was arrested without warrant pursuant to s 352 of the

Crimes Act, then relevantly in the same terms as in force when Bales v

Parmeter was decided. It was common ground between the parties, and

accepted by the plurality, that the appellant’s arrest was unlawful in

circumstances where the police gave evidence at the trial to the effect that,

without a confession by him, they “did not have any other evidence to charge

him” and that, at the time of his arrest, “the police did not intend to charge

him.”40 The plurality did not, therefore, discuss the principles leading to their

acceptance of this position. However, it is clear, in my view, that it followed

from their Honours’ view that “the appellant’s arrest [had been] solely for the

purpose of questioning, as distinct from the purpose of taking the appellant

before a ‘Justice’ to be charged.”41

51 A conclusion that at the time of an arrest without a warrant there should be an

intention to charge the person arrested also flows from the common law

requirement that the person arrested should be informed of the reason for the

arrest. That meant that the arresting officer should inform the person arrested

of the charge on which he or she was being arrested. That did not mean

“technical or precise language” needed to be used; a statement of the act for

which the person was arrested was sufficient.42 The common law obligation to

inform the person arrested of the reason for the exercise of the power of arrest

is also found in the LEPRA, s 201(1)(c).

52 In Christie, the House of Lords unanimously accepted Scott LJ’s explanation in

the Court of Appeal of the rationale for the obligation to inform a person

conviction, under any Act” in s 352(1)(a): Thompson v Vincent [2005] NSWCA 219; (2005) 153 A Crim R 577 at [107] per Mason P (Handley JA and Pearlman AJA agreeing).39 At 309.40 Foster at 552.41 Ibid.42 Christie at 587 – 588 per Viscount Simon (Lord Thankerton and Lord Macmillan agreeing) at 591 – 593 per Lord Simonds; at 598 – 600 per Lord du Parcq; see also Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422 at [56] per Beazley JA (McColl and Young JJA agreeing).

arrested without a warrant of the reason for his or her arrest.43 That obligation

is based, by way of analogy, on an arrest authorised by magisterial warrant, or

proceedings instituted by the issue of a summons.44 In such cases, the warrant

or summons had to specify the offence and the warrant “in normal cases” had

to be read to the person arrested. This was “for the obvious purpose of

securing that a citizen who is prima facie entitled to personal freedom should

know why for the time being his personal freedom is interfered with”. Scott LJ’s

reasoning was that “if the law circumscribed the issue of warrants for arrest in

this way, it could hardly be that a policemen acting without a warrant was

entitled to make an arrest without stating the charge on which the arrest was

made.”45

53 Scott LJ’s conclusion, Viscount Simon pointed out, was supported by “direct

authority, both in text books of acknowledged weight and in cases actually

decided, that in normal circumstances an arrest without warrant either by a

policeman or by a private person can be justified only if it is an arrest on a

charge made known to the person arrested”.46

54 Christie reflects the common law in New South Wales in regard to the

obligation to notify an arrested person of the reasons for the arrest.47

55 Christie was applied in Dowse v New South Wales,48 where Basten JA stated

“an arrest will not be valid merely because the officer believes that an offence

has been committed, in circumstances where the officer has no intention of

charging the person or having the person charged with that offence”.

56 The SNSW contended that Basten JA’s remarks should be understood in the

light of a case where the arresting officer has decided not to charge the

arrested person with an offence, presumably as opposed to this case, where

43 See Christie CA at 130 (Uthwatt J agreeing).44 The comparable process in this case would be a CAN.45 Christie at 585 per Viscount Simon; see also Lord Simonds at 591 – 592.46 Ibid at 586 – 587; see also Lord du Parcq at 600ff.47 Adams v Kennedy (2000) 49 NSWLR 78 at [24] per Priestley JA (Sheller JA and Beazley JA agreeing); see also Wilson v New South Wales (2010) 207 A Crim R 499; [2010] NSWCA 333 at [60] per Hodgson JA (McColl and Young JJA agreeing); special leave refused: Wilson v New South Wales [2011] HCATrans 218.48 (2012) 226 A Crim R 36; [2012] NSWCA 337 at [27] per Basten JA (McColl and Hoeben JJA agreeing). Dowse considered s 99, LEPRA, as in force prior to the LEPRA Amendment Act.

Constable Smith had not determined to charge Mr Robinson with any offence

and gave evidence that he “did not believe there was enough to charge him.”

57 I do not accept the SNSW’s submission in this respect. After the passage to

which I have referred Basten JA observed that, “[i]f that were not so, the legal

requirement that the person arrested be informed of the true grounds of the

arrest would be rendered nugatory”.49 In my view his Honour’s statement is

equally applicable to the circumstance that at the time of the arrest, the

arresting officer had not determined to charge the arrested person. The effect

of both the common law and s 201 of the LEPRA is that the person arrested

must know why he or she has been deprived of his or her liberty. The only

purpose for which that can be done is to charge the person with an offence and

take him or her before an authorised officer as soon as possible.

58 An obligation to inform the person arrested without warrant of the charge on

which he or she is being arrested, presupposes that a decision has been made

at the time of the arrest to so charge that person.

59 It is uncontroversial, and consistent with the obligation to inform the arrested

person of the reason for the arrest, that whether at common law, or pursuant to

the LEPRA s 99, the arresting officer’s state of mind to sustain the legality of

the arrest, “must exist as a matter of fact at the time of the arrest”.50

60 As I have earlier indicated, the proposition that the arresting officer must intend

to charge the person arrested at the time of arrest is consistent with the

obligation in s 99(3) to take the person arrested as soon as is reasonably

practicable before an authorised officer to be dealt with according to law.

Section 99(3) reinforces the common law principle that it was compulsory for a

constable, in order to justify an arrest, to show that he had taken the arrested

person without delay, and by the most direct route, before a justice, unless

some circumstances reasonably justified a departure from these

requirements.51

49 Ibid.50 Lule v State of New South Wales [2018] NSWCA 125 (Lule) at [2] per Beazley P; State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185 at [87] per Beazley ACJ, Ward and Gleeson JJA; see also Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [40] per Gleeson CJ, Gummow, Hayne and Heydon JJ.51 Clarke v Bailey at 309; see also Zaravinos at [26].

61 The common law requirement, reflected in s 99(3), to take the person arrested

before a justice “as soon as practicable” allowed reasonable time for the

arrestors to formulate and lay appropriate charges for the purposes of bringing

a person before a justice.52 It did not empower “the police … to detain an

arrested person to enable them, by further investigation, to gather the evidence

necessary to support a charge.”53

62 The s 99(3) requirement recognises the ordinary right to liberty of the citizen by

ensuring that an accused person is transferred as soon as practicable after

being charged by the executive branch of government to the judicial branch of

government where the question of bail can be independently considered.54

63 The proposition that proceedings must be commenced against a person

arrested pursuant to s 99 “as soon as is reasonably practicable” is also

supported by s 107 of the LEPRA set out above (at [18]). It is implicit in s 107

that the power to arrest without a warrant has been exercised in order to

commence proceedings against that person. Coupled with s 99(3), those

proceedings must be commenced as soon as reasonably practicable.

64 The consequence of this analysis is that the power to arrest without a warrant

expressed in s 99(1)(a), carrying with it the obligation to inform the person

arrested of the reason for the exercise of the power of arrest (s 201(1)(c))

means that at the time of arrest, the arresting officer must inform the person

arrested of the charge to be preferred. To do so, the arresting officer must have

an intention to so charge the arrested person.

65 Thus, properly understood, s 99(1)(a) requires the arresting officer at the time

of an arrest without warrant to have formed the intention to charge the arrested

person and to advise the arrested person of that charge in the terms I have

earlier discussed.

52 Williams at 298 (Mason and Brennan JJ); at 312 (Wilson and Dawson JJ).53 Ibid at 312 – 313 (Wilson and Dawson JJ).54 Attorney-General (NSW) v Dean (1990) 20 NSWLR 650 at 653 per Gleeson CJ, Kirby P and Priestley JA; see also Williams at 305 per Wilson and Dawson JJ. Although, as Samuels JA said in R v Walsh (Court of Criminal Appeal (NSW), 18 October 1990, unrep) (Walsh) at 24, this “statement may strictly be obiter’”, I would agree with his Honour’s observation that “it is a very strong expression of opinion and entitled to the greatest respect.”

66 Section 99(1)(b) is cumulative on s 99(1)(a). It is notable that it does not confer

a power upon the police to investigate the offence. Such an investigation can

only be undertaken pursuant to Pt 9.

67 The SNSW does not contend that an intention to investigate per se suffices as

the basis for an arrest without a warrant. It accepted that in order for Mr

Robinson’s arrest to have been lawful, it was necessary that it satisfy both

s 99(1)(a) and (b).

68 The SNSW submits that s 99(1)(b) sets out exhaustively the purposes for

which a person may be arrested. It argues that Mr Robinson seeks

impermissibly to add another purpose. It also contends that various of the

s 99(1)(b) purposes are inconsistent with implying a requirement of a decision,

or intention, to charge the arrested person at the time of arrest.

69 In this respect the SNSW points to s 99(1)(b)(ii) (to stop the person fleeing from

a police officer or from the location of the offence); s 99(1)(b)(iii) (to enable

inquiries to be made to establish the person’s identity if it cannot be readily

established or if the police officer suspects on reasonable grounds that identity

information provided is false); s 99(1)(b)(v) (to obtain property in the

possession of the person that is connected with the offence); s 99(1)(b)(viii) (to

protect the safety or welfare of any person (including the person arrested)); and

s 99(1)(b)(ix) (because of the nature and seriousness of the offence) as being

matters directed to the investigation of an offence, or, more generally to the

protection of the public, rather than to laying a charge.

70 I cannot accept that submission. As Mr Robinson submitted, the s 99(1)(b)(ii)

power to stop the arrested person fleeing is consistent with the posited

requirement being necessary only if it is proposed by the arresting officer to

take the person before a court to answer a charge as required by s 99(3).

Second, the s 99(1)(b)(iii) power enabling inquiries to be made to establish a

person’s identity is arguably only necessary to obtain that information if it is

proposed that the arrested be charged. Third, the s 99(1)(b)(v) power to obtain

property in the possession of a person can only be necessary for the purpose

of securing evidence to be used against that person when prosecuted. Fourth,

the s 99(1)(b)(viii) power to protect the safety or welfare of any person on its

face would be directed to protecting such people who may be adversely

affected by the offence the police officer suspects the arrested person as

having committed or was committing at the time of the arrest. Fifth, the s 99(1)

(b)(ix) power to arrest because of the nature and seriousness of the offence

appears to be directed to the proposition that the arrested person may repeat

the offence the police officer suspects that person has committed or was

committing at the time of the arrest.

71 Finally, while still dealing with Pt 8, s 105, which enables a “police officer [to]

discontinue an arrest despite any obligation under this Part to take the arrested

person before an authorised officer to be dealt with according to law”, does not,

in my view, assist the SNSW. As Mr Robinson submitted, it depends upon

there having been a prior lawful arrest.

72 The SNSW also placed great weight on the provisions of Pt 9 permitting

detention of the arrested person for the purposes of investigation. It contends

that, while the primary judge recognised that “it is not lawful to arrest for the

purpose of investigation … because it is not a permissible reason under s 99”,

his Honour also correctly stated that it was “a different question whether a

person properly arrested may nevertheless be detained for the purposes of

investigation, as s 109(4) [sic, s 99(4)] permits.”55 As will be recalled, s 99(4)

provides that “[a] person who has been lawfully arrested under [s 99] may be

detained by any police officer under Part 9 for the purpose of investigating …”.

73 As will be apparent, the route to Pt 9 proceeds via the express requirement in

both Pt 8 (s 99(4)) and Pt 9 (s 113(1)(a)) that such further investigation may

only be undertaken if there has been a lawful arrest, a requirement also implicit

in s 114(1). However, a lawful arrest can only be effected pursuant to s 99 if

both s 99(1)(a) and (b) are satisfied.

74 The position is analogous to s 353A(1) of the Crimes Act considered in Clarke

v Bailey. Section 353A(1) provided that, “[w]here a person is in lawful custody

upon a charge of committing any crime or offence, any constable may search

his person and take from him anything found upon his person.” Sub-sections

(2) and (3) were also predicated upon the arrested person being “in lawful

55 Primary judgment at [44].

custody”. Davidson J held that the “terms of the three sub-sections to [s 353A]

indicate clearly that the intention of the Legislature was directed to the time

when an arrested person is in custody after a formal charge had been laid

against him”.56 [Emphasis added.] Such, in my view, is equally the case in

relation to s 99(4).

State of mind to effect an arrest

75 One of the reasons the primary judge gave for rejecting Mr Robinson’s

submission that an arrest was unlawful if made for the purpose of questioning

or investigating the person arrested was his Honour’s concern that “a charge

requires reasonable and probable cause, namely a positive belief and a

sufficient (or reasonable) basis for the belief (see A v New South Wales57), a

higher obligation on the police officer to that imposed by s 99(1)(a), which

requires only a suspicion on reasonable grounds.”58

76 In supporting this aspect of the primary judge’s reasons, the SNSW submitted

that in none of the early authorities dealing with s 353(2) of the Crimes Act,

such as Bales v Parmeter, did the court consider what the SNSW contends is

the differing mental states relating to the decision to arrest and the decision to

prosecute.

77 It is not the case that previous authorities did not consider the mental state

relating to the decision to arrest and the decision to prosecute in the context of

an arrest without warrant. However, it is apparent that the courts did not draw

the distinction for which the SNSW contends. Thus, in Bales v Parmeter, a

case concerning both unlawful arrest and false imprisonment, Jordan CJ

held:59

“There is no doubt that in an action for wrongful arrest and false imprisonment by a police officer it is a good defence if the defendant proves that he had reasonable and probable cause for his actions. Such reasonable and probable cause may be established by proving that he, with reasonable cause, suspected the person whom he arrested of having committed a crime or offence.” [Emphasis added.]

56 At 310.57 (2007) 230 CLR 500; [2007] HCA 10 (A v NSW) at [77].58 Primary judgment at [42].59 At 186; see also Trobridge v Hardy (1955) 94 CLR 147 at 152; [1955] HCA 68 per Fullagar J.

78 The phrase “with reasonable cause” reflected s 352(2)(a) of the Crimes Act as

then in force.

79 Mason and Brennan JJ spoke to like effect in Williams,60 a case concerning

unlawful detention as a basis for excluding evidence of records of interview

containing confessions allegedly made to the police by the applicant, where

their Honours explained:

“Nor is there any reason to think that, in general, an arresting police officer would be unable properly to make a complaint or to lay an oral information until he had had an opportunity to question the person arrested. In the ordinary case of an arrest on suspicion, the arresting officer must have satisfied himself at the time of the arrest that there are reasonable grounds for suspecting the guilt of the person arrested, although the grounds of suspicion need not consist of admissible evidence. If the arresting officer believes the information in his possession to be true, if the information reasonably points to the guilt of the arrested person and if the arresting officer thus believes that the arrested person is so likely to be guilty of the offence for which he has been arrested that on general grounds of justice a charge is warranted, he has reasonable and probable cause for commencing a prosecution: see Mitchell v John Heine & Son Ltd; Commonwealth Life Assurance Society Ltd v Brain; Glinski v McIver.” [Emphasis added; citations omitted.] 61

80 When the LEPRA was enacted, the phrase “with reasonable cause” in s 352(2)

(a) of the Crimes Act was not repeated. Rather, as I have said, s 99(2)

empowered a police officer to arrest a person without a warrant on suspicion

“on reasonable grounds” that the person had committed an offence under any

Act or statutory instrument. That language has been continued in the present

s 99. Accordingly, Jordan CJ’s statement in Bales v Parmeter would now be:

“There is no doubt that, in an action for wrongful arrest and false imprisonment by a police officer it is a good defence if the defendant proves that he had reasonable and probable cause for his actions. Such reasonable and probable cause may be established by proving that he, on reasonable grounds, suspected the person whom he arrested of having committed a crime or offence.” [Emphasis added.]

60 At 300.61 The italicised passage was drawn almost verbatim from Dixon J’s reasons in Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 at 382; [1935] HCA 30 and was cited with approval by the plurality in A v NSW at [82] in support of what will sustain “the objective aspect of an allegation of absence of reasonable and probable cause”. Although their Honours counselled at [60] against the “inevitable tendency to translate the negative question – whether the defendant prosecutor acted without reasonable and probable cause – into the different question – what will constitute reasonable and probable cause to institute criminal proceedings”, because of “the importance of the burden of proof and … the variety of factual and forensic circumstances in which the questions may arise”, it is plain they accepted the basic principle applied in Williams as to what will constitute reasonable and probable cause to arrest.

81 The test for “reasonable and probable cause” in this context conforms to the

state of mind required to be held by the person arresting the person without

warrant pursuant to s 99(1)(a). There are not two states of mind. Rather, on

this approach the state of mind of the arresting officer which justifies the arrest

of a person without warrant is also sufficient to found a finding that the

arresting officer who charges the person arrested had “reasonable and

probable cause” to do so.

82 I do not accept that either A v NSW or George v Rockett62 (discussed below)

lead to a different conclusion.

83 A v NSW concerned, relevantly, the test to be applied to determine for the

purpose of the tort of malicious prosecution that the defendant acted without

reasonable and probable cause. Consideration of that question involved, in

part, consideration of the five conditions Jordan CJ held in Mitchell v John

Heine & Son Ltd63 had to be met if a person was to have reasonable and

probable cause for prosecuting another for an offence. To succeed on the

issue of reasonable and probable cause the plaintiff had to establish “that one

or more of these conditions did not exist”. The plaintiff could do this “by

proving, if he can, that the defendant prosecutor did not believe him to be

guilty, or that the belief in his guilt was based on insufficient grounds.”64

84 After an extensive consideration of Mitchell, the question whether it was

inconsistent with observations by Dixon J in Sharp v Biggs,65 (the plurality held

it was not),66 the plurality held that Jordan CJ’s five conditions were not, and

could not have been, intended as “directly or indirectly providing a list of

elements to be established at trial of an action for malicious prosecution.”67

85 When the plurality considered the issue of what is absence of reasonable and

probable cause, their Honours explained that there are two kinds of inquiry to

determine that issue: one subjective (what the prosecutor made of the

62 (1990) 170 CLR 104; [1990] HCA 26.63 (1938) 38 SR (NSW) 466 (Mitchell).64 A v NSW at [64], referring to Mitchell at 469.65 (1932) 48 CLR 81 at 106; [1932] HCA 54.66 A v NSW at [65] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ; cf Callinan J at [165], [174], following Sharp v Biggs, albeit without discussing Mitchell.67 Ibid at [66].

available material) and the other objective (what the prosecutor should have

made of that material).68

86 The subjective issue concerns the sufficiency of the material then before the

prosecutor to warrant setting the processes of the criminal law in motion.69 As

their Honours explained, “absence of reasonable and probable cause will not in

every case be shown by demonstrating that the prosecutor had no positive

belief that the accused person was, or was probably, guilty.”70 Insofar as the

subjective test was concerned, the plurality concluded that “[t]he expression

‘proper case for prosecution’ is not susceptible of exhaustive definition without

obscuring the importance of the burden of proving the absence of reasonable

and probable cause, and the variety of factual and forensic circumstances in

which the questions may arise. … [I]t will require examination of the

prosecutor’s state of persuasion about the material considered by the

prosecutor.”71

87 The objective aspect of an allegation of absence of reasonable and probable

cause is “to an objective standard of sufficiency”, resolution of which is

“ultimately one of fact”, depending “upon identifying what it is that the plaintiff

asserts to be deficient about the material upon which the defendant acted in

instituting or maintaining the prosecution.”72 That is to say, the objective aspect

turns upon an analysis of the prosecutor’s subjective state of mind based on

the materials to which he, she or it had regard in either setting the processes of

the criminal law in motion or continuing a prosecution.

88 This two-step test for determining the validity of a warrantless arrest pursuant

to the previous s 99 was accepted in Dowse,73 where Basten JA held that

“there are two elements to be satisfied for a warrantless arrest to be valid,

namely an honestly held suspicion in the mind of the arresting officer and

information in the mind of the arresting officer which when objectively assessed

68 Ibid at [70].69 Ibid at [71]. The word “prosecutor” was used throughout A v NSW to refer both to the police officer who preferred charges against A and to the Director of Public Prosecutions who took over the prosecution from the police: see [13] – [14].70 Ibid at [76].71 Ibid at [81].72 Ibid at [84] – [85].73 At [26].

provides reasonable grounds for the suspicion” that the person being arrested

“is committing or has committed an offence”.74 This is to ensure that “[t]he

arresting officer is held accountable”.75 “Accountable” is clearly used in the

sense of the arresting officer being accountable for the legality of the arrest.

89 George v Rockett concerned the proper construction of s 679 of The Criminal

Code (Qld), a provision concerning a justice issuing a search warrant which

required a sworn complaint going to issues of both reasonable grounds for

suspicion and belief. It was in that context that the High Court referred to the

proposition that “suspicion and belief are different states of mind … and the

section prescribes distinct subject matters of suspicion on the one hand and

belief on the other.”76 Their Honours observed that the “facts which can

reasonably ground a suspicion may be quite insufficient reasonably to ground a

belief, yet some factual basis for suspicion must be shown.”77

90 That statement recognises, rather than excludes as the SNSW appears to

contend, the proposition that facts which can reasonably ground a suspicion

may be sufficient reasonably to ground a belief. It will turn on the facts of each

case. As much is apparent as I have sought to explain from Bales v Parmeter

and Williams. As was said in George v Rockett, when used in a composite

phrase such as that in s 99(1)(a) (suspects on reasonable grounds), suspicion

“requires the existence of facts which are sufficient to induce that state of mind

in a reasonable person”.78

91 Although I accept that in Bales v Parmeter Jordan CJ spoke in terms of the

police officer “proving that he, with reasonable cause suspected …”, the

outcome of such a factual finding was to establish “reasonable and probable

cause” for arresting and imprisoning the defendant. It is plain that his Honour

was of the view that if the police officer proved the relevant suspicion was held,

that would demonstrate the relevant belief to ground a finding of “reasonable

74 Macfarlan JA (Beazley P and Barrett AJA agreeing) reached the same conclusion in relation to the present form of s 99 in Lule at [62] – [66]; see also per Beazley P at [2] in relation to s 99(1)(b).75 O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 at 291, per Lord Steyn (Lords Goff of Chieveley, Mustill and Hoffmann agreeing).76 At 115.77 Ibid.78 Ibid at 112; see also New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194 (NSW v Smith) at [122] per McColl JA.

and probable cause” to which his Honour referred three years later in

Mitchell.79

92 The position is made even plainer in Mason and Brennan JJ’s reasons in

Williams from which it is apparent that the information held in the case of an

arrest on suspicion based on reasonable grounds (now of course the language

of s 99(1)(a)) will, where there is evidence to the effect to which their Honours

referred, sustain a finding of reasonable and probable cause to prosecute, that

is to say, to charge a person.

93 On the SNSW’s submission, and the primary judge’s reasons, no arrest which

conformed either to the common law test of “arrest without warrant on

suspicion on reasonable grounds of commission of a felony” or the like s 99(1)

(a) requirement, could be an arrest with “reasonable and probable cause” for

the purposes of the tort of malicious prosecution. The position may differ, of

course, as the prosecution is maintained. This is because, as explained in A v

NSW,80 an action for malicious prosecution has a temporal element, and

necessarily directs attention to the material the prosecutor had available for

consideration when deciding whether to maintain the prosecution.

94 The proposition that there is a different state of mind to charge a person from

the state of mind warranting a person being arrested (whether or not with a

warrant) is inconsistent with the authorities to which I have referred.

95 Moreover, as a matter of principle it does not, in my mind, withstand scrutiny.

This is particularly so when it is recognised that the purpose of arrest is to

charge the person arrested, that is to say, to set the processes of the criminal

law in motion.

96 In my view the primary judge fell into error in drawing a distinction between the

state of mind to arrest and the state of mind to prosecute.

Context: previous cases

97 The SNSW relies upon a number of cases decided under previous statutory

iterations of the power of arrest to contend that case law did not establish as

broad a proposition as that for which Mr Robinson contends.

79 At 469.80 At [59].

98 The SNSW contended that Gleeson CJ’s reasons in Walsh,81 decided when

the statutory power of arrest was found in Crimes Act, s 352(2), were

consistent with its submission that the arresting officer did not have to intend to

charge the person at the time of the arrest.

99 In Walsh, the police officers who arrested the appellant at the direction of a

senior officer did not charge him immediately because they were waiting for the

senior officer to arrive. They expected the senior officer both to question and

charge the appellant. Gleeson CJ held that “the question whether if they had

regarded it as necessary or appropriate to do so, they could have obtained

enough information to charge the appellant themselves, was not explored in

evidence”.

100 The Court of Criminal Appeal heard argument on the appeal to the effect that

on the facts as found there had been an unlawful arrest or detention of the

appellant and that, in those circumstances, the trial judge should have

exercised a discretion to reject evidence of admissions the appellant was said

to have made.

101 Gleeson CJ rejected the appellant’s submission that it was unlawful for the

police officers to arrest him if they did not have sufficient knowledge or

information about the crimes of which he was suspected to charge him then

and there. His Honour said82 in the passages on which the SNSW relied:

“The appellant was arrested without warrant, but he was reasonably suspected of having committed offences. The officer in charge of the investigation into the shooting on the night of the 11 April, who was apparently also investigating earlier armed robberies, obtained the assistance of other police officers to effect the actual arrest of the appellant. There is no reason to consider that this is either unusual or irregular.

…

However, the delay that occurred in the present case was not one which, in my view, was shown to involve a contravention of the relevant statutory requirements. … It should also be noted that the police officers, whose evidence was accepted, were adamant in their denials that the appellant was being held solely for questioning.”

81 (Samuels JA and Studdert J agreeing.)82 At 8 – 9.

102 The SNSW contends that if Mr Robinson’s submissions were correct, the

absence of an intention on the part of the junior officers to charge the appellant

should have been fatal to the lawfulness of his arrest.

103 I would not accept that submission. First, immediately preceding the first

passage quoted by the SNSW, Gleeson CJ observed that “[a]s the High Court

pointed out in Williams …, and as this Court has pointed out on numerous

occasions, it is of the utmost importance that police officers pay proper regard

to their obligation to take an arrested person before a court or justice as soon

as practical.” As is apparent from the passage I have quoted, his Honour also

referred to the evidence the trial judge accepted from “the police officers [who]

were adamant in their denials that the appellant was being held solely for

questioning (cf Williams 161 CLR 278 at 313)”.

104 In the passage to which Gleeson CJ referred, Wilson and Dawson JJ

emphasised the common law obligation that an arrested person should be

taken before a justice as soon as is reasonably possible and that neither the

common law nor s 34A(1) of the Justices Act 1959 (Tas) there under

consideration permitted delay merely for the purpose of further investigation

either of the offence for which the person was arrested or of any other offence

or offences. That statement was preceded by their Honours’ statement on the

previous page of Williams that, “there must be reasonable time to formulate

and lay appropriate charges for the purpose of bringing a person before a

justice.”83 It is clear that Gleeson CJ was accepting that the junior officers had

not arrested the appellant to interrogate him, and expected the senior officer to

charge him. The intention to charge the appellant was held contemporaneously

with the appellant’s arrest, albeit it was held by the senior officer.

105 Gleeson CJ’s reasons also have to be understood in the context of the facts

more fully set out in Samuels JA’s reasons. As his Honour explained, the

senior officer gave evidence that when he arrived at Flemington police station

where the appellant was being held, he had already decided to charge him with

two of the charges of armed robbery upon which he was ultimately arraigned.

In Samuels JA’s view,84 applying the doctrine of principal and agent, there was

83 At 312.84 At 24.

no reason why the senior officer’s “reasonable suspicion that the appellant had

committed two armed robberies should not be attributed to the arresting police

so as to make the arrest lawful.” His Honour added that if the doctrine were to

be extended to circumstances such as those before the court, “the arresting

officers ought to be put in possession of the details of the charge before they

are dispatched to take up the suspect; or they should be in the position to

obtain those details immediately after the arrest has been made.”

106 Next, the SNSW submits that in Clyne v New South Wales85 this Court had

rejected the proposition for which Mr Robinson contends. In Clyne,

Macfarlan JA rejected a submission by Ms Clyne to the effect that the trial

judge had erred in rejecting her submission that she had been wrongfully

arrested because those who arrested her did not intend to take her before an

authorised officer to be dealt with according to law but, rather, had arrested her

for the purpose of questioning.86 Macfarlan JA held that the trial judge had not

erred as s 352(2), Crimes Act, as in force at the time of Ms Clyne’s arrest (15

October 2003), “neither explicitly nor implicitly authorised arrests only if they

were effected for the purpose of taking the person arrested before an

authorised Justice.”87

107 Macfarlan JA also held that “[c]onsistently with ss 356C and D, the arresting

officer’s intent at the time of arrest might lawfully be only to question the person

and deal with him or her as required by s 356C(4), that is, release the person

or bring him before an authorised Justice.”

108 Macfarlan JA’s conclusion was, as the SNSW accepts, reached without

reference to the authorities on which Mr Robinson relies. However, in reaching

this conclusion, his Honour agreed with the view to like effect expressed by

Adams J in Director of Public Prosecutions v Nicholls.88

109 In DPP v Nicholls, Adams J accepted that s 352(2) of the Crimes Act qualified

the common law principle “that there is no power to detain a citizen for the

purpose of questioning him or her, still less that the intention to do so could

85 [2012] NSWCA 265.86 At [62] – [64] (Campbell and Meagher JJA agreeing).87 At [63].88 [2001] NSWSC 523; (2001) 123 A Crim R 66 (DPP v Nicholls) at [15] – [16].

justify a delay in bringing the arrested person before a justice in as a short a

time as is reasonably practicable.”89 His Honour referred to passages in

Williams as supporting that proposition.90 However, Adams J reached his

conclusion that this principle did not apply on the facts he was considering by

reference to Pt 10A of the Crimes Act.91

110 In DDP v Nicholls, Adams J appears to have accepted the DPP’s submission

that Mr Nicholls had been detained under s 356C in Pt 10A of the Crimes Act

(substantively, relevantly, in the same terms as s 114 of LEPRA) by reason of

the expanded definition of “under arrest” in s 355 (cf s 110(2) LEPRA). It was in

that context, as I understand Adams J’s reasons, that his Honour held such an

arrest might lawfully be for the purposes of investigation. It was that reasoning

which Macfarlan JA applied in Clyne.92

111 However, after DPP v Nicholls was decided, the Court of Criminal Appeal

reached a contrary conclusion in R v Dungay.93 In that case, Ipp AJA held that

an arrest solely for investigative purposes was unlawful. In the course of doing

so, his Honour held that lawful detention for the purposes of investigation

pursuant to Pt 10A of the Crimes Act was dependent upon lawful arrest having

been effected, referring to s 356B(1)(a), s 356C(1) and s 356C(2).94 It does not

appear that R v Dungay was drawn to the Court’s attention in Clyne. It is

directly contrary to the conclusion Adams J reached in DPP v Nicholls. This

court will follow decisions of the Court of Criminal Appeal unless convinced

they are plainly wrong.95 In my view R v Dungay was not “plainly wrong”,

rather, it was correct. Regrettably, it does not appear to have been drawn to

the court’s attention in Clyne. It follows, in my view, that Clyne was decided per

incuriam and should not be followed.

89 At [8].90 Per Mason and Brennan JJ at 295; per Wilson and Dawson JJ at 306.91 Part 10A was inserted in 1997: Crimes Amendment (Detention after Arrest) Act 1997, Sch 1(4).92 DPP v Nicholls also appears to have been a very different case factually to Clyne having regard to the police officer’s evidence as to why he placed Mr Nicholls “in custody”: see [3] – [5], [14]. It was for that reason that Adams J had regard to the expanded definition of “under arrest”. In Clyne, there was no doubt that Ms Clyne had been arrested as that term is ordinarily understood: see Clyne at [6].93 [2001] NSWCCA 443; (2001) 126 A Crim R 216.94 At [28] – [29] (Studdert and James JJ agreeing).95 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; (2001) 21 NSWCCR 389 at [70] per Heydon JA (Priestley and Sheller JJA agreeing).

112 The SNSW also relied upon Dowse as having been incorrectly decided

because the Court was not referred to Clyne. As I have earlier explained (at

[55]-[57]), I disagree with the SNSW’s submissions concerning Dowse

independently of the fact Clyne was not referred to. Having regard to my

conclusion concerning Clyne, the failure to refer to it in Dowse cannot advance

the SNSW’s case.

113 What is apparent from an examination of the authorities throughout the various

iterations of the statutory power to arrest without warrant is that where the

requirement to take person arrested before a justice or an authorised officer is

limited by words such as “as soon as practicable”96 or “without unreasonable

delay”97 it cannot be extended to provide time for interrogation.

114 Contrary to Clyne and DPP v Nicholls, and as I have already explained, that

decision cannot be reached insofar as Pt 9 of LEPRA is concerned, unless

there has been a lawful arrest pursuant to Pt 8.

Context: the LEPRA Amendment Act

115 Finally, the SNSW contended that if there were any doubt about its

submissions concerning the text and previous authorities, such doubt was

dispelled by the context provided by the LEPRA Amendment Act which

introduced the current form of s 99 and subsection (3) into s 105. It relied, in

this respect, on the Second Reading Speech to the LEPRA Amendment Act

and on a report by the former shadow Attorney General, Mr Andrew Tink, and

the former police minister, the Honourable Paul Whelan,98 which it contended

were extrinsic materials legitimately to be taken into account in construing

s 99(1), LEPRA.

116 In my view, whatever use may be made of the Tink/Whelan report, it should be

noted, as the SNSW acknowledges, for its statement that “[t]he intent of the

[proposed] legislation is not to allow police the power to arrest in order to

investigate”.99 Somewhat inconsistently with this observation, in the next

paragraph the authors refer to the then proposed s 99(1)(b)(v) (which was

96 Section 34A(1), Justices Act 1959 (Tas).97 R v Bathgate (1946) 46 SR 281 at 283 per Maxwell J, referred to with approval in R v Walsh per Samuels JA.98 Review of the Law Enforcement (Powers and Responsibilities) 2002 [sic], Report Part 1 – Section 99, (25 October 2013) (Tink/Whelan Report).99 At page 4.

ultimately enacted) as having “been drafted in such a way to allow police to

arrest to obtain property, without conferring a wider power allowing police to

arrest for the purpose of investigation.” Elsewhere, the Tink/Whelan report

states that subsection 3 of s 105 was to be included “for abundant caution and

transparency”.100

117 In addition, the SNSW relies on the Second Reading Speech to the LEPRA

Amendment Act in which the premier, the Hon Mr Barry O’Farrell, described its

purpose as being “to ensure that police have clear, simple and effective powers

of arrest to protect the community”.101

118 In reliance on these extrinsic materials, the SNSW submits that the “features”

of the new section 99 as compared to its predecessor sat uneasily with a

continued insistence that the purpose of arrest must be to bring the arrested

person before an authorised officer as soon as reasonably practicable, all the

more so when s 99 was “now linked more strongly to the investigative

provisions in Pt 9 by the presence of s 99(4)”.

119 For the reasons I have earlier given, the pathway to Pt 9 lies in there having

been a lawful arrest under Pt 8.

120 The extrinsic material to which the SNSW refers, does not, in my view, assist

its submissions. In any event, it should be borne in mind that such material

“cannot be determinative: it is available as an aid to interpretation” and cannot

displace the text but can illuminate its meaning.102 In my view the extrinsic

materials to which the SNSW refers cast no light which supports its

submissions.

Conclusion

121 In NAAJA v NT,103 the plurality described as “an obvious application of the

principle of legality that clear words are required if a statute is to authorise

holding an arrested person in custody for a purpose other than for the purpose

of charging that person and bringing him or her before a justice of the peace or

100 At page 7.101 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 October 2013 at 25092; see also the Tink/Whelan report at pp 2, 3 and 6.102 NAAJA v NT at [86] per Gageler J; see also at [229] per Nettle and Gordon JJ.103 At [23].

court as soon as is practicable if he or she is not earlier released on bail or

unconditionally.” In my view, such clear words are not found in the LEPRA.

122 The primary object of statutory construction is to construe the relevant

provision so that it is consistent with the language and purpose of all the

provisions of the statute.104 While the text is both the starting and the end

point,105 the meaning of the provision must be determined “by reference to the

language of the instrument viewed as a whole”.106

123 While it has been said that “the context, the general purpose and policy of a

provision and its consistency and fairness are surer guides to its meaning than

the logic with which it is constructed”,107 in the case of s 99 both its text, logic

and context, as well as the overall logic of the LEPRA support Mr Robinson’s

contention.

124 As is apparent from the textual analysis of the LEPRA, in particular s 99,

nothing in the LEPRA expressly requires the police to charge a person arrested

without a warrant. But that must occur at some stage. The SNSW accepts that

that obligation is embedded in the s 99(3) requirement to take a person before

an authorised officer, unless the person is released. As I have said, that

interpretation is also supported by s 107 which is found in Pt 8.

125 Further, nothing in s 99 expressly permits the police to interview the person

arrested without warrant to determine whether he or she committed the offence

referred to in s 99(1)(a). The s 99(1)(b)(iii) power to make inquiries as to the

arrested person’s identity “if it cannot be readily established or if the police

officer suspects on reasonable grounds that identity information provided is

false”, would presumably permit asking questions of the arrested person, but

confined to the subject of the power.

126 The only ability to detain and interview the arrested person to “investigat[e] …

the person’s involvement in the commission of an offence”108 is found in Pt 9.

104 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) at [69] per McHugh, Gummow, Kirby and Hayne JJ.105 Consolidated Media Holdings at [39].106 Project Blue Sky, op cit.107 Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397; [1955] HCA 27 per Dixon CJ.108 LEPRA, s 109(a), s 114(1) and (2).

As I have explained, the route to Pt 9 is found in Pt 8, s 99(4) of which

proceeds on the premise there has been a lawful arrest pursuant to s 99.

127 The consequence is first, that the intention to charge the arrested person must

have been formed at the time of the arrest pursuant to s 99 and, second,

subject to the confined s 99(1)(b)(iii) power, the arrested person cannot be

interviewed in relation to the s 99(1)(a) offence (or any other, I would add out of

abundant caution). Logic dictates that the decision to charge must also have

been made at that time.

128 Constable Smith had not made any such decision. Rather, he had not decided

if Mr Robinson was going to be charged. Consistently with that state of mind,

he did not inform Mr Robinson of the reason for his arrest. He arrested Mr

Robinson in order to interview him in relation to the reported breach of the

AVO.

129 Mr Robinson’s arrest was, accordingly, unlawful.

Orders

130 I propose the following orders:

(1) Appeal allowed.

(2) Set aside the orders of Taylor DCJ and in their place make the following orders:

(a) Judgment for the plaintiff in the sum of $5000, such judgment to take effect from 3 August 2017;

(b) Defendant to pay the plaintiff’s costs.

(3) Respondent to pay the appellant’s costs of the appeal and the application for leave to appeal.

131 BASTEN JA: On 22 December 2013, the appellant, Bradford James Robinson,

was arrested when he voluntarily attended a Sydney police station in response

to a request from police. The sole question in this case is whether the arrest of

the appellant was lawful in circumstances where the arresting officer conceded

that he did not have an intention to lay charges when he carried out the arrest.

The appellant contends that such an intention was an essential precondition to

a lawful arrest. The State contends that the essential preconditions are to be

found in s 99(1) of the Law Enforcement (Powers and Responsibilities) Act

2002 (NSW) (“Law Enforcement Act”) and they do not include an intention to

charge.

132 Although the State insisted that the question should be answered by reference

to the terms of the Law Enforcement Act, as is often the case, the statute uses

language having a specific legal meaning which provides essential context in

which to understand its operation.109 It is necessary to start with a correct

understanding of the common law.110 That is not to deny the importance of s 99

of the Law Enforcement Act in identifying the powers of a police officer to arrest

without a warrant. Nor is it to accord pre-emptive force to the principle of

statutory interpretation known as the principle of legality. That principle requires

a clear statement of legislative intent in order to construe a statute as impairing

or overriding a fundamental right or freedom accorded to individuals under the

common law, or as interfering with the general system of administration of law.

133 This was the approach adopted by all members of the majority in the High

Court in considering the scope of police powers in North Australian Aboriginal

Justice Agency, to which further reference will be made below.

134 The need to identify relevant common law principles arises, in further part,

because the Law Enforcement Act specifically addresses the relationship

between its provisions and the common law in s 4:

4 Relationship to common law and other matters

(1) Unless this Act otherwise provides expressly or by implication, this Act does not limit:

(a) the functions, obligations and liabilities that a police officer has as a constable at common law, or

(b) the functions that a police officer may lawfully exercise, whether under an Act or any other law as an individual (otherwise than as a police officer) including, for example, powers for protecting property.

(2) Without limiting subsection (1) and subject to section 9, nothing in this Act affects the powers conferred by the common law on police officers to deal with breaches of the peace.

109 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); [1997] HCA 2.110 Williams v The Queen (1986) 161 CLR 278 at 304 (Wilson and Dawson JJ); [1986] HCA 88; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 at [222] (Nettle and Gordon JJ).

135 All these matters aside, it is necessary to identify the scope and operation of

the common law powers of a constable to carry out an arrest without warrant in

order to test the appellant’s description of the limitation upon which he relies.

Without undertaking that exercise it is not possible to say whether the statute

varies the limitation, either expressly or by implication. The fact that it does not

do so expressly will be unsurprising if the limitation does not arise in the terms

contended for.

136 The conclusion reached below is that in legal terminology “arrest” is generally

used to identify that deprivation of liberty which is a precursor to the

commencement of criminal proceedings against the person arrested, and

which may be justified as necessary for the enforcement of the criminal law.

There is no indication in the Law Enforcement Act that it is used in any other

sense. Accordingly, an arrest without warrant in exercise of the power

conferred by s 99(1) of the Law Enforcement Act is not a valid arrest unless

carried out for that purpose.

Arrest under the general law

(i) scope of powers

137 The common law accepted that a police constable had power to arrest and

detain a person without warrant upon holding a reasonable suspicion that the

person was committing or had committed a felony. Other persons could arrest

in such circumstances, but the arrest would only be lawful if the person

arrested had in fact committed the offence.111 The power, even for a police

officer, to arrest without warrant for a lesser offence depended upon statute

rather than the common law.

138 That power has long since been extended to cover other offences, in the

process providing a statutory basis for the common law powers of arrest. As

the categorisation of crimes as felonies and misdemeanours has been

abandoned it is more accurate to speak of general law powers, rather than

common law powers. Thus, s 352 of the Crimes Act 1900 (NSW), as enacted,

provided (not for the first time):

Apprehension of offenders

111 Christie v Leachinsky [1947] AC 573 at 596 (Lord du Parcq).

352 (1) Any constable or other person may without warrant apprehend,

(a) any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act,

(b) any person who has committed a felony for which he has not been tried,

and take him, and any property found upon him, before a Justice to be dealt with according to law.

(2) Any constable may without warrant apprehend,

(a) any person whom he, with reasonable cause, suspects of having committed any such crime,

(b) any person lying, or loitering, in any highway, yard, or other place during the night, whom he, with reasonable cause, suspects of being about to commit any felony,

and take him, and any property found upon him, before a Justice to be dealt with according to law.

139 The predecessor to s 352 was s 429 of the Criminal Law Amendment Act of

1883 (46 Vic. No.17), which provided:

Apprehension of Offenders and Search Warrants

429. Every constable or other person may without a warrant apprehend any person in the act of committing or immediately after having committed an offence punishable whether by indictment or on summary conviction under this or any other Act and take such person together with any property found upon him before a Justice to be dealt with according to law—And may in like manner apprehend and deal with any offender who has committed a crime punishable by death or penal servitude and for which he has not been tried—And every constable may without warrant apprehend and in like manner deal with any person whom he with reasonable cause suspects of having committed any such crime….

140 Those provisions expanded the common law power of a constable, and indeed,

in subs 352(1), the powers of other persons. The power to arrest without

warrant on suspicion in subs 352(2) extended to the same crimes, namely

statutory offences and felonies. Nevertheless, this was not a codification of the

law relating to arrest. For example, it said nothing about how an arrest was to

be carried out; there was no reference to the need to communicate the

intention to arrest and, if the person does not submit, to at least touch the

person.112 Nor, importantly for present purposes, was there any reference in

these sections to the obligation of the arresting officer to notify the person of

the reason for the arrest.

112 Alderson v Booth [1969] 2 QB 216 at 221 (Lord Parker CJ).

141 What must be conveyed to the arrestee is not necessarily the charge, but the

conduct in respect of which the person is being arrested. Thus, in Christie v

Leachinsky, Lord Simonds stated that “if a man is to be deprived of his freedom

he is entitled to know the reason why.”113 Lord Simonds continued:

“If, then, this is, as I think it is, the fundamental rule, what qualification if any must be imposed upon it? The cogent instances given by Lawrence LJ are conclusive that an arrest does not become wrongful merely because the constable arrests a man for one felony, say murder, and he is subsequently charged with another felony, say manslaughter. … It is clear that the constable has not been guilty of an illegal arrest, if he reasonably suspected that murder had been done. Again, I think it is clear that there is no need for the constable to explain the reason of arrest, if the arrested man is caught red-handed and the crime is patent to high Heaven. Nor, obviously, is explanation a necessary prelude to arrest where it is important to secure a possibly violent criminal. … These and similar considerations lead me to the view that it is not an essential condition of lawful arrest that the constable should at the time of arrest formulate any charge at all, much less the charge which may ultimately be found in the indictment. … It leaves untouched the principle, which lies at the heart of the matter, that the arrested man is entitled to be told what is the act for which he is arrested. The ‘charge’ ultimately made will depend upon the view taken by the law of his act. In ninety-nine cases out of hundred the same words may be used to define the charge or describe the act, nor is any technical precision necessary: for instance, if the act constituting the crime is the killing of another man, it will be immaterial that the arrest is for murder and at a later hour the charge of manslaughter is substituted. The arrested man is left in no doubt that the arrest is for that killing.”

142 As was made clear in Christie, the underlying principle was one that might

today be described as procedural fairness. It was necessary to explain the

reason both to justify the deprivation of liberty and to allow the person an

opportunity to provide an immediate explanation to allay the suspicion

underlying the arrest.

143 The case law accepted that s 352 of the Crimes Act represented an expansion

of common law powers of arrest without warrant, and not their displacement. In

one such case, Clarke v Bailey,114 the plaintiff sued for damages for an unlawful

arrest and search. He was found to have been lawfully arrested, but was

subsequently taken to a hotel and searched without lawful authority. The Full

Court upheld the jury’s award of damages in respect of the post-arrest conduct.

The Court stated:115

113 Christie at 592.114 (1933) 33 SR (NSW) 303 (Davidson J, Street CJ and James J agreeing).115 Clarke at 309.

“Section 352 of the Crimes Act … provides that any constable may, without warrant, apprehend any person whom he, with reasonable cause, suspects of an offence punishable on summary conviction, and take him and any property found upon him before a justice to be dealt with according to law.

At common law it was compulsory for a constable, in order to justify an arrest, to shew that he had taken the arrested person without delay, and by the most direct route, before a justice, unless some circumstances reasonably justify a departure from these requirements …. And, in my opinion, the effect of the section is merely to reinforce the common law principle, and is not intended to give the constable discretion in the matter except to the same extent as existed before.”

144 Authority for the common law constraint was found in Wright v Court (1825).116

It has been affirmed in various jurisdictions over the years.117 It is sufficient for

present purposes to note that Clarke v Bailey was applied in Bales v

Parmeter,118 Jordan CJ stating:119

“The jury found that there was an arrest at the flat and an imprisonment at the police station. Accepting those findings, it is impossible, on the defendants’ own evidence, to escape the conclusion that any such restraint on the plaintiff’s liberty was, not for the only purpose for which in the circumstances it could have been justified – that of taking her before a magistrate to be charged and dealt with according to law – but for the purpose of asking her questions or making investigations in order to see whether it would be proper or prudent to charge her with the crime. If a person has been arrested, and is in [the] process of being brought before a magistrate questioning within limits is regarded as proper in New South Wales – indeed, within very narrow limits, it is regarded as proper in England; but a police officer has no more authority to restrain the liberty of a suspected person for the purpose, not of taking him before a magistrate, but of interrogating him, than he has of restraining the liberty of a person who may be supposed to be capable of supplying information as a witness.”

The reasoning in Bales v Parmeter was expressly approved by the High Court

in Williams v The Queen.120

145 As will be discussed below, the Law Enforcement Act varies the constraints

imposed on police by these authorities. However, consistently with the

appellant’s submissions, there is support in Clarke and Bales v Parmeter for

the view that the arresting officer must have had an intention at the time of

arrest of taking the plaintiff before a magistrate, or the arrest would have been

invalid.

116 (1825) 4 B&C 596; 107 ER 1182.117 See Gillies, The Law of Criminal Investigation (Law Book Co, 1982), p 185.118 (1935) 35 SR (NSW) 182 at 189 (Jordan CJ, Stephen J and Street J agreeing).119 Bales at 190.120 Williams at 293 (Mason and Brennan JJ), 306-307 (Wilson and Dawson JJ); [1986] HCA 88.

(ii) the inconsistency challenge

146 Counsel for the State submitted that there is an internal inconsistency or

incoherence in this approach. That is because the power of arrest under s 99

of the Law Enforcement Act is expressly conditioned upon a reasonable

suspicion that the person arrested has committed an offence, or as it was

earlier described in s 352 of the Crimes Act, the person should “with

reasonable cause” suspect that the person has committed the offence. On the

other hand, it is now generally accepted that, to lay a charge, an informant

must have reasonable and probable cause to believe that a prosecution would

be likely to succeed. That language is derived from an element of the tort of

malicious prosecution, although absence of reasonable and probable cause

alone will not establish liability for the tort.121 However, if that be the test to be

satisfied before a charge can be laid, it is a higher test than the requirement of

reasonable suspicion of the commission of an offence, which is sufficient for a

valid arrest. It would render the law incoherent, it was submitted, if two differing

standards were to be applied to the same activity (arrest) in order for it to be

lawful. It is, perhaps, curious that this potential anomaly has not been squarely

addressed in the cases dealing with the common law power.

147 The leading case in Australia, prior to the extensive statutory amendments in

the last three decades expanding the powers of police to interrogate and

investigate following an arrest, was Williams v The Queen. Of the three

judgments in Williams, Gibbs CJ took a more liberal approach to the powers of

police than did other members of the Court. Nevertheless, the Chief Justice

concluded that there was “no power to detain a citizen merely for the purpose

of questioning him”;122 rather, “[t]he power given by the common law, and by

[statute], to arrest a person reasonably suspected of having committed a crime

is given for the purpose of enabling that person to be brought before a justice

as soon as is reasonably practicable so that he may be dealt with according to

law.”123 He accepted, however, that the police had broad powers of

investigation within such a temporal framework, so long as the period of

reasonable delay was not exceeded.124

121 A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [1].122 Williams at 283.123 Williams at 284-285.124 Williams at 285.

148 Mason and Brennan JJ rejected the proposition adopted by the Tasmanian

Court of Criminal Appeal that it must be lawful “to continue detention for a

reasonable period to enable investigating officers to establish with some

precision the charge or charges upon which the accused is to be presented to

the justice and what evidence there is to support any such charges.”125 Their

joint reasons continued:126

“Nor is there any reason to think that, in general, an arresting police officer would be unable properly to make a complaint or to lay an oral information until he had had an opportunity to question the person arrested. In the ordinary case of an arrest on suspicion, the arresting officer must have satisfied himself at the time of the arrest that there are reasonable grounds for suspecting the guilt of the person arrested …, although the grounds of suspicion need not consist of admissible evidence …. If the arresting officer believes the information in his possession to be true, if the information reasonably points to the guilt of the arrested person and if the arresting officer thus believes that the arrested person is so likely to be guilty of the offence for which he has been arrested that on general grounds of justice a charge is warranted, he has reasonable and probable cause for commencing a prosecution: see Mitchell v John Heine & Son Ltd;127 Commonwealth Life Assurance Society Ltd v Brain;128 Glinski v McIver.129 There is no practical necessity to construe the words ‘as soon as is practicable’ … so as to authorize the detention by the police of the person arrested for the purpose of questioning him or conducting inquiries with his assistance.”

149 Mitchell, Brain and Glinski were all cases involving the tort of malicious

prosecution; they were dealt with in some detail in A v State of New South

Wales,130 another case dealing with malicious prosecution and not unlawful

arrest. In effect the reasoning of Mason and Brennan JJ acknowledged the

theoretical discrepancy between the respective tests for arrest and laying a

charge, but rejected it as a basis for extending the powers of police to arrest

without being in a position to lay a charge.

150 Mason and Brennan JJ in Williams also adopted the following statement from

Lord Porter in John Lewis & Co Ltd v Tims:131

“Those who arrest must be persuaded of the guilt of the accused; they cannot bolster up their assurance or the strength of the case by seeking further evidence and detaining the man arrested meanwhile or taking him to some spot where they can or may find further evidence.”

125 Williams at 291, quoting Underwood J in the court below.126 Williams at 300.127 (1938) 38 SR(NSW) 466 at 469.128 (1935) 53 CLR 343 at 382.129 [1962] AC 726 at 766-767.130 A at [64]-[81].131 [1952] AC 676 at 691; Williams at 297.

151 John Lewis v Tims involved an arrest by shop detectives of two customers who

were believed to have stolen goods, the arrest taking place after they had left

the shop. The shop detectives returned with them to the shop in order to allow

a senior person in management to decide what steps should be taken, the

decision being to hand them over to the police to pursue charges. The House

of Lords rejected the proposition that they were to be taken before a justice

immediately or forthwith, accepted that the requirement was to take them

before a justice as soon as reasonably practicable, and held that there was no

breach of that standard involved in taking them back to a responsible officer,

who might then deliver them to the authority of the police. Being an arrest by

private citizens, the validity of the arrest presumably turned on whether a theft

had been committed.

152 The second joint judgment in Williams, that of Wilson and Dawson JJ, also

addressed the potential inconsistency between allowing an arrest on the basis

of reasonable suspicion and, in effect, requiring that the arresting officer be in a

position to proceed immediately to lay a charge. The joint reasons stated:132

“This being the purpose of arrest, any delay in bringing a person under arrest before a justice, even if it is to effectuate some other purpose such as the questioning of that person in order to dispel or confirm the suspicion which was the basis of the arrest, is to defeat, however temporarily, the true purpose. Where no delay is involved, there can, of course, be no objection to the occasion of the arrest and subsequent detention being used for the purpose of further investigation of the offence in question or, for that matter, any other offences …. But to conduct an investigation which does not cut across the purpose for which a person is held under arrest is one thing; to disregard that purpose in order to carry out an investigation is another thing, however much the further investigation may be otherwise necessary or desirable.”

153 Wilson and Dawson JJ joined with Mason and Brennan JJ in rejecting the

approach adopted in England of allowing a period in which to obtain evidence

which may be necessary to formulate a charge, concluding:133

“There is no real protection for the individual in any formula which says that the police may not detain an arrested person longer than is necessary to enable them to prefer a charge. Obviously there must be reasonable time to formulate and lay appropriate charges for the purpose of bringing a person before a justice. The common law allows time for this and it is covered by the words ‘as soon as is practicable’. But it is something quite different to say that the police should be able to detain an arrested person to enable them, by further investigation, to gather the evidence necessary to support a charge.”

132 Williams at 306.133 Williams at 312.

(iii) rationale as to purpose of arrest

154 It therefore appears from the cases that, at least in Australia, under general law

principles, an arrest must be carried out for the purpose of taking the person

before a court or justice as soon as reasonably practicable. As explained in

Williams by Wilson and Dawson JJ, the rationale for the principle is as

follows:134

“A person who is arrested may be detained only for the purpose of bringing him before a justice (or nowadays before some other person with power to deal with him) to be dealt with according to law. For arrest is the beginning of imprisonment and, whilst it is recognized that imprisonment before trial may be necessary in the administration of criminal justice, it must be justified in accordance with the law. There must be a charge and if the person charged can establish his entitlement to bail and can furnish it, the law requires that he be released subject to any conditions which might be imposed upon him. … The point at which an arrested person is brought before a justice upon a charge is the point at which the machinery of the law leading to trial is put into operation. It is the point from which the judicial process commences and purely ministerial functions cease.”

155 It does not follow that the person carrying out the arrest must personally intend

to lay a charge; an expectation that others will do so may be sufficient. In

Williams itself, the suspect was arrested in Scottsdale, a town in northern

Tasmania and detained until senior officers came from Launceston. He was

then taken by police vehicle to Launceston. Having been arrested at 6am at

Scottsdale, he arrived at Launceston at about 11am and could reasonably

have been taken before a magistrate at about 2.15pm. The further conduct of

interviews thereafter which led to his appearance being delayed until the

following day rendered the detention unlawful for the additional period.

156 In John Lewis v Tims, it does not appear that the arresting store security

officers were those responsible for laying the charges. Similarly, in relation to

police, in Regina v Walsh135 the offender was arrested at about 3pm in relation

to a shooting which had occurred the previous day. The arrest was carried out

by police officers under the instruction of a senior officer, Detective Sergeant

Rees, who informed them of his suspicions but not the detail of the specific

offences. Walsh was taken to a police station and the senior officer notified.

Had Detective Sergeant Rees driven directly to the police station, he would

have arrived at about 5.30pm; however, he travelled first to another area to 134 Williams at 305.135 Unrep, 18 October 1990, NSW CCA (Gleeson CJ, Samuels JA and Studdert J).

endeavour to arrest a suspected co-offender, arriving at the police station

where Walsh was being held at about 8.15pm. Gleeson CJ stated:

“It was submitted on behalf of the appellant that it was unlawful for the police officers to arrest him if they did not have sufficient knowledge or information about the crimes of which he was suspected to charge him then and there. I cannot agree. The appellant was arrested without warrant, but he was reasonably suspected of having committed offences. The officer in charge of the investigation … obtained the assistance of other police officers to effect the actual arrest of the appellant.

…

There was no attempt at the hearing to investigate the question whether, apart from the absence of Detective Sergeant Rees, and apart also from the desire of the arresting officers to leave it to him to lay the charges, it would have been practicable to take the appellant before a court or justice sooner than he was in fact so taken, that is to say, at 10am on the following day.”136

157 It must therefore be concluded, for the reasons set out by Wilson and Dawson

JJ in the extract at [152] above, that an arrest can only lawfully be carried out

for the purpose of bringing the suspect before a justice to be dealt with

according to law. It does not follow, however, that the arrest is invalid if the

arresting officer does not at the time of the arrest have the state of mind

necessary to lay charges, so long as a superior does. This approach is

illustrated by the cases which refer to detention following an arrest becoming

unlawful where the arrest has been carried out “otherwise for a lawful

purpose”.137 To similar effect, the Supreme Court of South Australia in Drymalik

v Feldman138 stated:

“We think that the appellants had reasonable grounds for suspecting that the plaintiff had committed the offence for which the appellants purported to arrest him, and, if he had been taken before the justice without unnecessary delay, the plaintiff would have had no ground of complaint. But if the purpose of the arrest was to afford an opportunity for questioning, then the arrest was unlawful, and, be that how it may, the detention whilst the plaintiff was being questioned was unlawful.”

158 These cases, and the reasoning in Williams, explain why a reasonable

suspicion must be accompanied by an intention to charge the person being

arrested, but need not be accompanied by a clearly formulated charge, and

may be subject to contingencies. The officer must give a reason for the arrest,

but this should refer to the suspected conduct rather than an offence. The

136 The judgment, pp 8-9; see also pp 14-15 (Samuels JA) and p 16 (Studdert J agreeing with the Chief Justice).137 Bales v Parmeter at 189.138 [1966] SASR 227 at 235 (Napier CJ, Bright J and Mitchell J).

specific state of mind of the arresting officer will depend on the facts of the

case; in one case the existence of an offence may be in doubt, in another the

identity of the offender. The purpose must be to lay a charge within a

reasonable time frame to allow the suspect to seek his liberty, if he or she

wishes.

159 To similar effect, this Court in Zaravinos v State of New South Wales139 held

that s 352 of the Crimes Act did not displace general principles with respect to

powers of arrest; rather, in providing that a constable is to take the arrested

person and any property before an authorised justice, the section used

language reflecting the common law and “must be understood as indicating the

only proper purpose for which an arrest may be carried out.”

160 At least in a formal sense, the incoherence of a dual test of intention for a

lawful arrest may be resolved by treating the obligation to take the person as

soon as practicable before a justice as a separate obligation imposed by law

once an arrest has taken place, rather than a requirement that the arresting

officer have a particular subjective intention. On that understanding, an arrest

based on reasonable suspicion would remain valid, and the detention lawful,

until the reasonable period had elapsed. From that point, if the suspect had not

been taken before a justice (or released), the detention would become

unlawful. It would also follow that, if the person were released before the

reasonable period expired, there would be no unlawful detention. However,

that conclusion is not consistent with the passages from Bales v Parmeter and

Drymalik v Feldman set out above; the reason is that the purpose of

commencing the criminal process attaches at the moment of arrest.

Effect of statutory amendments

(i) the power of arrest

161 The first step in considering the effect of relevant statutory provisions is to note

that the common law referred to above developed against the background of

statute, including provisions equivalent to s 352 of the Crimes Act, to which

reference has already been made.

139 (2004) 62 NSWLR 58; [2004] NSWCA 320 at [23] (Bryson JA, Santow JA and Adams J agreeing).

162 The replacement of s 352 of the Crimes Act with the current s 99 of the Law

Enforcement Act came about through a series of stages, which included the

addition of various provisions to the Crimes Act before the relevant parts

(Pts 10 and 10A) were removed. Thus, ss 114 and 115 of the Law

Enforcement Act were formerly ss 356C and 356D of the Crimes Act. Although

the stages may be relevant in considering the authorities, it is sufficient to

consider the provisions of the Law Enforcement Act in their present form, as

applicable to the present case. Section 99 relevantly provides:

99 Power of police officers to arrest without warrant




…


…

(ix) because of the nature and seriousness of the offence.140

…

(3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law.

Note. The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer—see section 105.


163 There are several aspects of this provision to be noted. First, s 99(1)(a)

provides that a police officer may arrest a person if he or she “suspects on

reasonable grounds that the person … has committed an offence”. That

language does not suggest any variation in principle from the language of

s 352, as enacted in 1900 (or indeed 1883).

164 Section 99(1)(b), however, imposes a constraint on the use of the power of

arrest without warrant. It requires that the officer be satisfied that the arrest is

140 These were the paragraphs satisfied in the present case; the full provision is set out at [15] above.

“reasonably necessary” for one or more of a number of reasons. Those

reasons provide, in effect, that the police functions of law enforcement would

not be sufficiently carried out by steps short of arrest, which, with respect to the

commencement of proceedings, would commonly mean the issue of a court

attendance notice. Thus, a failure to consider such an alternative course

resulted in a finding that an arrest was unlawful in State of New South Wales v

Smith.141 There is, however, no reason to derive from the existence of the

additional constraint an implied variation of the long standing requirement that

an arrest must be a preliminary step in invoking the criminal process.

165 Indeed, this purpose is expressly referred to in s 99(3), which imposes a

requirement that the officer who arrests a person must, as soon as reasonably

practicable, take the person before an authorised officer to be dealt with

according to law. This statement of the general law obligation is not in the form

of a condition precedent involving a state of mind of an arresting officer.

Rather, it constitutes a statement of obligation which is engaged by the

carrying out of an arrest.

166 On the other hand, that is the form which the obligation has taken since the

enactment of the Crimes Act in 1900 (and in 1883); it has never been

expressed as the required purpose of the arrest, absent which an arrest will be

invalid. Nevertheless, throughout that period, the existence of such a purpose

has been held to be a condition of validity. The terms of s 99(3) do not suggest

a change in the law in this regard.

167 Further, if the effect of the new legislative form were to remove the

conventional purpose underlying a valid arrest, it has been done without any

indication as to any alternative purpose or rationale. If the State were correct in

submitting that the general law obligation has been removed, it must be

sufficient that the officer have, as a sole purpose of the arrest, the questioning

of the suspect or the taking of some other step in an investigation into the

suspected offending.

168 Emmett AJA has referred to the Parliamentary Review of the Law Enforcement

Act undertaken in 2013. Part 1 of the Report of the Review proposed

141 [2017] NSWCA 194 (McColl JA, Leeming JA and Sackville AJA agreeing with additional observations).

amendments to s 99, including the insertion in what is now s 99(1)(b) of

additional matters justifying an arrest. Under a subheading, “to obtain property

in the possession of the person that is connected with the offence” (a reason

now to be found in par (b)(v)), the following comment appears:

“The Parliamentary Counsel has advised that if the provision were drafted to allow police to lawfully arrest a suspected offender in order to ‘obtain’ evidence, this would effectively give police the power to arrest without warrant for the purpose of investigating an offence. The intent of the legislation is not to allow police the power to arrest in order to investigate. It is noted that the proposed section 99(4) clarifies that once a person has been lawfully arrested the person may be detained under Part 9 of LEPRA for investigative purpose.” [Emphasis added.]

(ii) express powers to investigate – Part 9

169 The extrinsic materials therefore provide express support for the view that the

legislation was not intended to vary the pre-existing requirement as to the

purpose for which an arrest might be carried out. The extrinsic materials do,

however, draw attention to provisions in Pt 9 of the Law Enforcement Act which

permit further investigation subsequent to an arrest. Part 9 is headed

“Investigations and questioning”. The explanatory note to the Bill stated that the

provisions in Pt 9 “re-enact existing NSW legislation”. That is so: equivalent

provisions were found in Pt 10A of the Crimes Act, introduced in 1997. Section

114 now provides that a police officer may detain a person “who is under

arrest” for the investigation period provided for by s 115. The officer may detain

the person “for the purpose of investigating whether the person committed the

offence for which the person is arrested.” Where the officer forms a reasonable

suspicion of the person’s involvement in another offence, that offence may also

be investigated. Section 115 identifies a period which commences “when the

person is arrested” and extends for a reasonable period not exceeding six

hours (which may be extended by a detention warrant).

170 In their terms, these provisions permit investigation following arrest, whilst the

suspect is in detention. However, they assume that an arrest has taken place.

Further, s 111 states that Pt 9 applies “to a person … who is under arrest by a

police officer for an offence”. There must be a valid arrest before the powers in

Pt 9 are engaged.

171 Not only do the powers not expressly affect the power of arrest, s 113 provides

(in part):

113 Effect of Part on other powers and duties (cf Crimes Act 1900, s 356B)

(1) Existing powers relating to arrest and other matters

This Part does not:

(a) confer any power to arrest a person, or to detain a person who has not been lawfully arrested, or

(b) prevent a police officer from asking or causing a person to do a particular thing that the police officer is authorised by law to ask or cause the person to do (for example, the power to require a person to submit to a breath analysis under Division 2 of Part 2 of Schedule 3 to the Road Transport Act 2013), or

(c) independently confer power to carry out an investigative procedure.

172 It is tolerably clear from these provisions that there is no intention to affect the

conditions of a valid arrest or otherwise affect the power to arrest. Part 9

confers powers which are only engaged upon the carrying out of a valid arrest.

173 In short, neither the Act nor the extrinsic materials provide any basis for

concluding that an arrest is now something other than a preliminary step to the

commencement of the criminal process and a step to be taken only for the

purpose of commencing the criminal process.

(iii) a codification of preconditions to power of arrest

174 The State nevertheless contends that s 99(1) provides a complete statement of

the preconditions to a valid arrest. As the second limb of subs (1) (namely par

(b)) imposes an additional constraint, the primary condition for the carrying out

of an arrest must be the existence of a reasonable suspicion that the person

has committed an offence. However, that proposition, if correct, would remove

the fundamental rationale for the power to arrest without warrant, namely that

imprisonment before trial may be necessary in the administration of criminal

justice, but is only justified for the purpose of laying a charge and thus

commencing the criminal process. To accept that submission would be

inconsistent with principle and would create a basis for depriving a person of

his or her liberty which has not hitherto existed.

175 There is one further matter relied on by the State. Although s 99(3) requires

that the person be taken as soon as practicable before an authorised officer to

be dealt with according to law, that obligation is now qualified by the conferral

of a power on a police officer to “discontinue an arrest at any time”.142 That step

may be taken either because the person is no longer a suspect or because it is

no longer necessary to bring the person before an authorised officer in order to

deal with the relevant offence.

176 It may be conceded that this power qualifies the obligation to commence the

criminal process by taking the person before a magistrate. However, it is

unclear why the conferral of an additional power to release following an arrest

should be read as allowing an arrest for a purpose other than the conventional

purpose.

177 Subject to consideration of authorities dealing with the amended statutory

provisions, the better view is that there is nothing in Pt 8, read with Pt 9, of the

Law Enforcement Act which should be taken to broaden the power of arrest in

a manner inconsistent with its long acknowledged purpose as part of the

administration of criminal justice.

(iv) case law

178 It will be necessary to refer to decisions dealing with the New South Wales

legislation below; before taking that step it is appropriate to address the

approach adopted by the High Court in North Australian Aboriginal Justice

Agency with respect to legislation in the Northern Territory which, while not

following the form of the Law Enforcement Act, adopted a similar structure.

179 Section 123 of the Police Administration Act (NT) conferred power on a police

officer to, “without warrant, arrest and take into custody any person where he

believes on reasonable grounds that the person has committed, or is

committing or is about to commit an offence.” (It is doubtful that the additional

words “and take into custody” add anything to the concept of “arrest”.) Section

137(1) provided that “a person taken into lawful custody … shall … be brought

before a justice or a court of competent jurisdiction as soon as is practicable

after being taken into custody, unless he or she is sooner granted bail under

the Bail Act or is released from custody.” (This provision reflects s 99(3) and

s 105 of the Law Enforcement Act.) That obligation was subject to a power,

142 Law Enforcement Act, s 105(1).

with respect to certain defined offences, to hold the person “for a reasonable

period” to enable the person to be questioned or investigations to be carried

out.143 With respect to relatively minor “infringement notice offences” the person

could be held in custody for a period up to four hours or, if intoxicated, for a

longer period until the police officer believed the person was no longer

intoxicated.144

180 The case involved a challenge to the constitutional validity of those provisions.

The challenge was rejected. Relevantly for present purposes, the joint reasons

of French CJ, Kiefel and Bell JJ stated:

“[24] Absent s 137, the common law would have imposed the like requirement that a person arrested under s 123 be taken before a justice of the peace as soon as practicable after arrest. At common law delay, even if for some purpose such as questioning or to dispel or confirm the suspicion which was the basis of the arrest, would defeat the true purpose of arrest.145 Custody after arrest is an executive measure not an exercise of judicial power. As Wilson and Dawson JJ also observed in Williams:146

‘The point at which an arrested person is brought before a justice upon a charge is the point at which the machinery of the law leading to trial is put into operation. It is the point from which the judicial process commences and purely ministerial functions cease.’

The common law was modified by s 137(2) and (3) to enable post-arrest custody to be extended to ‘a reasonable period’ for the purpose of questioning the person arrested or for further investigations in relation to offences attracting custodial penalties. Similar modifications have been made in all Australian jurisdictions.147 That modification reflected recommendations made by the Australian Law Reform Commission … in its interim report entitled Criminal Investigation published in 1975.”

181 Nettle and Gordon JJ stated:

“[223] Here, s 137(1) reflects the basic common law tenet that a person must be taken before a court as soon as reasonably practicable following arrest. A statute that departs from that fundamental position would need to be expressed in unmistakably clear terms.”

Nettle and Gordon JJ concluded that “the outer limit of four hours set by

s 133AB(2)(a) is without prejudice to the requirement, which applies under

s 137(1) to a person arrested under s 123 for an infringement notice offence, 143 Police Administration Act, s 137(2) and (3).144 Police Administration Act, s 133AB(2).145 (1986) 161 CLR 278 at 306 per Wilson and Dawson JJ.146 (1986) 161 CLR 278 at 306.147 Crimes Act 1914 (Cth), ss 23C‒23DA; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 114‒121; Police Powers and Responsibilities Act 2000 (Q), ss 403‒411; Summary Offences Act 1953 (SA), s 78; Criminal Law (Detention and Interrogation) Act 1995 (Tas), s 4; Crimes Act 1958 (Vic), ss 464A‒464B; Criminal Investigation Act 2006 (WA), ss 140‒142; Crimes Act 1900 (ACT), s 212.

that the person be taken before a justice or court as soon as practicable after

arrest unless sooner released ….”148

182 It is convenient to turn to authorities in this Court. Clyne v State of New South

Wales149 dealt with provisions in Pt 10A of the Crimes Act as they operated in

March 2003. (Relevant provisions of the Law Enforcement Act did not come

into effect until 1 December 2005.150) At that stage, (a) s 352(2) was in its

historical form, including the obligation to take the arrested person before an

authorised justice to be dealt with according to law; (b) s 356B reflected the

current s 113; (c) s 356C reflected the current s 114, and (d) s 356D reflected

the current s 115.

183 The critical reasoning in Clyne, at [63], commenced with the proposition that

“s 352(2) … neither explicitly nor implicitly authorised arrests only if they were

effected for the purpose of taking the person arrested before an authorised

Justice.” If that were literally true, it is a proposition which ignores the continued

operation of the common law obligation (which was at least reflected in the

language of s 352(2)) and is inconsistent with the approach adopted by the

High Court in Williams, as well as earlier decisions of this Court in Clarke v

Bailey and Bales v Parmeter.

184 The reasoning in Clyne continued in relation to s 352(2):

“It simply required the constable to in fact take the arrested person before a court. However if some other statutory provision came into operation before the arrested person was taken before a court, the obligation to take the arrested person before a court might be displaced. Consistently with ss 356C and D, the arresting officer's intent at the time of arrest might lawfully have been only to question the person and deal with him or her as required by s 356C(4), that is, release the person or bring him or her before an authorised Justice.”

185 Section 356C (now s 114) dealt with detention after arrest for the purpose of

investigation and is conditioned upon the person already being under arrest.

For the reasons set out above, in my view the approach adopted in Clyne in

relation to these sections is inconsistent with basic principle and therefore

untenable.

148 North Australian Aboriginal Justice Agency at [230].149 [2012] NSWCA 265.150 Part 8A came into effect in December 2004.

186 A different approach was adopted by a differently constituted court in Dowse v

New South Wales.151 It was no doubt unfortunate that Dowse was argued

before Clyne, but judgment was delivered after Clyne. Clyne was not referred

to in Dowse, which considered the relevant provisions of the Law Enforcement

Act as in force in March 2007. I stated (with the agreement of McColl JA and

Hoeben JA):

“[26] While it is true, as Lord Hope explained in O'Hara, that there are two elements to be satisfied for a warrantless arrest to be valid, namely an honestly held suspicion in the mind of the arresting officer and information in the mind of the arresting officer which when objectively assessed provides reasonable grounds for the suspicion, these are not abstract and independent elements. They justify a deprivation of liberty which in turn is part of an ongoing process by which the person arrested must be taken before an authorised officer to be dealt with according to law: Law Enforcement Act, s 99(4). In other words, the arrest is a first step in the process by which the person is to be made answerable for the offence, the commission of which the officer suspects. The same underlying purpose is to be found in s 99(3) which limits the circumstances in which an officer may arrest a person ‘for the purpose of taking proceedings for an offence against the person’; it thus assumes that such a purpose must underlie a valid arrest.

[27] In other words, an arrest will not be valid merely because the officer believes that an offence has been committed, in circumstances where the officer has no intention of charging the person or having the person charged with that offence. If that were not so, the legal requirement that the person arrested be informed of the true grounds of the arrest would be rendered nugatory: see State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 at [9]-[11] (Ipp JA), adopting the reasoning of Lord Simonds in Christie v Leachinsky [1947] AC 573 at 591-592. …”

187 In favour of the reasoning in Clyne, it may be said that the issue now being

addressed appears to have been directly raised in Clyne, but not in Dowse.

Nevertheless, the approach adopted in Dowse is to be preferred; the result is

consistent with that in relation to similar legislation upheld in North Australian

Aboriginal Justice Agency.

(vi) other forms of arrest

188 The foregoing discussion has not addressed the common law power of an

officer or a private person to carry out an arrest to prevent, or prevent the

continuation of, a breach of the peace. Neither party suggested that any

assistance was to be obtained from consideration of that power.

151 [2012] NSWCA 337; 226 A Crim R 36.

189 Nor has consideration been given to the handful of particular statutes which

permit an arrest without warrant, but for a purpose other than commencing the

criminal process. Thus, s 25E of the Terrorism (Police Powers) Act 2002

(NSW) permits the arrest of a person suspected of a terrorist offence “for the

purpose of investigative detention” under Part 2AA of that Act. Schedule 3 to

the Road Transport Act 2013 (NSW) provides for a police officer to arrest the

driver of a vehicle in relation to testing for alcohol and drug use for the purpose

of the person providing a blood sample. The prescription of a specific purpose

of arrest renders these statutes irrelevant; at least neither party suggested that

such provisions assisted in determining the present issue.

Application of principles

190 The appellant presented himself at Sydney City Police Station in response to

attempts by police to contact him, of which he had learned indirectly. He was

immediately arrested by Constable Smith. Constable Smith was aware of the

history of police concerns, which included a complaint that the appellant had

breached an apprehended violence order. The trial judge was satisfied by

Constable Smith’s evidence that at the time of the arrest he held a reasonable

suspicion that the appellant had committed an offence, for the purposes of

s 99(1)(a) of the Law Enforcement Act. The judge also accepted Constable

Smith’s evidence that he thought it reasonably necessary to arrest the

appellant pursuant to s 99(1)(b)(iv) and (ix).

191 Further, the judge stated:152

“[50] Constable Smith gave his reasons for the arrest, exhaustively, and a purpose of investigation was not one of them. It was not put to him that the purpose of the arrest was to investigate the offence or question Mr Robinson. While such a purpose would be improper there was nevertheless no evidence to support it. I am not persuaded that it was a purpose of Constable Smith.”

192 On the other hand, the judge also accepted Constable Smith’s concession that,

at the time of the arrest, he had not determined whether he would charge

Mr Robinson.153 The case was run on the basis that whatever Constable

Smith’s purpose in carrying out the arrest (assuming he had one) it did not

involve taking Mr Robinson before a court to be dealt with according to law,

because he then had no intention to charge him. Although not challenged in 152 Robinson v State of New South Wales [2017] NSWDC 289.153 Robinson at [23] and [38].

this Court, it is convenient to set out the brief evidence which supported that

finding. In the course of his cross-examination, Constable Smith gave the

following evidence:154

“Q. So there is a procedure in place to deal with persons such as Mr Robinson who turn up voluntarily at a police station?

A. If we don’t believe there’s enough to arrest them under [the Law Enforcement Act] then they can be dealt with through the voluntary way.

Q. You didn’t believe there was enough to charge him, did you?

A. No.

Q. So what, you could have held him, do you believe, for hour upon hour?

A. No.

Q. Day upon day?

A. No, that’s not what part 9 allows me to do.

Q. But you could have interviewed this man without arresting him.

A. I believe there was enough to arrest him. I believe I had grounds under [the Law Enforcement Act] to arrest him.”

193 This evidence, which was accepted, was sufficient to allow the judge to form

the view that Constable Smith was stating that he believed paragraphs (a) and

(b) of s 99(1) were satisfied, and that that was sufficient to allow an arrest and

thereby engage the powers under Pt 9 of the Act.

194 For the reasons set out above, that was not sufficient to allow an arrest in the

absence of any intention at the time of carrying out the arrest to charge the

appellant and take him before a justice (or bail officer) to be dealt with

according to law. It will often be possible to infer the relevant purpose without

evidence of a subjective intention; however, given the express evidence of an

absence of such an intention, that inference was not drawn. There was, in

effect, no purpose of commencing the criminal process contemporaneous with

the arrest.

195 It follows that the judgment dismissing the claim for wrongful imprisonment

must be set aside. The trial judge having contingently assessed damages in an

amount of $5,000, it is appropriate that Mr Robinson have judgment against the

State for that amount, together with the costs of the trial, to be assessed on a

154 Tcpt, 01/08/17, p 53(5).

basis appropriate to such an award. The State should pay his costs of the

proceedings in this Court.

196 EMMETT AJA:

Introduction

On 22 December 2013, the appellant, Mr Bradford Robinson (Mr Robinson),

voluntarily attended Day Street Sydney City Police Station in response to a

request from the police that he do so. He was immediately arrested by

Constable Adam Smith (Constable Smith). Following his arrest, Mr Robinson

was interviewed by Constable Smith. He was then released without charge,

having been detained in custody for a period of approximately one hour and 18

minutes.

197 Mr Robinson sued the respondent, the State of New South Wales (the State),

in the District Court, claiming damages for alleged wrongful arrest and false

imprisonment by Constable Smith. Under s 8(1) of the Law Reform (Vicarious

Liability) Act 1983 (NSW) (the Vicarious Liability Act), the State is vicariously

liable for torts committed by a person in the service of the Crown in right of

New South Wales. At all times, Constable Smith was, by the operation of s 6 of

the Vicarious Liability Act, deemed to be a person in the service of the Crown.

The State is liable to be sued pursuant to s 5 of the Crown Proceedings Act

1988 (NSW).

198 On 3 August 2017, for reasons published on that day, a judge of the District

Court (the primary judge) directed the entry of judgment for the State and

ordered Mr Robinson to pay the State’s costs of the proceedings. By Notice of

Appeal filed on 1 March 2018, pursuant to leave granted by this Court on

20 February 2018, Mr Robinson appeals from the orders made by the primary

judge.

The Arrest

199 It was common ground that, at the time of the arrest, Constable Smith had not

formed the intention to charge Mr Robinson with any offence. However, the

primary judge found that, when Constable Smith arrested Mr Robinson, he

suspected that Mr Robinson had committed an offence under s 14 of the

Crimes (Domestic and Personal Violence) Act 2007 (NSW), namely, breach of

an apprehended violence order (the Relevant Offence). His Honour also

found that Constable Smith had reasonable grounds for that suspicion and that

Constable Smith was satisfied that the arrest was reasonably necessary:

to ensure that Mr Robinson appeared before a court in relation to the Relevant Offence; and

because of the nature and seriousness of the Relevant Offence.

200 Having made those findings, the primary judge held that s 99 of the Law

Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the Law Enforcement Act) afforded the State a lawful justification for Mr Robinson’s

arrest. I shall refer to s 99 in some detail below. None of the above findings is

challenged by Mr Robinson in the appeal.

The Appeal

201 The only question raised by the appeal is whether s 99 of the Law Enforcement

Act afforded a defence to a claim by Mr Robinson against the State that he was

wrongly arrested and falsely imprisoned, in circumstances where Constable

Smith, as the arresting officer, had not, at the time of arrest, formed an

intention to charge Mr Robinson. Before dealing with that question, it is

desirable to say something about the provisions of the Law Enforcement Act.

The Law Enforcement Act

202 Section 4(1) of the Law Enforcement Act provides that, unless the Act

otherwise provides expressly or by implication, the Act does not limit:

the functions, obligations and liabilities that a police officer has as a constable at common law; or

the functions that a police officer may lawfully exercise whether under any act or any other law as an individual, otherwise than as a police officer, including, for example, powers for protecting property.

203 Further, s 4(2) provides that nothing in the Law Enforcement Act is to affect the

powers conferred by the common law on police officers to deal with breaches

of the peace. In addition, s 7 relevantly provides that nothing in the Law

Enforcement Act is to limit any functions, or prevent a police officer from

exercising any functions, that the police officer has under the Law Enforcement

Act.

204 Relevantly for present purposes, s 99 provided that a police officer may,

without a warrant, arrest a person if, first, the police officer suspected, on

reasonable grounds, that the person was committing, or had committed, an

offence, and secondly, the police officer was satisfied that the arrest was

reasonably necessary for either of the following reasons:

to ensure that the person appears before a court in relation to the offence;

because of the nature and seriousness of the offence.

205 Section 99(3) of the Law Enforcement Act provided that a police officer who

arrests a person under s 99 must, as soon as is reasonably practicable, take

the person before an authorised officer to be dealt with according to law. An

authorised officer for the purpose of the Law Enforcement Act is a magistrate,

a registrar of the Local Court or an employee of the Attorney General’s

Department authorised by the Attorney General as an authorised officer for the

purposes of the Law Enforcement Act. Section 105 relevantly provided that the

police officer could “discontinue the arrest” at any time without taking the

arrested person before an authorised officer. The use of the term “discontinue”

in relation to arrest is slightly unusual. Ordinarily, the term “arrest” would refer

to the apprehension of a person, or a ship, by legal authority or the seizure or

laying hold on of a person155. Once that has occurred, the arrest would be

complete. The word “arrest” appears to be used in s 105 as referring to the

continued “detention” of a person once arrested.

206 Under s 99(4) a person who has been lawfully arrested, in compliance with

s 99, may be detained by any police officer under Pt 9 of the Law Enforcement

Act for the purpose of investigating whether the person committed the offence

for which the person has been arrested and for any other purpose authorised

by Pt 9. Part 9, which consists of ss 109 to 132 inclusive, deals with

“investigations and questioning”. Division 2 of Part 9 of the Law Enforcement

Act, which consists of ss 114 to 121 inclusive, deals with “investigation and

questioning powers” where persons are under arrest. The State places some

store on the provisions of Pt 9, in so far as they are referred to expressly in

s 99.

155 See Shorter Oxford English Dictionary.

207 Under s 114(1), a police officer may, in accordance with s 114, detain a person

who is under arrest for the investigation period provided for by s 115. The

investigation period begins when the person is arrested and ends at a time

that is reasonable having regard to all the circumstances, but does not exceed

the period of six hours or such longer period as may be provided for under a

detention warrant issued under s 118. Under s 114(2), a police officer may so

detain a person for the purpose of investigating whether the person committed

the offence for which the person is arrested. If, while a person is so detained

under s 114(3), the police officer forms a reasonable suspicion as to the

person’s involvement in the commission of any other offence, the police officer

may also investigate the person’s involvement in that other offence during the

investigation period for the arrest. Section 114(4) requires that the person must

be released within the investigation period or brought before an authorised

officer or court within that period or as soon as is practicable after the end of

that period.

208 Under s 116, in determining what is a reasonable time for the purposes of

s 115, all the relevant circumstances of the particular case must be taken into

account. Relevantly, for present purposes, the following circumstances are to

be taken into account:

whether the presence of a person is necessary for the investigation;

the number, seriousness and complexity of the offences under investigation;

the time taken to complete any searches or other investigative procedures that are reasonably necessary to the investigation, including any search of the person or any other investigative procedure in which the person is to participate; and

the time required to carry out any other activity that is reasonably necessary for the proper conduct of the investigation.

209 Section 117 provides that certain times are not to be taken into account in

determining how much of an investigation period has elapsed. For example,

any time that is reasonably required to convey the person from the place where

the person is arrested to the nearest premises where facilities are relevantly

available; any time reasonably spent waiting for the arrival of police officers;

any time that is reasonably spent waiting for facilities complying with s 281 of

the Criminal Procedure Act 1986 (NSW) to become available; any time that is

required to allow the person to communicate with a friend, relative, guardian,

independent person, Australian legal practitioner or consular official; and any

time that is required to allow such a friend, relative, guardian independent

person, Australian legal practitioner or consular official to arrive at the place

where the person is being detained, is not to be taken into account.

210 Section 118 relevantly provides that a police officer may, before the end of the

investigation period, apply to an authorised officer for a warrant to extend the

maximum investigation period beyond six hours. An authorised officer must not

issue a warrant to extend the maximum investigation period unless satisfied

that:

the investigation is being conducted diligently and without delay;

a further period of detention is reasonably necessary to complete the investigation;

there is no reasonable alternative means of completing the investigation; and

circumstances exist in the matter that make it impracticable for the investigation to be completed within the four hour period.

Relevant Common Law Principles

211 Mr Robinson placed great reliance on the common law purpose of arrest. The

statutory requirement to bring a person arrested before a justice or a court, as

soon as is practicable, has its origins in the common law. Accordingly, s 99 of

the Law Enforcement Act must be construed in the context of the general law

in relation to the arrest of a citizen, against the background of which it, and its

legislative predecessors, were enacted. Moreover, s 4 of the Law Enforcement

Act specifies that the Act is not to derogate from the functions, obligations and

liabilities of police officers under the common law, which arguably includes the

common law purpose of arrest. Therefore, before addressing the detail of the

parties’ submissions, it is desirable to describe the nature and substance of the

common law in relation to arrest, as well as its interaction with s 99 of the Law

Enforcement Act.

212 Under the common law, a person cannot be deprived of personal liberty except

to the extent, and for the time, that the law prescribes. The authority to hold the

arrested person in custody is limited to the time necessary to bring the person

before a justice or a court for the purpose of charge and prosecution. Thus, a

police officer who arrests a person must bring the arrested person before a

justice or a court in as short a time as is reasonably practicable, unless the

person is earlier released unconditionally or on bail.156

213 Under the common law, a police officer does not have power to arrest a person

merely for the purpose of questioning that person157. That is because arrest is

the beginning of imprisonment and, whilst it is recognised that imprisonment

before trial may be necessary for the administration of criminal justice, it must

be justified in accordance with the law. There must be a charge and if the

person charged can establish entitlement to bail and can furnish bail, the law

requires that the person be released, subject to any conditions that might be

imposed upon the person. The point at which an arrested person is brought

before a justice or court upon a charge is the point at which the machinery of

the law leading to trial is put into operation. It is the point from which the judicial

process commences and purely ministerial functions cease. Therefore, any

delay in bringing an arrested person before a justice or a court, even if it is to

effectuate some other purpose, such as the questioning of that person in order

to dispel or confirm the suspicion that was the basis of the arrest, is to defeat,

however temporarily, the true purpose158.

214 An arrest may be lawful under the common law even if the police officer who

effects the arrest does not immediately charge the arrested person because he

or she is waiting for a superior officer to arrive, who, the arresting officer

expects, will then charge the arrested person. Moreover, it is not unlawful for

such an arrest to occur, notwithstanding that the arresting officer does not have

sufficient knowledge or information about the crime or crimes of which the

arrested person was suspected, and to charge the person then and there, if the

superior officer had such knowledge and information and was merely obtaining

the assistance of the inferior officer to effect the actual arrest. That is because

the reasonable suspicion of the superior officer that the arrested person had

committed offences can be attributed to the arresting officer. On the other

hand, the arresting officer ought to be put in possession of the details of the 156 See Williams v The Queen (1986) 161 CLR 278 at 292-293; [1986] HCA 88 (Williams); Cleland v The Queen (1982) 151 CLR 1 at 26; [1982] HCA 67.157 See Williams at 305-306; Zaravinos v New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320 at [37] (Zaravinos).158 See Williams at 305-306.

charge or should be in a position to obtain those details immediately after the

arrest is made159.

215 A police officer who has arrested a person reasonably suspected of having

committed a crime must be allowed time to make such inquiries as are

reasonably necessary either to confirm or to dispel the suspicion upon which

the arrest was based160. Therefore, reasonable time must be allowed for

making a decision to prefer a charge and then preferring the charge.

216 Nevertheless, while the common law allows a reasonable time to formulate and

lay appropriate charges for the purpose of bringing a person before a justice, in

that it must be done “as soon as is practicable”, it is a different matter

altogether to permit a police officer to detain an arrested person to enable the

evidence necessary to support a charge to be gathered by further investigation.

For example, it is one thing to take a suspected shoplifter to an office for the

purpose of getting authority to prosecute. It is another thing to take the suspect

to an office for the purpose of filling in gaps in the evidence161. Such a power,

without limits, could, in cases where the evidence is complex, be used to hold

persons in custody for longer periods than would be consistent with a citizen’s

basic right to freedom and personal liberty162. If the law requires modification in

that regard, that modification should be effected by legislation, not by the

courts, because there must be safeguards, such as in the form of time limits,

and those safeguards must be set with particularity that cannot be achieved by

judicial decision. Legislative change ought to take place against the

background of the common law, which has always viewed detention for the

purpose of investigation as an unwarranted encroachment upon the liberty of

the citizen163.

Legislative History of s 99

217 Before dealing with the construction of s 99 of the Law Enforcement Act

against that common law background, it is necessary to have regard to the

legislative history of s 99. The relevant provisions of the Law Enforcement Act

159 See R v Walsh (Court of Criminal Appeal (NSW), Gleeson CJ and Samuels JA, 18 October 1990, unrep).160 See Williams at 283-284.161 Ibid at 298.162 Ibid at 289-290.163 Ibid at 312-313.

were preceded by provisions of the Crimes Act 1900 (NSW) (the Crimes Act). Further, s 99, as originally enacted, was subsequently amended. It is desirable

to say something about the various iterations of the provisions.

218 Section 352 of the Crimes Act relevantly provided that any constable was

authorised, without warrant, to apprehend any person whom the constable,

with reasonable cause, suspected of having committed certain offences and to

take the person before an authorised justice to be dealt with according to law.

Section 352 did not purport to be a code or a whole statement of the power of a

constable or other person to apprehend without warrant. There was no

indication in its terms of an intention to displace general principles of law

relating to the exercise of discretionary powers conferred by a statute or by law

relating to powers of arrest. It was not regarded as displacing or being

substituted for the general powers and duties of a person effecting an arrest.

219 Section 352 stated what a constable was to do after apprehending a person,

namely, take the person before an authorised justice. That corresponded with

the common law purpose of arrest and must be understood as indicating the

only proper purpose for which an arrest could be carried out, namely, bringing

the person before a justice or a court for the purpose of conducting a

prosecution. Questioning and other investigation could take place during the

time available between the arrest and when the arrested person was brought

before a justice or a court. However, the time available could not be extended

so as to allow for questioning or other investigation164.

220 Even if the circumstances mentioned in s 352 existed, the lawfulness of an

arrest was examinable, and the arrest was unlawful unless each decision to

arrest was made to give effect to the true, common law purpose of arrest.

Arresting a person for any other purpose was an arrest for an extraneous

purpose and was unlawful165.

221 The same underlying restriction was to be found in s 99(3), as originally

enacted, under which a police officer could only arrest a person “for the

purpose of taking proceedings for an offence against the person”. That is to

say, the provision assumed that that purpose underlay a valid arrest, such that 164 See Zaravinos at [23].165 Ibid at [27].

an arrest would not be valid merely because the officer believed that an

offence had been committed in circumstances where the officer had no

intention of charging the person or having the person charged with that

offence. If it were otherwise, the legal requirement that the person arrested

should be informed of the true grounds of the arrest would be rendered

nugatory166.

222 Section 99 of the Law Enforcement Act was amended by the Law Enforcement

(Powers and Responsibilities) Amendment (Arrest Without Warrant) Act 2013

(NSW) (the Amending Act). The Amending Act was enacted as a result of a

report presented to Parliament following a review of the Law Enforcement Act

commissioned by the Premier of New South Wales (the Parliamentary Report). The authors of the Parliamentary Report were asked to inquire into

and report on the Law Enforcement Act and, in particular, to provide advice on

legislative amendments to ensure that police have clear, effective powers to do

their job and to protect the community.

223 The Parliamentary Report stated that the then current provisions of s 99 were

complicated and difficult to apply and that the lack of clarity around arrest

powers had led to offenders escaping conviction, even in instances where an

arrest had been made in good faith. The Parliamentary Report said that the

authors were mindful that the Premier had requested clear and effective

powers and responsibilities, and that they were of the view that the revised

s 99, as proposed by them, was clearer and simpler and would be easier to

apply in the field. The Parliamentary Report asserted that the proposed

simplification of s 99 would also make the provision more transparent and

would address the community’s expectation for police powers and

responsibilities to be clear and effective.

224 One interpretation that had been propounded was that arrest powers should be

confined to circumstances where an offence was currently being committed or

had just been committed. The Parliamentary Report recommended that s 99(1)

and s 99(2), as originally enacted, be combined into one section to make it

abundantly clear that police could arrest a person for any offence if they

reasonably suspected an offence was being, or had been, committed.166 See Dowse v New South Wales [2012] NSWCA 337 at [25]-[27].

225 The Parliamentary Report referred to concerns that the list of reasons for which

police could arrest without a warrant in the then form of s 99 was not broad

enough to allow police to arrest offenders in order to protect the community

and prevent crime. It confirmed, however, that the intent of the legislation was

not to allow police the power to arrest in order to investigate, although the

proposed s 99(4) clarified that once a person had been lawfully arrested, the

person could be detained under Pt 9 of the Law Enforcement Act for

investigative purposes. Accordingly, the Parliamentary Report said s 99(1)(b)

(v) had been drafted in such a way as to allow police to arrest to obtain

property without conferring a wider power that would allow police to arrest for

the purposes of investigation.

226 The Parliamentary Report did not support the introduction of a general power

of arrest, as preferred by the police, but preferred the current formulation of a

finite power with expanded reasons for arresting a suspected offender. It

supported the inclusion of a power to arrest without warrant if the nature and

seriousness of the offence warranted that course of action. The authors

considered that that provision would give certainty to police to make an arrest

when confronted with sufficient evidence of, for example, a domestic violence

offence. They accepted that international academic research had

demonstrated that arresting domestic violence offenders deterred future

domestic violence offending.

227 The Parliamentary Report reported that the police were of the view that where

a person is fleeing from police, there should be a corresponding power of

arrest if the police reasonably suspect that person of having committed an

offence. The authors were convinced by the argument that were that criterion

to be omitted, then it may invite argument in court that Parliament intended that

police could not arrest a person who was reasonably suspected of committing

an offence who was running from the scene of a crime or from a police officer.

228 The Parliamentary Report concluded that the recommendations made by it, if

implemented, would expand the list of reasons under which a police officer

could arrest. The authors noted that concerns had been raised that increased

arrest rates may also increase remand rates, but also noted that police rejected

such a concern because not all people who are arrested are remanded and

some arrests would be discontinued once the purpose of arrest no longer

existed, in circumstances, for example, where the person’s identity had been

ascertained. The Parliamentary Report said that, for more abundant caution

and transparency, a provision that clearly stated that a police officer could

“discontinue” an arrest should be included, referring to the proposed s 105(3).

229 In his speech on the second reading of the Bill for the Amending Act, the

Premier observed that the “job of frontline police is already hard enough,

without being made harder by having to deal with legal complexities”. The

Premier said that the reforms proposed by the Parliamentary Report could give

the community confidence that police would have the powers they needed to

“keep the peace across the communities of New South Wales". The Premier

said that the new provisions would clarify that police could arrest without a

warrant for any offence that they reasonably suspected a person was

committing or had committed, and that the proposed amended s 99(1)(a) made

that abundantly clear. He said that the proposed amended s 99(1)(b) replicated

and simplified the existing reasons for arrest contained in the previous form of

s 99 and introduced new reasons to arrest without a warrant that, the Premier

said, better reflected the circumstances in which police “are called on to act in

order to keep the community safe”.

230 The Premier also said that under the proposed amended s 99, police would be

able to arrest a suspected offender without a warrant if the person’s

identification could not be readily ascertained by other means or if the officer

suspected on reasonable grounds that identity information supplied was false.

He said that the realities of day-to-day policing were also reflected by the

inclusion of a power of arrest without warrant when a suspected offender who

was fleeing from police or from the scene of a crime. Further, he said, the

proposed amended s 99 clarified that a police officer could arrest a person

without a warrant if directed to do so by another police officer who had reason

lawfully to arrest that person.

231 The Premier also referred to the proposed amendment to make clear that an

arrest may be “discontinued” and the person released without requiring the

person to be brought before an authorised officer, saying that that might occur

when inquiries revealed that the reasons for arrest no longer existed or if the

police decided it was more appropriate to deal with the matter in some other

manner, such as by issuing a penalty notice or Court Attendance Notice.

232 Finally, the Premier said s 99 would be amended to make it clear that a person

who was “lawfully arrested” under s 99 could be detained for the purpose of an

investigation in accordance with Pt 9, an amendment that was intended to

remove uncertainty about whether a person who was otherwise “lawfully”

arrested could be detained for questioning under Pt 9.

Relevant Principles of Construction

233 Clear words are required in a statute before it will be construed as authorising

the holding of an arrested person in custody for a purpose other than for giving

effect to the common law purpose of arrest167. It is of critical importance for the

existence and protection under the law of personal liberty, that the

circumstances in which a police officer may, without warrant, arrest or detain

an individual be strictly confined, plainly stated and readily ascertainable.

Arrest should be reserved for circumstances in which it is clearly necessary

and where it is inappropriate to resort to the power of arrest when the issue

and service of a summons would suffice adequately168.

234 It is improbable that the legislature would overthrow fundamental principles,

infringe rights or depart from the general system of law described above

without expressing its intention with irresistible clearness. To give any such

effect to general words, simply because they have that meaning in the widest,

usual, or natural sense, would be to give them a meaning in a sense in which

they were not really used. Curial insistence on a clear expression of an

unmistakable and unambiguous intention to abrogate or curtail a fundamental

freedom enhances the parliamentary process by securing a greater measure of

attention to the impact of legislative proposals on fundamental rights169.

167 See North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia (2015) 256 CLR 569; [2015] HCA 41 at [23].168 See State of New South Wales v Smith [2017] NSWCA 194 (Smith).169 See Coco v The Queen (1994) 179 CLR 427 at 437-438; [1994] HCA 15; Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [310] (Lee).

235 However, while that notion extends to the protection of fundamental principles

and systemic values, it ought not be extended beyond its rationale. Thus, the

notion does not exist to shield those rights, freedoms, immunities, principles

and values from being specifically affected in the pursuit of clearly identified

legislative objects by means that are within the constitutional competence of

the enacting legislature170. That principle of construction is fulfilled in

accordance with that rationale where the objects or terms or context of

legislation make plain that the legislature has directed its attention to the

question of the abrogation or curtailment of the right, freedom or immunity in

question and has made a positive legislative determination that the right,

freedom or immunity is to be abrogated or curtailed171.

Construction of s 99

Submissions

236 Mr Robinson contends that his arrest was unlawful because it was effected for

an extraneous purpose. He asserts that, because the only proper purpose for

the exercise of the power of arrest under s 99(1) is to bring the arrested person

before a justice in order to conduct a prosecution, there is an additional

requirement to those specified in s 99(1), namely, that the arresting officer, or

the officer directing arrest under s 99(2), must hold a positive intention, at the time of the arrest, to charge the arrested person, and that in the absence of

such a positive intention, the arrest will be effected for an extraneous and

unlawful purpose.

237 Mr Robinson contends that, if an arresting officer does not form such an

intention, then that constitutes an arrogation by the police officer to himself or

herself of the power of imprisonment vested only in the judiciary or an

authorised officer. He bases that contention on the proposition that the arrest of

a person is the first step in the process by which the arrested person is to be

made answerable for the offence that the arresting police officer reasonably

suspects the person of committing.

238 Mr Robinson relies on the proposition that a person must not be arrested, and

thereby imprisoned, otherwise than upon the authority of a justice or a court

170 See Lee at [313].171 Ibid at [314].

except to the extent reasonably necessary to bring that person before a justice

or a court to be dealt with according to law172. He asserts that that proposition

holds good even if the matters set out in s 99(1) are strictly satisfied, and that

reasonable satisfaction of the s 99(1)(b) matters cannot exist independently of

the purpose of bringing the arrested person before a justice or a court for the

purpose of conducting a prosecution173.

239 Mr Robinson contends that s 99 does not displace the fundamental purpose of

arrest recognised by the general law and that the provisions of s 99

supplement the general law rather than derogate from it.174 Thus, he contends,

unless the arrest of a person is for the purpose of bringing that person before a

justice or a court and conducting a prosecution, the fact that the purpose of

arrest might be one of those specifically referred to in s 99(1)(b) does not of

itself prevent the arrest from being unlawful. Moreover, he says, if s 99

provided a power of arrest in circumstances where the purpose was not to take

the arrested person before a justice and conduct a prosecution, that would

need to be expressed in clear, unambiguous language175. That is so, he says,

because the allowance of such a power abrogates, or curtails, both the

common law purpose of arrest and the fundamental common law principle of

personal liberty.

240 The State contends that, in circumstances where it is clear that the current

form of s 99 was introduced in order to broaden the powers of police arrest

without a warrant, it is erroneous to assume that s 99 must operate in the same

way as previous iterations176. The State contends that if the effect of the current

form of s 99, properly construed, differs from previous iterations, which have

been construed in previous cases, then the current form must be given effect

according to its terms.

241 The State accepts that an arrest will not be lawful if the purpose of the arrest is

merely for making further inquiries or asking further questions. It also accepts

that an arrested person must be brought before a justice as soon as

172 See Williams at 306.173 See Zaravinos at [37].174 See Law Enforcement Act, s 4.175 See Al-Kateb v Godwin (2004) 219 CLR 562 at 577; [2004] HCA 37.176 See Clyne v State of New South Wales [2012] NSWCA 265.

reasonably practicable. However, the State says the purpose of bringing the

arrested person before a justice as soon as reasonably practicable is more

accurately described as being to bring the arrested person before a justice as

soon as reasonably practicable, if a decision is taken to charge the person.

The State contends that if the purpose is understood in that way, then any

tension between the mental state required for arrest, on the one hand, and the

mental state required for prosecution, on the other, will be removed. That is to

say, while reasonable suspicion is sufficient for a lawful arrest, unless

reasonable and probable cause is acquired before the expiration of the time

within which it is reasonably practicable to bring the arrested person before a

justice, the arrested person must be released without charge. The State

contends that the purpose of arrest understood in that way is consistent with

the requirement that what must be stated to an arrested person at the time of

arrest is not necessarily the precise charge, if any, to be laid, but, rather, the

true ground for the arrest177.

Consideration

242 The task of statutory construction begins with the text of the statute. There are

several textual matters that point away from Mr Robinson's contentions.

243 Section 99(1) specifies, in some detail, the state of mind that a police officer

must hold in order lawfully to arrest a person without warrant. The section

states expressly that a police officer may, without warrant, arrest a person if the

relevant state of mind is shown to have existed. In those circumstances, the

express language of s 99, which does not make any reference to an intention

on the arresting officer’s part to charge the arrested person, is contrary to the

existence of a further requirement as to the state of mind of the arresting police

officer, as posited by Mr Robinson.

244 Mr Robinson’s only response to the above proposition is that it is an

overstatement to observe that the text of s 99(1) does not state the

requirement posited by him. That contention calls for the recognition of an

unexpressed requirement as to the state of mind of a police officer that is in

tension with the state of mind for which express provision is made.

177 See Law Enforcement Act, ss 201(1)(c) and 201(3).

245 Under s 99, it is a condition for a lawful arrest without warrant that the police

officer suspects, on reasonable grounds, that the person is committing or has

committed an offence. Nevertheless, Mr Robinson contends that before

arresting a person without a warrant, a police officer must have reasonable and

probable cause for commencing a prosecution.

246 An arresting police officer will have reasonable and probable cause for

commencing a prosecution if the arresting officer:

believes that information in his or her possession points to the guilt of a person;

reasonably believes the information to be true; and

therefore believes that the person is so likely to be guilty of the offence for which the person has been arrested that a charge is warranted178.

Thus, Mr Robinson’s contention raises the distinction between suspicion, on

the one hand, and belief, on the other.

247 In the case of arrest on suspicion, the arresting police officer must have

satisfied himself or herself, at the time of the arrest, that there are reasonable

grounds for suspecting the guilt of the arrested person. However, the grounds

for the suspicion need not consist of admissible evidence. Suspicion is a state

of conjecture or surmise where proof is lacking and the facts that can

reasonably ground a suspicion may be quite insufficient to ground a

reasonable belief. Nevertheless, a suspicion that something exists is more than

a mere idle wondering whether it exists or not and there must be some factual

basis for the suspicion. A suspicion is a positive feeling of actual apprehension

or mistrust, amounting to a slight opinion but without sufficient evidence179.

Consequently, a reason to suspect that a fact exists is more than a reason to

consider the possibility of the existence of the fact. The reason to suspect is

something that, in all the circumstances, would create in the mind of a

reasonable person an actual apprehension or fear of the relevant matter180.

248 However, the objective circumstances sufficient to show a reason to believe

something must point more clearly to the subject matter of the belief than

suspicion of the matter. Belief is an inclination of the mind toward assenting to, 178 See Williams at 300.179 See Lule v State of New South Wales [2018] NSWCA 125.180 See George v Rockett (1990) 170 CLR 104 at 112, 115-116; [1990] HCA 26.

rather than rejecting, a proposition, and the grounds that can reasonably

induce that inclination of the mind may, depending on the circumstances, leave

something to surmise or conjecture181.

249 If a police officer must have reached that higher standard of having reasonable

and probable cause to commence a prosecution before effecting a lawful arrest

without a warrant, as Mr Robinson contends, the mental state necessary for a

police officer to effect a lawful arrest without a warrant is something different

from the mental state expressly referred to in s 99(1)(a), namely, suspicion on

reasonable grounds. There is, therefore, a real tension between the express

words of s 99(1)(a) and the implication for which Mr Robinson contends.

250 Mr Robinson responds to the suggestion of tension or inconsistency between

the state of mind required by s 99(1)(a) and the state of mind required to

commence a prosecution by saying that the distinction is, in practice, unreal.

Thus, he says, there is no reason to think that, in general, an arresting police

officer would be unable properly to make a complaint or lay a charge until the

officer had had an opportunity to question the person arrested.

251 Moreover, while an arrested person must be brought before a justice, the time

needed to bring the arrested person before a justice as soon as reasonably

practicable is such as to allow time to decide whether or not to lay a charge.

That is to say, even if there must be an intention to charge at the time of arrest,

the actual decision to do so is the next step in the process. Thus, the purpose

of bringing the arrested person before a justice as soon as reasonably

practicable should be understood as being bringing the arrested person before

a justice as soon as reasonably practicable if a decision is made to lay a

charge against the person. Understood in that way, any tension between the

mental state required for arrest and prosecution would be resolved.

Reasonable suspicion is sufficient for arrest. If reasonable and probable cause

to commence a prosecution is not reached by the expiry of the time within

which it is reasonably practicable to bring the arrested person before a justice,

the arrested person must be released without charge, as s 105 makes clear.

That understanding is consistent with the fact that what must be stated to an

181 Ibid at 115-116.

arrested person at the time of an arrest is not the precise charge to be laid, if

any, but, rather, the true ground for the arrest182.

252 It is clear from s 105(1) that a police officer may “discontinue” an arrest at any

time. Section 105(2) demonstrates that the discontinuance might be for any

reason, including because it is more appropriate to deal with the matter in

some other manner, such as by issuing a warning or a caution. Section 105(3)

provides expressly that discontinuance may occur despite any obligation on the

part of a police officer to take the arrested person before an authorised officer

to be dealt with according to law. The concept of “discontinuance” of an arrest

is consistent with arrest being a process, which commences at the time when

an arrest begins and continues through the subsequent detention. Thus, it is

the detention that is discontinued.

253 When s 99 is read with s 105, it is clear that an arrested person might or might

not be brought before an authorised officer to be dealt with according to law,

depending upon the circumstances. Accordingly, while the arresting police

officer must intend that the arrested person will be brought before an

authorised officer, the police officer is not required to have decided that he or

she will bring the person before an authorised officer for whatever reason.

Those provisions, read together, recognise the kind of uncertainty on the point

that may work on the mind of an arresting officer in the position of Constable

Smith at the time of an arrest.

254 Mr Robinson asserts that such a contention misunderstands the purpose of

s 105(1), which, he says, does no more than make it clear that if a police officer

changes his or her mind about proceeding with the charge originally

contemplated because, for example, the original suspicion has been dispelled

by further investigation, then the officer would be under no obligation to

continue the arrest merely to satisfy the duty imposed by s 99(3) to take the

arrested person before an authorised officer. Mr Robinson’s contention, of

course, assumes the correctness of his basic proposition.

255 Mr Robinson accepts that there is nothing on the face of s 99(1) that expressly

addresses the state of mind of an arresting police officer at the time of the

182 See Law Enforcement Act, ss 201(1)(c) and 201(3).

arrest, but contends that the imposition by s 99(3) of a duty on the police officer

to take the arrested person before an authorised officer to be dealt with

according to law, as soon as reasonably practicable, suggests the additional

requirement posited by him. Mr Robinson says that there can be no occasion

to take the arrested person before an authorised officer unless there is an

intention to charge the person. He also points to the fact that s 99(3) is

consistent with, and has its origins in, the common law.

256 Again, Mr Robinson’s contentions do no more than repeat his basic proposition

that there is an additional requirement that must be met before an arrest is

lawful. The fact that s 99(3) imposes a duty on the police officer to take the

arrested person before an authorised officer as soon as reasonably

practicable, to be dealt with according to law, says nothing about the state of

mind of the arresting police officer at the time of the arrest.

257 It is clear from s 99(4) that a person who has been lawfully arrested under

s 99(1) may be detained under Pt 9 for the purpose of investigating whether

the person committed the offence for which the person was arrested and for

any other purpose authorised by Pt 9. However, it is inconsistent with the

facility for which Pt 9 provides that an arresting officer must, at the time of

arrest, have concluded already that the arrested person will be charged. The

notion underlying s 114(1) is that, following arrest, further investigation may be

required before the commencement of criminal proceedings: the period of

detention may need to be prolonged to permit that to occur. That indicates that,

while the arresting police officer must have the intent to charge, the arresting

officer is not required to have made the decision to do so.

258 While the linking of Pt 9 to s 99 is significant, the arrest must be “lawful”.

Whether or not an arrest is lawful depends upon the correctness of

Mr Robinson’s basic proposition. Mr Robinson contends that the statutory

provision for detention to investigate is not inconsistent with an intention on the

part of the arresting police officer, at the time of the arrest, to charge the

arrested person. By the operation of s 105, the arrested person will be released

if any subsequent investigation dispels the police officer’s original suspicion

that led to the formation of the intention to charge the arrested person. Those

considerations rather support the conclusion that the link between Pt 9 and

s 99 is equivocal as to the question presently under consideration.

259 The State also contends that certain of the reasons specified in s 99(1)(b), for

which a police officer may consider arrest of a person to be reasonably

necessary, are inconsistent with the requirement posited by Mr Robinson. For

example, the State says, the purposes specified in pars (ii), (iii), (v), (viii) and

(ix) are more directed to the investigation of an offence or to the protection of

the public, rather than to laying a charge. The State propounds, by way of

example, the circumstance of a police officer happening upon a person

standing over a body, who, upon seeing the police officer, seeks to flee. It

suggests that that may readily be a circumstance in which the police officer

forms a reasonable suspicion, not necessarily amounting to a positive belief,

that the person committed an offence, such that arrest is necessary to stop the

person’s flight. It would be difficult, the State says, to see how, without further

investigation, the police officer could form a positive belief as to guilt so as to

have reasonable and probable cause to commence a prosecution and

therefore to charge a person. Nevertheless, the purpose of the arrest is not

investigation. Rather, it is one or other reasons of the reasons set out in s 99(1)

(b), depending on the circumstances. Additional information may be required to

take the next step, which is limited by the six hour period in the Law

Enforcement Act. Thus, a balance has been struck by the legislature.

260 Mr Robinson contends that the five reasons in s 99(1)(b) relied upon by the

State are not inconsistent with the existence of the requirement posited by him.

Thus, he says, a power to stop a person fleeing from a police officer is

consistent with an intention to charge, being necessary only if it is proposed by

the police officer to take the person before an authorised officer to answer a

charge. Mr Robinson says that the power to enable inquiries to be made to

establish a person’s identity is not inconsistent with the posited requirement

because it is only necessary to obtain the person’s identity if it is proposed that

the person be charged.

261 Mr Robinson also asserts that the power to obtain property in the possession of

the arrested person that is connected with the offence can only be necessary

for the purpose of securing evidence to be used against the person after a

charge has been laid. Further, the power to protect the safety and welfare of

persons other than the arrested person must, Mr Robinson asserts, be

understood as concerning only those persons connected with, namely

adversely affected by, the suspected offence. He says that the provision is

consistent only with an intention on the part of the arresting officer to hold the

arrested person accountable for the relevant offence. Finally, Mr Robinson

says that the reference to the nature and seriousness of the offence should

properly be regarded as supplementary to the considerations of securing the

person’s attendance before a court and the protection of the safety or welfare

of others. He asserts that it is self-evident that the more serious the offence,

the greater the risk of flight.

262 Mr Robinson asserts that all of the reasons set out in s 99(1)(b) are directed to

the question of whether a Court Attendance Notice would be appropriate or

whether, because of one or more of the considerations in s 99(1)(b), the police

officer concerned could be satisfied that it is “reasonably necessary” to arrest.

He asserts that that approach is consistent with the proposition that arrest

should be reserved for circumstances in which it is clearly necessary and the

proposition that it is inappropriate to resort to the power of arrest when issuing

a Court Attendance Notice would suffice183. Those considerations support the

conclusion that the matters relied on by the State in that regard are also

equivocal as to the question presently under consideration.

263 Consideration of the context provided by the Amending Act, and of the

differences between ss 99 and 105 before and after the amendments effected

by the Amending Act, may be significant. Such a comparison helps to identify

the mischief to which the amendments were directed.

264 First, the former s 99(3), which was expressed as a limitation on the power of

arrest for the purpose of taking proceedings for an offence, has been deleted

and incorporated in s 99(2), which no longer refers to the purpose of taking

proceedings for an offence. That alteration weakens the connection between

the arrest and the taking of proceedings, which lies at the heart of

Mr Robinson’s contentions. It also makes clear that there is a second step 183 See Smith at [102].

required, namely, to decide to charge. The purpose is not to commence

prosecution, since that is a discrete phase.

265 Secondly, the reasons why a police officer may consider the arrest of a person

to be reasonably necessary have been considerably expanded under the new

s 99(1)(b) to include matters that are more directed to the investigation of an

offence or for the protection of the public. That supports the State’s contention

that the common law purpose of arrest, to bring the arrested person before a

justice or court as soon as is reasonably practicable, is but one of a number of

lawful purposes, or reasons, for arrest.

266 Thirdly, if the reason for an arrest is, for example, to establish the identity of

the arrested person rather than to charge the person, that purpose may be

achieved relatively swiftly. The arrest may then be discontinued without

bringing the person before an authorised officer. That would explain the

introduction of s 105(3), as was acknowledged in the Parliamentary Report.

267 Fourthly, the Parliamentary Report referred to the view that the former terms

of s 99 were complicated and difficult to apply and were lacking in clarity,

saying that the proposed amended form of s 99 was intended to be clearer,

simpler and more transparent. The current form of s 99 does not sit easily with

a continued insistence that the purpose of arrest must be to bring the arrested

person before an authorised officer as soon as reasonably practicable,

particularly when s 99 is linked expressly to the investigative provisions in Pt 9

by s 99(4). The recognition of implied limitations, going beyond those expressly

stated in s 99, would sit uneasily with the purpose of simplifying the provision

so that it would be clearer and more transparent. Such considerations militate

against the recognition of an implied limitation to the effect that the arresting

officer must, before arrest, have formed the intention to charge the arrested

person.

268 Mr Robinson contends that the text of s 99 is entirely consistent with the

proposition for which he contends, as is the context in which s 99 was enacted

and subsequently amended. He emphasises that the common law recognises

as the only purposes of arrest and detention the purposes of charging the

arrested person and taking the person before a court. He says that nothing in

s 99 abrogates the right to personal liberty secured by the recognition of those

purposes by the common law. He says that if the State’s contention were

accepted, there would be nothing in ss 99, 105 or the provisions of Pt 9 that

would prevent a person from being subjected to serial arrests in respect of the

same offence despite the fact that, on the occasion of each arrest, albeit that

on such occasions the arrest is effected in good faith, the arresting officer had

formed no intention of laying a charge. He asserts that such an outcome would

be contrary to the fundamental right of personal liberty and at odds with the

only purpose of arrest recognised by the common law.

269 It is difficult to imagine circumstances where there would be serial arrests that

were all effected in good faith. The contention also ignores the fundamental

stance adopted by the State that the current form of s 99 was intended to

modify the common law, to the extent that the common law is inconsistent with

the explicit terms of s 99.

Conclusion

270 The dual requirements of ss 99(1)(a) and 99(1)(b) must be met. However,

arrest is the start of a process that must end within a limited time, either by the

person arrested being taken before an authorised officer or by the person

being released pursuant to s 105. The fact that one of the two possible endings

to the process is laying a charge against the person does not mean that there

must be a positive intent to lay a charge at the beginning of the process.

271 Mr Robinson’s contentions do not grapple with the textual and contextual

matters outlined above but proceed by reference to case law concerned with

other provisions, including earlier iterations of s 99. While such matters may be

relevant to the construction of s 99, to the extent that analogous reasoning is

persuasive or general principle is relevant, the decided cases in relation to

earlier, differently worded provisions are not determinative of the proper

construction of the current form of s 99.

272 The restrictions that the common law places upon the purpose for which an

arrested person may be held in custody may well, on occasions, hamper the

police, sometimes seriously, in their investigation of crime and the institution of

proceedings for its prosecution. That is to say, the jealousy with which the

common law protects the personal liberty of the subject may not assist the

police in the investigation of crime. However, such functions of the police are

carried out in the interests of the community as a whole and not for some

private end. Thus, legislative modification of such principles of the common law

may be seen as reflecting a need that the common law does not meet. The

striking of a balance between personal liberty and the exigencies of the

investigation of crime is nevertheless a function of the legislature, not the

courts. If the legislature considers that it is right to enhance the armoury of law

enforcement, it is for the legislature to prescribe safeguards that might

ameliorate the risk of unconscionable pressure being applied to persons under

interrogation while being kept in custody184. In the absence of precise limits

upon the power of police to detain an arrested person for questioning, the

swing would be too far in favour of increased investigative powers at the

expense of individual freedom185.

273 The principle of the common law, that the freedom of an individual should not

be restricted without a warrant simply for the purpose of investigation, is of

fundamental importance. While s 99 does not modify the common law principle

to the extent contended by Mr Robinson, it has modified the common law to the

extent that there is no longer a requirement that the person be charged. It is

clear that, by amending s 99, the legislature intended to introduce a second

step in the arresting process, the first being to satisfy ss 99(1)(a) and 99(1)(b),

and the second being the exercise of discretion by a police officer when

deciding to charge. In that way, the ultimate purpose of arrest is still to bring

the arrested person before an authorised officer, by laying a charge, and the

arrest cannot be for the purpose of investigation.

274 It follows that the conclusion of the primary judge was not erroneous and s 99

afforded a defence to the State against Mr Robinson’s claim. Mr Robinson’s

appeal should be dismissed. Mr Robinson should pay the State’s costs of the

appeal.

***************

184 See Williams at 296.185 Ibid at 312-313.

Amendments

17 October 2018 - [25] - changed "provides" to "provided"

[36], [115] and footnote 48 - changed "2013 Amendment Act" to "LEPRA

Amendment Act"

[42] - changed "that effect" to "that the effect"

[69] - inserted "(b)" after "99(1)" where cited

[70] - inserted "(1)" between "99(b)"

[77], [80] - changed "has" to "had" in Jordan CJ quote

[80] - changed "an arrest" to "to arrest"

[81] - changed "warrants" to "justifies"

[110] - changed "relatively" to "relevantly"

[114] - removed italics from "and"

[157] - changed "Dawson and Wilson JJ" to "Wilson and Dawson JJ"

[182] - changed "s 365C" to "s 356C"

[189] - inserted "to" after Schedule 3"

[197] - changed "s 8K" to "s 8(1)

[206] - inserted "Part 9 of" "after Division 2 of"

[225] - final sentence - changed "considering" to "conferring"

[259] - final sentence - changed "four hour" to "six hour"

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· Web viewHalliday v Nevill (1984) 155 CLR 1 at 12; [1984] HCA 80 per Brennan J; Williams at 292 – 293 per Mason and Brennan JJ. At common law it was compulsory for a constable,