AB v State of New South Wales

[2021] NSWDC 683

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

AB v State of New South Wales [2021] NSWDC 683

Hearing dates:

17, 18 November 2021

Date of orders:

17 December 2021

Decision date:

17 December 2021

Jurisdiction:

Civil

Before:

R. J. Weber SC DCJ

Decision:

(1) That there be judgment and verdict for the defendant.

(2) That the plaintiff pay the defendant’s costs.

Catchwords:

TORTS – Wrongful Arrest – False Imprisonment – Claim for damages – Claim arising from discretionary arrest following alleged breach of Final Order Apprehended Domestic Violence Order – Whether the arresting officer’s suspicions were reasonable – Whether the conditions of s 99 of the LEPR Act were satisfied – Where the Leading Senior Constable’s exercise of discretion was reasonable

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

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

Law Reform (Vicarious Liability) Act1983 (NSW)

Cases Cited:

George v Rockett [1990] HCA 26; 170 CLR 104

Hyder v Commonwealth of Australia [2012] NSWCA 336; (2012) 217 A Crim R 571

Ruddock v Taylor (2005) 222 CLR 612

New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46

State of New South Wales v Robinson [2016] NSWCA 334

Category:

Principal judgment

Parties:

AB (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
Mr D. Woodbury (for the Plaintiff)
Mr N. Newton (for the Defendant)

Solicitors:
McGirr Lawyers (Plaintiff)
Norton Rose Fulbright (Defendant)

File Number(s):

2021/0060626

Publication restriction:

Pursuant to s 45 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the names and identifying information about children and other persons involved in apprehended violence order proceedings must not be published.

Judgment

1. These are proceedings brought by the plaintiff for damages for wrongful arrest and false imprisonment.

2. The proceedings arise in the following manner.

Background

3. On 14 and 15 October 2018, Mr AB, the plaintiff, was the subject of a Final Order Apprehended Domestic Violence Order (“FADVO”). For present purposes the relevant orders were orders (1) and (5).

Orders about behaviour

You must not do any of the following to BB, CB or DB or anyone they have a domestic relationship with:

assault or threaten them

stalk, harass or intimidate them, and

intentionally or recklessly destroy or damage any property that belongs to or is in the possession of BB, CB or DB.

For example:

• You must not do any of these things in person, through another person, or through electronic communication and devices (for example by phone, text messages, emails, Facebook or other social media, or GPS tracking).

• You must not do or say anything that may make BB, CB or DB feel frightened, or feel that you may harm them or damage their belongings in any way, including jointly owned property and pets.

Orders about conduct

You must not approach BB, CB or DB or contact them in any way unless contact is through a lawyer.

For example:

• You must not approach or contact BB, CB or DB in person or through electronic communication (for example, by phone, text messages, emails or Facebook or other social media).

• If BB, CB or DB contact you and you reply, no matter how many times they contact you or the reason for doing it, you will be breaching this order.

You must not try to find BB, CB or DB except as ordered by the court.

For example:

• You must not try and find BB, CB or DB through electronic communication (for example, by phone, emails, text messages, or Facebook or other social media); the internet or asking anyone if they know their location.

4. The defendant characterises the terms of the FADVO as being “strict”, and I agree with that assessment.

BB Contacts Waverley Police

5. Tendered in the proceedings were the relevant extracts of a police event reference relevant to the proceedings contained in the New South Wales Police Computerised Operational Police System (“COPS”) (Exhibit D2). Those extracts reveal that on 14 October 2018 the person in need of protection (“PINOP”), Ms BB, had contacted Waverley police on that day. This initial contact was presumably by telephone.

6. Before Ms BB had made a statement to police, there was a CAD incident broadcast in the following terms:

POLICE TO ATTEND THE AA AND SPEAK TO A AB WHO IS A DEFENDANT IN A CURRENT AVO WITH THE INF WITH A NO CONTACT CONDITION. THE INF IS NOT AT THE ADRESS, SHE IS CURRENTLY AT HER NEW ADDRESS IN …... THE INF HAS RECEIVED CALLS TODAY FROM HER CLIENTS SAYING THAT THE DEFENDANT HAS CALLED THEM, AND SHE IS CONCERNED THAT THE DEFENDANT IS TRYING TO LOCATE HER.

7. This CAD Incident Broadcast occurred at 2.44pm.

8. It seems that Ms BB then attended on Waverley police and provided a statement. This document (Exhibit P1) disclosed inter alia the following:

As of the 28^th August 2018, AB has been calling my stepfather, ZX consistently. I would say these calls are happening daily, with up to five calls a day occurring. AB reiterates to ZX that he has not done anything wrong, that I am lying and have made up problems, such as prenatal depression, thyroid problems, a mid-life crisis and a nervous breakdown. None of which I have experienced.

AB has also urged my stepfather to convince me to mediate with him, even though we are not meant to be in the same room for the next two years, as stated in the AVO.

My best friend, RV, has also been receiving daily phone calls from AB, with the same statements he has made to my stepfather, ZX.

AB has said to RV: “If I was to take a guess as to where she would be, she would go back to Bondi”. AB was looking for that confirm or denial from RV. RV did not respond to this.

A week ago, both my stepfather and RV told AB to stop calling them and informed him that they could not help him. AB has persisted in calling and texting them both, with AB calling my stepfather ZX last night the 13^th October 2018 at 11.00pm. My stepfather did not answer the call.

On Thursday, 11^th October 2018, one of my clients GS came to see me for a beauty appointment. GS is a long term client and a mother from my daughter’s former school in .......

Two weeks ago, GS visited AB's restaurant in Rozelle. AB recognised GS immediately and came to her table and informed her that he and I had separated. AB stated to GS. “I didn’t know the business would ruin our marriage, the business has lost its shine. It’s a very serious situation, even the Police are involved”.

A couple of days after GS attended the restaurant, AB has called GS’ husband. I assume that AB got this number from the restaurant booking.

AB got GS’ number from GS’ husband and informed him he just needed to speak to GS.

GS told me about all of this and at that time, he had not contacted her yet.

This is the first instance where I have become aware that AB was beginning to contact my clients.

Today at 3.00pm, another client of mine, AA, contacted me. She informed me that AB called her whilst she was driving today, from a private number.

AB said to AA. “Can I talk to you?”

I had already pre warned all my clients not to tell AB of my whereabouts or any information about me.

Due to this, AA has said to AB: “I am not going to talk to you. I don’t have anything to say.” That was the end of the conversation.

AB and AA do not have a relationship and do not socialise together. There would be no reason for him to contact AA.

AB is making me nervous, as he is at home in Pyrmont with my work data base and is now starting to contact my clients in an attempt to gather information.

I am fearful that one of my clients may reveal our whereabouts. I do not know how many other clients he has contacted or attempted to contact.

9. It seems that on 14 October at 4:39pm after Waverley police attended on the plaintiff’s premises, they found that he was not at home.

10. Following the preparation of Ms BB's statement, an officer at Waverley police station commenced the drafting of a Fact Sheet. Its contents were placed on the COPS system. The following entries, amongst others, form part of that draft Fact Sheet:

The DEFENDANT is a high risk DV offender and currently resides in Pyrmont. The PINOP, and her 2 daughters are PINOP’s in 2 separate AVO’s. The DEFENDANT is a DV stamp within the Sydney City PAC and is regularly the subject of compliance checks.

…

The PINOP and DEFENDANT were in an intimate relationship for approximately 23 years and married for 13. The have 2 daughters aged 10 and 12.

About 2:00pm on Sunday October 2018 the PINOP, BB, contacted police regarding her husband, AB, breaching his AVO in which he is a DEFENDANT. The DEFENDANT has been constantly contacting friends, clients and family members of the PINOP both in person and via telephone. The WITNESS details are mentioned above.

The PINOP attended Waverley Police Station where she made a lengthy statement regarding the attempts that the DEFENDANT has made to contact her. The details of the statement are to be included in the second narrative of this event.

Police note that the PINOP has an appointment with the High Risk DV team at Hurstville Police Station on Monday 15 October 2018 in relation to other incidents that have occurred in recent months.

FEARS HELD BY THE VICTIM:

That the DEFENDANT is actively accessing her contacts list by electronic means, possibly being the home computer, and calling them in an attempt to know her whereabouts.

FEARS HELD BY THE POLICE:

That if the DEFENDANT continues to contact her clients, family and friends he will eventually find out her current whereabouts.

The Matter is Referred to Day Street Police

11. It seems that thereafter the matter was referred to Day Street Police Station, as Day St was the Police Station closest to the plaintiff’s abode.

12. On the following morning, that is to say 15 October 2018, Leading Senior Constable Murari reported for duty at Day Street Police Station. At 7 AM, he attended a muster conducted by Acting Sergeant Ryan. Acting Sergeant Ryan provided LSC Maruri with a copy of both Ms BB’s statement, which had been obtained by officers at Waverley, and also the FADVO. She said to him words to the effect of: “This needs to be actioned”.

13. LSC Murari read over the statement, and the FADVO. His evidence was that he read the statement at least twice. He said that he then searched the COPS system for the relevant event entries. He did so from a computer in the muster room. He said that Court Book pages 27 – 35 were the COPS entries (Exhibit D1), that were available to him, and were read by him prior to commencing the task of “actioning” the matter, as he had been directed by Acting Sergeant Ryan.

14. These entries included the entries which I have set out above. The entries also included the CAD broadcast directing police to attend on the plaintiff’s premises the day before.

15. LSC Murari gave evidence that, following his analysis of the information to which I have just referred, he concluded that the FADVO had been breached, especially in relation to its orders 1 and 5. He took order 1 as having been breached by causing fear to Ms BB through the agency of third parties.

16. Having analysed the material to which I have referred, he decided to arrest the plaintiff. He did so after considering alternatives to this step including doing nothing, issuing a caution, or serving a Court Attendance Notice (“CAN”) on him.

17. LSC Murari did not believe that any possible approach other than arrest was appropriate, as he explained in evidence in chief in the following manner (T 16.16-23):

Q. Can you explain to his Honour why you didn’t consider that those matters weren’t appropriate for the beach of the AVO?

A. Due to the fact of the seriousness of the offence, the nature and seriousness of this breach of AVO, the fact that involves a family, kids and what was specified in the - or what was outlined in the, the statement, as well as what was in the event as well. I think there was a, a section there in the, in the COPS event where police outlined their fears as well, which helped me as well, in the decision.

18. Having so resolved, he went in a police vehicle to the plaintiff’s premises at Pyrmont in company with Constable McInnes. The events which occurred after their arrival at the plaintiff’s apartment were captured on LSC Murari’s body worn camera. This footage discloses that the plaintiff was placed under arrest by LSC Murari at 8:11am.

19. The plaintiff was allowed to dress (it seems that he had been woken from his sleep following completion of his night shift at a Rozelle restaurant). The plaintiff was then escorted through the apartment complex lifts to the ground floor. He was there searched, and then placed in was colloquially referred to as a “Paddy Wagon”.

20. The plaintiff was then conveyed to Day Street Police Station where the Custody Sergeant refused him Police Bail. Among other matters, in the Custody Management Record (Exhibit D7, CB page 46), the Custody Sergeant that the original ground for detention was: “LEPRA 99(1)(b)(ix) Nature and seriousness of the offence”

21. At 12:27pm, the plaintiff was transferred to the custody of Corrective Services. The plaintiff accepts that for present purposes this terminated his period of alleged false imprisonment. In total he had been in police custody, under arrest, for four hours and 15 minutes.

22. LSC Murari then commenced preparing a Fact Sheet. He used the draft which he had found on the COPS system which had been prepared by Waverley officers as a basis for this task, to which he added certain information which had emerged on 15 October 2018.

The Applicable Legal Principles

23. The applicable legal principles were not in dispute between the parties.

24. There is no issue that pursuant to section 8 of the Law Reform (Vicarious Liability) Act1983 (NSW), the State is vicariously liable in respect of torts committed by police officers in the performance or purported performance of a function that is an incident of their service.

25. Further, there is no dispute that in those circumstances, the State must show lawful justification for arrest and detention (Ruddock v Taylor (2005) 222 CLR 612 at 617).

Section 99 of the LEPR Act

26. In order to be lawful, the conditions of s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPR Act”) had to be satisfied, which relevantly provided:

99 Power of police officers to arrest without warrant

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

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

the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons--

to stop the person committing or repeating the offence or committing another offence,

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

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,

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

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

to preserve evidence of the offence or prevent the fabrication of evidence,

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.

27. Accordingly, the power to arrest without a warrant conferred by s 99(1) of the LEPR Act turned, first, on whether LSC Maruri suspected “on reasonable grounds that the person is committing or has committed an offence...", and secondly, on whether LSC Maruri had the requisite satisfaction pursuant to s 99(1)(b) of the LEPR Act.

28. As to the first issue, in George v Rockett [1990] HCA 26; 170 CLR 104 the High Court (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) said, at 115-116:

Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [1969] UKPC 26; [1970] AC 942, at 948, "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove.'' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, “was unable to pay (its) debts as they became due” as that phrase was used in s.95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said (at 303):

A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s.(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.

29. In New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46, (Kiefel CJ, Keane and Nettle JJ) emphasised that the relevant standard is not an onerous one, including observing (at [55]), “ … that the requirement of reasonable grounds to suspect is “very limited” and nothing like as much as a prima facie case.”

30. In Hyder v Commonwealth of Australia [2012] NSWCA 336; (2012) 217 A Crim R 571 at [14], McColl JA observed:

In determining whether the arresting officer had the relevant state of mind (be it suspicion or belief), the court is considering a preliminary stage of the investigation, rather than one requiring evidence amounting to prima facie proof: O’Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn, citing Shaaban Bin Hussien v Chong Fook Kam (at 949).

31. McColl JA at [15] then listed a number of legal propositions relevant to the issue as whether an arresting officer had “reasonable grounds” for his or her suspicion, including:

….

There must be some factual basis for either the suspicion or the belief: George v Rockett (at 112); the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some probative value: R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 (at [53](b)) per Smart AJ (Spigelman CJ and Simpson J agreeing); Shaaban Bin Hussien v Chong Fook Kam (at 949); O'Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn;

…

What constitutes reasonable grounds for forming a suspicion or a belief must be judged against "what was known or reasonably capable of being known at the relevant time": Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 (at [40]) per Gleeson CJ, Gummow, Hayne and Heydon JJ; whether the relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion: Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 (at 714) per Kirby P (Meagher and Sheller JJA agreeing); see also O'Hara v Chief Constable of Royal Ulster Constabulary (at 298) per Lord Hope;

The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it…

LSC Murari’s Evidence

32. The only witness called in the proceedings was LSC Murari. In written submissions, the plaintiff described him as a witness as being “a wholly unconvincing and unreliable witness”, though, I believe, in oral submissions these criticisms were significantly mooted. Regardless of whether they were mooted or not, I found that LSC Murari to be a straightforward and honest witness, upon whose evidence I felt comfortable in relying. He was forthright and readily made concessions against his own interest, including in relation to the issue of his duty to interview witnesses, where he made a concession which was, in my view, unnecessarily against his interest.

33. I accept LSC Murari’s evidence without reservation.

LSC Murari’s Suspicions

34. LSC Maruri’s evidence was clear, namely that he suspected that the plaintiff had breached the terms of the FADVO, particularly orders 5 and 1, which conduct constituted was an offence contrary to s 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“Crimes DPV Act”).

35. Indeed, his actions on the day are only consistent with him having such a suspicion. For example, he told the plaintiff “you have breached your AVO”, he arrested the plaintiff telling him he was arrested for that breach; he made a contemporaneous note in his notebook “seriousness of offence – breach of AVO”; and he charged the plaintiff with an offence contrary to s 14 of the Crimes DPV Act (see above).

36. Finally, Mr Woodbury of counsel, who appeared for the plaintiff, did not put to LSC Murari that he did not genuinely hold that suspicion.

37. I accept LSC Murari’s evidence.

Were There Reasonable Grounds for the Suspicions?

38. Having so concluded, the issue becomes whether LSC Murari had reasonable grounds for his suspicions.

The State’s Submissions

39. Mr Newton of counsel, who appeared for the defendant, submitted that LSC Murari did have such reasonable grounds. He submitted as follows.

40. First, when LSC Murari received the briefing by Acting Sergeant Ryan, he had been given BB’s statement and read it. He had also been given and read the AVO. He had also read the COPS Events.

41. Having considered that material, he set out his understanding in the Fact Sheet which he prepared shortly after the arrest.

42. Secondly, he submitted that this understanding was clearly correct based upon the material that he had read as:

1. There was an enforceable AVO, which had very strict conditions, including orders 1 and 5, which could be breached through the plaintiff’s conduct towards third parties. In other words, LSC Maruri’s understanding that the intimidation and/or attempts to contact and find Ms BB and the children could be indirect, that is to say, through third parties, was clearly right.

2. Ms BB's statement did reveal a “pattern of what the plaintiff was trying to do, or did” (T 35.40-41), which was clearly capable of establishing, as a matter of inference, that the plaintiff was seeking to find Ms BB, which was in breach of order 5. That pattern of behaviour included that:

1. He was telephoning and texting Ms BB's stepfather and her friend RV to discuss Ms BB on a nearly daily basis, and in respect of her stepfather, up to five times a day, making allegations against her.

2. The plaintiff’s conduct of contacting the stepfather and RV had continued even after he had been asked to desist from that behaviour, with his most recent attempt being at 11pm on 12 October 2018, which, by inference, demonstrates obsessive, worrying attempts to contact and/or find Ms BB.

3. The plaintiff was fishing for Ms BB’s address, with him saying to Ms RV, if he “took a guess”, she would go back to Bondi.

4. He was contacting, or attempting to contact Ms BB’s clients, Ms GS and Ms AA, and in Ms AA’s case, in circumstances where he had no relationship with her, they did not socialise, and there was no reason for him to contact her.

3. Next it was submitted that the plaintiff’s conduct in contacting Ms BB’s stepfather, her friends, and clients was making Ms BB nervous, she was fearful that one of her clients would reveal her whereabouts, and it was clearly arguable that such conduct was a breach of order 1, which could apply to conduct having an indirect effect on Ms BB and the children.

4. Finally, Waverley Police feared that the plaintiff would succeed in finding Ms BB.

43. Mr Newton submitted that while LSC Maruri acknowledged that there was further information that he could have obtained, such as speaking to the other witnesses and the relevant Waverley Police officers, this acknowledgement did not undermine the fact that he had the relevant suspicion, and that it was based upon reasonable grounds.

44. Mr Newton submitted that while LSC Murari acknowledged that he had a duty to investigate by speaking to the other witnesses, even with hindsight, he did not resile from his opinion that he had reasonable grounds to suspect the plaintiff had committed the offence, and that arresting the plaintiff was necessary having regard with his concern to protect the plaintiff (T 32.23).

45. Mr Newton put that given the above matters and accepting there were further investigations capable of being undertaken, LSC Maruri clearly had reasonable grounds for his suspicion. In that regard, he emphasised:

1. That all that was required was a “suspicion”, which is “a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence” (see extract from George v Rockett at above);

2. That the evidence did not need to be sufficient to establish a prima facie case, the evidence did not need to be admissible, and hearsay evidence may be taken into account;

3. That LSC Murari was entitled to act upon what he had been told, which included what he learnt from Ms BB’s statement, together with what Waverley Police had recorded in their COPS Event entries, which included that the plaintiff’s conduct caused Ms BB fear, and that Waverley Police feared that the plaintiff would succeed in attempting to find Ms BB; and

4. That LSC Murari could continue to satisfy his duty to investigate the matter after the arrest, which is what he then attempted to do, as was shown by his statement in the criminal proceedings (Ex D6; CB 64).

46. Upon these bases, the defendant submitted that LSC Maruri had reasonable grounds to suspect that the plaintiff had committed the offence contrary s 14 of the Crimes DPV Act.

The Plaintiff’s Submissions

47. Mr Woodbury of counsel, who appeared for the plaintiff submitted that on a proper reading of Ms BB’s statement, that statement did not disclose a basis for a suspicion of breach of the FADVO. He says that “the high-water mark” of the statement was a reference to a conversation between the plaintiff and Ms BB’s friend Ms RV to the following effect: “If I was to take a guess as to where she would be, she would go back to Bondi.”

48. The plaintiff says that Ms BB, in her statement, does not even say that she heard this directly from Ms RV. While, as a matter of drafting, this is the case, I do not believe that it was unreasonable for LSC Murari to have concluded from that portion of Ms BB’s statement, that she had spoken with Ms RV (and indeed to the other mentioned third parties about whom the same submission was made). This, in my view, was a most natural inference for LSC Murari to draw from the statement.

49. Next, the plaintiff says that the purported interactions between Ms AA’s husband and the plaintiff do not support LSC Murari’s assertion that he suspected the plaintiff of trying to contact Ms BB’s client to ascertain her whereabouts. I do not accept this. Rather, I accept LSC Murari’s analysis of the various pieces of evidence contained in the statement of Ms BB as being indicative of a pattern of behaviour which was emerging on the part of the plaintiff. To my mind, LSC Murari was correct to consider that the contact with Ms GS’s husband was part of that pattern.

50. Next, the plaintiff criticised LSC Murari’s reliance on hearsay, with which the statement of Ms BB was replete. Mr Woodbury in cross-examination extracted from LSC Murari an admission that he had a duty, before proceeding to arrest Mr BB, to make efforts to contact Ms RV. That concession at first blush might appear to be a very valuable one, however, on reflection, it seems to me that LSC Murari’s concession is an erroneous one. By this I mean to say that as the authorities, to which I have earlier referred, make clear, the suspicion with which I am concerned can be validly formed on the basis of hearsay, indeed it can be formed on the basis of anonymous information.

51. No doubt before the matter came to be finally determined by a court, it would have been necessary to produce the evidence of the communications to which Ms BB refers in a non-hearsay form, but that obligation, to my mind, did not arise at the time LSC Murari was forming his suspicion.

52. I should also add that it was not simply LSC Murari who was prepared to act on hearsay. It was clear that the various officers who considered the matter at Waverley Police were also prepared to act on the basis of hearsay.

53. The plaintiff also submitted that the better view of the LSC Murari’s evidence was that he had no regard to any part of Ms BB’s statement relating to her stepfather, Mr ZX. This submission was founded on the evidence of LSC Murari in chief that he suspected the plaintiff of having breached his FADVO by having “attempted to contact BB through friends. Attempted to, like, find, like her location, BB’s location” (T 14.32) and by “attempting to contact BB through friends” (T 14.48).

54. I do not accept that this analysis is correct. While on a strict reading of that evidence it could be argued that Ms BB’s stepfather was not a “friend”, when LSC Murari’s evidence is read as a whole, there is no suggestion in it that when he had made reference to Ms BB’s statement, he made a distinction between Mr ZX and Ms BB’s friends. There is not the slightest suggestion that LSC Murari disregarded any part of the statement, and certainly no suggestion that he disregarded it in respect of Mr ZX’s involvement.

55. To my mind, the more reasonable construction of LSC Murari’s evidence was that he relied on the totality of Ms BB’s statement, and his reference to “friends” in his evidence was loose language, which might have been better expressed as “third parties”.

56. I thus accept the State’s submissions on this issue, and I thus find for the reasons advanced by the State that the defendant has established that LSC Murari’s suspicions leading to the arrest were reasonably held.

Consideration of Section 99(1)(b) of the LEPR Act

57. The other matter the State must prove is that required by s 99(1)(b), namely that LSC Maruri was satisfied that the arrest was reasonably necessary for any one or more of the reasons in ss 99(1)(b)(i) to (ix).

58. The State submitted that LSC Maruri’s evidence concerning this matter was clear, and can be summarised as him being satisfied the arrest was reasonably necessary because:

1. Of the seriousness of the offences and the nature and seriousness of the breach. This, it said, was consistent with requirements and objects of s 99(1)(b)(ix); and

2. His feeling of what could happen to Ms BB and her children. In order to achieve protection for them, he wanted to bring the plaintiff before the Court to have the breach dealt with as soon as practicable (this, the State contended, was reasoning consistent with requirements and objects of s 99(1)(b)(i) of LEPR Act and s 99(1)(b)(viii) of the LEPR Act.)

59. The defendant also submitted that LSC Maruri’s evidence was also consistent with the contemporaneous records concerning his reasoning process, given:

1. He recorded in his notebook: “Seriousness of offence – breach AVO”; and

2. The note in the Custody Management Record was that the original ground for detention were: “LEPRA 99(1)(b)(ix) Nature and seriousness of the offence”.

60. I accept that this is the case.

61. In considering this issue, it is relevant to note that all that LSC Maruri was required to have was a subjective satisfaction in accordance with s 99(1)(b) of LEPRA. This, I believe, he clearly did. Upon having that subjective satisfaction, LSC Maruri’s discretion can only be challenged in the very limited circumstances stated by as McColl JA in Hyder v Commonwealth of Australia supra:

In Holgate-Mohammed v Duke (at 443), Lord Diplock held that the words "may arrest without warrant" conferred on a public official "an executive discretion" whether or not to arrest and that the lawfulness of the way in which the discretion was exercised in a particular case could not be questioned in any court of law except upon the principles Lord Greene MR enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. That aspect of Lord Diplock's reasoning was applied in Zaravinos v State of New South Wales (at [28]) …

62. To my mind, there is no basis for concluding that LSC Maruri’s exercise of his discretion was so unreasonable that no reasonable police officer could have exercised it in the same fashion. I am fortified in that view by the fact that:

1. Waverley Police considered that the matter was sufficiently serious to create a FACTS sheet and refer the matter to Day Street Police for action to be taken;

2. Indeed, Waverley Police obviously considered the matter to be sufficiently serious to dispatch a police car to the plaintiff’s address even before a statement from Ms BB had been completed;

3. Waverley Police had formed the view that Ms BB was fearful; and

4. Bail was refused by the Custody Sergeant.

63. For the plaintiff, it was emphasised that arrest is to be used as a policing approach of last resort, and that LSC Murari did not provide an adequate explanation as to why he did not proceed by way of issuance of a CAN. Mr Woodbury drew attention to LSC Murari’s evidence at TP 16.16-23 in the following terms:

Q. Can you explain to his Honour why you didn’t consider that those matters weren’t appropriate for the beach of the AVO?

A. Due to the fact of the seriousness of the offence, the nature and seriousness of this breach of AVO, the fact that involves a family, kids and what was specified in the - or what was outlined in the, the statement, as well as what was in the event as well. I think there was a, a section there in the, in the COPS event where police outlined their fears as well, which helped me as well, in the decision.

64. He went on to submit:

As is evident, Maruri could provide no reasoning, logical or otherwise, as to why he was satisfied it was necessary to arrest the plaintiff. He could not identify what it was about the seriousness of the offence. Merely reciting those words is hardly sufficient.

65. I do not believe that these criticisms are valid. The arresting officer, LSC Murari, saw the offences of breaching the FADVO as serious ones, a view which he held in common with the Court of Appeal (see State of New South Wales v Robinson [2016] NSWCA 334 at [69] (per Beazley P, Payne JA, and Sackville AJA)).

66. LSC Murari was aware that the plaintiff was considered to be a high-risk domestic violence offender under the consideration of a specialist domestic violence unit.

67. He knew that by arresting the plaintiff he would bring the matter before the court more quickly, and presumably by that act would bring matters to a head before his worst fears about the safety of Ms BB and her children might be realised.

68. As the defendant points out, the actions of the Waverley police and the Custody Sergeant at Day Street provide a good indication that far from the decision of LSC Murari to arrest as being so unreasonable that no reasonable police officer would contemplate it, the opposite indication, to my view, is the case.

Conclusion

69. I find that the defendant has established its case pursuant to section 99(1)(b) of LEPRA, and that as a consequence, the plaintiff’s case must fail.

Orders

70. I make the following orders:

1. That there be judgment and verdict for the defendant.

2. That the plaintiff pay the defendant’s costs.

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Amendments

17 December 2021 - Counsel H. Newton amended to N. Newton

01 February 2022 - Edited for anonymisation purposes.

Decision last updated: 01 February 2022