Director of Public Prosecutions (NSW) v SB

Case •

[2020] NSWSC 734

•

12 June 2020

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v SB [2020] NSWSC 734
Hearing dates: 24 July 2019; 26 and 30 March 2020 (supplementary submissions)
Date of orders: 12 June 2020
Decision date: 12 June 2020
Jurisdiction:Common Law
Before: Walton J
Decision:

The Court makes the following orders:

 

(1) The appeal is allowed.

 

(2) Pursuant to s 59(2) of the Crimes (Appeal and Review) Act, the order of Magistrate Hawdon, made on 23 October 2018, at Broadmeadow Children's Court dismissing proceedings against SB for the offences of assault police officer in execution of duty, contrary to s 60(1) of the Crimes Act and resist/hinder police officer in execution of duty, contrary to s 546C of the Crimes Act, be set aside.

 

(3) An order that the matter be remitted to the Broadmeadow Children’s Court to be dealt with according to law.

 (4) Costs are reserved.
Catchwords: APPEAL – arrest without warrant – invalidity of charges – whether objective test under s 99(1)(b) of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – reasonably necessary to arrest – notice of contention rejected – lawfulness criteria – appropriateness – appeal allowed – remitter
Legislation Cited: Bail Act 2013 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Interpretation Act 1987 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013 (NSW)
Summary Offences Act 1988 (NSW)
Supreme Court Rules 1970 (NSW)
Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472
Al-Kateb v Goodwin (2004) 219 CLR 562; [2004] HCA 37
Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales; Kelly v Roads and Traffic Authority of New South Wales (2010) 57 MVR 80; [2010] NSWCA 328
Associated Provincial Picture Houses v Wednesbury [1948] 1 KB 223
Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21
Avon Downs Pty Ltd v Commission of Taxation (1949) 78 CLR 353; [1949] HCA 26
Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Bromley London Borough Council v Greater London Council [1983] 1 AC 768
Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander (2012) 248 CLR 378; [2012] HCA 56
Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11
Council for the City of Lake Macquarie v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387
Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374
Daemar v Corporate Affairs Commission; Corporate Affairs Commission v Daemar [1990] NSWCA 51 Director of Public Prosecutions v Carr (2002) 127 A Crim R 151; [2002] NSWSC 194
Donaldson v Broomby (1982) 60 FLR 124; [1982] FCA 53
Fleet v District Court of NSW [1999] NSWCA 363
Jankovic v Director of Public Prosecutions [2020] NSWCA 31
Lake v Dobson (Unreported, Court of Appeal, (NSW), Samuels J, 19 December 1980)
Lule v State of New South Wales [2018] NSWCA 125
Minister for Immigration and Ethnic Affairs v Wu Shan Liang, Huang Cheng Jiang and Liu Jun Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Munro v ACP [2012] NSWSC 100
North Australian Aboriginal Justice Agency Limited v Northern Territory (2015) 256 CLR 569; [2015] HCA 41
Prior v Mole (2017) 261 CLR 265; [2017] HCA 10
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
RH v Director of Public Prosecutions (NSW) (2014) 244 A Crim R 221; [2014] NSWCA 305
Robinson v State of New South Wales (2018) 275 A Crim R 168; [2018] NSWCA 231
Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd [2017] NSWCA 339
State of New South Wales v Randall [2017] NSWCA 88
State of New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
Webster & Daff v McIntosh (1980) 32 ALR 603
Zaravinos v State of New South Wales; State of New South Wales v Zaravinos (2004) 62 NSWLR 58; [2004] NSWCA 320
Category:Principal judgment
Parties: Director of Public Prosecutions (Plaintiff)
SB (Defendant)
Representation:

Counsel:
D Kell SC & E Jones (Plaintiff)
J S Emmett (Defendant)

  Solicitors:
Solicitor for Public Prosecutions (Plaintiff)
Aboriginal Legal Service (Defendant)
File Number(s): 2019/38903
 Decision under appeal 
Court or tribunal:
Children’s Court
Jurisdiction:
Criminal
Date of Decision:
23 October 2018
Before:
Magistrate Hawdon
File Number(s):
2018/235240

Judgment

  1. HIS HONOUR: By summons filed 5 February 2019, the Director of Public Prosecutions (NSW) (“the Director”), the plaintiff, appealed, pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW), against an order by Magistrate Hawdon of the Children's Court at Broadmeadow (“the Court below”) made on 23 October 2018 dismissing criminal proceedings against SB, the defendant.

  2. The proceedings in the Court below, relevant to the appeal, related to two offences said to have been committed on 31 July 2018, namely, assaulting a police officer in the execution of her duty, contrary to s 60(1) of the Crimes Act 1900 (NSW) and resisting a police officer in the execution of her duty, contrary to s 546C of the Crimes Act (collectively, “the offences”).

FACTUAL BACKGROUND

The Windale Incident

  1. On 24 July 2018, at or around 11.00am, Ms Kristy Stewart, the Client Service Officer for Housing NSW, attended an address in Windale (the residence of SB’s father). She drove up to the front of the Windale address and noticed a large hole in the front of the house which she believed to have recently occurred. Ms Stewart parked her car outside of the Windale address and took three photos of the damage on her iPad. While Ms Stewart was taking these photos, SB exited the Windale address, ran towards Ms Stewart’s car and began yelling at Ms Stewart. Ms Stewart stated that SB went back inside the Windale address and then came back out again, yelled at Ms Stewart and threw an orange at Ms Stewart’s vehicle. The orange hit the top of the vehicle, bounced off and landed in the gutter across the road, outside of the pre-school (“the Windale incident”).

  2. Following the Windale incident, Senior Constable Whitehead, a Crime Prevention Officer in the Lake Macquarie Police District Crime Management Unit, received an email from Ms Shannon Hill, the Housing NSW Team Leader, informing her of the Windale incident. Senior Constable Whitehead sought to obtain a statement from Ms Stewart regarding the Windale incident, however, Ms Stewart was in a training course at the time and did not provide a statement to Senior Constable Whitehead until 30 July 2018.

  3. Senior Constable Whitehead stated that she discussed the Windale incident with the Youth Liaison Officer, Constable Ell, who recommended that she charge SB and change the bail conditions that had been imposed against her. At the time of the Windale incident, SB was on conditional bail and was bailed to reside with her grandmother at an address in Cardiff. However, Senior Constable Whitehead stated that it was known that SB was regularly at the Windale address. In her statement, Senior Constable Whitehead stated that the Windale address "has come under the notice of Police for antisocial behaviour and crime related reasons and community complaints".

The Arrest

  1. In her statement before the Local Court, Senior Constable Birmingham recorded that, at or around 12.00pm on 31 July 2018, Senior Constable Whitehead asked her to assist in the arrest of SB for the offences that occurred during the Windale incident, to which Senior Constable Birmingham agreed. Senior Constable Whitehead stated that the reason for the delay in arresting SB was that she was waiting to obtain a statement from Ms Stewart.

  2. Senior Constable Birmingham stated that shortly before 1.00pm on 31 July 2018, Senior Constables Whitehead and Birmingham (“the officers”) attended the Windale address to arrest SB in relation to the Windale incident. As the officers drove their vehicle up to the Windale address, the front door was partially open and SB was standing in the doorway. When the officers approached the front door, SB closed the door. Senior Constable Whitehead stated that she had the following conversation with SB, through the closed front door:

Senior Constable Whitehead: [SB] open the door I need to speak with you.

SB: What do you want?

Senior Constable Whitehead: We need to talk about what happened last week with Housing when you threw an orange at the car.

SB: I haven't fucking done anything wrong!

Senior Constable Whitehead: Is dad home?

SB: He's in the shower

  1. The officers then pushed the unlocked front door open, took hold of SB by her arms and Senior Constable Birmingham told SB that she was under arrest. Senior Constable Whitehead recorded in her statement that SB attempted to pull away from the officers, kicked both legs toward them, resisted violently and screamed. The officers lowered SB to the ground and Senior Constable Birmingham handcuffed her. During the struggle, Senior Constable Birmingham suffered a laceration to her left hand and was kicked in her right leg. That arrest was undertaken without warrant.

  2. While SB was struggling against the officers, SB’s father arrived. Senior Constable Whitehead had the following conversation with SB’s father:

SB’s father: What are you doing?

Senior Constable Whitehead: [SB] is under arrest for an incident last week when she threw an orange at a Housing officer in the car.

SB’s father: That's been dealt with Housing spoke to me about that last week.

  1. Senior Constable Birmingham stated that Senior Constable Wardman was driving past and saw the officers struggling with SB, so he stopped to provide assistance. Senior Constable Wardman assisted the officers in escorting SB in the direction of the police vehicles, which were parked on the road.

  2. While SB was being escorted from the Windale address toward the police vehicles, Senior Constable Whitehead recorded seeing a young female person running in an easterly direction, in front of the parked caged police vehicle, where she was hit by a vehicle driving down the street. Senior Constable Wardman subsequently passed his body worn video camera to Senior Constable Whitehead and then attended to the aid of the young female person.

  3. As there was already a prisoner in the caged truck that Senior Constables Wardman and Watt arrived in, it could not be used to transport SB. In the result, the officers sat on the gutter of the street with SB while they waited for another caged vehicle to transport SB to the Belmont Police Station. During this time, SB continued to scream the name of the young female person that was hit by the vehicle and yelled that the handcuffs were too tight. SB’s Youth Worker attended the Windale address during this time and attempted to calm SB to no avail. SB was later conveyed to the Belmont Police Station. Senior Constable Whitehead stated that she was told by the Custody Manager, Senior Constable Grabham, that while he was processing the charges against SB, she was “spitting all over the dock”.

  4. At approximately 4:50pm on 31 July 2018, SB was released from custody on bail.

  5. With respect to the Windale incident, on 24 July 2018, SB was charged with the following offences:

  1. did intentionally throw an object at a vehicle, contrary to s 49A of the Crimes Act; and

  2. did behave in offensive manner in/near public place/school, contrary to s 4 of the Summary Offences Act 1988 (NSW).

  1. Arising out of the arrest, SB was also charged with the following additional offences:

  1. did assault Debbie Birmingham, a police officer, while the said officer was executing her duty, contrary to s 60(1) of the Crimes Act;

  2. did resist Debbie Birmingham, a member of the Police Force, in the execution of her duty, contrary to s 546C of the Crimes Act; and

  3. did destroy or damage property, contrary to s 195 of the Crimes Act.

  1. SB entered pleas of guilty for all of the charges, save for the two currently being appealed, as set out in [15(1)] and [15(2)] above.

THE APPEAL AND CONTENTIONS

The Appeal

  1. The Director appealed from the dismissing of the criminal proceedings bringing the offences.

  2. The grounds of appeal were that the Court below erred in law by:

  1. impliedly holding that, in order to comply with section 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”), an arrest must be objectively reasonably necessary for one or more of the reasons listed in that section; and

  2. holding that, in order to be lawful, an arrest which complies with section 99 of LEPRA must, in addition, be objectively “appropriate”.

  1. With respect to a request filed on 16 November 2018, Magistrate Hawdon granted an extension of time, pursuant to Pt 51B r 6 of the Supreme Court Rules 1970 (NSW), within which to institute the appeal until 5 February 2019.

  2. On 16 July 2019, counsel for SB filed, by leave granted on 24 July 2019, a Notice of Contention, contending that the decision of the Court below should be affirmed on grounds other than those relied on by the Court below, but a discharge or variation of any part of that decision was not sought. The grounds referred to in the Notice of Contention were as follows:

1. To the extent that the learned Magistrate did not in fact reach the conclusion set out in this ground, the learned Magistrate erred in failing to hold that no officer, acting reasonably, could have been satisfied that the arrest was reasonably necessary for one of the grounds enumerated in section 99(1)(b) of LEPRA.

2. The learned Magistrate erred in failing to hold that the arrest was unlawful because the evidence did not establish that the arresting officer was in fact satisfied that the arrest was reasonably necessary for one of the grounds enumerated in section 99(1)(b) of LEPRA.

Orders Sought

  1. The Director sought the following orders upon appeal:

  1. An order that the defendant is referred to by the use of the pseudonym, "SB". This order was granted by the Court on 24 July 2019.

  2. An order allowing the appeal.

  3. An order pursuant to s 59(2) of the Crimes (Appeal and Review) Act that the order of Magistrate Hawdon, made on 23 October 2018, at Broadmeadow Children's Court dismissing proceedings against SB for the offences of assault police officer in execution of duty, contrary to s 60(1) of the Crimes Act and resist/hinder police officer in execution of duty, contrary to s 546C of the Crimes Act, be set aside.

  4. An order that the matter be remitted to the Broadmeadow Children’s Court to be dealt with according to law.

  5. An order that SB pay the Director’s costs of and incidental to the summons.

  6. Such further or other orders as to the Court deems fit.

MATERIAL BEFORE THE COURT

  1. The parties filed a joint court book, which contained an affidavit of Ms Karen Parouchais, solicitor for the plaintiff, affirmed 20 February 2019, which annexed, inter alia, copies of relevant documents from the Children's Court file, including the exhibits that were before Magistrate Hawdon (including, the statement of Senior Constable Whitehead and Senior Constable Birmingham) and the transcript of the proceedings in the Children's Court.

  2. This appeal was heard on 24 July 2019.

  3. On 12 March 2020, the parties sought to make further submissions based upon the recent decision of the NSW Court of Appeal in Jankovic v Director of Public Prosecutions [2020] NSWCA 31 (“Jankovic”). Those further submissions were filed on 26 and 30 March 2020 and the matter reserved for decision in that light.

PROCEEDINGS IN THE COURT BELOW

  1. The proceedings came before Magistrate Hawdon in the Children's Court at Broadmeadow on 23 October 2018. The statements of Senior Constable Birmingham, Senior Constable Whitehead and Ms Stewart were tendered without objection. A short clip of body-worn video was also tendered, which showed the alleged assault by SB on Senior Constable Birmingham, namely, a kick to Senior Constable Birmingham’s knee area, while SB was lying handcuffed on the ground.

  2. Senior Constable Whitehead was required for cross-examination. It is appropriate to set out a portion of that cross-examination:

Q. You had a discussion with the youth liaison officer, Senior Constable Ell, do you remember what you spoke to Senior Constable Ell about?

A. It was specifically about what had occurred, what happened, the youth liaison officers are very involved in [the defendant's] matters, as one of our young offenders, and the youth liaison officers had actually attended court previously to amend [the defendant's] bail to try and help her and stop her from offending and meeting with associates at that [Windale] location with her dad. So I did discuss that another incident had happened with housing staff and we discussed that her bail was inadequate and that simply having her bailed to the grandmother's house didn't actually prevent her from going to her dad's and she was certainly spending a lot of time there and continuing to commit offences.

Q. You spoke to Senior Constable Ell about imposing more stringent bail?

A. It was for - yes, for bail, the necessity of bail.

Q. To be clear, that was before you went to [the defendant's] house?

A. Yes.

Q. Did you consider a different way of charging [the defendant] rather than going to her house?

A. Of course but to proceed by future CAN, I thought that housing was saying that they needed their staff protected, this was the second incident that they've had items thrown at their staff from the [the defendant's] tenancy and if I had proceeded by future CAN, generally speaking, that's six weeks from the time of the incident, so I wanted to do something more immediate to get her out of that location and associating with people there that are committing offences.

Q. Are you aware that she had court earlier that day [she was arrested]? ...

A. I don't remember if I knew that on the day.

Q. Are you able to access the police system and find out when young offenders have court dates?

A. Yes, but that Court date didn't - wouldn't have changed her bail and prevented her from going to that address and protected the housing staff that were attending the neighbouring property, which is vacant, that they can't tenant because of the behaviour of the young person.

DECISION OF THE MAGISTRATE

  1. Magistrate Hawdon gave an ex tempore decision.

  2. Her Honour considered the evidence and made the following statement:

The matter is being run very economically with four statements which include the body worn video being tendered by the prosecution. Only the officer-in-charge has been cross-examined. The defence have not called any witness, and a very narrow issue, namely the lawfulness of the arrest, pursuant to s 99 of LEPRA, the Law Enforcement (Powers and Responsibilities) Act, is the only issue here.

  1. Her Honour then went on to consider the relevant legislation:

LEPRA, the Law Enforcement (Powers and Responsibilities) Act, is the only issue here.

That Act very clearly sets out police powers of arrest without warrant. It is, in fact, a twostep process and the section reads that, "A police officer may, without warrant", and the word, "May", of itself, indicates a discretionary nature, may, if they suspect, on reasonable grounds, that a person is committing or has committed an offence and, (b), "That the arrest is reasonably necessary for any one or more of the following reasons", and they are set out in s 99. They include to stop the person committing or repeating the offence or committing another offence; to stop a person fleeing from police; to enable inquiries to be made as to the person's identity if it cannot readily be established; to ensure that the person accused appears before a court; to obtain property in the possession of the person that is connected with the offence; to preserve evidence; to prevent the harassment or interference with any person who might give evidence; to protect the safety or welfare of any person; and because of the nature or seriousness of the offence.

I must say that the wording of the legislation does not add, "For any other reason that the police officer may consider was reasonable or necessary".

  1. Her Honour provided the following reasoning:

Arresting involves a deprivation of liberty which should only be exercised on appropriate grounds and it should be a measure of last resort. The fact that s 99 may have been complied with to the letter is not sufficient. The appropriateness of the arrest must also be considered. The level of satisfaction required for an arrest to be reasonably necessary has been likened by Dixon J to the persuasion factor in the case of Briginshaw v Briginshaw. 'Reasonably necessary' cannot be stretched to that which is merely desirable or useful, it must be necessary and the test must be decided objectively on the basis that exists of the circumstances at the time.

…

[Emphasis added.]

  1. Her Honour concluded as follows:

In all the circumstances, while the prosecution have submitted that they have complied with LEPRA and followed the protocol and there is no real dispute that they have done anything other than that. The reasons given were primarily to make a bail variation so that [the defendant's] bail conditions could be more stringent to get [the defendant] to comply with bail, hopefully, and serve [the defendant] with this Court attendance notice for the housing matter. I am not satisfied, in all the circumstances, that the arrest was proportionate or necessary. This young person is known to police so her identity and address was not in issue. She is only 15 years of age. I could not be satisfied that the offence which brought her to notice this matter, the orange throwing incident, was the most objectively serious. I am not minimising it, it is a serious offence, but in matters of that nature, I would not regard it as the most objectively serious. It was also by this stage, over a week old so there was no particular immediacy in it.

There were other alternatives open, which were considered but not proceeded with, to the police officer. I note that the young person spent several hours in custody but was ultimately released on bail. This is not to say that the police would not be frustrated, particularly with what would appear to be a lack of cooperation by other people that should have a young person's best interests at heart. However, the powers under s 99(1)(b) of LEPRA are very clearly set out in the legislation and dealing with bail is not one of them. I do note that Senior Constable Whitehead did seek to protect the safety of the Housing Commission workers but, looking at the objective seriousness of the offence and the fact that, by this stage, it was now over a week old, the immediacy of that was something that I think did not require an arrest.

In all the circumstances, I am not satisfied that the arrest was lawful so it is not proved and, as a consequence, the assault, I find her not guilty in relation to that as well.

[Emphasis added.]

ISSUES ON APPEAL

  1. On 10 May 2019, the Director filed submissions which contended that the Court below erred in dismissing the charges against SB. SB was alleged to have assaulted and resisted the officers in the execution of their duty. The Court below was not satisfied that the arrest was lawful and found SB not guilty.

  2. The Director contended that the essential error was that the Court below considered the necessity of the officers’ decision to arrest SB on an objective rather than subjective basis, for the purposes of s 99(1)(b) of LEPRA. That is, the Director submitted, Magistrate Hawdon erred in her construction of s 99(1)(b) because her Honour did not ask the relevant question, which was whether Senior Constable Whitehead was satisfied that it was reasonably necessary to arrest SB to stop her committing further offences and/or to protect the safety of other persons. In the result, an objectively unreasonable arrest would have been lawful if the officer subjectively believed it to be "reasonably necessary".

  3. On 15 July 2019, counsel for SB filed submissions which contended that the Court below did not fall into such an error, to which I shall return. No issue was raised as to the satisfaction of s 99(1)(a) of LEPRA.

  4. The submissions filed on 10 May 2019 by the Director and 15 July 2019 by SB, will be collectively referred to as “the primary submissions”.

  5. On 22 July 2019, the Director filed submissions in reply to SB’s submissions of 15 July 2019 (“the reply submissions”).

  6. Pursuant to orders that the Court made, by consent, on 19 March 2020, the parties were given leave to file additional submissions limited to the issue of the relevance of the Court of Appeal’s recent decision in Jankovic to the determination of these proceedings (“the additional submissions”).

RELEVANT LEGISLATION

  1. Sections 56(1)(c) and 59(2) of the Crimes (Appeal and Review) Act are in the following terms:

56 Appeals as of rights

(1) The prosecutor may appeal to the Supreme Court against—

…

(c) an order made by the Local Court dismissing a matter the subject of any summary proceedings; or

…

other than an order or sentence with respect to an environmental offence, but only on a ground that involves a question of law alone.

59 Determination of appeals

(2) The Supreme Court may determine an appeal against an order referred to in section 56 (1) (b), (c), (d) or (e) or 57 (1) (b) or (c)--

(a) by setting aside the order and making such other order as it thinks just, or

(b) by dismissing the appeal.

  1. At the time of the alleged offences, s 99(1) of LEPRA provided (and it continues to provide):

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:

(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,

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

(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,

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

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

  1. Section 99 of LEPRA was relevantly amended by the Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013 (NSW) (“the amendments”). Prior to the commencement of the amendments on 16 December 2013, s 99(1)-(3) of LEPRA provided the following:

Power of police officers to arrest without warrant

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

(a) the person is in the act of committing an offence under any Act or statutory instrument, or

(b) the person has just committed any such offence, or

(c) the person has committed a serious indictable offence for which the person has not been tried.

(2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument.

(3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:

(a) to ensure the appearance of the person before a court in respect of the offence,

(b) to prevent a repetition or continuation of the offence or the commission of another offence,

(c) to prevent the concealment, loss or destruction of evidence relating to the offence,

(d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,

(e) to prevent the fabrication of evidence in respect of the offence,

(f) to preserve the safety or welfare of the person.

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

LEGAL PRINCIPLES

Principles of Statutory Interpretation

  1. The principles of statutory construction were outlined by French CJ and Hayne J (with whom Kiefel J agreed in this respect) in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander (2012) 248 CLR 378; [2012] HCA 56 at [23]-[26] as follows:

[23] It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (at [47]):

[47] This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

[24] The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky, “[t]he 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”. [Emphasis added.] That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole”, and “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”.

[25] Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted…

[26] A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.

[Footnotes omitted.]

  1. In Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9, the High Court (French CJ, Crennan and Bell JJ) further dismissed those principles and stated as follows (at [39]):

[39] Lord Diplock’s three conditions (as reformulated in Inco Europe) accord with the statements of principle in Cooper Brookes and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading s 12(2) as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock’s three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that “the modified construction is reasonably open having regard to the statutory scheme” because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour’s further observation, “[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances”.

[Footnotes omitted.]

  1. In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, Kiefel CJ, Nettle and Gordon JJ said at [14]:

[14] The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. 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.

[Footnotes omitted.]

  1. Reference may also be made to Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd [2017] NSWCA 339 per Payne JA (with whom Beazley P and Barrett AJA agreed) at [39]-[40]:

[39] The relevant principles of construction were not controversial on the appeal. The meaning of words and phrases is influenced by the immediate context in which they are used. The meaning of the whole may be different to the sum of the meaning of the parts: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 at 396-397 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) citing Lord Hoffmann in R v Brown [1996] 1 AC 543 at 561.

[40] The modern approach to statutory interpretation uses “context” in its widest sense “to include such things as the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy”: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 at 408 (per Brennan CJ, Dawson, Toohey and Gummow JJ).

  1. As to context, the High Court stated in Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39] as follows:

[39] This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text". 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.

[Footnotes omitted.]

  1. Fundamental rights and freedoms can only be abrogated by clear words. The Court found in Al-Kateb v Goodwin (2004) 219 CLR 562; [2004] HCA 37 at 577 as follows:

In exercising their judicial function, courts seek to give effect to the will of parliament by declaring the meaning of what parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.

…

It is not new. In 1908, in this court, O’Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that “[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness”.

  1. The principle of legality has direct application in questions about the interpretation of arrest powers: North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 at [11] (per French CJ, Kiefel and Bell JJ). That passage is extracted below:

[11] Before considering the constitutional validity of any statute, it is necessary to consider its construction and operation. Its construction will give effect to the ordinary meaning of its text in the wider statutory context and with reference to the purpose of the provision. Further, 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. That presumption, which is well established, has been called "a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted". It is a presumption whose longstanding rationale is that it is highly improbable that parliament would "overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness". Its object was set out in the joint judgment of Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v The Queen:

"curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights."

[Footnotes omitted.]

(See also Robinson v State of New South Wales (2018) 275 A Crim R 168; [2018] NSWCA 231 (“Robinson v NSW”) at [121] (per McColl J)).

  1. In interpreting statutes in a way which will have the effect of expanding exposure to criminality, Courts will be cautious in the absence of unambiguous meaning (Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55 (“Beckwith”) at [9]:

[9] … In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams (1935) 53 CLR 563, at pp 567-568; Craies on Statute Law, 7th ed. (1971), pp. 529-534.

  1. Provisions in legislation must have meaning, and work to do: Commonwealth v Baume (1905) 2 CLR 405 at 414 (see also Beckwith; and Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (“Project Blue Sky”) at [71]). In Project Blue Sky, McHugh, Gummow, Kirby and Hayne JJ observed: “…a court construing a statutory provision must strive to give meaning to every word of the provision”.

General Principles Relating to Arrest

  1. First, arrest is onerous and is a narrowly considered power. As Donaldson v Broomby (1982) 60 FLR 124 at 126 per Deane J (with whom Kelly J agreed) stated, it is:

Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny. 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. Where the Parliament has legislated so as to define those circumstances, neither legal principle nor considerations of public interest commend or support a search among the shadows of earlier subordinate legislation for the means of evading the constraints upon the interference with the liberty of the subject which the Parliament has imposed.

  1. Second, and consistently, arrest is a measure of last resort. Arrest is fundamentally discretionary and the exercise of a conscious discretion is necessary: see Zaravinos v State of New South Wales; State of New South Wales v Zaravinos (2004) 62 NSWLR 58; [2004] NSWCA 320 (“Zaravinos”) at [24]; Fleet v District Court of NSW [1999] NSWCA 363 (“Fleet v District Court”) at [74].

  2. Third, arrest is inappropriate for minor offences where a summons (Court Attendance Notice) would be appropriate: Director of Public Prosecutions v Carr (2002) 127 A Crim R 151; [2002] NSWSC 194 (“DPP v Carr”) at [35].

  3. Fourth, there is a legal immunity from arrest until the conditions governing its exercise are fulfilled: Webster & Daff v McIntosh (1980) 32 ALR 603 at 607 per Brennan J (Deane and Kelly JJ agreeing).

  4. Fifth, arrest is principally to bring a person before a justice: Robinson v NSW per McColl JA at [65]-[66] and Basten JA at [154].

  5. Sixth, the principle of legality has application in respect to interpreting powers of arrest: see Northern Australian Aboriginal Justice Agency v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 at [11] (per French CJ, Kiefel and Bell JJ).

GROUND 1

Contrary to the language of s 99(1)(b) of LEPRA, the court below erroneously applied an objective test when considering whether it was satisfied that the arrest was necessary.

Submissions of the Director

  1. In summary, the primary submissions of the Director, with respect to ground 1, were as follows:

  1. Reference was made to Dixon J's discussion of the standards of persuasion to be applied by a tribunal of fact in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (“Briginshaw v Briginshaw”). The Court below stated that the arrest "must be necessary and the test must be decided objectively on the basis that exists of the circumstances at the time". That the Court below applied such an objective test is made clear from the statement of her conclusions, "I am not satisfied, in all the circumstances, that the arrest was proportionate or necessary". The Director submitted that approach by the Court below was erroneous.

  2. Prior to the amendment of s 99 in 2013, the enquiry as to whether an arrest was necessary was partly objective. By way of example, in State of New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194, the Court of Appeal constituting McColl JA (with whom Leeming JA and Sackville AJA agreed) at [105] and [123] stated as follows:

[105] For a warrantless arrest to be valid, two elements have to be satisfied: 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.

…

[123] It is not sufficient that the police officer subjectively (or honestly to use the expression in SNSW v Robinson) hold the belief that arrest is necessary, that subjective belief has to be one which can be upheld on an objective basis as having been formed on reasonable grounds.

[Footnotes omitted.]

  1. The comments of Gordon J in Prior v Mole (2017) 261 CLR 265; [2017] HCA 10 at [98] aptly described the position in relation to the requirement found in s 99(3) of LEPRA, prior to the amendment of s 99 in 2013:

[98] When a statute prescribes that there must be "reasonable grounds" for a state of mind, it requires the existence of facts sufficient to induce that state of mind in a reasonable person. It is an objective test. The question is not whether the relevant person thinks they have reasonable grounds.

[Footnotes omitted.]

  1. However, the Director submitted that following the amendments in 2013 that is no longer the position. The requirement presently found in s 99(1)(b) of LEPRA is that the "police officer is satisfied that the arrest is reasonably necessary" for one of the stated purposes. This focussed attention on the state of mind of the arresting police officer. Reliance was placed upon the judgment of Basten JA in State of New South Wales v Randall [2017] NSWCA 88 (“Randall”) at [13], as to the operation of s 99(1)(b).

  2. This same point was also made by Beazley P (with whom Macfarlan JA and Barrett AJA agreed) in Lule v State of New South Wales [2018] NSWCA 125 (“Lule v NSW”) at [2]:

[2] Section 99(1)(b) is concerned with a state of satisfaction that the police officer must have, namely, that the “arrest is reasonably necessary” for one or more of the reasons specified in para (b). The police officer’s state of satisfaction is a subjective matter and must exist as a matter of fact at the time of the arrest.

  1. In Randall, Basten JA held that the Court below erred in the same way that the Director submitted her Honour erred in the present case. In Randall, at [38] and [40], Basten JA stated as follows:

[38] ... the judge accepted that the arresting officer did suspect on reasonable grounds that the plaintiff was hindering his investigation, thereby satisfying s 99(1)(a). With respect to the second requirement, the judge was not satisfied that the course of arresting the plaintiff was “reasonably necessary” in relation to that offending. However, the correct question with respect to the second requirement was not what the judge thought, but what the officer thought was reasonably necessary in the circumstances; s 99(1)(b) refers to the officer being “satisfied”. The precondition to the exercise of the power is the officer’s state of mind.

…

[40] In effect, the judge made two errors in this regard: first, in finding that the assault did not take place, he failed to address the question as to whether the arresting officer suspected that an assault had taken place and then determine whether such a suspicion (of which the officer gave evidence) was or was not based on reasonable grounds. Having accepted that the officer in fact had a suspicion based on reasonable grounds (as to the offence of hindering), the second error was to approach the further requirement on the basis of his own view of what occurred on the evening in question, rather than by reference to the state of satisfaction of the officer. As noted above, that state of satisfaction could only properly be challenged on the basis that it was arbitrary, capricious or manifestly unreasonable. That test was not applied, no doubt because there was no finding as to the underlying state of mind.

[Footnotes omitted.]

  1. A comparable error is evident in the reasoning of Magistrate Hawdon in the present case. Her Honour approached s 99(1)(b) of LEPRA by asking whether she could be or was satisfied that the arrest was reasonably necessary. In doing so, the Court below failed to address and bring to bear the evidence of Senior Constable Whitehead as to why she believed it was reasonably necessary to arrest SB. The Director contended that there was no finding that Senior Constable Whitehead's evidence in that regard should be rejected, and no finding that the state of satisfaction to which she attested was arbitrary, capricious or manifestly unreasonable.

  2. In seeking to protect the safety of staff members of Housing NSW, Senior Constable Whitehead acted within s 99(1)(b)(viii) of LEPRA. Thus, the Court below noted that Senior Constable Whitehead "felt that it was necessary ... to protect the workers from the Department of Housing" and that "Senior Constable Whitehead did seek to protect the safety of the Housing Commission workers".

  3. As the Court below approached the question of necessity in s 99(1)(b) of LEPRA objectively, it incorrectly reasoned that, notwithstanding Senior Constable Whitehead's evidence, her Honour did not think the arrest was required. In the result, her Honours reasoning was erroneous, and contrary to the terms of the provision.

  4. With respect to the variation of SB's bail conditions, Senior Constable Whitehead can be said to have acted for the purpose of preventing SB from committing further offences in connection with the Windale address and therefore, Senior Constable Whitehead acted within s 99(1)(b)(i) of LEPRA.

  5. Senior Constable Whitehead was satisfied that it was reasonably necessary to arrest SB for the reasons stated in ss 99(1)(b)(i) and (viii) of LEPRA. In the result, the power in s 99(1) of LEPRA to arrest SB was lawfully exercised.

Submissions of SB

  1. The submissions of SB, with respect to ground 1, can be summarised as follows:

  1. In relying on Basten JA's remarks in Randall, the Director argued that his Honour's reference to the words of s 99(1) should be understood to say that an arresting officer's “satisfaction” of the relevant matters is amenable to review only in a narrow set of circumstances. Hence, his Honour, applied a more stringent standard of review than other members of the Court of Appeal deemed applicable (notably, McDougal J at [122]).

  2. Counsel for SB submitted that no such reading of Basten JA's reasons in Randall can be sustained.

  3. In holding that a challenge to the officer's satisfaction of the matters in s 99(1) can only be sustained in circumstances where “it can be shown that the suspicion or state of satisfaction was manifestly unreasonable”, or "arbitrary, capricious, irrational or not bona fide'", Basten JA was simply setting down (as N Adams J recognised in JH v R [2019] NSWSC 192 at [83], that the standard of review was manifest unreasonableness “in the sense in which that term is used in administrative law cases”.

  4. The approach set out by Basten JA in Randall was followed by N Adams J in JH v R at [57] and [83]. Her Honour (at [83]) took Basten JA's reasons in Randall as positing that “a challenge to whether [the arresting officer] was satisfied it was ‘reasonably necessary’ to arrest the young person requires a finding that the officer's state of satisfaction was manifestly unreasonable, in the sense in which that term is used in administrative law cases”.

  5. The “administrative law cases” which N Adams J took Basten JA's decision to be drawn upon were evident in Basten JA's explanation of his approach with reference to the decision of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 (“Eshetu”) (see Randall at [13]). In Eshetu, Gummow J concluded (at [145]) that, in cases like the present, which concern the review of the exercise of a statutory power enlivened upon the decision-maker's satisfaction of some state of affairs to a degree of reasonableness, the applicable approach was that described by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119.

  6. In Buck v Bavone, Gibbs J reiterated (at 119), the well-established principles applicable to the review of powers predicated upon the attainment of some state of satisfaction by the person empowered:

It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it.

  1. Gibbs J, in turn, had developed the principles first laid down in the decision of Dixon J in Avon Downs Pty Ltd v The Federal Commission of Taxation (1949) 78 CLR 353; [1949] HCA 26 (“Avon Downs”). In considering a power of the Federal Commissioner of Taxation to make certain decisions based upon satisfaction as to the state of corporate voting power, his Honour stated as follows (at 360):

His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review.

  1. The principles set down by Dixon J in Avon Downs and developed by Gibbs J in Buck v Bavone remain authoritative: Minister for Immigration and Ethnic Affairs v Wu Shan Liang, Huang Cheng Jiang and Liu Jun Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 275-276 (per Brennan CJ, Toohey, McHugh and Gummow JJ). In the result, the decision of the Court of Appeal in Randall should be interpreted consistently with that position.

  2. The approach to s 99(1) dictated by the Court of Appeal in Randall is, therefore, that an officer's state of satisfaction is subject to review where the officer's state of mind, in that respect, can be shown to be affected by reviewable error, including irrationality and Wednesbury unreasonableness. The circumstances enumerated by Basten JA, as those in which an officer's state of satisfaction was subject to review, were not exhaustive, and his Honour should not be taken to have identified all the grounds on which a purported state of satisfaction might not be valid under the section. The reasons of Basten JA at [13], with those of McDougall J at [122], should be read with reference to the principles set down by Dixon J in Avon Downs and Gibbs J in Buck v Bavone.

  3. The principles in Avon Downs and Buck v Bavone, when applied to the present case, directed attention to the matters that the arresting officer took into account in reaching the avowed state of satisfaction. That is, that the power of arrest without warrant was available to her in accordance with s 99(1) of LEPRA.

  4. The Court below found that the officer “felt that it was necessary to vary SB's bail conditions and to protect the workers from the Department of Housing”. The Director’s submissions elided her Honour’s reference to the arresting officers’ perception that it was necessary to vary SB's bail conditions. The fact was, the Court below found that the perceived need for a bail variation was not only among the matters the arresting officer took into account in satisfying herself that the arrest power was available, it was foremost in Senior Constable Whitehead’s mind:

The reasons given were primarily to make a bail variation so that your bail conditions could be more stringent to get you to comply with bail, hopefully, and serve you with this Court Attendance Notice for the housing matter.

  1. Having found that the arresting officer had satisfied herself that the s 99(1)(b) requirements were fulfilled “primarily” by reference to the perceive need for a bail variation, the Court below did not err in reaching the conclusion that the officer's satisfaction, on that point, did not meet the requirements of s 99(1)(b) of LEPRA. In allowing the necessity or otherwise for a variation of SB's bail to influence her satisfaction that an arrest was reasonably necessary that the arresting officer took “some extraneous reason into consideration” in the manner the line of cases reaffirmed in Wu Shan Liang proscribes. This was an error of law providing grounds for review of the arresting officer's conclusion that the requirements in s 99(1) of LEPRA were satisfied.

  2. Further, Magistrate Hawdon’s statement that she was not satisfied that the approach was necessary, read beneficially, should be understood as a conclusion that no officer, acting reasonably, could have been so satisfied. Counsel for SB contended that such a conclusion was compelling on the facts before her Honour, when regard is had to the following matters:

  1. the legal principles relating to arrest set out above and the special considerations relating to a child;

  2. SB’s age;

  3. the non-seriousness of the orange-throwing offence;

  4. the passage of time, indicating that there could be no concern of an immediate threat to the safety of housing staff (or anyone else); and

  5. the availability of alternatives.

Additional Submissions of the Director

  1. The additional submissions of the Director were, in summary, as follows:

  1. The decision in Jankovic does not support the approach taken by the Court below when applying s 99(1)(b) of LEPRA. The approach of the Court below was to ask whether it could be, or was, satisfied, on an objective basis, that the arrest of SB was reasonably necessary. That approach by the Court below was erroneous because s 99(1)(b), properly understood, required an enquiry into the state of mind of the arresting officer.

  2. Consistent with the Director’s existing submissions in this matter, Jankovic makes clear that the issue with which s 99(1)(b) of LEPRA is concerned is the satisfaction of the arresting officer. The proposition that is central to the ratio of Jankovic is stated by Barrett AJA (with Macfarlan JA agreeing) at [54]:

[54] The party asserting the lawfulness of the arrest must thus prove that the police officer had formed a particular opinion (or state of satisfaction) about the connection, in terms of cause and effect, between depriving the person of their liberty and achieving the results with which the ‘following reasons’ [set out in s 99(1)(b)] are concerned. The connection is defined by the words ‘reasonably necessary’.

  1. In Jankovic, his Honour held (at [61]) that, in order to be satisfied that an arrest is reasonably necessary, a police officer must undertake a comparison of the “reasonably foreseeable consequences of continued freedom” with the “obvious consequences of arrest”, Further, in circumstances where:

[61] … continuing freedom (with or without some other available measure) presents a significant risk to attainment of any of the law enforcement results [expressed in s 99(1)(b)(i)-(ix)] … immediate arrest [will] be a proportionate response to that risk and therefore substantially preferable and ‘reasonably necessary’. The police officer is required to assess the situation at hand and make an evaluative judgment.

  1. It is important to understand this reasoning against the background that the arresting police officer in Jankovic had given evidence that he had not turned his mind to alternatives to arrest (see Jankovic at [66]-[68]). It was, therefore, held that, in the circumstances, it was not open to the primary judge to conclude on the evidence that the arresting police officer was actually of the state of mind required by s 99(1)(b) of LEPRA to make lawful the arrest without warrant.

Additional Submissions of SB

  1. The additional submissions of SB, with respect to ground 1, can be summarised as follows:

  1. With respect to the rule in Jankovic, proportionality testing was required. The Court below undertook that task. That task was properly undertaken as an objective assessment of reasonableness (Jankovic at [61]).

  2. The Court below expressed the view that the test was objective, which was consistent with the description of the rule in Jankovic (at [61]). Alternatively, the language of objective assessment was in the introductory part of the judgment and did not diminish the proper consideration of the requisite matters in Jankovic.

  3. In the result, based upon SB’s earlier submissions, and by reason of the complete and proper application of the test in Jankovic, it was submitted that no error should be found with respect to ground 1.

Consideration: Ground 1

  1. The question raised in the proceedings below was the validity of an arrest made without warrant.

  2. As made clear in Randall at [10], the validity of the arrest without a warrant depends upon the satisfaction of three criteria: the first two of which derive from s 99 of LEPRA and the third, which attracted no attention in this appeal, derived from s 201 of LEPRA.

  3. The first criteria is found in s 99(1)(a) of LEPRA. The arresting officer must suspect on reasonable grounds that the person is committing or has committed an offence. There is no dispute that the arrest conformed with the requirements of s 99(1)(a) in this case.

  1. The second criteria is that an officer must be satisfied that it is reasonably necessary to arrest that person for one or more of the stated purposes in s 99(1)(b)(i)-(ix) of LEPRA.

  2. The gravamen of the present appeal, as I have noted, is whether Magistrate Hawdon erred in determining the arrest was unlawful in failing to satisfy the requirement of s 99(1)(b) of LEPRA. There is no issue, on this appeal, that this question was a question of law permissive of an appeal under s 56(1)(c) of the Crimes (Appeal and Review) Act.

  3. Whilst Basten JA was in the minority in Randall, his discussion as to s 99(1)(b) of LEPRA as to the nature of the aforementioned three requirements at [13] stands as authority for the nature of the requirements of that provision.

  4. The provisions of s 99(1)(b) of LEPRA focus attention on the state of satisfaction of the arresting officer, that is, the officers state of mind, not upon the objective verifiable circumstances. The correct question under that provision concerns what the arresting officer thought was reasonably necessary rather than “what the judge thought” who examined the question of validity. That conclusion is supported by the judgments of the NSW Court of Appeal in both Randall and Jankovic, to which I will now turn.

  5. As to those principles, I refer to the judgement of Basten JA in Randall at [13], in which Basten JA observed:

[13] There is a further important distinction to be drawn between the nature of the three requirements. The first has two elements, namely the suspicion held by the arresting officer and, secondly, there being “reasonable grounds” for the suspicion. Most challenges to the validity of arrests turn on whether or not there were reasonable grounds for the suspicion, the grounds being a matter for assessment by the court. By contrast, both the first limb and the second requirement involve a precondition to the exercise of the power of arrest which depends, not upon objectively verifiable circumstances, but on the state of satisfaction of the officer. Accordingly, unlike the requirement for reasonable grounds, a challenge to the existence of a suspicion or state of satisfaction will only be available where it can be shown that the suspicion or state of satisfaction was manifestly unreasonable, or “arbitrary, capricious, irrational, or not bona fide”, as explained by Gummow J in Minister for Immigration & Multicultural Affairs v Eshetu.

[Footnotes omitted.]

  1. Further, at [38], Basten JA found:

[38] This last passage in the reasons, read in the context of the passage set out at [33] above, makes it clear that the judge accepted that the arresting officer did suspect on reasonable grounds that the plaintiff was hindering his investigation, thereby satisfying s 99(1)(a). With respect to the second requirement, the judge was not satisfied that the course of arresting the plaintiff was “reasonably necessary” in relation to that offending. However, the correct question with respect to the second requirement was not what the judge thought, but what the officer thought was reasonably necessary in the circumstances; s 99(1)(b) refers to the officer being “satisfied”. The precondition to the exercise of the power is the officer’s state of mind.

[Footnotes omitted.]

  1. Reference should also be made to his Honour’s findings in Randall at [40] and [41], to which I shall return, having regard to the submissions of SB, as follows:

[40] In effect, the judge made two errors in this regard: first, in finding that the assault did not take place, he failed to address the question as to whether the arresting officer suspected that an assault had taken place and then determine whether such a suspicion (of which the officer gave evidence) was or was not based on reasonable grounds. Having accepted that the officer in fact had a suspicion based on reasonable grounds (as to the offence of hindering), the second error was to approach the further requirement on the basis of his own view of what occurred on the evening in question, rather than by reference to the state of satisfaction of the officer. As noted above, that state of satisfaction could only properly be challenged on the basis that it was arbitrary, capricious or manifestly unreasonable. That test was not applied, no doubt because there was no finding as to the underlying state of mind.

[41] … I accept that the amount in issue is relatively small, given the statutory requirement for leave in relation to any matter involving an amount less than $100,000, but it is commonplace that issues of principle can arise in cases which involve little or no monetary amount. I would give leave to appeal and set aside the judgment on this basis. I would not, however, interfere with the costs order made below.

  1. I do not consider that, in his judgment in Randall, McDougall J reached any different conclusion with respect to those principles, even though his Honour (with the agreement of Sackville JA) reached a different conclusion as to those orders made on the appeal.

  2. McDougall J described ground 2 of the appeal in Randall at [96] as follows:

[96] Ground 2 contends that the primary judge had asked the wrong question in respect of s 99(1)(b). The State said that his Honour had asked himself whether, on the evidence, it had been shown that the arrest was reasonably necessary for one or other of the particularised purposes. The correct question, the State contended, was whether the arresting officer was satisfied that an arrest was reasonably necessary. By extension, the State said that the primary judge erred by failing to consider, or failing to provide reasons for rejecting, the arresting officer’s evidence on that question.

  1. His consideration of that ground commenced at [119] and [120] as follows:

[119] It is not correct to say that the primary judge did not deal with s 99(1)(b). He did. The context of his Honour’s doing so was that he had concluded that Mr Randall had not assaulted Senior Constable Bird. It followed from that conclusion, from his Honour’s rejection of this aspect of the evidence of the police officers, and from the way the trial had been conducted, that in his Honour’s view the arrest could not have been seen as reasonably necessary to prevent Mr Randall from committing further assaults.

[120] That analysis reflects the way in which the parties put the case. I have referred already to para 254 of Mr Spartalis’ closing submissions. He did not identify the “offence(s)”, other than that, from the immediately preceding paragraphs, it is clear that attention was most closely focused on the alleged offence of assault. The submissions did not descend to explaining why, on the evidence, it might have been possible for Senior Constable Bird and Constable Manusu to be satisfied that the arrest was reasonably necessary for any of the particularised purposes. In fact, the primary judge gave this issue more attention in his reasons for judgment than Mr Spartalis had given it in his written submissions.

  1. This is the context in which his Honour concluded at [122] and [123] as follows:

[122] I am by no means persuaded that, as ground 2 contends, the primary judge did substitute his own view for that of the police officers. I think, read fairly, the first of the paragraphs that I have quoted should be taken to say that his Honour simply did not think that there was any basis upon which the police, acting reasonably, could have thought that the arrest was necessary. But regardless, in, dealing with the question in the way he did, the primary judge gave the issue more attention that the submissions for the State had suggested it required.

[123] If there were some technical failure of reasoning (or expression of reasoning) it is not, in the circumstances to which I have referred already, sufficient to warrant the time and cost that would be incurred in a new trial.

  1. Leave was refused for a number of reasons including, relevantly, (at [141]):

[141] The third factor which, in my view, tells against the grant of leave is that the State’s complaints in relation to s 99(1)(a) (and, to a large extent, s 99(1)(b)) stem largely from the way in which the State put its case at trial. As I have tried to explain, acceptance of the submissions now put by the State on s 99(1) would have the effect of permitting it another opportunity to argue the same point, and to improve the presentation of its case. Again having regard to the amount at issue and the likely duration of any new trial, that exercise cannot be justified.

  1. The defendant submitted (in reply submissions) that in relation to ground 1, Magistrate Hawdon should be understood as having concluded that Senior Constable Whitehead's avowed state of satisfaction – that the arrest of SB was reasonably necessary in the terms required by s 99(1)(b) of LEPRA – was legally unreasonable, in the sense that no officer acting reasonably could have been so satisfied. Further, that Senior Constable Whitehead's state of satisfaction was vitiated by an error of law in taking into account extraneous matters relating to the SB's bail conditions.

  2. Counsel for SB contended that there was no relevant distinction between the judgements of Basten JA and McDougall J in Randall as to the circumstances of whether an arresting officer’s satisfaction of relevant matters is amendable to review. In both cases, the standard of review was manifest unreasonableness as used in administrative law cases.

  3. So much may be accepted, but as submitted by the Director, SB’s reliance on an officer’s state of satisfaction being amenable to review on the grounds of reasonableness tends to inappropriately distract attention, in the present case, from the state of satisfaction being a subjective matter, that is, the state of mind of the officer at the time of arrest.

  4. It is also important not simply to assume that concepts of legal unreasonableness developed in administrative law will apply, without modification, to cases concerning s 99(1)(b) of LEPRA. As was made clear by the High Court (per Hayne, Kiefel and Bell JJ) in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (“Minister v Li”) at [67]:

[67] The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

  1. The judgment of Barrett AJA in Jankovic (with whom Macfarlan JA agreed) confirms that the issue requiring consideration under s 99(1)(b) concerns the state of satisfaction of the arresting officer. Thus, at [53] and [54] his Honour stated:

[53] For an arrest without warrant to be authorised by LEPRA, s 99(1), it must be established that, as described in s 99(1)(b), the arresting officer was “satisfied” that the arrest was “reasonably necessary for” any one or more of the “following reasons” stated in the section. An issue as to the officer’s state of mind arises; and it is for the party asserting that the arrest was authorised by the section to show that, at the time of making the arrest, the officer had reached a state of being “satisfied” that the circumstances as a whole made it “reasonably necessary”, for one or more of the stated reasons, that the person concerned be deprived of their liberty.

[54] The party asserting the lawfulness of the arrest must thus prove that the police officer had formed a particular opinion (or state of satisfaction) about the connection, in terms of cause and effect, between depriving the person of their liberty and achieving the results with which the “following reasons” are concerned. The connection is defined by the words “reasonably necessary”.

  1. Further, at [63], his Honour referred to Lule v NSW as follows:

[63] As Beazley P noted in Lule v New South Wales [2018] NSWCA 125 at [2], a police officer’s state of satisfaction “is a subjective matter and must exist as a matter of fact at the time of the arrest”. It is therefore incumbent upon the party seeking to establish the lawfulness of the arrest to lead evidence from which it can be inferred that, at the time of the arrest, the officer was actually of the state of mind that s 99(1)(b) describes.

  1. Barrett AJA above attended to the meaning of “reasonably necessary” in s 99(1)(b). Thus, at [60] and [61] his Honour stated:

[60] That identifies the essence of the “reasonably necessary” criterion in LEPRA, s 99(1)(b). The section imports a requirement of proportionality into police officers’ decision-making. Each of the reasons in s 99(1)(b)(i) to (ix) is expressed in terms of a particular outcome relevant to law enforcement. The reasons are concerned with the risk that lack of constraint upon a person through arrest might frustrate the attainment of one or more of those outcomes and thereby prejudice law enforcement. In Robinson v New South Wales [2018] NSWCA 231 at [164], Basten JA said of the s 99(1)(b)(i) to (ix) 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.

[61] The reasonably foreseeable consequences of continued freedom (either alone or in conjunction with other available measures) are to be compared with the obvious consequences of arrest. That comparison is to be made by reference to the whole of the circumstances prevailing at the time. The comparison will quantify the extent, if any, to which a continuation of freedom creates a risk that the attainment of any one or more of the stated law enforcement outcomes will be jeopardised. Only if, according to an objectively reasonable assessment, continuing freedom (with or without some other available measure) presents a significant risk to attainment of any of the law enforcement results will immediate arrest be a proportionate response to that risk and therefore substantially preferable and “reasonably necessary”. The police officer is required to assess the situation at hand and make an evaluative judgment.

[Footnotes omitted.]

  1. The application of those principles to the facts and circumstances of Jankovic were conveyed in the following passage from Barrett AJA’s judgment (at [67]-[68]):

[67] The primary judge had before him evidence that Leading Senior Constable Drylie had decided before arrival at the applicant’s home that he would arrest her; that the sole reason for the arrest was the breach of the apprehended violence order (which caused him to be concerned for the complainant who, he thought, was thereby exposed to risk); and that he did not turn his mind to the alternative of issuing a court attendance notice. That evidence, coupled with the absence of evidence that the police officer had considered any other alternative course of action, showed that he did not engage at all in the process of comparison and evaluation called for by LEPRA, s 99(1)(b) and did not address in any way the question whether arrest (the course he had decided upon in advance) was a proportionate response to a risk that he perceived upon coming into contact with the applicant — or, indeed, that his contact with the applicant had given him cause to think that she presented any risk. In the short conversation that took place after the police officers’ arrival and before the arrest (see [64(5)] above), the applicant readily admitted that she had sent the text message and gave an explanation that did not indicate any intention of committing further wrongdoing. Her statement, “Yes, I’m sick of her getting people to harass me” explained why she had sent the offending text message. It did not indicate any possibility of future action. There was nothing to suggest that the police officer was aware of any violence between the applicant and the complainant. The offending text message (which he had read) did not threaten violence. It said that legal proceedings would be commenced in some months’ time.

[68] The primary judge’s positive finding that Leading Senior Constable Drylie “was satisfied that the arrest was reasonably necessary in order to stop any further commission of offences” had no foundation in the evidence at his Honour’s disposal.

  1. In my view, Magistrate Hawdon posed for herself the wrong question in determining the validity of the arrest. Her Honour asked whether she was satisfied, on an objective basis, that the arrest of SB was reasonably necessary.

  2. The comparable error to that focused in Randall at [38] and [39] is evident here. Magistrate Hawdon approached s 99(1)(b) of LEPRA by asking whether she was satisfied that the arrest was “reasonably necessary”, but failed to bring to account the evidence of Senior Constable Whitehead as to why she believed it was necessary to arrest SB. In fact, her Honour made no finding that Senior Constable Whitehead’s evidence, as to her state of satisfaction, should be rejected.

  3. Nor was the approach of her Honour consistent with the judgment in Jankovic, where in Barrett AJA referred to the consideration of “reasonably necessary” as an objective test. That is because her Honour did not consider that issue through the prism of the state of mind of the arresting officer. Nor do I accept that the language of objective assessment used by her Honour was merely an introductory part of the judgement and did not diminish the proper consideration of relevant issues. That is not evident from her Honour’s judgment, either by the words in opening (by reference to an objective assessment) or later in the judgment. Her Honour’s assessment was whether she was “satisfied in all the circumstances, that the arrest was proportionate or necessary”.

  4. Section 99(1)(b) of LEPRA expressly directed attention to the state of mind of the arresting officer. This contention is supported by the amendments to the section in 2013, which replaced the language of the former s 99(3) of LERPA, which stated, "the police officer suspects on reasonable grounds", with the language now found in s 99(1)(b), "the police officer is satisfied".

  5. That conclusion is, in my view, sufficient to uphold the first ground. However, I note that the same conclusion may be reached if the Court was required to consider the question of Wednesbury reasonableness raised by the defendant.

  6. Without attempting to delineate the extent of the concepts of legal unreasonableness in this case, there is some force in the submissions of SB as to the scope of review of the exercise of a statutory power enlivened upon the decision maker’s satisfaction of a state of affairs. Further, in broad terms, Avon Downs and Buck v Bavone, when applied to the present case, would tend to direct attention to the matters that the arresting officer took into account in reaching the avowed state of mind.

  7. However, there are some important, further considerations upon the question of the review of legal reasonableness here.

  8. The circumstances in which any decision may be reviewed on grounds of legal unreasonableness are narrow. In Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36, Brennan J described the basis for challenging an exercise of power as “extremely confined”. That was because a standard of legal unreasonableness assumed "an area of decisional freedom” within which "reasonable minds may reach different conclusions about the correct or preferable decision". Further, Gageler J observed the following in Minister v Li at [108]:

[108] Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy.

  1. Further, whether it is necessary to arrest a person involved matters of opinion and policy, the assessment of which has been expressly assigned and reserved to the police officer exercising the power by s 99(1)(b). It will be “very difficult” to show that a police officer erred in making that kind of assessment – and “[t]hat other decision-makers may have reached a different view, and have done so reasonably, is not to the point” (Eshetu at [147]).

  2. It is ultimately unnecessary to decide upon the scope and extent to which concepts of legal unreasonableness should be applied in the review of a police officer’s state of mind or satisfaction for the purposes of s 99(1)(b). That is so because Magistrate Hawdon did not consider whether, and did not find that Senior Constable Whitehead’s evidence should be rejected or the avowed state of mind was unreasonable (or capricious or irrational). Whilst it is conceivable that a decision to arrest may involve an evaluative judgment in a particular case as to whether immediate arrest is a “proportionate response to the risk posed by continuing freedom” was unreasonable, no such determination was made in the present case.

  3. Further, it may be inferred from the evidence and Magistrate Hawdon’s decision that Senior Constable Whitehead had the requisite state of mind. Magistrate Hawdon found that Senior Constable Whitehead felt it was necessary to vary her bail and to protect workers from the Department of Housing, her Honour found that Senior Constable Whitehead acted to “protect the safety of Housing Commission workers”.

  4. There was no challenge to Senior Constable Whitehead’s state of mind in carrying out the arrest. It was submitted by the Director that “relatedly” Senior Constable Whitehead saw the “need to prevent SB from committing further offences”.

  5. SB submitted that this submission tended to elide Magistrate Hawdon’s reference to the arresting officers’ perception as to whether it was necessary to vary SB’s bail condition and that this was foremost in Senior Constable Whitehead’s mind – the conditions of s 99(1)(b) of LEPRA were primarily fulfilled by reference to this consideration.

  6. SB further submitted that that paramount consideration in Senior Constable Whitehead’s mind did not meet the requirements of s 99(1)(b) of LEPRA. This involved the officer taking into account “extraneous reasons”. This was, therefore, an error of law. Further, Magistrate Hawdon should be taken as finding that no officer, acting reasonably, could be taken to have so satisfied, having regard to the legal principles of arrest, SB’s age, the non-seriousness of the offence and the passage of time between the threat of the offending incident and the arrest.

  7. I do not accept those submissions on two bases:

  1. In seeking to protect the safety of staff members of Housing NSW, Senior Constable Whitehead acted within s 99(1)(b)(viii) of LEPRA. The evidence indicated that there had been multiple incidents of items being thrown at staff members of Housing NSW from the Windale address. Senior Constable Whitehead gave evidence of her understanding that those staff members required protection and that such protection was required more immediately than the issuing of a future Court Attendance Notice would allow. The reason was, at least partly, because staff members of Housing NSW were required to attend the vacant property neighbouring the Windale address and the behaviour of SB was preventing them from doing so. Not only did her Honour not reject this evidence, her Honour appeared to have accepted it.

  2. Senior Constable Whitehead's evidence was that, on the basis of her discussion with Senior Constable Ell, more stringent bail conditions were required “to get [SB] out of that location [at Windale] and associating with people there”, so as to stop SB from “continuing to commit offences”. Thus, the issue of SB's bail conditions prior to her arrest was relevant, as Senior Constable Whitehead explained, to whether SB would continue committing offences. It was not an extraneous matter and there was no error of law in Senior Constable Whitehead considering the efficacy of the SB's bail conditions in preventing further offences.

  1. In the result, the Director correctly submitted that this is not a case that no officer acting reasonably could have been satisfied that arresting SB was reasonably necessary.

  2. The result in Jankovic may immediately be distinguished from the present case. Senior Constable Whitehead was asked in cross-examination whether she “consider[ed] a different way of charging” SB. Her answer was “[o]f course” and she then detailed her view as to why proceeding by way of future Court Attendance Notice would have risked SB committing further offences and/or further endangered the safety of staff members of Housing NSW.

  3. Ultimately, the Court below did not make a finding that the evaluative judgment or state of satisfaction reached by police was unreasonable in the sense understood in Jankovic. Further, I do not consider that, upon SB’s Notice of Contention, it may be concluded that Senior Constable Whitehead’s state of mind was unreasonable in the sense contemplated in the preceding discussion of law and principle. Thus, it may not be properly found on the material before the Court that no officer acting reasonably could have been satisfied that the arrest of SB was reasonably necessary.

  4. The appeal should be upheld based upon ground 1 of the appeal.

GROUND 2

By reasoning that it is "not sufficient" that s 99 of LEPRA be "complied with to the letter", the court below erroneously imported a criterion of "appropriateness", which is extraneous to the statutory scheme.

Submissions of the Director

  1. With respect to ground 2, the Director’s primary submissions may be summarised as follows:

  1. The Court below appears to have accepted that the arrest of SB did not involve any non-compliance with s 99 of LEPRA. Her Honour stated there was “no real dispute” about that compliance. However, her Honour considered that “the fact that s 99 may have been complied with to the letter is not sufficient [and the] appropriateness of the arrest must also be considered”.

  2. The Director further submitted that, if the requirements of s 99 of LEPRA were complied with, it was not open to her Honour to find that the arrest was unlawful. LEPRA is to be interpreted in light of the common law, which is preserved by s 4. But the power to arrest without warrant in s 99 of LEPRA is not limited by reference to the common law (s 7 of LEPRA). The various requirements of s 99 have given effect to common law principles. Therefore, the Director contended, it was erroneous to look beyond the terms of s 99 for some free-standing criterion of appropriateness to determine the lawfulness of an arrest.

Submissions of SB

  1. The primary submissions made by counsel for SB, with respect to ground 2, were, in summary, as follows:

  1. It should not be accepted that her Honour erred by importing “some free-standing criteria of appropriateness” into the determination of whether or not the power to effect a warrantless arrest, conferred in s 99 of LEPRA, was validly exercised.

  2. Reference was made to the following statement of the Court below:

[T]he fact that s 99 may have been complied with to the letter is not sufficient [and the] appropriateness of the arrest must be considered.

…

I am not satisfied in all the circumstances, that the arrest was proportionate or necessary.

  1. The reasoning in the above statements is directly analogous to the reasoning of French CJ in Minister v Li. A rational compliant “to the letter” decision may be unreasonable. To the extent that the Court below used the word “appropriateness” in a step in her reasoning to an ultimate determination as to proportionality, the expressions of that word do not amount to error.

  2. Her Honour’s reasons should be read beneficially, without an eye for error (see Wu Shan Liang at 272). A busy Court giving ex tempore judgment on the day of hearing should be afforded some latitude in their expression (see Acuthan v Coates (1986) 6 NSWLR 472 at 479; and Munro v ACP [2012] NSWSC 100 at [75]).

  3. Further, counsel for SB contended that, it is well-established, in respect of LEPRA as currently enacted and its precursors (principally, s 352 of the Crimes Act) that literal fulfilment of the statutory preconditions to arrest is not of itself sufficient to validate the exercise of the statutory power.

  4. Section 99 of LEPRA provided that, in circumstances where the enumerated criteria were satisfied, an officer “may” arrest a person. The use of the word “may”, if used to confer a power, indicated that the power may be exercised or not, at discretion (s 9 of the Interpretation Act 1987 (NSW)). The literal fulfilment of the statutory pre-conditions, therefore, conferred a discretion on an officer to make an arrest in exercise of the statutory power (Zaravinos at [24] and [28] per Bryson JA (with Santow JA and Adams J agreeing).

  5. In order for the power in s 99 to be validly exercised, there must be an exercise of the discretion alluded to by the word “may”, and it must be an effectual exercise. Literal fulfilment of s 99(1) is not enough (Zaravinos at [24]; see also Fleet v District Court at [74]). In that respect, her Honour’s conclusion, properly construed, was that no officer acting reasonably could have resolved to exercise the discretion to arrest the young person in all the circumstances of this case.

  6. Her Honour reached that conclusion having regard to, in particular, the fact that SB was a child. Specific considerations applied to the exercise of the power of warrantless arrest in the circumstance that the offender is a child. Those principles can be summarised as follows:

  1. arrest should be reserved for circumstances in which it is clearly necessary (Lake v Dobson (Unreported, Court of Appeal, (NSW), Samuels J, 19 December 1980);

  2. arrest is inappropriate when service of a summons will suffice (Fleet v District Court at [74]), which was clearly so in the circumstances of this case, where the SB's name and address are known, where there is no risk of her departing and where there is no reason to believe that the summons will not be effective: see Daemar v Corporate Affairs Commission; Corporate Affairs Commission v Daemar [1990] NSWCA 51 at 1 and DPP v Carr; and

  3. the fundamental purpose of arrest is to commence criminal proceedings (Robinson v NSW at [46] and [136] (per McColl JA and Basten JA, respectively), and commencement of criminal proceedings against children should only be by way of summons (s 8(1) of the Children (Criminal Proceedings) Act 1987 (NSW), except in the circumstances contemplated in s 8(2), none of which apply here).

  1. Her Honour also observed that variation of bail conditions, not being enumerated among the purposes for which the power to arrest without warrant is conferred in s 99(1) of LEPRA, was not a permitted purpose for the exercise of the discretion. To the extent that the officer's exercise of the discretion in s 99 was influenced by bail considerations, that is not a proper purpose for arrest. Variation of bail is a power reserved to courts and authorised justices (under Pt 5 Div 3 of the Bail Act 2013 (NSW)) and could thus form no part of the exercise of the discretion to use the arrest power conferred by s 99 of LEPRA.

  2. Her Honour observed that the offence was a minor one, and had occurred one week earlier, such that the matters in s 99(1)(b)(i) and s 99(1)(b)(ix) were not weighty enough to justify a decision to exercise the discretion. Whatever evidence the officer may have given about wanting some degree of “immediacy”, the officer could not possibly have thought that there was an imminent threat of anything, given the officer's willingness to wait seven days before taking action.

  3. Her Honour further noted that there were several less intrusive steps available to the officer to attend to the welfare of the Department of Housing Staff without arresting SB. While her Honour did not enumerate them, they included:

  1. taking steps to amend SB’s bail, including by attending the Children's Court that morning; or

  2. asking SB to come voluntarily to the police station, where she might be charged for the new offence and where a new bail condition could be imposed, pursuant to s 41 of the Bail Act, to keep SB away from the Department of Housing premises; or

  3. seeking an apprehended violence order preventing SB from going near the Department of Housing premises.

Consideration: Ground 2

  1. Her Honour found that there was no real dispute about compliance with s 99 of LEPRA but, nonetheless, found that “the fact that s 99 may have been complied with to the letter is not sufficient [and the] appropriateness of the arrest must also be considered”.

  2. Section 99 of LEPRA confers a discretion upon a police officer to exercise the power to arrest a person in circumstances where the preconditions to the power are fulfilled. However, I agree with the submissions for the Director, that SB’s submissions erroneously sought to draw from the existence of that discretion, the notion of an “effectual exercise” of the discretion, such that a separate basis for review may be undertaken on the grounds of objective appropriateness.

  3. LEPRA is to be interpreted in the light of the common law (see s 4 of LEPRA and Robinson v NSW at [40]) but the power to arrest without warrant in s 99 of LEPRA is not limited by reference to the common law (see s 7 of LEPRA; Robinson v NSW at [40] and [44] (per McColl JA)). The various requirements of s 99 give effect to common law principles (see State of New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194 at [103] per McColl JA (with Leeming JA and Sackville AJA agreeing).

  4. The submissions by SB tend to conflate the concepts of appropriateness and lawfulness. In Zaravinos (at [24]), the Court referred to “literal fulfilment” of the requirements of the power to arrest under s 352 of the Crimes Act being insufficient in circumstances where, notwithstanding that the arrested person was, in fact, suspected of an offence on reasonable grounds, the power to arrest was exercised otherwise than in good faith or for a purpose other than that for which the power was conferred. In Zaravinos, Bryson JA stated (at [34] and [37]):

[34] On behalf of the defendants it was contended to the effect that, whereas the power to arrest without warrant is discretionary, the discretion referred to was only relevant to the decision to arrest or not to arrest, and did not relate to a decision whether to arrest or to proceed by Summons. It was contended that Fleet v. District Court of New South Wales, to which the Trial Judge referred, was not authority for the proposition that a wrongful arrest could be committed in circumstances where the arrest itself was lawful, meaning that it fell within subs.352(2)(a). This contention is correct: in Fleet Handley JA (with whom Mason P and Priestley JA concurred), observed at [73] “Lawfulness of arrest is one thing, appropriateness is another” and made observations which show the importance of the distinction, but his Honour regarded it as inappropriate to express any view as to the lawfulness of the claimant’s arrest (see [72]).

…

[37] In the present case the burden of proof that the arrest and detention were lawful fell on the defendants under the defence of justification which was attributed to them. Even if the circumstances mentioned in subs.352(2)(a) exist, the lawfulness of the arrests of Mr Zaravinos are examinable, and the arrests were not lawful unless each decision to arrest was made in good faith and for the purposes for which the power to arrest exists, that is, the purposes of bringing the person arrested before a Justice and conducting a prosecution; and not for some extraneous purpose. Arresting a person for the purpose of questioning him and investigating the circumstances of the suspected offence or of any other offence is arrest for an extraneous purpose. It is even more clearly an extraneous purpose to arrest a person as a piece of unnecessary highhanded and humiliating behaviour in circumstances in which arrest is not reasonably necessary for the effective conduct of a prosecution. The availability of Information and Summons as an alternative course, and the considerations favouring and adverse to taking that alternative course, are relevant where the validity of the exercise of the power to arrest is in question.

[Emphasis added.]

  1. Contrary to the approach that her Honour took in the present case, an arrest without warrant must be lawful; it is not to be reviewed by a further requirement of appropriateness. In my view, her Honour erred in proceeding in such a manner.

  2. Further, this is not the case where no officer acting reasonably could, as I have found, have resolved to exercise the discretion in the manner exercised by Senior Constable Whitehead. Nor did her Honour make such a finding.

  3. I uphold ground 2 of the appeal.

SUBMISSIONS REGARDING THE REMITTAL OF PROCEEDINGS

  1. Counsel for SB contended that in the circumstances that the Court is satisfied that only one conclusion was open to her Honour, then the Court should decline to remit the matter, even if error is discerned (see RH v Director of Public Prosecutions (NSW) (2014) 244 A Crim R 221; [2014] NSWCA 305 at [43]). Counsel for SB submitted that the conclusion that no officer, acting reasonably, could have been satisfied that the arrest was reasonably necessary is a compelling conclusion.

  2. Furthermore, it was submitted that the evidence below did not even establish the necessary subjective state of mind. 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: see Robinson v NSW at [59].

  3. The plaintiff further submitted that, as the Magistrate observed, the comments of Dixon J in Briginshaw v Briginshaw are relevant. In particular, at 361, his Honour stressed that the decision-maker must feel "an actual persuasion" of the occurrence or existence of a relevant fact. That is, the subjective element of s 99(1)(b) required the arresting officer to feel an actual persuasion that it was reasonably necessary to arrest SB.

  4. The plaintiff contended that the officer did not say so in terms. Her written statement was silent on the issue. Her oral evidence rose no higher than that she “thought housing was saying that they needed their staff protected” and that the officer “wanted something more immediate to get her out of that location”. This falls far short of being actually persuaded that arrest is reasonably necessary. Furthermore, the officer's principal reason for arrest, it appears, is a view about SB's bail conditions, which would not provide an independent reason to arrest. Beazley P in Lule v NSW at [5], stated:

[5] … the statement that the arrest was for the protection of the victim, has the appearance of no more than a convenient justification for, or one might even say ‘label’ to justify, the arrest, rather than the formation of a state of satisfaction that the arrest was necessary for that reason.

  1. I do not accept those contentions. The Director was correct to contend that this is not a case in which only one conclusion was open to the Court below.

  2. As I have found, it was Senior Constable Whitehead's state of mind that was relevant to the fulfilment of the requirement in s 99(1)(b) of LEPRA. Senior Constable Whitehead gave evidence that she was satisfied that arresting SB was necessary to protect the workers from Housing NSW and, in effect, to prevent SB from committing further offences, which Senior Constable Whitehead expected would be committed if SB remained at the subject location with poor associations. Senior Constable Whitehead’s evidence was not rejected. Nor was it, in effect, challenged. It was not necessary for Senior Constable Whitehead to repeat the terms of the statute when giving evidence as to her state of satisfaction. In substance, Senior Constable Whitehead made it clear in her evidence that she was persuaded that the arrest of SB was necessary.

  1. It is a matter for the Local Court to determine whether, applying the correct legal principles, the offences against SB were proved (Council for the City of Lake Macquarie v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387 at [61] per Johnson J). In the circumstances, I do not consider this Court should – whether by its own satisfaction or on the basis of SB’s Notice of Contention – decline to remit the matter on the Director’s application, despite error having been established, on the basis that the conduct of Senior Constable Whitehead was “so devoid of any plausible justification” or “so outrageous” as to be unreasonable in the relevant sense (see Associated Provincial Picture Houses v Wednesbury [1948] 1 KB 223 at 230; London Borough Council v Greater London Council [1983] 1 AC 768 at 821; and Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at 410-411), or on the basis that Senior Constable Whitehead’s evidence was insufficiently precise.

  2. The proceedings should be remitted back to the Local Court of NSW.

CONCLUSION

  1. In the circumstances, the appeal should be upheld, orders made setting aside the orders of the Court below and the matter be remitted to the Local Court. Given the questions of legal principle involved, I shall reserve the question of costs.

ORDERS

  1. I make the following orders:

  1. The appeal is allowed.

  2. Pursuant to s 59(2) of the Crimes (Appeal and Review) Act, the order of Magistrate Hawdon, made on 23 October 2018, at Broadmeadow Children's Court dismissing proceedings against SB for the offences of assault police officer in execution of duty, contrary to s 60(1) of the Crimes Act and resist/hinder police officer in execution of duty, contrary to s 546C of the Crimes Act, be set aside.

  3. An order that the matter be remitted to the Broadmeadow Children’s Court to be dealt with according to law.

  4. Costs are reserved.

Decision last updated: 12 June 2020

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