Donaldson v Broomby

[1982] FCA 53

Re: ROBERT ALEXANDER DONALDSON
And: IAN COLLINGS BROOMBY (1982) 60 FLR 124
No. ACT G30 of 1981
False Imprisonment - Appeal - Statutes

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY REGISTRY
GENERAL DIVISION
Deane(1), Fisher(2) and Kelly(3) JJ.

CATCHWORDS

False Imprisonment - power to arrest without warrant where suspected past breach of a law of Commonwealth or Territory - conditions precedent to the existence of the power

Appeal from Australian Capital Territory - inconsistency of Commonwealth Act, Ordinance of A.C.T. and continued operation of N.S.W. Act - whether the effect of such inconsistency is implied repeal.

Limitation of Action - notice required where arrest was "reasonably supposed to have been done" in pursuance of N.S.W. Act - whether the provision of N.S.W. Act must be operative in the Territory - mistake not as to effect of provision but as to existence - quantum of damages.

Crimes Act, 1914 (Comm.), s.8A

Crimes Act, 1900 (N.S.W.), ss.352,563

Police Ordinance (A.C.T.), 1927, s.18(e)

Seat of Government Acceptance Act, 1909, s.6(1)

Seat of Government (Administration) Act, 1910, s.4

Police - Power to arrest without warrant in Australian Capital Territory - Suspected past offence - Inconsistent legislation - Implied repeal - Crimes Act 1914 (Cth), s. 8A - Crimes Act, 1900 (N.S.W.), s. 352 - Police Ordinance 1927 (A.C.T.), s. 18(e).

Statutes - Interpretation - "This Act" - Whether referring also to that part of "this Act" which had ceased to operate in Australian Capital Territory - Crimes Act, 1900 (N.S.W.), s. 563(1).

HEADNOTE

The appellant was arrested, without warrant, in 1976 by the respondent, an officer of the Australian Capital Territory police force, for a suspected past offence notwithstanding that the respondent did not believe that a summons would be ineffective.

The appellant sued the respondent seeking damages for, inter alia, wrongful arrest but failed to give the respondent notice in writing of the action or of the cause thereof at least one month before the commencement of the action as required by s. 563(1) of the Crimes Act, 1900 (N.S.W.). The action having been dismissed because of that failure, the appellant appealed to the Full Court of the Federal Court of Australia.

Held: Per Deane and Kelly JJ. - (1) The provisions of s. 352 of the Crimes Act, 1900 (N.S.W.), in its application to the Australian Capital Territory, and of s. 18(e) of the Police Ordinance 1927 (A.C.T.), at least to the extent to which they would confer a power to arrest without a warrant on a constable in respect of a suspected past offence, are inconsistent with the provisions of s. 8A of the Crimes Act 1914 (the Act) and ceased to have effect in the Australian Capital Territory, at the latest, at the time of the 1960 amendment to s. 8A of the Act.

Webster v. McIntosh (1980), 49 FLR 317, followed.

(2) The only general power of arrest without warrant possessed by a member of the police force in the Australian Capital Territory in respect of a suspected breach of a law of the Territory is that contained in s. 8A of the Act.

(3) The specified circumstances in which a constable may, without warrant, arrest a person for a suspected past breach of a law of the Commonwealth or of a Territory, including the Australian Capital Territory, are that the constable has reasonable ground to believe that the person has committed an offence against such a law and that "proceedings against the person by summons would not be effective".

(4) The test of the existence of reasonable ground to believe is an objective one.

(5) Per Deane and Kelly JJ., Fisher J. dissenting - In the present case the respondent had no reasonable grounds to believe that proceedings against the appellant by summons would not be effective and the arrest of the appellant by the respondent was unlawful.

Per Deane and Kelly JJ. - (a) The reference to "this Act" in s. 563(1) of the Crimes Act, 1900 (N.S.W.), in its application to the Australian Capital Territory, should be read as a reference to those provisions of the Crimes Act, 1900 (N.S.W.) which have effect in the Australian Capital Territory as distinct from provisions which, being part of the Crimes Act, 1900 (N.S.W.), had never operated as a law of the Territory or had ceased so to operate. (b) The respondent was not entitled to rely on the provisions of s. 563 of the Crimes Act, 1900 (N.S.W.) in their operation as part of the law of the Australian Capital Territory in respect of something done or reasonably supposed to have been done, in the Territory, in purported pursuance of a specific provision of the Crimes Act, 1900 (N.S.W.) which was not operative within the Territory. (c) The appeal should be allowed. Vincent v. Tauranga Electric-Power Board, (1936) NZLR 1016; Midland Railway Co. v. Withington Local Board (1883), 11 QBD 788; Liversidge v. Anderson, (1942) AC 206; Little v. Commonwealth (1947), 75 CLR 94; Marshall v. Watson (1972), 124 CLR 640; Hamilton v. Halesworth (1937), 58 CLR 369, referred to. Selmes v. Judge (1871), LR 6 QB 724; Greenway v. Hurd (1792), 4 TR 553; 100 ER 1171; Waterhouse v. Keen (1825), 4 B & C 200; 107 ER 1033, distinguished. Hazelton v. Potter (1907), 5 CLR 445, applied. Duncan v. Theodore (1917), 23 CLR 510, considered.

HEARING

Canberra, 1981, October 15-16; 1982, April 23. #DATE 23:4:1982

APPEAL.

Appeal from a judgment of the Supreme Court of the Australian Capital Territory (Franki J.) to the Full Court of the Federal Court of Australia.

K. E. Enderby Q.C. and N. R. Burns, for the appellant.

J. R. Dunford Q.C. and J. S. Hilton, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Higgins Faulks & Martin.

Solicitor for the respondent: Deputy Crown Solicitor of the Commonwealth.

E. F. FROHLICH

ORDER

1. THE appeal be allowed.

2. THE Orders of the Supreme Court of the Australian Capital Territory be set aside and in lieu thereof order:

(i) judgment in the amount of $1000 be entered in favour of the plaintiff Robert Alexander Donaldson against the defendant Ian Collings Broomby;

(ii) that the defendant pay to the plaintiff his costs of the action and that, notwithstanding the provisions of O.65 r.7A of the Rules of the Supreme Court of the Australian Capital Territory, such costs be taxed on full scale.

3. THE respondent pay the appellant's costs of the appeal.

JUDGE1

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.

Special considerations apply to arrest without warrant in a case where an offence is threatened or is actually being committed or where the offender is apprehended immediately or on fresh pursuit after the offence. In those cases, powers of arrest without warrant have long been recognized by the common law or by statutory provision (see, e.g., Criminal Law Amendment Act, 1883 (N.S.W.)) as necessary to prevent injury to the person or property of others, to preserve the peace or to identify the wrong-doer. Such considerations are not however present when what is involved is arrest as a step towards committal proceedings or trial on a charge of a past offence. In such cases, the general common law power of arrest without warrant was restricted to suspected treason or felony. A police constable had power to arrest without warrant in a case where he suspected on reasonable grounds that the arrested person had committed treason or a felony (see, generally, Beckwith v. Philby (1827) 6 B. & C. 635; 108 E.R. 585; Walters v. W.H. Smith & Son Ltd. (1914) 1 K.B. 595 at p. 602; Nolan v. Clifford (1904) 1 C.L.R. 429 at pp. 444-5). Today, the general power of a police officer to arrest without warrant for a past offence is, in the case of the Australian States and Territories, to be found in statutory provisions which have displaced the common law power. The primary question involved in this appeal concerns the present extent of that general power in the Australian Capital Territory. In referring to a police officer's "general" power to arrest without warrant I intend to exclude reference to the special powers of arrest without warrant which may exist in the special circumstances to which reference has already been made or which may exist in what, rightly or wrongly, have been seen as special cases in which specific statutory powers of arrest without warrant should be conferred (see, e.g., Halsbury, 4th Ed. Vol. 11 paras. 113 and 114).

As initially enacted, the Commonwealth Crimes Act, 1914 ("the Act") contained no provision conferring or defining powers of arrest without warrant. Such a provision was introduced when s.8A was inserted in the Act by amendment in 1926. In its original form, s.8A dealt with the power of a constable to arrest for a suspected past breach of "a law of the Commonwealth". With the benefit of the hindsight provided by subsequent authority (Spratt v. Hermes ((1965) 114 C.L.R. 226), the reference to "a law of the Commonwealth" may have been sufficient to embrace a law of the Australian Capital Territory: in the context of the decision in R. v. Bernasconi ((1915) 19 C.L.R. 629) however, it must be doubtful whether it would be a proper exercise in legal interpretation to discern a legislative intent to that effect. Be that as it may, s.8A was amended in 1960 by adding the words "or a Territory" after the words "a law of the Commonwealth". Since that amendment, s.8A of the Act has specified, in readily available and reasonably clear general terms, circumstances in which a constable may, without warrant, arrest a person for a suspected past breach of a law of the Commonwealth or of a Territory, including, the Australian Capital Territory. The specified circumstances are that the constable has reasonable ground to believe that the person has committed an offence against such a law and that "proceedings against the person by summons would not be effective". In the absence of reasonable ground to believe that proceedings by summons would not be effective, the conditions precedent to the existence of the general power of arrest without warrant contained in s.8A will not be satisfied. In an environment where words are to be taken as meaning what they say, the test of the existence of reasonable ground to believe is an objective and not a subjective one (but cf.Liversidge v. Anderson (1942) A.C. 206 and Little v. The Commonwealth (1947) 75 C.L.R.94 at p. 104). In such an environment, s.8A evidences an unmistakable legislative intent that any general power of a constable to arrest without warrant for a suspected past offence against a law of the Commonwealth or a Territory should be conditional upon the existence of the circumstances which the section prescribes.

On 20 August, 1976, Ian Collings Broomby, an Inspector in the Australian Capital Territory Police Force ("the Force"), arrested Robert Alexander George Donaldson, a sergeant in the Force. No warrant had issued for that arrest. The background circumstances leading up to it are somewhat complicated. They are largely irrelevant to the legal issues involved in this appeal. It suffices to say that Inspector Broomby suspected that Sergeant Donaldson was guilty of larceny of a number of items of personal property and that Sergeant Donaldson was subsequently charged with, inter alia, taking some police badges and ammunition out of the possession of the Commonwealth. In so far as the legal issues involved in the present appeal are concerned, the important fact relating to the arrest is that Inspector Broomby plainly had no reasonable ground to believe - and, in fact, did not believe - that proceedings against Sergeant Donaldson by summons would not be effective. That being the case, the arrest of Sergeant Donaldson could not be justified under s.8A of the Act.

The ordinary citizen may well be excused for assuming that the practice of the Force in the Australian Capital Territory would, at least after 1960, have conformed with the clear legislative intent appearing from s.8A of the Crimes Act that a person should only be arrested without warrant for a past offence against a law of the Commonwealth or a Territory if the arresting constable has reasonable ground to believe that proceedings by summons would be ineffective. The evidence indicates, however, that such an assumption would have been gravely mistaken. Inspector Broomby gave evidence that, at least during the period 1970 to 1978 when he was associated with the Criminal Investigation Department of the Force, all criminal matters involving adults in the Australian Capital Territory were, "almost without exception", commenced by way of arrest and charge regardless of whether proceedings by summons would be effective. It would seem that the conditions of arrest without warrant which had been laid down by the Parliament in s.8A of the Act were ignored. If Inspector Broomby's evidence is accepted, justification for this approach was sought in the provisions of prior New South Wales legislation which was thought to apply in the Australian Capital Territory (Crimes Act, 1900 (N.S.W.) s.352) and of subordinate legislation of the Territory (Police Ordinance (A.C.T.) 1927, s.18(e)). It is by reference to those provisions that Inspector Broomby seeks, in the present case, to justify the arrest without warrant of Sergeant Donaldson.

When the Australian Capital Territory was established in 1911, s.352 of the Crimes Act, 1900 (N.S.W.) ("the N.S.W. Crimes Act") defined the general powers of arrest without warrant in New South Wales. Section 352, as enacted, was a consolidating provision. For present purposes, it provided:
"352. (1) Any constable or other person may without warrant apprehend,

(a) Any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act,

(b) any person who has committed a felony for which he has not been tried, and take him and any property found upon him, before a justice to be dealt with according to law.

(2) Any constable may without warrant apprehend

(a) Any person whom he, with reasonable cause, suspects of having committed any such crime,

(b) any person lying, or loitering, in any highway, yard, or other place during the night, whom, he, with reasonable cause suspects of being about to commit any felony,

and take him, and any property found upon him, before a justice to be dealt with according to law".
In Nolan v. Clifford (supra), it was held by the High Court that the reference to "any such crime" in s.352(2)(a) should be read, in the context of the previous law, as being restricted to felony and that, under the section, a constable possessed no general power of arrest where the suspected past offence was a misdemeanour. That position was altered in 1924 when the N.S.W. Parliament amended s.352. That amendment was not, however, adopted in the Territory and is irrelevant for present purposes.

The provisions of s. 352 of the N.S.W. Crimes Act continued in effect in the Territory, after its establishment, under the combined operation of s.6(1) of the Seat of Government Acceptance Act, 1909 and s.4 of the Seat of Government (Administration) Act, 1910. That continuation was, under s.6(1) of the Seat of Government Acceptance Act, "until other provision is made". Under the provisions of s.4 of the Seat of Government (Administration) Act, the continued provisions were subject to any Ordinance made by the Governor-General and had effect in the Territory as if they were "a law of the Territory". In the result, the operation of the provisions of s.352 in the Territory could, from the establishment of the Territory, be modified or terminated by express provision of, or repugnancy to, any Act of the Parliament or Ordinance made by the Governor-General.

Section 18 of the Police Ordinance, 1927, being an Ordinance made by the Governor-General, conferred, in express terms, powers of arrest without warrant upon members of the Police Force of the Territory. The section provided that any member of the Police Force, without any warrant other than the Ordinance, at any hour of the day or night, may apprehend a wide variety of descriptions of persons including (s.18(e)) "any person whom he has reasonable cause to suspect of having committed, or being about to commit, any offence". Subject to the possibility of initial inconsistency with s.8A of the Crimes Act, the provisions of s.18(e) extended and defined the general power of a member of the Police Force to arrest without warrant for a suspected past offence.

In Webster v. McIntosh ((1980) 32 A.L.R. 603), a Full Court of this Court held that, whatever may have been the position prior to 1960, s.8A of the Crimes Act in its amended form effectively defined any general power of a constable to arrest without warrant in respect of a past offence against the laws of the Territory and prescribed the conditions governing the existence of that power. It was held by the Court that the conditions prescribed by s.18(e) of the Police Ordinance, 1927 authorising arrest without warrant in respect of a suspected past offence were, in the relevant sense, repugnant to the provisions of s.8A of the Act and were not presently in force in the Territory. It was unnecessary in that case, as it is in the present, to determine whether the relevant provisions of s.18(e) were invalid ab initio as being inconsistent with s.8A of the Act in its original form or whether they had only become inoperative, by reason of inconsistency, after the 1960 amendment had made clear the intention of Parliament that the power of a police officer to arrest without a warrant for a past offence against a law of the Territory should be subject to the conditions which s.8A defined.

The reasoning underlying the decision in Webster v. McIntosh (supra) appears from the following extracts from the judgment of Brennan J. (ibid at p. 607) in which Kelly J. and I concurred:
" Liberty ends where the power of arrest begins. There is a legal immunity from arrest and from the threat of arrest unless and until the conditions governing the exercise of the arresting power are fulfilled. The extent of this immunity, no less than the extent of the power of arrest, is fixed by the laws prescribing these conditions; for immunity and the power to arrest are correlatives, and laws which define the power measure the immunity.

When two laws each purport to create a general power to arrest in the same place with respect to the same offence or class of offences, but impose different conditions for the exercise of those powers, then the laws are inconsistent and one of them must yield, unless it be possible to construe the laws together, reading down one or both of them to give them a complementary operation. That is not possible when the Act confers upon the members of the Police Force of the Territory a power to arrest in respect of all offences committed against laws of a Territory, and the Ordinance purports to confer a power to arrest in respect of the same offences. The immunity from arrest which Parliament determines by prescribing the conditions governing the exercise of the power to arrest is not amenable to erosion by the making of an Ordinance".

That reasoning also, in my view, plainly leads to the conclusion that the provisions of s.352 of the N.S.W. Crimes Act, at least to the extent to which they would confer a power to arrest without a warrant on a constable in respect of a suspected past offence, are inconsistent with the provisions of s.8A of the Act and ceased to have effect in the Territory, at the latest, at the time of the 1960 amendment to s.8A of the Act. I say "at the latest" for the reason that it is plainly arguable that the provisions of s.352 of the N.S.W. Crimes Act in that regard had already ceased to have effect by reason of the making of "other provision" by s.8A of the Act as initially enacted or by s.18(e) of the Ordinance.

It was submitted on behalf of Inspector Broomby that the fact that the provisions of the N.S.W. Crimes Act were continued in force pursuant to an Act of the Parliament meant that a different test of repugnancy applied in relation to s.352 to that which applied in relation to the case of s.18(e) of the Ordinance. In my view, there is no substance in this submission. It has been mentioned that the continued operation of s.352 in the Territory was, under s.6(1) of the Seat of Government Acceptance Act, 1909, only "until other provision is made" and that that continued operation "as if it were a law of the Territory" was, by the express terms of s.4 of the Seat of Government (Administration) Act, subject to any Ordinance made by the Governor-General. In the hierarchy of Commonwealth Act, A.C.T. Ordinance and continued New South Wales legislation, the continued New South Wales legislation comes beneath and not above an A.C.T. Ordinance. If the continued operation of the provisions of s.352 conferring general powers of arrest without warrant upon a constable in respect of a past offence had survived the provision made by s.8A in its original form and by s.18(e) of the Police Ordinance, 1927, it did not survive the "other provision" made by s.8A when, in 1960, it was amended by the Parliament so that it expressly defined the general power of a constable to arrest a person for a suspected past offence against a law of a Territory.

In the result, the only general power of arrest without warrant possessed by a member of the Police Force in the Territory in respect of a suspected past breach of a law of the Territory is that contained in s.8A of the Act. The arrest, without warrant, for suspected past offences, of Sergeant Donaldson by Inspector Broomby was not within the provisions of that section. It was unlawful.

Within a month of his arrest, Sergeant Donaldson instituted proceedings against Inspector Broomby in the Supreme Court of the Australian Capital Territory claiming damages, inter alia, for false imprisonment and wrongful arrest. A Statement of Claim was filed on 30 September, 1976. The Defence initially filed on behalf of Inspector Broomby denied that there had been any arrest of Sergeant Donaldson. When the matter came on for hearing in the Supreme Court on 14 October, 1980 counsel for Inspector Broomby was, by consent, given leave to file an Amended Defence. This Amended Defence admitted the arrest and raised a number of defences including the failure by Sergeant Donaldson to give prior notice in writing of his proposed action against Inspector Broomby pursuant to the provisions of s.563 of the N.S.W. Crimes Act. If this defence based on s.563 had been raised in the original defence, Sergeant Donaldson could have avoided it by discontinuing and giving notice in accordance with the section. By the time the amendment was made, it was too late for him to adopt that course. The case was heard by Franki J. who ultimately decided that the arrest had been unlawful but that Sergeant Donaldson's action foundered on the rock of the s.563 defence. Sergeant Donaldson now appeals to this Court from his Honour's decision that the action be dismissed.

In the forest that constitutes the law of the Australian Capital Territory, there is no living provision which justifies the arrest of Sergeant Donaldson by Inspector Broomby. As has been seen however, the dead wood littering the floor of the forest includes the provisions of s.352 of the N.S.W. Crimes Act conferring powers of arrest upon a police officer which, at least until 1926, had had continued effect in the Territory. Other provisions of the N.S.W. Crimes Act are to be found among the living timber of the forest. Among them is s.563 which, since its enactment, has provided:
"(1) All actions against any person, for anything done, or reasonably supposed to have been done in pursuance of this Act, shall be commenced within six months after the fact committed, and notice in writing of any such action, and of the cause thereof, shall be given to the defendant one month at least before commencement of the action, and in any such action the defendant may plead the general issue, and give the special matter in evidence thereupon.

(2) No plaintiff shall recover in any such action, if a tender of sufficient amends was made before action brought, or if a sufficient sum is paid into Court, on behalf of the defendant, after action brought.

(3) If a verdict passes for the defendant, or the plaintiff becomes non-suit, or discontinues his action after issue joined, or if upon demurrer, or otherwise, judgment is given against the plaintiff, the defendant shall recover costs as between attorney and client". . . . . . . . . . . . . . . . . . . . .

The argument based on s.563 of the N.S.W. Crimes Act has an apparent simplicity. At the time he arrested Sergeant Donaldson, Inspector Broomby, according to the evidence accepted by Franki J., believed that the provisions of s.352 of the N.S.W. Crimes Act conferring powers of arrest without warrant on a police officer were fully operative in the Australian Capital Territory and that the arrest was in pursuance of, inter alia, those provisions. Up until the decision in Webster v. McIntosh (supra), Inspector Broomby's belief in those regards, albeit mistaken, was, so it is said, reasonable. It follows, as the argument proceeds, that the arrest of Sergeant Donaldson was "reasonably supposed to have been done" in pursuance of the N.S.W. Crimes Act and that Inspector Broomby enjoys the protection of s.563 which continues in operation in the Territory. It is common ground that the notice required by s.563 has never been given. That being so, according to the argument, Sergeant Donaldson's action must fail. Upon closer analysis, the apparent simplicity of the argument is found to be illusory.

Section 563 of the N.S.W. Crimes Act has no independent operation in the Australian Capital Territory. As has been said, its operation in the Territory is by virtue of the combined operation of the provisions of s.6(1) of the Seat of Government Acceptance Act, 1909 and s.4 of the Seat of Government (Administration) Act, 1910. It has effect in the Territory "as if it were a law of the Territory". For the purpose of its operation in the Territory, its terms must be adjusted to conform with its taking effect as a deemed "law of the Territory". In particular, the reference in s.563 to things done or reasonably supposed to have been done "in pursuance of this Act" must, for that purpose, be understood as a reference to things done or reasonably supposed to have been done in pursuance of so much of the N.S.W. Crimes Act as has effect in the Territory as if it were a law of the Territory.

If the matter fell to be determined, without the guidance of authority, merely by reference to what seems to me to be the meaning of the words used in s.563 and to my understanding of the operation of that section within the Territory, I should conclude that the provisions of s.563 did not, in the circumstances of the present case, operate to defeat Sergeant Donaldson's action against Inspector Broomby. It seems to me that, as a matter of construction, the reference to "the Act" in s.563 of the N.S.W. Crimes Act should be read as a reference to provisions which in fact constitute the Act and should not be read as including specific identified provisions which may have been mistakenly supposed to have been included in the Act but which, by reason of the fact that they had never been enacted or had been repealed, found no place in it. On this approach, the reference to "the Act" in s.563 in its continued operation in the Territory as if it were a law of the Territory should be read as a reference to those provisions of the N.S.W. Crimes Act which have effect in the Territory as distinct from provisions which were never part of the N.S.W. Crimes Act or which, being part of the N.S.W. Crimes Act, had never operated as a law of the Territory or had ceased so to operate. So understood, the provisions of s.563 would in an appropriate case, extend, in their operation in the Territory, to an action for anything done, or reasonably supposed to have been done, in pursuance of any provision of the N.S.W. Crimes Act which was operative within the Territory. They would not extend to the case of a usurper who can point to no such operative provision in pursuance of which he could purportedly have acted. In this regard, it is relevant to bear in mind that the effect of s.563 is to modify and, in some cases, abolish the ordinary right of an individual to institute and maintain proceedings in respect of a wrongful act committed against him. It is difficult enough for such a wronged party to determine whether such a wrongful act was done, or was reasonably supposed to have been done, in pursuance of an actual operative law. It would be well-nigh impossible for such a wronged party to determine whether, in a case where there is no operative provision to which the wrong-doer can point as even relevant to his usurpation of power, the wrongful act was done, or reasonably supposed to have been done, in pursuance of particular provisions which were mistakenly believed to exist in, but which in truth formed no part of, the operative law.

The matter is not, however, free of relevant authority. It is to a consideration of what seems to me to be the effect of the relevant cases that I now turn. Those cases must be approached with care inasmuch as the protective provisions involved in them differ, in material particulars, from those contained in s.563 (see Vincent v. Tauranga Electric-Power Board (1936) N.Z.L.R. 1016 at p. 1019).

The first point to be noted is that it is established by authority that protective provisions of the general type of those contained in s.563 of the N.S.W. Crimes Act ordinarily extend to limit or qualify rights of action in respect of unlawful and ultra vires acts. It is also established that such provisions will commonly operate to provide protection for an act "done bona fide under the colour of the provisions of the statute" (per Fry L.J., Midland Railway Co. v. Withington Local Board (1883) 11 Q.B.D. 788 at p. 796) regardless of whether the unauthorized act was the consequence of a mistake of fact or a mistake of law. Within the context of such provisions, an act can ordinarily be said to be done "in pursuance of" a particular provision or a particular statute if the executant honestly believed, as a consequence of mistake of law as to the effect of the relevant provision or statute or misapprehension as to the prevailing facts or circumstances, that what he was doing was authorized by that provision or statute (see, generally, Little v. The Commonwealth, supra, at p. 108ff and Marshall v. Watson (1972) 124 C.L.R. 640 at pp. 650-651).

It is also established by authority that, in some circumstances, a person can take advantage of a protective provision such as that contained in s.563 of the N.S.W. Crimes Act notwithstanding that, at the time he committed the impugned act, he did not have any specific legislative provision or, indeed, any identified statute in mind as authorizing what he did (see, Little v. The Commonwealth, supra, at p. 110). In particular, an office holder who bona fide believes that he is acting in accordance with powers conferred upon him by his office need not necessarily be aware of the precise statutory source of those powers (see e.g., Hamilton v. Halesworth (1937) 58 C.L.R. 369 at p. 381).

While the above general propositions as to the ordinary operation of protective provisions such as those contained in s.563 are helpful in defining the area of the present problem, they do little to assist in its resolution. In essence, the present problem relates to a mistake not as to the effect of provisions, whether specific or unidentified, in pursuance of which an act was purportedly done but as to the very existence of a particular identified provision upon which specific reliance was placed and which is alone relied upon as the foundation of the invocation of the relevant protective provisions. There are to be found, in the cases, instances where a mistake as to the existence of a relevant statutory provision has been involved and the protection of provisions of the general type of those contained in s.563 was held to be available. In particular, reliance was placed on Inspector Broomby's behalf on Selmes v. Judge ((1871) 6 Q.B. 724) and Greenway v. Hurd ((1792) 4 T.R. 553; 100 E.R. 1171). It appears to me, however, that those authorities are not decisive of the present case.

In Selmes v. Judge (supra), the defendants had been appointed surveyors of highways pursuant to the Act 5 and 6 William IV Chapter 50. They received payment from the plaintiff of an assessment upon a highway rate which was neither signed, allowed nor published according to s.27 of that Act. The explanation of their failure properly to levy the rate was, "in all probability", that they "had taken some old form, drawn up under the 13 G.III Chapter 78, since repealed". It was held that the defendants were entitled to the notice of action required by 5 and 6 William IV Chapter 50, s.109 "on the ground that they were intending to act under the provisions of that Act when they made this rate, and obtained payment of it from the plaintiff" (per Blackburn J., ibid at p. 727). The foundation of the decision that the protective provisions of 5 and 6 William IV Chapter 50 were available was plainly that the defendants had intended to act under operative provisions of that unrepealed Act. As Barton J. commented, when referring to Selmes v. Judge (supra) in Duncan v. Theodore ((1917) 23 C.L.R. 510 at p. 526),:
"The things there mistakenly done were done in the assumed execution of a valid Act, but in the process of enforcing that Act steps were taken by the defendants, who were surveyors of highways, which deviated from the valid authority, in form, inasmuch as they appeared to have been taken under an earlier and repealed Statute. Acting mistakenly in this way, but intending to act in the performance of the duties of their office, the defendants were held entitled to notice of action pursuant to the Statute under which they had made a mistaken assessment".
The case is silent on the question whether the defendants' reliance on a repealed statutory provision would, in itself, have provided a foundation for calling in aid the protective provisions requiring the giving of notice in respect of things done or supposed to have been done in pursuance of an Act.

Greenway v. Hurd (supra) was a case in which an excise officer was held to be entitled to notice under 23 Geo. III Chapter 70 s.30 before an action was brought against him in respect of duties received by him after the Act (24 Geo. III Chapter 40) imposing them had been repealed. The judgments (Lord Kenyon C.J. and Buller J.) do not set out the precise reasoning which led to that conclusion. Examination of the terms of 23 Geo. III Chapter 70 s.30 discloses, however, that the requirement that notice be given to an excise officer related to anything done "in the execution of, or by reason of his . . . office". The question whether what was involved had been done "in pursuance of" any Act or statutory provision did not directly arise.

In Waterhouse v. Keen ((1825) 4 B. & C. 200; 107 E.R. 1033), Bayley J. and Holroyd J. treated the decision in Greenway v. Hurd as authority on the question whether the unlawful exaction of a toll by the defendant came within the scope of a protective provision which applied to "any thing done in pursuance of the act". In that case however, there was no dispute as to the existence of the provisions of the Act under which the toll had been demanded and taken. The defendant's error was that he either overlooked or mistook the effect of an exempting provision which had the effect of relieving the plaintiff of liability to pay the toll. The defendant's mistake was as to the applicability of the provisions of the Act in pursuance of which he purportedly acted. It followed, as the Court held, that, for the purposes of the protective provision, the demanding and taking of the toll was an act done in pursuance of the Act.

The authority which seems to me to be most closely in point to the circumstances of the present case is Hazelton v. Potter ((1907) 5 C.L.R. 445). That was an action for assault and false imprisonment against a member of the New South Wales Police Force. The plaintiff had been sentenced in the Solomon Islands to be imprisoned for three months at Suva for an offence. He was brought by steamer from the Solomon Islands to Sydney. It was proposed subsequently to transfer him from Sydney to Suva. He was held in prison by the defendant in pursuance of a warrant purportedly issued under Article 112 of the Pacific Order in Council of 1893. The defendant relied upon the provisions of that Article to justify his actions. He also relied upon the provisions of Article 139 of the Order in Council which provided:
"Any suit or proceeding shall not be commenced in any of Her Majesty's Courts against any person for anything done or omitted in pursuance or execution or intended execution of this Order, or of any regulation or rule made under it, unless notice in writing is given by the intending plaintiff or prosecutor to the intended defendant one clear month before the commencement of the suit or proceeding, nor unless it is commenced within three months, . . .".
It was held by the High Court (Griffiths C.J., Barton and Isaacs JJ.) that the defendant could not rely upon Article 112 of the Order in Council for the reason that it was not operative in New South Wales. What is relevant for present purposes is that their Honours went on to hold that, assuming that Article 139 was operative in New South Wales, it accorded the defendant no protection. The reason for this, in the view of Griffiths C.J. and Barton J., was that, since Article 112 did not operate in New South Wales, the defendant's detention of the plaintiff could not, for relevant purposes, properly be said to have been done "in pursuance or execution or intended execution of this Order" within the meaning of those words in Article 139 in their assumed operation in New South Wales.

In the course of his judgment in Hazelton v. Potter (supra, at pp. 459-460), Griffiths C.J., made the following comments which lie at the heart of his decision in that case and which appear to me to be plainly relevant to the circumstances of the present matter:
"I will assume, but without so deciding, that Article 139 applies to an action in the Supreme Court of New South Wales. In order that advantage may be taken of this provision, the defendant must show, to begin with, that at the place where the act complained of was done there was some law in force under which it might under some circumstances have been lawful. It is quite immaterial that he thought there was such a law, if in fact there was none. And the law must be a law of the place where the act was done. If the provisions of a law of a foreign country are binding in a State, they are binding, not as the law of the foreign country, but because the law of the State or of a paramount authority has made them part of the State law. The furthest extent to which it can be suggested that the Order in Council has effect in the present case is that ex necessitate the person to whose custody a prisoner is committed for removal to Suva may himself detain him in custody in Australia. There is no pretence that any other person in Australia can be authorized (except in aid of that person) to detain the prisoner independently. From every point of view, therefore, it is plain that there was no law in force in New South Wales under which the detention of the appellant by the respondent under the circumstances alleged could have been lawful. Now, the test whether notice of action is required is, as stated in Roberts v. Orchard (2 H. & C. 769; 3 L.J. Ex., 65) whether the defendant honestly believed in the existence of a state of facts which, if it had existed, would have afforded a justification under the Statute invoked. The reasonableness of the defendant's belief, if he honestly entertained it, is not to be inquired into, except as an element in determining the honesty: Chamberlain v. King (L.R. 6 C.P. 474). Nor is a mistake in the construction of the Statute fatal to the defendant: Selmes v. Judge (L.R. 6 Q.B. 724). But there must be some Statute in force under which the act complained of could under some circumstances have been lawful. A mistake by the defendant as to the existence of a law cannot be brought within these principles".

As I read the judgments of Griffiths C.J., and Barton J. in Hazelton v. Potter (supra), the case is authority for the proposition that a protective provision which is operative in a particular place and which requires notice of acts done "in pursuance of" the Order in Council which contains it will not apply in respect of acts done in that place in pursuance of a specific provision of the Order which is not operative in that place. That proposition plainly supports a conclusion that the provisions of s.563 of the N.S.W. Crimes Act, in their operation as part of the law of the Australian Capital Territory, were not applicable in respect of acts done or reasonably supposed to have been done in the Australian Capital Territory in pursuance of a provision of the N.S.W. Crimes Act which had no operation within the Territory.

In Duncan v. Theodore ((1917) 23 C.L.R. 510), Isaacs and Powers JJ. (ibid at pp. 541ff) were of the view that a reference, in the protective provision there under consideration, to a "Proclamation made under this Act" meant "a Proclamation in fact made as Proclamations are made, and apparently and bona fide believed to be made under the authority of the Act". Their Honours' view on this point was, however, contrary to the view of the majority which was to the effect that the impugned acts were only protected "if the Proclamation was made (that is to say, validly made) under the Act of Parliament" (per Gavan Duffy and Rich JJ., ibid at p. 544). Barton J., the third member of the majority, referred (ibid at p. 527) to the case of Spooner v. Juddow ((1850) 6 Moo. P.C. 257 at p. 283; 13 E.R. 682 at p. 692) and commented:
"There Lord Campbell said (6 Moo. P.C.C., at p. 283) "There can be no rule more firmly established, than that if parties bona fide and not absurdly believe that they are acting in pursuance of Statutes, and according to law, they are entitled to the special protection which the Legislature intended for them, althought they have done an illegal act". There the Statute was pre-requisite, and it existed; but here the valid Proclamation was the pre-requisite, and it did not exist".
The case subsequently went on appeal to the Privy Council (Theodore v. Duncan (1919) 26 C.L.R. 276) where it was held that the relevant proclamation had been validly made with the result that it was not necessary for their Lordships to consider the effect of the protective provision.

In the result, I consider that the weight of relevant authority supports the conclusion to which my construction of s.563 of the N.S.W. Crimes Act in the context of my understanding of the nature of the operation of that section in the Australian Capital Territory independently led me. Inspector Broomby was not, in my view, entitled to rely on the provisions of s.563 of the N.S.W. Crimes Act in their operation as part of the law of the Australian Capital Territory in respect of something done, or reasonably supposed to have been done, in the Territory, in purported pursuance of a specific provision of the N.S.W. Crimes Act which was not operative within the Territory. The judgment in Inspector Broomby's favour should be set aside.

There remains for consideration the question of damages. In the Supreme Court, Franki J. gave consideration to that question and reached the conclusion that, if, contrary to his view, Sergeant Donaldson was entitled to recover damages for wrongful arrest, the appropriate quantum of damages was $1000. That amount has been attacked as inadequate.

Franki J's assessment of damages was plainly influenced by the conclusion which he reached on a number of issues of fact. In particular, his Honour, with the advantage of having seen and heard the witnesses as they gave their evidence, concluded that Sergeant Donaldson was not treated in any offensive manner at the time of his arrest and that he was not denied the right to see a solicitor at the Police Station. His Honour also concluded that Inspector Broomby had not been motivated by malice and had genuinely believed that a power of arrest without warrant existed in the circumstances. Franki J's conclusions on those matters were based, to no small extent, on his opinion of the trustworthiness of witnesses who gave evidence before him. I can find no ground upon which an appellate court would be justified in interferring with, or differing from, them. In the light of these conclusions, I consider that the amount of $1000 damages assessed by Franki J. should be accepted as appropriate to the circumstances of the present case.

I would allow the appeal. I would set aside the order of the Supreme Court and, in lieu thereof, order that there be judgment with full costs in Sergeant Donaldson's favour against Inspector Broomby for $1000 for damages for wrongful arrest. I would order that Inspector Broomby pay Sergeant Donaldson's costs both in the Supreme Court and of this appeal.

JUDGE2

This is an appeal against the decision of Franki J. sitting in the Supreme Court of the Australian Capital Territory ("the Territory") wherein he dismissed the claim of the appellant against the respondent for damages for false imprisonment and wrongful arrest. In his notice of appeal the appellant disputes both the dismissal of his claim and the quantum of damages fixed by the trial judge. The respondent filed a notice of contention pursuant to Order 52 rule 22(3) of the Rules of this Court disputing the findings of the trial judge in respect of the respondent's powers of arrest in the Territory. On this appeal however the essential issue is not the question of the validity of the arrest or the extent of the power to arrest in the Territory but whether a Constable who held an honest belief that he was exercising a supposed statutory power of arrest was entitled as a matter of law to claim the protection of s.563 of the New South Wales Crimes Act 1900. It arises in the context of the legislative jungle of the Territory.

The proceedings arose out of circumstances which for the purpose of this appeal are not greatly in dispute and can be shortly stated. On 20 August 1976 the respondent without a warrant arrested the appellant for a suspected offence. At that time the appellant was a sergeant in the Territory Police Force and the respondent an Inspector in that force. On an earlier occasion the appellant had been arrested and charged with conspiring to pervert the course of justice but this charge was dismissed. At the time of the arrest on 20 August 1976 the respondent was carrying out investigations on instructions from the Commissioner of Police concerning the suspected theft of a typewriter. He had made a visit to the home of the appellant on the preceding day with a search warrant which was not executed on that day. On the following day he returned to the home of the appellant, searched his house and removed certain articles other than the typewriter therefrom and arrested the appellant.

In the light of my conclusions on this appeal it is not necessary to relate the manner in which the arrest was made, except that the trial judge found that the respondent acted in a reasonable manner and without malice. The respondent swore that he believed he was exercising a power of arrest under s.352 of the New South Wales Crimes Act 1900 ("the Crimes Act") as it applied in the Territory and the trial judge found that he made the arrest in the honest belief that he was so acting. Subsequent to the arrest the appellant was charged on a number of counts of larceny, one of which was proved against him, and he was also convicted in relation to the possession of unlicensed fire-arms. The trial judge's essential conclusions were that the respondent had no power of arrest under s.352(2) but was entitled to the protection of s.563 of the Crimes Act.

For the purpose of understanding the course of the proceedings before the trial judge and the issues before us it is desirable to set out some parts of the legislative background to the matters relied upon by one or other of the parties. Such background is also relevant to an assessment of the reasonableness of the respondent's belief that he was exercising a power of arrest under s.352(2) of the Crimes Act. This section was at the time in the following terms and I set out only those portions which are relevant to these proceedings.
"352.

(1) Any constable or other person may without warrant apprehend,

(a) any person in the act of committing, or immediately after having committed, any offence punishable, whether by indictment, or on summary conviction, under any Act,

(b) any person who has committed a felony for which he has not been tried,
and take him, and any property found upon him, before a Justice to be dealt with according to law.

(2) Any constable may without warrant apprehend,

(a) any person whom he, with reasonable cause, suspects of having committed any such crime,

(b) any person lying, or loitering, in any highway, yard, or other place during the night, whom he, with reasonable cause, suspects of being about to commit any felony,
and take him, and any property found upon him, before a Justice to be dealt with according to law.

(3) . . .

(4) . . .

It was contended that s.563 of the Crimes Act provided protection to the respondent and it reads as follows:
"563.

(1) All actions against any person for anything done, or reasonably supposed to have been done in pursuance of this Act, shall be commenced within six months after the fact committed, and notice in writing of any such action, and of the cause thereof, shall be given to the defendant one month at least before commencement of the action, and in any such action the defendant may plead the general issue, and give the special matter in evidence thereupon.

(2) No plaintiff shall recover in any such action, if a tender of sufficient amends was made before action brought, or if a sufficient sum if paid into court, on behalf of the defendant, after action brought.

(3) If a verdict passes for the defendant, or the plaintiff becomes non-suit, or discontinues his action after issue joined or if upon demurrer or otherwise, judgment is given against the plaintiff the defendant shall recover costs as between attorney and client."

Prior to the surrender by the State of New South Wales of the Territory to the Commonwealth the Crimes Act including s.352 and s.563 abovementioned was a law in the Territory. It was continued a force thereafter notwithstanding the surrender and acceptance of the Territory by s.6(1) of the Seat of Government Acceptance Act 1909, an Act of the Parliament of the Commonwealth, which provided:
"6(1) Subject to this Act, all laws in force in the Territory immediately before the proclaimed day shall, so far as applicable, continue in force until other provision is made."

The proclaimed day was 1 January 1911.

The Seat of Government (Administration) Act 1910 dealt expressly with the application of State and Commonwealth laws, specifically excluding the operation of certain of the former laws (but not excluding the Crimes Act). Section 4 of that Act provides, as foreshadowed by s.6 of the Acceptance Act, for the continuance and amendment of State laws as follows:
"4. Where any law of the State of New South Wales continues in force in the Territory by virtue of section six of the Seat of Government Acceptance Act 1909, it shall, subject to any Ordinance made by the Governor-General, have effect in the Territory as if it were a law of the Territory;

Provided that, with respect to any such law, the Governor-General may by Ordinance declare that it shall, while the Ordinance remains in force, but subject to the provisions of the Ordinance, have effect in the Territory and continue to be administered by the authorities of the State, as if the Territory continued to form part of the State."

In 1914 the Commonwealth Parliament enacted the Crimes Act 1914 ("the Commonwealth Crimes Act") which contained no power for a constable to arrest without warrant for suspected offences. To cover this situation s.8A was inserted in that Act in 1926 and amended in 1960. In its amended form it reads as follows:
"8A. Any constable may, without warrant, arrest any person if the constable has reasonable ground to believe -

(a) that the person has committed an offence against a law of the Commonwealth or of a Territory; and

(b) that proceedings against the person by summons would not be effective."

The amendment made in 1960 was to insert the words "or of a Territory", a precaution which was probably unnecessary as a matter of law because of the view that laws of the Territory are laws of the Commonwealth. (See Spratt v Hermes (1965) 114 C.L.R. 226 and Webster v McIntosh (1980) 32 A.L.R. 603 at p.607).

A power for a constable to arrest without warrant in the Territory for suspected offences was provided by the Police Ordinance 1927 ("the Police Ordinance") in s.18(e) as follows:
"18. Any member of the Police Force, without any warrant other than this Ordinance, at any time of the day or night, may apprehend -
. . .
(e) any person whom he has reasonable cause to suspect of having committed, or being about to commit, any offence;"

It is appropriate to conclude this survey of the legislation by referring to Webster and Anor v McIntosh supra, a decision of the Full Court of this Court, which has relevance to the availability to constables or members of the Police Force of some of the above recited powers of arrest. In that matter two constables in the Territory purported to exercise the power of arrest in s.18(e) of the Police Ordinance and pleaded this as statutory justification in answer to an action for unlawful arrest and wrongful imprisonment. The opposing contention was that s.18(e) was impliedly repealed at latest in 1960 by the amendment of s.8A of the Commonwealth Crimes Act. The Full Court held that s.18(e) was in consequence of the amendment to s.8A repugnant to the Commonwealth Crimes Act and therefore impliedly repealed. The constables, having failed to comply with the conditions for an arrest under s.8A, accordingly arrested without statutory justification.

In his reasons for judgment in this matter the trial judge after making certain findings of fact, the most relevant of which I have recited above, posed for himself four questions. They were as follows:
"1. Was s.352(2)(a) of the Crimes Act, or s.18(e) of the Police Ordinance 1927 of the Australian Capital Territory a source of power to arrest the plaintiff at the relevant time in the Australian Capital Territory?"

The trial judge answered this question in the negative and contrary to the interest of the respondent, holding, consistent with Webster v McIntosh supra, that s.8A of the Commonwealth Crimes Act had impliedly repealed both s.18(e) of the Police Ordinance and s.352(2)(a) of the Crimes Act. Thus the respondent had no power to arrest under either of the two latter provisions. He seeks in his notice of contention to challenge the trial judge's findings in this part of his decision.
"2. If the only power of arrest was that under s.8A of the Commonwealth Crimes Act, was the arrest justified under that power?"

The respondent conceded that the answer to this question must be no, because he acknowledged that he did not have (as required by the section) reasonable grounds to believe that a summons would not be effective.
"3. If the arrest was unlawful, did s.563(1) of the Crimes Act provide a defence?"

The trial judge answered this question yes, in favour of the respondent, stating that he was satisfied that the arrest was made in the honest belief that it was in the exercise of a power conferred by s.352 of the Crimes Act. It followed in his view that the respondent was entitled to the protection of s.563(1) and the dismissal of the action. The appellant challenged this part of the judgment of the trial judge in his appeal to us.
"4. If s.563(1) of the Crimes Act does not provide a defence, was the plaintiff entitled to damages and, if so, in what amount?"

Though in light of his answer to question 3, supra, the matter of damages strictly did not arise, the trial judge proceeded to assess damages at $1,000. Before us the appellant contended that such a sum was inadequate.

In his submissions counsel for the appellant took as his starting point the trial judge's finding, which he embraced, that s.8A had impliedly repealed s.352(2) in its application to the Territory. He challenged the further findings that in the circumstances the respondent was entitled to the protection of s.563 and that, because the appellant had omitted to give the requisite notice, the action must be dismissed. In so doing he did not dispute the finding that the respondent honestly believed he was empowered by s.352(2) but said that as his mistake was a mistake in law as to the existence or applicability of s.352 in the Territory, the protection of s.563 was not available. He laid emphasis upon the fact that the respondent's mistake was in believing or supposing that s.352(2)(a) represented at the relevant time the law of the Territory. Such an error, he said, denied the respondent the protection of s.563.

Counsel was unable to refer us to any supporting authority directly in point and he accepted without qualification the extensive review of the law by Dixon J. (as he then was) in Little v The Commonwealth (1947) 75 C.L.R. 94. He disputed nothing stated by that judge and in particular accepted the general principle that protection under a somewhat similar section was available notwithstanding that the error or mistake by the arresting policeman was wholly or in part one of law. Counsel argued however that the protection was only available when the error of law was an error as to the scope, construction or conditions precedent to the exercise of the law giving the power of arrest, and protection was excluded when the error was as to the existence of the law giving this power. He contended that he could find at least implied support in the reasoning of Dixon J, which he said did not deny in any way his propositions. It is relevant to note that in Little v The Commonwealth supra, there was in fact no doubt that the relevant law existed and thus no doubt on the score of the reasonableness of the policeman's belief. Dixon J. stated the proposition in very general terms without any suggestion that the scope of its application was restricted as submitted for the appellant.

Express authority lending some support to the appellant's contentions can however be found, arising though in what I see as significantly different circumstances, in the dicta of Griffith C.J. in Hazelton v Potter (1907) 5 C.L.R. 445 when dealing with want of notice of action. In that case Article 112 of the Pacific Order in Council under which the defendant purported to act in arresting the plaintiff was not and never had been in force in New South Wales. Thus the two cases are distinguishable on their facts as in this matter s.352 of the Crimes Act was at one time in force in the Territory. Having stated that there was no law in force in New South Wales under which the detention under the circumstances alleged could have been lawful the Chief Justice continued at page 460.
"Now the test whether notice of action is required is, as stated in Roberts v Orchard (2 H & C 769), whether the defendant honestly believed in the existence of a state of facts which, if it had existed, would have afforded a justification under the Statute invoked. The reasonable ness of the defendant's belief, if he honestly entertained it, is not to be enquired into, except as an element in determining the honesty; Chamberlain v King (L.R. 6 C.P. 474). Nor is a mistake in the construction of the Statute fatal to the defendant: Selmes v Judge (L.R. 6 Q.B. 724). But there must be some statute in force under which the act complained of could under some circumstances have been lawful. A mistake by the defendant as to the existence of a law can not be brought within those principles.

In the present case there was no law in New South Wales which authorised the High Commissioner's Court to address a warrant to a keeper of a prison in that State or which authorised a keeper of a prison to detain of his own authority a person in the course of removal to Suva. The mistake of the respondent was neither as to a matter of fact nor as to the construction of a law of New South Wales but as to the existence of such a law. In the words of Bayley J. in Cook v Leonard (6 B & C 351 at p.355) there was no colour for supposing that the act done was authorized I have emphasized the word "colour" here and subsequently.

Cook v Leonard supra was a decision of three Judges, each of whom referred to the necessity of finding some "colour or pretence" for what was done. Littledale J. concludes his reasons at page 359 with these words:
"I think, also, not only that they had no authority, but that they had no colour or reasonable ground for supposing that they had authority to act as they did, . . . "

Barton J. also referred in Hazelton v Potter supra at p.463 to the judgment of Bayley J. in Cook v. Leonard supra and in particular to passages where the latter judge uses the expression "reasonably be supposed to be done in pursuance of the Act". After discussing a number of the older authorities he concludes at page 465 as follows:
"That case supports what His Honour has said, that there must be in existence some law to which the person whose conduct is impeached could appeal in bar of the action if the facts were as he honestly thought they were.

Well, now, putting the matter on that basis - all the cases pre-suppose the existence of some law as to which such a belief could be at least colourably held. What law then, was it? None has been suggested, whether as a law of New South Wales itself, or a law of some other community made binding here by our legislature or that of the Mother country. . . What colour was there for supposing that the act done was authorized? It seems to me that it is impossible to argue that there was any real colour."

I have again emphasized the word "colour" or "colourably" because it tends to suggest that what is crucial is not the fact of existence of legislation but whether there was any colourable or plausible ground for believing that a particular Act authorized the conduct.

The approach of Griffith C.J. in Hazelton v Potter supra was followed by Barton J. in the subsequent and factually somewhat similar case of Duncan v Theodore (1917) 23 C.L.R. 510 at p.527 in which matter there never had been in existence a valid proclamation pursuant to which the acts done were alleged to be authorized. Isaacs and Powers J.J. in their minority judgment made a very careful analysis of the provisions of the protecting section, commencing at page 536. In particular although their remarks may have been obiter, they considered the concept of mistake as to the existence of a law in circumstances where the particular law had been repealed. At page 541 they said
"This enables us to put aside the argument that the bona fide belief on the part of the defendants that the Proclamation were lawful is immaterial, in as much as their legality is a matter of law, and not of fact.

A decisive instance of this is the well-known case of Greenway v Hurd (4 T.R. 553, 108 E.R. 1171), cited in Selmes v Judge supra. In that case the illegality arose through the circumstance that the Act of Parliament under which the defendant claimed to act had been repealed about two months previously. He had apparently overlooked that circumstance. It was argued that therefore 'there was no Statute in existence under colour of which the defendant could pretend to act'. Nevertheless Lord Kenyon C.J. held against the objection, and said that the notice require by the Statute was 'only required for the purpose of protecting them in those cases where they intended to act within' the strict line of their duty, 'but by mistake exceeded it'. Necessarily the 'mistake' referred to by the Lord Chief Justice included a mistake as to the existence of a particular law. This case was approved in Waterhouse v Keen (4 B & C 210) and by Lord Atkinson in the Bradford Corporation case."
The decision of the Privy Council (26 C.L.R. 276) upholding an appeal gave no consideration to the provisions or availability of the protecting section.

It is understandable that in the circumstances of Little v The Commonwealth supra, Dixon J. did not refer to Hazelton v Potter and Theodore v Duncan. There was in Little v The Commonwealth no doubt as to the existence or validity of the law pursuant to which the policeman purported to act. The facts of Hazelton v Potter and Theodore v Duncan are different in that there never had existed a valid law capable of supporting the challenged actions. The facts in this appeal lie midway between the facts of Little v The Commonwealth on the one hand and Hazelton v Potter and Theodore v Duncan on the other hand in that there had been a valid law which probably had been repealed at the relevant date. It is to such a situation that the reasoning of Isaacs and Powers J.J. supra is particularly relevant and apt. It is also of significance that Dixon J. cited with approval both Greenway v Hurd and Selmes v Judge supra in each of which the fact situation bears much similarity to this matter. In discussing protective provisions requiring notice of action, Dixon J. had this to say in Little v The Commonwealth supra at page 108.
"Such enactments have always been construed as giving protection, not where the provisions of the statute have been followed, for then protection would be unnecessary, but where an illegality has been committed by a person honestly acting in the supposed course of the duties or authorities arising from the enactment Lord Kenyon C.J. said:- 'It has been frequently observed by the courts that the notice, which is directed to be given to justices and other officers before actions are brought against them, is of no use to them when they have acted within the strict line of their duty, and was only required for the purpose of protecting them in those cases where they intended to act within it, but by mistake exceeded it (Greenway v Hurd 1792 4 T.R. 553 at 555, 100 E.R. 1171 at 1172-3')."
As Isaacs and Powers J.J. noted in Theodore v Duncan, the mistake in Greenway v Hurd supra was a mistake as to the existence of a particular law which had earlier been repealed. The person who made the mistake was, as in this matter, the holder of an office.

It follows that there is authority for the proposition as contended for by the appellant at least in circumstances where there never had been in existence a valid law authorizing the impugned conduct. In such circumstances it is obvious that the party claiming protection would find it difficult to establish that he had a colourable or reasonable ground for supposing that he had authority to act as he did. However such is not the position where, as here, there had been in existence statutory authority which the respondent honestly believed authorised his actions. In circumstances where the statutory authority had been neither expressly repealed nor held by a court to have been impliedly repealed, can it be said that his belief as to its continuing existence is neither colourable, plausible or reasonable? The trial judge was of the view that the words "or reasonably supposed to have been done in pursuance of", which are additional to most protecting provisions considered by the courts (Dixon J. in Little v The Commonwealth supra at page 108), must be satisfied by some less stringent test than normal protecting provisions. This may well be so, although it is not readily apparent, bearing in mind the wide construction which had been placed on normal provisions, in what way the ambit of the protection is expanded. It is noteworthy that where referring to mistakes of law both Starke J. in Hamilton v Halesworth (1937) 58 C.L.R. 368 at page 374, and Dixon J. in Little v The Commonwealth supra at pages 108-9 use the terminology of 'reasonably supposed he was acting" in pursuance of authority. Certainly the words draw attention to the subjective nature of the test, but an additional objective element is introduced, namely that of reasonableness (See per Dixon J. in Little v The Commonwealth supra at p.109), which element has some similarity to that of a colourable belief expressed by Bayley J. in Cook v Leonard supra.

In my opinion the mistake of law in consequence of which the respondent is entitled to protection is not restricted to a mistake as to the construction or scope of legislation, as the appellant contends. It will extend to a mistake as to the existence of the authority, provided there are grounds upon which it can be said that the belief of the officer is reasonable. The reasonableness of such a belief or supposition is in my opinion a matter for objective determination in all the circumstances of the case. It is easy to contemplate a hypothetical set of facts in which the respondent could not have reasonably supposed he was acting pursuant to statutory authority. For example: if there never had been valid legislation which he supposed to exist or if such legislation had been expressly repealed many years earlier. A more difficult situation would exist if an authoritative court decision had some time earlier expressly confirmed that the legislation was impliedly repealed. The question of reasonableness or otherwise falls for objective determination on the particular facts of each matter.

In my opinion it follows that the trial judge's unchallenged finding that the respondent held the honest belief that he was acting in accordance with authority given by s.352 of the Crimes Act concludes the matter against the appellant. Honesty of belief can be seen as including reasonableness of such belief, objectively determined. In circumstances where at the date of arrest there had been no Court ruling to the effect that s.8A of the Commonwealth Crimes Act impliedly restricted existing powers of arrest in the Territory, let alone impliedly repealed s.352 of the Crimes Act in its application to the Territory, it can not be said that the respondent's belief in its continued existence was unreasonable. He could hardly be expected to speculate whether a court might find, as a matter of construction, grounds upon which these two enactments of the Commonwealth Parliament could lie together. There was in the words of Barton J. in Hazelton v Potter supra considerable and real colour "for supposing that the act done was authorized". In these circumstances the trial judge correctly found that the respondent was entitled to the protection of s.562 of the Crimes Act and, as no notice was given, properly dismissed the appellant action. There is in the end result no reason to consider the appellant's submissions concerning the quantum of damages, or the respondent's notice of contention. The appeal should be dismissed with costs.

JUDGE3

I have had the advantage of reading the reasons for judgment prepared by Deane, J. I agree with them and would therefore allow the appeal.