Ghanem v State of New South Wales - [2024] NSWDC 213

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Ghanem v State of New South Wales [2024] NSWDC 213
Hearing dates: 27 May 2024 – 29 May 2024 and 31 May 2024
Date of orders: 7 June 2024
Decision date: 07 June 2024
Jurisdiction: Civil
Before: Newlinds SC DCJ
Decision:
(1)   Judgment for the first plaintiff, together with interest.
(2)   Judgment for the second plaintiff, together with interest.
(3)   Direct the parties to bring in short minutes of order giving effect to these reasons. (See paras [130]-[133]).

Catchwords:
TORTS — Trespass to the person — False imprisonment — Wrongful arrest — Total deprivation of liberty — Statutory authority — s 99 LEPRA — Proper construction of s 99 LEPRA — Timing of formation of relevant state of mind and decision to arrest — State of mind formed by taking into account irrelevant considerations or failing to take into account relevant considerations, or by otherwise misconstruing the terms of s 99 LEPRA — no relevant state of mind formed — State of mind/decision manifestly unreasonable, arbitrary, or irrational — Damages — General damages — Aggravated damages — Exemplary damages — Remedies — Bail Act 2013 — Ability of police to grant bail to a person charged with offence but not arrested

Legislation Cited:
Bail Act 2013 s 7-11, s 13-14, s 17(3), s 43
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99(1)(a)-(b)

Cases Cited:
AD v State of NSW [2023] NSWCA 115
Clifton v Harris [2012] NSWCA 229
Costa v Public Trustee of NSW [2008] NSWCA 223
Coyle v State of New South Wales [2006] NSWCA 95
Edwards v State of New South Wales [2021] NSWSC 181
Jamal v State of New South Wales [2020] NSWDC 377
Jankovic v Director of Public Prosecutions [2020] NSWCA 31
Lule v State of New South Wales [2018] NSWCA 125
Minister for Immigration and Multicultural Affairs v Eshetu [1999] 197 CLR 611
R v Wilson (No.5) [2018] NSWSC 1077
Randall v State of NSW; Dickens v State of NSW; Jensen v State of NSW (unreported, 21 June 2023, DCJ Curtis)
Reeves v State of NSW [2024] NSWCA 125
Robinson v State of New South Wales [2018] NSWCA 231; 100 NSWLR 782
Rook v State of NSW (No.3) [2015] NSWDC 154
Ruddock v Taylor [2003] NSWCA 262
Ruddock v Taylor [2005] HCA 48; 222 CLR 612
Spautz v Butterworth & Anor [1996] NSWSC 614; 41 NSWLR 1
State of New South Wales & Anor v Coleman [2000] NSWCA 183
State of New South Wales v Abed [2014] NSWCA 419
State of New South Wales v Abed [2014] NSWCA 419
State of New South Wales v Abed [2014] NSWCA 419
State of New South Wales v Delly [2007] NSWCA 303; (2007) Aust Torts Reports 81-920
State of New South Wales v Smith [2017] NSWCA 194
State of New South Wales v. Riley [2003] NSWCA 208
State of New South Wales v. Riley [2003] NSWCA 208
State of NSW v Randall [2017] NSWCA 88
Ussher v State of NSW [2017] NSWDC 189
Vignoli v Sydney Harbour Casino [1999] NSWSC 1113; (2000) Aust Torts Reports 81-541
Zaravinos v State of New South Wales [2004] NSWCA 320; (2004) 62 NSWLR 58
Zaravinos v State of New South Wales [2004] NSWCA 320; 62 NSWLR 58

Category: Principal judgment
Parties: Aya Ghanem (Plaintiff)
State of New South Wales (Defendant)
Representation:
Counsel:
Mr E. Anderson (Plaintiffs)
Mr N. Newton (Defendant)
Solicitors:
One Group Legal (Plaintiffs)
Norton Rose Fulbright (Defendant)

File Number(s): 2022/265575
Publication restriction: Non-Publication Order pertaining to the name of the young person who was the subject of the assault and to the name of the school.

JUDGMENT

Overview

On 29 July 2020, Senior Constable Harys (SC Harys) of the New South Wales Police Force determined that she suspected on reasonable grounds that the plaintiffs had committed an offence and that she was satisfied that to arrest both plaintiffs, who were then aged 14- and 13-years old, was reasonably necessary.
Having determined those two matters, she decided to arrest the plaintiffs, and together with a large contingent of police officers went to the home of the plaintiffs where they were living with their parents and arrested them. The arrest took place approximately one and a half hours after SC Harys had formed the state of mind and decided to effect the arrest. The plaintiffs were then transported in the back of a police car to Liverpool Police Station where they were held firstly in individual cells (for about ten or fifteen minutes) and later in the custody area of Liverpool Police Station for about six hours, whereafter they were charged and released on bail subject to certain conditions which mirrored the terms of two personal violence orders which were issued ex parte during the period that the plaintiffs were in police custody by a magistrate of the Local Court upon the application of SC Harys.
The offence which SC Harys reasonably suspected both plaintiffs had committed was an assault on a year nine schoolgirl, which occurred that day at the school that each of the plaintiffs attended – the first plaintiff – “Aya” – being in year nine (aged 14) and the second plaintiff – “Yasmin” – being in year eight (aged 13). I will refrain from naming the school in an attempt to protect its reputation. I will also refer to the year nine girl who was the subject of the assault by a pseudonym – Emma. I will make a Non-Publication Order in relation to the name of the school and Emma’s name.
The assault appears to have been the culmination of a running battle between two groups of year nine girls at the school wherein there was a history, not just of poor behaviour, but of alleged criminal assaults going both ways. It had been alleged that Emma herself had previously committed a serious assault on a girl in the other group which left that girl unconscious. I am in no position to make any finding about that allegation other than that the allegation had been made. However, I do find that by 29 July 2020, for whatever reason, there was a reasonably long history of unpleasant, sometimes violent interactions between the two groups of girls. There is no doubt that Aya was a part of one of the groups and had been involved in some of that history, but there is equally no doubt that her younger sister Yasmin, who was in the year below at school, was not part of either of the groups and, other than an incident between her and Emma that morning, had not been previously involved in any poor conduct.
The incident, accurately characterised by SC Harys as an assault at the time, was captured on CCTV footage, so there is little doubt as to what happened. In the context of a fight between young schoolgirls, the incident is shocking, it can reasonably be described as violent and serious. It involved punching, hair-pulling, and, once Emma was on the ground, some kicking. It did not go on for very long but took place in the presence of at least one schoolteacher who expressly told Aya to stop prior to the incident commencing. Aya was undoubtedly the instigator. As I will explain, Yasmin’s involvement was much less significant than Aya’s.

The issues

False imprisonment

By statement of claim filed 6 September 2022, both Aya and Yasmin seek damages for false imprisonment, that is the period from when they were placed under arrest and taken into the police’s custody at about 11:30 AM on 29 July, until when they were released from police custody at about 6 PM that evening.
Prima facie, that deprivation of liberty is unlawful unless the defendant can demonstrate that the arrest and subsequent imprisonment was lawful.

LEPRA s 99

The defendant, the State of NSW, which accepts that it is vicariously liable for any wrongdoing of the police on the day, seeks to demonstrate that the arrest and subsequent imprisonment of the plaintiffs was lawful because it was made in conformity with s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) - “LEPRA”, the submission being that both limbs of s 99 were satisfied at the time because first, SC Harys did suspect on reasonable grounds that the plaintiffs had committed an offence and second, that she was also satisfied (formed a state of satisfaction) that an arrest was reasonably necessary for one or more of the reasons set out in s 99(b) of LEPRA. In her evidence, SC Harys identified those reasons as:

to stop the plaintiffs repeating the offence – in her evidence SC Harys was clear that her concern was that the plaintiffs would repeat the offence on Emma (subs (i));

to protect the safety or welfare of any person – again, the person about which Officer Harys was concerned was Emma (subs (vii)); and

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

Time in custody

The plaintiffs also contend that the period of time during which the plaintiffs were held was not reasonable, invoking the provisions of s 115(2) of LEPRA, although, by the time of final submissions, this part of the claim was effectively abandoned. I think that concession was appropriate. If I conclude that the arrest was lawful then I am satisfied that the period in which the plaintiffs were detained was not unreasonable and no part of that period gives rise to any independent claim for false imprisonment.

Three issues for determination

Leaving damages to one side, the case boils down to the resolution of three issues. The first issue is whether SC Harys complied with s 99 of LEPRA when making her decision to arrest the plaintiffs, i.e. did she form the requisite degree of satisfaction as required by the statute. The second is, if she did, is that decision vitiated in any way. The third issue is whether the decision to arrest Yasmin was unlawful for independent reasons.

Reeves v State of NSW

On the Friday before the hearing of this matter commenced, the Court of Appeal delivered a comprehensive judgment dealing with some of the difficult questions of law posed by any case that involves consideration of s 99 of LEPRA – See Reeves v State of NSW [2024] NSWCA 125 – (“Reeves”) at [108]-[124].
That decision clarifies the law, but only to a limited extent. It resolved what was said to be a conflict between, on the one hand, a decision of the Court of Appeal in State of NSW v Randall [2017] NSWCA 88 – (“Randall”), and in particular what Basten JA said in that case from about paragraphs [16]-[24] and another decision of the Court of Appeal in AD v State of NSW [2023] NSWCA 115 – (“AD”), and on the other hand, what Barrett AJA said in Jankovic v Director of Public Prosecutions [2020] NSWCA 31 – (“Jankovic”) at [26].
The Court of Appeal in Reeves determined that if there was any conflict between those two decisions – which the Court doubted – then the opinion of Basten JA, as was White JA’s explanation of Basten JA’s reasons at [73] of Jankovic, was correct and represented the authoritative statement of the law in the relevant regard.
The Court of Appeal did not grapple with precisely what Basten JA determined, in the context of a case where the second limb of s 99 is relied on by reference to subs (ix) “because of the nature and seriousness of the offence" as one of a combination of various of the reasons identified in s 99(1)(b).
In this case there is a direct issue between the parties as to what his Honour is to be taken to have decided. I need to resolve this question of law to decide this case.

LEPRA s 99

In order to understand these reasons, I set out in full s 99(1)(a)-(b) of LEPRA:

99 Power of police officers to arrest without warrant
(1) A police officer may, without a warrant, arrest a person if—
(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and
(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons—
(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.

The timing issue

The second issue of law, which Reeves does not deal with directly but must be dealt with directly in this case, is the question of the timing of any decision (and/or the formation of the requisite state of mind) said to be made by an arresting officer pursuant to both limbs of s 99 of LEPRA.
In this case, the defendant submits, and for reasons I am about to explain I accept, that as a matter of fact SC Harys made her decision to arrest the plaintiffs whilst she was still at the school, very shortly after she viewed the CCTV footage. However, the arrest did not occur for about another hour and a half. It did not take place at the school, rather it took place in the driveway of the plaintiff’s parent’s home in the presence of their parents.
The plaintiff’s submission, which again I accept as a matter of fact, is that during that period of time between when the decision was made and the arrest ultimately was effected, a number of relevant factors came to the attention of SC Harys which she deliberately did not take into account for the purpose of her decision to arrest the plaintiff for the simple reason that, in her mind, she had already made her decision, and she was not prepared to, because she did not believe she was legally obliged to, consider any information that came to her attention between the time she made the decision and the time of the arrest. In other words, she considered that, having reached the relevant state of satisfaction for the purpose of s 99(1)(b) whilst at the school, and having decided to arrest the plaintiff, the question was closed and there was no legal requirement for her to reconsider her state of satisfaction and/or her decision to arrest in light of new and relevant information. This issue raises a question of law, again involving a proper understanding of Reeves, being is there any room left for what Gummow J said in Minister for Immigration and Multicultural Affairs v Eshetu [1999] 197 CLR 611 – (“Eshetu”), to the effect that a decision made in circumstances where the decision-maker misunderstands the law and/or takes into account irrelevant factors or fails to take into account relevant factors, is not a relevant decision (state of mind) at all.

The facts

Most of the facts are uncontroversial. They are established by CCTV footage from the school as to what occurred at the school, captured on body worn footage worn by police at the time of the arrest in the driveway, and at Liverpool Police Station by CCTV footage.
There are some minor factual disputes between the parties, but all of them I think are explained by the different perspectives of those participating, the level of stress and anxiety being experienced by both the plaintiffs and their parents at the time, and the inevitable telescoping and misremembering that occurs when people are trying to remember extremely traumatic events that occurred nearly 4 years ago.
I don’t think any of the principal witnesses were doing anything other than giving their honest recollection. I have endeavoured to find facts which are consistent with the objective material, which I do have before me, taking into account the issues concerned with people’s memories to which I have referred and the inevitable prospect that, in these sorts of situations, certain events can get blown out of proportion by the effluxion of time and the level of stress involved at the time the memory is embedded. In particular, I am thinking of the evidence of SC Harys to the effect that, at the time of the arrest, the plaintiff’s father was aggressive towards her and the other officers – I have seen the video and do not accept that evidence as reliable. Whist both the plaintiff’s parents were upset and agitated and were doing their best (or to use their words – “begging”) to persuade the police officers not to arrest their daughters, they were not aggressive. If anyone was aggressive, the plaintiff’s mother was slightly more agitated than the father, who was, in the circumstances to my mind, respectful and compliant. To suggest the parents behaved inappropriately or aggressively towards the police is just not right. They behaved better than many parents would have done when confronted with up to ten police officers, arriving in five police cars, seeking to arrest their young daughters in the driveway of their home.
The other piece of evidence where there is conflict concerns an interaction at the police station where the plaintiff’s father recalls that the custody sergeant shouted at his daughters in an inappropriate manner and another officer threatened that, if they did not behave themselves, they would be put back in the cells. Again, I did not find that evidence reliable. I prefer the characterisation of the custody sergeant in that regard to the effect that, while she did speak sternly to the girls, it was in the context of her seeking to explain the situation to them, and she formed a view (albeit I think it was probably an erroneous view) that they were not taking the matter seriously.
Leaving those two matters behind, I find the following basic facts.

History

Prior to July 2020, there were significant tensions between Aya and her group of friends and another group of friends from the same year, which included at least one fight between the two groups and many arguments and threats. One of the members of the rival group of friends was Emma. As a result of an earlier incident between the groups (which, at the time, SC Harys assumed, albeit wrongly, to have been some sort of assault), Aya had been suspended during the previous school term.

Days before the incident

On 28 July 2020, Aya and Emma had a verbal fight in a classroom, which involved each of them shouting at and abusing each other, both using foul language and making threats. Aya left the school after that fight and went home. Thereafter, her mother had arranged a meeting the following morning with a teacher at the School, Mr S.
Of course, at the heart of any resolution of this ongoing issue between Aya and Emma and the two groups of girls was to determine who was the bully and who was being bullied. As is to be expected, both branded the other as the bully and themselves as the victim. Neither the police nor the teachers resolved that question at the time and for the purpose of deciding this case it is irrelevant.

29 July 2020

On the morning of 29 July 2020, Aya and Yasmin’s mother came to the school together with Aya and the plaintiffs’ 3-year-old brother and met Mr S in his office to discuss the hostility between the Aya and Emma. At some stage during that meeting, the plaintiffs’ father arrived.
The meeting continued for a time until Aya or her mother received a phone call from Yasmin. In relation to that phone call:

Yasmin described an incident that had just occurred at the school where she passed Emma on the stairs and that there were threats made by Emma to push Yasmin down the stairs and that there was an argument. Aya left the meeting with the intention to find out what was going on and to protect her sister.

Aya said that Yasmin told her that Emma had pushed her down the stairs, which, in light of Yasmin’s evidence before me, was not correct, but may very well have been what Aya understood at the time. There is no doubt the phone call occurred, and that Yasmin reported some sort of incident between herself and Emma that had taken place on a stairway in the school.

Following the phone call, Mr S told Aya not to worry about Emma and to let the school deal with it. Mr S called Ms R (the other deputy principal) and asked her to remove Emma from the playground. When Aya left the meeting, she understood she had been told to get Yasmin and to let the school deal with Emma.

The incident

Shortly after Aya left Mr S’s office, Aya and Yasmin physically assaulted Emma, by kicking and punching her until she fell to the ground and then continuing to kick and punch her. The incident was captured on the school’s CCTV, with the events from 10:15:00am to 10:15:22am being in summary:

Ms R can be seen taking Emma down a corridor, Emma is standing behind her on the phone.

As Ms R unlocks the door, Aya walks down the corridor towards Emma. Yasmin and another student follow behind. Aya says something to Emma, which attracts the attention of both Emma and Ms R.

Aya eventually meets Emma at a doorway, with Yasmin trailing behind. Ms R stands in between Aya and Emma with her arm outstretched towards Aya, clearly telling her to stop. Aya steps around Ms R, pushes Emma and then kicks Emma twice. Aya appears to then punch Emma in the head at least once. She then pulls Emma by the hair and drags her to the ground. At about this point, Yasmin, who had been watching up to this point, punches Emma rather ineffectively twice in her back.

Aya and Yasmin then stand over Emma while she is on the ground. Aya can be seen gesturing and appears to be yelling at Emma while she is on the ground. By this time, a crowd of students has begun to gather.

As Emma sits on the ground, Aya kicks her twice and then punches her at least 6 times. A number of teachers then exit the staff room. Some of the teachers attempt to separate Aya and Emma, whilst other teachers direct students away from the incident. The fight appears to dissipate once teachers arrive.

Teachers then attend to Emma, who is sitting on the ground, whilst Aya, Yasmin, and a group of other students are directed to leave through a door at the rear of the hallway.

The plaintiffs, with their father who by that time had arrived, also leave the room at the rear of the corridor and are escorted from the scene by Mr S.

Following this, the plaintiffs’ parents took their children to the gate of the school with Mr S, who appeared very upset about the situation. He was crying and mentioned that he was seeing a psychologist as a consequence of the behaviour of all of the girls involved.

The police respond

At about 10.35 am, SC Harys and SC Gordon received a priority call over the police radio to attend the school, requiring them to respond urgently. At the time they received that call, they were undertaking general duties policing in full uniform and were driving in a police sedan.
The information they were provided with generally accorded with that recorded in the police CAD log, to the following effect:

“UP TO 30 STUDENTS PHYSICALLY ASSAULTING STAFF AND STUDENTS. PREVIOUS INCIDENT INVOLVING STUDENTS LAST TERM. THREATS TO STAB OTHER STUDENTS HAVE BEEN MADE. PARENTS ARE ARRIVING AT THE SITE AND BECOMING INVOLVED.”

So it can be seen that the call out to police was not accurate and greatly exaggerated the situation. No knives were involved, no parents were involved, thirty students were not involved, at best there was three. Nonetheless, that was the information received by the police.
SC Harys and Senior Constable Gordon (SC Gordon) then responded to the school. As would be expected in light of the terms of the police call out, many other police officers (as many as ten) also responded to the school.
On arriving at the school, SC Harys and SC Gordon were met by a teacher at the front gate, the school gates were closed and the teacher allowed them entry. They were then taken to the school office where there were a number of teachers and office staff inside. SC Harys had a conversation with someone in that office and she was told the following information:

There had been an assault, that there were some issues with a group of girls involved in this assault, and that there had been previous assaults the term before. They were not told by whom. They were told that the fighting had stopped at that point;

There had been meetings to de-escalate the tensions between these two groups, which had been ongoing for some time; and

Aya had previously been suspended in relation to a previous incident involving these girls.

They were taken to Mrs R’ office, where SC Harys spoke to Mrs R and Emma. Emma was crying, she was saying that her knee hurt, and SC Harys observed Emma to be wearing a knee/leg brace, she had an ice pack on her knee, and she could tell that it was swollen. SC Harys was also told that Emma had recently had ACL surgery.
While SC Harys was making these inquiries, another officer obtained and viewed the CCTV footage of what occurred and recorded it on their MobiPol. That officer brought the recording back to SC Harys and SC Gordon and they watched the footage.
On the day, SC Harys considered the footage showed a “pretty violent and horrific assault”, an opinion that is consistent with what is shown on the CCTV, albeit in the context of a fight between schoolgirls at school. SC Harys maintained that opinion in her evidence before me. I accept that was her opinion and that it was reasonable, but only in the context of describing a fight between young schoolgirls. If the incident was between grown men, for example, whilst serious it would not be accurate to describe it as “violent and horrific”. Nothing I have said here should be taken to mean that I do not consider the behaviour of both Aya and Yasmin, judged by the standards of school children, to be appalling, reprehensible, and totally unacceptable. They have both matured into very impressive young people in the four years since, but that does not detract from how they behaved on that day. I say this even assuming (but not deciding) that Aya had been the victim of long-term bullying.
The aspects which caused SC Harys to form her opinion as to the seriousness of the assault were that the teacher was there, the teacher could be seen to put her hands up in the footage; Aya walked around the teacher and assaulted Emma and then pulled her by the hair, threw punches, pulled her to the ground and kicked and stomped on her leg. During that assault, the younger sister, Yasmin, can be seen to hit Emma in the back.
As part of her investigations, SC Harys made various note book entries, including:

She took Emma’s address and phone number, describing her as the “Vic”;

She recorded the ages of both Aya and Yasmin (fourteen and thirteen respectively) and that “Aya – main offender” and that “Yasmine – punches her on the back”; and

She noted that Aya had said to Emma, “I’ll bash you even with your injury you crippled bitch”, having been given that information by Emma that morning.

Also recorded in SC Harys’ notebook was a handwritten statement from Ms R that was taken by Constable Stanley, which was information that SC Harys was aware of. That statement is consistent with the facts I have set out above.
In addition to her specific recollection of what she was told and what she observed as described above, SC Harys had other conversations that morning including with Mr S and the school Principal, Ms G. Although she did not recall the details of those conversations, it is clear she was told further information either in those conversations or other conversations with teachers. For example:

She was told that Aya had been suspended as a result of a prior incident occurring between the two groups of girls.

She was told about Yasmin’s phone call to Aya about the incident on the stairs.

Whilst the evidence of SC Harys was a little confused and unclear in this regard, I find that it was more likely than not that she believed that Aya and Yasmin were still at the school somewhere and she did not know that they had in fact left the school and gone home with their parents.

Decision to arrest

SC Harys, whilst still at the school, made a decision to arrest both Aya and Yasmin after consulting with her partner, SC Gordon, the sergeant on duty, Sergeant Drury, and the inspector, Inspector Tetley.
SC Harys decided to arrest the plaintiffs because she considered the plaintiffs had committed an assault, which is perfectly understandable given that the CCTV footage clearly established that. There is no issue in this case about that aspect of her decision in the context of s 99(1)(a) of LEPRA. This case concerns her decision pursuant to s 99(1)(b). She said, and I accept, that whilst at the school she was satisfied the arrest was reasonably necessary for at least three of the reasons in s 99(1)(b) of the LEPRA Act, being:

the “nature and seriousness of the offence” (s 99(1)(b)(ix));

to stop the plaintiffs committing or repeating the offence of assault against Emma (s 99(1)(b)(i)); and

“to protect the safety or welfare” of Emma (s99(1)(b)(viii)).

Pausing there, while SC Harys was probed repeatedly in cross examination concerning her evidence that she was satisfied of the matters in s 99(1)(b)(ix), s 99(1)(b)(i), s99(1)(b)(viii) of the LEPRA Act, and while at times she appeared confused by the questions and demonstrated an inability to deal with hypotheticals, three matters should be observed:

first, she was steadfast that she was satisfied the arrest was reasonably necessary for a combination of the identified reasons;

secondly, the plaintiffs’ counsel never suggested to her that her satisfaction of those matters was not genuine; and

she did not say at any point or suggest that any one of the reasons on its own would have caused her to form the same state of satisfaction.

Findings as to SC Harys’ state of mind

The authorities make it clear that both limbs of s 99 require an arresting officer to form relevant states of satisfaction. Accordingly, it is necessary for me to determine what SC Harys’ state of mind was at the time of the arrest. For reasons I will explain, I find that SC Harys’ state of satisfaction at the time of the arrest was the same as it was at the school, one and a half hours earlier.

Timing

In my judgment, it was entirely clear from the totality of SC Harys’ evidence that she first made her decision that it was necessary to arrest the plaintiffs while she was still at the school. Thereafter, whatever other information came to her attention she did not take into account, because as far as she was concerned, having made the decision, that was the end of the matter and everything that took place thereafter was simply no more than her giving effect to that decision.
I find that the reasons SC Harys took into account when coming to that decision were the three reasons she identified in her evidence in chief and again in cross examination. She said, and I accept, that those reasons caused her to form a state of mind that it was reasonably necessary to arrest the plaintiffs.
Those three reasons were, by reference to the order they are identified in s 99(1)(b):

First, to stop the plaintiffs from committing a further offence on Emma (subs (i));

Secondly, to protect the safety and welfare of Emma (subs (vii)); and

Third, because of the nature and seriousness of the offence (subs (ix)).

In my opinion, it is not sensible or realistic to attempt to separate out each of those factors and consider them on their own without reference to the others. It seems to me self-evident that there is a large degree of overlap between some, if not all, of the relevant factors. For example, if one of the reasons is to stop a repeat of the offence on a particular person (s 99(b)(i)) and another of the reasons is to protect the safety and welfare of that same person, one can see that, in that context, those two reasons are really two sides of the one coin.
Moreover, and I say this notwithstanding comments which are submitted to be to the contrary by Basten JA, it seems to me that the purpose of the “nature and seriousness of the offence” reason can, and almost always will, pick up some of the other reasons, in particular the two identified by SC Harys in this case. In her own mind, SC Harys could not separate out the three reasons she identified, and it would be unrealistic to expect her to do so.
My finding as to SC Harys’ reasons is that there were three and that, in particular, there is no evidence from SC Harys, nor would I have accepted such evidence had she given it, to the effect that, even if she put to one side the first two of her reasons, she would have still been satisfied that it was reasonable to arrest simply because of what she perceived as to the nature and seriousness of the offence. That was simply not her thought process at the time. I am comfortably satisfied that her predominant reason was to protect Emma. At the time she made the decision, she believed the plaintiffs were probably still at the school, so this concern was very understandable at that point in time. Judged against what she knew at that time (and leaving to one side the question of Yasmin), to my mind SC Harys’ state of mind and decision to arrest Aya was unimpeachable. If an arrest was made of Aya at that time, it would undoubtedly have been lawful.

The law – some basic propositions

In arresting the plaintiffs, SC Harys was exercising a discretionary power conferred by s 99 of LEPRA.
The valid exercise of that power required SC Harys to hold two states of mind in respect to each of the plaintiffs. She needed to:

Pursuant to s 99(1)(a), suspect on reasonable grounds that each plaintiff had committed a criminal offence; and

Be satisfied that the arrest of each plaintiff was reasonably necessary for one or more of the reasons listed in s 99(1)(b)(i)-(ix).

Having formed both of those states of mind, it was not mandatory for her to arrest the plaintiff, rather, satisfaction of the s 99 matters is permissive. The ultimate decision to arrest is the product of a discretion as to the exercise of the power of arrest. That is a third and distinct step in the process.
It is clear that each of those two states of mind needed to be held as a matter of fact at the time of the arrest: see e.g., Ruddock v Taylor [2005] HCA 48; 222 CLR 612 at [40] (Gleeson CJ, Gummow, Hayne and Heydon JJ); Lule v State of New South Wales [2018] NSWCA 125 – (“Lule”) at [2] (Beazley P); Robinson v State of New South Wales [2018] NSWCA 231; 100 NSWLR 782 at [59] (McColl JA).
As I have said, there is no s 99(1)(a) issue before me. It is clear from her evidence that, based on a review of the CCTV footage at the school and her conversations there with Emma and Christine Ms R, SC Harys subjectively formed the suspicion that each plaintiff had committed an assault against Emma. That suspicion was based on reasonable grounds. Accordingly, it is not suggested that the arrest of the plaintiffs was unlawful by reason of a failure by SC Harys to comply with s 99(1)(a) of LEPRA.
Returning then to the question of timing. As a matter of general principle, the passage from Gummow J’s decision in Eshetu, cited with apparent approval in AD and Randall, provides significant guidance at [131]-[137]. In that passage Gummow J quoted with approval from a number of long-standing authorities including (my emphasis):

“[133] In R v Connell; Ex parte The Hetton Bellbird Collieries Ltd, Latham CJ said:
[W]here the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist.

The Chief Justice added:
It should be emphasised that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.

[136] Later, in Buck v Bavone, Gibbs J observed…
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. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.

[137] This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.”

What I take from Eshetu and the cases referred to by Gummow J, applied to s 99 of LEPRA, is as follows:

Decisions purportedly made pursuant to s 99 of LEPRA are not amenable to review on the merits.

Decisions taken purportedly under s 99 of LEPRA that involved misconstruing the terms of the relevant legislation will not constitute a relevant decision under s 99. If one or both of the relevant states of mind is infected by such an error, the ultimate decision will be void.

The relevant time for the state of mind to exist is the time of arrest.

Decisions taken (or states of mind formed) purportedly under s 99 of LEPRA which take into account irrelevant considerations or fail to take into account relevant considerations will also not constitute a valid decision under s 99.

Decisions purportedly taken under s 99 which can be shown to be manifestly unreasonable, arbitrary, irrational, or not bona fide (I will use the shorthand “Wednesbury unreasonableness”) will also be vitiated.

The question becomes, did Reeves change any of that? In Reeves at [108]-[122] Bell CJ (White and Stern JJA agreeing) confirmed that a police officer’s state of satisfaction for the purposes of s. 99(1)(b) could be impugned only by application of the principles summarised by Basten AJA in AD at [25]-[28].
In AD at [26] Basten AJA cited his Honour's previous decision in Randall at [13]. His Honour had there said:

“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 and Multicultural Affairs v Eshetu.”

As was explained by Bell CJ in Reeves at [113] in Jankovic, White JA encapsulated the point that Basten JA had made in Randall in the following terms:

“The arrest is not unlawful merely because the police officer's satisfaction of that matter is not reasonable. The question rather is as to the police officer's state of mind as to whether the arrest is reasonably necessary for one of the stated purposes”.

The debate before me concerning the true meaning of Basten JA’s statement in AD at [25]-[28], as confirmed by the Court of Appeal in Reeves at [108]-[122], is whether his Honour intended to limit grounds of challenge to a decision under s 99 to only circumstances where it can be shown that the state of mind was, in the Wednesbury sense, manifestly unreasonable or arbitrary, capricious, irrational, or not bona fide – this is the defendant’s submission.
On the other hand, the plaintiff contends that all his Honour was seeking to explain was the principles involved in a court challenge to a relevant state of mind based on unreasonableness in the Wednesbury sense, and that his Honour did not intend and ought not be taken to have determined that the other grounds summarised by Gummow J in Eshetu, to which I have referred, which includes whether the decision-maker has misdirected him or herself as to the law and/or whether the decision has taken into account irrelevant facts or failed to take into account relevant facts, remain separate and distinct avenues for challenge of such decisions in effect by route of a submission that there will be in such circumstances no relevant decision at all – this is the plaintiff’s submission.
I’ll return to the resolution of this important question later in these reasons, but before I do that I think I should summarise my findings of fact as to SC Harys’ state of mind at the time she effected the arrest of Aya and Yasmin.

Summary of my findings of fact as to SC Harys’ state of mind

I make the following finding as to SC Harys’ decision-making process:

She decided she needed to arrest both plaintiffs while she was still at the school based on the information she had been provided by several witnesses and her review of the CCTV footage.

At that time, she believed reasonably that Aya and Yasmin were possibly still at the school.

At that time, she assumed reasonably that Aya and Yasmin were likely to still be in a highly agitated state.

At that time, she did not turn her mind to any alternatives to arresting the plaintiffs.

After determining at the school to arrest the plaintiffs, she did not take into account any information she learned or observations she made thereafter that might have borne on her decision to arrest the plaintiffs.

She did not think again about whether or not to arrest the plaintiffs after making the decision at the school.

She understood that, having determined that neither a warning nor a caution pursuant to the diversionary scheme in the Young Offenders Act 1997 (NSW) was appropriate in this case, she had no choice but to arrest the plaintiffs in order to charge them with an offence.

She understood that a 'future' Court Attendance Notice could not be used to charge a child.

She did not give separate consideration to the cases of the two plaintiffs.

She did not believe, as a matter of law, that it was possible to impose bail conditions on people without them being in custody.

What happened in the driveway of the plaintiffs’ home?

When the police arrived at the plaintiffs’ home, they arrived in force. There were up to ten police officers involved and approximately five police cars parked in the street. There was a discussion between SC Harys, other police officers, the plaintiffs’ parents, and the plaintiffs in the driveway, all of which is captured on a body worn camera.
I’ve already explained that in my view the parents were entirely cooperative and, whilst obviously very unhappy about the idea of their children being arrested, did not behave in an inappropriate or aggressive manner.
What they did do, and I will use the word that they both used in their evidence, is they literally “begged” the police officers to not effect an arrest of their children, but rather offered to drive the children to the police station and indicated that if the police were concerned that there might be some escape attempt (which in the context of the discussion, would be entirely unrealistic), offered for one of the police cars to escort them. This proposal was immediately rejected by SC Harys. The plaintiffs’ father then asked if he could go in the police vehicle with his children. This proposal was also rejected.
Aya and Yasmin, who like their parents were entirely compliant, quiet, and not agitated, complied with every direction made of them by the police but, as would not be surprising, they did appear to be entirely terrified.
SC Harys gave evidence before me that the reason she did not accept the various proposals put forward by the plaintiffs’ parents, nor take into account the facts which became known to her in the driveway, being firstly that the plaintiffs were no longer at school but were at home with their parents and secondly, that they were not in an agitated state, was simply because she did not think she needed to take any account of those matters because she had already decided to effect the arrest and had formed (if she was thinking legalistically) the requisite state of mind required by s 99 whilst she was at the school.
At the time of arrest, SC Harys just did not consider the alternatives to arrest, being the parents driving the children to the police station, for the reason that she wished to protect Emma (I think that was illogical at that time) and perhaps her belief that it was not possible as a matter of law for police to grant bail on condition unless a person was in custody following arrest. She had made her decision at the school, and she was just not prepared to listen to any alternatives at all, even if they were relevant.

Applying the facts to the law

As I have said, the defendant placed great emphasis on what Basten JA said at [21]-[24] of AD, as recently confirmed by the Court of Appeal in Reeves.
His Honour said, in that case, that the only question that arose was whether the “arresting officer could reasonably have formed the opinion that it was reasonably necessary to arrest the applicant having regard to the nature and seriousness of the offence he then suspected to have been committed as well as the need to protect the safety and welfare of her family”. At [21]-[22], His Honour concluded that whilst all the other reasons set out in s 99(1)(b) are all “purposive”, subsection (ix) is not. His Honour said that it depends only on the characterisation of the offence. Such characterisation requiring an evaluative judgment against an imprecise criterion about which reasonable minds could come to different views. His point being that it will be very difficult to form an opinion that such a state of mind was unreasonable or irrational as a basis for determining that it was really necessary to arrest.
Accordingly, so the submission for the defendant goes, if I am satisfied that one of the reasons that SC Harys determined it was reasonably necessary to arrest the plaintiffs was because of her evaluation of the nature and seriousness of the offence, then there is no need, to use the metaphor applied by Barrett AJA in Jankovic, to “connect” that reason to the ultimate decision by any logical route, thereby sidestepping, if you like, the requirement for any decision to be not unreasonable in the Wednesbury sense.
I do not accept this construction of Basten JA’s reasons in the context of this case for the following reasons:

Firstly, as the plaintiff points out, if that is what his Honour meant, then what is self-evidently a discretionary decision created by s 99 has been rendered mandatory. I think such a conclusion is out of step with the words of the statute, that it is highly unlikely that Basten JA intended that result, and if he did, he would have said so in terms.

Secondly, to accept that proposition would mean that the same offence, i.e. the same “nature and circumstances” must always yield the same result. In other words, no other factors are relevant and that, regardless of any other fact or circumstance, once an officer forms a view that it is appropriate to arrest simply because of the nature and circumstances of the offence then that is what they must do. The discretion created by s 99 is no longer a discretion at all. Again, I just do not think that is right. There are so many examples one can posit of different offenders committing exactly the same offence but different conclusions as to whether they should be arrested or not being arrived at. The obvious example to be used in the context of this case is the extreme youth of the offenders.

Third, it is necessary to identify precisely what the Court of Appeal was deciding in Reeves. The question before it was what was the appropriate legal test to apply when considering a question of whether a decision made by a police officer could be vitiated on Wednesbury unreasonableness grounds. The Court was not considering, at least directly, questions such as the overall discretion involved or the important anterior questions of whether a decision in conformity with the Act had been made at all. The entire case and the reasons proceeded on the premise that there had been a relevant decision made and the question was could it be vitiated on the grounds that it was unreasonable in the Wednesbury sense.

Fourth, I do not think it is possible as a matter of fact to untangle the various reasons relied upon by SC Harys. It was not her evidence that she would have come to the conclusion based on her analysis of the nature and seriousness of the offence on its own. Rather her clear evidence was that she took the three matters into account when coming to her conclusion. In my judgment, protection of Emma was her predominant reason. Two of those matters are, to use Basten JA’s description, “purposive”. There is nothing in the authorities to suggest that Barrett AJA was incorrect when he said that there needs to be identified a logical and rational connection between one of those reasons and the decision. If there is not one, then the decision can be seen to have been invalid as a matter of law.

Finally, I do not accept that Basten JA intended the other two criteria identified by Gummow J in Eshetu, viz a misunderstanding of the legal test or a failure to take into account relevant matters, were just to be swept away and have no part to play in considering a s 99 decision. In my judgment, Reeves is authority for the basis upon which a decision/state of mind made in conformity with s 99 can be vitiated. It says nothing about purported decisions not made in line with the statute. Such decisions are not relevant decisions under the statute.

Was there a rational connection?

To my mind, judged at the time of the arrest by reference to what SC Harys knew at that time, there was no logical or rational connection between any concern that SC Harys had as to the welfare of Emma or a risk of her being again attacked by arresting the two plaintiffs. SC Harys’ clear expectation at the time of the arrest was that the plaintiffs would be released that evening, probably at around the time that they were in fact released. She said she had no expectation as to what bail conditions might or might not be imposed – indeed at one point she said that she did not take into account the prospect of bail conditions being imposed, although at another point she had said the opposite. Her view seems to have been that the only way bail conditions could be imposed was if there was an arrest. Although her evidence was very unclear, she did at one stage say that she did not take into account the possibility of obtaining a PVO against the plaintiffs, but on other occasions in her evidence said that she did take that into account, although it was unclear whether she thought that it was necessary to arrest a person prior to obtaining a PVO against them. If that is what she thought, it is quite clearly wrong as a matter of law. However, the point is that it is clear to me from her evidence that SC Harys did not consider, at the time of the arrest, the alternatives available to her which included obtaining a PVO and/or charging the plaintiff and then granting bail conditions without an arrest or period of imprisonment. Most importantly and critically, by the time of the arrest, SC Harys was confronted with the plaintiffs in the company of their parents, with the parents offering to drive the plaintiffs to the police station as an alternative to them being arrested in the full glare of the public in their front driveway. If they had gone to the station voluntarily, they would have never been put in the cell, or held in custody at all. To my mind, that alternative which was not considered by SC Harys, together with her expectation that Aya and Yasmin would be released within hours, is enough to remove any logical connection between her concerns as to the welfare of Emma and her decision to arrest.
For those reasons, I would have concluded that if the state of mind had been formed and the decision to arrest had been made in the driveway of the plaintiffs’ house, as it should have been, it would have been so unreasonable, arbitrary, or capricious so as to be vitiated on Wednesbury grounds. However, the decision was not made at that time. It was made an hour and a half earlier at the school. That raises the question of whether it was a relevant decision at all.

Timing/Failure to consider relevant material

There was in fact a reason why SC Harys failed to take into account the matters I have identified. That reason is that she had already made her decision to arrest at the school and thereafter did not consider any other facts and circumstances that came to her attention after that time. She had formed the requisite state of mind long before the arrest but then erroneously considered that state of mind to be set in stone.
It is clear beyond doubt that as a matter of law the time for assessing the decision, indeed the time for the state of mind to exist to exercise the discretion, must be at the point in time of the arrest. A decision made at that point, not taking into account all relevant facts and circumstances, is in my opinion just not a decision in conformity with the Act at all, but if it could be, it can most definitely be described as arbitrary and/or capricious. It is capricious because it was made almost as a knee-jerk reaction at the school, in circumstances where SC Harys thought it was at least a possibility that the plaintiffs were still at the school and did not know that they were in the company of their parents and was entitled to think, at that point in time, that they were in a very agitated and unstable mood. So much may be accepted as logical and rational at that point in time. However, the real point is that a decision made at an earlier point in time, that has the effect of setting the officer’s state of mind in stone, is not a decision pursuant to s 99 at all.
By the time of the arrest, SC Harys knew that the plaintiffs were compliant, respectful, and polite, as were their parents. They were nowhere near the school. There was no suggestion that they would return to the school that day. As far as the officer knew, Emma had been taken to hospital for a check-up and so she was not at the school either. The children’s parents were offering to drive them to the station. There was no suggestion of any prospect of the children escaping. SC Harys expected the plaintiffs would be released on bail in a matter of hours. All those matters were not taken into account by SC Harys because she believed she had made the relevant decision already, and so anything she learnt after that was irrelevant. In doing so she either misunderstood the statutory power, or failed to take into account relevant material, or both. This means her decision to arrest was not made in conformity with s 99 of LEPRA, and the arrest and subsequent time in police custody was unlawful.

Resolution

For those reasons I have concluded that the decision to arrest the plaintiffs was not one that was made in conformity with s 99 of LEPRA.

The separate position of Yasmin

Whilst there is, in SC Harys’ notebook, an observation as to the age difference between Aya and Yasmin at the time, together with a note to the effect that Aya was more involved in the assault that Yasmin, it was entirely clear to me from all of the oral evidence of SC Harys that she failed to consider the separate decision she was required to make in relation to Yasmin at all. Instead, she determined to treat both girls in the same way, as if they were one person. Yasmin was, of course, a year younger than Aya and at ages thirteen and fourteen that is a dramatic difference. Moreover, unlike Aya, SC Harys had no reason to think that Yasmin was involved in any of the history between the two groups of girls or had any history herself as to having been disciplined in the past for activities involving the conflict. Even when considering the nature and seriousness of the offence, as a matter of fact the main protagonist is most certainly Aya. She does most of the punching, she does the hair pulling, and she does the kicking. Yasmin comes into the incident towards the end and throws perhaps two rather weak punches towards Emma’s back. In my opinion, she is clearly conducting herself as a younger sister seeking to help out her older sister in circumstances where she would clearly have been profoundly influenced by the conduct of her older sister.
None of those very relevant factors were taken into account by SC Harys and accordingly I conclude that, even if I am wrong as to the decision made in relation to Aya, there are separate and distinct reasons why the arrest of Yasmin was not lawful and therefore her imprisonment thereafter was unlawful for its own separate reasons. Yasmin was, in SC Harys’ mind, packaged up with Aya. No real consideration was given to her separate position at all. The state of mind was reached but was capricious and arbitrary because it was infected by a fundamental legal error. Again, this means that no relevant decision was made in relation to Yasmin. The subsequent time she spent in custody was therefore unlawful.

Alternatives?

Can bail be granted by police in the absence of an arrest?

The question arises in this case, when considering whether the power exercised by SC Harys was exercised in a rational, logical, or unreasonable sense, as to whether it is appropriate or permissible to consider such alternatives as were available to her.
Barret JA in Jankovic was, in the impugned passage that is the subject of discussion in Reeves, considering whether the “reasonable necessity” requirement obliged a police officer to consider alternatives to arrest. Whatever the answer to that question might be – and it would appear on Reeves that it is not permissible to so consider – it must, in my judgment, be appropriate when considering whether a decision is rational or logical in the Wednesbury sense, to consider what other options were available to the police officer.
During the course of the hearing, the plaintiff's counsel put to SC Harys that it would have been possible, as a matter of law, to impose bail conditions on the plaintiffs without arresting them. The point was that, in circumstances where SC Harys expected the plaintiffs to be released that afternoon and whilst the conditions of any bail would not be her decision, she did anticipate that there would be bail conditions, there might be a logical connection between the arrest and the ongoing protection of Emma if, as a matter of law, it is only possible for police to grant bail in circumstances where the person was under arrest.
SC Harys indicated that it was her understanding that it was not possible for bail to be granted absent an arrest and the defendants sought to lead evidence to the effect that such understanding is commonplace amongst police officers in this state. I did not allow that evidence, because it seemed to me that whether or not bail can be granted in the absence of an arrest is an objective legal question.

Surprisingly, on what one might think is a rather important question, there does not appear to be direct considered authority one way or the other in a case where the point was argued. That may, of course, mean that the matter is considered so obvious that the point has not been taken.
In R v Wilson (No.5) [2018] NSWSC 1077, Schmidt J said at [128]:

… The Bail Act is concerned with release from custody of persons accused of offences: ss 7 and 8.

The defendant contends that that statement supports the proposition that bail cannot be granted to any person unless the person is in custody as a starting point. However, the point does not appear to have been argued before Her Honour, is not supported by reasons, and is not a necessary step towards any order. Accordingly, I consider it to be non-binding and, in the context in which it is found, not particularly persuasive.
Some of the relevant statutory provisions are as follows:

Section 7 provides:
7 What is Bail
(1) Bail is authority to be at liberty for an offence. An offence includes an alleged offence.
(2) Bail can be granted under this Act to any person accused of an offence.
(3) A person who, because of bail, is entitled to be at liberty for an offence is entitled (if in custody) to be released from custody.

That section describes bail as being “authority to be at liberty for an offence”, which suggests that bail can be granted in any circumstance once a person is charged with an offence.
Section 8 is in the following terms:

(1) The following decisions (each of which is a “bail decision") can be made under this Act in respect of a person accused of an offence-
(a) a decision to release the person without bail for the offence,
(b) a decision to dispense with bail for the offence,
(c) a decision to grant bail for the offence (with or without the imposition of bail conditions),
(d) a decision to refuse bail for the offence.
…

Section 8(a) can only apply to a person in custody, given it is a power to “release the person without bail for the offence”. Sections 8 (b) to (c) do not refer to release and are inconsistent with any presumption that the person must first be in custody. I any event, I do not think “custody” is the right question. It seems to me, that upon being served with a court attendance notice, the recipient is in a form of custody, in that they are required to present themselves to a court.
Other sections which may be relevant are:

Section 9, which provides that a decision to release a person without bail can only be made by a police officer.

Section 10, which provides that only a court or authorised justice can dispense with Bail.

Section 11, which provide that a decision to grant or refuse bail can only be made by a police officer, authorised justice or court with power to make that bail decision under the Bail Act.

Section 13, which provides that a person granted bail, or in respect of which bail is dispensed with, is required to appear in person before a court, and surrender to the custody of the court, as and when required to do so in proceedings for the offence for which the bail decision is made.

To my mind, all of the above provisions are inconsistent with a requirement that, for a person to be granted bail by police, they first need to be arrested.
Section 14 is a provision which suggests that bail can only be granted by police where the person is first in custody and that bail is a decision to release someone from custody entitling them to “be at liberty”. However, even if custody is only something that follows arrest, which I don’t think it is, it does not say that bail can only be granted in such circumstances. It provides:

14 Limitation on entitlement to be at liberty
(1) Bail does not entitle a person to be at liberty until-
(a) the person signs, and gives to the bail authority, a copy of the bail acknowledgment for the decision to grant bail, and
(b) all pre-release requirements of bail conditions have been complied with.

Pre-release requirements are dealt with in Part 3. For example, a bail condition may require an accused person, before being released on bail, to surrender his or her passport. Bail acknowledgments are dealt with in Part 4.
(2) Bail does not entitle a person to be at liberty on those occasions on which the person is required to appear before a court under his or her bail acknowledgment.
(3) Bail does not entitle a person to be at liberty while the person is in custody for some other offence, or reason, because of which the person is not entitled to be at liberty.

The plaintiffs rely upon s 43 of the Bail Act 2013. It provides:

43 Police power to make bail decision
(1) A police officer may make a bail decision for an offence if the person accused of the offence is present at a police station and the officer is:
(a) a police officer of or above the rank of sergeant and present at the police station, or
(b) for the time being in charge of the police station.

(1A) A police officer of or above the rank of sergeant at a hospital may make a bail decision for an offence if—
(a) the person accused of the offence is present at the hospital to receive treatment, and
(b) in the opinion of the police officer, it is not reasonable to take the person to a police station due to the person’s incapacity or illness.

(1B) A police officer of or above the rank of sergeant at a mental health facility (within the meaning of the Mental Health Act 2007) may, despite subsection (3), make a bail decision for an offence if the person accused of the offence is detained in the mental health facility for assessment under section 33 (1) (a) or (b) or (1D) (a) or (b) of the Mental Health (Forensic Provisions) Act 1990 and has been found on assessment at the mental health facility not to be a mentally ill person or mentally disordered person.
(2) The police officer may—
(a) release the person without bail, or
(b) grant bail (with or without the imposition of bail conditions), or
(c) refuse bail.

(3) A police officer cannot make a bail decision if—
(a) a bail decision for the offence has been made by a court or authorised justice, or
(b) the accused person has already made a first appearance for the offence and bail has been dispensed with.

(4) A police officer cannot grant bail or release a person without bail if the accused person has been arrested under a warrant to bring the person before a court for sentencing.
(5) Despite subsection (4), a police officer may grant bail to a person arrested as referred to in that subsection if the police officer is satisfied that exceptional circumstances justify the grant of bail.

In my opinion, s 43(1) is reasonably clear in its terms. The only precondition to the grant of bail is that the person be present at the police station.
Finally, s 17(3) of the Bail Act specifies the factors to be taken into account when the “accused person is not in custody”. Again, I think this provision is reasonably clear. It only has meaning if it applies to people not in custody.
As I said, it is surprising that the answer to this question is not clear-cut by decided cases. In my judgment, the combined effect of the proper construction of all of the sections, to which I have drawn attention, is that bail can be granted by police in circumstances where the person has not been arrested. So much is reasonably clear from the plain words of s 17(3) of the Bail Act. None of the other provisions, taken indirectly or together, suggest the opposite.
Because the question is important, it was urged on me by the defendant to not seek to decide it in this matter but rather to come to the conclusion that the question is one of some legal complexity, and that even if SC Harys got the answer to that question wrong, it would not invalidate her decision.
Unfortunately, I do not think that is correct. If it be right, as was suggested by SC Harys in some of her evidence, that she did not consider as an alternative simply inviting the plaintiffs with their parents to come down to the station to then engage the various processes prior to a decision being made as to whether they were to be charged or not, and effect that charge and grant the plaintiffs bail, then to my mind, she will have failed to have considered a relevant factor but also has failed to consider a viable alternative. The existence of that alternative in my opinion makes the state of mind held by SC Harys at least unreasonable, but also arbitrary or capricious. At the very least, she has taken into account an irrelevant fact, or failed to take into account a relevant fact being that, if the plaintiffs came to the police station voluntarily with their parents and were then charged, bail could have been granted on the same conditions, therefore affording Emma the same level of protection.
In my judgment, the answer to the legal question posed, is it possible for police to grant bail without first arresting that person and therefore having them in their “custody”, is yes. The failure by SC Harys to understand this infected her decision to the extent that she failed to consider an obvious and sensible alternative to arrest. It made her decision at least unreasonable in the Wednesbury sense. It probably means there was no relevant decision made at all.

Damages

Having concluded that the arrest of both plaintiffs was unlawful, I now need to consider the question of damages.
The defendants have urged upon me that the outcome of the case in those circumstances would be a very modest award of damages. The plaintiffs, on the other hand, contend that the damages ought to be substantial and must, so the submission goes, include components for aggravation and exemplary damages.

General damages

The assessment of general damages for false imprisonment involves an evaluative judgment about which minds may differ: Costa v Public Trustee of NSW [2008] NSWCA 223 at [37], [39] (Ipp JA) and [103]-[105] (Basten JA); State of New South Wales v Abed [2014] NSWCA 419 at [218] (Gleeson JA; Bathurst CJ and Macfarlan JA agreeing). It is often a matter of “opinion, impression, speculation, and estimation”: Clifton v Harris [2012] NSWCA 229 at [56] – [57] per Basten JA.
The damages may take into account the effect on the plaintiffs’ liberty, their dignity and reputation: State of New South Wales v Abed [2014] NSWCA 419 at [218] (Gleeson JA; Bathurst CJ and Macfarlan JA agreeing) and any mental upset that they have suffered: State of New South Wales v. Riley [2003] NSWCA 208 at [117].
Often the compensation is awarded for the “initial shock” upon being arrested, which may be the basis for an award of damages: Ruddock v Taylor [2003] NSWCA 262 per Spigelman CJ at [49]: Zaravinos v State of New South Wales [2004] NSWCA 320; (2004) 62 NSWLR 58 at [52] per Bryson JA.
Although it is accepted that each case must be looked at individually when assessing damages for false imprisonment and assault, it is instructive to have regard to amounts that have been awarded in other cases; Spautz v Butterworth & Anor [1996] NSWSC 614; 41 NSWLR 1.
The plaintiffs, while accepting the above principles, emphasise the following factors. First, the plaintiffs were both extremely young. They gave direct evidence, which I accept, that they were terrified at the point of being arrested and during the entire period they were in custody. I accept the experience would have been the most traumatic thing that had happened to them in their life, and I think it is reasonable to infer that this is a reasonable reaction to the circumstances they found themselves in. Secondly, it is not irrelevant that the actual arrest took place in the plaintiffs’ driveway in the presence of either nine or 10 police officers, with five police vehicles being parked in the street. The shock, humiliation, embarrassment, and distress of that circumstance cannot, in my opinion, be underestimated. Third, an inevitable consequence of the arrest was, unless one of the plaintiffs’ parents arrived at the police station at the same time, that they were going to spend a period of custody in individual cells. This happened. They each spent somewhere approaching 15 minutes in a cell. That was a terrifying and humiliating experience for anyone, let alone young schoolgirls. Thereafter the entire period of time was spent in the custody area in the presence of numerous adult, alleged criminals and numerous police officers. During that period, whilst the plaintiffs were told by the custody sergeant that “there were facilities available”, that was not explained to them, nor was there any door marked as the toilet or bathroom door. Each door looked like a door to one of the cells. They may have been able to work out which door was the bathroom by observing people going in and out, but they did not do so. The point is they were not told where the bathroom was. It seems, as a direct consequence of not knowing where the toilet was, Aya wet her pants whilst in custody. Moreover, during the period they were in custody, neither plaintiff was offered any food or water by any police officer. Whilst I can infer that some water would have been available, it does not appear to have been obvious, and I am told in evidence that there was in fact no food available for them. Finally, following the actual arrest the plaintiffs were transported to Liverpool Police Station in the back of a police vehicle without the presence of their parents, notwithstanding their parents’ request that, at the very least, they travel with them. Again, this must have been terrifying.
I have been referred to a number of cases by the defendant, said to involve lengthier detentions and aggravating features consistent with the plaintiffs, as follows:

In Coyle v State of New South Wales [2006] NSWCA 95, the Court of Appeal awarded $10,000 in general damages where the plaintiff was in custody for 2.5 hours but in circumstances where the plaintiff had been wrongfully arrested on a train surrounded by people, handcuffed, and marched through a crowd of people.

In Rook v State of NSW (No.3) [2015] NSWDC 154, the plaintiff was awarded general damages of $9,500, where he was arrested in front of his house, suffering the humiliation of his neighbours knowing what was going on, he was taken to Waverley Police Station, and he was detained for 1 hour and 32 minutes.

In State of New South Wales v Smith [2017] NSWCA 194, the plaintiff was arrested at his home in front of his family, after being woken up late at night. He was subjected to a pat-down search and was driven in the back of a police wagon to a police station along windy country roads for more than ½ an hour, he was then placed in an enclosed lock-up area within the single room of the station. He was placed under arrest at 9.30pm and released from police custody at about 1.00am the next morning. The primary judge awarded the plaintiff $20,000 for false imprisonment. This Court rejected the State's challenge to the award.

In Ussher v State of NSW [2017] NSWDC 189, Mr Ussher was searched, arrested, claimed to have been assaulted and kept in custody for over 2 ½ hours before being released in the middle of the night. Although Mr Ussher was unsuccessful in his case, general damages were assessed in the sum of $5000.

In Randall v State of NSW; Dickens v State of NSW; Jensen v State of NSW (unreported, 21 June 2023, DCJ Curtis), each plaintiff received $5,000 for detentions of 2 hrs 14 mins (Randall) and 5 hrs (Dickens and Jensen).

In Jamal v State of New South Wales [2020] NSWDC 377, the plaintiff was awarded $7000 in general damages, when he was arrested and searched at his home, his property was taken from him, and his phone examined, and he was then detained for 8 hours at the police station.

In Edwards v State of New South Wales [2021] NSWSC 181, the trial judge contingently assessed general damages in an amount of $10,000, would have been awarded for a 4-hour detention if the Court had found for the plaintiff.

The plaintiff has referred me to four decisions including Vignoli v Sydney Harbour Casino [1999] NSWSC 1113; (2000) Aust Torts Reports 81-541, State of New South Wales & Anor v Coleman [2000] NSWCA 183, Zaravinos v State of New South Wales [2004] NSWCA 320; 62 NSWLR 58, and State of New South Wales v Delly [2007] NSWCA 303; (2007) Aust Torts Reports 81-920 and has pointed out that none of the cases referred to by the defendants involved 13- or 14-year-old children. I think it is reasonable to conclude that the shock, fear, humiliation, and embarrassment involved would be much more pronounced for 13- or 14-year-old girls. All of these cases involved awards significantly greater than those relied on by the defendant. A summary of each of these cases is as follows:

Vignoli v Sydney Harbour Casino [1999] NSWSC 1113; (2000) Aust Torts Reports 81-541(Bergin J) – Six-hour detention at Casino with some similar aggravating features (General Damages of $30,000, Aggravated Damages of $10,000, Exemplary Damages of $35,000).

State of New South Wales & Anor v Coleman [2000] NSWCA 183 (Mason P, Meagher, and Fitzgerald JJA) – 2-and-a-half-hour detention at Waverly Police Station (General Damages of $28,000 held not to be outside permissible range).

Zaravinos v State of New South Wales [2004] NSWCA 320; 62 NSWLR 58 (Santow and Bryson JJA, Adams J) – 3-hour detention at Penrith Police Station (Global Award of $25,000 for General, Aggravated, and Exemplary Damages upheld).

State of New South Wales v Delly [2007] NSWCA 303; (2007) Aust Torts Reports 81-920 (Ipp, Tobias, and Basten JJA) – Detention for several hours at Queanbeyan Police Station after failure to provide reason for arrest (General Damages of $25,000, Exemplary Damages of $10,000).

I should say at this point, that the “counterfactual” accepted by the plaintiffs is that instead of being arrested when they were, the request of their parents that they be driven down to the station would have been accepted, and that after a period of about five or six hours at the police station they would have been charged and released on bail and subject to the PVO.
However, the significant difference between the scenarios is, firstly, they would not have been arrested in public; secondly, they would not have been driven in a police car with police officers that they did not know without their parents to the station; third, that they would have spent no time in a cell; fourth, that they would have spent no time in custody in the presence of alleged adult criminals, rather they would have been in the public area of the police station; fifth, that they would have had access to both their mother and father during that time, as opposed to just the father because only one support person was allowed to visit them whilst in custody; sixth, they would have known and been able to make use of toilet facilities; and seventh, they would have had food and water.
Whilst the line between general damages and aggravating factors is, it seems to me, a little bit hard to define, it does seem to me that the failure of the police, whilst they had the plaintiffs in their custody, to offer them food and water and to properly explain where the toilet facilities were, is an aggravating factor which entitles both plaintiffs to some extra damages for aggravation.
Taking all those matters into account and having considered the various authorities I have been referred to, I have determined to award both plaintiffs the sum of $15,000 for general damages and $10,000 for aggravated damages.
As far as exemplary damages are concerned, the legal principle was explained in Lule, per Macfarlan JA (with whom Barrett JA agreed):

98. Exemplary damages “go beyond compensation and are awarded ‘as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself’” (Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 8; [1987] HCA 47). Further, “[t]he object, or at least the effect, of exemplary damages is not wholly punishment and the deterrence which is intended extends beyond the actual wrongdoer and the exact nature of his wrongdoing” (ibid at 9). Usually an award of exemplary damages will be founded upon “conscious wrong doing in contumelious disregard of another’s rights” (Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [14]).

Whilst I do not find that SC Harys consciously did the wrong thing, in the sense that she actually knew that the decision she was making was not in conformity with the statute, I have concluded that SC Harys’ decision was infected by at least two serious errors. The first is that, having made her decision (formed the state of mind) at the school, she thereafter steadfastly refused to take into account any relevant factors not known to her at that time but known to her at the time of arrest and, secondly, I do think that, at the time of the arrest, there was no logical connection between her desire to protect Emma from further assaults and the arrest, in circumstances where she knew that the plaintiffs would almost certainly be released that evening. That lack of logic would have been obvious to her if she had considered the statutory question at the correct time, taking into account all relevant factors then known to her.
Whilst exemplary damages are not intended to be wholly punishment, they are intended to deter not just SC Harys but all police officers from proceeding in similar circumstances and making the same fundamental statutory error.
Moreover, as I have said, there is a separate and distinct reason why the arrest power was miscarried in relation to Yasmin. I am satisfied that no individual consideration was given to the decision concerning the arrest of Yasmin. That was a serious failure to understand the important statutory power being exercised and it is necessary for there to be some exemplary additional damages for Yasmin over and above those for which I think both Aya and Yasmin are entitled.
Accordingly, in relation to both Aya and Yasmin, in addition to the award of general damages, I award exemplary damages of $5000. Yasmin is entitled to a further $5000 exemplary damages to take account of the serious error involved in the decision-making process concerning her arrest. The simple fact is that SC Harys did not turn her mind to Yasmin’s arrest at all other than assuming that she was to be dealt with like Aya. SC Harys did not form a relevant state of mind concerning Yasmin and she failed to comply with the requirements of s 99.

Conclusion and orders

For those reasons, I have decided that the plaintiffs were both falsely imprisoned on the afternoon of 29 July 2020 for a period of approximately six hours. This is because the arrest of the plaintiffs by SC Harys at about 11:30 am was not lawful and thereafter there was no legal basis for the police to deprive the plaintiffs of their liberty.
I award both plaintiffs $15,000 general damages and $10,000 aggravated damages. I award each plaintiff exemplary damages of $5000 and I award Yasmin a further $5000 exemplary damages.
My orders are as follows:

Judgment for the first plaintiff in the sum of $30,000, together with interest.

Judgment for the second plaintiff in the sum of $35,000, together with interest.

Direct the parties to seek to agree as to interest and costs and bring in short minutes of order giving effect to these reasons.

Interest and costs

I would think that the damages had all crystallised on 29 July 2020, and that the plaintiffs are entitled to interest at the court rates since that time. Neither party made any submissions as to interest, I shall hear them as to whether interest is payable if they can not agree.
Again, prima facie the plaintiffs are entitled to the cost of the proceedings, but I will give either party liberty to apply to adduce evidence or make submissions contrary to that prima facie position.
What I propose to do in the circumstances is to adjourn the matter for directions at 9:30am on 19 June 2024, with a view to finalising the award and the question of costs.

**********

Amendments

11 June 2024 - Anonymised teachers names

12 June 2024 - Paragraph [44] - further anonymisation.

Decision last updated: 24 September 2024

Medium Neutral Citation:	Ghanem v State of New South Wales [2024] NSWDC 213
Hearing dates:	27 May 2024 – 29 May 2024 and 31 May 2024
Date of orders:	7 June 2024
Decision date:	07 June 2024
Jurisdiction:	Civil
Before:	Newlinds SC DCJ
Decision:	(1) Judgment for the first plaintiff, together with interest. (2) Judgment for the second plaintiff, together with interest. (3) Direct the parties to bring in short minutes of order giving effect to these reasons. (See paras [130]-[133]).
Catchwords:	TORTS — Trespass to the person — False imprisonment — Wrongful arrest — Total deprivation of liberty — Statutory authority — s 99 LEPRA — Proper construction of s 99 LEPRA — Timing of formation of relevant state of mind and decision to arrest — State of mind formed by taking into account irrelevant considerations or failing to take into account relevant considerations, or by otherwise misconstruing the terms of s 99 LEPRA — no relevant state of mind formed — State of mind/decision manifestly unreasonable, arbitrary, or irrational — Damages — General damages — Aggravated damages — Exemplary damages — Remedies — Bail Act 2013 — Ability of police to grant bail to a person charged with offence but not arrested
Legislation Cited:	Bail Act 2013 s 7-11, s 13-14, s 17(3), s 43 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99(1)(a)-(b)
Cases Cited:	AD v State of NSW [2023] NSWCA 115 Clifton v Harris [2012] NSWCA 229 Costa v Public Trustee of NSW [2008] NSWCA 223 Coyle v State of New South Wales [2006] NSWCA 95 Edwards v State of New South Wales [2021] NSWSC 181 Jamal v State of New South Wales [2020] NSWDC 377 Jankovic v Director of Public Prosecutions [2020] NSWCA 31 Lule v State of New South Wales [2018] NSWCA 125 Minister for Immigration and Multicultural Affairs v Eshetu [1999] 197 CLR 611 R v Wilson (No.5) [2018] NSWSC 1077 Randall v State of NSW; Dickens v State of NSW; Jensen v State of NSW (unreported, 21 June 2023, DCJ Curtis) Reeves v State of NSW [2024] NSWCA 125 Robinson v State of New South Wales [2018] NSWCA 231; 100 NSWLR 782 Rook v State of NSW (No.3) [2015] NSWDC 154 Ruddock v Taylor [2003] NSWCA 262 Ruddock v Taylor [2005] HCA 48; 222 CLR 612 Spautz v Butterworth & Anor [1996] NSWSC 614; 41 NSWLR 1 State of New South Wales & Anor v Coleman [2000] NSWCA 183 State of New South Wales v Abed [2014] NSWCA 419 State of New South Wales v Abed [2014] NSWCA 419 State of New South Wales v Abed [2014] NSWCA 419 State of New South Wales v Delly [2007] NSWCA 303; (2007) Aust Torts Reports 81-920 State of New South Wales v Smith [2017] NSWCA 194 State of New South Wales v. Riley [2003] NSWCA 208 State of New South Wales v. Riley [2003] NSWCA 208 State of NSW v Randall [2017] NSWCA 88 Ussher v State of NSW [2017] NSWDC 189 Vignoli v Sydney Harbour Casino [1999] NSWSC 1113; (2000) Aust Torts Reports 81-541 Zaravinos v State of New South Wales [2004] NSWCA 320; (2004) 62 NSWLR 58 Zaravinos v State of New South Wales [2004] NSWCA 320; 62 NSWLR 58
Category:	Principal judgment
Parties:	Aya Ghanem (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: Mr E. Anderson (Plaintiffs) Mr N. Newton (Defendant) Solicitors: One Group Legal (Plaintiffs) Norton Rose Fulbright (Defendant)
File Number(s):	2022/265575
Publication restriction:	Non-Publication Order pertaining to the name of the young person who was the subject of the assault and to the name of the school.