Loader v The Queen & Anor - [2012] HCATrans 355

[2012] HCATrans 355

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M43 of 2012

B e t w e e n -
IAN PAUL LOADER
Applicant
and
THE QUEEN
First Respondent
SECRETARY TO THE DEPARTMENT OF JUSTICE
Second Respondent

Office of the Registry
Melbourne No M44 of 2012

B e t w e e n -
IAN PAUL LOADER
Applicant
and
THE QUEEN
First Respondent
SECRETARY TO THE DEPARTMENT OF JUSTICE
Second Respondent
Applications for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2012, AT 1.23 PM

____________________

MR M.J. CROUCHER, SC: May it please the Court, I appear with my learned friend, MS H.V. SPOWART, on behalf of the applicant. (instructed by Victoria Legal Aid)

MR B.L. SONNET: If the Court pleases, I appear on behalf of the first respondent. (instructed by Solicitor for Public Prosecutions (Vic))

MR O.P. HOLDENSON, QC: May it please the Court, I appear in this matter of behalf of the second respondent, the Secretary to the Department of Justice. (instructed by Russell Kennedy Pty Ltd)

HEYDON J: Yes, Mr Croucher.

MR CROUCHER: If your Honours please. Whilst, as it has been pointed out in the submissions of our learned friends, the elements of the Monitoring Act offences were not wholly included in the elements of the substantive offences of indecent assault, the elements of the substantive offences of indecent assault were wholly included, but within the elements of the Monitoring Act offences.

The steps in that reasoning are these. First, section 40 of the Monitoring Act when read with the mandatory conditions of such an order, an extended supervision order or the like in section 15(1) and subsection (2)(a), provide effectively that a person subject to an extended supervision order – which I might call an ESO if I may, or an interim ESO – must not commit a “relevant offence”. By item 6 of Schedule 1, and in section 3 of the Act, a relevant offence is an indecent assault. Here, the indecent assaults that were alleged in a substantive offence were also pleaded respectively as the particulars for the two Monitoring Act offences, and that is spelt out in the second respondent’s submissions at page 134 of the application book.

Accordingly, the acts and the elements that gave rise to the Monitoring Act offences included within them the substantive offences of indecent assault in this case. In Pearce, which is at tab 9 of the bundle of materials, in the joint judgment of Justices McHugh, Hayne and Callinan at paragraph 18 of their Honours’ joint judgment, this Court accepted that:

the plea in bar goes to offences the elements of which are the same as, or are included in, the elements of the offence for which an accused has been tried to conviction or acquittal.

In this case, you will see from the application book at page…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] HCATrans 355
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between the appellant, Loader, and the respondents, The Queen and the Commissioner of Police. Loader sought to recover damages for alleged wrongful arrest and detention. The case was heard by Heydon and Bell JJ in the Supreme Court of New South Wales.

The central legal issue before the court was whether the police officers had reasonable grounds to suspect that Loader had committed or was about to commit an offence, which would justify his arrest and detention under the relevant provisions of the *Crimes Act 1900* (NSW). This involved an examination of the information available to the arresting officers at the time of the arrest and whether that information constituted a reasonable suspicion.

The court considered the evidence presented regarding the circumstances of Loader's arrest. It was held that the arresting officers did not possess sufficient information to form a reasonable suspicion that Loader had committed or was about to commit an offence. The court applied the legal principle that a suspicion, to be reasonable, must be based on facts which are not merely fanciful or speculative, but which are such as would lead a reasonable man to entertain the suspicion. The information available to the officers was found to be insufficient to meet this threshold.

Consequently, the court found that Loader's arrest and detention were unlawful. The appeal was allowed, and the matter was remitted to the trial court for the assessment of damages.

Orders