HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJSTATE OF NEW SOUTH WALES APPELLANT
AND
BRADFORD JAMES ROBINSON RESPONDENT
New South Wales v Robinson
[2019] HCA 46
Date of Hearing: 3 September 2019
Date of Judgment: 4 December 2019S119/2019
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation
J K Kirk SC with P D Herzfeld for the appellant (instructed by McCabe Curwood Pty Ltd)
D R J Toomey SC with D C Morgan and D J Woodbury for the respondent (instructed by Foott, Law & Co Solicitors)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Police – Arrest without warrant – Where s 99(1) of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) provides that police officer may, without warrant, arrest person if police officer suspects on reasonable grounds that person is committing or has committed offence and police officer is satisfied that arrest is reasonably necessary for one or more specified reasons – Where s 99(3) provides that police officer who arrests person under s 99 must, as soon as is reasonably practicable, take person before authorised officer to be dealt with according to law – Where police officer had not formed intention to charge arrested person with offence at time of arrest – Where police officer had not formed intention to bring arrested person before authorised officer to be dealt with according to law at time of arrest – Where arrested person brought claim for damages for wrongful arrest and false imprisonment – Whether arrest unlawful.
Words and phrases – "answer a charge for an offence", "arrest", "arrest without a warrant", "as soon as is reasonably practicable", "authorised officer", "dealt with according to law", "false imprisonment", "improper purpose", "intention to charge", "investigation period", "police officer", "power to arrest", "purpose of arrest", "suspects on reasonable grounds".
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 4, 99, 105, 109, 113, 114, 115, 116.
KIEFEL CJ, KEANE AND NETTLE JJ. This is an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales (McColl and Basten JJA, Emmett A-JA dissenting) that the power of arrest without warrant under s 99 of the Law Enforcement (Powers and Responsibilities) Act2002 (NSW) ("LEPRA") is conditional upon the arresting police officer having determined by the time of arrest that the person to be arrested will be charged with the offence of which he or she is reasonably suspected.
For the reasons which follow, the appeal should be allowed. Although the only permissible purpose of arrest under s 99 of LEPRA is to take the arrested person before an "authorised officer"[1] to be dealt with according to law, it is not necessary that the arresting police officer have determined at the time of arrest that the arrested person will definitely be taken before an authorised officer…
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- Case
- [2019] HCA 46
- Decision Date
CaseChat Overview and Summary
The central legal issue before the High Court was whether an arrest made under section 99(1) of the *Law Enforcement (Powers and Responsibilities) Act 2002* (NSW) is rendered unlawful if the arresting police officer has not, at the time of the arrest, formed an intention to charge the arrested person or to bring them before an authorised officer to be dealt with according to law. This question required the Court to interpret the purpose and requirements of the power of arrest without warrant as provided by the Act.
The High Court allowed the appeal, overturning the decision of the Court of Appeal. The Court reasoned that while section 99(1) permits arrest without warrant if a police officer suspects on reasonable grounds that a person is committing or has committed an offence and is satisfied the arrest is reasonably necessary for specified reasons, section 99(3) mandates that the arrested person must be taken before an authorised officer as soon as is reasonably practicable. However, the Court clarified that it is not a prerequisite for a lawful arrest under section 99(1) that the arresting officer must have definitively decided at the moment of arrest that the person will be brought before an authorised officer or charged. The Court distinguished the current legislative framework from earlier provisions, noting that the *Law Enforcement (Powers and Responsibilities) Act 2002* (NSW) provides a regime for the completion of investigatory procedures after arrest. The Court held that the trial judge was correct in finding the arrest lawful, as the absence of an unqualified intention to charge at the time of arrest did not render it unlawful.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: BELL, GAGELER, GORDON AND EDELMAN JJ
Full text does not contain this section.