New South Wales v Robinson

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HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

STATE 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 2019

S119/2019

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.

  1. 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.

  2. 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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Details
Case
[2019] HCA 46
Decision Date

CaseChat Overview and Summary

The case of *New South Wales v Robinson* involved a claim for damages for wrongful arrest and false imprisonment brought by Mr Robinson against the State of New South Wales. The dispute arose from an arrest made by a police officer under section 99(1) of the *Law Enforcement (Powers and Responsibilities) Act 2002* (NSW). A key factual element was that the arresting officer had not formed an intention to charge Mr Robinson with an offence, nor had they formed an intention to bring him before an authorised officer to be dealt with according to law at the time of the arrest. The High Court of Australia considered the lawfulness of this arrest.

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

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 to be dealt with according to law or, therefore, charged.[1]LEPRA, s 3(1) (definition of "authorised officer").The facts On 8 October 2013, Roselyn Singh reported that she had received threatening telephone calls and been blackmailed by the respondent ("Mr Robinson"). On 9 October 2013, an apprehended violence order ("AVO") was made in her favour against Mr Robinson. The order restrained Mr Robinson from, among other things, harassing Ms Singh, engaging in conduct that intimidated her, deliberately damaging or interfering with her property, or contacting her "by any means whatsoever" except by Mr Robinson's lawyer. On 16 October 2013, the AVO was extended until further order. At the relevant times, Mr Robinson ran a website with an associated email address: "brad@datatheft.com.au". That email address had been used to contact Ms Singh. Ms Singh had blocked receipt of emails from the address but, on 18 December 2013, one of her employees informed her that he had received an email from it. Ms Singh checked her computer and found the email in her junk box. After reading the email, Ms Singh replied to the employee to the effect that she would "forward to detective – this is a breach of his [Mr Robinson's] Bail conditions". On 20 December 2013, Ms Singh attended the Town Hall Police Station and reported her concerns. She made a signed statement in which she deposed that Mr Robinson had attempted to contact her, and her employees, colleagues, business partners and others, to "inform them I [Ms Singh] have been defrauding people and am under police investigation". She stated that she had "blocked this email address". Ms Singh named the employee who had contacted her regarding the email from the "brad@datatheft.com.au" email address, and stated that on finding it in her junk box she had opened it and found it to be as follows: "Hi, Everybody,Hope you are all well. Thought you might like to know Ms Singh and her company UTSG Consortium Pty Ltd (Sydney City Medical) are being wound up.She finally tried to rip off somebody who had the financial clout to fight back.[Link to a web address at creditorwatch.com.au]You will notice in the article, Singh registered my blog name 'Data Theft Australian' as a business names [sic]. This is another scam Singh uses to convince victims she owns certain businesses or organisations. She did the same with City Clinic and other competitor businesses in the Sydney CBD.Kind regardsBrad". So far as appeared from the email, Ms Singh's employee had received it from "Brad Robinson" and it had, presumably, been sent to the employee's email address and other unidentified email addresses.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, KEANE AND NETTLE JJ (dissent) BELL, GAGELER, GORDON AND EDELMAN JJ
Given that context, and given in particular as part of that context that s 105 expressly provides for each of the several possible ways in which an arrest may now be finalised (as opposed to the sole outcome of taking an arrested person before a proper officer that applied under s 352 of the Crimes Act and kindred provisions the subject of consideration in Bales v Parmeter and Williams v The Queen), a construction of s 99(1) which requires an arresting officer to have made an unqualified decision at the time of arrest to take the arrested person before an authorised officer to be dealt with according to law is, as Emmett A-JA reasoned[83], necessarily precluded. To treat Bales v Parmeter, Drymalik v Feldman and Williams v The Queen as determinative of the correct construction of the current form of s 99 would not only fly in the face of the express terms of s 99 as amended by the 2013 LEPRA amendments, but run directly counter to the clear legislative purpose of Pt 9 of LEPRA of providing a regime "whereby police are empowered to detain persons in custody after arrest for the completion of investigatory procedures"[84]. [83]Robinson v New South Wales [2018] NSWCA 231 at [253].[84]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 26 June 1997 at 11234.Conclusion and orders It follows that the trial judge was right to hold that Mr Robinson's arrest under s 99 of LEPRA was not rendered unlawful by reason of Constable Smith not having formed an unqualified intention to charge Mr Robinson at the time of arrest. The appeal should be allowed. The orders of the Court of Appeal should be set aside and in their place it should be ordered that Mr Robinson's appeal to the Court of Appeal be dismissed with costs. Mr Robinson should pay the State of New South Wales' costs of the appeal to this Court. This appeal concerns whether a police officer has the power to arrest a person, without warrant, under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA") when, at the time of the arrest, the officer had not formed the intention to charge the arrested person. The answer is "no". In Bales v Parmeter[85], Jordan CJ provided a clear statement of the law in New South Wales: an arrest can only be for the purpose of taking the arrested person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for an offence. An arrest merely for the purpose of asking questions or making investigations in order to see whether it would be proper or prudent to charge the arrested person with a crime is an arrest for an improper purpose and is unlawful. That straightforward, single criterion has been repeatedly cited with approval in New South Wales and elsewhere[86]. In making that statement, Jordan CJ was expressing the effect of s 352 of the Crimes Act 1900 (NSW)[87]. Nothing done in LEPRA (in its original or amended form), or for that matter in any of the intervening legislative amendments which will be examined, has displaced that single criterion. [85](1935) 35 SR (NSW) 182 at 188-190.[86]Ex parte Evers; Re Leary (1945) 62 WN (NSW) 146 at 147; R v Jeffries (1946) 47 SR (NSW) 284 at 287-288; Drymalik v Feldman [1966] SASR 227 at 233-234; R v Banner [1970] VR 240 at 249-250; R v Clune [1982] VR 1 at 10-11, 18; Williams v The Queen (1986) 161 CLR 278 at 283, 293-294, 306-307. See also R v Stafford (1976) 13 SASR 392 at 400-401; R v Larson and Lee [1984] VR 559 at 568-569; Dowse v New South Wales (2012) 226 A Crim R 36 at 46 [27]. [87]Bales (1935) 35 SR (NSW) 182 at 189.Facts

Ratio Decidendi

Legal Principle Established

Established by: BELL, GAGELER, GORDON AND EDELMAN JJ

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