Reeves v State of New South Wales

Case •

[2023] NSWDC 196

•

13 June 2023

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: Reeves v State of New South Wales [2023] NSWDC 196
Hearing dates: 22, 23, 24 May 2023
Date of orders: 13 June 2023
Decision date: 13 June 2023
Jurisdiction:Civil
Before: Abadee DCJ
Decision:

See paragraphs 253 - 256

Catchwords:

TORTS – intentional torts – wrongful arrest– plaintiff charged with stalking offence against a complainant – Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) – whether arrest lawful – whether arresting officer honestly and reasonably suspected offence committed – whether officer satisfied arrest was reasonably necessary - Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99(1)

TORTS – false imprisonment - whether period of detainee in custody was unreasonable - whether investigator had legal right to ask questions of a suspect when suspect indicated wish not to participate in an interview – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – ss 113, 115, 116

TORTS – malicious prosecution – whether suggested prosecutors acted with malice – whether reasonable or probable cause

STATUTORY INTERPRETATION – liability of public authorities - Civil Liability Act 2002 (NSW), s 43A – whether provision sets a standard for conduct – whether operation is predicated upon antecedent lawful exercise of power

EVIDENCE –- whether Weissensteiner principle could be invoked by the State to justify police officer’s arrest - Jones v Dunkel inference should be drawn from defendant’s unexplained failure to call custody manager in the police station and an alleged ‘prosecutor’

WORDS AND PHRASES – meaning of ‘injury’ and ‘intent to cause injury’ – Civil Liability Act 2002 (NSW), s 3B(1)(a) – claim of intentional tort of false imprisonment – whether mere deprivation of liberty suffices to constitute ‘injury’

Legislation Cited:

Civil Liability Act2002 (NSW) ss 3B, 43A

Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 8, 13

Criminal Procedure Act1986 (NSW) s 214

Evidence Act 1995 (NSW) ss 138, 140

Law Enforcement Powers and Responsibilities Act 2002 (NSW) ss 32, 99, 109, 113, 114, 115, 116, 117, 231

Cases Cited:

A v New South Wales (2007) 230 CLR 500

AD v State of New South Wales [2023] NSWCA 115

ASIC v Hellicar (2012) 247 CLR 345

Azar v DPP [2014] NSWSC 132

Beckett v State of New South Wales [2015] NSWSC 1017

Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714

Davies v The Queen [2014] VSCA 284

Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658

Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514

Houda v State of New South Wales (2005) Aust Torts Rep 81-816; [2005] NSWSC 1053

Hyder v Commonwealth of Australia [2012] NSWCA 336

Jankovic v DPP [2020] NSWCA 31

Jones v Dunkel (1959) 101 CLR 298

Ling v Pang [2023] NSWCA 112

Maddenv The State of New South Wales [2022] NSWDC 647

Martin v R [2017] NSWDC 82

McIlraith v R [2017] NSWCCA 13

Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326

New South Wales v Ibbett (2005) 65 NSWLR 168

New South Wales v Williamson (2012) 248 CLR 417

Puntoriero v Water Administration Ministerial Corp (1999) 199 CLR 575

Queensland Bulk Water Supply Authority (t/as Seqwater) v Rodriguez & Sons Pty Ltd (2021) 393 ALR 162; [2021] NSWCA 206

R v Clarke (1997) A Crim R 414

R v Plevac (1995) 84 A Crim R 570

R v Quach [2002] NSWCCA 519

R v Rondo [2001] NSWCCA 540

R v Taleb [2019] NSWSC 241

Ruddock v Taylor (2005) 222 CLR 612

South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513

Southern Properties (WA) Pty Ltd v Executive Director, Dept of Conservation and Land Management (2012) 42 WAR 287

Spedding v State of New South Wales [2022] NSWSC 1627

State of New South Wales v Randall [2017] NSWCA 88

State of New South Wales v Robinson (2016) 93 NSWLR 280

The Queen v Baden-Clay (2016) 258 CLR 308

Trobridge v Hardy (1955) 94 CLR 147

Weber v Greater Hume Shire Council (2019) 100 NSWLR 1

Texts Cited:

C Sappideen & P Vines, Fleming’s The Law of Torts (10th ed, Lawbook Co)

G Mullins, S Grant & R Douglas, Civil Liability Australia + Cases (electronic subscription, LexisNexis)

Criminal Law Bench Book

D Villa, Annotated Civil Liability Act 2002 (NSW) (3rd ed, 2018, Thomson Reuters

NSW Legislative Council, Second Reading Speech Law Enforcement (Powers and Responsibilities) Amendment (Arrest Without Warrant) Bill 2013, 13 November 2013

Category:Principal judgment
Parties: Benjamin Reeves (plaintiff)
State of New South Wales (defendant)
Representation:

Counsel:
Mr A Canceri with Mr S Boland for the plaintiff
Mr J Sexton SC with Mr J Lee for the defendant

Solicitors:
Australian Criminal & Family Lawyers for the plaintiff
Wotton + Kearney for the defendant
File Number(s): 2022/0014365
Publication restriction: Nil

REASONS FOR JUDGMENT

Introduction

The factual background

The process for deciding to arrest Mr Reeves

The content of the evidentiary material relied upon by police

The complainant’s witness statement (21 October 2020)

Rafael Policastro’s witness statement (21 October 2020)

Carolyn Scarpino’s witness statement (22 October 2020)

Chris Dyson’s witness statement (20 October 2020)

Lemvelo Faapoi’s witness statement (21 October 2020)

The COPS entries

DS Michaelson’s evidence

The circumstances of the arrest

Conduct inside Chatswood Police Station

Mr Reeves’ evidence

DS Michaelson’s evidence

Process for charging Mr Reeves

Obtaining the APVO

The institution and maintenance of the Local Court proceeding

Mr Reeves’ representation to police

The hearing in the Local Court on 17 May 2021

LIABILITY ISSUES

The elements of the charge of ‘stalking’ and principles of construction

Statutory provisions and applicable principles concerning wrongful arrest

Consideration of legality of arrest

The suspicion element

The satisfaction requirement

The standard for challenging the satisfaction element

The legal standard for review

Section 99(1)(b)(ix)

Findings about DS Michaelson’s state of mind

The action in battery

The post-arrest search

False imprisonment

Statutory provisions

Consideration

Time in the interviewing room

Period after charging

Malicious prosecution

Principles

Consideration

The ‘prosecutors’

Malice

Absence of reasonable or proper cause?

Does the Civil Liability Act apply?

Statutory provisions and principles

The plaintiff’s evidence

Consideration

“Injury” for the purposes of s 3B(1)(a)

Intent to cause injury

The s 43A CL Act defence

Consideration

SUMMARY & ORDERS

REASONS FOR JUDGMENT

Introduction

  1. At about 6:35pm on 22 October 2020 the plaintiff, Mr Benjamin Reeves, was walking along on the footpath of Miller Street in North Sydney. At that point he had lived in McMahons Point for about 19 years. Since his working life began nearly 35 years before, Mr Reeves had been working in the professional services industry, including tenure as the Chief Executive Officer of the Australian Association of Graduate Employers. He had never had any trouble with the criminal justice system to this point.

  2. But at this time and on this date, Mr Reeves was arrested. He was informed by the arresting officer, the then Detective Senior Constable (now Detective Sergeant) Michaelson, that he was under arrest for ‘stalking’. DS Michaelson was in the company of another officer, Detective Langerak. Both of the police officers were plain-clothed. In front of some passer-by’s on the footpath, as well as motorists and cyclists proceeding down a usually busy road, Mr Reeves was subjected to a ‘pat down’ search and placed in the back of a police car. In the backseat of the police vehicle, he was handcuffed on the wrists. He was conveyed to Chatswood police station, where he was subjected to another pat search. After being fingerprinted and photographed, he was placed in a holding cell, colloquially known as ‘the dock’. Acting Sergeant Vickery read Mr Reeves his rights under Part 9 of the Law Enforcement Powers and Responsibilities Act 2002 (NSW)( “LEPRA”) at about 7:30pm.

  3. At about 7:45pm that night, Mr Reeves was given the opportunity to speak to a lawyer. He rang Mr Osman Samin; who told him about his right to silence. Mr Reeves told the Custody Manager (Acting Sergeant Vickery) that he did not wish to participate in any interview. But notwithstanding that indication, at about 8:10pm he was taken by two officers to an interview room, in which a camera or cameras were located. Mr Reeves repeated his desire not to participate in the interview, but in response to that particular indication, DS Michaelson asserted that he had a ‘common law right to interview’ him. After some introductory questions, Mr Reeves re-asserted that he did not wish to participate and in the interview invoked his right to silence. In the face of this indication, DS Michaelson continued questioning him in an interview which he estimated lasted up to 20 minutes. Some, but not all, of the questions constituted putting allegations made by the complainant and other witnesses. Mr Reeves essentially stayed silent through to the end of the interview.

  4. At 8:40pm, DS Michaelson asked Mr Reeves to consent to a forensic procedure, comprising photos, which Mr Reeves did. That process was completed at 8:50pm. Shortly after this, DS Michaelson charged Mr Reeves with the offence of stalking. After that, the officer applied for, and was granted by a Local Court Magistrate, an Apprehended Personal Violence Order (APVO) and served it upon Mr Reeves in custody.

  5. At about 9:08pm that evening, DS Michaelson created a Court Attendance Notice, in which he charged Mr Reeves with contravening s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), essentially of stalking the complainant, Ms Hannah Scarpino.

  6. At 9:51pm that evening, DS Michaelson updated the case narrative which had originally been created by Officer Abda in the COPS database. That narrative was later transposed to a Police Facts Sheet.

  7. At about 11:00pm, Mr Reeves was released from Chatswood Police Station on conditional bail. One of his bail conditions was that he was prohibited from entering a large number of streets within his home suburb of McMahon’s Point.

  8. On 28 October 2020, Mr Reeves pleaded not guilty to the charge.

  9. On 29 January 2021, Mr Reeves’ lawyer made representations to Officer Abda inviting the withdrawal of the charge. The representations were considered internally within the Police by Officer Abda, and a number of police officers, between March and April 2021 and it was determined that the proceeding should continue.

  10. The stalking charge was heard in the Downing Centre on 17 May 2021 when Barko LCM dismissed the charge. His Honour also ordered that the prosecutor pay Mr Reeves his professional costs under s 214 of the Criminal Procedure Act 1986 (NSW).

  11. On 21 April 2022, Mr Reeves commenced this proceeding against the State of New South Wales (the ‘State’). He claimed compensatory, aggravated and exemplary damages for wrongful arrest, false imprisonment and malicious prosecution.

  12. On 5 September 2022, the State filed its Defence. The State did not dispute that it would be vicariously liable for any torts committed by SC Bachar Abda and DS Michaelson (whose conduct was primarily in focus) as ‘police officers’.

  13. The issues for adjudication are:

  1. the legality of Mr Reeves’ arrest on 22 October 2020 under s 99 LEPRA, with particular reference to the questions:

  1. whether DS Michaelson suspected on reasonable grounds that Mr Reeves had committed an offence; and

  2. whether he was satisfied that it was reasonably necessary to arrest Mr Reeves for any one or more grounds; and

  1. whether the test for review is whether his state of satisfaction was unreasonable, arbitrary, capricious, irrational or not bona fide; and

  2. (if it was) whether DS Michaelson’s state of satisfaction was unreasonable, arbitrary, capricious, irrational or not bona fide.

  1. whether Mr Reeves was subject to a battery in the course of his arrest for the purposes of s 32 of the LEPRA (when he was searched) or s 231 of the LEPRA (when he was handcuffed);

  2. whether the period of detention after Mr Reeves’ arrest, until his release on bail, was unreasonable;

  3. whether Mr Reeves’ transfer from his holding cell in Chatswood Police Station to an interview room constituted a separate act of false imprisonment;

  4. whether the charging and prosecution of Mr Reeves was malicious, with reference to:

  1. whether DS Michaelson and Officer Abda acted honestly and with reasonable and probable cause;

  2. whether they acted maliciously.

  1. whether the provisions of the Civil Liability Act 2002 (NSW) (the ‘CL Act ’) for regulating the civil liability of the State for any of the alleged torts were excluded from operation by reason of s 3B(1)(a) of that legislation;

  2. (if not) whether and to what extent s 43A of the CL Act applies to Mr Reeves’ claims;

  3. Mr Reeves’ entitlements, and the quantum of such entitlements, for compensatory, aggravated and exemplary damages for:

  1. false imprisonment;

  2. battery; and

  3. malicious prosecution.

  1. As to the last of these issues, towards the end of argument at the hearing, it was common ground that further oral submissions on damages should be deferred until after the Court had made ‘liability’ findings so that the parties had the opportunity to consider those findings. Although this led to some fragmentation of the hearing, that was not overtly significant; no one suggested any need for supplementary evidence and it suited the parties to make submissions on damages on the basis of known findings by the Court, not on the basis of multiple permutations of possible findings. This was not to say, however, that some of the evidence of the plaintiff relevant to his damages claim was not also relevant to other issues including, notably, the question whether the operation of the CL Act was excluded under s 3B(1)(a).

The factual background

  1. Mr Reeves was born in England, received his education and started his career in that country. After obtaining a qualification as a Chartered Accountant and commencing work at Deloitte, in London, he shifted to a Human Resources role within that firm. He worked at Deloitte for about 11 years. In the next 2 to 3 years, he worked at a law firm, in the Human Resources division before moving to Australia in 1999. From then until 2005, he had HR roles in various professional organisations in Sydney (Arthur Anderson, Phillips Fox and KPMG). In 2006, he joined the Australian Association of Graduate Employers. Thereafter he became the Chief Executive Officer of that organisation.

The process for deciding to arrest Mr Reeves

The content of the evidentiary material relied upon by police

The complainant’s witness statement (21 October 2020)

  1. As at 21 October 2020, Ms Hannah Scarpino was 21 years of age. She was employed at the Zimmermann clothing store in Westfield in the Sydney CBD.

  2. Whilst she was working one day in the middle of September 2020, she stated that she noticed a man (Mr Reeves) coming down the escalator outside the store. She stated that the man “waved at me and kept walking and continued down the escalated level 3. I waved back because I thought he was friendly.”

  3. Ms Scarpino reported this incident to the manager of the store, Ms Michelle Lee, in the context of expressing her embarrassment about the episode. The two of them laughed it off.

  4. About a week later, whilst in the food court of Westfield Sydney, the complainant stated that the same man who she waved to a week before came up to her and put his hands up and made the sound of ‘raaa’. She stated that “it was like he was trying to scare me in a joking manner, like we were friends”. She could not remember whether he actually said anything, and left. Ms Scarpino also reported this episode to the store manager, Ms Lee.

  5. One week after the last incident at the food court, Ms Scarpino stated that she began to notice the man in the food court “more and more”. There was no interaction between her and the man on these occasions and there was no suggestion that the man had noticed her.

  6. But at about the same time, Ms Scarpino stated that she began to notice the man “standing outside the store next to a structure pole. He was not doing anything noticeable. He is pretending to be in a zone or daydream”. On 19 September, Ms Scarpino sent a text to her boyfriend, Rafael Policastro complaining of the incident. That text was the first page of Exhibit D.

  7. In the beginning of October 2020, between about 5:30 and 6:00pm, Ms Scarpino got on the train at Town Hall station with her boyfriend, Rafael Policastro. It was headed towards the North Shore (Ms Scarpino lived in or near McMahons Point). The next stop was Wynyard station. Mr Reeves walked downstairs in the carriage of the train to where Ms Scarpino was seated. (Mr Reeves lived in McMahons Point as well). There was no suggestion that Mr Reeves noticed her.

  8. On 5 October 2020, Ms Scarpino was walking in Westfield and about to enter the Zimmermann store. Mr Reeves said “Excuse me” and the two of them began a conversation about a range of topics, including the new Botannica range of dresses at Zimmermann, the circumstance that Mr Reeves liked Ms Scarpino’s dress; whether she worked over the long weekend; whether she was studying and the fact that Mr Reeves had just attended a yoga retreat. Mr Reeves introduced himself as “Ben” and the two shook hands. This turned out to be last occasion that Ms Scarpino saw Mr Reeves. A video recording – from multiple angles - of Mr Reeves walking through Westfield Centre, was in evidence (Exhibit E). At certain points during that video, Mr Reeves did pause and apparently looked through store windows; although it was not clear in the video recording which store he was looking through.

  9. On the morning of 8 October 2020, Ms Michelle Lee was working with Ms Scarpino. She said that she heard a report about Mr Reeves approaching the complainant three days before. Ms Lee told Ms Scarpino that she would call Westfield security and explained what she knew from the previous few weeks whilst expressing her view that it was inappropriate behaviour.

  10. On 9 October 2020, Ms Scarpino said she had a conversation with Westfield’s security supervisor, who she knew as ‘JP’ (and was probably Mr Faapoi). She reproduced in her witness statement the following statement:

“I reviewed the footage. The way the man was acting was concerning. He wasn’t following you. I can’t show you the CCTV footage, but he came into the sender and was loitering outside Rimowa store (a suitcase store near Zimmermann), and as soon as he saw you, it came to you. Then after the interaction left the centre. He was in the centre for less than 10 minutes. I think you should go to the police about it.”

  1. Ms Scarpino later complained to the police on 11 October.

  2. On 20 October 2020, Ms Scarpino heard a report from her mother (Mrs Carolyn Scarpino) that the latter’s partner (Mr Chris Dyson) had seen a man whose description matched Mr Reeves loitering outside a café near Ms Scarpino’s home; looking at the post office. Ms Scarpino told police that she started crying and felt scared. She questioned herself why Mr Reeves was there and why he was following her. She stated to police that she felt fearful for her own safety and that of the boyfriend. She stated that because of his behaviour she felt she had to adjust her behaviour so as to avoid seeing him. No longer did she eat her lunch in the food court at Westfield.

Rafael Policastro’s witness statement (21 October 2020)

  1. Mr Policastro is the complainant’s boyfriend. He also worked in Westfied in a store called Balenciaga, three stores away from Zimmermann; and on the same level (level 4).

  2. On 30 September, at about 5:30pm, he was walking down escalators from Level 4 to Level 3, which were near the Zimmermann store. He located what he thought was Mr Reeves.

  3. At about 6pm on 8 October 2020, Mr Policastro was leaving work. He stated that he saw Mr Reeves walking towards the escalators, near Zimmermann, at a time when that store was closed. Mr Policastro took it upon himself to approach Mr Reeves and asked him what he was doing. It is no exaggeration to say that he was effectively interrogating Mr Reeves, but the questioning was polite, in its content. Materially, Mr Policastro said to him “one of the girls in a store said that you have been making them uncomfortable recently” and “you might be making them uncomfortable by approaching them when you don’t really know them”. According to his police statement, Mr Reeves ‘acted shocked like he didn’t know what I was talking about’. Then Mr Policastro asked Mr Reeves point-blank “what is your reason for approaching people you don’t know?”, to which Mr Reeves responded “I was just being friendly”. Mr Policastro took a 15 second colour video of their interaction. This brief recording was Exhibit F.

  1. Mr Policastro then followed Mr Reeves who was approaching Wynyard Railway Station. He noticed that Mr Reeves (who he estimated was 50 metres in front of him) kept looking over his shoulders and was rubbing at the side of his face. Mr Policastro took a photo of him. A photo of Mr Reeves at Wynyard Station was included in Exhibit D. Both of them got on the train, which was headed towards the North Shore. Mr Policastro took another photo of Mr Reeves in the carriage, leaning against a pole (also included in Exhibit D). Mr Policastro stated that Mr Reeves had seen him and ‘flinched’. He also stated that after the train stopped at Milsons Point station, after initially pausing when the doors of the carriage opened, and as it appeared that they were just about to close, Mr Reeves suddenly ‘rushed’ off the train. In his opinion, Mr Reeves was ‘doing it to make sure I didn’t follow him.’

  2. Mr Policastro stated to police that Ms Scarpino keeps telling him that ‘she is very stressed and scared to go to and from work because of Mr Reeves’.

Carolyn Scarpino’s witness statement (22 October 2020)

  1. Mrs Scarpino is the complainant’s mother. She lives at McMahon’s point with her partner (Chris Dyson ) and the complainant.

  2. Mrs Scarpino gave what may be referred to as ‘complaint evidence’, regarding reports that she received from the complaints about the incidents concerning the plaintiff. She indicated, amongst other things, that the complainant had shown her a video on her phone of the man who had been following her.

  3. More materially, however, Mrs Scarpino stated that at about 9am on 19 October, she was standing outside the “Piato” restaurant, at Blues Point Road McMahon’s Point, waiting for her coffee. She stated that she saw the man who she thought looked very familiar and similar to the male in the video that the complainant had shown her. She stated that this man (Mr Reeves) walked past her and was about 3 m away. He walked past the post office and looked in the door.

  4. Piato café and the Post office are approximately 300 m away from Mr Reeves’ home address.

Chris Dyson’s witness statement (20 October 2020)

  1. Chris Dyson is Carolyn Scarpino’s de facto partner. Mrs Scarpino told him about the sighting of Mr Reeves earlier in the day. He was at home at that point and tried to look for him, but could not find him. He needed to go into the city for work and intended to purchase camera equipment. He returned home by train and arrived at North Sydney train station before starting off on the walk home.

  2. At about 12:30 pm on 19 October 2020, he was walking home from work when he saw Mr Reeves on Blues Point Road (he was wearing the brown jacket that Mrs Scarpino had reported him as wearing earlier in the day). He stated that Mr Reeves walked past him and Mr Dyson took a photograph on his mobile phone. But Mr Dyson was dissatisfied with the quality of that photograph so he turned around to get in front of Mr Reeves. Once he had done so, he took his phone again and tried to attract Mr Reeves attention by asking him “Don’t I know you”. He took the photograph and thereafter walked home and sent the photo to Mrs Scarpino.

Lemvelo Faapoi’s witness statement (21 October 2020)

  1. Mr Faapoi was Westfield’s Security Supervisor. On 21 October 2020, he passed on to police CCTV footage on a USB depicting Mr Reeves between 16:05 and 16:20 on 5 October 2020.

The COPS entries

  1. At 7:00pm on 11 October 2020, Senior Constable Lagana created the first of the relevant entries in COPS. The complainant’s name was identified, but at that stage, Mr Reeves’ name had not been identified.

  2. Later that same evening, at 11:18pm, SC Lagana supplied a narrative. This, was essentially, concerning complaints about a POI’s conduct between 21 September 2020 and 11 October 2020. It set out the incidents described by the complainant up to 11 October 2020.

  3. On 20 October 2020, the complainant emailed SC Lagana informing him that Mr Reeves had been spotted near her home address at a café near her premises in North Sydney and indicated that she was concerned for her own for her safety.

  4. At 5:50pm on 21 October 2020, Officer Bachar Adba, recorded that Sydney City Detectives had been apprised of the incident and took carriage.

  5. At 1:39am on 22 October 2020, Officer Abda created a COPS entry. Mr Reeves had still not been identified by name. The narrative recorded for this particular entry later formed the basis for the content of the ‘Full Facts’ in the Court Attendance Notice which DS Michaelson prepared later that day after Mr Reeves’ arrest.

  6. At 9:51pm on 22 October 2020, DS Michaelson recorded Mr Reeves’ arrest (and cautioning) on the COPS. A pertinent part of this entry (Exhibit A, p 74) was as follows:

“FEARS HELD BY VICTIM: The victim holds significant concerns by this behaviour. The accused’s continuous approach of her and loiering (sic) outside of work, combined with his recent attending of a café near her house has her significantly concerned for her safety.

FEARS HELD BY POLICE: This behaviour exhibited by the accused is concerning. This type of ‘stranger’ approach without knowledge of the victim and continuos (sic) stalking is often a forerunner to more serious violence offences. Police hold significant fears that without a Personal Violence Order being placed upon the accused he will continue to attend the victims (sic) work, near her house or approach on public transport.”

DS Michaelson’s evidence

  1. DS Michaelson prepared a witness statement (12 April 2021) which was relied upon in the Local Court, and was part of Exhibit A. The State called him as a witness in this proceeding.

  2. On 21 October 2020, at about 4pm, he was briefed and reviewed the evidence contained in what he described as the ‘case file’.

  3. At about 5:00pm that day, he attended Westfield Mall Security office where he spoke to Mr Faapoi and was supplied with a USB containing footage on 5 October 2020 referred to above.

  4. At 3:43pm on 22 October 2020, he received an email from Detective Adba, who had on-sent to him the results of an ‘iAsk’ request made by police to the RMS. The results disclosed Mr Reeves’ name and address. Detective Abda thanked DS Michaelson for his help. DS Michaelson acknowledged that he realised that Mr Reeves lived merely 350 metres away from the complainant’s address. He was challenged about his consideration (or lack thereof) in connecting the information received from the RMS and his own awareness of the complainant’s address: he believed that it was relevant information for the purpose of arresting Mr Reeves.

  5. On 22 October 2020, it was DS Michaelson, in company with Detective Langerak, who drove towards Mr Reeves’ address but saw him on Blue Street in North Sydney. At about 6:40pm, he pulled his car over and arrested Mr Reeves.

  6. DS Michaelson informed Mr Reeves that he was going to activate his Body Worn Video Camera to capture their conversation (which was Exhibit 2.1). During the course of that recorded conversation, DS Michaelson informed Mr Reeves that he was under arrest for stalking (which Mr Reeves attested to understanding). He told Mr Reeves that the latter was not obliged to do or say anything but anything he said or did could be recorded and used in Court. There followed a brief conversation in which, relevantly, Mr Reeves denied knowing anyone in the Zimmerman store by name. DS Michaelson explained that Mr Reeves would be taken back to (North Sydney) police station and foreshadowed that he would be put in custody and introduced to the custody manager where he would be informed of his rights. He explained that there would be a need to handcuff him whilst he was travelling in the rear of the police sedan. He organised to take Mr Reeves to the nearest custody station, which happened to be Chatswood police station. It was when he was seated in the rear of the vehicle that DS Michaelson placed handcuffs on Mr Reeves to prevent any chance of assault upon him or his colleague or injury to Mr Reeves himself.

  7. After arriving at Chatswood police station, Mr Reeves was placed into ‘dock 2’ in the charge room. Mr Reeves was introduced to Acting Sergeant Vickery who, at 7:30 pm, read Mr Reeves his rights under Part 9 of the LEPRA.

  8. When asked by the State’s Senior Counsel what evidentiary material he had regard to in deciding to arrest him, DS Michaelson referred to: CCTV footage of Mr Reeves, police witness statements from the complainant, Hannah Scarpino; her boyfriend, Rafael Policastro, and Lemvelo Faapoi (regarding the CCTV footage) and the COPS entry narrative. He emphasised that it was principally the complainant’s evidence and the CCTV footage that he had in mind.

  9. He acknowledged reading the COPS narrative entries of Constable Lagana (11 October 2020 and also 21 October at 04:58). He was challenged about his asserted reliance upon the witness statements of the complainant and her boyfriend and accepted that it was possible he might have been mistaken. He came to accept that he had relied upon the COPS entries and the CCTV footage.

  10. DS Michaelson said he turned his mind to whether Mr Reeves had committed an offence. He indicated that he had done so and that he had in mind the offence of stalking. He emphasised that Mr Reeves had approached the complainant, or was in her vicinity, a number of times. The CCTV footage at Westfield corroborated this.

  11. He said he considered alternatives to arresting Mr Reeves. These were, firstly, to issue a ‘field charge’ Court Attendance Notice (CAN); the second was to issue a Future CAN (to accompany an application for an Apprehended Violence Order). He said that taking the evidence as a whole, he did not consider that he had any other option but to arrest Mr Reeves. He emphasised that, in his (14 year) experience, he had seen strangers approaching younger females repeatedly as a forerunner to more serious offending; including even homicide. A ‘field charge’ CAN could take up to 6 weeks.

  12. DS Michaelson was vigorously challenged about the decision to arrest Mr Reeves. The officer accepted that he had received no evidence of any interaction between Mr Reeves and the complainant from 5 October 2020. He accepted that by his email at 3:43pm on 22 October, Detective Abda conveyed his recommendation that Mr Reeves be arrested, but said that this was his own decision. He denied that Detective Abda told him to make the arrest and said that he relied upon his own view. Later in re-examination, he said that he was senior in rank to Detective Abda and would not arrest Mr Reeves simply because Detective Abda told him to. It was also put to him that he only read the complainant’s statement (and that of her boyfriend) after arresting Mr Reeves, and that this had occurred in the police station in the lead up to his interview. DS Michaelson accepted that he read these witness statements in the police station but disputed the suggested timing.

  13. DS Michaelson was referred to exchanges of text messages with Detective Abda on 21 and 22 October 2020 (Exhibit B). At 8:41pm, he texted Detective Abda:

“No commented the ERISP

All I got out of him was he was British.”

  1. This was a reference to the interview with Mr Reeves.

  2. At 9:02pm, he sent a further text to Detective Abda:

“It was him but he lives in that immediate area”

  1. I infer that this was recognition, or perhaps an understanding, on DS Michaelson’s part, that although Mr Reeves had been sighted on 20 October 2020 at a café in McMahons Point, he lived nearby.

  2. It was put to DS Michaelson, although DS Michaelson denied it, that he did not supply any material information to Detective Abda that was not inculpatory of Mr Reeves.

  3. He said that he believed that it was inappropriate to apply (to the Local Court) for an APVO instead of arresting Mr Reeves: he did not consider that this did not reflect the risk to the complainant’s safety and regarded this option as an insufficient response to the nature and seriousness of the alleged offending.

  4. Later under cross-examination, DS Michaelson was asked why he did not just adopt the option of getting a Future CAN alongside an AVO. He accepted that this alternative course was possible but said he believed that it was not appropriate. By arresting Mr Reeves, a judicial proceeding had been commenced and he was motivated to protect the complainant. In response to this explanation, it was suggested that a judicial proceeding could be commenced by a Future CAN. The officer did not disagree; but he then said that bail conditions could align with the application for an AVO. It was then pointed out that the bail conditions would be expected to mirror the terms of an AVO. DS Michaelson did not disagree with this, but rejected the proposition that an AVO might alleviate the risk of Mr Reeves approaching the complainant. DS Michaelson was aware, though, that an AVO could be served without arresting Mr Reeves.

  5. It was put to DS Michaelson, but he denied, that he decided to arrest Mr Reeves since he wanted to appease the complainant. The officer said that he was concerned about her safety.

The circumstances of the arrest

  1. A video recording of the circumstances of the arrest was in evidence (Exhibit 2.1). My observations of the arrest included that the arrest still occurred when the daylight was good. It occurred in a busy street in North Sydney. Many motorists (and some cyclists) were travelling along the road. There were some pedestrians who were passer-bys. DS Michaelson and Officer Langerak were wearing plain clothes. Mr Reeves was smartly dressed, in a navy blazer and open neck shirt. He appeared calm and was not conspicuously distressed once it was explained to him that he was under arrest. DS Michaelson foreshadowed what would occur after the arrest, including Mr Reeves being transported to (what was then expected to be North Sydney) the Police station. It struck me that, as civilly as possible, the officers asked Mr Reeves to empty his pockets of his personal property. Mr Reeves was pat-searched. This was done without unnecessary fanfare. DS Michaelson said words to the effect that he sought to limit embarrassment to Mr Reeves. Mr Reeves readily co-operated.

  2. More revealingly, DS Michaelson explained that ordinarily, an arrested person would be transported to a police station in a truck. But DS Michaelson explained, in effect, that because of the positive impression Mr Reeves had created and his cooperation during the period of arrest, the police officers were willing to transport him back in their sedan vehicle. However, he also explained, in effect, that the price for Mr Reeves being transported in the sedan was that he would need to be handcuffed in the rear seat of the vehicle and seated alongside Officer Langerak.

  3. Prior to Mr Reeves being guided into the car, DS Michaelson also foreshadowed that when he was at the police station, Mr Reeves could expect to be spoken to further about the allegations.

  4. Mr Reeves was positioned on the rear seat of the vehicle when he was handcuffed.

  5. In his evidence in the hearing, DS Michaelson explained why he ‘pat’ searched Mr Reeves. This was to ensure Mr Reeves’ safety and also his own. He accepted that there may have been an alternative to searching him in the street as the place where it was conducted. But the alternative was to do it by the use of a different kind of vehicle – a caged police truck. He said he wished to limit the sense of ‘imposing’ on Mr Reeves; and further, that if he did call for a truck, it could take upwards of half an hour for it to arrive. Although Mr Reeves was handcuffed in the rear seat of a police van, at least it was in a sedan rather the rear of a caged truck. Indeed, he slightly delayed the handcuffing until Mr Reeves was in the car to limit embarrassment to him.

  6. The police officers drove Mr Reeves to Chatswood police station. It was the closest station where Mr Reeves could be placed in custody. A body worn video recording of the drive was in evidence (Exhibit 2.2). Not all of that drive was audio recorded. But in the initial stages of the drive, DS Michaelson asked Mr Reeves some questions. They concerned how his day was, where he lived and his line of work. Mr Reeves provided some answers, to a degree, which were sometimes hard to decipher, but not very material. But unsurprisingly, he queried why he was being asked questions. DS Michaelson clarified that he was only seeking to engage in “chit chat” and would postpone questions about the allegations against Mr Reeves until later. Whilst the ‘background’ questions appeared on their face innocuous, in my view, it was imprudent for DS Michaelson to ask them at all. Objectively, they could have been construed as an attempt to elicit information about Mr Reeves that the police may not already have had; whatever DS Michaelson’s motivation for asking them. At any rate, Mr Reeves’ apparent suspicion at being asked them was justified. (It may be noted, of course, that there would have been no opportunity for questions, of the ‘chit chat’ variety or any other variety, if Mr Reeves had instead been transported in a caged police truck).

  7. But after the vehicle entered into the garage section of the police station, the handcuffs on Mr Reeves were removed and as the occupants of the vehicle entered into the station (proper), Mr Reeves not only did not complain about what occurred in the vehicle on the trip over, but engaged in what appeared to be a light-hearted discussion about the handcuffs.

Conduct inside Chatswood Police Station

  1. At about 7:21pm, Mr Reeves arrived at Chatswood police station. At 7:23pm, he was read his rights pursuant to Part 9 of the LEPRA. This was apparently done by Acting Sergeant Vickery.

Mr Reeves’ evidence

  1. Mr Reeves explained that he had been placed in a holding cell within the police station (also referred to as ‘the dock’).

  2. At 7:43pm, Mr Reeves spoke to his solicitor. This was Mr Samin. He mentioned that when he spoke by phone in the station to the solicitor, police officers were in the vicinity; although he could not say that they could hear what the solicitor was advising or informing him.

  3. When he was taken out of his cell, he was not informed that he was being taken to a room to be interviewed, or indeed where he was going at all.

  4. He was taken into the interview room at about 8:08pm. When taken into the room, he said he felt anxious. An electronically recorded interview commenced at 8:10pm. When asked questions, he said he felt scared: he thought that having indicated once that he wanted to exercise a right to silence, this might cause the termination of the interview altogether.

  5. The interview concluded at 8:30pm. After the interview, he was returned to the cell (the door being closed and locked). He recalled a long wait. Meanwhile others (who he recalled as being intoxicated and screaming at police) were put into an adjacent cell. DS Michaelson gave some evidence about this, and redacted versions of the custody management records of the two individuals detained around 8:45pm and 9:00pm were in evidence (Exhibits 3.1 and 3.2).

  6. Mr Reeves also recalled being asked to fill out paperwork by the duty officer. He said he noticed that a bail condition included an apparent restriction upon his freedom of movement in his own suburb; and says he was told that if he did not agree to the condition, he may need to stay in custody. He was shown a map and noted that the space for the restriction appeared to encompass his post office, a dry cleaner, café and ferry access; which he now thought was ‘off limits’. He apprehended that this would cause inconvenience to him, who had lived in McMahons Point since 2001.

  7. In cross-examination, it was pointed out that the bail condition concerning the area for restriction of his movement was varied 5 days later and that he had made no further application. He said that he did not know why it had not been varied earlier.

DS Michaelson’s evidence

  1. DS Michaelson acknowledged that the fingerprinting and photographing of Mr Reeves upon arrest was standard procedure. He said that he was in the vicinity when Sergeant Vickery read Mr Reeves his rights.

  1. DS Michaelson said that it was standard procedure for arrested persons to be placed in a holding cell. It would be inappropriate to conduct any interview there. Interviews needed to be filmed and sound recorded, and the equipment used for that purpose was not portable. He accepted that he did not tell Mr Reeves where they were going, or for what purpose, after leading Mr Reeves out of his cell and telling Mr Reeves to follow him.

  2. A video recording of the ERISP was played in Court (Exhibit 2.3). My observations of the ERISP included Mr Reeves looking downcast or flat. After only a few introductory questions, he made it clear that he not only wished to exercise his right to silence, but also that he did not wish to participate in the interview at all. DS Michaelson (also in the presence of Detective Longerak) acknowledged that this was Mr Reeves’ prerogative, but asserted a “common law right to ask questions when conducting an investigation”. DS Michaelson referred Mr Reeves to parts of the witness statements of the complainant and her boyfriend and Mrs Scarpino. These all concerned the specific incidents which gave rise to his arrest. Notwithstanding the indications supplied by Mr Reeves virtually at the outset of the interview, DS Michaelson afforded Mr Reeves the opportunity to comment on the incidents, but Mr Reeves remained silent. Towards the conclusion of the interview, he was also shown some still photographs of CCTV footage of him.

  3. In his evidence, DS Michaelson said that although he understood that interviewees had a right to silence, or what was alternatively known as a right ‘not to answer’ police questions, they had no such (negative) right ‘not to be asked’ a question by a police officer. In cross-examination, DS Michaelson was challenged as to why he continued with the interview after Mr Reeves indicated that he did not wish to answer questions. DS Michaelson explained that he wanted to inform Mr Reeves of the extent of the allegations and, at any rate, he believed that he had a right “to ask” Mr Reeves questions. He later added that he did not expect that the answers to the questions he raised would necessarily assist police. He thought he had learnt about such right from a Detective course. It was put to DS Michaelson that proceeding in this way was futile but, so far as he was concerned, it was a matter for Mr Reeves if he chose to participate or not. He denied that he hoped that Mr Reeves might ‘buckle’ and give (incriminating) answers. Ultimately it was put to DS Michaelson, although he denied it, that he persisted in asking questions as he knew the case against Mr Reeves was weak.

  4. He recalled that whilst he was in the interview room, he had a copy of the complainant’s witness statement. He recalled that parts of that statement (presumably the allegations of certain incidents) were put to Mr Reeves.

  5. DS Michaelson recalled mentioning part of the content of the witness statement of Rafael Policastro. He acknowledged that part of this indicated that Mr Reeves had told Mr Policastro that in his interactions with the complainant “he was just being friendly”. It was put to DS Michaelson that this was the only ‘direct evidence’ of Mr Reeves’ intention; which was an essential element to the charge. DS Michaelson disputed this. He asserted that that the case on Mr Reeves’ mental state was circumstantial; and that what Mr Reeves said about his intention was a matter for weight.

  6. DS Michaelson was referred to the Custody Management Record, and the explanation for the ground of detention. This was s 99(1)(b)(i) of the LEPRA. He said he was not surprised when that ground was nominated. It was put to him that having created the CAN and Facts Sheet around 9:08pm, and transferred them electronically (to Sgt Vickery) by about 9:30, he had no lawful authority to continue to detain Mr Reeves for the purpose of simply applying for an AVO. He said that this was for the Custody Manager; but he accepted that he could not detain Mr Reeves. Without further explanation, he disputed that this was what he did.

Process for charging Mr Reeves

  1. DS Michaelson said that he was responsible for the decision to charge Mr Reeves. The charging process commenced at 9:08pm with the creation of the Court Attendance Notice (CAN). Mr Reeves was charged with contravening s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). At about 9:51pm, DS Michaelson essentially cut and pasted the narrative entry in the COPS entry at 01:39 on 22 October 2020, which had been created by Detective Adba and DS Michaelson inserted it in the ‘Full Facts’ section of the CAN.

  2. It was put to DS Michaelson that the creation of the CAN should not have taken any more than 10 minutes. Reference was made, in effect, to pro forma forms in the police system. It was put to DS Michaelson, and denied by him, that when he inserted the information in the Facts Sheet (and later a Situation report – Exhibit C), he knew that Mr Reeves had not stalked the complainant and had not (on 19 October) loitered near the complainant’s residence in McMahon’s Point. He was referred to the complainant’s mother, Carolyn Scarpino’s witness statement about the sighting of Mr Reeves at McMahons Point on 19 October and it was effectively suggested that paragraph 10 of that statement indicated the antithesis of someone loitering: Mr Reeves was walking through.

  3. DS Michaelson was taken to the Full Facts and in particular, the incident referred to on 19 October 2020, DS Michaelson acknowledged his expectation that the facts would be placed before a judicial officer and also that, according to his own understanding of the concept, Mr Reeves had a good reason for being 300 metres from the complainant, given the location of his home address. He conceded that he should have referred to this in the Facts sheet. It was put to him that he knew that this was material information, not only for a judicial officer who may be called upon to sentence Mr Reeves on the basis of these facts (if there was a guilty plea to the charge) but an earlier point of time, being when Sgt Vickery was deciding bail conditions.

  4. In cross-examination, DS Michaelson was referred to each of the incidents identified in the complainant’s police witness statement. This was for the forensic purpose of identifying differences between the Full Facts he had recorded in the Court Attendance Notice. He acknowledged discrepancies in the accounts in the complainant’s version and the Full Facts. For example, there was nothing in the complainant’s account about Mr Reeves looking at her for several incidents (paragraphs 9, 10 & 12 of the complainant’s witness statement). For the incident on 5 October, there was nothing to indicate that the complainant told Mr Reeves that she did not wish to speak to him again. After Mr Policastro ‘confronted’ Mr Reeves on 8 October, there was no further interaction at all which, it was suggested, showed that Mr Reeves did not know that his conduct was adversely affecting the complainant.

  5. It was put to DS Michaelson that by 8 October, not only was there little substance to suggest to him that Mr Reeves knew his conduct might engender fear in the complainant but that there was, to the contrary, positive evidence from him about his intention to be ‘friendly’. Mr Reeves maintained that had looked at the evidence as a whole.

  6. There were other matters incidental or ancillary to the charging process that DS Michaelson was asked about. DS Michaelson said that it was always clear that Detective Abda was going to be the prosecutor or Officer in Charge. Secondly, he said that he was not involved in the formulation of the bail conditions. This was the responsibility of the Custody Manager; although he acknowledged that he was capable of making recommendations.

  7. Ultimately, it was put to DS Michaelson, but he denied, that he had no honest belief in the correctness of the charge of stalking.

Obtaining the APVO

  1. DS Michaelson applied for the Personal Violence Order. He had transposed the narrative information from the COPS system to Justice Link for the application to be considered by a Registrar.

  2. DS Michaelson was cross-examined on the ‘Grounds of the Application’ section in the application. In particular, it was suggested that he knew it was false to assert, as he did, that on an occasion, Mr Reeves had directly looked at the complainant as he stood outside the Zimmermann store. DS Michaelson responded that he did not recall as this was ‘a very long time ago’. (In the complainant’s witness statement about the ‘incident’, the complainant said that as he stood outside Mr Reeves was ‘not doing anything noticeable’). He accepted that this statement in the Ground of Application (repeated in the Full Facts sheet) was inaccurate. Also omitted from the ‘Grounds of Application’ section was any recognition that Mr Reeves lived at McMahons Point, even though he accepted that this was material information. His attention was also drawn to the assertion that Mr Reeves had (as at 22 October) taken a ‘continuous’ approach towards the complainant when the last interaction had only occurred on 5 October. He acknowledged that that ‘may’ be correct. It was suggested that he (falsely) conveyed to a judicial officer receiving this application a continuous approach in the knowledge that his interactions had ceased as at 5 October. DS Michaelson was not prepared to accept that Mr Reeves had stopped his interactions.

  3. In his cross-examination, it was put to DS Michaelson that he could have applied for a provisional AVO without arresting Mr Reeves. This was especially so after learning of Mr Reeves’ identity and address upon receipt of Sgt Abda’s email on 22 October 2020. The officer did not deny this, but said he did not consider that this course was appropriate. Asked why he did not apply for it sooner than when Mr Reeves was in custody, DS Michaelson said that it was urgent.

The institution and maintenance of the Local Court proceeding

  1. DS Michaelson supplied a witness statement to the Officer in Charge. Apart from this, however, he believed that he was not involved in the institution or maintenance of the proceeding in the Local Court.

  2. DS Michaelson was asked about his conversation(s) with Detective Abda after the proceeding was commenced. He said he was not involved in the prosecution after Mr Reeves’ lawyers had made representations to police as to why the charge should be withdrawn. He said he could not recall Detective Abda expressing an opinion that he thought Mr Reeves’ behaviour towards the complainant was ‘inappropriate’ because of the age differential.

Mr Reeves’ representation to police

  1. On 29 January 2021, lawyers for Mr Reeves made a representation to Officer Abda seeking that the charge be withdrawn.

The hearing in the Local Court on 17 May 2021

  1. Following the hearing, Barko LCM dismissed the charge and his Honour ordered that professional costs be awarded to Mr Reeves, pursuant to s 214 of the Criminal Procedure Act 1986 (NSW).

  2. A transcript of the hearing before Barko LCM was admitted, subject to a general limitation that it was relevant only as to damages. Subsequently, that general limitation was revised, so that Mr Reeves was also entitled to rely, on the issue of malice (applicable to the action for malicious prosecution), upon the following submission made by the prosecutor (T 24.41 – 24.47) before the learned Magistrate:

“The prosecutor says that he should have known that contact – that the conduct was likely to cause fear based on the age difference and the couple of times that he approaches her and she runs away, and just for the multiple occasions that he’s seen by the victim, her boyfriend and the co-workers at the time…”

LIABILITY ISSUES

  1. I have considered the detailed written submissions of the State (MFI 2) and Mr Reeves (MFI 3) and the closing addresses of Counsel.

  2. Mr Reeves ran four causes of action: (i) wrongful arrest; (ii) battery; (iii) false imprisonment and (iv) malicious prosecution.

  3. In the way that he pleaded and ran his case, the battery occurred in the course of (a) effectuating the arrest and (b) as incidental to bringing Mr Reeves into custody in the course of the ‘imprisonment’. The action for false imprisonment was consequent upon his arrest. Accordingly, his success upon causes of action (i)-(iii) substantially, although not entirely, hinged upon the Court’s findings as to the legality of his arrest. The action for malicious prosecution was in this sense discrete, but even an element of that action was relevant to the legality of the arrest.

  4. I will address the legality of the arrest first. That in turn directs inquiry to the offence which Mr Reeves was suspected of having committed.

The elements of the charge of ‘stalking’ and principles of construction

  1. This offence is contained in s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Section 13 relevantly is defined as follows:

“(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.

: Maximum penalty--Imprisonment for 5 years or 50 penalty units, or both.

…..

(3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.

(4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.

….” (emphasis supplied)

  1. Section 8(1) of this legislation relevantly provides:

“Stalking” includes the following:

(a) the following of a person about,

(b) the watching or frequenting of the vicinity of, or an approach to, a person's place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity,

(c) contacting or otherwise approaching a person using the internet or any other technologically assisted means”.

  1. It is notable that, for the purposes of s 13(1), there is an express mental element (intention to cause fear), coupled with a separate mental state (knowledge that conduct will likely cause fear) which is deemed to satisfy the express element of intention. The State submitted that the mental state in s 13(3) resembles the mental element of reckless indifference [1] , however Mr Reeves took issue with the correctness of that statement. Mr Reeves characterised the mental element as being one of specific intent.

    1. McIlraith v R [2017] NSWCCA 13 (“McIlraith”) at [32], [38]

  2. The State emphasised high authority that posited that proof of the element of ‘intention’ may be proved by inference[2] . In his closing argument, Senior Counsel for the State reminded the Court of the content of the ‘intention’ direction which appears in the Criminal Law Bench Book ([3-210]). In its current iteration, this is (relevantly) in the following terms:

“Intention may be inferred or deduced from the circumstances in which … [the event], and from the conduct of the accused before, at the time of, or after the [accused] did the specific act... Whatever a person says about [the accused’s] intention may be looked at for the purpose of finding out what that intention was in fact at the relevant time.

In some cases, a person’s acts may themselves provide the most convincing evidence of [the accused’s] intention. Where a specific result is the obvious and inevitable consequence of a person’s act, and where [accused] deliberately does that act, you may readily conclude that [accused] did that act with the intention of achieving that specific result”.

2. The Queen v Baden-Clay (2016) 258 CLR 308 (“Baden-Clay”) at [46]-[47]

  1. ‘Knowledge’ means the accused’s actual knowledge, but that too can be inferred from all of the circumstances. Although it is the accused’s subjective knowledge that is ultimately in question, it is not irrelevant for a trier of fact to take into account what a reasonable person in the accused’s position and circumstances would know.

Statutory provisions and applicable principles concerning wrongful arrest

  1. For an arrest of a person to be lawful, s 99 of LEPRA relevantly requires that:

  1. The officer must suspect on reasonable grounds that the person is committing or has committed an offence (the ‘suspicion requirement’); and

  2. The officer must be satisfied that it was reasonably necessary to arrest the person for one or more of the reasons identified in s99(1)(b) of the LEPRA (the ‘satisfaction requirement’).

  1. The State accepts that the arresting officer bears the onus of proving both matters. As to the requirement in s 99(1)(b), the State pleaded [3] the officer’s reliance upon the following reasons in s 99(1)(b):

  • protecting the safety and welfare of the complainant and the community (s 99(1)(b)(viii));

  • preventing the harassment of, or interference with, the complainant (s 99(1)(b)(vii)); and

  • because of the nature and seriousness of the offence (s 99(1)(b)(ix)).

    3. Paragraph 8(b) of the State’s Defence

  1. As to the suspicion requirement, there are two aspects to this. First is the officer’s subjective suspicion. The second is that there is or are objective reasonable grounds for the suspicion.

  2. Reasonable suspicion means less than a reasonable belief, but more than a possibility and does not depend on proof of evidence that is only admissible at a trial[4] . This requires an assessment of what was known or reasonably capable of being known[5] . A relevant factor is to consider the timing of arrest relative to the stage of the investigation[6] . Another relevant factor involves an appreciation of the practicalities of investigations. This was described in terms approved in the Court of Appeal as follows:

“an arresting officer's action is the culmination of various steps taken by other police officers, perhaps over a long period and perhaps also involving officers from other police forces. For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised”[7] .

4. R v Rondo [2001] NSWCCA 540 at [52]-[53]

5. Ruddock v Taylor (2005) 222 CLR 612 at [40]

6. Azar v DPP [2014] NSWSC 132 at [37]

7. Hyder v Commonwealth of Australia [2012] NSWCA 336 at [15(8)] and [18]

  1. For the satisfaction requirement, the relevant officer must have turned his mind to alternatives to making an arrest[8] .

    8. Jankovic v DPP [2020] NSWCA 31 (“Jankovic”) at [67]

  2. The State submitted that both elements are however only impeachable if the plaintiff can show that the suspicion and satisfaction of the relevant officer was ‘manifestly unreasonable, arbitrary, capricious, irrational or non-bona fide’ [9] .

    9. Randall at [13], [40] and [119]-[120]

  3. Counsel for Mr Reeves took issue with the correctness of this test. He submitted that it was a standard only referred to by Basten JA in State of New South Wales v Randall [2017] NSWCA 88 (“Randall”) that had not been endorsed by other members of the Court of Appeal. He alluded to observations made by Barrett AJA (Macfarlan JA agreeing) in Jankovic at [61] as an indicator of the correct approach. (In Jankovic, White JA at [7] referred to Basten JA’s approach in Randall without disapproval).

Consideration of legality of arrest

The suspicion element

  1. I am satisfied that the suspicion requirement in s 99(1)(a) was satisfied. I find that DS Michaelson did turn his mind to the question of whether Mr Reeves had engaged in stalking (the physical element to the s 13 offence) in the period contemplated by the charge in the CAN. It was not seriously suggested that he did not. The main thrust of the challenge, on the physical element, was whether he had reasonable grounds for his suspicion. Whether or not he actually had recourse to the complainant’s witness statement, and that of her boyfriend, I accept the officer’s evidence that he turned his mind to the COPS entries (which substantially reproduced parts of the complainant’s statements) and had seen the CCTV footage. He was entitled to rely upon what he read in the COPS entries. The information that was known or that was reasonably capable of being known by him included also text messages between the complainant and her boyfriend, which amounted to contemporaneous complaint evidence capable of furnishing additional evidence to support the allegations of stalking. I agree with the State that it was unnecessary for the arresting officer to suspect that stalking had been partly established by evidence of Mr Reeves actually looking through the store window at the complainant; although there was evidence of that as well.

  1. The State did not persuade me that there is any textual, contextual or purposive justification for assimilating the notion of ‘injury’ in s 3B(1)(a) to ‘personal injury’ in s 11 and the state of authority in this state presently precludes that course. I take the passages in Williamson to mean what they say, in the sense that the High Court was considering only the meaning of ‘injury’ where that appears in Part 2 of the legislation.

  2. Before I pass from this issue, I wish to express my doubt about whether such concepts ‘deprivation of liberty’ or ‘restraining with force (a person’s) mobility’ constitutes an ‘injury’ for the purpose of that word in s 3B(1)(a).

  3. First, both concepts, in my view, manifest a condition, or a certain state of affairs. In my view, it is the natural consequences, generally, through injury to the victim’s feelings (although it may be more than that) associated by that, or those condition(s), which is what constitutes the “injury”. So in Ibbett, the intentional pointing of a gun at the claimant’s head was apt to induce anxiety, fear or terror in the person against whom it is pointed. These are generally forms of injured feelings.

  4. Secondly, s 3B(1)(a) posits in a defendant two intentions: the intention to commit the (wrongful) act and the intention to cause injury. In my view, properly construed, the provision does not allow those two mental states to be conflated, so that it inexorably follows that by bringing the claim of false imprisonment (an intentional tort), a claimant can sidestep the separate need for the claimant to prove an intention to cause injury. To imprison or detain a person or restrain a person’s mobility, by definition, deprives the person of liberty. The focus of inquiry for this particular tort is the injured feelings, or other species of injury, associated with the condition of being detained (or restrained). This may, without being exhaustive, include anxiety or fear, distress, shock (not necessarily amounting to a psychiatric injury) or humiliation.

  5. The injured feelings that Mr Reeves associated with being detained in the interviewing room after he had indicated that he did not wish to participate in the interview, do constitute an ‘injury’, or injuries, for the purposes of s 3B(1)(a).

Intent to cause injury

  1. In Dickson, Simpson AJA, delivering the leading judgment (in which Basten JA and White JA separately concurred), explained (at [183]-[186]) that ‘intent to cause injury’, for the purposes of s 3B(1)(a), required that a plaintiff establish a defendant’s ‘actual subjective intention’. Although a defendant’s knowledge that conduct will inevitably or almost certainly produce a particular result may give rise to a compelling inference that the result was intended, proof of knowledge or foresight of result remains insufficient.

  2. Mr Reeves needed to prove more than that injury was inevitable or that DS Michaelson foresaw or should have foreseen or anticipated injury.

  3. In his concurring judgment, Basten JA referred (at [7]) to a decision that preceded the enactment of the CL Act, being Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 as an illustration that many forms of battery (and by extension other intentional torts) may not fall within s 3B(1)(a). His Honour noted the prisoner’s claim for damages for false imprisonment and observed that although the detention was deliberate, its purpose was not to harm the prisoner, but to give effect to the terms of a warrant. His Honour (at [9]) also emphasised that in construing the expression to require a defendant’s subjective or actual attention, the natural and probable consequences, which may rise to the height of being inevitable, will not necessarily provide evidence of actual subjective intention.

  4. White JA agreed with the observations of Basten JA and Simpson AJA about the requirement for an actual subjective intention.

  5. What that means is that it is not to be presumed from the inevitability of injury that the defendant had the intention to injure, for the purposes of s 3B(1)(a). It was not enough that DS Michaelson actually or should have foreseen injured feelings or that such injury was inevitable. Mr Reeves needed to prove that DS Michaelson actually subjectively intended them.

  6. To my mind, DS Michaelson did not intend to injure Mr Reeves’ feelings by continuing to detain him in the interviewing room after Mr Reeves indicated his wish not to participate in such interview. Rather, he was trying to give effect to what I have found was an erroneous, or at least ‘unreasonable’, belief that he was entitled to detain Mr Reeves, even in spite of his protest in the interviewing room, in order to ask him questions. It was this which was operating on DS Michaelson’s subjective state of mind. It did not matter that a foreseeable, likely, or even inevitable, consequence of DS Michaelson’s continued detention was to injure Mr Reeves’ feelings.

  7. Although he plainly intended to detain Mr Reeves in the interviewing room, I am not persuaded that DS Michaelson intended to injure Mr Reeves.

  8. It follows that this claim for damages for false imprisonment does not fall within s 3B(1)(a) of the CL Act so as to preclude the operation of other Parts of that Act, including, relevantly, s 43A of the legislation.

The s 43A CL Act defence

Consideration

  1. Section 43A of the CLA falls within Part 5 of that Act.

  2. That Part applies to civil liability in tort, save for civil liability that is excluded by operation by s 3B (s 40(3)). As I have found, Part 5 is not so excluded.

  3. However, although s 40(1) and (2) are expressed in general terms, as a matter of construction, there is doubt whether it extends to liabilities of a public authority arising from claims other than negligence or a breach of statutory duty. In G Mullins, S Grant & R Douglas, Civil Liability Australia + Cases (electronic subscription, LexisNexis) [51,043]) the learned authors argue that the provisions in Part 5 do not so extend.

  4. There is considerable force for this view. There is authority, for example, which posits that it does not apply to claims in nuisance: Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514 (“Gales Holdings”) at [196]-[197]; Southern Properties (WA) Pty Ltd v Executive Director, Dept of Conservation and Land Management (2012) 42 WAR 287 at [328]-[329].

  5. Section 43A has been described as imposing a modified standard for adjudication of whether an act or omission is wrongful: Queensland Bulk Water Supply Authority (t/as Seqwater) v Rodriguez & Sons Pty Ltd (2021) 393 ALR 162; [2021] NSWCA 206 at [123]. For a tort of false imprisonment, the premise is that the ‘imprisonment’ is ‘wrongful’. It is counter-intuitive, to the point of contradiction, to defend such a claim on the basis that in the course of imprisoning a claimant (in the sense described) without lawful justification, the plaintiff could not establish that police conducted themselves so unreasonably that no person having the special statutory power in question could consider the conduct to be a reasonable exercise, or failure to exercise, of the power.

  6. In Gales Holdings, Emmett JA (with whom Leeming JA and Sackville AJA agreed) said (at [196]):

“The application of s 43A is limited to proceedings for civil liability to which Part 5 of the Liability Act applies. However, it applies only to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority. Assuming a special statutory power is involved, the anterior question is whether the proceedings were proceedings for civil liability, in which the liability was based on the Council's exercise of, or failure to exercise, a special statutory power conferred on it. A clear distinction is drawn in the legislation between a liability that is based on the exercise of, or failure to exercise, a special statutory power, and an act or omission involving an exercise or failure to exercise such a power (see Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278; 74 NSWLR 102 at 173)”

  1. In my opinion, the liability of the State, being, by nature, vicarious for the action of DS Michaelson in falsely imprisoning Mr Reeves, in the sense that I have described, and persisting in asking him questions notwithstanding that indication after he had indicated that he did not wish to participate in such interview, was not “based” on a ‘special statutory power’.

  2. Even if it be assumed (contrary to my earlier analysis) that DS Michaelson was empowered under the common law, to question a suspect, s 43A requires the public authority to identify those activities based on a statutory power rather than the general law [25] . The State did not identify what statutory power DS Michaelson had to continue to question Mr Reeves after he indicated that he did not wish to participate in the interview. As was explained earlier in these reasons, the State did not rely upon and particularise the matter referred to in s 113(1)(b) of the LEPRA.

    25. Weber v Greater Hume Shire Council (2019) 100 NSWLR 1 per Basten JA (Gleeson JA and Sackville AJA) at [47]

  3. Generally, statutory exemptions from liability, or qualified immunities like s 43A are construed strictly [26] . No persuasive submission has been made by the state that any expansive construction should be given to s 43A(1).

    26. Puntoriero v Water Administration Ministerial Corp (1999) 199 CLR 575

  4. It will be observed that in the way that I have reasoned upon the provision, it has been unnecessary for me to express a view as to the correctness of my brother Fitzsimmons SC DCJ’s determination of the application of s 43A in Maddenv The State of New South Wales [2022] NSWDC 647.

  5. Section 43A is not engaged in a way that will affect the State’s liability for false imprisonment.

SUMMARY & ORDERS

  1. After this long judgment, it may assist the patient reader of these reasons to summarise my findings:

  1. Mr Reeves’ arrest was lawful;

  2. Mr Reeves’ claim in battery fails;

  3. Subject to a qualification, his claim of false imprisonment fails. The qualification is that his claim of false imprisonment succeeds, to the extent that it is based on his detention being protracted, contrary to s 115(1) of the LEPRA;

  4. Mr Reeves’ claim of malicious prosecution fails;

  5. The exception in s 3B(1)(a) of the CL Act is not engaged as DS Michaelson did not intend to cause injury to Mr Reeves; and

  6. Section 43A of the CL Act is not engaged.

  1. As indicated, the parties should have the opportunity to make supplementary submissions as to damages; noting that they have already made some written submissions on that topic during the hearing. In my view, it is appropriate that this be done by the provision of supplementary written submissions, rather than a further hearing. The issue of damages will be determined on the papers.

  2. It is also appropriate to defer consideration of costs to after the question of damages is determined.

  3. I direct that:

  1. The plaintiff is to serve short written submissions, not exceeding 3 pages, within 3 days’ of the date of this judgment.

  2. The State is to serve short written submissions, not exceeding 3 pages, within a further 2 days.

  3. The plaintiff is to serve any supplementary written submissions, not exceeding 1 page, within a further 2 days.

  4. The issue of damages will be determined on the papers.

**********

Endnotes

Decision last updated: 29 June 2023

Most Recent Citation
Cases Citing This Decision

3

Reeves v State of New South Wales [2024] NSWCA 125
Reeves v State of New South Wales (No 3) [2023] NSWDC 243
Reeves v State of New South Wales (No 2) [2023] NSWDC 232
Cases Cited

44

Statutory Material Cited

5

A v New South Wales [2007] HCA 10
A v New South Wales [2007] HCA 10
AD v State of New South Wales [2023] NSWCA 115