Robinson v State of New South Wales

[2018] NSWCA 231

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Robinson v State of New South Wales [2018] NSWCA 231

Hearing dates:

28 June 2018

Decision date:

16 October 2018

Before:

McColl JA at [1];
Basten JA at [131];
Emmett AJA at [196]

Decision:

(1)   Appeal allowed.

 

(2)   Set aside the orders of Taylor DCJ and in their place make the following orders:

 

(a)   Judgment for the plaintiff in the sum of $5000, such judgment to take effect from 3 August 2017;
(b)   Defendant to pay the plaintiff’s costs.

 (3)   Respondent to pay the appellant’s costs of the appeal and the application for leave to appeal.

Catchwords:

TORTS – intentional torts – false imprisonment and wrongful arrest – where no decision to charge made at time of arrest – whether arrest lawful – purpose of arrest – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99

 

STATUTORY INTERPRETATION – contextual construction – relevance of pre-existing common law to construction of statutory scheme – principle of legality – use of legislative history and extrinsic materials

WORDS AND PHRASES – “arrest” – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
Crimes Act 1900 (NSW), ss 352, 353, 353A, 355, 356B, 356C, 356D, 356W; Pt 10A
Crimes Amendment (Detention after Arrest) Act 1997 (NSW), Pt 10A
Criminal Code (Qld), s 679
Criminal Law Amendment Act of 1883 (46 Vic. No.17), s 429
Criminal Procedure Act 1986 (NSW), s 281
Crown Proceedings Act 1988 (NSW), s 5
Justices Act 1959 (Tas), s 34A(1)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 3, 4, 7, 99, 105, 107, 109, 111, 113, 114, 115, 116, 117, 121, 131, 201; Pt 8, Pt 9
Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6, 8, 8K
Police Administration Act (NT), ss 123, 133AB, 137
Road Transport Act 2013 (NSW), Sch 3
Terrorism (Police Powers) Act 2002 (NSW), s 25E; Pt 2AA

Cases Cited:

A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10
Adams v Kennedy (2000) 49 NSWLR 78
Alderson v Booth [1969] 2 QB 216
Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37
Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; [2014] HCA 42
Attorney-General (NSW) v Dean (1990) 20 NSWLR 650
Bales v Parmeter (1935) 35 SR (NSW) 182
Christie v Leachinsky [1947] AC 573
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Clarke v Bailey (1933) SR (NSW) 303
Cleland v The Queen (1982) 151 CLR 1; [1982] HCA 67
Clyne v State of New South Wales [2012] NSWCA 265
Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; [1955] HCA 27
Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; (2001) 21 NSWCCR 389
Director of Public Prosecutions v Nicholls [2001] NSWSC 523; (2001) 123 A Crim R 66
Donaldson v Broomby (1982) 60 FLR 124
Dowse v New South Wales [2012] NSWCA 337; (2012) 226 A Crim R 36
Drymalik v Feldman [1966] SASR 227
Foster v The Queen [1993] HCA 80; (1993) 67 ALJR 550
George v Rockett (1990) 170 CLR 104; [1990] HCA 26
Glinski v McIver [1962] AC 726
Halliday v Nevill (1984) 155 CLR 1; [1984] HCA 80
John Lewis & Co Ltd v Tims [1952] AC 676
Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422
Leachinsky v Christie [1946] KB 124
Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39
Lule v State of New South Wales [2018] NSWCA 125
Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37
Mighty River International Ltd v Hughes; Mighty River International Ltd v Mineral Resources Ltd [2018] HCA 38
Minogue v Victoria [2018] HCA 27; (2018) 92 ALJR 668
Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466
New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194
Nolan v Clifford (1904) 1 CLR 429
North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41
O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286
Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334
Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Bathgate (1946) 46 SR 281
R v Dungay [2001] NSWCCA 443; (2001) 126 A Crim R 216
R v Walsh (Court of Criminal Appeal (NSW), 18 October 1990, unrep)
Regional Express Holdings Ltd v Australian Federation of Air Pilots [2017] HCA 55; (2017) 92 ALJR 134
Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48
Sharp v Biggs (1932) 48 CLR 81; [1932] HCA 54
Smith v Corrective Services Commission of NSW (1980) 147 CLR 134; [1980] HCA 49
State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185
State of New South Wales v Smith [2017] NSWCA 194
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936
Thompson v Vincent [2005] NSWCA 219; (2005) 153 A Crim R 577
Trobridge v Hardy (1955) 94 CLR 147; [1955] HCA 68
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5
Webster v McIntosh (1980) 49 FLR 317
Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88
Wilson v New South Wales (2010) 207 A Crim R 499; [2010] NSWCA 333
Wilson v New South Wales [2011] HCATrans 218
Wright v Court (1825) 4 B&C 596; 107 ER 1182
Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320

Texts Cited:

Law Enforcement (Powers and Responsibilities) Bill 2002 (NSW)

 

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2002

 

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 October 2013

 

New South Wales Legislative Assembly, Second Reading speech for Law Enforcement (Powers and Responsibilities) Amendment (Arrest Without Warrant) Bill 2013 (30 October 2013)

 

P Gillies, The Law of Criminal Investigation (Law Book Co, 1982)

  Parliament of New South Wales, House and Tabled Papers, Review of the Law Enforcement (Powers and Responsibilities) 2002 (25 October 2013)

Category:

Principal judgment

Parties:

Bradford James Robinson (Appellant)
State of New South Wales (Respondent)

Representation:

Counsel:
D Toomey SC / D Woodbury (Appellant)
J K Kirk SC / G J Bateman and P F Herzfeld (Respondent)

   Solicitors:
Foott, Law & Co (Appellant)
McCabes Lawyers Pty Ltd (Respondent)

File Number(s):

2016/145043

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2017] NSWDC 289

Date of Decision:

03 August 2017

Before:

P Taylor SC DCJ

File Number(s):

2016/145043

headnote

[This headnote is not to be read as part of the judgment]

At 5 pm on 22 December 2013, the appellant attended a Sydney police station in response to attempts by police to contact him. Upon attendance he was immediately arrested, without warrant, for breach of an apprehended violence order. The appellant was offered, and accepted, the opportunity to participate in a record of interview. He was released without charge at 6.18pm, following the conclusion of the interview.

The appellant commenced proceedings against the State of New South Wales, claiming damages for wrongful arrest and false imprisonment. The trial judge (P Taylor SC DCJ) dismissed the appellant’s claim.

The trial judge accepted the arresting officer’s evidence that a decision whether to charge the appellant depended on what he said in the interview and that, at the time of the arrest, he had not decided to charge him.

On appeal, the key issue was whether the arrest of the appellant was lawful under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), s 99, in circumstances where there was no positive intent to lay charges at the time of arrest.

Section 99 of LEPRA relevantly provides:

99   Power of police officers to arrest without warrant

(1)   A police officer may, without a warrant, arrest a person if:

(a)   the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and

(b)   the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons:

…

(iv)   to ensure that the person appears before a court in relation to the offence,

…

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

…

(3)   A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law.

Note. The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer—see section 105.

(4)   A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part.

The Court (McColl JA and Basten JA, Emmett AJA dissenting) allowed the appeal and held:

Per McColl JA and Basten JA:

1. LEPRA s 99 must be construed in its context, including general law principles concerning the scope and purpose of arrest: [34]-[35]; [132].

North Australian Aboriginal Justice Agency Limited v Northern Territory (2015) 256 CLR 569; [2015] HCA 41; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, applied.

2. In legal terminology, “arrest” is generally used to identify that deprivation of liberty which is a precursor to the commencement of criminal proceedings against the person arrested, justified as necessary for the enforcement of the criminal law. The power to arrest exists, and must be exercised, for the purpose of bringing the person arrested before a justice as soon as reasonably practicable: [46]; [95]; [136]; [154].

Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88; Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320; Dowse v New South Wales [2012] NSWCA 337; 226 A Crim R 36; Bales v Parmeter (1935) 35 SR (NSW) 182; Christie v Leachinsky [1947] AC 573, applied; Clyne v State of New South Wales [2012] NSWCA 265, not followed.

3. Neither the text nor context of the statute suggests an intention to depart from these general law constraints: [120]; [124]-[127]; [165]-[167]; [173]. Rather, they are embedded in the language of s 99, and expressly preserved by LEPRA, s 4: [35]; [44]; [132]-[134]. As no decision whether to charge the appellant had been made at the time of arrest, the arrest was not for the purpose of commencing the criminal process; accordingly, it was unlawful: [128]-[129]; [194].

Per Emmett AJA, dissenting:

4.   The legislative scheme contemplates a distinction between the decision to arrest and the decision to charge. A positive intent to charge at the time of arrest is not a necessary precondition of the valid exercise of the power of arrest under s 99; accordingly, the appellant’s arrest was lawful: [251]; [253]; [257]; [270]-[274].

Judgment

1. McCOLL JA: The appellant, Bradford James Robinson, appeals pursuant to leave to appeal granted on 20 February 2018 against Taylor SC DCJ’s decision of 3 August 2017, in which his Honour held that Mr Robinson’s arrest without a warrant by a Leading Constable Adam Smith on 22 December 2013 and subsequent detention by police was lawful. [1] In so doing, his Honour rejected Mr Robinson’s submission that his arrest was unlawful having regard to the fact that, at the time of his arrest, Constable Smith had not formed an intention to charge him with any offence.

   1. Robinson v State of New South Wales [2017] NSWDC 289.

2. The respondent, the State of New South Wales (SNSW), is vicariously liable for the tortious conduct of police officers pursuant to s 8(1) of the Law Reform (Vicarious Liability) Act 1983 (NSW). Mr Robinson brought proceedings against the SNSW claiming he had been wrongfully arrested, and thereby falsely imprisoned, and sought to recover damages.

3. Mr Robinson relies upon a single ground of appeal. He submits that the primary judge erred in finding that his arrest and subsequent detention were lawful in circumstances where, at the time of the arrest, Constable Smith had not formed an intention to charge him with any offence.

4. For the reasons that follow, I would allow the appeal.

Factual background

5. The factual background is uncontroversial.

6. On 9 October 2013, Mr Robinson was served with a Provisional Order (ex parte) Apprehended Personal Violence Order based upon a complaint made by a Ms Roselyn Singh.

7. On 16 October 2013, the Local Court made an Apprehended Violence Order (AVO) against Mr Robinson in standard terms with additional orders that he must not approach or contact or enter the premises at which Ms Singh lived or worked.

8. On 20 December 2013 Ms Singh complained to police that Mr Robinson had threatened her by emailing one of her employees, falsely claiming that her company was being wound up. Ms Singh’s complaint was recorded in a file, which the primary judge found Constable Smith had read earlier on the day of Mr Robinson’s arrest.

9. After receiving the complaint, at 11.15am on Sunday, 22 December 2013, police, including Constable Smith, tried unsuccessfully to locate Mr Robinson.

10. Mr Robinson voluntarily attended Day Street Police Station at 5pm on 22 December 2013 and was immediately arrested by Constable Smith who told him he was being arrested for breaching the AVO. Mr Robinson was offered, and accepted, the opportunity to participate in a record of interview. Constable Smith then conducted an interview with Mr Robinson. At 6.18pm, after the interview concluded, Mr Robinson was released without charge. [2]

    2. Ibid at [1].

11. At the time Constable Smith arrested Mr Robinson, he had not decided to charge him with any offence. He gave evidence that he “did not believe there was enough to charge him.” [3] He said the decision whether to charge him depended on what Mr Robinson said in the interview. He said he did not charge him after the interview as Mr Robinson had given an explanation during it which led Constable Smith to believe further evidence would need to be obtained.

    3. The SNSW accepts that the references in Constable Smith’s evidence to charging Mr Robinson were a loose way of describing the process under the Criminal Procedure Act 1986 (NSW) by which criminal proceedings are commenced against a person by a police officer issuing, and then filing, a Court Attendance Notice (CAN).

Legislative framework

12. In the Second Reading Speech made on the introduction of the Law Enforcement (Powers and Responsibilities) Bill 2002 (NSW) which became the Law Enforcement (Powers and Responsibilities) Act2002 (NSW) (LEPRA), the Attorney General, the Hon Bob Debus, explained that the Bill was the outcome of the consolidation process envisaged by the Royal Commission into the New South Wales Police Service to help strike a proper balance between the need for effective law enforcement and the protection of individual rights. [4] In dealing with the powers relating to arrest, the Attorney General said that Pt 8 of the Bill “substantially re-enacts arrest provisions of the Crimes Act 1900 and codifies the common law.” [5]

    4.    New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2002 at 4846.

    5.    Ibid at 4848.

13. At the time of Mr Robinson’s arrest, Pt 1 (Preliminary) of LEPRA relevantly provided:

4 Relationship to common law and other matters

(1) Unless this Act otherwise provides expressly or by implication, this Act does not limit:

(a) the functions, obligations and liabilities that a police officer has as a constable at common law, or

(b) the functions that a police officer may lawfully exercise, whether under an Act or any other law as an individual (otherwise than as a police officer) including, for example, powers for protecting property.

(2) Without limiting subsection (1) and subject to section 9, [6] nothing in this Act affects the powers conferred by the common law on police officers to deal with breaches of the peace.

…

7 Provisions in this Act

Nothing in any Part of this Act limits any functions, or prevents a police officer from exercising any functions, that the police officer has under any other Part of this Act.

Note. The general functions of police officers and other members of the NSW Police Force, and matters relating to police discipline, are dealt with in the Police Act 1990. For other Acts containing significant police and law enforcement powers, see Schedule 1.

6.    Section 9 dealt with a police officer’s power to enter premises in emergencies.   

14. Section 99 appeared in Pt 8 (Powers relating to arrest). [7] Note 2 at the commencement of Pt 8 stated “Safeguards relating to arrests by police officers, including the requirement to state the reason for an arrest, are set out in Part 15”.

    7. Section 99 as it applied to the present case and subsection (3) of s 105 were inserted by the Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013 (NSW) (LEPRA Amendment Act).

15. Section 99 relevantly provided:

99   Power of police officers to arrest without warrant (cf Crimes Act 1900, s 352, Cth Act, s 3W)

(1)   A police officer may, without a warrant, arrest a person if:

(a)   the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and

(b)   the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons:

(i)   to stop the person committing or repeating the offence or committing another offence,

(ii)   to stop the person fleeing from a police officer or from the location of the offence,

(iii)   to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,

(iv)   to ensure that the person appears before a court in relation to the offence,

(v)   to obtain property in the possession of the person that is connected with the offence,

(vi)   to preserve evidence of the offence or prevent the fabrication of evidence,

(vii)   to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, 

(viii)   to protect the safety or welfare of any person (including the person arrested),

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

(2)   A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant.

(3)   A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law. [8]

Note. The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer – see section 105.

(4)   A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part.

(5)   This section does not authorise a person to be arrested for an offence for which the person has already been tried.

(6)   For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5. [Emphasis added.]

8. In the LEPRA, authorised officer means (a) a Magistrate or a Children’s Magistrate, or (b) a registrar of the Local Court, or (c) an employee of the Attorney General’s Department authorised by the Attorney General as an authorised officer for the purposes of this Act either personally or as the holder of a specified office: s 3(1).

16. Section 99 had been significantly amended by the LEPRA Amendment Act with effect from 16 December 2013, six days before Mr Robinson’s arrest.

17. Section 105, which also appeared in Pt 8, provided: [9]

    9. Section 105 had also been amended by the LEPRA Amendment Act, Sch 1[2].

105 Arrest may be discontinued

(1) A police officer may discontinue an arrest at any time.

(2) Without limiting subsection (1), a police officer may discontinue an arrest in any of the following circumstances:

(a) if the arrested person is no longer a suspect or the reason for the arrest no longer exists for any other reason,

(b) if it is more appropriate to deal with the matter in some other manner, including, for example, by issuing a warning or caution or a penalty notice or court attendance notice or, in the case of a child, dealing with the matter under the Young Offenders Act 1997.

(3) A police officer may discontinue an arrest despite any obligation under this Part to take the arrested person before an authorised officer to be dealt with according to law. [Emphasis added.]

18. Section 107 in Pt 8 relevantly provided:

107 Part does not affect alternatives to arrest

(1) Nothing in this Part affects the power of a police officer to commence proceedings for an offence against a person otherwise than by arresting the person ...” [Emphasis added.]

19. The objects of Pt 9 (Investigations and questioning) as set out in Div 1 (Preliminary) s 109(b) and (c) include “to authorise the detention of a person who is under arrest for such a period despite any requirement imposed by law to bring the person before a Magistrate or other authorised officer or court without delay or within a specified period, and … to provide for the rights of a person so detained.”

20. Section 113, which also appears in Pt 9, Div 1 provides relevantly:

113 Effect of Part on other powers and duties (cf Crimes Act 1900, s 356B)

(1) Existing powers relating to arrest and other matters

This Part does not:

(a) confer any power to arrest a person, or to detain a person who has not been lawfully arrested, or

…

(c) independently confer power to carry out an investigative procedure. [Emphasis added.]

21. Part 9, Div  2 (Investigation and questioning powers) includes the following:

114 Detention after arrest for purposes of investigation (cf Crimes Act 1900, s 356C)

(1) A police officer may in accordance with this section detain a person, who is under arrest, for the investigation period provided for by section 115.

(2) A police officer may so detain a person for the purpose of investigating whether the person committed the offence for which the person is arrested.

(3) If, while a person is so detained, the police officer forms a reasonable suspicion as to the person’s involvement in the commission of any other offence, the police officer may also investigate the person’s involvement in that other offence during the investigation period for the arrest. It is immaterial whether that other offence was committed before or after the commencement of this Part or within or outside the State.

(4) The person must be:

(a)   released (whether unconditionally or on bail) within the investigation period, or

(b)   brought before an authorised officer or court within that period, or, if it is not practicable to do so within that period, as soon as practicable after the end of that period.

(5) A requirement in another Part of this Act, the Bail Act 1978 or any other relevant law that a person who is under arrest be taken before a Magistrate or other authorised officer or court, without delay, or within a specified period, is affected by this Part only to the extent that the extension of the period within which the person is to be brought before such a Magistrate or officer or court is authorised by this Part.

(6) If a person is arrested more than once within any period of 48 hours, the investigation period for each arrest, other than the first, is reduced by so much of any earlier investigation period or periods as occurred within that 48 hour period.

(7) The investigation period for an arrest (the earlier arrest) is not to reduce the investigation period for a later arrest if the later arrest relates to an offence that the person is suspected of having committed after the person was released, or taken before a Magistrate or other authorised officer or court, in respect of the earlier arrest. [Emphasis added.]

115 Investigation period (cf Crimes Act 1900, s 356D)

(1) The investigation period is a period that begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances, but does not exceed the maximum investigation period.

(2) The maximum investigation period is 4 hours or such longer period as the maximum investigation period may be extended to by a detention warrant.

22. Section 116 made provision for determining what a reasonable time is for the investigation period referred to in s 115. Section 117 identified certain times which could be disregarded in calculating the investigation period.

23. Pursuant to s 121, also in Pt 9, Div 2, a person’s detention after arrest for purposes of investigation may count towards sentence (cf Crimes Act 1900, s 356W)

24. Part 9, Div 3, deals with safeguards relating to persons in custody for questioning. Section 131(1) requires the “custody manager for a detained person [to] open a custody record in the form prescribed by the regulations for the person.” Section 131(2)(c) requires the custody manager to record the grounds for the person’s detention in the custody record for the person.

25. Section 201 which appears in Pt 15 (Safeguards relating to powers) relevantly provided that:

(1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following:

…

(c) the reason for the exercise of the power.

…

(2) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (other than subsection (3) (g), (i) or (j)):

(a) if it is practicable to do so, before or at the time of exercising the power, or

(b) if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power.

…

(3) This section applies to the exercise of the following powers (whether or not conferred by or under this Act):

(a) a power to search or arrest a person … [Emphasis added.]

Primary judgment

26. The primary judge found, and Mr Robinson did not dispute at trial nor on appeal, that at the time of his arrest, Constable Smith suspected Mr Robinson had committed the offence of breaching the AVO. [10] His Honour also held that that Constable Smith had reasonable grounds for his suspicion that an offence had been committed. [11] Finally, relevantly, his Honour held that at the time of the arrest, Constable Smith was satisfied that Mr Robinson’s arrest was necessary to ensure his appearance before a court (s 99(1)(b)(iv), LEPRA) and because of the nature and seriousness of the offence (s 99(1)(b)(ix), LEPRA). [12]

    10. Primary judgment at [14].

    11. Ibid at [24].

    12. Ibid at [44], [48].

27. Mr Robinson’s primary challenge to the question whether Constable Smith was satisfied that his arrest was reasonably necessary to ensure that he appeared before a court was that Constable Smith had conceded that he had not determined at the time of the arrest whether he would charge Mr Robinson. [13] He argued that if, in the belief of Constable Smith, Mr Robinson might not be charged, Constable Smith could not be satisfied that an arrest was necessary to ensure that Mr Robinson appeared in court since his appearance in court might never be necessary. [14]

    13. Ibid at [38].

    14. Ibid.

28. Mr Robinson relied in this respect on Zaravinos v State of New South Wales,[15] where Bryson JA held that an arrest was unlawful as being for an extraneous purpose if made “for the purpose of questioning [the arrested person] and investigating the circumstances of the suspected offence or of any other offence”.

    15. (2004) 62 NSWLR 58; [2004] NSWCA 320 (Zaravinos) at [37] (Santow JA and Adams J agreeing).

29. The primary judge rejected Mr Robinson’s submission in this respect. His Honour held that if Mr Robinson’s interpretation of s 99(1)(b)(iv) were adopted:

“[A] person who was a known flight risk could not be arrested in reliance upon s 99(1)(b)(iv) unless the police officer was already persuaded that the person should be charged (or that the arrest would not be withdrawn under s 105). But a charge requires reasonable and probable cause, namely a positive belief and a sufficient (or reasonable) basis for the belief (see A v New South Wales [2007] HCA 10 at [77]), a higher obligation on the police officer to that imposed by s 99(1)(a), which requires only a suspicion on reasonable grounds.” [16]

16. Primary judgment at [42].

30. Accordingly, the primary judge held that Constable Smith was satisfied that Mr Robinson’s arrest was reasonably necessary to ensure that he appeared before a court within the meaning of the LEPRA, s 99(1)(b)(iv). [17]

    17. Ibid at [44].

31. The primary judge also held that he was satisfied that Mr Robinson’s arrest was necessary because of the nature and seriousness of the offence such that the elements of the LEPRA, s 99(1)(b)(ix), were satisfied. [18]

    18. Ibid at [47] – [48].

Consideration

32. The competing contentions are whether, as Mr Robinson submits, a police arrest without warrant is unlawful unless, at the time of arrest, the arresting officer intends to charge the person arrested or, as the SNSW frames Mr Robinson’s case, at the time of arrest an arresting police officer must have decided and intended to charge the plaintiff with an offence. Alternatively, as the SNSW contends, whether an arrest without warrant is lawful if effected for the purpose of investigating whether to charge the person arrested.

33. The SNSW accepted in the course of oral submissions in this court that Constable Smith’s evidence that at the time of the arrest he had not decided if Mr Robinson was going to be charged was a sufficient evidentiary foundation for Mr Robinson’s submission that he was unlawfully arrested.

34. Resolution of the issues raised on the appeal turns primarily upon issues of statutory construction. As emphasised most recently by the plurality in SZTAL v Minister for Immigration and Border Protection, [19] the starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, having regard to its context and purpose. Context should be regarded in its widest sense. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. [20]

    19. [2017] HCA 34; (2017) 91 ALJR 936 (SZTAL) at [14] per Kiefel CJ, Nettle and Gordon JJ; see also [35] – [39] per Gageler J; Mighty River International Ltd v Hughes; Mighty River International Ltd v Mineral Resources Ltd [2018] HCA 38 at [42] per Kiefel CJ and Edelman J.

    20. SZTAL at [14].

35. Notwithstanding the necessity to construe s 99 by reference to its text, the pre-existing law concerning the common law power of arrest is necessary context for the purposes of the construction exercise. [21] That is not just because the modern approach to statutory interpretation uses “context” in its widest sense to include such things as the existing state of the law, [22] but also because the LEPRA, s 4, presupposes the continued existence of a police officer’s powers at common law. [23]

    21. Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; [2014] HCA 42 per Crennan, Bell and Gageler JJ.

    22. CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 per Brennan CJ, Dawson, Toohey and Gummow JJ; Regional Express Holdings Ltd v Australian Federation of Air Pilots [2017] HCA 55; (2017) 92 ALJR 134 at [19] per Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ.

    23. Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334 at [21] per Leeming JA (Ward and Emmett JJA agreeing).

36. The SNSW however criticises Mr Robinson’s submissions as failing to grapple with the textual and contextual matters concerning s 99. It contends that, instead, Mr Robinson’s submissions proceed by reference to a body of case law decided by reference to other provisions of the LEPRA including s 99 as it stood prior to the LEPRA Amendment Act. While the SNSW accepts that the case law may be relevant to the construction of s 99 to the extent that any analogy is persuasive or general principle is relevant, it submits that cases on previous provisions are not binding with respect to the new form of s 99 and that judicial decisions are not substitutes for the text of the legislation. Such decisions should not be given primacy. [24] As much may be accepted. Nevertheless, as I explain below, earlier decisions on powers of arrest without warrant form part of the interpretative context, and inform the process of interpreting s 99.

    24. Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37 at [62] per McHugh J; referred to with approval in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 at [31] per curiam (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).

37. The SNSW emphasises the statement in Commissioner of Taxation v Consolidated Media Holdings Ltd,[25] that (footnote included):

“[39] ‘This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. [67 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.” [Emphasis added].

25. (2012) 250 CLR 503; [2012] HCA 55 (Consolidated Media Holdings) at [39] per curiam (French CJ, Hayne, Crennan, Bell and Gageler JJ).

38. It is “plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable.” [26] There is “a legal immunity from arrest and from the threat of arrest unless and until the conditions governing the exercise of the arresting power are fulfilled.” [27]

    26. Donaldson v Broomby (1982) 60 FLR 124 at 126 per Deane J (Kelly J agreeing) referred to with approval in Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441 at [22] per Gageler J and North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 (NAAJA v NT) at [222] per Nettle and Gordon JJ; Smith v Corrective Services Commission of NSW (1980) 147 CLR 134 at 139; [1980] HCA 49 per curiam (Stephen, Mason, Murphy, Aickin and Wilson JJ); Minogue v Victoria [2018] HCA 27; (2018) 92 ALJR 668 at [46] – [48] per Kiefel CJ, Bell, Keane, Nettle and Edelman JJ.

    27. Webster v McIntosh (1980) 49 FLR 317 at 322 per Brennan J (Deane and Kelly JJ agreeing).

39. Finally, “the principle of legality favours a construction, if one be available, which avoids or minimises the statute’s encroachment upon fundamental principles, rights and freedoms at common law”. [28]

    28.    NAAJA v NT at [11] per French CJ, Kiefel and Bell JJ.

The text

40. The SNSW accepts that the effect of s 4 of LEPRA was to preserve the common law power of arrest, although it argues that that power had, to a significant extent, been overtaken by the LEPRA (no doubt by reason of the words “Unless this Act otherwise provides expressly or by implication”) or, at least, by virtue of s 7, that the s 99 power of arrest without warrant was not inhibited by the continuation of the common law power.

41. The SNSW recognises that an arrest is the start of a process which must end within a limited time, either by the person arrested being taken before an authorised officer or released pursuant to s 105. However, the SNSW argues that the fact that one of the two possible endings to the process is that the arrested person is charged does not mean that there must be a positive intention to charge that person at the time of arrest.

42. It contends that the effect of Mr Robinson’s argument is to read in a third condition, namely that at the time of arrest a decision had to have been made by the arresting officer or his superior (s 99(2)) to charge the arrested person. The SNSW contends that there was no textual foundation for that contention. It concedes, however, that the requirement in s 99(3) to take the arrested person before an authorised officer “as soon as is reasonably practicable … to be dealt with according to law” supports Mr Robinson’s argument.

43. That concession is properly made. As I explain below, at common law, the requirement to take the arrested person before an authorised officer is intended to enable that person to be charged and to seek to regain his or her personal liberty as soon as practicable either absolutely or on bail by a justice’s order. It is therefore unlawful for a police officer having the custody of an arrested person to delay taking that person before a justice in order to provide an opportunity to investigate that person’s complicity in a criminal offence, whether the offence under investigation is the offence for which the person has been arrested or another offence. [29]

    29. Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 (Williams) at 299 – 301 per Mason and Brennan JJ, at 305 per Wilson and Dawson JJ.

44. What the SNSW’s concession, and a contextual analysis of s 99, demonstrates is that common law principles are embedded in s 99, in particular, in ss 99(1)(a) and 99(3). It is necessary to turn to the common law at this stage to demonstrate why that is so. The principles of common law, expressly preserved by s 4, provide both contextual background to the LEPRA and inform its interpretation.

45. “Arrest … ‘may be called the beginning of imprisonment’”. Those who arrest a person must justify the whole imprisonment and not its beginning alone. [30]

    30. Christie v Leachinsky [1947] AC 573 (Christie) at 600 per Lord du Parcq.

46. Arrest is the first step in a criminal proceeding against a suspected person on a charge which is intended to be judicially investigated. [31] The power to arrest exists for the purposes of bringing the person arrested before a justice and conducting a prosecution. [32] The point at which an arrested person is brought before a justice upon a charge is the point at which the machinery of the law leading to trial is put into operation, the point from which the judicial process commences and purely ministerial functions cease. [33]

    31. Christie at 584 – 585 per Viscount Simon approving Scott LJ’s statement to that effect in the Court of Appeal: Leachinsky v Christie [1946] KB 124 (Christie CA) at 130.

    32.    Zaravinos at [37] per Bryson JA (Santow JA and Adams J agreeing).

    33.    Williams at 306 per Wilson and Dawson JJ; cited with approval in NAAJA v NT at [24] per French CJ, Kiefel and Bell JJ.

47. The common law conferred on constables a power to arrest without warrant on suspicion on reasonable grounds of commission of a felony, but the authority to keep the person arrested in custody was limited “till he can be brought before a justice of the peace”. [34] At common law it was compulsory for a constable, in order to justify an arrest, to show that he had taken the arrested person without delay, and by the most direct route, before a justice, unless some circumstances reasonably justified a departure from these requirements. [35] An arrested person could not be detained for the purposes of being questioned. [36]

    34. Halliday v Nevill (1984) 155 CLR 1 at 12; [1984] HCA 80 per Brennan J; Williams at 292 – 293 per Mason and Brennan JJ.

    35. Clarke v Bailey (1933) SR (NSW) 303 at 309 per Davidson J giving judgment for the Supreme Court in banco.

    36. NAAJA v NT at [23]; Williams at 292 – 293 per Mason and Brennan JJ referring to Wright v Court (1825) 4 B & C 596 at 598; 107 ER 1182; at 305 per Wilson and Dawson JJ; see also Foster v The Queen [1993] HCA 80; (1993) 67 ALJR 550 (Foster) at 555 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ (Brennan and McHugh JJ agreeing with their Honours’ orders); Nolan v Clifford (1904) 1 CLR 429; Zaravinos at [37] per Bryson JA (Santos JA and Adams J agreeing).

40. Section 99(1)(a) substantially reflects s 352(2)(a) of the Crimes Act 1900 (NSW) considered in Bales v Parmeter,[37] albeit, whereas s 352(2)(a) enabled an arrest without a warrant where a constable had “reasonable cause [to] suspect”, s 99(1)(a) requires the suspicion to be held “on reasonable grounds”.

    37. (1935) 35 SR (NSW) 182.

41. In Bales v Parmeter, Jordan CJ held that s 352(2)(a) “like the common law … authorise[d] the [arresting officer] only to take the person so arrested before a justice to be dealt with according to law.” [38] In so holding, his Honour referred with approval to Clarke v Bailey, where Davidson J held the effect of s 352(2)(a) was “merely to reinforce the common law principle, and [was] not intended to give the constable discretion in the matter except to the same extent as existed before.” [39]

    38. Ibid at 189 (Stephen and Street JJ agreeing). At that time, s 352(2)(a) of the Crimes Act empowered a constable to arrest without a warrant “any person whom he, with reasonable cause, suspects of having committed any such offence or crime … and take him …before a justice to be dealt with according to law.” The words “such offence” referred to the expression “offence punishable, whether by indictment, or on summary conviction, under any Act” in s 352(1)(a): Thompson v Vincent [2005] NSWCA 219; (2005) 153 A Crim R 577 at [107] per Mason P (Handley JA and Pearlman AJA agreeing).

    39.    At 309.

42. In Foster, the appellant was arrested without warrant pursuant to s 352 of the Crimes Act, then relevantly in the same terms as in force when Bales v Parmeter was decided. It was common ground between the parties, and accepted by the plurality, that the appellant’s arrest was unlawful in circumstances where the police gave evidence at the trial to the effect that, without a confession by him, they “did not have any other evidence to charge him” and that, at the time of his arrest, “the police did not intend to charge him.” [40] The plurality did not, therefore, discuss the principles leading to their acceptance of this position. However, it is clear, in my view, that it followed from their Honours’ view that “the appellant’s arrest [had been] solely for the purpose of questioning, as distinct from the purpose of taking the appellant before a ‘Justice’ to be charged.” [41]

    40.    Foster at 552.

    41.    Ibid.

43. A conclusion that at the time of an arrest without a warrant there should be an intention to charge the person arrested also flows from the common law requirement that the person arrested should be informed of the reason for the arrest. That meant that the arresting officer should inform the person arrested of the charge on which he or she was being arrested. That did not mean “technical or precise language” needed to be used; a statement of the act for which the person was arrested was sufficient. [42] The common law obligation to inform the person arrested of the reason for the exercise of the power of arrest is also found in the LEPRA, s 201(1)(c).

    42. Christie at 587 – 588 per Viscount Simon (Lord Thankerton and Lord Macmillan agreeing) at 591 – 593 per Lord Simonds; at 598 – 600 per Lord du Parcq; see also Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422 at [56] per Beazley JA (McColl and Young JJA agreeing).

44. In Christie, the House of Lords unanimously accepted Scott LJ’s explanation in the Court of Appeal of the rationale for the obligation to inform a person arrested without a warrant of the reason for his or her arrest. [43] That obligation is based, by way of analogy, on an arrest authorised by magisterial warrant, or proceedings instituted by the issue of a summons. [44] In such cases, the warrant or summons had to specify the offence and the warrant “in normal cases” had to be read to the person arrested. This was “for the obvious purpose of securing that a citizen who is prima facie entitled to personal freedom should know why for the time being his personal freedom is interfered with”. Scott LJ’s reasoning was that “if the law circumscribed the issue of warrants for arrest in this way, it could hardly be that a policemen acting without a warrant was entitled to make an arrest without stating the charge on which the arrest was made.” [45]

    43.    See Christie CA at 130 (Uthwatt J agreeing).

    44.    The comparable process in this case would be a CAN.

    45.    Christie at 585 per Viscount Simon; see also Lord Simonds at 591 – 592.

45. Scott LJ’s conclusion, Viscount Simon pointed out, was supported by “direct authority, both in text books of acknowledged weight and in cases actually decided, that in normal circumstances an arrest without warrant either by a policeman or by a private person can be justified only if it is an arrest on a charge made known to the person arrested”. [46]

    46.    Ibid at 586 – 587; see also Lord du Parcq at 600ff.

46. Christie reflects the common law in New South Wales in regard to the obligation to notify an arrested person of the reasons for the arrest. [47]

    47. Adams v Kennedy (2000) 49 NSWLR 78 at [24] per Priestley JA (Sheller JA and Beazley JA agreeing); see also Wilson v New South Wales (2010) 207 A Crim R 499; [2010] NSWCA 333 at [60] per Hodgson JA (McColl and Young JJA agreeing); special leave refused: Wilson v New South Wales [2011] HCATrans 218.

47. Christie was applied in Dowse v New South Wales,[48] where Basten JA stated “an arrest will not be valid merely because the officer believes that an offence has been committed, in circumstances where the officer has no intention of charging the person or having the person charged with that offence”.

    48. (2012) 226 A Crim R 36; [2012] NSWCA 337 at [27] per Basten JA (McColl and Hoeben JJA agreeing). Dowse considered s 99, LEPRA, as in force prior to the LEPRA Amendment Act.

48. The SNSW contended that Basten JA’s remarks should be understood in the light of a case where the arresting officer has decided not to charge the arrested person with an offence, presumably as opposed to this case, where Constable Smith had not determined to charge Mr Robinson with any offence and gave evidence that he “did not believe there was enough to charge him.”

49. I do not accept the SNSW’s submission in this respect. After the passage to which I have referred Basten JA observed that, “[i]f that were not so, the legal requirement that the person arrested be informed of the true grounds of the arrest would be rendered nugatory”. [49] In my view his Honour’s statement is equally applicable to the circumstance that at the time of the arrest, the arresting officer had not determined to charge the arrested person. The effect of both the common law and s 201 of the LEPRA is that the person arrested must know why he or she has been deprived of his or her liberty. The only purpose for which that can be done is to charge the person with an offence and take him or her before an authorised officer as soon as possible.

    49. Ibid.

50. An obligation to inform the person arrested without warrant of the charge on which he or she is being arrested, presupposes that a decision has been made at the time of the arrest to so charge that person.

51. It is uncontroversial, and consistent with the obligation to inform the arrested person of the reason for the arrest, that whether at common law, or pursuant to the LEPRA s 99, the arresting officer’s state of mind to sustain the legality of the arrest, “must exist as a matter of fact at the time of the arrest”. [50]

    50. Lule v State of New South Wales [2018] NSWCA 125 (Lule) at [2] per Beazley P; State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185 at [87] per Beazley ACJ, Ward and Gleeson JJA; see also Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [40] per Gleeson CJ, Gummow, Hayne and Heydon JJ.

52. As I have earlier indicated, the proposition that the arresting officer must intend to charge the person arrested at the time of arrest is consistent with the obligation in s 99(3) to take the person arrested as soon as is reasonably practicable before an authorised officer to be dealt with according to law. Section 99(3) reinforces the common law principle that it was compulsory for a constable, in order to justify an arrest, to show that he had taken the arrested person without delay, and by the most direct route, before a justice, unless some circumstances reasonably justified a departure from these requirements. [51]

    51. Clarke v Bailey at 309; see also Zaravinos at [26].

53. The common law requirement, reflected in s 99(3), to take the person arrested before a justice “as soon as practicable” allowed reasonable time for the arrestors to formulate and lay appropriate charges for the purposes of bringing a person before a justice. [52] It did not empower “the police … to detain an arrested person to enable them, by further investigation, to gather the evidence necessary to support a charge.” [53]

    52.    Williams at 298 (Mason and Brennan JJ); at 312 (Wilson and Dawson JJ).

    53.    Ibid at 312 – 313 (Wilson and Dawson JJ).

54. The s 99(3) requirement recognises the ordinary right to liberty of the citizen by ensuring that an accused person is transferred as soon as practicable after being charged by the executive branch of government to the judicial branch of government where the question of bail can be independently considered. [54]

    54. Attorney-General (NSW) v Dean (1990) 20 NSWLR 650 at 653 per Gleeson CJ, Kirby P and Priestley JA; see also Williams at 305 per Wilson and Dawson JJ. Although, as Samuels JA said in R v Walsh (Court of Criminal Appeal (NSW), 18 October 1990, unrep) (Walsh) at 24, this “statement may strictly be obiter’”, I would agree with his Honour’s observation that “it is a very strong expression of opinion and entitled to the greatest respect.”

55. The proposition that proceedings must be commenced against a person arrested pursuant to s 99 “as soon as is reasonably practicable” is also supported by s 107 of the LEPRA set out above (at [18]). It is implicit in s 107 that the power to arrest without a warrant has been exercised in order to commence proceedings against that person. Coupled with s 99(3), those proceedings must be commenced as soon as reasonably practicable.

56. The consequence of this analysis is that the power to arrest without a warrant expressed in s 99(1)(a), carrying with it the obligation to inform the person arrested of the reason for the exercise of the power of arrest (s 201(1)(c)) means that at the time of arrest, the arresting officer must inform the person arrested of the charge to be preferred. To do so, the arresting officer must have an intention to so charge the arrested person.

57. Thus, properly understood, s 99(1)(a) requires the arresting officer at the time of an arrest without warrant to have formed the intention to charge the arrested person and to advise the arrested person of that charge in the terms I have earlier discussed.

58. Section 99(1)(b) is cumulative on s 99(1)(a). It is notable that it does not confer a power upon the police to investigate the offence. Such an investigation can only be undertaken pursuant to Pt 9.

59. The SNSW does not contend that an intention to investigate per se suffices as the basis for an arrest without a warrant. It accepted that in order for Mr Robinson’s arrest to have been lawful, it was necessary that it satisfy both s 99(1)(a) and (b).

60. The SNSW submits that s 99(1)(b) sets out exhaustively the purposes for which a person may be arrested. It argues that Mr Robinson seeks impermissibly to add another purpose. It also contends that various of the s 99(1)(b) purposes are inconsistent with implying a requirement of a decision, or intention, to charge the arrested person at the time of arrest.

61. In this respect the SNSW points to s 99(1)(b)(ii) (to stop the person fleeing from a police officer or from the location of the offence); s 99(1)(b)(iii) (to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false); s 99(1)(b)(v) (to obtain property in the possession of the person that is connected with the offence); s 99(1)(b)(viii) (to protect the safety or welfare of any person (including the person arrested)); and s 99(1)(b)(ix) (because of the nature and seriousness of the offence) as being matters directed to the investigation of an offence, or, more generally to the protection of the public, rather than to laying a charge.

62. I cannot accept that submission. As Mr Robinson submitted, the s 99(1)(b)(ii) power to stop the arrested person fleeing is consistent with the posited requirement being necessary only if it is proposed by the arresting officer to take the person before a court to answer a charge as required by s 99(3). Second, the s 99(1)(b)(iii) power enabling inquiries to be made to establish a person’s identity is arguably only necessary to obtain that information if it is proposed that the arrested be charged. Third, the s 99(1)(b)(v) power to obtain property in the possession of a person can only be necessary for the purpose of securing evidence to be used against that person when prosecuted. Fourth, the s 99(1)(b)(viii) power to protect the safety or welfare of any person on its face would be directed to protecting such people who may be adversely affected by the offence the police officer suspects the arrested person as having committed or was committing at the time of the arrest. Fifth, the s 99(1)(b)(ix) power to arrest because of the nature and seriousness of the offence appears to be directed to the proposition that the arrested person may repeat the offence the police officer suspects that person has committed or was committing at the time of the arrest.

63. Finally, while still dealing with Pt 8, s 105, which enables a “police officer [to] discontinue an arrest despite any obligation under this Part to take the arrested person before an authorised officer to be dealt with according to law”, does not, in my view, assist the SNSW. As Mr Robinson submitted, it depends upon there having been a prior lawful arrest.

64. The SNSW also placed great weight on the provisions of Pt 9 permitting detention of the arrested person for the purposes of investigation. It contends that, while the primary judge recognised that “it is not lawful to arrest for the purpose of investigation … because it is not a permissible reason under s 99”, his Honour also correctly stated that it was “a different question whether a person properly arrested may nevertheless be detained for the purposes of investigation, as s 109(4) [sic, s 99(4)] permits.” [55] As will be recalled, s 99(4) provides that “[a] person who has been lawfully arrested under [s 99] may be detained by any police officer under Part 9 for the purpose of investigating …”.

    55. Primary judgment at [44].

65. As will be apparent, the route to Pt 9 proceeds via the express requirement in both Pt 8 (s 99(4)) and Pt 9 (s 113(1)(a)) that such further investigation may only be undertaken if there has been a lawful arrest, a requirement also implicit in s 114(1). However, a lawful arrest can only be effected pursuant to s 99 if both s 99(1)(a) and (b) are satisfied.

66. The position is analogous to s 353A(1) of the Crimes Act considered in Clarke v Bailey. Section 353A(1) provided that, “[w]here a person is in lawful custody upon a charge of committing any crime or offence, any constable may search his person and take from him anything found upon his person.” Sub-sections (2) and (3) were also predicated upon the arrested person being “in lawful custody”. Davidson J held that the “terms of the three sub-sections to [s 353A] indicate clearly that the intention of the Legislature was directed to the time when an arrested person is in custody after a formal charge had been laid against him”. [56] [Emphasis added.] Such, in my view, is equally the case in relation to s 99(4).

    56.    At 310.

State of mind to effect an arrest

75. One of the reasons the primary judge gave for rejecting Mr Robinson’s submission that an arrest was unlawful if made for the purpose of questioning or investigating the person arrested was his Honour’s concern that “a charge requires reasonable and probable cause, namely a positive belief and a sufficient (or reasonable) basis for the belief (see A v New South Wales [57] ), a higher obligation on the police officer to that imposed by s 99(1)(a), which requires only a suspicion on reasonable grounds.” [58]

    57. (2007) 230 CLR 500; [2007] HCA 10 (A v NSW) at [77].

    58. Primary judgment at [42].

76. In supporting this aspect of the primary judge’s reasons, the SNSW submitted that in none of the early authorities dealing with s 352(2) of the Crimes Act, such as Bales v Parmeter, did the court consider what the SNSW contends is the differing mental states relating to the decision to arrest and the decision to prosecute.

77. It is not the case that previous authorities did not consider the mental state relating to the decision to arrest and the decision to prosecute in the context of an arrest without warrant. However, it is apparent that the courts did not draw the distinction for which the SNSW contends. Thus, in Bales v Parmeter, a case concerning both unlawful arrest and false imprisonment, Jordan CJ held: [59]

“There is no doubt that in an action for wrongful arrest and false imprisonment by a police officer it is a good defence if the defendant proves that he had reasonable and probable cause for his actions. Such reasonable and probable cause may be established by proving that he, with reasonable cause, suspected the person whom he arrested of having committed a crime or offence.” [Emphasis added.]

59. At 186; see also Trobridge v Hardy (1955) 94 CLR 147 at 152; [1955] HCA 68 per Fullagar J.

78. The phrase “with reasonable cause” reflected s 352(2)(a) of the Crimes Act as then in force.

79. Mason and Brennan JJ spoke to like effect in Williams,[60] a case concerning unlawful detention as a basis for excluding evidence of records of interview containing confessions allegedly made to the police by the applicant, where their Honours explained:

“Nor is there any reason to think that, in general, an arresting police officer would be unable properly to make a complaint or to lay an oral information until he had had an opportunity to question the person arrested. In the ordinary case of an arrest on suspicion, the arresting officer must have satisfied himself at the time of the arrest that there are reasonable grounds for suspecting the guilt of the person arrested, although the grounds of suspicion need not consist of admissible evidence. If the arresting officer believes the information in his possession to be true, if the information reasonably points to the guilt of the arrested person and if the arresting officer thus believes that the arrested person is so likely to be guilty of the offence for which he has been arrested that on general grounds of justice a charge is warranted, he has reasonable and probable cause for commencing a prosecution: see Mitchell v John Heine & Son Ltd; Commonwealth Life Assurance Society Ltd v Brain; Glinski v McIver.” [Emphasis added; citations omitted.] [61]

60.    At 300.

61. The italicised passage was drawn almost verbatim from Dixon J’s reasons in Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 at 382; [1935] HCA 30 and was cited with approval by the plurality in A v NSW at [82] in support of what will sustain “the objective aspect of an allegation of absence of reasonable and probable cause”. Although their Honours counselled at [60] against the “inevitable tendency to translate the negative question – whether the defendant prosecutor acted without reasonable and probable cause – into the different question – what will constitute reasonable and probable cause to institute criminal proceedings”, because of “the importance of the burden of proof and … the variety of factual and forensic circumstances in which the questions may arise”, it is plain they accepted the basic principle applied in Williams as to what will constitute reasonable and probable cause to arrest.

80. When the LEPRA was enacted, the phrase “with reasonable cause” in s 352(2)(a) of the Crimes Act was not repeated. Rather, as I have said, s 99(2) empowered a police officer to arrest a person without a warrant on suspicion “on reasonable grounds” that the person had committed an offence under any Act or statutory instrument. That language has been continued in the present s 99. Accordingly, Jordan CJ’s statement in Balesv Parmeter would now be:

“There is no doubt that, in an action for wrongful arrest and false imprisonment by a police officer it is a good defence if the defendant proves that he had reasonable and probable cause for his actions. Such reasonable and probable cause may be established by proving that he, on reasonable grounds, suspected the person whom he arrested of having committed a crime or offence.” [Emphasis added.]

81. The test for “reasonable and probable cause” in this context conforms to the state of mind required to be held by the person arresting the person without warrant pursuant to s 99(1)(a). There are not two states of mind. Rather, on this approach the state of mind of the arresting officer which justifies the arrest of a person without warrant is also sufficient to found a finding that the arresting officer who charges the person arrested had “reasonable and probable cause” to do so.

82. I do not accept that either A v NSW or George v Rockett [62] (discussed below) lead to a different conclusion.

    62. (1990) 170 CLR 104; [1990] HCA 26.

83. A v NSW concerned, relevantly, the test to be applied to determine for the purpose of the tort of malicious prosecution that the defendant acted without reasonable and probable cause. Consideration of that question involved, in part, consideration of the five conditions Jordan CJ held in Mitchell v John Heine & Son Ltd [63] had to be met if a person was to have reasonable and probable cause for prosecuting another for an offence. To succeed on the issue of reasonable and probable cause the plaintiff had to establish “that one or more of these conditions did not exist”. The plaintiff could do this “by proving, if he can, that the defendant prosecutor did not believe him to be guilty, or that the belief in his guilt was based on insufficient grounds.” [64]

    63. (1938) 38 SR (NSW) 466 (Mitchell).

    64.    A v NSW at [64], referring to Mitchell at 469.

84. After an extensive consideration of Mitchell, the question whether it was inconsistent with observations by Dixon J in Sharp v Biggs, [65] (the plurality held it was not), [66] the plurality held that Jordan CJ’s five conditions were not, and could not have been, intended as “directly or indirectly providing a list of elements to be established at trial of an action for malicious prosecution.” [67]

    65. (1932) 48 CLR 81 at 106; [1932] HCA 54.

    66.    A v NSW at [65] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ; cf Callinan J at [165], [174], following Sharp v Biggs, albeit without discussing Mitchell.

    67. Ibid at [66].

85. When the plurality considered the issue of what is absence of reasonable and probable cause, their Honours explained that there are two kinds of inquiry to determine that issue: one subjective (what the prosecutor made of the available material) and the other objective (what the prosecutor should have made of that material). [68]

    68. Ibid at [70].

86. The subjective issue concerns the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion. [69] As their Honours explained, “absence of reasonable and probable cause will not in every case be shown by demonstrating that the prosecutor had no positive belief that the accused person was, or was probably, guilty.” [70] Insofar as the subjective test was concerned, the plurality concluded that “[t]he expression ‘proper case for prosecution’ is not susceptible of exhaustive definition without obscuring the importance of the burden of proving the absence of reasonable and probable cause, and the variety of factual and forensic circumstances in which the questions may arise. … [I]t will require examination of the prosecutor’s state of persuasion about the material considered by the prosecutor.” [71]

    69. Ibid at [71]. The word “prosecutor” was used throughout A v NSW to refer both to the police officer who preferred charges against A and to the Director of Public Prosecutions who took over the prosecution from the police: see [13] – [14].

    70. Ibid at [76].

    71. Ibid at [81].

87. The objective aspect of an allegation of absence of reasonable and probable cause is “to an objective standard of sufficiency”, resolution of which is “ultimately one of fact”, depending “upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution.” [72] That is to say, the objective aspect turns upon an analysis of the prosecutor’s subjective state of mind based on the materials to which he, she or it had regard in either setting the processes of the criminal law in motion or continuing a prosecution.

    72. Ibid at [84] – [85].

88. This two-step test for determining the validity of a warrantless arrest pursuant to the previous s 99 was accepted in Dowse,[73] where Basten JA held that “there are two elements to be satisfied for a warrantless arrest to be valid, namely an honestly held suspicion in the mind of the arresting officer and information in the mind of the arresting officer which when objectively assessed provides reasonable grounds for the suspicion” that the person being arrested “is committing or has committed an offence”. [74] This is to ensure that “[t]he arresting officer is held accountable”. [75] “Accountable” is clearly used in the sense of the arresting officer being accountable for the legality of the arrest.

    73. At [26].

    74. Macfarlan JA (Beazley P and Barrett AJA agreeing) reached the same conclusion in relation to the present form of s 99 in Lule at [62] – [66]; see also per Beazley P at [2] in relation to s 99(1)(b).

    75. O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 at 291, per Lord Steyn (Lords Goff of Chieveley, Mustill and Hoffmann agreeing).

89. George v Rockett concerned the proper construction of s 679 of The Criminal Code (Qld), a provision concerning a justice issuing a search warrant which required a sworn complaint going to issues of both reasonable grounds for suspicion and belief. It was in that context that the High Court referred to the proposition that “suspicion and belief are different states of mind … and the section prescribes distinct subject matters of suspicion on the one hand and belief on the other.” [76] Their Honours observed that the “facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for suspicion must be shown.” [77]

    76.    At 115.

    77.    Ibid.

90. That statement recognises, rather than excludes as the SNSW appears to contend, the proposition that facts which can reasonably ground a suspicion may be sufficient reasonably to ground a belief. It will turn on the facts of each case. As much is apparent as I have sought to explain from Bales v Parmeter and Williams. As was said in George v Rockett, when used in a composite phrase such as that in s 99(1)(a) (suspects on reasonable grounds), suspicion “requires the existence of facts which are sufficient to induce that state of mind in a reasonable person”. [78]

    78. Ibid at 112; see also New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194 (NSW v Smith) at [122] per McColl JA.

91. Although I accept that in Bales v Parmeter Jordan CJ spoke in terms of the police officer “proving that he, with reasonable cause suspected …”, the outcome of such a factual finding was to establish “reasonable and probable cause” for arresting and imprisoning the defendant. It is plain that his Honour was of the view that if the police officer proved the relevant suspicion was held, that would demonstrate the relevant belief to ground a finding of “reasonable and probable cause” to which his Honour referred three years later in Mitchell. [79]

    79.    At 469.

92. The position is made even plainer in Mason and Brennan JJ’s reasons in Williams from which it is apparent that the information held in the case of an arrest on suspicion based on reasonable grounds (now of course the language of s 99(1)(a)) will, where there is evidence to the effect to which their Honours referred, sustain a finding of reasonable and probable cause to prosecute, that is to say, to charge a person.

93. On the SNSW’s submission, and the primary judge’s reasons, no arrest which conformed either to the common law test of “arrest without warrant on suspicion on reasonable grounds of commission of a felony” or the like s 99(1)(a) requirement, could be an arrest with “reasonable and probable cause” for the purposes of the tort of malicious prosecution. The position may differ, of course, as the prosecution is maintained. This is because, as explained in A v NSW, [80] an action for malicious prosecution has a temporal element, and necessarily directs attention to the material the prosecutor had available for consideration when deciding whether to maintain the prosecution.

    80. At [59].

94. The proposition that there is a different state of mind to charge a person from the state of mind warranting a person being arrested (whether or not with a warrant) is inconsistent with the authorities to which I have referred.

95. Moreover, as a matter of principle it does not, in my mind, withstand scrutiny. This is particularly so when it is recognised that the purpose of arrest is to charge the person arrested, that is to say, to set the processes of the criminal law in motion.

96. In my view the primary judge fell into error in drawing a distinction between the state of mind to arrest and the state of mind to prosecute.

Context: previous cases

97. The SNSW relies upon a number of cases decided under previous statutory iterations of the power of arrest to contend that case law did not establish as broad a proposition as that for which Mr Robinson contends.

98. The SNSW contended that Gleeson CJ’s reasons in Walsh, [81] decided when the statutory power of arrest was found in Crimes Act, s 352(2), were consistent with its submission that the arresting officer did not have to intend to charge the person at the time of the arrest.

    81.    (Samuels JA and Studdert J agreeing.)

99. In Walsh, the police officers who arrested the appellant at the direction of a senior officer did not charge him immediately because they were waiting for the senior officer to arrive. They expected the senior officer both to question and charge the appellant. Gleeson CJ held that “the question whether if they had regarded it as necessary or appropriate to do so, they could have obtained enough information to charge the appellant themselves, was not explored in evidence”.

100. The Court of Criminal Appeal heard argument on the appeal to the effect that on the facts as found there had been an unlawful arrest or detention of the appellant and that, in those circumstances, the trial judge should have exercised a discretion to reject evidence of admissions the appellant was said to have made.

101. Gleeson CJ rejected the appellant’s submission that it was unlawful for the police officers to arrest him if they did not have sufficient knowledge or information about the crimes of which he was suspected to charge him then and there. His Honour said [82] in the passages on which the SNSW relied:

“The appellant was arrested without warrant, but he was reasonably suspected of having committed offences. The officer in charge of the investigation into the shooting on the night of the 11 April, who was apparently also investigating earlier armed robberies, obtained the assistance of other police officers to effect the actual arrest of the appellant. There is no reason to consider that this is either unusual or irregular.

…

However, the delay that occurred in the present case was not one which, in my view, was shown to involve a contravention of the relevant statutory requirements. … It should also be noted that the police officers, whose evidence was accepted, were adamant in their denials that the appellant was being held solely for questioning.”

82.    At 8 – 9.

102. The SNSW contends that if Mr Robinson’s submissions were correct, the absence of an intention on the part of the junior officers to charge the appellant should have been fatal to the lawfulness of his arrest.

103. I would not accept that submission. First, immediately preceding the first passage quoted by the SNSW, Gleeson CJ observed that “[a]s the High Court pointed out in Williams …, and as this Court has pointed out on numerous occasions, it is of the utmost importance that police officers pay proper regard to their obligation to take an arrested person before a court or justice as soon as practical.” As is apparent from the passage I have quoted, his Honour also referred to the evidence the trial judge accepted from “the police officers [who] were adamant in their denials that the appellant was being held solely for questioning (cf Williams 161 CLR 278 at 313)”.

104. In the passage to which Gleeson CJ referred, Wilson and Dawson JJ emphasised the common law obligation that an arrested person should be taken before a justice as soon as is reasonably possible and that neither the common law nor s 34A(1) of the Justices Act 1959 (Tas) there under consideration permitted delay merely for the purpose of further investigation either of the offence for which the person was arrested or of any other offence or offences. That statement was preceded by their Honours’ statement on the previous page of Williams that, “there must be reasonable time to formulate and lay appropriate charges for the purpose of bringing a person before a justice.” [83] It is clear that Gleeson CJ was accepting that the junior officers had not arrested the appellant to interrogate him, and expected the senior officer to charge him. The intention to charge the appellant was held contemporaneously with the appellant’s arrest, albeit it was held by the senior officer.

     83.    At 312.

105. Gleeson CJ’s reasons also have to be understood in the context of the facts more fully set out in Samuels JA’s reasons. As his Honour explained, the senior officer gave evidence that when he arrived at Flemington police station where the appellant was being held, he had already decided to charge him with two of the charges of armed robbery upon which he was ultimately arraigned. In Samuels JA’s view, [84] applying the doctrine of principal and agent, there was no reason why the senior officer’s “reasonable suspicion that the appellant had committed two armed robberies should not be attributed to the arresting police so as to make the arrest lawful.” His Honour added that if the doctrine were to be extended to circumstances such as those before the court, “the arresting officers ought to be put in possession of the details of the charge before they are dispatched to take up the suspect; or they should be in the position to obtain those details immediately after the arrest has been made.”

     84.    At 24.

106. Next, the SNSW submits that in Clyne v New South Wales [85] this Court had rejected the proposition for which Mr Robinson contends. In Clyne, Macfarlan JA rejected a submission by Ms Clyne to the effect that the trial judge had erred in rejecting her submission that she had been wrongfully arrested because those who arrested her did not intend to take her before an authorised officer to be dealt with according to law but, rather, had arrested her for the purpose of questioning. [86] Macfarlan JA held that the trial judge had not erred as s 352(2), Crimes Act, as in force at the time of Ms Clyne’s arrest (15 October 2003), “neither explicitly nor implicitly authorised arrests only if they were effected for the purpose of taking the person arrested before an authorised Justice.” [87]

     85. [2012] NSWCA 265.

     86.    At [62] – [64] (Campbell and Meagher JJA agreeing).

     87. At [63].

107. Macfarlan JA also held that “[c]onsistently with ss 356C and D, the arresting officer’s intent at the time of arrest might lawfully be only to question the person and deal with him or her as required by s 356C(4), that is, release the person or bring him before an authorised Justice.”

108. Macfarlan JA’s conclusion was, as the SNSW accepts, reached without reference to the authorities on which Mr Robinson relies. However, in reaching this conclusion, his Honour agreed with the view to like effect expressed by Adams J in Director of Public Prosecutions v Nicholls. [88]

     88. [2001] NSWSC 523; (2001) 123 A Crim R 66 (DPP v Nicholls) at [15] – [16].

109. In DPP v Nicholls, Adams J accepted that nothing in s 352(2) of the Crimes Act qualified the common law principle “that there is no power to detain a citizen for the purpose of questioning him or her, still less that the intention to do so could justify a delay in bringing the arrested person before a justice in as a short a time as is reasonably practicable.” [89] His Honour referred to passages in Williams as supporting that proposition. [90] However, Adams J reached his conclusion that this principle did not apply on the facts he was considering by reference to Pt 10A of the Crimes Act. [91]

     89. At [8].

     90.    Per Mason and Brennan JJ at 295; per Wilson and Dawson JJ at 306.

     91. Part 10A was inserted in 1997: Crimes Amendment (Detention after Arrest) Act 1997, Sch 1(4).

110. In DDP v Nicholls, Adams J appears to have accepted the DPP’s submission that Mr Nicholls had been detained under s 356C in Pt 10A of the Crimes Act (substantively, relevantly, in the same terms as s 114 of LEPRA) by reason of the expanded definition of “under arrest” in s 355 (cf s 110(2) LEPRA). It was in that context, as I understand Adams J’s reasons, that his Honour held such an arrest might lawfully be for the purposes of investigation. It was that reasoning which Macfarlan JA applied in Clyne. [92]

     92. DPP v Nicholls also appears to have been a very different case factually to Clyne having regard to the police officer’s evidence as to why he placed Mr Nicholls “in custody”: see [3] – [5], [14]. It was for that reason that Adams J had regard to the expanded definition of “under arrest”. In Clyne, there was no doubt that Ms Clyne had been arrested as that term is ordinarily understood: see Clyne at [6].

111. However, after DPP v Nicholls was decided, the Court of Criminal Appeal reached a contrary conclusion in R v Dungay. [93] In that case, Ipp AJA held that an arrest solely for investigative purposes was unlawful. In the course of doing so, his Honour held that lawful detention for the purposes of investigation pursuant to Pt 10A of the Crimes Act was dependent upon lawful arrest having been effected, referring to s 356B(1)(a), s 356C(1) and s 356C(2). [94] It does not appear that R v Dungay was drawn to the Court’s attention in Clyne. It is directly contrary to the conclusion Adams J reached in DPP v Nicholls. This court will follow decisions of the Court of Criminal Appeal unless convinced they are plainly wrong. [95] In my view R v Dungay was not “plainly wrong”, rather, it was correct. Regrettably, it does not appear to have been drawn to the court’s attention in Clyne. It follows, in my view, that Clyne was decided per incuriam and should not be followed.

     93. [2001] NSWCCA 443; (2001) 126 A Crim R 216.

     94.    At [28] – [29] (Studdert and James JJ agreeing).

     95. Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; (2001) 21 NSWCCR 389 at [70] per Heydon JA (Priestley and Sheller JJA agreeing).

112. The SNSW also relied upon Dowse as having been incorrectly decided because the Court was not referred to Clyne. As I have earlier explained (at [55]-[57]), I disagree with the SNSW’s submissions concerning Dowse independently of the fact Clyne was not referred to. Having regard to my conclusion concerning Clyne, the failure to refer to it in Dowse cannot advance the SNSW’s case.

217. One interpretation that had been propounded was that arrest powers should be confined to circumstances where an offence was currently being committed or had just been committed. The Parliamentary Report recommended that s 99(1) and s 99(2), as originally enacted, be combined into one section to make it abundantly clear that police could arrest a person for any offence if they reasonably suspected an offence was being, or had been, committed.

218. The Parliamentary Report referred to concerns that the list of reasons for which police could arrest without a warrant in the then form of s 99 was not broad enough to allow police to arrest offenders in order to protect the community and prevent crime. It confirmed, however, that the intent of the legislation was not to allow police the power to arrest in order to investigate, although the proposed s 99(4) clarified that once a person had been lawfully arrested, the person could be detained under Pt 9 of the Law Enforcement Act for investigative purposes. Accordingly, the Parliamentary Report said s 99(1)(b)(v) had been drafted in such a way as to allow police to arrest to obtain property without conferring a wider power that would allow police to arrest for the purposes of investigation.

219. The Parliamentary Report did not support the introduction of a general power of arrest, as preferred by the police, but preferred the current formulation of a finite power with expanded reasons for arresting a suspected offender. It supported the inclusion of a power to arrest without warrant if the nature and seriousness of the offence warranted that course of action. The authors considered that that provision would give certainty to police to make an arrest when confronted with sufficient evidence of, for example, a domestic violence offence. They accepted that international academic research had demonstrated that arresting domestic violence offenders deterred future domestic violence offending.

220. The Parliamentary Report reported that the police were of the view that where a person is fleeing from police, there should be a corresponding power of arrest if the police reasonably suspect that person of having committed an offence. The authors were convinced by the argument that were that criterion to be omitted, then it may invite argument in court that Parliament intended that police could not arrest a person who was reasonably suspected of committing an offence who was running from the scene of a crime or from a police officer.

221. The Parliamentary Report concluded that the recommendations made by it, if implemented, would expand the list of reasons under which a police officer could arrest. The authors noted that concerns had been raised that increased arrest rates may also increase remand rates, but also noted that police rejected such a concern because not all people who are arrested are remanded and some arrests would be discontinued once the purpose of arrest no longer existed, in circumstances, for example, where the person’s identity had been ascertained. The Parliamentary Report said that, for more abundant caution and transparency, a provision that clearly stated that a police officer could “discontinue” an arrest should be included, referring to the proposed s 105(3).

222. In his speech on the second reading of the Bill for the Amending Act, the Premier observed that the “job of frontline police is already hard enough, without being made harder by having to deal with legal complexities”. The Premier said that the reforms proposed by the Parliamentary Report could give the community confidence that police would have the powers they needed to “keep the peace across the communities of New South Wales". The Premier said that the new provisions would clarify that police could arrest without a warrant for any offence that they reasonably suspected a person was committing or had committed, and that the proposed amended s 99(1)(a) made that abundantly clear. He said that the proposed amended s 99(1)(b) replicated and simplified the existing reasons for arrest contained in the previous form of s 99 and introduced new reasons to arrest without a warrant that, the Premier said, better reflected the circumstances in which police “are called on to act in order to keep the community safe”.

223. The Premier also said that under the proposed amended s 99, police would be able to arrest a suspected offender without a warrant if the person’s identification could not be readily ascertained by other means or if the officer suspected on reasonable grounds that identity information supplied was false. He said that the realities of day-to-day policing were also reflected by the inclusion of a power of arrest without warrant when a suspected offender who was fleeing from police or from the scene of a crime. Further, he said, the proposed amended s 99 clarified that a police officer could arrest a person without a warrant if directed to do so by another police officer who had reason lawfully to arrest that person.

224. The Premier also referred to the proposed amendment to make clear that an arrest may be “discontinued” and the person released without requiring the person to be brought before an authorised officer, saying that that might occur when inquiries revealed that the reasons for arrest no longer existed or if the police decided it was more appropriate to deal with the matter in some other manner, such as by issuing a penalty notice or Court Attendance Notice.

225. Finally, the Premier said s 99 would be amended to make it clear that a person who was “lawfully arrested” under s 99 could be detained for the purpose of an investigation in accordance with Pt 9, an amendment that was intended to remove uncertainty about whether a person who was otherwise “lawfully” arrested could be detained for questioning under Pt 9.

Relevant Principles of Construction

233. Clear words are required in a statute before it will be construed as authorising the holding of an arrested person in custody for a purpose other than for giving effect to the common law purpose of arrest [167] . It is of critical importance for the existence and protection under the law of personal liberty, that the circumstances in which a police officer may, without warrant, arrest or detain an individual be strictly confined, plainly stated and readily ascertainable. Arrest should be reserved for circumstances in which it is clearly necessary and where it is inappropriate to resort to the power of arrest when the issue and service of a summons would suffice adequately [168] .

     167. See North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia (2015) 256 CLR 569; [2015] HCA 41 at [23].

     168. See State of New South Wales v Smith [2017] NSWCA 194 (Smith).

234. It is improbable that the legislature would overthrow fundamental principles, infringe rights or depart from the general system of law described above without expressing its intention with irresistible clearness. To give any such effect to general words, simply because they have that meaning in the widest, usual, or natural sense, would be to give them a meaning in a sense in which they were not really used. Curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom enhances the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights [169] .

     169. See Coco v The Queen (1994) 179 CLR 427 at 437-438; [1994] HCA 15; Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [310] (Lee).

235. However, while that notion extends to the protection of fundamental principles and systemic values, it ought not be extended beyond its rationale. Thus, the notion does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means that are within the constitutional competence of the enacting legislature [170] . That principle of construction is fulfilled in accordance with that rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a positive legislative determination that the right, freedom or immunity is to be abrogated or curtailed [171] .

Construction of s 99

170. See Lee at [313].

171. Ibid at [314].

Submissions

236. Mr Robinson contends that his arrest was unlawful because it was effected for an extraneous purpose. He asserts that, because the only proper purpose for the exercise of the power of arrest under s 99(1) is to bring the arrested person before a justice in order to conduct a prosecution, there is an additional requirement to those specified in s 99(1), namely, that the arresting officer, or the officer directing arrest under s 99(2), must hold a positive intention, at the time of the arrest, to charge the arrested person, and that in the absence of such a positive intention, the arrest will be effected for an extraneous and unlawful purpose.

237. Mr Robinson contends that, if an arresting officer does not form such an intention, then that constitutes an arrogation by the police officer to himself or herself of the power of imprisonment vested only in the judiciary or an authorised officer. He bases that contention on the proposition that the arrest of a person is the first step in the process by which the arrested person is to be made answerable for the offence that the arresting police officer reasonably suspects the person of committing.

238. Mr Robinson relies on the proposition that a person must not be arrested, and thereby imprisoned, otherwise than upon the authority of a justice or a court except to the extent reasonably necessary to bring that person before a justice or a court to be dealt with according to law [172] . He asserts that that proposition holds good even if the matters set out in s 99(1) are strictly satisfied, and that reasonable satisfaction of the s 99(1)(b) matters cannot exist independently of the purpose of bringing the arrested person before a justice or a court for the purpose of conducting a prosecution [173] .

     172. See Williams at 306.

     173. See Zaravinos at [37].

239. Mr Robinson contends that s 99 does not displace the fundamental purpose of arrest recognised by the general law and that the provisions of s 99 supplement the general law rather than derogate from it. [174] Thus, he contends, unless the arrest of a person is for the purpose of bringing that person before a justice or a court and conducting a prosecution, the fact that the purpose of arrest might be one of those specifically referred to in s 99(1)(b) does not of itself prevent the arrest from being unlawful. Moreover, he says, if s 99 provided a power of arrest in circumstances where the purpose was not to take the arrested person before a justice and conduct a prosecution, that would need to be expressed in clear, unambiguous language [175] . That is so, he says, because the allowance of such a power abrogates, or curtails, both the common law purpose of arrest and the fundamental common law principle of personal liberty.

     174. See Law Enforcement Act, s 4.

     175. See Al-Kateb v Godwin (2004) 219 CLR 562 at 577; [2004] HCA 37.

240. The State contends that, in circumstances where it is clear that the current form of s 99 was introduced in order to broaden the powers of police arrest without a warrant, it is erroneous to assume that s 99 must operate in the same way as previous iterations [176] . The State contends that if the effect of the current form of s 99, properly construed, differs from previous iterations, which have been construed in previous cases, then the current form must be given effect according to its terms.

     176. See Clyne v State of New South Wales [2012] NSWCA 265.

241. The State accepts that an arrest will not be lawful if the purpose of the arrest is merely for making further inquiries or asking further questions. It also accepts that an arrested person must be brought before a justice as soon as reasonably practicable. However, the State says the purpose of bringing the arrested person before a justice as soon as reasonably practicable is more accurately described as being to bring the arrested person before a justice as soon as reasonably practicable, if a decision is taken to charge the person. The State contends that if the purpose is understood in that way, then any tension between the mental state required for arrest, on the one hand, and the mental state required for prosecution, on the other, will be removed. That is to say, while reasonable suspicion is sufficient for a lawful arrest, unless reasonable and probable cause is acquired before the expiration of the time within which it is reasonably practicable to bring the arrested person before a justice, the arrested person must be released without charge. The State contends that the purpose of arrest understood in that way is consistent with the requirement that what must be stated to an arrested person at the time of arrest is not necessarily the precise charge, if any, to be laid, but, rather, the true ground for the arrest [177] .

     177. See Law Enforcement Act, ss 201(1)(c) and 201(3).

Consideration

242. The task of statutory construction begins with the text of the statute. There are several textual matters that point away from Mr Robinson's contentions.

243. Section99(1) specifies, in some detail, the state of mind that a police officer must hold in order lawfully to arrest a person without warrant. The section states expressly that a police officer may, without warrant, arrest a person if the relevant state of mind is shown to have existed. In those circumstances, the express language of s 99, which does not make any reference to an intention on the arresting officer’s part to charge the arrested person, is contrary to the existence of a further requirement as to the state of mind of the arresting police officer, as posited by Mr Robinson.

244. Mr Robinson’s only response to the above proposition is that it is an overstatement to observe that the text of s 99(1) does not state the requirement posited by him. That contention calls for the recognition of an unexpressed requirement as to the state of mind of a police officer that is in tension with the state of mind for which express provision is made.

245. Under s 99, it is a condition for a lawful arrest without warrant that the police officer suspects, on reasonable grounds, that the person is committing or has committed an offence. Nevertheless, Mr Robinson contends that before arresting a person without a warrant, a police officer must have reasonable and probable cause for commencing a prosecution.

246. An arresting police officer will have reasonable and probable cause for commencing a prosecution if the arresting officer:

• believes that information in his or her possession points to the guilt of a person;

• reasonably believes the information to be true; and

• therefore believes that the person is so likely to be guilty of the offence for which the person has been arrested that a charge is warranted [178] .

Thus, Mr Robinson’s contention raises the distinction between suspicion, on the one hand, and belief, on the other.

178. See Williams at 300.

247. In the case of arrest on suspicion, the arresting police officer must have satisfied himself or herself, at the time of the arrest, that there are reasonable grounds for suspecting the guilt of the arrested person. However, the grounds for the suspicion need not consist of admissible evidence. Suspicion is a state of conjecture or surmise where proof is lacking and the facts that can reasonably ground a suspicion may be quite insufficient to ground a reasonable belief. Nevertheless, a suspicion that something exists is more than a mere idle wondering whether it exists or not and there must be some factual basis for the suspicion. A suspicion is a positive feeling of actual apprehension or mistrust, amounting to a slight opinion but without sufficient evidence [179] . Consequently, a reason to suspect that a fact exists is more than a reason to consider the possibility of the existence of the fact. The reason to suspect is something that, in all the circumstances, would create in the mind of a reasonable person an actual apprehension or fear of the relevant matter [180] .

     179. See Lule v State of New South Wales [2018] NSWCA 125.

     180. See George v Rockett (1990) 170 CLR 104 at 112, 115-116; [1990] HCA 26.

248. However, the objective circumstances sufficient to show a reason to believe something must point more clearly to the subject matter of the belief than suspicion of the matter. Belief is an inclination of the mind toward assenting to, rather than rejecting, a proposition, and the grounds that can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture [181] .

     181. Ibid at 115-116.

249. If a police officer must have reached that higher standard of having reasonable and probable cause to commence a prosecution before effecting a lawful arrest without a warrant, as Mr Robinson contends, the mental state necessary for a police officer to effect a lawful arrest without a warrant is something different from the mental state expressly referred to in s 99(1)(a), namely, suspicion on reasonable grounds. There is, therefore, a real tension between the express words of s 99(1)(a) and the implication for which Mr Robinson contends.

250. Mr Robinson responds to the suggestion of tension or inconsistency between the state of mind required by s 99(1)(a) and the state of mind required to commence a prosecution by saying that the distinction is, in practice, unreal. Thus, he says, there is no reason to think that, in general, an arresting police officer would be unable properly to make a complaint or lay a charge until the officer had had an opportunity to question the person arrested.

251. Moreover, while an arrested person must be brought before a justice, the time needed to bring the arrested person before a justice as soon as reasonably practicable is such as to allow time to decide whether or not to lay a charge. That is to say, even if there must be an intention to charge at the time of arrest, the actual decision to do so is the next step in the process. Thus, the purpose of bringing the arrested person before a justice as soon as reasonably practicable should be understood as being bringing the arrested person before a justice as soon as reasonably practicable if a decision is made to lay a charge against the person. Understood in that way, any tension between the mental state required for arrest and prosecution would be resolved. Reasonable suspicion is sufficient for arrest. If reasonable and probable cause to commence a prosecution is not reached by the expiry of the time within which it is reasonably practicable to bring the arrested person before a justice, the arrested person must be released without charge, as s 105 makes clear. That understanding is consistent with the fact that what must be stated to an arrested person at the time of an arrest is not the precise charge to be laid, if any, but, rather, the true ground for the arrest [182] .

     182. See Law Enforcement Act, ss 201(1)(c) and 201(3).

252. It is clear from s 105(1) that a police officer may “discontinue” an arrest at any time. Section 105(2) demonstrates that the discontinuance might be for any reason, including because it is more appropriate to deal with the matter in some other manner, such as by issuing a warning or a caution. Section 105(3) provides expressly that discontinuance may occur despite any obligation on the part of a police officer to take the arrested person before an authorised officer to be dealt with according to law. The concept of “discontinuance” of an arrest is consistent with arrest being a process, which commences at the time when an arrest begins and continues through the subsequent detention. Thus, it is the detention that is discontinued.

247. When s 99 is read with s 105, it is clear that an arrested person might or might not be brought before an authorised officer to be dealt with according to law, depending upon the circumstances. Accordingly, while the arresting police officer must intend that the arrested person will be brought before an authorised officer, the police officer is not required to have decided that he or she will bring the person before an authorised officer for whatever reason. Those provisions, read together, recognise the kind of uncertainty on the point that may work on the mind of an arresting officer in the position of Constable Smith at the time of an arrest.

248. Mr Robinson asserts that such a contention misunderstands the purpose of s 105(1), which, he says, does no more than make it clear that if a police officer changes his or her mind about proceeding with the charge originally contemplated because, for example, the original suspicion has been dispelled by further investigation, then the officer would be under no obligation to continue the arrest merely to satisfy the duty imposed by s 99(3) to take the arrested person before an authorised officer. Mr Robinson’s contention, of course, assumes the correctness of his basic proposition.

249. Mr Robinson accepts that there is nothing on the face of s 99(1) that expressly addresses the state of mind of an arresting police officer at the time of the arrest, but contends that the imposition by s 99(3) of a duty on the police officer to take the arrested person before an authorised officer to be dealt with according to law, as soon as reasonably practicable, suggests the additional requirement posited by him. Mr Robinson says that there can be no occasion to take the arrested person before an authorised officer unless there is an intention to charge the person. He also points to the fact that s 99(3) is consistent with, and has its origins in, the common law.

250. Again, Mr Robinson’s contentions do no more than repeat his basic proposition that there is an additional requirement that must be met before an arrest is lawful. The fact that s 99(3) imposes a duty on the police officer to take the arrested person before an authorised officer as soon as reasonably practicable, to be dealt with according to law, says nothing about the state of mind of the arresting police officer at the time of the arrest.

251. It is clear from s 99(4) that a person who has been lawfully arrested under s 99(1) may be detained under Pt 9 for the purpose of investigating whether the person committed the offence for which the person was arrested and for any other purpose authorised by Pt 9. However, it is inconsistent with the facility for which Pt 9 provides that an arresting officer must, at the time of arrest, have concluded already that the arrested person will be charged. The notion underlying s 114(1) is that, following arrest, further investigation may be required before the commencement of criminal proceedings: the period of detention may need to be prolonged to permit that to occur. That indicates that, while the arresting police officer must have the intent to charge, the arresting officer is not required to have made the decision to do so.

252. While the linking of Pt 9 to s 99 is significant, the arrest must be “lawful”. Whether or not an arrest is lawful depends upon the correctness of Mr Robinson’s basic proposition. Mr Robinson contends that the statutory provision for detention to investigate is not inconsistent with an intention on the part of the arresting police officer, at the time of the arrest, to charge the arrested person. By the operation of s 105, the arrested person will be released if any subsequent investigation dispels the police officer’s original suspicion that led to the formation of the intention to charge the arrested person. Those considerations rather support the conclusion that the link between Pt 9 and s 99 is equivocal as to the question presently under consideration.

253. The State also contends that certain of the reasons specified in s 99(1)(b), for which a police officer may consider arrest of a person to be reasonably necessary, are inconsistent with the requirement posited by Mr Robinson. For example, the State says, the purposes specified in pars (ii), (iii), (v), (viii) and (ix) are more directed to the investigation of an offence or to the protection of the public, rather than to laying a charge. The State propounds, by way of example, the circumstance of a police officer happening upon a person standing over a body, who, upon seeing the police officer, seeks to flee. It suggests that that may readily be a circumstance in which the police officer forms a reasonable suspicion, not necessarily amounting to a positive belief, that the person committed an offence, such that arrest is necessary to stop the person’s flight. It would be difficult, the State says, to see how, without further investigation, the police officer could form a positive belief as to guilt so as to have reasonable and probable cause to commence a prosecution and therefore to charge a person. Nevertheless, the purpose of the arrest is not investigation. Rather, it is one or other reasons of the reasons set out in s 99(1)(b), depending on the circumstances. Additional information may be required to take the next step, which is limited by the six hour period in the Law Enforcement Act. Thus, a balance has been struck by the legislature.

254. Mr Robinson contends that the five reasons in s 99(1)(b) relied upon by the State are not inconsistent with the existence of the requirement posited by him. Thus, he says, a power to stop a person fleeing from a police officer is consistent with an intention to charge, being necessary only if it is proposed by the police officer to take the person before an authorised officer to answer a charge. Mr Robinson says that the power to enable inquiries to be made to establish a person’s identity is not inconsistent with the posited requirement because it is only necessary to obtain the person’s identity if it is proposed that the person be charged.

255. Mr Robinson also asserts that the power to obtain property in the possession of the arrested person that is connected with the offence can only be necessary for the purpose of securing evidence to be used against the person after a charge has been laid. Further, the power to protect the safety and welfare of persons other than the arrested person must, Mr Robinson asserts, be understood as concerning only those persons connected with, namely adversely affected by, the suspected offence. He says that the provision is consistent only with an intention on the part of the arresting officer to hold the arrested person accountable for the relevant offence. Finally, Mr Robinson says that the reference to the nature and seriousness of the offence should properly be regarded as supplementary to the considerations of securing the person’s attendance before a court and the protection of the safety or welfare of others. He asserts that it is self-evident that the more serious the offence, the greater the risk of flight.

256. Mr Robinson asserts that all of the reasons set out in s 99(1)(b) are directed to the question of whether a Court Attendance Notice would be appropriate or whether, because of one or more of the considerations in s 99(1)(b), the police officer concerned could be satisfied that it is “reasonably necessary” to arrest. He asserts that that approach is consistent with the proposition that arrest should be reserved for circumstances in which it is clearly necessary and the proposition that it is inappropriate to resort to the power of arrest when issuing a Court Attendance Notice would suffice [183] . Those considerations support the conclusion that the matters relied on by the State in that regard are also equivocal as to the question presently under consideration.

     183. See Smith at [102].

257. Consideration of the context provided by the Amending Act, and of the differences between ss 99 and 105 before and after the amendments effected by the Amending Act, may be significant. Such a comparison helps to identify the mischief to which the amendments were directed.

258. First, the former s 99(3), which was expressed as a limitation on the power of arrest for the purpose of taking proceedings for an offence, has been deleted and incorporated in s 99(2), which no longer refers to the purpose of taking proceedings for an offence. That alteration weakens the connection between the arrest and the taking of proceedings, which lies at the heart of Mr Robinson’s contentions. It also makes clear that there is a second step required, namely, to decide to charge. The purpose is not to commence prosecution, since that is a discrete phase.

259. Secondly, the reasons why a police officer may consider the arrest of a person to be reasonably necessary have been considerably expanded under the new s 99(1)(b) to include matters that are more directed to the investigation of an offence or for the protection of the public. That supports the State’s contention that the common law purpose of arrest, to bring the arrested person before a justice or court as soon as is reasonably practicable, is but one of a number of lawful purposes, or reasons, for arrest.

260. Thirdly, if the reason for an arrest is, for example, to establish the identity of the arrested person rather than to charge the person, that purpose may be achieved relatively swiftly. The arrest may then be discontinued without bringing the person before an authorised officer. That would explain the introduction of s 105(3), as was acknowledged in the Parliamentary Report.

261. Fourthly, the Parliamentary Report referred to the view that the former terms of s 99 were complicated and difficult to apply and were lacking in clarity, saying that the proposed amended form of s 99 was intended to be clearer, simpler and more transparent. The current form of s 99 does not sit easily with a continued insistence that the purpose of arrest must be to bring the arrested person before an authorised officer as soon as reasonably practicable, particularly when s 99 is linked expressly to the investigative provisions in Pt 9 by s 99(4). The recognition of implied limitations, going beyond those expressly stated in s 99, would sit uneasily with the purpose of simplifying the provision so that it would be clearer and more transparent. Such considerations militate against the recognition of an implied limitation to the effect that the arresting officer must, before arrest, have formed the intention to charge the arrested person.

262. Mr Robinson contends that the text of s 99 is entirely consistent with the proposition for which he contends, as is the context in which s 99 was enacted and subsequently amended. He emphasises that the common law recognises as the only purposes of arrest and detention the purposes of charging the arrested person and taking the person before a court. He says that nothing in s 99 abrogates the right to personal liberty secured by the recognition of those purposes by the common law. He says that if the State’s contention were accepted, there would be nothing in ss 99, 105 or the provisions of Pt 9 that would prevent a person from being subjected to serial arrests in respect of the same offence despite the fact that, on the occasion of each arrest, albeit that on such occasions the arrest is effected in good faith, the arresting officer had formed no intention of laying a charge. He asserts that such an outcome would be contrary to the fundamental right of personal liberty and at odds with the only purpose of arrest recognised by the common law.

263. It is difficult to imagine circumstances where there would be serial arrests that were all effected in good faith. The contention also ignores the fundamental stance adopted by the State that the current form of s 99 was intended to modify the common law, to the extent that the common law is inconsistent with the explicit terms of s 99.

Conclusion

270. The dual requirements of ss 99(1)(a) and 99(1)(b) must be met. However, arrest is the start of a process that must end within a limited time, either by the person arrested being taken before an authorised officer or by the person being released pursuant to s 105. The fact that one of the two possible endings to the process is laying a charge against the person does not mean that there must be a positive intent to lay a charge at the beginning of the process.

271. Mr Robinson’s contentions do not grapple with the textual and contextual matters outlined above but proceed by reference to case law concerned with other provisions, including earlier iterations of s 99. While such matters may be relevant to the construction of s 99, to the extent that analogous reasoning is persuasive or general principle is relevant, the decided cases in relation to earlier, differently worded provisions are not determinative of the proper construction of the current form of s 99.

272. The restrictions that the common law places upon the purpose for which an arrested person may be held in custody may well, on occasions, hamper the police, sometimes seriously, in their investigation of crime and the institution of proceedings for its prosecution. That is to say, the jealousy with which the common law protects the personal liberty of the subject may not assist the police in the investigation of crime. However, such functions of the police are carried out in the interests of the community as a whole and not for some private end. Thus, legislative modification of such principles of the common law may be seen as reflecting a need that the common law does not meet. The striking of a balance between personal liberty and the exigencies of the investigation of crime is nevertheless a function of the legislature, not the courts. If the legislature considers that it is right to enhance the armoury of law enforcement, it is for the legislature to prescribe safeguards that might ameliorate the risk of unconscionable pressure being applied to persons under interrogation while being kept in custody [184] . In the absence of precise limits upon the power of police to detain an arrested person for questioning, the swing would be too far in favour of increased investigative powers at the expense of individual freedom [185] .

     184. See Williams at 296.

     185. Ibid at 312-313.

273. The principle of the common law, that the freedom of an individual should not be restricted without a warrant simply for the purpose of investigation, is of fundamental importance. While s 99 does not modify the common law principle to the extent contended by Mr Robinson, it has modified the common law to the extent that there is no longer a requirement that the person be charged. It is clear that, by amending s 99, the legislature intended to introduce a second step in the arresting process, the first being to satisfy ss 99(1)(a) and 99(1)(b), and the second being the exercise of discretion by a police officer when deciding to charge. In that way, the ultimate purpose of arrest is still to bring the arrested person before an authorised officer, by laying a charge, and the arrest cannot be for the purpose of investigation.

274. It follows that the conclusion of the primary judge was not erroneous and s 99 afforded a defence to the State against Mr Robinson’s claim. Mr Robinson’s appeal should be dismissed. Mr Robinson should pay the State’s costs of the appeal.

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Endnotes

Amendments

17 October 2018 - [25] - changed "provides" to "provided"

[36], [115] and footnote 48 - changed "2013 Amendment Act" to "LEPRA Amendment Act"

[42] - changed "that effect" to "that the effect"

[69] - inserted "(b)" after "99(1)" where cited

[70] - inserted "(1)" between "99(b)"

[77], [80] - changed "has" to "had" in Jordan CJ quote

[80] - changed "an arrest" to "to arrest"

[81] - changed "warrants" to "justifies"

[110] - changed "relatively" to "relevantly"

[114] - removed italics from "and"

[157] - changed "Dawson and Wilson JJ" to "Wilson and Dawson JJ"

[182] - changed "s 365C" to "s 356C"

[189] - inserted "to" after Schedule 3"

[197] - changed "s 8K" to "s 8(1)

[206] - inserted "Part 9 of" "after Division 2 of"

[225] - final sentence - changed "considering" to "conferring"

[259] - final sentence - changed "four hour" to "six hour"

13 May 2020 - [15] corrected wording in citation s 99(1)(b)(vii)

[76] corrected section cited to "s 352(2)"

[109] inserting "nothing in" before "s 352(2)"

[147] deleted "is" after "as soon as"

[158] inserted "or her" before "liberty,"

Fn 136 corrected page number to "26"

Decision last updated: 13 May 2020