State of New South Wales v Delly

The Court of Appeal of New South Wales considered an appeal by the State of New South Wales against a decision awarding damages to the respondent, Ms Delly, for unlawful arrest. The dispute centred on whether the police had lawfully arrested Ms Delly, and if not, the appropriate quantum of damages, including compensatory, aggravated, and exemplary damages.

The primary legal issues before the Court were: first, whether the exception to the requirement that an arrested person be informed of the reason for their arrest applied in this case; and second, the assessment of damages, particularly whether aggravated and exemplary damages were warranted and, if so, in what amount. The Court was required to determine the correct test for when a person arrested must be considered to know the general nature of the alleged offence for which they are detained.

The Court, by majority, held that the exception to informing an arrestee of the reason for their arrest did not apply. For the exception to operate, the arrested person must have known they were being arrested for a criminal offence connected to the circumstances and possess meaningful knowledge of the likely charge. The Court clarified that the circumstances of the arrest, not the subjective knowledge of the arrested person about the underlying events, govern the issue. While compensatory damages of $25,000 were considered within the upper range but not excessive, the Court found that aggravated damages were not justified as the police conduct did not go beyond ordinary human fallibility. Regarding exemplary damages, while the failure to inform Ms Delly of her rights was acknowledged as demonstrating contempt, the amount awarded was deemed unjustifiable and reduced.

The appeal was allowed in part. The award of damages was set aside and a verdict entered for the respondent in the sum of $35,000. The appellant was ordered to pay the respondent's costs of the appeal and of the summons for leave to appeal. The parties were granted leave to make written submissions regarding pre-judgment interest and the effect of any Calderbank offer on costs.