State of New South Wales v Robinson

[2019] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S119 of 2019

B e t w e e n -
STATE OF NEW SOUTH WALES
Appellant
and
BRADFORD JAMES ROBINSON
Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 3 SEPTEMBER 2019, AT 10.01 AM

MR J.K. KIRK, SC: May it please the Court, I appear with my learned friend, MR P.D. HERZFELD, for the appellant. (instructed by McCabe Curwood Pty Ltd)

MR D.R.J. TOOMEY, SC: May it please the Court, I appear with my learned friends, MR D.C. MORGAN and MR D.J. WOODBURY, for the respondent. (instructed by Foott, Law & Co Solicitors)

KIEFEL CJ: Yes, Mr Kirk.

MR KIRK: Your Honours, I propose to start with the facts by going to the District Court judgment and then, secondly, deal with the statutory scheme and in so doing I will address A v State of New South Wales. Thirdly, I will address the significance of previous cases relating to powers of arrest and, fourthly, and finally, I will deal with the extrinsic materials.

If I can start with the facts essentially by way of background because there is really only one fact which matters in this case, and if your Honours could go to the decision of District Court Judge Taylor, starting at page 6 of the core appeal book, your Honours will see in paragraph 1 at the bottom of the page, that the respondent was arrested at around 5.00 pm on 22 December 2013 – I note by way of passing that that was six days after significant amendments had been made to section 99 of the legislation. The arrest lasted for about one hour and 18 minutes. The relevant power is extracted at paragraph 2 but, of course, we will come back to that.

If your Honours turn to page 8, paragraph 6, his Honour articulated the issues that his Honour had to decide. I will go through the judgment to illustrate what the answers were given to each of those issues. But can I draw attention at page 9 to paragraph 8 where his Honour set out several matters which were known to Constable Smith, the arresting officer at the time of arrest, because they were recorded in a file which he had read earlier on that day, 22 December.

So it started with initial complaint on 8 October 2013 by the complainant against the respondent. On 9 October 2013, an interim ex parte AVO was issued and that was then – I should say, that was replaced by an AVO issued by the Local Court not on an ex parte basis on 16 October 2013. At subparagraph (e) it notes that:

On 18 December 2013 –

so, some two months after the AVO had been issued:

an employee of [the complainant] informed her that he had received an email from [the respondent].

The complainant had a certain reaction. At the top of the next page in subparagraph (f) your Honours will see that two days later the complainant attended a police station and reported some of the matters above and your Honours will see at (g) the email. Nothing turns on that for present purposes. Then at (h) there is a quote from the complainant’s statement indicating how that email made her feel and her response to the email. At paragraph 9, on page 11, his Honour noted that:

Constable Smith’s belief at the time of arrest was also informed by two further matters:
(a)…..on Sunday, 22 December –

So, it is the morning of the day of arrest. Constable Smith had attended what was described as “the residence” of the respondent and ascertained that he no longer lived there but then, at noon on that day, the respondent called the police stating to another constable that he had been made aware that the police wanted to speak to him. Your Honours will see in the fifth line, that he indicated that:

he was homeless, currently interstate and would be in Sydney tomorrow. He refused to provide the police with an address of where he would be the next day and stated that he would not attend any police station before seeking legal representation. The police advised him to attend Sydney City Police Station tomorrow regarding –

the alleged breach of the AVO. He was described as being:

argumentative and did not agree to attend the police station.

The constable who had had that phone conversation recorded it in the COPS system:

and informed Constable Smith of the conversation –

Then, as recorded at paragraph 10, in fact:

At 5pm that same day –

the respondent entered the Sydney City Police Station, the relevant police station, and he was then immediately arrested. Paragraph 11 records something of Constable Smith’s state of mind. Having read the documents he indicated:

the basis of the arrest was the seriousness of breaching a court order . . . “to stop any further offences occurring -

He indicated he did not have any reason to suspect that another breach may occur. If your Honours turn the page he:

also gave evidence that he did not believe [the respondent] would turn up to court.

Paragraph 13 he:

gave evidence that he believed it was necessary to arrest [the respondent] for the alleged breach of the AVO.

Your Honours will note the last sentence that, generally, the judge accepted the constable’s evidence. The first issue was whether or not Constable Smith in fact suspected that the respondent had committed an offence, a breach of the AVO. That was not in dispute and that is recorded at paragraph 14. By way of background, the relevant offence of breach of an AVO is recorded by his Honour Justice Emmett at paragraph 199 of the judgment – your Honours need not turn to it, at page 92.

The next issue is whether there were reasonable grounds for that suspicion of breach of an offence. There was argument about this, of two kinds, recorded at paragraph 16. First, as recorded in subparagraph (a), there was an issue about how that email had come to be in the complainant’s junk email folder. Without getting bogged in the facts, his Honour held there was sufficient evidence to have found reasonable grounds for Constable Smith in all the circumstances – see paragraph 22. The second issue recorded at paragraph (b) was that:

Constable Smith had not determined whether to charge Mr Robinson at the time of the arrest, and ultimately did not charge Mr Robinson.

If your Honours turn the page to page 14, paragraph 23, this argument is elucidated a little more. It is implicit in this paragraph and made clearer in paragraph 38, to which I will come in a moment, that it was not in dispute that at the time of arrest Constable Smith had not in fact determined to charge Mr Robinson at the time of arrest. That, in a sense, is the one key fact which matters in this case. The judge notes in paragraph 23 that that might lead to an inference that Constable Smith:

may have had doubts as to whether the offence had occurred…..That does not address the question of whether he had reasonable grounds for a suspicion –

and his Honour was persuaded there were reasonable grounds for suspicion. Then it was necessary for his Honour to turn to the requirement in section 99(1)(b), to which obviously I will come in some detail, that it was reasonably necessary to arrest for one of the nine articulated reasons in section 99(1)(b) and three were relied upon by the State.

The first was that it was reasonably necessary to stop a repetition of the offence. His Honour was not persuaded of this: see paragraph 37 - so that one fell away. But the other two reasons from 99(1)(b) his Honour was persuaded of – first, at page 17, paragraph 38, whether it was reasonably necessary to ensure that the respondent appeared before the Court. Your Honours will see in the first sentence of paragraph 38 that key fact again, namely:

that Constable Smith had conceded that he had not determined at the time of the arrest whether he would charge Mr Robinson.

So, in that circumstance, the respondent submitted that it was not reasonably necessary to have charged him. If your Honours turn to page 18, paragraph 42, one key part of his Honour’s reasoning in rejecting that argument was that if it was accepted it would lead to a disparity between the requirement for reasonable suspicion as regards arrest and reasonable and probable cause as regards malicious prosecution, to which I will come back shortly in terms of developing the argument. At paragraph 44, his Honour noted that:

Mr Robinson submitted that it is not lawful to arrest for the purpose of investigation. I accept that this is so, not so much because that was the rule as stated as Zaravinos –

a Court of Appeal decision quoted at paragraph 38:

but because it is not a permissible reason under s 99. It is a different question whether a person properly arrested may nevertheless be detained for the purpose of investigation, as s 109(4) permits.

That, in a sense, catches the argument we put that, as I will come to, we do not say that an intention to investigate simpliciter is enough to found the arrest power but that within the nine heads of reason within 99(1)(b), many of those are directed to investigation, as I will seek to show shortly.

So insofar as the arresting officer is persuaded that it is reasonably necessary for any one of those grounds, that may encompass a purpose of investigation connected to that particular reason. But that is different from having simpliciter a purpose of investigation.

The other 99(1)(b) ground relied upon was the seriousness of the offence. His Honour dealt with that from paragraph 45 onwards. Your Honours will see reference to, at paragraph 45, an earlier Robinson decision. Just by way of background and to avoid confusion, in fact the respondent had earlier breached this AVO. That led to its own trail of litigation and went up to the Court of Appeal and that is what is being referred to. But as his Honour earlier noted, in fact Constable Smith was not aware of that fact at the time on 22 December, so it is not a relevant fact for current purposes.

However, in that earlier Court of Appeal case, the Court of Appeal had held that breach of an AVO is a serious offence, and that social media harassment is not to be lightly dismissed. In that context, if your Honours turn the page, Judge Taylor said:

But the content of the email, and the breach of a court order show that the sending of the email was not at the “very lowest of the criminal spectrum” as was put to Constable Smith.

Those are the key points from his Honour’s judgment. At page 27, your Honours will find the notice of appeal to the Court of Appeal. There was just one appeal ground, namely that the trial judge erred in finding the arrest and subsequent detention of the plaintiff was lawful, in circumstances where at the time of the arrest the arresting officer had not formed an intention to charge the plaintiff with any offence. As I have noted, that factual allegation was not in dispute. It was accepted in the Court of Appeal.

In terms of the reasoning of the majority of the Court of Appeal, comprised of Justices McColl and Basten, with Justice Emmett dissenting, I will deal with the reasoning as I develop my argument, but if I could simply show your Honours the relevant conclusions at this point. In her Honour Justice McColl’s judgment at page 69, paragraph 127, at the end of her Honour’s judgment she stated:

The consequence is first, that the intention to charge the arrested person must have been formed at the time of the arrest pursuant to s 99 and, second, subject to the confined s 99(1)(b)(iii) power, the arrested person cannot be interviewed in relation to the s 99(1)(a) offence –

That is a little bit of a tangent. As it happens, it is, with respect, clearly wrong, but it need not distract your Honours for the purposes of this case. Your Honours will note the last sentence:

Logic dictates that the decision to charge must also have been made at that time.

So there is an intent to charge at the time of arrest. That clearly implies also a decision to charge – one cannot meaningfully distinguish. For his Honour Justice Basten, if your Honours turn to page 91, paragraph 194, first sentence – and this part of his judgment is referring to the application of the principles to the facts – his Honour said:

For the reasons set out above, that –

i.e., referring to the facts:

was not sufficient to allow an arrest in the absence of any intention at the time of carrying out the arrest to charge the appellant and take him before a justice (or bail officer) to be dealt with according to law.

For completeness, one can contrast that to his Honour Justice Emmett, at page 114, paragraph 270, where his Honour said:

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 –

and so forth. That does not mean there must be a positive intent to lay a charge at the beginning of the process, which is very much the argument we seek to make.

Can I now turn directly to the statute? Your Honours will find the relevant version at volume 1, tab 3. It is the Law Enforcement (Powers and Responsibilities) Act 2002 as it applied from 16 December 2013. If your Honours turn, first, to page 24, section 4 of the Act, your Honours will see it is headed “Relationship to common law and other matters” and subparagraph (1) says that:

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 –

So, for example, common law powers of arrest were expressly preserved by the Act but all that this provision does is not limit, that is to say, leave in place the common law. This Act creates its own statutory power of arrest in section 99 and what this section does not do is apply common law limits to that section. If those types of limits are to be found, they are to be found only as a process of statutory construction of section 99 and, indeed, my learned friends accept that, without going to it, at paragraph 7 of their submissions.

That construction I have put, by the way, is confirmed if your Honours turn to section 7, over the page – page 25 of the authorities. Your Honours will see it says:

Nothing in any Part of this Act –

and that would include this part, Part 1:

limits any functions . . . that the police officer has under any other Part of this Act.

So, section 99 is in Part 8. Section 99 is then, at the next page of the authorities book at page 26, within Part 8. I will go through it carefully and in detail but by way of introduction your Honours will obviously appreciate that there are two conditions which must be met to enable the police officer to, without a warrant, arrest a person: first, that they suspect:

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 –

nine reasons. In our written submissions we have articulated six matters arising from section 99 which, in our respectful submission, point against the construction adopted by the majority of the Court of Appeal. Can I go through those reasons?

First, at the highest level, each of the two requirements in (a) and (b) in slightly different ways manifests a particular state of mind in the arresting officer. So, (a) it is that they suspect something on reasonable grounds, namely, the person is committing or has committed an offence and, secondly, that they are satisfied the arrest is reasonably necessary for one of the nine reasons. Each thus go to state of mind.

The effect of the respondent’s argument and the majority’s decision is to read in a third requirement as to a state of mind, namely, an intent to charge at the time of arrest where, of course, no such requirement is stated in what is a carefully delineated scheme. That then leads to the second point which is the point referred to and identified by Judge Taylor in that paragraph I took your Honours to. In 99(1)(a), and this actually reflects the original common law as your Honours appreciate, the first requirement is that:

the police officer suspects on reasonable grounds that the person is committing or has committed an office –

So it is a requirement of suspicion. If I could ask your Honours to turn at this point to A v The State of New South Wales (2007) 230 CLR 500 which is in the same volume behind tab 13. This, of course, is the decision from 12 years ago of this Court about the tort of malicious prosecution, another case from New South Wales.

Just to pick out a few key points from it, if your Honours turn first to paragraph 1, which is page 340 of the book, 502 of the CLR. This is in the main joint judgment of six members of the Court - Justice Callinan wrote separately but to the same result. It sets out the elements of the tort of malicious prosecution and over the page, as your Honours will recall, the third element is that the defendant, in initiating or maintaining the proceedings acted maliciously, and the fourth, which is relevant here, is that the defendant acted without reasonable and probable cause. It was those two elements which were the subject of argument and decision in this case.

If your Honours then turn to page 351 of the book, page 513 of the CLR, paragraph 38, in a sense by way of background, the plurality notes that:

For the reasons explained by the House of Lords in Glinski v McIver . . . the person who effectively sets criminal proceedings in motion, accept the form of responsibility, or accountability, imposed by the tort of malicious prosecution.

So, the relevant person in this case was a detective constable, for example - that is referred to at paragraph 36 in the fourth line - who had acknowledged and, indeed, asserted that it was his decision and his responsibility to lay the charges. The reason I go to that is simply to illustrate that the tort of malicious prosecution certainly extends to the informant, typically a police officer who lays the charge. If your Honours then turn to page 363 of the book, page 525 of the CLR, paragraph 70, in the fifth line their Honours state:

As has already been noted, two kinds of inquiry are postulated –

This is dealing with the absence of reasonable and probable cause, the fourth element:

one subjective (what the prosecutor made of the available material) and the other objective (what the prosecutor should have made of that material).

What follows is really directed to the subjective element, what the prosecutor, in fact, made of the available material. At paragraph 71, fifth line, their Honours state:

The subject matter of the relevant state of persuasion in the mind of the prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies . . . the relevant state of persuasion will necessarily entail a conclusion (a belief of the prosecutor) about guilt. If, however, the plaintiff alleges that the prosecutor knew or believed some fact that was inconsistent with guilt . . . the absence of reasonable and probable cause could also be described . . . as the absence of a belief in the guilt of the plaintiff.

So, in the first type of case where the defendant, the informant, say, has reason to know of the particular facts, so, for example, they have just come upon the scene and they have seen some evidence themselves, they must have a positive belief about guilt.

But there is obviously another type of case referred to at paragraph 73, a common type of case, where the police officer is relying on information from a third person or third persons. And there, as the Court notes in the first sentence of 73 “there are evident difficulties” in requiring a “positive persuasion of guilt”. And so at paragraph 76 their Honours note that that will not be required in every case. And what is required, if your Honours go to paragraph 80 at page 366, page 528 of the CLRs, first sentence their Honours say:

In cases where the prosecutor acted on material provided by third parties, a relevant question in an action for malicious prosecution will be whether the prosecutor is shown not to have honestly concluded that the material was such as to warrant setting the processes of the criminal law in motion.

So in sum, the plurality distinguished the two types of cases – third party reliance, it is looking to that broader notion of sufficient to warrant setting the process of the criminal law in motion. But first party knowledge requires a positive belief as the subjective element and, of course, there is the objective element that must be reasonably based. Although it is very familiar territory, can I take your Honours briefly to George v Rockett at this point.

GAGELER J: Mr Kirk, what was the point of taking us to A?

MR KIRK: Because, your Honours, the requirement in section 99(1)(a) is reasonably suspect. So all that you need for 99(1)(a), to arrest, is reasonable suspicion. What you need to avoid the tort of malicious prosecution is reasonable belief. The significance of that is that if an intent and a decision is required at the time of arrest that you are going to lay a charge, that that is seen as the start of the commencement of the criminal law process. You are effectively then bringing backward in time to the very point of arrest that requirement for a belief in guilt, at least in first party knowledge cases.

GAGELER J: So for the tort of malicious prosecution, does the setting of the process of the criminal law in motion begin with arrest? Is that the point?

MR KIRK: The tort of malicious prosecution extends to informants. It extends thus to police officers, including for example the police officer at issue in A v New South Wales, but the focus of the two, for the tort of malicious prosecution, is at the start of laying the charge – instituting, and there is also talk of maintaining, a prosecution.

Our submission is, as noted by Judge Taylor, that if the requirement is that one must intend to charge at the time of arrest, that would then require to be coherent with and consistent with the tort of malicious prosecution, a belief, a reasonably based belief in guilt and to require that is inconsistent with section 99(1)(a).

BELL J: This suggested difference in the mental element you say is consistent with the analysis of Justices Mason and Brennan in Williams v The Queen at 300?

MR KIRK: Yes, and I will come to – if I can postpone answering that in detail, because I will actually go through Williams with some care, if I may, but our simple answer to that is, yes, it is consistent with in particular Justices Mason and Brennan. In fact, supported by what they say, on a close reading of that, and I will come back to that if I may, your Honour.

If I can go briefly to George v Rockett, I know it is very familiar territory, but it is in volume 2, tab 27, it is (1990) 170 CLR 104, relevantly at page 819 of the book, which is page 115 of the CLR. At about point 6 of the page, the joint unanimous judgment said:

Suspicion, as Lord Devlin said . . . “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’” The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.

At the bottom of the page there is a quote from his Honour Justice Kitto:

A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’ –

The very reference to “without sufficient evidence” illustrates the significant difference from the level of belief required for the tort of malicious prosecution. And then over the page, as your Honours well know, after the quote, the last sentence:

Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition –

It is a somewhat higher standard. That may be contrasted with how it was dealt with, in our respectful submission, by the majority. If your Honours can first go to her Honour Justice McColl’s judgment at page 58 of the core appeal book. At paragraph 81, her Honour said:

The test for “reasonable and probable cause” in this context –

So that is having referred to a range of cases, including a discussion of A v New South Wales, her Honour goes on:

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 -

and so on to the end of the paragraph. In our respectful submission, that is directly contrary to the well‑established difference between the two states of mind, as articulated and crystallised in George v Rockett. And then at page 61, paragraphs 94 to 95, her Honour said:

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.
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.

So, in our respectful submission, it is not at all inconsistent with the authorities but required by it. Furthermore, in paragraph 95, with respect, her Honour rather seems to assume the very matter in issue.

BELL J: Just to understand this aspect of your argument which does not depend on the text of section 99, if you are right in relation to the distinct states of mind, this is a discovery that is equally applicable to the common law power of arrest?

MR KIRK: Yes, yes.

BELL J: An anomaly which has been unappreciated until now.

MR KIRK: Which is the very thing his Honour Justice Basten noted. So, if your Honours go to page 75, paragraph 146, your Honours will see a heading:

the inconsistency challenge –

and, if your Honours look at the last four lines:

It would render the law incoherent, it was submitted, if two differing standards were to be applied to the same activity (arrest) in order for it to be lawful. It is, perhaps, curious that this potential anomaly has not been squarely addressed in the cases dealing with the common law power.

His Honour then goes on to examine the anomaly, including by reference to Williams, which, as I said, I will come back to. But the conclusion of his Honour’s argument is at page 80, paragraph 160, where, at the beginning of the paragraph, his Honour said:

At least in a formal sense, the incoherence of a dual test of intention for a lawful arrest may be resolved by treating the obligation to take the person as soon as practicable before a justice as a separate obligation imposed by law once an arrest has taken place, rather than a requirement that the arresting officer have a particular subjective intention.

Indeed, we respectfully adopt that solution. His Honour rejected it. Because if your Honour looks at the bottom of the page, his Honour said:

However, that conclusion is not consistent with the passages from Bales v Parmeter and Drymalik v Feldman –

a South Australian case:

the reason is that the purpose of commencing the criminal process attaches at the moment of arrest.

So, there is a resolution available of that kind but his Honour felt obliged to reject it in light of his Honour’s consideration of intermediate Court of Appeal decisions. His Honour did not otherwise resolve the incoherence or the anomaly and appeared to accept that it existed.

KIEFEL CJ: The earlier part of his Honour’s reasoning in paragraph 160 is similar to the two‑stage process that Justice Emmett adopted.

MR KIRK: Sorry, which Justice, I am sorry, your Honour?

KIEFEL CJ: That Justice Emmett adopted.

MR KIRK: Yes, yes, that is right. For that reason, and recognising I do need to come back to Williams, but I want to finish dealing with the statute and then come to Williams.

BELL J: Yes, it is just that your argument has, perhaps, wider implications than this statutory provision applicable in New South Wales.

MR KIRK: It may do. That said, it is also capable of the resolution to which I have just pointed, and your Honour has reminded me that Justice Emmett took the same view. It is also – I will be frank – it is surprising that it has not, hitherto, been expressly dealt with although it is dealt with implicitly by Justices Mason and Brennan, as I will come to in Williams. That being said, I should also say this is just one of the many strings of our argument. We are very much focused on text, ultimately, as to the nature of the power of arrest.

So, can that bring me back to the texts, can I take your Honours back to section 99 on page 26 of the first volume and I am echoing the arguments we make in writing. The third argument we make is one focused on the reasons set out in 99(1)(b) of which there are nine, and many, in fact, most of these reasons are, in our submission, inconsistent with requiring an intent to charge at the time of arrest. What they rather suggest is that arrest is something directed within these reasons to protecting people, including either the public or the person concerned, securing evidence or, in some particular ways, investigating. So, going through them briefly, if your Honours look at (b)(i):

to stop the person committing or repeating the offence –

is about protection. Section 99(1)(b)(ii) is an important one if only for its illustrative force:

to stop the person fleeing from a police officer or from the location of the offence –

Now, one can readily imagine circumstances where a police officer comes upon a scene, whether it is an assault or domestic violence issue or even a homicide where, for example, someone flees from the scene, there will plainly then be enough to found a reasonable suspicion that the person might be involved. It will plainly not be enough in the simple situation I have postulated, founding a reasonable belief that they committed the offence. There could not be enough in that fairly common situation to have to form the requisite intent consistent with the common law to charge them but there is very good public policy reason to stop them fleeing and it is quite consistent with reasonable suspicion. For (iii) ‑ ‑ ‑

EDELMAN J: Is it not an offence to flee from the location of an offence if told not to?

MR KIRK: Not to my knowledge. We will take that on board. I have some senior police officers behind me who may know the answer but not to my knowledge, your Honour, and I will come back to that perhaps after lunch, if I may. Section 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 ‑

One may well imagine circumstances where the police officer wants to establish the identity without currently necessarily believing, suspecting but not believing, that they are involved in an offence. That is why they want to know their identity, so they can come back to them if needs be. Over the page to jump to (v) and (vi):

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

(vi) to preserve evidence of the offence –

Again, directed to preserving a potential prosecution, no doubt about that, but that may be based again on suspicion, not belief, that the person is actually involved. It is a prophylactic measure for good public policy reasons. Subparagraphs (vii), (viii) and (ix) when understood in the context of the extrinsic materials, are more protective. So (vii) is about:

to prevent the harassment of, or interference with, any person who may give evidence in relation of 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.

So, as your Honours will see in the Tink and Whelan Report when we come to it at the end of my submissions, that one of the concerns was a concern about domestic violence and a desire to remove potential offenders or alleged offenders out of the scene, to get them out of there for obvious good reason to let things calm down. Again, that may be in circumstances where there is a suspicion they have committed a crime - see 99(1)(a) - but not necessarily a belief.

As to the intent to charge, as your Honours would appreciate, often in that type of matter the ability to maintain a charge may be very contingent upon the ability to get a statement from the other person involved saying, yes, that person did that which may not be known for some time. So, there may be good reason to arrest, remove, calm things down, without necessarily intending to charge.

My learned friends say in response, well, there is a common law power to arrest for breach of the peace, so all of this is a little superfluous. First, we say there is such a power but this is setting out what was intended to be a simple and comprehensive regime so the police officers are taught area powers, they understand it is relatively clear and simple. Secondly, the power to arrest for breach of the peace is available – it is an old common law power - if the breach of the peace occurs first in the presence of the arresting officer or, secondly, they reasonably believe that person will commit such a breach in the immediate future.

If I can give your Honours an English reference: R v Howell [1982] 1 QB 416, a Court of Appeal decision. So that is the common law. This moves beyond the common law and extends the power of police officers. In terms of what was said about this by the majority, in that if I can go back to the core appeal book at page 54, paragraph 70 of her Honour Justice McColl’s judgment, her Honour said:

the s 99(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 –

With respect, that does not answer the arguments made below and which I have just repeated:

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.

I know that it is part of it but it is more than that. The person may well be charged. That is why you want to know identity. That does not mean you have enough to charge them yet and if they are about to walk away there is good reason to take steps to identify their identity. His Honour Justice Basten at page 82, paragraph 164, addressed this argument and his Honour said at the end of the third line:

Those reasons provide, in effect, that the police functions of law enforcement would not be sufficiently carried out by steps short of arrest, which, with respect to the commencement of proceedings, would commonly mean the issue of a court attendance notice –

or a CAN. So, in effect, his Honour is saying that the 99(1)(b) nine reasons are a constraint on the arrest power and the respondents make a similar submission. There is no doubt in one sense that they are a constraint on the arrest power, you have to meet both – reasonable suspicion and 99(1)(b) have to be within one of the nine categories - but this is significantly different from the common law because at common law all that was required was reasonable suspicion and then you could arrest, to put it simply, obviously take as soon as practicable before a magistrate.

By spelling out nine categories, the statute has taken quite a different approach, and in so doing, particularly in the context of the extrinsic materials talking about expanding police powers, it suggests a simplification and articulation of all that is required for an arrest, in a careful way. That deals with our third reason focused on 99(1)(b).

BELL J: Just before you leave 99.

MR KIRK: Sorry, your Honour.

BELL J: Can you explain the logic of the officer who has the suspicion on reasonable grounds respecting the commission of the offence, and who has a mental state of satisfaction that arrest is reasonably necessary to ensure that a person appears before a court under (b)(iv), in a case in which an intention has not been formed to charge?

MR KIRK: That is the one which comes closest to implying an intent to charge.

BELL J: Yes.

MR KIRK: I accept that. But first, it is one of nine. Secondly, even then, it comes back to a similar point I was making about identity. The police officer may think it is very likely that they are going to charge, but still they may want to take them back to the station, discuss it with their superior, check whether there is some proper basis, such as to form the required belief to charge.

It may still be thought by the officer, if I do not arrest this person, if I do charge, they will not turn up before court. That is very much the state of mind that Constable Smith in fact had where he had not determined to arrest. But in the circumstances though set out, the facts about ‑ he said he was homeless, he was going to come, he was not going to come then he did come, et cetera, he may still form that view.

KIEFEL CJ: I think you meant no intention to charge, not arrest.

MR KIRK: Sorry, your Honour, you are quite right, with respect. The fourth reason we give focuses on section 99(3), on page 27, which, in a sense, is more of an answer to an argument put against us. As I will come to shortly, in terms of textual foundation for the majority’s argument, it is not entirely clear, but one of the textual supports both Justices McColl and Basten found was section 99(3). But we would respectfully point out that sub (3) requires an action, namely, that after arrest the police officer:

must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law.

So it is an action requirement post‑arrest. It is not, in terms, an intent requirement. That leads to the fifth point, which is the note underneath:

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

Just before I go to 105, can I note for your Honour’s convenience that the note is new – that is to say, it was added in the 2013 amendments. So too was sub (2) – not that a lot turns on that for current purposes. So too was sub (4), sub (5) and sub (6).

The actual previous version of LEPRA is behind tab 4, and I will show your Honours section 99 in that shortly, but I just wanted to note that. If your Honours then go to section 105 at page 30, just over the page, within 105 I should note that subsection (3) was new as part of the 2013 amendments – (1) and (2) were already there. So (1) provides that:

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 –

So they may no longer be a suspect because, for example, of investigation having dispelled the suspicion, or not led to a belief. And the reason for the arrest may no longer exist, because, for example, a reason echoing 99(1)(b), their identity has been ascertained, the evidence has been preserved, the danger to persons at the scene has been avoided and thus the reason for the arrest no longer exists.

KIEFEL CJ: Would this position, circumstance, not be open at common law or is this an avoidance of doubt provision?

MR KIRK: There is no doubt, of course, that at common law a person could be arrested and a decision made not to proceed and they are simply released. I do not think anyone would suggest the common law would say that simply because you have to take them as soon as practicable before a magistrate justice, you cannot, simply, release them instead. In that sense, it is perhaps for the avoidance of doubt. But, the language of (2)(a), including, for example, the reason for the arrest, is evocative here of the link to 99(1)(b) and, in that way, supports our argument. Then, 105(3) makes clear that it can be discontinued:

despite any obligation under this Part to take the arrested person before an authorised officer –

So, that is answering 99(3). What 105 makes clear is that an arrest leads to, essentially, two outcomes – either you end up before an authorised officer, implicitly you are charged, or, alternatively, you are released – that is to say, the arrest is discontinued, including because the reason no longer exists.

Whilst I am on this page, and for convenience, can I draw your Honours’ attention to section 107:

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.

So, by filing a CAN in New South Wales.

Without going to it, her Honour Justice McColl, at page 53, paragraph 63, said that this section supports a conclusion that arrest is about leading to a charge. We would respectfully submit it simply illustrates that a charge is one of two possible outcomes from an arrest, the other is release, as contemplated by section 105.

GAGELER J: Mr Kirk, I hate to ask a really simplistic question, but is the word “charge” a statutory term?

MR KIRK: No.

GAGELER J: What are the processes involved in laying a charge, for the purposes of the use of that terminology in the present context?

MR KIRK: Good question, with respect. If your Honour has our written primary submissions, at footnote 1 we seek to answer your Honour’s question by reference to the relevant statutory provisions. So, “charge” is the kind of old‑fashioned language. These days it is commenced by a court attendance notice, and we have given a reference to the relevant provisions of the Criminal Procedure Act in footnote 1. The other way it may be commenced – as we also note there – is that the Attorney‑General and the DPP have their own power to commence directly by indictment but that is not open to a police officer.

BELL J: Just while we are on the subject of “charge”, I think if one goes back, for example, to an authority such as A, which you took us to, the element of the tort of malicious prosecution requires the plaintiff to prove the absence of reasonable and probable cause for the laying of the charge.

MR KIRK: Yes, for which the onus is on the plaintiff, of course.

BELL J: Indeed.

MR KIRK: Yes.

BELL J: Relevantly, for the purposes of that tort, the focus of attention is on the state of mind of the informant at the moment of the laying of the charge.

MR KIRK: Correct.

BELL J: Or, for that matter, the later maintenance of the prosecution.

MR KIRK: Indeed, that is right, with respect, your Honour, and that leads back to that resolution Justice Basten – that resolution of what we have called the incoherence. Justice Basten referred to it, I think, it was paragraph 161. For example, even at common law where there is no doubt one had to bring before a magistrate or a justice as soon as it is reasonably practicable, there is still inevitably some delay between a rest and charge thus allowing inevitably some time in which the mental element may change, that is to get from reasonable suspicion to reasonable belief.

The issue is more stark now in New South Wales as with many jurisdictions because of the extensive provision I am about to come to for extending detention in order to permit investigation. So the amount of time between arresting and charging may now be quite a bit more significant, still hours ‑ ‑ ‑

BELL J: But one needs to exercise some care before going to those provisions which are clearly posited on the making of a lawful arrest.

MR KIRK: I am about to come to those provisions, your Honour, so if I might do that directly – actually, before I do, can I deal with one small point. If your Honours go back to section 99 at page 27, 99(5), it is a small point, says:

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

I note that simply because one of the respondent’s arguments put, particularly below and alluded to in this Court, is the suggestion that on our construction there is the potential for abuse of the power by serial arrest - you just keep arresting and releasing and arresting and releasing.

Subsection (5) deals with that in one particular context but our further answer is that this is a statutory grant of discretionary power by statute. Subject to being consistent with the terms of the statute it is subject to the usual sorts of conditions on a statutory power, including that it be exercised other than in bad faith and potentially, subject to consistency, not in a legally unreasonable way. So, as, without going to it, his Honour Justice Emmett noted at page 113, paragraph 269, it is hard to see how serial arrests could be said to be consistent with requirements of good faith. Then if I could come to 99(4) which provides:

A person who has been lawfully arrested under this section –

“lawfully arrested” and I will come back to that:

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.

As I said earlier, that is a new provision introduced in 2013 expressly linking for the first time the arrest power to Part 9. Part 9 commences at page 31. As your Honours would appreciate this was introduced in a very similar form quite some time earlier, actually in 1997, as Part 10A of the Crimes Act. That was noted, without going to it, by Justice Basten at paragraph 169 on page 83 but the link in 99(4) is new. Section 109, the objects of the part, are:

(a)to provide for the period of time that a person who is under arrest may be detained by a police officer to enable the investigation of the person’s involvement . . . and
(b)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 –

et cetera. So, it is expressly allowing ongoing detention for the purpose of investigation.

Section 113(1) provides that:

This Part does not:
(a)confer any power to arrest a person, or detain a person who has not been lawfully arrested –

So that echoes the words in 99(4) about lawfully arrested. On that basis, without going to it, the majority, effectively, set aside our arguments about Part 9 - see her Honour Justice McColl, paragraphs 72 to 74; Justice Basten, paragraph 172 – on the basis that it presupposes a lawful arrest so it has nothing to say about an arrest. We acknowledge it presupposes a lawful arrest. But we invoke a basic principle from Project Blue Sky, paragraphs 69 and 70:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.

Legislation:

must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.

In that context, in our respectful submission, the content of Part 9 is part of the context of the arrest power and can throw light on it. Section 114 at page 33:

(1)A police officer may . . . detain a person . . . 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 –

thus acknowledging some doubt as to whether they have. Subsection (4):

The person must be:
(a)released (whether unconditionally or on bail) within the investigation period, or
(b)brought before an authorised officer –

So, that echoes section 105 which I referred to earlier. What 114 makes clear is that it is legitimate for police to detain, after arrest, for the purpose of investigating whether the person committed the offence. In our respectful submission, it is quite artificial to say that the arrest itself, in that context, must presuppose a positive decision to charge where all of this part is directed to enabling further investigation about whether to charge.

BELL J: Just to be clear, as I understood your argument, at all times it has accepted that the power conferred by section 99 is not to arrest for the purpose of investigation.

MR KIRK: Simpliciter.

BELL J: I am right in that understanding, am I?

MR KIRK: That is right.

BELL J: Yes.

MR KIRK: But, as we put earlier – and as we put in our written submissions – many of the reasons in 99(1)(b) involve investigation. So, our point is that all that is required is reasonable suspicion – 99(1)(a) – and any one or more of the nine reasons in 99(1)(b) – many of which involve investigation. So, as the Tink/Whelan report makes clear – and I will come to that at the end – it was not intended to simply say you can arrest to investigate if you have a reasonable suspicion. That is not enough. If you have a reasonable suspicion, and it is within one of the nine reasons, then you can arrest. That may well be for the purpose of facilitating investigation – taking identity, gathering evidence or leading to an interaction with Part 9.

BELL J: It is just not clear to me, in light of your concession respecting investigation simpliciter, how it adds to your argument to say as a matter of context we have the provisions of sections 113 and following. They are posited on a lawful arrest and I just do not really understand how it strengthens your construction.

MR KIRK: Because it illustrates that ongoing detention after arrest, recognising it must be a lawful arrest, may be for the purpose of investigating, including investigating whether they have committed an offence. Given that investigation, if it is within one of the nine reasons, is well within power, in our submission – so long as it is within one of the nine reasons – that works together, hand in glove, with these provisions in Part 9.

So, for example, if it is a person at a domestic violence scene, you can remove them from the scene because they fall, say, within 99(1)(b)(ix), “nature and seriousness of the offence”. They then need to speak to the potential victim to see if she or he is prepared to make a statement, et cetera. You may want to keep the person under detention in the meantime. All of this provides, for example, a means of enabling that to be done.

EDELMAN J: It is not really your best point. I mean, on any view, you have to read something, imply something into 114(2). Whether what you are implying into 114(2) is for the purpose of investigating (within one of the nine reasons) or for the purpose of investigating (with an intention to charge), you have to read something in.

MR KIRK: Well, we would not, respectfully, agree with that because - and it follows from the point about lawful arrest. To be lawful arrest, on our construction, you must in fact – the police officer must in fact have satisfied both requirements in 99(1), so (a) and (b). That means that they may be investigated in the way I have just articulated. However, there may be other circumstances in which one is arrested where – well, no, sorry, I suppose – let me go back a step. They will always fall – if they have been arrested, they will always fall within one of the nine categories. They will always fall within the nine categories.

GORDON J: Because it talks about investigating whether a person committed “the offence”. So you are driven back to the operation of 99(1)(a) and (b), are you not?

MR KIRK: Yes, I think your Honour is right, yes. The ultimate point of this submission, of course, is that whether or not one has to read in those words or just reads it as a whole, it is not consistent with an implied requirement in 99(1) that there already have been formed an intent to charge because 114(2) illustrates there may be doubt, and thus a need for investigation of whether the person committed the offence.

To complete this point fairly briefly, without going through it, in 116, determining the reasonable time and relevant factors, those are directed to investigation; similarly, in section 117 about the times you disregard. For example, in section 117(1)(i), you disregard any time reasonably required to allow for an ID parade to be arranged and conducted – that may be critical for some decision as to whether a charge was to be laid. In 118, there can be one application for an extension of time, and subsection (5) spells out issues directed to whether the investigation is being conducted diligently and if your Honours note (c):

there is no reasonable alternative means of completing the investigation otherwise than by the continued detention of the person –

That was the sixth point about section 99. Can I, at this point, then turn to – sorry, can I add one other point about section 99, or a couple of other points. In my learned friend’s written submissions at paragraph 32, they note, as I indicated, that the predecessor to Part 9 was introduced in 1997. They point to a number of Court of Appeal arguments which have rejected the type of argument I have just put, by reference to the previous regime – see paragraph 32. We do not dispute there are those cases.

There is a contrary case which we refer to in our written submissions at paragraph 33 - our primary submissions - Klein v New South Wales, in any case, and that has never been considered by this Court but the real point here is that 99(4) is new and is the first express link between Part 9 as it now is and the arrest power.

It may be contrasted, incidentally, with a previous version of section 99, so if your Honours go to tab 4 in volume 1, page 66, so this is LEPRA, as it stood from 29 October 2013 up to 15 December 2013. At page 66 - 99 was in a different form and I do not want to get bogged in it - but if your Honours note subsection (3) which is a precursor of 99(1)(b):

A police officer must not arrest a person for the purpose of taking proceedings for an offence . . . unless the police officer suspects on reasonable grounds –

and then 6 purposes are set out. Those words “for the purpose of taking proceedings for an offence”, one could well see how that might be taken to imply an intent to charge at the time of arrest. Those words no longer exist in section 99. The other point we would make is to remind your Honours of the principle captured by four members of this Court, and the reference is on our oral outline, Plaintiff S297/2013 v Minister (2014) 255 CLR 179 at paragraph 25 by four members of the Court where the plurality said:

The numerous amendments that have been made to the Act form part of its legislative history and bear legitimately on its construction. They are to be construed as part of the Act so as to be read together “as a combined statement of the will of the legislature” -

talking there, obviously, of the Migration Act, in other words, for a much needed Act. LEPRA is not amended as often as the Migration Act but not uncommonly because of its subject matter this Court must take the Act as it stands at the relevant point and read it as a whole in applying the principles in Project Blue Sky, amongst other principles, of course.

In terms of the statutory foundation for the respondent’s argument, your Honours would recall that when it was put at first instance before Judge Taylor it was put in terms of 99(1)(b) could not be thought reasonably necessary. That is not an argument adopted by the majority in the Court of Appeal.

For her Honour Justice McColl the textual foundation of the implied requirement of an intent to charge is, with respect, not entirely clear. Her Honour says it is supported by 99(3) along with section 201, which I will come to in a moment, but does not found it on particular text. His Honour Justice Basten founds it on the word “arrest” but can I deal with Justice McColl’s reasoning first. If your Honours go to page 53 of the core appeal book, paragraphs 64 and 65, after extensive analysis her Honour said:

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.
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 –

That echoes what her Honour said at paragraph 58:

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.

That reasoning seems critical to her Honour’s conclusion, namely, you have to tell – the arresting officer has to tell the person of the charge. But that is not the law, with respect. Section 201(1)(c) – your Honours need not go to it, but it is at page 45 of volume 1 – requires, relevantly, that:

A police officer must provide the person . . .
(c)the reason for the exercise of the power –

doing so contemporaneously. That does not state that the charge must be identified. It is the reason for the exercise of the power.

GORDON J: But it is the reason for the exercise of the arrest.

MR KIRK: Yes. As Justice Basten notes at page 73, paragraph 141, and again at page 80, paragraph 158, consistently with the common law what this is understood to require is that the conduct for which you are arrested is identified – not the charge. There is often an overlap. It has never been the law – for very good reason, obviously – that you have to identify, well, I am charging you under section 300(x), whatever, of the Crimes Act. You say, I am charging you for assault – or, I am charging you because you have done this.

BELL J: Justice McColl, I think, makes the same point at combined book 50, paragraph 51, where her Honour says:

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.

MR KIRK: Yes.

BELL J: So it may be that in one passage of her Honour’s reasons she has infelicitously referred to “charge”. But it seems tolerably clear from paragraph 51 that she was aware of the point that you make.

MR KIRK: That may well be right, but it, nevertheless, seems to be critical to her Honour’s reasoning about informing them of the charge to be preferred leading to “if you have to do that it presupposes you have formed an intent to charge” and we would respectfully say that is not, in fact, law.

GAGELER J: Did you say this is covered by section 201?

MR KIRK: Subsection (1)(c), yes, page 45 of the core appeal book. Section 201 covers a range of exercise of powers.

GAGELER J: Which power is it?

MR KIRK: Section 201(1)(c):

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.

GORDON J: You need to pick up 3(a), though, do you not?

MR KIRK: Correct. If your Honour looks at subsection (3)(a) ‑ ‑ ‑

GAGELER J: Yes, thank you.

MR KIRK: ‑ ‑ ‑ it applies to a range of powers including arrest and subparagraph (2) makes good what I said earlier, that you have to do it:

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

otherwise:

as soon as is reasonably practicable –

thereafter. In terms of textual foundations, for his Honour Justice Basten, he founded it very much on the word “arrest”. If your Honours go to page 71, paragraphs 135 to 136, near the beginning of his Honour’s judgment, his Honour said, at 135:

All these matters aside, it is necessary to identify the scope and operation of the common law powers of a constable to carry out an arrest without warrant in order to test the appellant’s description of the limitation upon which he relies.

The appellant there is the respondent here:

Without undertaking that exercise it is not possible to say whether the statute varies the limitation, either expressly or by implication.

Then, at 136:

The conclusion reached below is that in legal terminology “arrest” is generally used to identify that deprivation of liberty which is a precursor to the commencement of criminal proceedings . . . and which may be justified as necessary for the enforcement of the criminal law.

In other words, his Honour’s argument seems to be that the common law notion of arrest is well established, understood. There is no indication in the Act that it is used in any other sense. Now, we dispute his Honour’s common law understanding, and I am going to come to that shortly.

But there are other issues, we say, arise with his Honour’s approach. First, what was being exercised here was of course a specific statutory power of arrest on conditions. To start from the assumption that it is just the same as the common law, because that is a presumed purpose, is the wrong approach to statutory construction, in our respectful submission. The respondent falls into the same error in his submissions in paragraph 7 where he says:

If the text is inconsistent with the purpose of the provision, that meaning must be rejected.

As set out in the cases referred to in reply at paragraphs 3 to 4, purpose is not something which exists outside the statute and the surest guide to legislative intent is the language which has actually been employed. So to start with a presupposition is to invert the proper approach, in our respectful submission.

BELL J: Does that submission apply to the use of terminology that has a technical, acknowledged legal meaning?

MR KIRK: Well, in a sense it depends on what is meant by a “technical meaning”. There is a power of arrest at common law, which carries with it certain conditions. We would respectfully say that does not mean that the word “arrest” has a particular technical meaning, just that there is a power of arrest, arrest being a state of being, to which conditions are attached.

Here, there is a different power of arrest to which different conditions attach, and that leads to this point. “Arrest” is a verb, can be a noun, relevantly it is a verb. Without going to it, Justice Emmett at paragraph 205 on page 93 refers to dictionary meanings, meaning apprehended by a legal authority or to seize, lay hold on. It is an action, so it can apply to a ship. It does not require any particular mental state or intent.

We refer at paragraph 47 of our primary submissions to cases which elucidate the notion of arrest of a person. It can be done by seizure, by touching or just by words. You can arrest someone by saying “Stop there”. It is a continuing act, and there is no inherent mental state involved. It is that continuing act of arrest – “arrest” means stopping, in simple terms – it is a continuing act which is referred to in 105(3) where the arrest may be discontinued. That is not directly connected to some change in mental state. It is, you are stopping – the stopping of the person.

The other points we would seek to make about his Honour’s approach is that the common law has not been the main source of power of arrest in New South Wales since 1883. His Honour himself noted, without going to it, at paragraph 139 – that was when the first statutory power was introduced in New South Wales.

NETTLE J: It was declaratory, was it not?

MR KIRK: It was seen as declaratory at first but then, of course, there was an evolution of the law because at the common law the power of arrest applied only to felonies as well as breach of the peace. That led to this Court’s case in 1 CLR, Nolan v Clifford, which is in the materials - I will not go to it which - a very interesting judgment itself, actually, with respect, but read down the New South Wales provisions as still limited to felonies and that led to further legislative law reform to expand it to beyond felonies.

So there has been an ongoing development in New South Wales as in other States to move beyond the common law. To then take us back to the common law is not, with respect, a justified approach to statutory construction. Indeed, that very point I have just made about felony misdemeanour, section 99, for example, uses the word “offence” and it is not defined in LEPRA. One might equally say “offence” should be read as felony or some modern equivalent but that would be a surprising result.

In circumstances where the statute carefully addresses in the way we have sought to articulate the very things addressed by the common law, the mental state and reasons of the arresting officer, moving beyond it, beyond felonies, moving beyond it by requiring the 99(1)(b) nine reasons, it is a scheme and power of itself and if it is part of the common law that there must be an intent to arrest there is no reason that skerrick of the common law should remain in the face of this comprehensive scheme.

KIEFEL CJ: That might be a convenient time, thank you. The Court will adjourn.

AT 11.18 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.32 AM:

KIEFEL CJ: Yes, Mr Kirk.

MR KIRK: Thank you, your Honour. Can I turn to our third topic, which is the previous arrest cases. Before I turn to Williams can I just articulate a few core propositions for the purposes of our case? We accept that at the true common law it was a requirement that the constable take an arrested person before a justice to be examined as soon as they reasonably could and we have given the reference in our primary submissions at paragraph 37. It is also discussed in Nolan v Clifford in a decision of this Court in 1904.

We accept that there are a number of intermediate Court of Appeal decisions about various statutory provisions which suggest, expressly or impliedly, that the purpose of arrest is to take the person before a magistrate to be charged and dealt with according to law, and Bales v Parmeter, the classical New South Wales case, a decision of Chief Justice Jordan, is such a case. But even that does not state in terms there must be a positive intent to charge at the time of arrest. My friends, of course, argue it is implied.

None of those intermediate Court of Appeal cases grapple with the point about the different states of mind between arrest on reasonable suspicion and having reasonable and probable grounds to prosecute. No decision of this Court has held that there must be a positive intent to charge and, in particular, Williams did not do so. In any event, as was said by the plurality in McNamara v Consumer Tribunal – the reference is on our outline but it is (2005) 221 CLR 646 at paragraph 40:

It would be an error to treat what was said in construing one statute as necessarily controlling the construction of another; the judicial task in statutory construction differs from that in distilling the common law from past decisions.

With that, can I go to Williams v The Queen (1986) 161 CLR 278 which is in volume 3 behind tab 41. There were five Justices of this Court sitting. The facts are articulated by, for example, Chief Justice Gibbs, starting at 1192, page 280. They were pretty simple. The person was arrested at about 6.00 am on 17 May 1984, somewhere outside Launceston. He was taken to Launceston in Tasmania at about 11.00 am. He was thereafter questioned at length. He was not taken before a magistrate in Launceston until the following day; in fact, it was not until about 2.15 but that was because of some technical problems. He was available to be taken at 10.00 am the following day.

The trial judge held – this is stated at 282 at about point 3 before the end of the paragraph – that by 2.15 pm on the day of arrest, 17 May, the applicant should have been brought before a magistrate and a magistrate would have been available. Relevant provisions are set out at page 283 on page 1195 of the book. There are two key provisions and they were construed consistently. So 34A(1) of the Justices Act quoted at about point 2:

“Where a person has been taken into custody for an office, he shall, unless he has been released under section 34, be brought before a justice as soon as is practicable after he has been taken into custody.”

There was another provision, 303 of the Criminal Code quoted just under that:

“It is the duty of any person who has arrested another on a charge of any offence to take him . . . without delay, to be dealt with according to law.”

They were construed together. So it is sufficient to focus on 34A(1). Your Honours will note neither of those are arresting provisions. Indeed, within this judgment the arresting provision is not quoted. We have provided it to your Honours by way of background. It is an extract from the Tasmanian statutes – the relevant power is section 27 which is the third page of the printout. It is a bit unclear to us whether it is subsection (2) or (3). We are a bit hard pressed to see the difference between them, at least, in the quick time we spent on this this morning.

But, interestingly, whether it is subsection (2) or (3), the ground is belief on reasonable grounds, not suspicion on reasonable grounds. So, for the particular Tasmanian statute, in contrast to the common law and in contrast to New South Wales then and now where reasonable suspicion is enough, at least it is the first element, it needed to be believed on reasonable grounds.

We have provided – the Act was – what I have just shown you is, I think, from the 1959 printout. It was subsequently amended. We have provided that amendment but it is not relevant. What I have just shown you is the relevant provision.

BELL J: In the analysis adopted in Williams, am I right in thinking that their Honours looked to the common law concept of “reasonable suspicion”?

MR KIRK: Justices Mason and Brennan refer to that in the passage to which I think your Honour alluded earlier and to which I am ‑ ‑ ‑

BELL J: And Justice Gibbs at 284.

MR KIRK: Yes. It is interesting, your Honour is quite right – 284 at about point 2 – it is interesting that it is a little unclear why their Honours are referring to the common law but I also do not dispute, by the way, that this decision is directed in part to the common law and how it is understood.

BELL J: Indeed. There was, in fact, no discussion of the provision to which you have just taken us in Williams.

MR KIRK: Exactly right. There is a passing reference right at the beginning of Justices Wilson and Dawson’s decision to section 27 which is what led us to the part that I have just referred to. But, no, your Honour is right, it is not discussed. But as it happens, that illustrates what we have called the anomaly did not arise, in fact, in Tasmania. That being said, Justices Mason and Brennan did discuss it and I will come to that very shortly.

Can I elucidate very briefly the approach Chief Justice Gibbs took and he was not in dissent because he agreed with the orders but he took a different approach to the other four members of the Court. Without going through it, at page 284 – in fact, that passage your Honour Justice Bell just referred to me in the fifth line:

A police officer who has arrested a person reasonably suspected of having committed a crime must be allowed time to make such inquiries as are reasonably necessary either to confirm or dispel the suspicion upon which the arrest was based.

His Honour effectively was adopting an English – something of an approach put in England, which the other four members of the Court rejected. So that is a distinction between his Honour’s approach and the remainder of the Court, and so we obviously do not rely upon that aspect of it.

That passage, though, does illustrate an understanding that there may be a difference between reasonable suspicion at the time of arrest and what is required later. The actual basis of his Honour’s judgment, just for completeness, was that Mr Williams had been acquitted by direction. There was a limited power of appeal from that acquittal by a direction on questions of law. Chief Justice Gibbs held this issue about the admission of a confession did not fall within that, so the appeal did not lie to the Court of Criminal Appeal in Tasmania. As it happens, the other four members of the Court agreed with Chief Justice Gibbs on that, but also addressed it on the broader basis.

Now, to turn then to Justices Mason and Brennan, the analysis starts really at page 289, 1201 of the book. At page 289, at about point 7, five lines after the quote from 34A(2), their Honours say:

Section 34A is not directed to the interrogation of persons in custody or to the admissibility of confessions made by persons in custody . . . It is concerned with personal liberty, not with the exigencies of police investigation. The Court of Criminal Appeal, however, following –

an earlier decision:

held that the exigencies of criminal investigation may be relevant to what is “practicable”.

Your Honours recall 34A(1) says take:

before a justice as soon as is practicable –

So in the earlier decision, Justice Neasey said:

“on the basis of reasonable grounds for belief that the arrested person has committed a crime specified in Appendix ‘A’ . . . reasonable practicability must permit them to place themselves in a position to decide whether a charge shall be laid -

So that was reminiscent of the English approach. You have to have sufficient time, having arrested someone, to decide whether to charge. The notion of “as soon as practicable” can expand to encompass that. That was the issue in the case. So if your Honours go to page 291, 1203 of the book, about point 7, Justices Mason and Brennan say that:

The Tasmanian Court of Criminal Appeal thus appears to have accepted the proposition that when a person, having been lawfully arrested, is in the custody of a police officer, s. 34A(1) does not require the police officer to bring him before a justice before the police officer has had a reasonable opportunity to question the person arrested about the offence for which he has been arrested –

or indeed “other offences,” which is also what occurred in this case. At 292, at about point 9, the last – or point 8 ,after the quote from Justice Deane, their Honours say:

The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes. The issue in this case is the extent of the power of the police to detain in their custody for questioning a person who has been lawfully arrested.

So the issue in this case was not about the lawfulness of the arrest. It is about continuing to hold him for that extra day, whilst they question him, and by the way, got a confession to a whole range of burglaries. That is of course a distinct issue from what is involved in this case.

I will skip over 293 and 294, there are quotes from Parmeter, Banner in Victoria, and other such decisions. At 295, 1207 of the book, at about point 4, just after the quote from Justice Hampel, their Honours say:

That view is surely right. If a person cannot be taken into custody for the purpose of interrogation, he cannot be kept in custody for that purpose, and the time limited by the words “as soon as practicable” cannot be extended to provide time for interrogation. It is therefore unlawful for a police officer having the custody . . . to delay taking him before a justice –

So that is the key finding in this case – in Williams, that is. It is, of course, however, in the context of a particular statutory scheme, and it is not directly addressing the issue here. At page 296, in the first paragraph, about the eighth line, their Honours say:

Nevertheless, the balance between personal liberty and the exigencies of criminal investigation has been thought by some to be wrongly struck –

and there is a reference to a 1975 ALRC report:

But the striking of a different balance is a function for the legislature, not the courts.

Then, in the last five lines of that paragraph, about point 6 or 7, their Honours say:

If the legislature thinks it right to enhance the armoury of law enforcement, at least the legislature is able – as the courts are not – to prescribe some safeguards which might ameliorate the risk of unconscionable pressure being applied –

et cetera. We, of course, say that is exactly what the Parliament has done here. Their Honours then refer to some of the English cases I alluded to – they reject that approach. For example, 297, at point 2:

In our respectful opinion, the observations of Lord Denning M.R. . . ought not be followed.

Your Honours then go to 298, at about point 4, or point 3, eight lines after the quote in the paragraph beginning “However, John Lewis”, their Honours say:

Reasonable time must be allowed for making a decision to prefer a charge and preferring it, but that case does not decide that time should be allowed for questioning a suspect or for investigating the available evidence.

So, in that sentence, we would respectfully submit, it means what it says – reasonable time is allowed for making a decision to prefer a charge, that is, to charge, whether to charge, not just what charge but whether to charge. But that is not a reason for expanding the amount of time you can hold them. One point, for example, made by Justices Wilson and Dawson – to which I will come – but is, with respect, a really powerful point – to expand it to allow a time sufficient to decide whether to charge is too open‑ended because how long is that? Is that a week? Is it a day? Is it a month? You might take an extensive period. That is exactly the sort of thing the Commonwealth cannot delineate in the way that the Parliament can.

GAGELER J: Mr Kirk, you took us to a passage, 295, about point 6:

It is therefore unlawful for a police officer –

That is a statement that is surely applicable to the duty of the police officer under section 99(3), is it not?

MR KIRK: Subject to Part 9?

GAGELER J: Yes.

MR KIRK: Yes, Part 9 being the very type of parliamentary provision which was alluded to later in the judgment, yes.

GAGELER J: Your simple point here is that this case does not deal with the point of arrest.

MR KIRK: Correct, and does not, jumping on from that, deal with the point at issue about whether there must be an intent to charge at the point of arrest because it just did not arise. That brings me to what I think was the passage which I think your Honour – yes. Can I start with 299? I think your Honour Justice Bell referred to me to page 300. Can I start with 299? At the paragraph around line 30:

The Court of Criminal Appeal perceived in s. 27 –

So that is the arrest power:

a reason to permit the police to question . . . It was thought that the arresting police officer had to have an opportunity to question and to investigate the available evidence in order to decide whether to make a complaint or prefer an oral information. Whatever a police officer should do before making a complaint or preferring an oral information, s. 34A casts no obligation on him to make the complaint or prefer the information when an arrested person is brought before a justice pursuant to that section. Section 34A(2)(a) expressly covers the case where no complaint is made and no information is preferred.

In that passage, in our submission, their Honours acknowledge there is a difference between arresting and charging. You can arrest and not charge, as was contemplated by the particular statute. Then we come to 300, the passage beginning, “Nor is there any reason” and if I might just invite your Honours to read that paragraph, beginning “Nor is there any reason”.

BELL J: Their Honours here are making the same point one might think that Sir Frederick Jordan made in Bales v Parmeter at 186 of the report, namely that the officer who has had a reasonable suspicion to support the arrest will have a defence to a subsequent action for malicious prosecution or wrongful imprisonment. The matter that I raise with you is it is just not clear to me how your argument on construction is assisted by the suggestion that for many years there has been a terrible confusion about the fact that there are two states of belief required of a constable, one for arrest and one for the preferring of a charge.

MR KIRK: Our submission on that point, and it is consistent with what I think your Honour put to me earlier, is that there is no such anomaly or inconsistency if one understands they are two different points in time. So there is an arrest and there may be a charge, commonly will be - may be a charge and by the time of charge, the malicious prosecution requirement applies, and so in circumstances of direct knowledge, that must be reasonably‑based belief. At the earlier time it is only reasonable suspicion.

Now, the significance of this passage, in our respectful submission, is to acknowledge that because in general, see the first line, and in the ordinary case, in the fourth line, if you have enough to arrest you will in general have enough to charge. Your Honours would see, after the reference to Hussien:

If the arresting officer believes the information in his possession to be true . . . he has reasonable and probable cause for commencing a prosecution –

Earlier there in that passage, their Honours spoke:

In the ordinary case of an arrest on suspicion –

So leave aside 27 of the Tasmanian Act they are plainly dealing with the ordinary case of reasonable suspicion. That manifests, in our respectful submission, an entirely correct understanding of the two different states of mind. But their Honours say, well, look, ordinarily you will have both. But ordinarily implies not always. Ordinarily, in general, you will have both, but not always because sometimes you might only have a reasonable basis for suspicion, but not reasonable basis for belief.

BELL J: Mr Kirk, if I can bring you back to Justice Basten’s reasons for resisting the two‑stage test, and I am not here talking of the two‑stage test under your simple argument of statutory construction but rather by reference to the common law, and his Honour observed that Bales v Parmeter stood in the way of that. If one goes to Bales v Parmeter at 186, you have Sir Frederick Jordan stating:

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.

One sees earlier in the joint reasons of Justices Mason and Brennan an acceptance of the authority of Bales v Parmeter. I just wonder how this aspect assists your argument.

MR KIRK: As I said, it is only one of the strands, but it is one of the strands so I will answer your Honour’s question. The law has been clarified, with respect, in very clear terms by A v State of New South Wales that reasonable and probable cause for malicious prosecution must involve in cases of direct knowledge reasonably based belief in guilt, which is clearly a different state of mind from reasonable suspicion – see George v Rockett.

It still all works if one understands that they are different points in time, not much time between them but still different points in time, but that is our very point, they are different points in time. If one reads in to section 99 a requirement that there be an intent and a decision to charge at the time of arrest you are conflating the two times and that means that at the time of arrest you must meet that higher standard as set out in A v State of New South Wales. That is what we would respectfully submit is manifest in that discussion by Justices Mason and Brennan. I have probably said it as well as I might, your Honour.

The other point we would make, of course, is that going back to see that consistently with section 99 where, for example, to take the fleeing case – and by the way, I will answer your Honour Justice Edelman’s question after lunch if I may because I just want to pin it down precisely – but if the officer has a reasonable suspicion they have committed an offence but not necessarily belief and they are about to flee the scene, you can arrest, and that illustrates clearly, as does a range of other circumstances ‑ the AVO example, for example – that there may be the disparity between suspicion and belief in the circumstances as now covered by section 99(1)(b).

In any event, I will move on. Can I deal very briefly with the decision of their Honours Justices Wilson and Dawson. There is probably not much more I would seek to add in light of the ‑ ‑ ‑

KIEFEL CJ: Do you need to get anything more out of their Honours’ judgment?

MR KIRK: No, I will not go any further. Similar points may be made. There is not a passage quite in the terms of 300 but I will go through it any more.

KIEFEL CJ: Likewise, do you need in your outline at 4b to go into the principle of legality?

MR KIRK: I will say something very briefly about that. In fact, I will say that now, and then I want to take the Court very briefly to Foster as well and then briefly the extrinsic materials and then I will be done. In relation to the principle of legality which, in particular, without going to it, Justice McColl referred to, paragraph 121 at page 68, and my friends referred to as well, we do not dispute that the principle of legality applies here. Plainly, it does, as manifested very clearly in Williams, for example, as well as in NAAJA, North Australian Aboriginal Justice Agency.

But NAAJA was quite a different case where the issue was whether one part of the Northern Territory legislation should be construed as displacing the statutory requirement to bring an arrested person before a magistrate, et cetera, as soon as practicable. The interest protected by the principle of legality here is liberty as was illustrated in Williams.

That is the core fundamental principle going back to Blackstone and it misapplies the principle of legality to look to previous cases saying, well, they have construed the legislation in that way to then say that construction must be adopted for this legislation. Rather you just say we will seek to construe narrowly insofar as there is a constructional choice taking account of other principles of construction. The principle of legality does not mean you ignore all other principles of construction. So, in NAAJA, for example, in none of the judgments were other principles of construction ignored about construing in context and so forth.

The other point about the principle of legality is that it is about constructional choices and typically reading down. Here the respondent seeks to read in an implication which is not otherwise expressed within section 99.

Briefly, Foster - Foster is in volume 2, tab 26. It is a subsequent decision of this Court which is why I take your Honours to it. Very briefly, it is a pretty extreme case. A young man was arrested in Narooma on suspicion of having burnt down a ‑ or damaged a building by fire. The only evidence against him was his confession whilst under arrest. If your Honours look at page 794 which is – sorry, your Honour, I should have said the reference is (1993) 67 ALJR 550 at 552 on the right‑hand side just above the letter C. The main judgment said:

It is now conceded by the Crown that the trial judge’s finding was mistaken and that the appellant was arrested by the police solely for the purpose of interrogation. That that was so was confirmed by police evidence at the trial to the effect that, without a confession by the appellant, the police “did not have any other evidence to charge him” and that, at the time of the appellant’s arrest, the police did not intend to charge him. In the result, it is now common ground that the appellant’s arrest was unlawful and that the confessional statement was signed by him while he was being unlawfully held.

So, that was a concession. It does refer to no intent to charge. It does not state in terms there must be a positive intent to charge simply recording a clear concession but then going on to deal with the main issue in the case which was the exercise of the discretion to exclude. In any event, where the police had no other evidence and arrested solely to interrogate, it would be almost indisputable they did not have reasonable grounds to suspect such as to warrant the arrest. Of course, a case is only authority for what it decides about what is in issue - see the cases referred to in our reply at paragraph 17.

Finally, can I deal with the extrinsic materials, which is in the blue respondent’s book of further materials. Can I start with the Tink/Whelan report which is at page ‑ starts relevantly at page 33 of the book. So, this is a report by Mr Tink a former Liberal Shadow Attorney and Mr Whelan a former Labor Minister for Police. Your Honours will see the purpose stated at page 33, first paragraph, and we are asked by the Premier, that is Mr O’Farrell, to review LEPRA and to do so quickly. If your Honours go to page 34, the bottom paragraph:

Our discussions with the NSW Police Force and consideration of the relevant caselaw confirmed that the current provisions in s99 are complicated and difficult to apply.

Then, at page 35, under subheading 2, about point 8:

We have been mindful of concerns raised about the adequacy of the current reasons for which police can arrest without a warrant. Operational police are concerned that the current list of reasons is not broad enough to allow police to arrest offenders in order to protect the community and prevent crime. We accept that a lack of clarity . . . has been used . . . as a loophole.

So, there is a desire for simplicity and clarity and to expand protection. At page 36, just under line 30, about point 6:

The Parliamentary Counsel has –

and, pausing there, the Parliamentary Counsel had drafted a version of what was proposed, which starts at page 48 – your Honours need not turn to it – and which was then enacted in identical terms by the Parliament. So, going back to 36:

advised that if the provision were drafter to allow police to lawfully arrest a suspected offender in order to “obtain” evidence, this would effectively give police the power to arrest without warrant for the purpose of investigating an offence. The intent of the legislation is not to allow police the power to arrest in order to investigate. It is noted the proposed s99(4) clarifies that once a person has been lawfully arrested the person may be detained under Part 9 –

So, that is quoted against us. But, your Honours have to then read that with the next paragraph:

We discussed this issue with Police who indicated they wanted the section to explicitly allow police to obtain evidence that may be on an offender –

They give an example:

Therefore, the provision (s99(1)(b)(v) of the attached draft) has been drafted in such a way as to allow police to arrest to obtain property, without conferring a wider power allowing police to arrest for the purpose of investigation. If a police officer reasonably suspects an offence has been committed, the officer can arrest the person for the purpose of obtaining evidence.

So, read together, that is consistent with what I put earlier. To arrest to investigate simpliciter is not within power. To arrest within a reason in 99(1)(b) may well be to investigate and is. At page 37, under the heading “Fleeing from police or from the location of a suspected offence”, just dealing with the last seven or so lines:

The police view is that if a person is fleeing from police there should be a power to arrest, if they reasonably suspect the person of having committed an offence. We are convinced by the Police argument that if this criteria were to be omitted it may invite argument in court that Parliament intended that police could not arrest a person who they reasonably suspect of committing an offence who was running from the scene –

So, that is consistent with what I put earlier. If the purpose was purely to charge them, then it would go without saying that you could arrest them if they were fleeing because you are going to charge them. But, this goes further than that. Earlier in that page, without going through the details, there is a heading “Because of the nature and seriousness of the offence” which refers to domestic violence. I indicated earlier that was one of the concerns. At page 40 “Recommendations” – at the top, 1 and 2:

We recommend s99 be redrafted as follows:
1.Section 99 should be simplified to reflect the policy intent that police can arrest without warrant if they reasonably suspect a person is committing or has committed any offence -

and 99(1)(b) gives:

a finite list of reasons –

They attached a Bill. Very shortly thereafter that Bill was introduced to Parliament by the Premier. The second reading speech starts at page 29. At the bottom of the page, at the beginning of the speech, Premier O’Farrell said:

The purpose of this bill is to amend the Law Enforcement (Powers and Responsibilities) Act 2002 to ensure that police have clear, simple and effective powers of arrest to protect the community.

GORDON J: What page is that, sorry, Mr Kirk?

MR KIRK: Sorry, your Honour, I apologise, page 29. It is page 25092 of Hansard, right at the bottom. So we call that in aid to say this was intended – as manifest by Tink/Whelan to elucidate clear, simple and effective powers of arrest in terms that a police officer can be taught; can carry around; can know without reading in implied requirements. Over the page, first paragraph, last four and a half lines, having referred to Whelan and Tink, the Premier said:

I asked them to give immediate priority to addressing police concerns with section 99 of the Act, which sets out police powers to arrest without a warrant. Police have raised concerns that section 99 is complex and difficult to apply -

leading to a concern:

The job of front‑line police is already hard enough –

A little bit of rhetoric. There is then a reference to a decision by Judge Conlon. That was a very recent decision, and we give the reference in our submissions. It was a decision on 27 September 2013, see footnote 70 of our submissions. Judge Conlon raised an issue about:

The community would be entitled to be concerned that the provisions of this section do not take account of the extreme variables that confront police officers in dealing with aggressive, violent situations,

especially when persons are under the influence of drugs and alcohol.

He then expressed a view:

This section needs to be re‑legislated –

consistent with the submissions we put about simplifying it and giving powers to deal in a protective way, even if you are not going to charge, with the situations, the range of situations that police officers are faced with. Finally, just under line 40, that paragraph, “New.” There is a reference to section 99. The simple point is the Premier is citing the two requirements for 99 for arrest, consistently with the desire to be clear, simple and effective. That is what he was telling the Parliament the power was conditioned on. In our respectful submission, that is all it is conditioned on, that is to say, it is not conditioned on the implied requirement put by the respondent that at the time of arrest there be a positive intent to charge. May it please the Court.

KIEFEL CJ: Thank you, Mr Kirk. Yes, Mr Toomey.

MR TOOMEY: May it please your Honours. We propose to spend some little time on establishing what we submit is the evident purpose of an arrest under section 99(3). We wish to answer the charge, as it were, levelled against us by the appellant that we arrive at the asserted purpose in our submissions by an a priori process of reasoning. We submit rather that in fact the purpose of section 99, the purpose of an arrest under section 99, is to be found in the text of the provision, namely, in subsection (3). It is to be found in that provision because of the requirement under subsection (3) that the person arrested be taken before a court:

to be dealt with according to law.

The last of those words are extremely important. The first thing that needs to be observed about those words is that unless a person has been charged they cannot be dealt with according to law, they cannot be dealt with at all. The “authorised officer”, which is a defined term in section 3 of LEPRA, is defined for all intents and purposes to be a magistrate or a registrar of the Local Court and the Local Court’s jurisdiction will not be invoked until such time as a criminal proceeding has been commenced.

KIEFEL CJ: That might be so. But the point taken against you is that that does not tell you anything about the time at which a decision is made to charge.

MR TOOMEY: Your Honour, may we take some time in seeking to answer your Honour the Chief Justice’s observation in taking your Honours to the decisions which have dealt with the requirement under the common law, and then under section 352 of the Crimes Act and cognate provisions.

EDELMAN J: Just so I understand your submission about subsection (3), that is a submission, is it, that one finds and the implication of the mental element in subsection (3)?

MR TOOMEY: Yes.

EDELMAN J: Rather than, for example, as Justice Basten said, through subsection (1) in arrest?

MR TOOMEY: Well, the two are related, we would submit, because the understanding of the term “arrest” in law is informed by the understood purpose of the conferral of a power of arrest. The understood purpose of the conferral is to take a person before a court to be dealt with according to law.

GAGELER J: We were taken by your opponent to a passage in Williams v The Queen 161 CLR at page 299 where it was said at the end of that page:

s. 34A –

the relevant provision of the Tasmanian Act:

casts no obligation on him –

the police officer:

to make the complaint or prefer the information when an arrested person is brought before a justice –

of the peace:

pursuant to that section.

Do you say that the operation of this provision is different from that?

MR TOOMEY: Yes, we say it is because it requires that the person be taken before a court for a purpose, namely, to be dealt with according to law.

GORDON J: To be dealt with according to law may mean not necessarily a charge, it may mean some other purpose, might it not? That is why the passage on page 299 is important.

MR TOOMEY: The difficulty with that, your Honour, is that the Local Court before whom section 99 contemplates the person arrested will be taken, not before a court having some right to order habeas corpus, for example, the Local Court will only have jurisdiction to deal with the person at all in circumstances where that jurisdiction has been triggered. The jurisdiction in the Local Court of New South Wales will only be triggered once a criminal proceeding is commenced. There can be, for example, no power to make any order in respect of bail because an order in respect of bail only follows after a charge has been laid or proceedings have been commenced.

EDELMAN J: So, in effect, the removal of the words “for the purpose of taking proceedings for an offence” from the old provision had no effect?

MR TOOMEY: We say it has no effect because it remains plain, by necessary implication, if the person is to be taken before a court to be dealt with according to law, that that can be the only purpose in taking them before the court.

May we commence by taking your Honours to the decision in Clarke v Bailey. We understand and take on board the appellant’s concession that the common law required the person arrested to be taken before the court as soon as possible to be dealt with according to law. Clarke v Bailey came to consider section 352 of the Crimes Act which did not, in terms, set out the period of time within which the person arrested needed to be taken before the court. But it was said by the Full Court in Clarke v Bailey – and I am reading from the passage at 722, volume 2 of the authorities book:

At common law it was compulsory for a constable, in order to justify an arrest, to shew that he had taken the arrested person without delay, and by the most direct route, before a justice, unless some circumstances reasonably justify a departure from these requirements –

Wright v Court is there referred to. In my opinion, the effect of the section is merely to reinforce the common law principle and it is not intended to give the constable discretion in the matter except to the same extent as existed before.

This we will ultimately link back to the point we understand to be put against us that it is permissible in the time described under section 99(3) by the words “as soon as is reasonably practicable” to deliberate upon whether a charge will, in fact, be laid. We would assert that that is incorrect and that the assertion that is made against us appears, perhaps, to be premised upon an assumption that in the case of every arrest Part 9 of LEPRA will be invoked.

We submit that Part 9 cannot be invoked in the case of every arrest because the purposes of the power under Part 9 are to enable a person to be held to investigate whether the offence has been committed but a power of that nature could not be exercised unless it was necessary to hold the person for that purpose.

There will be many cases where a person who has been arrested who refuses to give an interview and where there is no further investigation which can take place or where at least the persons being held will not facilitate any further investigation where the time described under section 99(3) cannot permit of any delay in taking the person before a court. We have provided an example in our written submissions and we will come to some further examples.

The next case to which we wish to take your Honours is Bales v Parmeter. In that case, and we will come back to the passage that your Honour Justice Bell took my learned friend to concerning reasonable and probable cause, but in that case the Full Court in the decision of Sir Frederick Jordan recognised the difficulties, the exigencies of the circumstances faced by police officers such as the very example that was given by Mr Kirk, namely, the police officer arriving on the scene to find a person near a dead body. First, his Honour refers to what was said by Lord Wright in McArdle v Egan and I quote from Lord Wright’s speech:

“It is to be remembered that police officers, in determining whether or not to arrest, are not finally to decide the guilt or innocence of the man. Their functions are not judicial, but ministerial –

and that was something that was echoed by this Court in Williams and in NAAJA:

and it may well be that if they hesitate too long when they have proper and sufficient ground of suspicion against an individual, they may lose an opportunity of arresting him, because in many cases steps have to be taken at once in order to preserve evidence. I am not saying that as in any way justifying hasty or ill‑advised conduct. Far from that, but once there is what appears to be a reasonable suspicion against a particular individual, the police officer is not bound, as I understand the law, to hold his hand in order to make further inquiries if all that is involved is to make assurance doubly sure.”

Then Sir Frederick Jordan makes the point which is important to our argument:

But suspicion that a person has committed a crime cannot justify an arrest except for a purpose which that suspicion justifies –

and his Honour went on to identify that purpose on page 190, 572 of the book, at about point 3:

The jury found that there was an arrest at the flat and an imprisonment at the police station. Accepting those findings, it is impossible, on the defendants’ own evidence, to escape the conclusion that any such restraint of the plaintiff’s liberty was –

and here are the relevant words:

not for the only purpose for which in the circumstances it could have been justified–that of taking her before a magistrate to be charged and dealt with according to law–but for the purpose of asking her questions or making investigations ‑ ‑ ‑

KEANE J: So when 99(1)(b) gives the reasons for an arrest, you are not able to treat those reasons seriously?

MR TOOMEY: No, your Honour.

KEANE J: Police officers cannot treat them seriously.

MR TOOMEY: No. Indeed, they can, and are bound to. But we submit that once it be recognised that the only purpose of the conferral of a power of arrest is to take a person before a court to be dealt with according to law, the reasons in section 99(1)(b) serve a different purpose, namely, they place, as Justice Basten found, a constraint on the power of arrest and they act as discriminators between circumstances where a person will be charged alone, or circumstances where that person will be arrested and then charged, keeping in mind, of course, that it is not necessary to arrest the person to charge them.

EDELMAN J: In other words, as I understand, your submission is really that it operates in exactly the same way as a literal reading of the old provision would have operated, where subsection (3) required the police officer not to arrest a person for the purposes of – must not arrest a person for the purposes of taking proceedings for an offence, unless the following additional purposes were satisfied?

MR TOOMEY: Yes.

EDELMAN J: Yes.

BELL J: How does that fit with the long title to the amending Act which talks in terms of an Act to extend the powers of police to arrest?

MR TOOMEY: We would submit that it extends police powers of arrest in this fashion. There are, of course, both the 99(1)(a) requirement and the 99(1)(b) requirement. One of those matters under the 99(1)(b) roman numeral subsections must be satisfied, that is to say, the arresting officer must be satisfied that it is reasonably necessary for one of those reasons.

So that it extends the circumstances in which a police officer who nevertheless has the intention of taking the person before a court to be dealt with according to law, may arrest them, as distinct from those circumstances in which they would simply charge the person.

BELL J: Assume a valid arrest at common law, is there any provision in 99(1)(b) that would not be open to the officer under the common law?

MR TOOMEY: If one accepts that the common law has as its purpose that for which we contend – I am sorry, would your Honour repeat your Honour’s question?

BELL J: I am inquiring whether in your submission there is any power under subsection (b) that a constable would not possess at common law in the event the constable effected a lawful arrest of a person suspected of having committed an offence.

MR TOOMEY: If we may go through them ‑ (b)(i) a constable would have a power at common law to prevent a person committing or repeating an offence or committing another offence under the prevention of the breach of the peace power, assuming it is a breach of peace‑type offence. To stop a person fleeing from a police officer, perhaps not, if the power to arrest was not engaged at common law – if the power to arrest was not engaged at common law there would be no power to detain the person.

BELL J: I am just trying to understand this. Under (1)(a), the police officer has to have the reasonable suspicion that the person has committed the offence. At common law an officer with that reasonable suspicion would have the power to stop the person fleeing from the scene. What is it that (b)(ii) is doing?

MR TOOMEY: It would have the power to stop him fleeing from the scene because the reasonable suspicion would entitle them to arrest the person under the common law power but only if intended to take the person before a court and make them answerable to a criminal charge, that is to say that the power of arrest both at common law and under section 352 and under the provision with which we are here concerned is conferred for a purpose and that purpose is to make the person answerable to a charge because that is all that the purpose can be in taking before a court so that they may be dealt with according to law.

BELL J: On the view that the provisions of 99(1)(b) operate to confine the circumstances in which a constable may effect an arrest, do you accept that the constable’s common law powers are preserved under section 4 to effect an arrest?

MR TOOMEY: A constable’s powers of arrest are preserved under section 4, yes, we accept that.

BELL J: How can it be that 99 in some way is operating to confine the constable’s powers if the constable has the full armoury of common law powers by virtue of section 4?

MR TOOMEY: The power to arrest under section 4 would include a power to arrest for breach of the peace, which we would accept it must be directed to, but the 99(1)(b) reasons - I think I am answering your Honour’s question, act as a constraint because it is not permissible to arrest a person on the basis of reasonable suspicion alone, even if it is the police officer’s intention to take them before a court so that they can be dealt with according to law as is the mandate in 99(3) unless one of the 99(1)(b) matters is – the police officer is satisfied of one of the 99(1)(b) matters.

It is consistent, we would submit, with the recognition in numerous cases that arrest ought to be exercised as a power of last resort and, indeed, that was what was said by the Minister in the second reading speech when LEPRA was introduced and has been held since to remain the position; in State of New South Wales v Smith, which we have included in the book, and we also refer in our submissions and have included in the book a decision of the New South Wales Court of Appeal in Lake v Dobson.

The 99(1)(b) reasons, in other words, can be read entirely conformably with the requirement for which we contend if understood in that light, namely, as a constraint on the power and a requirement that, in fact, an arrest be necessary for one of those purposes.

BELL J: A constraint on the common law power?

MR TOOMEY: On the power under 99 as well because it is additional to the 99(1)(a) requirement.

GORDON J: Section 99(1)(a), do you accept, is no different to the old 352(2)?

MR TOOMEY: Yes, we accept that it is no different, your Honour.

GORDON J: We have that requirement in the first limb. What is it again that this (1)(b) is supposed to restrict? So, it goes backwards from the old 352 power. It is, in effect, a constraint on what was – contrary to what the extrinsic materials tell us, which was to expand the power.

MR TOOMEY: The section 352 power was conferred if there were a suspicion on reasonable grounds of the commission of the offence and, on our argument, if it was intended to take the person before a court to be dealt with according to law. They were the only requirements under 352 and, indeed, the only requirements under the common law but the 99(1)(b) reasons, which appeared in the first iteration of section 99, but expanded by the 2013 amendments, and only (b) regarded as additional requirements in order to render lawful an arrest and must, therefore, be regarded as constraints on the power. That is how we put it.

We assert that 99(1)(b), once one arrives at the conclusion to which we will seek to persuade your Honours that this Court should – that the only proper purpose of an arrest is to take a person before a court to be dealt with according to law – 99(1)(b) cannot be read in any other way than the manner in which we put it.

EDELMAN J: Effectively, your submission is that, prior to the amendments, the old section 99 had an express requirement of having the purpose of taking proceedings, for an offence, before the arrest could be made but it constrained the common law by reference to six factors. Then, those six factors were, effectively, expanded and the constraint relaxed by reference to nine factors in the amendment and the amendment then also relaxed the post‑arrest requirements by reference to subsection (4) in Part 9. Is that the sequence?

MR TOOMEY: Yes, that is the sequence, your Honour.

EDELMAN J: I will come back to the question, why then remove the express requirement for the purpose of taking proceedings for an offence? There is all this other liberalisation that has gone on in the 2013 amendments but you say that the express removal of a requirement is not a liberalisation.

MR TOOMEY: We do not accept, with respect, that under the old section 99(3) it was expressed as a requirement that the arrest be for the purpose of taking proceedings but rather as an assumption. It contains the assumption that a police officer must not arrest a person for the purpose of taking proceedings is the assumption in that section as we say it ought continue to be because one is driven there by the recognised purpose of such a power for an offence against the person, unless the police officer suspects on reasonable grounds, and then the constraints are imposed by (3)(a) to (f).

The expansion of the matters in 99(1)(b) in the post‑amendment provision does not, in other words, derogate from or subvert what must be recognised as the raison d’être for a provision such as section 99, which confers a power of arrest.

Your Honours, I do not wish to labour these cases, but it is important to our point and the point is made again in Drymalik v Feldman, which is a case to which passing reference has already been made, which concerned South Australian legislation. The purpose of our taking your Honours to this is that once again, as had been recognised by Sir Frederick Jordan in Bales, the Full Court of South Australia – I am looking at page 789 of the authorities book, behind tab 25 – it was echoed that the requirement is and it follows that the immediate purpose of the arrest must be to bring the arrested person forthwith before a justice.

That purpose was again stated very strongly by the Victorian Full Court in R v Banner which your Honours will find at volume 3 of the authorities book. That was a case like numerous of the cases that this Court has been referred to in the written submissions which concerned the admissibility of confessional evidence just as Williams did. If we could invite your Honours to go to page 1106 of the book of authorities, the court there said:

Police officers have, of course, power to arrest and detain a citizen where they have reasonable and probable grounds for suspecting that a felony has been committed, and that he is the person who committed it. But this power is exercisable only for the purpose of taking him before a magistrate to be dealt with according to law for that felony. They have no power whatever to arrest or detain a citizen for the purpose of questioning him or of facilitating their investigations.

Their Honours there refer to Bales, a New South Wales case of Evers and to Drymalik and to the decision of the House of Lords in John Lewis v Tims to which we will come in due course. It might be remembered also, of course, that in Bales Sir Frederick Jordan observed that a police officer has no greater power to arrest a person suspected of committing an offence for the purpose of investigating or questioning that person than the police officer has of arresting a person not suspected of the offence for that purpose.

The importance of observing the purpose for which powers of arrest are genuinely conferred is, we would submit, manifest. Your Honours have been taken to the decision of Foster. We will not dwell upon it, but it is to be found behind tab 26. We accept of course that in that case it was acknowledged that because the arrest had been effected for the purpose of investigation, as we submit the arrest in this case of Mr Robinson must have been effected for, but it is implicit in what this Court said in Foster, we would submit, that the infringement of the appellant’s rights, which was described as serious and reckless was serious and reckless because the man was arrested when there was no intention on the part of the arresting officers to take him before a court.

It is important, we would submit, that we not be distracted from the central point in this appeal and that is the real question is, was the police officer who undertook the arrest actuated by an intention to take the arrested person, Mr Robinson, before a court to be dealt with according to law?

GAGELER J: But you read something into those words “to be dealt with according to law” and then to be charged by that police officer?

MR TOOMEY: Yes, we do.

GAGELER J: Where do you get that out of these cases you have referred us to?

MR TOOMEY: We get that out of the power of the Local Court, not from these cases. These cases make it clear that the purpose is to take a person before a court. In the provisions ‑ ‑ ‑

GORDON J: Do you get that out of the reference to “authorised officer”? Is that where I find it?

MR TOOMEY: Yes, your Honour. First of all, to “authorised officer”.

GAGELER J: We will just start with paragraph (a). It refers to a magistrate. So, presumably, we need to look at other legislation to understand what the powers of a magistrate are when the person is brought before them in these circumstances.

MR TOOMEY: One first needs to go to the Local Court Act. I am not sure whether these were provided to your Honours, but I have multiple copies.

GORDON J: Your short point about this is that the magistrate has no power to do anything unless there has been information or a notice lodged?

MR TOOMEY: That is our short point. The magistrate has no power to deal with the person at all unless criminal proceedings have been commenced.

KIEFEL CJ: But is not the underlying premise for your argument that there has to be a charge laid and a present intention at the time of arrest to make a charge?

MR TOOMEY: That is the underlying premise of our argument. We say it flows, necessarily, from the recognised purpose of taking the person before a court.

KIEFEL CJ: But of course if the arrest is discontinued, which section 105 expressly recognises and could have occurred under the common rule, the person is not charged and would never be brought before a court. There is always the possibility.

MR TOOMEY: That is quite so, but we would submit that that does not affect or address what the actuating purpose of the arrest must be at the time the arrest is effected.

KIEFEL CJ: Except if you understand it in the way in which Acting Justice Emmett put it, which is to understand “arrest” as a process in which the person has to be arrested for the purpose of being brought before the appropriate authority or tribunal if a charge is laid. We might adjourn at that point. We look forward to your answer at 2.15.

MR TOOMEY: Yes, your Honour.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

KIEFEL CJ: Yes, Mr Toomey.

MR TOOMEY: May we address your Honour the Chief Justice’s question posed to us immediately before lunch? We take your Honour to be referring particularly to paragraph 251 of the judgment below where Justice Emmett said this – I am reading from about four lines down. It is at page 108 of the core appeal book:

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.

We would say that, if we understand what his Honour is saying there correctly, it could lead to, with great respect, an alarming result, namely, where time is allowed to decide whether to charge where the time imposed by section 99(3) is not actually running. In order to understand how such a situation might ‑ ‑ ‑

KIEFEL CJ: Would that be right or would the provisions of Part 9 with the extension of only a four‑hour period for investigation have some safeguard effect – both provide for investigation and limit the period for it?

MR TOOMEY: I was going to come to that immediately ‑ ‑ ‑

KIEFEL CJ: Yes.

MR TOOMEY: ‑ ‑ ‑because the difficulty is, your Honour, that it appears to us that the appellant’s submissions proceed on the assumption that, following every arrest under section 99, Part 9 will be invoked. And, for reasons we have put in our written submissions, we submit that that is not so. Part 9 is there for a purpose. It is to investigate – as my learned friends pointed out – whether the offence was committed.

KIEFEL CJ: The point is, would that not be – accepting that – would not that be preparatory, in some cases – not all cases – would that not be preparatory to determining whether a charge is laid?

MR TOOMEY: That is the time in Part 9.

KIEFEL CJ: Section 114(2):

may so detain a person for the purpose of investigating whether the person committed the offence ‑

MR TOOMEY: It would be, in some cases – not all – if, indeed, Part 9 is invoked. But, in order to test what is posited by Justice Emmett, below, one also needs to consider the situation where Part 9 is not being invoked.

NETTLE J: Is it not the case that if Part 9 is not invoked, then the police officer is under a duty, as soon as reasonably practicable, to take the subject before the magistrate?

MR TOOMEY: Yes, that is so.

NETTLE J: The only power of the police officer to detain such a person for investigation is that which is provided for in Part 9 which is subject to the limitations to which the Chief Justice has referred.

MR TOOMEY: That is so. Accepting both those propositions, if there is insufficient evidence to charge and the police officer accepts that, as he did in the present case, and there is no investigation that can be facilitated by holding the person in custody so Part 9 is not invoked, the only time, as your Honour Justice Nettle has just observed, within which the person must be taken before a court is that defined by section 99(3), that is, as soon as is reasonable practicable.

NETTLE J: Am I missing something, is that not the case here that there was an investigation of the subject following his arrest to ascertain whether he was guilty of the offence of which he was suspected?

MR TOOMEY: He was interviewed. He was arrested and then interviewed. He was asked whether he would be interviewed and agreed to do it. It is important, we submit, that he was not asked before he was arrested whether he would agree to be interviewed.

NETTLE J: I suppose if he had not agreed he would have been compulsorily interviewed under these provisions. That is what usually happens. People are given the option first and then if they do not accept ‑ ‑ ‑

MR TOOMEY: No, your Honour, there is no compulsory interview.

NETTLE J: There is provision to interview.

MR TOOMEY: There is provision to interview ‑ ‑ ‑

NETTLE J: He refuses to answer ‑ ‑ ‑

MR TOOMEY: ‑ ‑ ‑ but a person who is arrested is not obliged to answer any questions.

NETTLE J: No, of course he is not.

MR TOOMEY: Or to participate in the interview.

KIEFEL CJ: Well, I think you have to sit there while questions are put to you. The point is you can decline to answer them. That is participating.

MR TOOMEY: Unlike here, your Honour. But the approach of Justice Emmett in the court below necessarily, in the circumstances we have just posited, means that a decision can be made within a period that is described by no other words than those in 99(3), that is, within the time allowed between the time of arrest and the time the person is required to be taken before a court, as soon as is reasonably practicable. Now, that is the position which was addressed directly by this Court in Williams.

EDELMAN J: One would have to ask “as soon as is reasonably practicable” after what? So, it would be either as soon as is reasonably practical after arrest or as soon as is reasonably practicable on the other view after the point at which an intention to charge has been formed.

MR TOOMEY: If that were so, your Honour, in circumstances where Part 9 is not being invoked, it would leave no limitation on the period of time available to a police officer to make a decision whether to charge.

EDELMAN J: Well, your argument would effectively be that the police would be in a much better position if they had formed no intention to charge because they would effectively have an unlimited period to investigate, interrogate ‑ ‑ ‑

MR TOOMEY: Yes.

EDELMAN J: ‑ ‑ ‑ until that intention is formed.

MR TOOMEY: Indeed so, and, indeed, they would be in a better position too if they were not invoking Part 9.

NETTLE J: If they do not invoke Part 9, they have no authority to detain. They are required to take the subject before the magistrate.

MR TOOMEY: That is our very point, your Honour.

NETTLE J: Well, I am missing it, I must say.

MR TOOMEY: What is put to us is that that time, the time within which they have to take the person before the court, described by the words:

as soon as is reasonably practicable ‑

allows time for a decision to be made whether to charge the person, and that is a position which was considered directly in this Court in Williams.

NETTLE J: Yes, but in Williams there were no provisions like Part 9, which was the very point that Justices Dawson and Wilson, and to a lesser extent Mason and Brennan, made. Here we have got them.

MR TOOMEY: That is so. But, your Honour, if Part 9 is not being invoked – one has to approach these provisions ‑ ‑ ‑

KIEFEL CJ: The point is, you have to construe section 99, in the context of the scheme that the statutory framework provides for you and one of those ‑ one of the provisions that provides context is section 114, and the other provisions of Part 9. You cannot ignore them for the purpose of construing section 99.

MR TOOMEY: We do not ignore them, your Honour, but ‑ ‑ ‑

KIEFEL CJ: What do they tell you about how to read section 99(3) and section 99(1)? Given that there is this power to investigate, what does that tell you about the point at which someone has to form an intention to charge a person? Is it the case that, in some cases, that intention is not required to be formed until the period for investigation – the reasonable period under Part 9?

MR TOOMEY: No, that would assume that Part 9 is there only to shore up evidence against a person who is suspected of having committed an offence. It needs to be kept in mind that investigation under Part 9 will frequently lead to material which will exculpate the person.

KIEFEL CJ: Do I understand you to say ‑ because I am, too, struggling to understand what you make of Part 9 ‑ are you saying the powers of investigation there given can only be used to confirm a decision already made to charge? Is that what it comes down to?

MR TOOMEY: We do not say necessarily that the decision to charge must already have been made. What we say is that the arrest must be actuated by an intention to take the person before a court to be dealt with according to law and that that necessarily involves the laying of a charge.

KIEFEL CJ: Are you not eliding a statutory obligation stated in section 99(3) with a subjective intention of the officer in question?

MR TOOMEY: We say that the requisite subjective intention for which we contend necessarily follows from 99(3) which imposes the obligation. The situation, as Justice Emmett proposes it in the two‑stage test, would give rise, we submit, to the very situation which was referred to by Justices Wilson and Dawson in Williams, and if I may invite your Honours to go to page 1222 of the authorities book?

GORDON J: What page of the case is that please?

MR TOOMEY: Page 310, your Honour. Their Honours refer at about point 5 to the decision in Holgate‑Mohammed v Duke which was not ultimately approved of. At about 10 lines up their Honours state:

But before that decision views had been expressed in the cases to the effect that the police, whilst they cannot arrest without at least reasonable suspicion of the commission of an offence and may not detain a person merely for questioning, may hold an arrested person in custody without further authority in order to gather the evidence required to prefer a charge –

They refer to the decision in Re Sherman where it was said that the phrase “as soon as practicable” was a “slightly elastic concept” and that also was an interpretation rejected by this Court and they proceed:

The inevitable result was that the police tended to interpret the phrase “as soon as practicable” . . . still set the time limit for serious offences for bringing an arrested person before a court) as meaning “as soon as we have decided whether to charge him”, with the result that some suspects were held for long periods under arrest –

That was a matter which was squarely disapproved of by their Honours. They say:

Obviously that situation must have been somewhat unsatisfactory. To countenance a period of detention in police custody after arrest, without specific limits, for such time as might be reasonably necessary to enable the police to obtain the evidence upon which to charge the suspect, is unacceptably open‑ended and quite contrary to what was (and in Australia, in our view, still is) the law.

EDELMAN J: You get that consequence in subsection (3), you say, because “as soon as is reasonably practicable” must mean “as soon as is reasonably practicable after an intention is formed to charge”. If that intention to charge is not required to be formed at the time of arrest, you have this exact consequence of a potentially unlimited period in which there is no constraint.

MR TOOMEY: That is precisely our point, your Honour, precisely our point.

KIEFEL CJ: But none of that pays regard to the statute here. We have the statute that their Honours envisaged, as Justice Nettle pointed out.

MR TOOMEY: Yes.

NETTLE J: Page 312, second half…..pre‑told the sort of legislation we are now dealing with.

MR TOOMEY: Yes, yes, that is so. We do have that statute and it contains Part 9. But Part 9 will not be invoked in every case and that is the difficulty.

NETTLE J: But what would be the warrant to hold someone if Part 9 were not invoked? How could that lawfully be done?

MR TOOMEY: There would be no warrant for it, which is precisely why we say that there is no time allowed within which to make a decision to charge after the person has been arrested. That is why the decision to charge must attach at the time of arrest, because the period is too open‑ended and is undescribed by the time limit imposed by subsection (3).

BELL J: I am sorry, Mr Toomey, I had understood your point to be that at the moment of arresting the officer who entertains the reasonable suspicion must have it in mind that the person will be brought before the magistrate – or authorised officer – to be dealt with according to law on a charge but that you accept that it would be open for some amount of time to be taken up in determining the appropriate charge.

MR TOOMEY: Yes.

BELL J: Yes.

MR TOOMEY: We do accept that, your Honour, we do accept that.

BELL J: So, rather than talking of an added mental element, your point is, in order to comply with the statutory obligation under 99(3), if at the moment of arrest the officer is later to disclose his or her state of mind was “I had no intention to bring any charge against this individual” that would be an unlawful arrest because the object of the arrest was not capable of fulfilment. Is that the essence of it?

MR TOOMEY: Yes, that is so – the recognised purpose of the provision being to take the person before a court to be dealt with according to law.

NETTLE J: Or to release?

MR TOOMEY: Or to be released – but, we will come to this in just one moment if your Honour would bear with me. But only to be released if, in fact, there has been a charge laid and the court’s jurisdiction has been invoked.

NETTLE J: But does this legislation not expressly provide that a person may be released without charge?

MR TOOMEY: I am sorry, under section 105?

NETTLE J: Yes.

MR TOOMEY: I am sorry, I thought that your Honour was referring to what the court would do when the person was taken there – or to be released, yes.

NETTLE J: Given that the legislation contemplates that a police officer might arrest someone whom he reasonably suspects of having committed an offence if he satisfies one or more of the conditions in subsection (1)(b) and that the legislation contemplates that after a time he might release the subject if he reaches the view that there is either not sufficient evidence to charge or that the person is innocent, why would one contemplate that at the time of first arrest he must necessarily intend to charge?

MR TOOMEY: Because in circumstances where Part 9 is not to be invoked and, therefore, no investigation is undertaken revealing either inculpatory or exculpatory evidence there is no time to do anything other than take the person before a court to be dealt with according to law.

NETTLE J: Well, he has to take the person as soon as reasonably practicable.

MR TOOMEY: Yes.

NETTLE J: If he takes five minutes to think about whether or not I shall invoke the powers under Part 9 and then proceeds to do so, what is reasonably practicable is considerably extended. If after five or 10 minutes he decides no, I shall not exercise the powers under Part 9, then he has to get the subject before the magistrates pretty quickly.

MR TOOMEY: Yes. But if, as in this case, he does not have the evidence sufficient to lay a charge which was accepted by Constable Smith and if there are no investigations which can take place and Part 9 cannot be invoked, he has to take the person before a magistrate as soon as is reasonably practicable and that necessarily assumes ‑ ‑ ‑

NETTLE J: That is what I am missing, why cannot the police officer under Part 9 conduct an interview of the subject?

MR TOOMEY: But what if the subject says I refuse to be interviewed and it is known before he attends the police station that he will not engage in an interview.

NETTLE J: I do not know about known beforehand but let us assume that after several attempts to interview the subject refuses to be involved, I suppose at that point the police officer has to call it quits and get the man either out of the place or have him charged.

MR TOOMEY: In the case which your Honour refers to that means that the man was arrested for the purpose of undertaking investigation ‑ ‑ ‑

NETTLE J: No, he was arrested because he was reasonably suspected of having committed an offence in one or more of the conditions if (1)(b) was satisfied.

MR TOOMEY: The difficulty, your Honour, with proceeding on the basis that Part 9 will be invoked is that it will not always be invoked and will not always be available to be invoked.

KIEFEL CJ: I think you might be repeating yourself, now, Mr Toomey.

MR TOOMEY: Yes, indeed, I am. May I just go to the last passage in the judgment of Justices Wilson and Dawson in Williams and that is at page 312, 1224 of the book, and there their Honours made the point we are here seeking to make in circumstances where Part 9 cannot be invoked:

There is no real protection for the individual in any formula which says that the police may not detain an arrested person longer than is necessary to enable them to prefer a charge. Obviously there must be reasonable time to formulate and lay appropriate charges for the purpose of bringing a person before a justice -

which was your Honour Justice Bell’s question to me:

The common law allows time for this and it is covered by the words “as soon as is practicable”. But it is something quite different to say that the police should be able to detain an arrested person to enable them, by further investigation, to gather the evidence necessary to support a charge.

What their Honours there do ‑ ‑ ‑

KIEFEL CJ: Their Honours go on to say the vice is such a power, without limit.

MR TOOMEY: Yes, but there would be no limit in circumstances where Part 9 is not invoked, because Part 9 is what contains your time limitations.

EDELMAN J: If one were to try to make it a bit concrete, you could have a situation where there is an offence that has been committed – a very serious offence which might bring it within subsection (ix). Five people are reasonably suspected of having committed the offence. On one construction of section 99 all five can be brought in. There is no intention to charge any one of the five because the police do not know which of the five has committed it. The five could be held for days, presumably, until an intention is formed to charge one of the five.

MR TOOMEY: Yes.

EDELMAN J: Whereas your point about Part 9 is that Part 9 shows that there is a clear intention to confine any particular period, at least after arrest to four hours. It would be inconsistent with that regime to allow people to be held indefinitely or for a particularly long period just because an intention had not been formed to charge one of them.

MR TOOMEY: Yes, that is our point and suppose further that the serious offence is one of murder and it is a cold case, so to speak, that is, it is a murder that occurred 30 years before and it had been investigated uphill and down dale. The literal fulfilment of the provisions for which the appellant appears to contend would render an arrest lawful in those circumstances where it was not intended to investigate it further and there was no intention to take the person before a court.

KIEFEL CJ: You seem to assume there is a third category available under this legislation, but really what has been put to you as a matter of construction is – put aside how you think the argument against you is framed – is it not the case that a police officer who has a present intention to charge must bring the person before a magistrate or the Local Court and that must occur unless they are invoking Part 9. It is either/or; there is not a third option. That is really what is being put to you by members of the Court.

MR TOOMEY: We agree, with respect. That must occur if Part 9 is not invoked. It must occur. The point we make from that is that if Part 9 is not invoked there is no extension to the time limit which is described by section 99(3), the time limit described being “as soon as is reasonably practicable” after the arrest has been effected.

KIEFEL CJ: I think we might just be going around in circles now, Mr Toomey. I think it might be time to move on to your next point.

MR TOOMEY: May it please, your Honour. I did wish, however, to deal quickly with the passage upon which the appellant relies from the decision – still in Williams, from the judgment of Justices Mason and Brennan, at page 298. There, their Honours said:

Reasonable time must be allowed for making a decision to prefer a charge and preferring it –

We wish to say three things about that. Their Honours do not say “deciding whether to prefer a charge” and what their Honours say is capable also of being read to mean, as Justices Wilson and Dawson put it, to formulate what charge will be laid. That is the first point.

We say further that that is consistent with their Honours’ acceptance, on the previous page, at 297, of the principle of general application stated by Lord Porter in John Lewis v Tims which commences with the proposition that those who arrest must be persuaded of the guilt of the accused.

It would be, we submit, curious if that having been accepted as a principle of general application, their Honours were meaning to say that time is allowed to make a decision, following arrest, about whether or not it is the intention to take the person before a court. Thirdly, we suggest it is inconsistent with what their Honours say at page 300, which is the passage which your Honours have already been invited to read, and we will not read it.

But the thrust of what their Honours were saying at 300 is that the suspicion on reasonable grounds will be sufficient for the arresting officer to proceed to charge the person and that is consistent also with what Sir Frederick Jordan said in Bales v Parmeter.

BELL J: If you look at the duty imposed under subsection (3) as importing the requirement for an intention to prefer a charge, how does that work with those provisions of subsection (b) that introduce powers to arrest that might be thought to go beyond the common law, for example, subsection (vii). If the officer has the reasonable suspicion that the person has committed the offence under (a), and is satisfied that it is reasonably necessary under (b)(vii):

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

and let us take an instance of police turning up to what appears to be the scene of a violent domestic dispute and while suspecting that the husband has committed an offence, not being of a mind to prefer any charge, but concerned in light of what is happening with harassment of the wife, one would think that the plain terms of the section would, in those circumstances, admit of arresting the husband.

MR TOOMEY: Well, if they are not – we submit not because there are other powers which could be invoked by the police officer to address the very problem that your Honour poses. There is, for example, the power which was considered by the New South Wales Court of Appeal in Smith, which was to detain a person at that point and obtain an interim apprehended violence order. That is one thing. Or there could be the common law power of arrest to prevent a breach of the peace, which would plainly be available in those circumstances.

BELL J: Does it follow from that answer, Mr Toomey, that you do not identify any provision in (b)(i) to (viii) that could not be exercised as part of the common law power of arrest?

MR TOOMEY: No, we do not identify any provision.

BELL J: I understand.

MR TOOMEY: May we deal very briefly with the suggested inconsistency – we have touched upon this already – between the test of suspicion on reasonable grounds contained in section 99(1)(a) and the requirement of a contemporaneous intention to charge the person. First of all, all the cases that we have referred to and some we have not, including Zaravinos, concern the test of reasonable suspicion but nevertheless recognise that the only purpose of an arrest was to take the person before a court to be dealt with according to law.

That was true both of the common law and of section 352 of the Crimes Act and of cognate provisions and it would be a remarkable thing indeed if it had escaped the attention of all courts for centuries that there was this glaring inconsistency between the recognised purpose of a power of arrest and the need for an arresting officer to have a belief in the guilt of the person being arrested.

The reason why it is not a problem and has not escaped the attention of the courts is because that does not properly pose the test under the tort of malicious prosecution. Your Honours have been taken already to A. We wish to take you briefly to some other passages which our learned friends did not. This is in the first volume of the authorities, page 513 of the report ‑ ‑ ‑

BELL J: I am sorry; what was the name of the case?

MR TOOMEY: A v New South Wales. It was the decision of this Court where a comprehensive review of the law of malicious prosecution was undertaken. At the foot of page 513, 351 of the book, it is said that the prosecutor’s:

state of belief is relevant to whether he had reasonable and probable cause to prosecute ‑

and the Court posed the question: what is the nature of the belief. It is recognised over the page that the question of what is reasonable and probable cause involves both an objective and a subjective test. At paragraph 43 over the page:

It is convenient, in this case, first to deal with the issue of reasonable and probable cause and, in that connection, the nature of the belief that is relevant –

and at the foot of the following page the Court recognised that the – I am reading from the last sentence:

The frequency of reference in the decided cases to whether the defendant prosecutor “believed” the plaintiff to be guilty of the crime alleged may be explained, at least in part, by reference to these considerations -

which precede that sentence but were that many of the cases focused upon what the functions of judge and jury were and were also concerned with a time when there was not an organised police force for the detection of crime and implicitly when the prosecutor was expected to have actual knowledge of the relevant facts upon which the charge is founded. At 519:

Even if a prosecutor is shown to have initiated or maintained a prosecution maliciously ‑

I am sorry, there is no need to take your Honours to that. At 520, this is at paragraph 58:

to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it?

At 59:

To ask whether a prosecution was commenced of maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced -

Then at the foot of 521 the point we were making earlier is made explicit – this is at the bottom of paragraph 62:

But until well into the twentieth century, most cases of malicious prosecution arose in circumstances where the prosecutor was to be supposed to have had personal knowledge of at least the central facts ‑ ‑ ‑

KIEFEL CJ: Mr Toomey, what do you say we get out of the malicious prosecution cases?

MR TOOMEY: We say, ultimately, what your Honours get from the malicious prosecution cases is that in cases where a police officer is acting on information provided by a third party, the test is not one of belief in the guilt of the person and in circumstances where a police officer is acting on information known personally to that police officer ‑ ‑ ‑

KIEFEL CJ: How does any of this assist us in the task essentially of construction which we have?

MR TOOMEY: Because this is a point put against us, your Honours, as to why ‑ ‑ ‑

KIEFEL CJ: Well, I think, Mr Kirk was asked the same question.

MR TOOMEY: In that case, I will not push against an open door, your Honour. The issue was dealt with squarely by Justices Mason and Brennan at page 300 of Williams. In our submission, section 105 of LEPRA upon which reliance is also placed, does nothing to derogate from or subvert the conventional purpose of an arrest for which we contend. As Justice Basten observed below - this is at core appeal book 85, paragraph 176 of his Honour’s judgment:

it is unclear why the conferral of an additional power to release following an arrest should be read as allowing an arrest for a purpose other than the conventional purpose.

We would embrace your Honour Justice Nettle’s observation earlier that section 105 is merely declaratory of law as it existed before. It is to deal with the argument that was regarded as absurd in Wiltshire v Barrett which appears in the authorities where it was posed – the question was posed what would a magistrate in a busy magistrate’s court be if a person were taken before him or her and told when asked what is the charge, there is none.

It is submitted against us, as we understand it, at least, that the literal fulfilment of the provisions of section 99(1)(a) and (b) is sufficient to render an arrest lawful. We submit that, were that so, it would lead to numerous readily foreseeable absurdities. One of them is serial arrests, which was one of the matters my learned friend raised. It is no answer, of course, we submit, to say but serial arrests would be in bad faith. They would not necessarily be in bad faith. It may well be said that they would only be in bad faith if the purpose for which the power of arrest exists, namely, that of taking a person before a court and charging them, is the recognised purpose of section 99, which is a purpose that the appellant apparently seeks to bypass.

EDELMAN J: How would you have serial arrests within the nine categories of 99(1)(b)?

MR TOOMEY: One might have the subparagraph (ix), the nature and seriousness of the offence, which we would observe in passing also could not ever be regarded, as a matter of grammar, as a purpose of arrest, the nature and seriousness of the offence.

EDELMAN J: But one would not usually construe words like “nature and seriousness of the offence” as sufficient to continually, without more, arrest somebody, for example, who has refused to answer questions at an interview.

MR TOOMEY: No, not continually, but it may be that there is a police officer who is diligent, yet ponderous, and who wishes to have the person there in case they decide whether to charge them. It is, perhaps, not the best example. There are other examples which we say would make the point more forcefully.

NETTLE J: Mr Toomey, I wonder if section 114(6) bears on the issue. Let me be more explicit. If it really is a matter of alternatives as the Chief Justice put to you – either release or take the subject before the magistrate forthwith or, alternatively, invoke the powers under Part 9 – then there really cannot be serial arrests that extend beyond the investigation period because of subsection (6).

MR TOOMEY: But it certainly bears upon the matter, your Honour, if Part 9 is being invoked.

NETTLE J: Yes.

MR TOOMEY: No question about it.

NETTLE J: If it is not being invoked we are ad idem, are we not, that there would be no warrant to retain the subject in custody? He would have to be released or taken before a magistrate.

MR TOOMEY: That is right. If it is not intended to take them before a magistrate that gives rise to the absurdity whereby the person is arrested and is simultaneously required to be released. That is the difficulty if the ‑ ‑ ‑

NETTLE J: I do not suppose that would happen very often, would it?

MR TOOMEY: No, but if the intention is not to charge when the arrest is performed and Part 9 cannot be invoked and no intention to take the person before the court exists, then they must be released as soon as they have been charged. It merely goes to demonstrate the absurdity of the construction which the appellant would put on this provision, namely that the literal fulfilment of (1)(a) and (b) is sufficient to render the arrest lawful.

Another difficulty is where a police officer has a positive intention not to charge the person for the suspected offence, but Part 9 is not to be invoked, that 99(1)(a) and (b) can be literally fulfilled. How could it be said that an arrest in those circumstances, notwithstanding the fact that the police officer suspects on reasonable grounds that the person has committed an offence and is satisfied that it is an offence of the gravest seriousness?

Notwithstanding that fact, how could the arrest be lawful if there was a positive intention not to charge, yet that is what the literal fulfilment would result in, and perhaps even more starkly a position where a person is suspected of having committed a summary offence but the police are out of time to prosecute for that summary offence, the time limitation being six months? All those things would obtain if the appellant’s submission that 99(1)(b) contains independent purposes for the exercise of the power of arrest is correct and that it is not necessary to intend to take the person before a court when the arrest is effected.

Finally, your Honours, we submit that this Court dealt in NAAJA with the purpose of an arrest and stated it very clearly at paragraph 23 in the judgment of your Honour the Chief Justice, Justice Bell and then Chief Justice French. This Court recognised in that decision that the purpose of arrest is that for which we contend and we submit, as it is conceded, that the principle of legality has an obvious application to the matter here under consideration and that the addition of the 99(1)(b) reasons or the insertion of 99(4), or the insertion of 105(3) into the Act could never be regarded as stating with the necessary clarity that the purpose of the power conferred by 99 is no longer that of taking a person before a court, indeed particularly so where subsection (3) itself requires that that be done.

I do need to deal very briefly, lastly, with the submission put against us regarding 99(4). Firstly, section 113 provides that Part 9 does not confer a separate power of arrest. Section 99(4) emphasises that Part 9 is only able to be invoked after a lawful arrest, and provides the anterior question and we submit that the principles propounded in Project Blue Sky do not undermine that.

It is made plain in the provision of 99(4) and section 113 that there is an anterior question, and that anterior question is the lawfulness of the arrest. Part 9 is not new either. Part 9 reflects, almost mirrors the provisions of Part 10A of the Crimes Act. And when Part 10A was introduced, in his second reading speech, the Attorney‑General, Mr Shaw, emphasised that it created “no new power of arrest” and that no arrest which had been unlawful before its insertion would be rendered lawful by its insertion. And that statement can be found at page 19 of the respondent’s book of further materials. Your Honours have already been taken to the Tink and Whelan report, where those gentlemen rejected requests for the creation of a power of an arrest to investigate.

On the facts of this case, the only possible view that can be taken of Mr Robinson’s arrest is that it was effected for the purpose of undertaking an investigation. The police officer did not have sufficient material to charge him when the arrest was ‑ ‑ ‑

KEANE J: Did not the primary judge decline to make that finding?

MR TOOMEY: The finding was made specifically by Justice McColl in the court below, and we do not understand it to be challenged on this appeal. The relevant findings ‑ ‑ ‑

NETTLE J: Paragraph 11.

MR TOOMEY: Paragraph 11 is the first, and then at 128 of her Honour Justice McColl’s judgment, the arrest of Mr Robinson “in order to interview him in relation to the reported breach of the AVO”. And then at paragraph 192, core appeal book 90, in Justice Basten’s judgment:

The case was run on the basis that whatever Constable Smith’s purpose in carrying out the arrest (assuming he had one) it did not

involve taking Mr Robinson before a court to be dealt with according to law, because he then had no intention to charge him.

Having regard to the reason for the conferral of the power of arrest, in the nature of that conferred by section 99, and having regard to the fact that there was no contemporaneous intention on the part of the police officer to put into effect that purpose, in our respectful submission, the arrest of Mr Robinson was, plainly, unlawful. May it please your Honours.

KIEFEL CJ: Yes, thank you, Mr Toomey. Anything in reply, Mr Kirk?

MR KIRK: Your Honours, four brief points in reply and I will deal with them in reverse order as raised. In relation to the purpose of arrest, if your Honours go to the core appeal book at page 21, paragraph 50, within Judge Taylor’s judgment – I think that might have been the passage your Honour Justice Keane was referring to – namely, that:

Constable Smith gave his reasons for the arrest . . . and a purpose of investigation was not one of them. It was not put to him that the purpose of the arrest was to investigate the offence or question Mr Robinson.

His Honour then went on to say:

While such a purpose would be improper there was nevertheless no evidence to support it.

We do not, respectfully, adopt that sentence. As I have put a number of times, the purpose of investigation simpliciter is not enough, in our submission, but a number of the reasons within 99(1)(b) encompass that purpose and there is nothing wrong with that. And, as I pointed out earlier in‑chief, the one ground of appeal from that decision of Judge Taylor was the one I identified at page 27, namely, there had been no formation of an intent to charge the plaintiff with any offence.

NAAJA, in relation to the North Australia Aboriginal Justice Association, I touched on that in‑chief but, briefly, in further response, the relevant issue there was resolving the tension within the statute between Division 4AA about enabling detention for up to four hours of people arrested on an infringement notice charge, and section 137, which was the provision about bringing as soon as practicable before an authorised person after being taken into custody.

The construction issue in the case was to resolve that tension between the provisions. The plurality that my friend referred to, at paragraph 23 and surrounding paragraphs, referred to the common law’s concern protected by the principle of legality about deprivation of liberty. That is the core concern and it touches back to what I put in‑chief. That does not mean you adopt any particular construction achieved in any previous case as appropriate for this statute here and nor did the plurality say you ignore all the other principles of construction, such as Project Blue Sky, reading in context, et cetera.

My final two points in reply are both about Part 9. Could I take your Honours, briefly, to section 116, page 34, of the first volume. In fact, can I go back to section 115. If one is within Part 9, there is to begin with a maximum investigation period of four hours; that is in 115(2). But there is actually another clock ticking as well, which is that set out in 115(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.

So there are two clocks running simultaneously. Section 116 then spells out what the relevant circumstances are for the 115(1) clock. Can I draw to attention section 116(2)(d):

whether the person has indicated a willingness to make a statement or to answer any questions.

One of the horror hypotheticals my learned friend invoked was arrest of someone who has indicated no willingness to make a statement. They have expressly said, “I am not going to say anything”. That would then be one of the relevant factors for the purposes of the ticking clock under 116.

That leads to the final point in reply. Your Honour Justice Edelman raised with my learned friend an example of where five persons are arrested and the police do not know which of them is the one but suspect at least one of them is. In terms of the time that is available, there is the first clock in 115(1) – that is, subject to a maximum of four hours. That four hours does not count the time excluded by section 117 and it may potentially be extended once, pursuant section 118, for up to eight hours. In summary, the time available under Part 9 is not insignificant but not endless and it is in that context that there is some time available to investigate, including whether to charge under 114(2).

My final point is not one in reply but in answer, if I may, to your Honour Justice Edelman’s question to me this morning. There is no New South Wales offence of fleeing the scene of the crime; that is the first point. The second point ‑ and we have handed your Honours a copy of this ‑ under section 52AB of the Crimes Act, there is a particular offence connected with motor vehicle accidents, for failing to stop and assist after an accident, causing death or GBH, and that is very specific.

Thirdly, and for completeness, we have also handed to your Honours an extract of LEPRA which did not make the book, sections 11 and 12, which is a slightly different point but I felt obliged to draw it to attention, in light of your Honour’s question. Under section 11 ‑ and this is from the relevant time period:

A police officer may request a person whose identity is unknown to the officer to disclose his or her identity if the officer suspects on reasonable grounds that the person may be able to assist in the investigation . . . because the person was at or near the place –

And section 12 makes it a very minor offence for failure to comply with the request “without reasonable excuse”. So first, that is, in a sense, broader than what is in section 99(1)(b) because it extends plainly to witnesses as well as people you suspect of the offence.

In theory, if a police officer requested someone they actually had thought was a suspect, “Well, what is your name?” and they declined, they could then be arrested for breach of section 12. But the much simpler view is that they would simply be arrested because they are reasonably suspected to be a suspect, 99(1)(a) and then they are within one of the reasons in 99(1)(b).

Indeed, were they to be arrested purportedly for breach of the minor offence in section 12 in circumstances where they were a suspect, one may well think that was not the real reason for the arrest. The real reason for the arrest is that set out in 99(1)(a) and (1)(b).

EDELMAN J: Can I just ask you a question that just goes back a step to the point you made about the operation of Part 9 together with 99(1)? To pick up on a point that Mr Toomey made, how would a scenario like this operate in your submission where the police have formed a positive intention to charge person A with a serious crime, say, murder, but there are other persons, person B and person C, who the police still reasonably suspect could have committed the murder but they have a much stronger suspicion about person A. Persons B and C may fall within one of the criteria in sub (b). For example, person B and C might be reasonably suspected of ‑ ‑ ‑

MR KIRK: Conspiracy.

EDELMAN J: Or harassment or it might even be the nature and seriousness of the offence, but there is a positive intention not to charge B and C. As I understand your submission, B and C can still be arrested, how does the reasonable practicability work and how does Part 9 work in such circumstances?

MR KIRK: First, you have to go back to the chapeau of 99(1)(b). The police officer has to be satisfied that the arrest is reasonably necessary for one of those nine reasons. So, it is not just you fall within the box. You have got to fall within a satisfaction based upon what is reasonably necessary. That is going to cut out a lot of conceivable rounds of potential abuse of the kind my friend was raising.

EDELMAN J: Assume it is reasonably necessary, in the example I gave, to prevent the interference with person A or another person who might give evidence.

MR KIRK: Then it is within power.

EDELMAN J: Pardon?

MR KIRK: Then it is within power. It is part of what was intended to be dealt with by the Parliament.

EDELMAN J: That is as I understood your submission, but my question is how does that work then with the criteria in subparagraph (3), because it would never be reasonably practicable to take the person before an authorised officer because there is no intention to charge them. What is the purpose of taking them before an authorised officer? And, would the time period, in Part 9, ever run?

MR KIRK: The time period in Part 9 is certainly going to run. That sets a cap on the maximum potential time that they can be detained and they can only be detained, pursuant to Part 9, if Part 9 processes are being invoked. That is not to say there is any particular formality about it. But if they are just sitting around doing nothing, then they are not going to be within, for example, 114(2):

detain a person for the purpose of investigating whether the person committed the offence for which the person is arrested.

If one looks at that, if there is no intent to investigate then you are not going to be within Part 9, and once the time – the maximum cap on time otherwise provided by 99(3), the time has come as soon as reasonably practicable to take them before an authorised officer, they must be released.

EDELMAN J: If there is no need nor intention to ever take them before an authorised officer because they have only been arrested to prevent harassment or interference with a person who may give evidence, there is no time limit at all.

MR KIRK: No, because there is the cap imposed by 99(3). Your Honour in your question to me, with respect, is presupposing 99(3) has no work to do if there is no intent to charge. Whether or not there is an intent to charge, 99(3) imposes an overriding requirement of action, as I said in‑chief, that they must be taken as soon as reasonably practicable before an authorised officer or as per the note released pursuant to section 105. So, there are two possible endpoints. You are either charged or you are released per 105 and this presents a cap as modified by Part 9 provisions but there is nothing outside of that.

NETTLE J: That rather departs from Justice Emmett’s formulation at paragraph 273. Yours is a much more ambitious submission than the one in which he resolved it.

MR KIRK: As Mr Herzfeld assists me that has to be read with, of course, paragraph 251, which is the paragraph my learned friend, Mr Toomey, took you to. But also, I do not shy from that submission. It is consistent with what your Honour Justice Bell was raising with Mr Toomey about the example of domestic violence – consistent with what I raised in‑chief, that one of the purposes here is that if the criteria are met you can just remove someone from the scene so they do not harass, so they – everything calms down, people are protected, et cetera, and then decisions are made as to how to proceed under either charging, investigating or releasing.

GAGELER J: My question is, how do you deal with Mr Toomey’s example of a positive intention not to charge?

MR KIRK: A positive intention not to charge?

GAGELER J: A catch‑and‑release policy?

MR KIRK: Well, first, if it is a matter of serial points I sought to deal with that in‑chief, but I do not think that is the point your Honour is raising with me specifically.

GAGELER J: No.

MR KIRK: So if it is just no intent whatsoever to charge, you still must – the officer must reasonably suspect that they have committed an offence ‑ ‑ ‑

GAGELER J: Of course.

MR KIRK: Section 99(1)(a). They must come within some 99(1)(b) category. The power must be exercised in good faith and in a legally reasonable way. As I put to Justice Edelman a moment ago, the police officer has to be satisfied that the arrest is reasonably necessary for one of those ‑ ‑ ‑

GAGELER J: I know, Mr Kirk – what I am really putting to you is the scenario where the police officer, upon arrest, would come under the duty under subsection (3) which involves charging, as I understand you to concede.

MR KIRK: Charge, investigate or release, with the ultimate cap.

GAGELER J: Well, to be dealt with according to law before a magistrate, you accept involves commencing proceedings before the magistrate?

MR KIRK: Yes.

GAGELER J: Where the police officer at the time of the arrest has no intention to comply with that duty – I put it the way I put it originally to you – has a positive intention not to comply with that duty, is that a valid arrest?

MR KIRK: I would cavil somewhat, with respect, with your Honour’s notion of a positive intent not to comply with the duty. Section 99(3) requires an action, as I put earlier in‑chief, not a mental state, it requires an action. You must, as soon as reasonably practicable, take them before an authorised officer to be dealt with according to law.

EDELMAN J: But not to do nothing.

MR KIRK: No, not to do – well, you can investigate as per Part 9. You can release under section 105. But there may be circumstances in which, for example, to prevent harassment or interference, you have just removed them from the scene. You think about whether you are going to charge, or you have already decided perhaps you are not going to charge, but it is best just to get this person out and that could arise actually in a circumstance, for example, where in a small town you know the couple. There is a couple who regularly have domestic violence instances – this is a well‑known fact of life in some places.

You know that you are probably not going to be able to charge the husband, if I can give the typical example, because you are not going to be able to get a statement. But you want him out of there for a few hours, for everyone’s sake. Now, that is not an unreasonable and that is a policy submission but consistently with intent, manifest in Tink/Whelan, it is a reasonably intended consequence that she may be able to remove them for a while.

KIEFEL CJ: Well, a police officer might think there might be difficulties with laying a charge that will hold but are not the choices which the police officer has under the Act either to have a present intention to charge or to intend to investigate so as to determine whether there is available a charge or not and that is the duty that the police officer is under but not to use the powers of arrest simply to detain someone and take them out of the picture.

NETTLE J: I might just add what the Chief Justice puts to you precisely accords with Justice Emmett’s formulation at 273.

MR KIRK: Not a complete answer, but can I just add one little factor to the equation. In 105(2)(b) one of the other reasons articulated for why a police officer may discontinue an arrest if it is appropriate to deal with the matter and some other matter including a warning or a caution or under the Young Offenders Act which makes particular provision for young offenders, so a police officer would be well aware of those possibilities and for a young person, for example, may well arrest them if the criteria are met but bearing in mind we are just likely to issue a warning or a caution without charging.

KIEFEL CJ: Well, I should have probably nuanced the first scenario to say, as the common law has always accepted, you have some time to determine how you are going to charge or deal with.

MR KIRK: Yes, correct.

KIEFEL CJ: So that is taken up in that first scenario.

MR KIRK: Correct.

KIEFEL CJ: There were only really the two scenarios available to a police officer.

MR KIRK: Yes. Can I perhaps ultimately answer the questions put to me this way? As is implicit in what your Honour Justice Nettle has put to me, quoting Justice Emmett, it is sufficient for the purposes of this case to say that would not be within power, for the reason articulated by Justice Emmett. That is not this case, it is not ‑ ‑ ‑

GAGELER J: What, sorry? Can you just explain why not?

MR KIRK: Because this is a case where he was unsure, Constable Smith was unsure whether he was going to charge. He arrested in the

circumstances I outlined earlier. And, to put it simply, wanted to find out his side of the story, and having heard his side of the story, decided not to charge. But there was no positive intent not to charge. There was no finding of that. It has never been suggested there was a positive intent in Constable Smith not to charge, at the time of arrest.

GAGELER J: Is another way of putting it that he was equivocal about whether or not he would perform the duty under subsection (3)?

MR KIRK: I accept he was unsure; he had not made up his mind. That is the core point, the one fact that matters in this case in a sense. He had not determined at the time of charging that there was no suggestion and no finding of a positive intent not to charge. Indeed, it was the subject of some argument below and I made that point, and it has not been contradicted, that there was no such finding.

To summarise that long‑winded answer, it is sufficient for this case, if I adopt the way his Honour Justice Emmett put it in a paragraph your Honour Justice Nettle drew to my attention ‑ that being said, there is something to be said for the argument that in light of the range of various possibilities, including under 105(2)(b), merely because you have decided you are not going to charge this person and thus take them before a magistrate, is not necessarily going to take you out of bounds. May it please the Court.

KIEFEL CJ: Thank you. The Court reserves its decision in this matter and adjourns until 9.30 am tomorrow for pronouncement of orders and otherwise until 10.00 am.

AT 3.27 PM THE MATTER WAS ADJOURNED

[2019] HCATrans 175

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