State of New South Wales v Smith

[2017] NSWCA 194

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

State of New South Wales v Smith [2017] NSWCA 194

Hearing dates:

23 November 2016

Decision date:

04 August 2017

Before:

McColl JA at [1];
Leeming JA at [176],
Sackville AJA at [180]

Decision:

(1)   Grant leave to appeal;

 

(2)   Appellant to file a notice of appeal in the form of the draft in the White Book within seven days of the making of these orders;

 

(3)   Appeal allowed in part;

 

(4)   Set aside the judgment entered in favour of the respondent for $39,858 and, in its place, enter judgment for the respondent, with effect from 22 April 2016, in the amount of $22,776;

 (5)   Appellant to pay the costs of the appeal.

Catchwords:

TORTS – false imprisonment – wrongful arrest – whether arrest of respondent unlawful – whether arresting police officer held requisite state of mind – whether police officer suspected on reasonable grounds that it was necessary to arrest respondent pursuant to Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99(3)(b) and (d)

 

TORTS – false imprisonment – wrongful arrest – whether arrest of respondent unlawful – whether at time of arrest police officer failed to inform respondent of his name and police station – when arrest occurred – whether sufficient act of arrest or submission – whether at time of arrest police officer failed to inform respondent of reason for exercise of power of arrest – whether statement “domestic incident” informed respondent of reason for exercise of power of arrest – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 201

  DAMAGES – false imprisonment – wrongful arrest – whether award of damages excessive – where award included aggravated and exemplary damages – whether ignorance of alternative non-custodial course of action to arrest respondent conscious wrongdoing in contumelious disregard of his rights

Legislation Cited:

Constitution Act 1902 (NSW)
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Criminal Code (Qld)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013 (NSW)
Law Enforcement (Powers and Responsibilities) Amendment Act 2014 (NSW)
Law Reform (Vicarious Liability) Act 1983 (NSW)
Migration Act 1958 (Cth)
Police Administration Act (NT)
Supreme Court Act 1970 (NSW)

Cases Cited:

Abbassy v Commissioner of Police of the Metropolis [1990] 1 All ER 193
Christie v Leachinsky [1947] AC 573
Darcy (bht Diane Aldridge) v State of New South Wales [2011] NSWCA 413
Director of Public Prosecutions (NSW) v CAD [2003] NSWSC 196
Donaldson v Broomby (1982) 60 FLR 124
Dowse v State of New South Wales (2012) 226 A Crim R 36; [2012] NSWCA 337
Fleet v District Court of New South Wales [1999] NSWCA 363
George v Rockett (1990) 170 CLR 104; [1990] HCA 26
Goldie v Commonwealth of Australia (No 2) [2004] FCA 156; (2004) 81 ALD 422
Hussien v Chong Fook Kam [1970] AC 942
Hyder v Commonwealth of Australia (2012) 217 A Crim R 571; [2012] NSWCA 336
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Johnstone v State of New South Wales (2010) 202 A Crim R 422; [2010] NSWCA 70
Lake v Dobson (Court of Appeal (NSW), 19 December 1980, unrep)
Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262
Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54; [2003] FCAFC 70
New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419
New South Wales v McCarthy (2015) 251 A Crim R 445; [2015] NSWCA 153
New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276
O’Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286
Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334
Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441
Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; [1966] HCA 21
R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540
Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48
Ruddock v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262
Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134; [1980] HCA 49
State of New South Wales v Bouffler [2017] NSWCA 185
State of New South Wales v Corbett (2007) 230 CLR 606; [2007] HCA 32
State of New South Wales v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303
State of New South Wales v Delly [2008] HCATrans 226
State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208
State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334
State of New South Wales v Zreika [2012] NSWCA 37
Talacko v Bennett [2017] HCA 15; (2017) 91 ALJR 564
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Trobridge v Hardy (1955) 94 CLR 147; [1955] HCA 68
Walter v Alltools Ltd (1944) 171 LT 371
Warwick v Foulkes (1844) 152 ER 1298
Watson v Marshall (1971) 124 CLR 621; [1971] HCA 33
Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88
Wilson v New South Wales (2010) 207 A Crim R 499; [2010] NSWCA 333
Wilson v New South Wales [2011] HCATrans 218
Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320

Texts Cited:

Second Reading Speech, Law Enforcement (Powers and Responsibilities) Bill, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2002

Category:

Principal judgment

Parties:

State of New South Wales (Appellant)
Peter Graham Smith (Respondent)

Representation:

Counsel:
JE Maconachie QC and HN Newton (Appellant)
D Hooke SC and S Priestley (Respondent)

  Solicitors:
Crown Solicitors (Appellant)
James Fuggle Rummery (Respondent)

File Number(s):

2016/140196

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2016] NSWDC 55

Date of Decision:

22 April 2016

Before:

Levy SC DCJ

File Number(s):

2014/354589

HEADNOTE

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

The applicant, the State of New South Wales (SNSW), sought leave to appeal and to appeal against a decision of his Honour Judge Levy SC awarding the respondent, Peter Smith, damages in the amount of $39,858 for wrongful arrest and false imprisonment, an award which included aggravated and exemplary damages. Mr Smith’s arrest was effected by two officers of the New South Wales Police Force, Senior Constable Graeme Tye and Senior Constable Gary Stubbings, at about 9.20pm on 20 May 2012, following a complaint to police by Mr Smith’s former wife, Mrs Smith. Earlier that evening, Mr and Mrs Smith had had an altercation concerning him returning to her two of their children with whom he was exercising custodial rights.

At about 6.30pm that evening, Senior Constable Tye, who was stationed at Woodenbong Police Station, a one officer police station, received a call alerting him to Mrs Smith’s desire to report a malicious damage incident. He drove to Legume, a town near, but south of, Mr Smith’s property, in order to interview Mrs Smith. In her statement, Mrs Smith alleged that during the altercation between herself and Mr Smith, he had approached the vehicle in which she was seated with two other children, and struck the windscreen with the metal head of a wooden handled tool, ultimately causing it to break and pieces of glass to fly towards her, following which she drove away.

Based on Mrs Smith’s allegations, Senior Constable Tye formed the opinion that domestic violence-related malicious damage had occurred, that he should visit Mr Smith and that he should obtain a provisional apprehended domestic violence order (PAVO) to serve on him, but only after he was arrested and transported to the police station in Woodenbong. Due to the nature of the visit and the need for the presence of a second officer for “officer safety”, he had to wait in Legume until about 9.10pm for Senior Constable Stubbings to arrive. During this period he ascertained that Mr Smith had no prior criminal history in New South Wales and no registered firearms. The two officers then attended Mr Smith’s home and requested his presence at the front door to his house. When he went to the front door, Senior Constable Tye told him he was under arrest for an alleged “domestic incident”. Mr Smith, who was dressed in his pyjamas, asked if he could change into more suitable clothing, following which he was subjected to a pat-down search. The officers took him to Woodenbong Police Station where he remained for 3 hours and 40 minutes before being released on bail. While there, Mr Smith was charged with an offence under s 195(1)(a) of the Crimes Act 1900 (NSW) and given a PAVO issued pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Mr Smith was ultimately convicted of the charge brought pursuant to s 195(1)(a). He commenced proceedings against the SNSW, claiming that his arrest, and therefore his subsequent detention and imprisonment, were unlawful because first, the arresting police had not complied with the provisions of s 201(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), secondly, there was no basis to support, on reasonable grounds, the claim that his arrest was necessary for any of the purposes specified in s 99(3) of the LEPRA, and thirdly, there was an alternative, non-custodial, course available to the arresting officers to deal with the situation and Mr Smith under s 89 of the Crimes (Domestic and Personal Violence) Act.

The primary judge upheld Mr Smith’s claim. He concluded Senior Constable Tye had arrested Mr Smith for reasons of administrative convenience. His Honour held that, in breach of s 99(3) of the LEPRA, Senior Constable Tye had not suspected on reasonable grounds that it was necessary to arrest Mr Smith without a warrant and, further, in breach of s 201 of the LEPRA, at the time of his arrest Senior Constable Tye had not informed Mr Smith of his name or the reason for his arrest.

The principal issues on appeal were:

(i) Whether Senior Constable Tye suspected on reasonable grounds that it was necessary to arrest the respondent for one of the reasons set out in s 99(3)(b) and (d) of the LEPRA.

(ii) Whether the arrest was in breach of s 201 of the LEPRA, and therefore unlawful, by reason of Senior Constable Tye’s failure to:

a.   inform the respondent of his name and police station at the time of the arrest (s 201(1)(b)); or

b.   inform the respondent of the reason for the exercise of the power of arrest (s 201(1)(c)).

(iii)   Whether the damages awarded by the primary judge were excessive.

Held, granting leave to appeal and allowing the appeal in part per McColl JA (Leeming JA and Sackville AJA agreeing):

As to issue (i):

(1) The correct test for whether arrest is necessary for one of the s 99(3) purposes is whether the SNSW establishes that (i) the arresting officer honestly believed that the arrest was necessary for one of the purposes set out in s 99(3); and (ii) the decision to arrest, when reviewed afterwards according to the information known to the arresting officer at the time of the arrest, was made on reasonable grounds: [112].

State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334 applied.

(2) Suspicion in relation to s 99(3) matters, based on reasonable grounds, involves less than a reasonable belief but more than a mere possibility. Reasonable suspicion is not something that is arbitrary in nature: [116], [118].

George v Rockett (1990) 170 CLR 104; [1990] HCA 26; R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540 referred to.

(3) Whether a person holds the relevant state of mind turns on both a subjective test (whether that person held the belief referred to in the relevant provisions) and an objective test, namely whether the facts and circumstances known to the relevant person constituted objectively reasonable grounds for those beliefs, sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the subject matter of the belief: [119] – [121].

Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48; Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441 applied.

State of New South Wales v Bouffler [2017] NSWCA 185 referred to.

(4) While suspicion may include an element of surmise or speculation, those matters must have a factual basis: [115] – [118].

George v Rockett (1990) 170 CLR 104; [1990] HCA 26; R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540 applied.

(5) The primary judge did not err in concluding that Senior Constable Tye did not hold the requisite suspicion on reasonable grounds that the respondent’s arrest was necessary for the purposes of s 99(3)(b) and (d): [124], [132], [133], [177], [181], [182].

As to issue (ii)(a):

(1) The requirements for an arrest are (1) communication of intention to make an arrest, and (2) a sufficient act of arrest or submission: [137].

(2) The process of arrest was completed at the time Senior Constable Tye told the respondent he was under arrest and the respondent asked whether he could get his clothes, which was a sufficient act of submission: [139], [176], [188].

Wilson v New South Wales (2010) 207 A Crim R 499; [2010] NSWCA 333; Watson v Marshall (1971) 124 CLR 621; [1971] HCA 33 applied.

As to issue (ii)(b):

(1) A person is, prima facie, entitled to his or her freedom and is only required to submit to restraints on that freedom if he or she knows in substance the reason why it is claimed that restraint should be imposed. The question whether sufficient information concerning the reason for such restraint has been given has to be assessed objectively having regard to the information which is reasonably available to the officer: [143] – [146].

Christie v Leachinsky [1947] AC 573; New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419 applied.

Abbassy v Commissioner of Police of the Metropolis [1990] 1 All ER 193; Johnstone v State of New South Wales (2010) 202 A Crim R 422; [2010] NSWCA 70 referred to.

(2) The primary judge did not err in finding that Senior Constable Tye failed to inform the respondent of the reason for his arrest at the time of the arrest: [148], [149], [176], [188].

As to issue (iii):

(1) The tort of wrongful imprisonment focuses on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant. A substantial proportion of the ultimate award of damages for false imprisonment must be given for what has been described as the initial shock of being arrested: [153] – [157].

(2) An appellate court will not disturb an award of damages for trespass and false imprisonment unless it is convinced that the primary judge has acted on a wrong principle of law, has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered: [159].

(3) The primary judge did not err in his award of compensatory damages, including an amount for aggravated damages: [163] – [164].

Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48; Goldie v Commonwealth of Australia (No 2) [2004] FCA 156; (2004) 81 ALD 422; Ruddock v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262; Watson v Marshall (1971) 124 CLR 621; [1971] HCA 33; New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 referred to.

(4) Exemplary damages are awarded as a punishment to the guilty, are awarded rarely and not every finding of fault warrants an award: [167].

State of New South Wales v Zreika [2012] NSWCA 37 applied.

(5) The respondent did not establish that Senior Constable Tye’s ignorance of a s 89 alternative course of action represented a conscious wrongdoing in contumelious disregard of the respondent’s rights, nor was it a product of a police training issue as opposed to being the product of ordinary human fallibility. Accordingly, an award of exemplary damages was not appropriate: [169], [176], [188].

State of New South Wales v Zreika [2012] NSWCA 37; State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 referred to.

**********

​TABLE OF CONTENTS

Statement of the case - paragraph 10

Circumstances leading to arrest - paragraph 12

The arrest - paragraph 17

Events following the arrest - paragraph 32

Legislative framework - paragraph 37

Primary judgment - paragraph 45

Wrongful arrest and false imprisonment - paragraph 49

Reasons for the arrest - paragraph 51

The time the arrest was completed - paragraph 54

Non-compliance with s 201 - paragraph 56

Non-compliance with s 99(3) - paragraph 59

Available alternatives to arrest - paragraph 69

Damages - paragraph 72

Issues on appeal - paragraph 76

SNSW’s submissions - paragraph 77

Respondent’s submissions - paragraph 94

Consideration - paragraph 102

LEPRA, s 99 - paragraph 108

Necessary - paragraph 111

Suspect - paragraph 113

Reasonable grounds - paragraph 119

Section 99(3) conclusion - paragraph 124

LEPRA, s 201

Arrest - paragraph 137

Supplying the reason for the exercise of the power of arrest - paragraph 143

Damages - paragraph 153

Conclusion - paragraph 171

Orders - paragraph 175

Judgment

1. McCOLL JA: The applicant, the State of New South Wales (SNSW), seeks leave to appeal and to appeal against a decision of his Honour Judge Levy SC awarding the respondent, Peter Smith, damages in the amount of $39,858 for wrongful arrest and false imprisonment, an award which included aggravated and exemplary damages. [1]

   1. Smith v State of New South Wales [2016] NSWDC 55.

2. This is the concurrent hearing of the SNSW’s application for leave to appeal and the appeal. Leave to appeal is required because the primary judgment does not involve a matter in issue amounting to or of the value of $100,000 or more. [2]

   2. Supreme Court Act 1970 (NSW), s 101(2)(r).

3. The trial from which leave to appeal is sought concerned proceedings the respondent brought against the SNSW, claiming general compensatory, aggravated and exemplary damages for wrongful arrest and false imprisonment in respect of his arrest at about 9.20pm on 20 May 2012 following a complaint to police by his former wife. The complaint concerned an incident she said had occurred earlier that evening in which she alleged the respondent broke the windscreen of her car while she and two children were inside it.

4. After his arrest the respondent was taken to a police station where he remained for 3 hours and 40 minutes. [3] While there, he was charged with an offence under s 195(1)(a) of the Crimes Act 1900 (NSW), given a provisional apprehended domestic violence order (PAVO) issued pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (Domestic and Personal Violence Act) then granted bail.

   3.    Primary judgment (at [58]).

5. The primary judge upheld the respondent’s claim because he concluded, in short, that, in breach of s 99(3) of the Law Enforcement (Powers and Responsibilities)Act 2002 (NSW) (LEPRA), the arresting police officer had not suspected on reasonable grounds that it was necessary to arrest the respondent without a warrant and, further, in breach of s 201 of the LEPRA, at the time of his arrest the arresting police officer had not informed the respondent of his name or the reason for his arrest.

6. Although the amount in issue is not large, as in State of New South Wales v Robinson,[4] the Court was informed of the parties’ agreement that there are between 12 and 17 matters pending before New South Wales courts in which, in answer to allegations of wrongful arrest and false imprisonment, the SNSW has pleaded s 99(3) of the LEPRA. The SNSW contended that the issues of the proper construction of the LEPRA raised in this matter are relevant to the defences filed in those matters.

   4. (2016) 93 NSWLR 280; [2016] NSWCA 334 (SNSW v Robinson) (at [25]) per curiam (Beazley P, Payne JA and Sackville AJA).

7. The form of s 99 relevant to the present case was amended with effect from 16 December 2013. The respondent relied on the amendments to oppose leave to appeal on the basis that the construction of the former provisions could not have any continuing significance. Insofar as it might be thought that leave to appeal should be granted because of policy considerations concerning the exercise of the power of arrest, the respondent submitted the SNSW should bear the costs of the proceedings no matter the outcome.

1. It is apparent that the proper construction of s 99 of the LEPRA in the form it took at the time of the respondent’s arrest will arise in some, if not all, of the cases referred to in the agreed statement. [5] Its proper construction and application, accordingly, involves issues of principle and a question of general public importance. [6] The case concerns the exercise by the Police Force of its statutory powers of arrest. Courts should be assiduous to ensure that the police exercise those powers in accordance with law,[7] and that legislation “intended to achieve a balance between protecting the individual against unjustified arrest or detention and protecting members of the community, including those who are vulnerable to acts of violence, against the threat of imminent criminal conduct” be properly construed. [8]

   5.    Cf SNSW v Robinson (at [25]).

   6. Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 (at [12]) per Bathurst CJ (Macfarlan and Barrett JJA agreeing).

   7. See Donaldson v Broomby (1982) 60 FLR 124 (at 126) per Deane J; Fleet v District Court of New South Wales [1999] NSWCA 363 (at [74]) per curiam (Mason P, Priestley and Handley JJA); Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320 (Zaravinos) (at [22]) per Bryson JA (Santow JA and Adams J agreeing).

   8.    SNSW v Robinson (at [26]).

2. I would accordingly grant leave to appeal. For the reasons that follow, I would uphold the appeal in part, but only on the basis that the primary judge erred in awarding the respondent exemplary damages.

Statement of the case

10. At approximately 9:20pm on Sunday 20 May 2012, the respondent was at home with his wife and their two children on their isolated rural property near the town of Legume, in northern New South Wales. The property was approximately two kilometres south of the Queensland border. [9]

    9.    Primary judgment (at [11]).

11. At that time, two officers of the New South Wales Police, Senior Constable Graeme Tye and Senior Constable Gary Stubbings, attended the respondent’s home and requested his presence at the front door to his house. When the respondent went to the front door, Senior Constable Tye told him he was under arrest. The officers took him to Woodenbong Police Station. As I have said, he remained there for 3 hours and 40 minutes before being released on bail.

Circumstances leading to arrest

12. The circumstances leading to the respondent’s arrest arose out of what the primary judge described as “longstanding interpersonal difficulties” between the respondent and his ex-wife, Cheryl Smith. [10] The respondent and Mrs Smith had four children during the course of their marriage. At the time of the events in question, the three surviving children of that marriage were aged 10, 12 and 18 years, the youngest two of whom lived with Mrs Smith. The respondent was entitled to access visits with his youngest children pursuant to an informal shared custody arrangement. As some animosity had been expressed by Mrs Smith towards the respondent’s second wife, Mrs Smith was prohibited from entering the respondent’s property. Accordingly, in order to exercise his access rights, the respondent picked up the children and dropped them off at an agreed location near Mrs Smith’s home, in Killarney in Queensland. Her home was about 7.5 kilometres, and a less than 10 minute drive, from the respondent’s home. [11]

    10.    Ibid (at [69]).

    11.    Ibid (at [86]).

13. On 20 May 2012, at a time when the respondent was exercising his right of access to his children, at about 5:25pm, and apparently contrary to their earlier arrangements, Mrs Smith drove from Queensland, partly onto the respondent’s property, to seek to collect the two children. Despite the fact Mrs Smith was not supposed to enter his property, she drove to a point just past a cattle grid at the entrance to where the respondent’s parked truck blocked further vehicular access. A verbal altercation then occurred between the two during which the respondent said the children would stay with him until they had finished their evening meal, and that he would then return them home. This caused some dissatisfaction on the part of Mrs Smith.

14. According to the respondent’s evidence, Mrs Smith drove away after the verbal exchange. He said that between 8:00pm and 8:30pm on the evening in question, in accordance with the pre-existing drop-off arrangements, and after the children had finished their dinner, he drove them to a corner store near their home in Killarney in Queensland, and dropped them there so they could walk to their mother’s house, about 100 metres away. He did not see his ex-wife at that time.

15. At about 6.30pm on 20 May 2012, Senior Constable Tye, who was stationed alone at Woodenbong, a one officer police station, received a call over the police radio alerting him to Mrs Smith’s desire to report a malicious damage domestic incident. He then drove from Woodenbong to Legume in order to interview Mrs Smith. The town of Legume is about 10 kilometres from her home, but south of the respondent’s property. Mrs Smith drove from Killarney in Queensland for the purpose of making a statement to the police.

16. In that statement, Mrs Smith alleged that during the verbal altercation between herself and the respondent at the entrance to his property, approximately 2 hours earlier he had approached the vehicle in which she was seated with two other children she had had from subsequent relationships. She claimed that he had struck her vehicle a number of times with the metal head of a wooden handled tool, ultimately causing the glass windscreen of her vehicle to break and pieces of glass to fly towards her, following which she drove away. She said she was “fearful for her safety, and that she didn’t want [the respondent] to be able to approach her.” In her statement to police, she formally applied for an apprehended domestic violence order (ADVO) against the respondent. She did not express any fear that the respondent was likely to turn up at her house and commit an act of violence.

The arrest

17. Senior Constable Tye formed the opinion that, based on Mrs Smith’s allegations, domestic violence-related malicious damage had occurred. He therefore concluded that he should visit the respondent. Senior Constable Tye had determined to obtain a PAVO to serve on the respondent, but only after he was arrested and transported to the police station. [12] Senior Constable Tye stated that as the visit was for a “domestic matter”, for reasons of officer safety, he had to wait in Legume about half an hour until about 9:10pm for Senior Constable Stubbings to arrive from Tabulam (where he was, it appears, in charge of another one officer police station), before going to the respondent’s property. This was because, in domestic matters, it was usual to have a second officer present “for officer safety”.

    12.    Ibid (at [138]).

18. While he was waiting, Senior Constable Tye ascertained that the respondent had no prior criminal history in New South Wales, and that he had no registered firearms. During this period, there was nothing to stop the respondent from driving to Mrs Smith’s house without Senior Constable Tye’s knowledge. Indeed, as I have recorded, during this period, the respondent dropped the children near Mrs Smith’s house.

19. At the time Senior Constable Tye went to the respondent’s house, he believed there had been no contact between the couple since the incident about 4 hours earlier of which Mrs Smith complained.

20. The primary judge did not set out in his reasons the respondent’s evidence of the conversation he had with the police officers at the time of, and shortly after, the events which took place when he came to the door. The parties accepted that the following evidence the respondent gave in chief and in cross-examination records his account.

21. The police officers attended at the respondent’s home and requested his presence at the front door to his house. The respondent went to the front door dressed in his pyjamas. His evidence of what happened, which the primary judge accepted, was:

“Q.   Do you remember the words they used with any more particularity than that?

A.   Basically to the effect that, yeah, they were there to arrest me. They’d received a complaint from my ex-wife.

Q.   What did you say to that?

A.   I was just in a state of shock. I sort of didn’t expect to be arrested as soon as I opened the door.

Q.   What did you say to them?

A.   I asked them to identify themselves.

Q.   What did they say when you asked them to identify themselves?

A.   They said their uniform was their identification.

Q.   Did you say anything back to that?

A.   Yeah, I asked them which State they were from, whether they were from New South Wales or from Queensland.

Q.   What did they say?

A.   They said they were from New South Wales.

Q.   What was the next thing that was said, or happened?

A.   They said they had to arrest me, and to take me down to the station at Woodenbong. Well they didn’t actually to Woodenbong, they said they’d take me to the station.

Q.   What did you say?

A.   I asked them if I could get dressed.

Q.   Did they allow that?

A.   Excuse me?

Q.   Did the police allow that?

A.   Yes.”

and in cross-examination:

“Q.   What I want to suggest to you is that when you opened the door, Senior Constable Tye said words to the effect ‘Peter, you’re ex-missus has made an allegation of a domestic incident so right now you’re under arrest and you have to come with us to the station.’ Do you agree that he said words to that effect?

A.   Something like that, yes.

Q.   Then you said, ‘Well can I go and get changed?’ and that was the first thing you said. As soon as he said that you interrupt and said, ‘Can I get changed?’?

A.   I did ask them to identify themselves.

Q.   I want to suggest to you that that occurred later. But at that point after that initial statement by Senior Constable Tye you effectively interrupted him and said, ‘Can I go and get changed at least?’ or words to that effect?

A.   I would be fairly confident to say that I asked them to identify themselves.

Q.   Well you say you’re fairly confident?

A.   Yeah.

Q.   You’re expressing some doubt about that now?

A.   Well no, not really, no.

…

Q.   Well what I’m – the proposition that I’m putting to you is that you didn’t say that when you – when they first came to the door. Rather you – after he’d said words to the effect ‘And you have to come back with us to the station’, you then spoke and said, ‘Well can I at least get changed?’ or words to that effect and then they said, ‘Yeah, that’s fine.’ And you then closed the door or – and walked back to your room and went and got changed. Do you agree with that?

A.   Not all of it, no.

Q.   What’s the part that you disagree with?

A.   I agree with the bit that I closed the door and I went back to my room and got changed.

…

“Q.   As you came out in your change of clothing, before the police had had an opportunity to speak to you, you said words to the effect of ‘Aren’t you going to read me my rights or something?’?

A.   Yes.

Q.   Senior Constable Tye said to you ‘Yeah, well if you sit still long enough to speak to’ – sorry ‘Yeah, when you sit still long enough to speak to’ and then he said words to the effect

‘So Peter, my name is Senior Constable Tye from Woodenbong Police. As I said you’re under arrest for an alleged domestic incident with your ex-wife. You don’t have to say or do anything but anything you do say or may - or do may be recorded and can later be used as evidence. Do you understand?’

And you said words to the effect of ‘Yes’. Do you agree that that is the words to effect of what occurred at your door?

A.   Basically, yeah.” [Emphasis added.]

22. The primary judge concluded for reasons it is unnecessary to reproduce, that the respondent’s account of his exchanges with the police was more likely to be accurate and correct than the account by the police officers. The SNSW does not challenge that finding.

23. Senior Constable Tye gave evidence in cross-examination as to the situation following the exchange I have emphasised in [21]:

“Q.   At that point in time, of course, he was under arrest, wasn’t he?

A.   Yes, I told him he was under arrest.

Q.   You had arrested him, he wasn’t free to go?

A.   He wasn’t free to leave the house, but we let him go back inside to get dressed.

Q.   He wasn’t free to go anywhere you didn’t permit him to go; he was under arrest?

A.   Yes.

Q.   And he was under arrest and you had not told him your name at that stage, had you?

A.   No.

Q.   And you had not told him from what station you came?

A.   No.

Q.   Apart from the description, domestic incident, you hadn’t told him what he was under arrest for, had you?

A.   No.” [Emphasis added.]

24. After the respondent returned to the front door after changing into more suitable clothing, he was subjected to a pat-down search. He was then escorted to the nearby police wagon by both officers, one of whom placed his hand behind the respondent’s elbow to guide him towards the vehicle. He was placed in the locked rear caged section of the wagon and driven for about 45 minutes to Woodenbong Police Station.

25. On arrival, the respondent was asked if he wanted to provide a formal statement. He was informed that if he did it would be necessary for him to be taken to the police station at Lismore, which would have involved a further 90 minute journey in the back of the police wagon. That was apparently necessary as Woodenbong Police Station did not have facilities to record a video statement. The respondent declined the offer of transportation to Lismore. He was placed in an enclosed lock-up area within the single room police station at Woodenbong.

26. At about 12.49am on 21 May 2012, the respondent was charged and given a court attendance notice in relation to an offence contrary to s 195(1)(a) of the Crimes Act, for allegedly intentionally or recklessly destroying or damaging property, namely the windscreen of his ex-wife’s vehicle. Whilst at the police station, he was also served with a PAVO. When he was served with that documentation, he was required to agree to comply with the terms and directions of that order. After he did so, he was released on bail.

27. The PAVO served on the respondent was based on three factual allegations. The first was that on 20 May 2012 the respondent had, according to his ex-wife, taken two of their children in common and that “he was keeping them”. The second was that, on the same day, a heated argument had ensued between the respondent and his ex-wife on that subject. The third was that in the course of that argument, the respondent had maliciously damaged the windscreen of his ex-wife’s vehicle with an implement. [13]

    13.    Ibid (at [53]).

28. The primary judge summarised the circumstances of the respondent’s detention as follows:

“[57] The commencement of the plaintiff’s detention occurred when he was placed under arrest at about 21:20 hours. The journey by road to the police station at Woodenbong started at 21:30 hours and the arrival time at Woodenbong was 22:20 hours. At the police station, the plaintiff was cautioned under Pt 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 and he was formally assessed by Senior Constable Stubbings in his capacity as custody manager, at 22:38 hours: Exhibit ‘1’, pp 16 – 18. The caution process took about 2 minutes: Exhibit ‘1’, p 21. At 12:54 hours, after having been served with the apprehended domestic personal violence order at 00:30 hours on 21 May 2012, the plaintiff provided his signature on a bail undertaking before being released from police custody: Exhibit ‘1’, pp 38 – 39.”

29. The respondent was released from police custody at about 1:00am on 21 May 2012.

30. Upon his release on bail, the respondent was told that he could go home. He was also told that he could not be driven home by police, and that his wife should come to Woodenbong to collect him. The respondent then told the police officers that his wife had no experience of driving at night. In those circumstances, it would also have been unreasonable to require the respondent’s wife to make the 45 minute road journey to Woodenbong to collect him, bearing in mind the hour, and the fact that she was also responsible for the care of two infant children, who would ordinarily have been sleeping at that time. Ultimately the respondent was returned to his home by police at 2.30am on 21 May 2012.

31. Until the subject arrest, the respondent did not have a criminal record, or any history of adverse involvement with police. He had never been arrested before. [14]

    14.    Ibid (at [63]).

Events following the arrest

32. On 15 June 2012, the respondent attended the Local Court pursuant to a notice to attend to answer the charge brought pursuant to s 195(1)(a) of the Crimes Act relating to the windscreen damage. After a contested hearing, he was convicted. An appeal to the District Court from that conviction was dismissed, and his conviction and the resultant penalty were confirmed. [15]

    15.    Ibid (at [90]).

33. The respondent commenced proceedings against the SNSW, claiming damages for alleged wrongful arrest and false imprisonment. He claimed that he was arrested on sight, wrongfully, by the police officers, on the basis of a disputed allegation of domestic violence made against him by Mrs Smith, without the police having beforehand ascertained his version of events, or having properly considered available alternatives to arrest.

34. The respondent sought compensatory damages to recognise the offence and indignity to his rights caused by his unlawful arrest and wrongful imprisonment. He particularised this claim by reference to the facts that, at the time of his arrest, he was 49 years of age and had never before been arrested by police; that he was imprisoned for a period of about 3 ½ hours; and that the conduct complained of resulted in his loss of liberty whilst imprisoned; humiliation, embarrassment and loss of dignity; harm to reputation; anxiety, emotional distress and mental anguish; feelings of being intimidated and coerced by police; and fear of the behaviour and conduct of the police being repeated.

35. The respondent also sought aggravated damages for the unlawful arrest and wrongful imprisonment by reason of the fact that whilst he was under arrest at his home he was subjected to a frisk search by Senior Constable Tye and the fact that his arrest was observed by his wife, all of which he alleged aggravated his humiliation, embarrassment, loss of dignity, his anxiety, emotional distress and mental anguish and his feelings of being intimidated and coerced by police.

36. Finally, the respondent also sought exemplary damages on the bases that the conduct of which he complained showed a contumelious disregard of his rights and was held in high approbation by the law, by reason of the fact that the New South Wales Police Force had failed to acknowledge the unlawfulness of the conduct of its police officers. He asserted that an award of such damages was a means of the Court conveying to the SNSW the need to take all such steps as were necessary or appropriate to train members of the Police Force sufficiently as to the correct procedures relating to arrest and the recognition of people's rights, which have not been observed in respect of him.

Legislative framework

37. The SNSW is vicariously liable for the tortious conduct of police officers pursuant to s 8(1) of the Law Reform (Vicarious Liability) Act 1983 (NSW).

38. Section 4 of the LEPRA “expressly presuppose[s] the continued existence of the police officer’s powers at common law.”[16] Neither party sought to point to any common law power to support, or detract from the legality of the respondent’s arrest. That issue therefore turns on the powers conferred on police officers by the LEPRA.

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

37. At the time of the arrest, the relevant provisions of the LEPRA were as follows. [17]

    17. Section 99 of the LEPRA was substantially amended by the Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013 (NSW) with effect from 16 December 2013. Section 201 of the LEPRA was substantially amended by the Law Enforcement (Powers and Responsibilities) Amendment Act 2014 (NSW), Sch 2 [1] with effect from 1 November 2014. Neither party suggests the amended provisions cast any light on the interpretation of s 99 and s 201 as in force on 20 May 2012. For convenience, I refer to the relevant provisions in present tense.

38. Part 8 of the LEPRA deals with “Powers relating to arrest”. At the time of the events in question, s 99 in Part 8 provided:

“99 Power of police officers to arrest without warrant

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

(a)    the person is in the act of committing an offence under any Act or statutory instrument, or

(b)    the person has just committed any such offence, or

(c)    the person has committed a serious indictable offence for which the person has not been tried.

(2)    A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument.

(3)    A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:

(a)    to ensure the appearance of the person before a court in respect of the offence,

(b)    to prevent a repetition or continuation of the offence or the commission of another offence,

(c)    to prevent the concealment, loss or destruction of evidence relating to the offence,

(d)    to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,

(e)    to prevent the fabrication of evidence in respect of the offence,

(f)    to preserve the safety or welfare of the person.

(4)    A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.”

41. The case was conducted on the basis that it was Senior Constable Tye’s state of mind which was relevant for the purposes of s 99. [18]

    18. Cf State of New South Wales v Bouffler [2017] NSWCA 185 (SNSW v Bouffler) (at [47]) per curiam (Beazley ACJ, Ward and Gleeson JJA).

42. Section 201 is contained in LEPRA, Pt 15 (Safeguards relating to powers). At the time of the respondent’s arrest, it relevantly provided:

“201 Supplying police officer’s details and giving warnings

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

(a)    evidence that the police officer is a police officer (unless the police officer is in uniform),

(b)    the name of the police officer and his or her place of duty,

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

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

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

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

.…

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

(a)    a power to search or arrest a person, …”

43. In the Second Reading Speech made on the introduction of the Law Enforcement (Powers and Responsibilities) Bill, the Attorney General, the Hon Bob Debus, said of Pt 15:

“The application of the safeguards contained in part 15 of the bill represents the classification of the common law requirement that persons must be told of the real reason for their arrest and a clarification of the additional requirements that officers must provide their name, place of duty and a warning.” [19]

19.    New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2002 (Second Reading Speech) (at 4849).

44. At the time of the arrest, s 89 of the Domestic and Personal Violence Act provided:

“89 Detention of defendant for making and service of provisional order

(1)   If a police officer makes or is about to make an application for a provisional order, the police officer may direct the person against whom the order is sought to remain at the scene of the incident concerned or, in a case where the person has left the scene of the incident, at another place where a police officer locates the person.

(2)   If the person refuses to remain, the police officer may arrest and detain the person at the scene of the incident or other place, or arrest and take the person to a police station and there detain the person, until the provisional order is made and served.”

Primary judgment

45. The primary judge summarised the essential issues in the case as follows:

“… first, whether an estoppel operates so as to preclude the plaintiff from making what the defendant described as an abuse of process comprising a collateral attack on the underlying circumstances which had led to his arrest and his conviction concerning damage to property; secondly, whether, in this case, a provisional apprehended domestic violence order issued in NSW pursuant to s 27 of the Crimes (Domestic and Personal Violence) Act 2007, without more, had any relevant operational effect in the state of Queensland; thirdly, whether the initial arrest, and the subsequent detention of the plaintiff, was lawful; and if not, then fourthly, the assessment of the plaintiff’s entitlement to damages.” [20]

20.    Primary judgment (at [6]).

46. His Honour held that no estoppel arose as the respondent was not asserting in the proceedings “a right or obligation or … an issue of fact or law”, that had already been determined in the Local Court proceedings and in the subsequent appeal from those proceedings. [21] The SNSW does not challenge this conclusion. Nor does it contend that the respondent’s subsequent conviction had any bearing on the resolution of the issues in his civil proceedings.

    21. Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 (at [21]) per French CJ, Bell, Gageler and Keane JJ.

47. In dealing with the second issue, being whether a provisional domestic violence order issued in New South Wales operated in Queensland, his Honour found as a matter of fact and law, that without registration in Queensland, the PAVO issued to the respondent had no operative effect beyond the borders of New South Wales. [22]

    22.    Primary judgment (at [101] – [118]).

48. His Honour then turned to the question of whether the respondent’s arrest and imprisonment was lawful.

Wrongful arrest and false imprisonment

49. The respondent contended before the primary judge that his arrest, and therefore his subsequent detention and imprisonment, were unlawful in the following respects. First, the arresting police had not complied with the provisions of s 201(1) of the LEPRA. Secondly, there was no basis to support, on reasonable grounds, the claim that his arrest was necessary for any of the purposes specified in s 99(3) of the LEPRA. Thirdly, there was an alternative course available to the arresting officers to deal with the situation and the respondent. [23]

    23.    Ibid (at [121]).

50. The SNSW argued that in the prevailing circumstances, Senior Constable Tye and Senior Constable Stubbings were entitled to arrest the respondent by reason of the operation of s 99(2) and s 99(3) of the LEPRA. The basis for that claim of entitlement was identified as being the “domestic incident” alleged by Mrs Smith, which constituted a relevant offence. The SNSW argued that incident had formed the basis of a reasonable belief by police officers, that Mrs Smith, a witness, was relevantly in fear of harm from the respondent, and that she was therefore in need of protection of the kind that would be afforded by the arrest of the respondent. [24]

    24.    Ibid (at [122] – [124]).

Reasons for the arrest

51. The primary judge first considered what his Honour described as the police officers’ stated indications for the arrest. His Honour set out Senior Constable Tye’s reasoning process for the course he took, and the process that was involved, as follows:

“Q.    Can you explain to his Honour what your reasoning process was in deciding whether it was appropriate to arrest [the respondent]?

A. Yep. All of our training in relation to domestic violence says that the greatest consideration should be towards arrest of the individual, of the alleged accused person, in this case Mr Smith. Just in its mainly in regards to victim protection and so forth. In this case despite the fact that they live separately the thought process that I went through was that they were in a rural or remote isolated location. The nearest police station on the Queensland side was unattended, being Killarney. The next nearest would be Warwick which is at least 30 to 35 minutes drive from Killarney. Because there'd been an allegation made, even if I was just to take out an apprehended domestic violence order I would still need to speak to the accused person because even though it's an AVO may I call it an AVO? Do we understand?

HIS HONOUR

Q. Yes.

A. Yes, even though it's an AVO we still have to investigate the matter, we can't just take them out and not have thoroughly investigated the matter. So the fact that I had to speak to the accused person in either scenario I believed that sorry, I backtrack a bit. If I was to speak to the accused person about the apprehended domestic violence order or the allegations then if I was to leave him there it would take me at least two and a half hours to return there with an AVO. In that it was a 40 to 45 minute trip each way from Woodenbong to his place. It would take me half an hour to type up the forms and everything. It then has to get sent electronically to an on call justice. It then takes up to half an hour and sometimes even 40 to 45 minutes to receive a response from the on call justice. And then the subsequent travel time back. It comes to around about that two and a half hour mark.

I believed that two and a half hours with them being isolated and me having spoken to him I was not happy with allowing him to have that time. I was concerned for the victim's welfare and safety during that time, hence I believe it was prudent and reasonable to take him back to the station in order to proceed down that line.

…

HIS HONOUR

Q. Can you clarify what the road distance was and time taken to drive that distance between the house of Mrs Smith, or the former Mrs Smith, and the plaintiff, Mr Smith?

A. From Mr Smith's residence in Killarney?

Q. How far are the two premises apart?

A. I did a Google search after the after that night and it came up at around 7.5 kilometres. I don't know what time wise, it would be less than ten minutes I'd suggest. Its 100 k zone for most of that distance.” [Emphasis added.][25]

25. Ibid (at [86]); his Honour repeated the first passage of this evidence down to and including that part I have emphasised (at [199]) when determining the question whether there had been compliance with s 99(3).

52. The primary judge held that before Senior Constable Tye attended at the respondent’s premises, on the basis of Mrs Smith’s statement he already had sufficient information to constitute reasonable grounds for suspicion that the respondent had committed an alleged offence against s 195(1)(a) of the Crimes Act. [26] However, his Honour considered that “a deliberate decision was made not to initially make that charge … and to instead, arrest the plaintiff without specifying that charge.” [27]

    26. Cf LEPRA, s 99(2).

    27.    Primary judgment (at [141]).

53. The primary judge found that this decision was made despite Senior Constable Tye’s understanding that he needed to beforehand “thoroughly investigate the matter”, which would have necessarily involved him in at least speaking to the respondent along the lines of what could reasonably be considered to be an investigation. His Honour found that in fact, there was no investigation of the respondent’s account of the events prior to his arrest. He was simply arrested on sight when he appeared at his front door. [28]

    28.    Ibid (at [142] – [143]).

The time the arrest was completed

54. In the course of submissions before the primary judge, a dispute arose as to the actual time at which the respondent’s arrest had been completed. [29] The SNSW argued that the process of the respondent’s arrest had commenced when he was informed that he was under arrest, and continued whilst he went and changed from his pyjamas into other clothing, and until he was cautioned, which was just before he was escorted to the police vehicle to be taken away. The primary judge considered that the SNSW’s argument implied that the relevant act of submission by the respondent was when he accompanied the arresting officers to the police vehicle following those events.

    29.    Ibid (at [145]).

55. In his Honour’s view, that argument was inconsistent with the evidence of Senior Constable Tye, in which he confirmed that, at the outset, he had told the respondent, “… right now you are under arrest and you have to come with us back to the station”. Senior Constable Tye’s account indicated the respondent was under an immediate arrest, as indicated by the use of the word “now”, and at that time, the respondent was told he was already under a compulsion to go to the police station. The primary judge formed the view that Senior Constable Tye’s words operated as a sufficient act of arrest. [30] His Honour also found that the respondent’s request that he be allowed to change clothes was a sufficient act of submission to indicate the arrest had been completed at that time. From that moment, and until he was released on bail, the respondent was no longer able to exercise his free will to act. [31]

    30.    Ibid (at [149]).

    31.    Ibid (at [151]).

Non-compliance with s 201

56. The primary judge then turned to the question of compliance with s 201 of the LEPRA. The respondent claimed that at the time of his arrest Senior Constable Tye had failed to comply with s 201(1) of the LEPRA, because neither before, nor at the time of the arrest, had Senior Constable Tye informed him of his name, his place of duty, or the reason for the arrest. [32] The SNSW asserted that relevant details were provided to the respondent “during the time of his arrest whilst on the front porch of the plaintiff’s residence”. [33]

    32.    Ibid (at [156]).

    33.    Ibid (at [157]).

57. The primary judge rejected the SNSW’s argument in the light of his earlier finding that the respondent was arrested on sight. [34] He found that the police officers did not inform the respondent of their names or their places of duty at the time of the respondent’s arrest, and that that information was only provided to the respondent after he was arrested and after he had requested that information following his return to the front porch of his house after he had changed his attire. The primary judge held that that earlier omission by Senior Constable Tye and Senior Constable Stubbings to identify themselves, by name and place of duty, was a relevant non-compliance with the requirements of s 201(1)(b) of the LEPRA. [35]

    34.    Ibid (at [158]).

    35.    Ibid (at [163]).

58. The primary judge also concluded that there was a failure on the part of the arresting police officers to adequately inform the respondent of the particular reason for the exercise of the power of arrest, which also constituted a relevant non-compliance with the requirements of s 201(1)(c) of the LEPRA. [36] In his Honour’s view, that conclusion necessarily arose because at the time of his arrest, the respondent was only vaguely informed that the reason for his arrest was a “domestic incident”. [37] He found that that was plainly an insufficient explanation for depriving the respondent of his liberty, particularly since Senior Constable Tye had already formed the view in the period of time from when he had taken a statement from Mrs Smith and before he first saw and arrested the respondent, that he would be charged with a particular offence against s 195(1)(a) of the Crimes Act. That state of mind meant that what Senior Constable Tye told the respondent permitted a much more specific particularisation than a “domestic incident”. [38]

    36.    Ibid (at [168]).

    37.    Ibid (at [165]).

    38.    Ibid (at [166] – [167]).

Non-compliance with s 99(3)

59. The primary judge next turned to the issue of compliance with LEPRA, s 99(3). The respondent claimed that his arrest occurred in breach of s 99(3) in that, at the time of the arrest, there was no basis to suspect, on reasonable grounds, that the arrest was necessary. The SNSW claimed that the arrest was justified by ss 99(2) and 99(3)(b) and (d), as it was necessary to arrest the respondent and convey him to Woodenbong Police Station to prevent a repetition or continuation of the offence (presumably being the alleged offence comprising the altercation at the front of the respondent’s property) or the commission of another offence, and to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the earlier alleged offence. [39] In addition, the SNSW contended Senior Constable Tye had reasonable grounds to suspect that the respondent had committed an offence so as to enliven his power of arrest pursuant to LEPRA, s 99(2). [40]

    39.    Ibid (at [178]).

    40.    Ibid (at [185]).

60. The primary judge found that although the statement given by Mrs Smith provided Senior Constable Tye with reasonable grounds for suspecting that the respondent had committed an offence against s 195(1)(a) of the Crimes Act, thereby satisfying the requirements of s 99(2) of the LEPRA, the power of arrest could only be invoked if the requirements of s 99(3) of the LEPRA were also satisfied. This is uncontroversial.

61. The primary judge gave a number of reasons for concluding s 99(3) had not been complied with.

62. First, Senior Constable Tye did not have reasonable grounds for suspecting that an offence would occur contrary to the laws of the State of New South Wales (s 99(3)(b)), for these reasons:

“[182]   This is because to justify the arrest, Senior Constable Tye must have had reasonable grounds for suspecting that an offence would occur contrary to the laws of the State of NSW.

[183]    Cheryl Smith lived in Qld. Her complaint about the plaintiff related to events at the plaintiff’s property in NSW. On the facts as I have found them, and based on the facts disclosed in her statement, it seemed most unlikely that Cheryl Smith would have again approached the plaintiff at his property at Legume in NSW.

[184]   Once this is recognised, and once it is recognised that a provisional apprehended personal domestic violence order issued in NSW could have no operation in Qld without it having been registered in that State, the arrest of the plaintiff to serve him with a provisional apprehended domestic violence order that applied to premises in Qld was futile. Accordingly, the asserted reasonable grounds for the plaintiff’s arrest fall away.

[185] In supplementary written submissions dated 29 January 2016, on behalf of the defendant, it was submitted that Senior Constable Tye had reasonable grounds to suspect that the plaintiff had committed an offence so as to enliven his power of arrest pursuant to s 99(2) of the Law Enforcement (Power and Responsibilities) Act 2002.

[186]   In my opinion, the difficulty with that argument is that the evidence shows Senior Constable Tye exercised the power of arrest in relation to the need to secure the plaintiff for administrative convenience pending the procurement of a provisional apprehended personal domestic violence order, and not in order to charge him for an offence against s 195(1)(a) of the Crimes Act 1900, which charge came later, and which was the subject of a court attendance notice Senior Constable Tye issued to the plaintiff after the plaintiff had been arrested and taken to the police station.[41]

[187]   In forming the intention to issue a provisional apprehended personal domestic violence order, Senior Constable Tye had apparently considered an unspecified alternative course to that of arresting the plaintiff, however, instead, he opted to arrest the plaintiff on the ground of administrative expediency, reasoning that if he was to speak to the plaintiff about the allegations and to obtain a proposed provisional apprehended personal domestic order, it would have taken him ‘at least two and-a-half hours to return’ to the plaintiff’s premises with an order ready to then serve upon the plaintiff, noting that in addition to the required travelling times involved, it could take up to 45 minutes for the appropriate forms to be processed and to then be electronically communicated to the rural police station where he was based: T54.40 – T55.1.

[188]   Senior Constable Tye stated that in such circumstances, he did not want to leave the plaintiff alone, and by implication, to forewarn the plaintiff of the process. He therefore considered ‘it was prudent and reasonable to take him back to the station in order to proceed down that line’: T55.3 – T55.7. This necessarily required that the plaintiff be arrested and deprived of his liberty.

[189]   Senior Constable Tye therefore arranged for another police officer to assist him, and he then waited for Senior Constable Stubbings to arrive before going to see the plaintiff at his home and arrest him: T55.10 – T55.15.”

41. His Honour’s apparently contradictory finding (at [185] – [186]) to that made at [180] was not relied upon by the respondent who sought only to uphold, in respect to the powers of arrest, the primary judge’s conclusion that the requirements of s 99(3) were not satisfied. He did, however, rely upon his Honour’s conclusion (at [186]) that the evidence showed Senior Constable Tye exercised the power of arrest in relation to the need to secure the respondent for administrative convenience.

63. Secondly, his Honour turned explicitly to the provisions of s 99(3):

“[190]   The lawfulness or otherwise of the plaintiff’s arrest by Senior Constable Tye and Senior Constable Stubbings must be determined according to whether the legislative provisions governing the police power to arrest were complied with, and were adequately fulfilled at the time of the arrest.

[191]   In the paragraphs that follow, those claimed justifications are examined for their application to the circumstances of the arrest of the plaintiff.

[192] There was no reasonable indication from within the evidence to suggest that it was necessary to arrest the plaintiff in order to ensure his court appearance in respect of the charge pursuant to s 195(1)(a) of the Crimes Act 1900: s 99(3)(a) of the Law Enforcement (Power and Responsibilities) Act 2002.

[193]   Other than speculation, there was no basis evident for Senior Constable Tye to consider that there was a reasonable likelihood of the alleged breach of s 195(1)(a) of the Crimes Act 1900 being repeated or continued by the plaintiff, or that another offence might be committed.

[194] This is because Cheryl Smith was no longer in the vicinity of the plaintiff’s property and they lived a significant distance apart. Had Senior Constable Tye spoken to the plaintiff he would very likely have realised that the plaintiff was not on speaking terms with his ex-wife, and that he had no reason to go and seek her out at her home in Qld at that time of the night. Insofar as s 99(3)(b) applied at the time, it was not legitimately available to be used as a means of preventing the plaintiff from travelling to Qld as there was no reasoned basis upon which to assume that the plaintiff was going to commit an offence against the laws of that State: s 99(3)(b) of the Law Enforcement (Power and Responsibilities) Act 2002. The plaintiff had already returned the children to their mother’s home without incident and then returned to his own home some 15kms – 20kms away in NSW.

[195]   At the time of the arrest of the plaintiff, there was no evidence before Senior Constable Tye to reasonably suggest that an arrest of the plaintiff was necessary to prevent the concealment, loss or the destruction of any relevant evidence: s 99(3)(c) of the Law Enforcement (Power and Responsibilities) Act 2002.

[196] Since Senior Constable Tye had not interviewed the plaintiff before the arrest, he was not in a position to make any reasoned evaluation as to whether it was necessary to prevent the plaintiff from harassing or interfering with his ex-wife, whether in NSW or in Qld: s 99(3)(d) of the Law Enforcement (Power and Responsibilities) Act 2002.” [Emphasis added.]

64. His Honour also held that there was no evidence to suggest that there was a risk of fabrication of evidence (s 99(3)(e)), or that the respondent’s safety or welfare was in need of preservation (s 99(3)(f)). [42]

    42.    Primary judgment (at [197]).

65. Although these reasons appeared dispositive, the primary judge then appears to have returned to the s 99(3) issue. He referred to Smart AJ’s statement in R v Rondo,[43] that suspicion in relation to s 99(3) matters, based on reasonable grounds, being more than a mere possibility or something that is arbitrary in nature.

    43. (2001) 126 A Crim R 562; [2001] NSWCCA 540 (at [53]) (Spigelman CJ and Simpson J agreeing).

66. His Honour then concluded that the requisite reasonable grounds had not been established because of Senior Constable  Tye’s evidence concerning his reasoning process prior to the arrest, in particular the two sentences of his evidence I have emphasised when setting out that passage earlier in these reasons. [44] He held:

“It is plain from the last two sentences of Senior Constable Tye’s evidence, that since he had not spoken to the plaintiff before arresting him, he had engaged in an entirely speculative analysis as to a possible threat to victim safety, without first making an assessment as to whether or not the plaintiff posed a significant and realistic threat in the circumstances. In my view, his reasoning did not represent a reasonable basis for the arrest.” [45]

44.    See above (at [51]).

45.    Primary judgment (at [200]).

67. Instead, his Honour accepted the respondent’s submission that “the most charitable interpretation of the events was that a pre-emptive arrest had been made, without reasonable grounds for a suspicion”. [46]

    46.    Ibid (at [201]).

68. His Honour continued, still engaged, it is apparent, on the process of determining whether the SNSW had established either s 99(3)(b) or (d) purpose as a lawful basis for the arrest:

“[202]   Senior Constable Tye conceded that there are many more reasons for concluding that it was unnecessary to arrest the plaintiff rather than to arrest him: T76.50.

[203]   Prominent amongst the reasons that militated against the arrest of the plaintiff was that there was no sound basis to fear for the safety of the plaintiff’s ex-wife. Were the position to be otherwise, I infer that she would not have been left unattended and unprotected at her own property for several hours, as in fact occurred, at a time when Senior Constable Tye was positioned near the plaintiff’s property, whilst waiting for Senior Constable Stubbings to arrive from his remote location, and at which time Senior Constable Tye was not able to determine whether the plaintiff was in fact at his property, until the moment of his arrest at 9.20pm.

[204] The only basis upon which Senior Constable Tye feared that there might be a re-occurrence of the alleged incident which ultimately based the charge under s 195(1)(a) of the Crimes Act 1900, was that there was an allegation by Cheryl Smith that such an incident had already occurred once. There was no evidence of a pattern to suggest a recurrence and the parties were no longer in close proximity to each other.

[205]   In my assessment, the state of the evidence before Senior Constable Tye did not reasonably support the suspicion there might be a recurrence of the event complained of by Cheryl Smith.

[206]   I have reached that conclusion because over four hours had passed uneventfully by the time of the plaintiff’s arrest. The plaintiff had no prior criminal history, there was no suggestion the plaintiff owned firearms, the plaintiff was in his pyjamas when the police attended at his home, suggesting he was not planning on leaving the house at night. There was no basis for fearing the plaintiff would attend at the premises of his ex-wife, and there was no evidence that she had expressed any immediate concerns for her own safety: T65.12. The concerns of the plaintiff’s ex-wife were more remote in time, and were to the effect, that there might be harassment or incidents at future changeovers in relation to the children: T67.19 – T67.46.

[207]   It is plain that Senior Constable Tye had decided, in advance, to arrest the plaintiff. This is confirmed by the evidence of Senior Constable Stubbings, who had been directed by a superior officer to attend in order to assist Senior Constable Tye with that arrest: T87.32 – T87.40. This suggests that the course taken was with the approval of that more senior officer.

[208]   In my view, the circumstances that prevailed when the police attended the plaintiff’s home contra-indicated an arrest, and favoured an alternative course. This was because the plaintiff was not behaving aggressively. He only became upset because of the fact that he was being arrested in the manner described.

[209]   The attending officers obviously assessed the plaintiff as representing a low risk when they saw him. Otherwise, he would not have been allowed to go and change clothes, unaccompanied: T111.31. Furthermore, the plaintiff was sober, and it was generally accepted that sober persons were less likely to be aggressive or violent compared to someone intoxicated: T79.32 – T80.21.

[210]   I accept the submission made on behalf of the plaintiff that he was arrested due to a problematic aspect of deficiency in police training. Senior Constable Tye agreed that all of his training in relation to domestic violence is that ‘the greatest consideration should be given towards arresting a suspect in a domestic violence matter:’ T69.29 – T69.34.

[211]   Put another way, as was agreed by Senior Constable Stubbings, the policy of the police in this instance was that there should be an arrest unless there was a good reason not to make an arrest: T106.29.

[212]   That policy, which I consider to have been applied in this instance, is inconsistent with the statutory legal requirements for justifying an arrest. This was in the context where Senior Constable Tye acknowledged that the power of arrest was to be used as the last resort, and within the confines of the applicable legislation: T75.5.

[213]   Instead, the plaintiff was arrested without any investigation or any attempt to obtain from him any information as to his version of events: T76.30. This was so even though Senior Constable Tye had given consideration to speaking to the plaintiff first, before arresting him, but chose not to do so: T75.25; T76.30.

[214] Notwithstanding Senior Constable Tye’s evidence to the contrary (at T75.35 – T75.37), I find that the plaintiff was arrested because at the time it was considered that this was the easiest way of creating an opportunity to serve him with an apprehended domestic violence order: T75.24 – T75.36. This was contrary to the requirements of s 99(3) of the Law Enforcement (Power and Responsibilities) Act 2002. The plaintiff has therefore proven the element of his argument identified at sub-paragraph (2) of paragraph [121] above.

[215]   I find that the arrest of the plaintiff in the manner described, and for the reasons identified, was wrongful as it was contrary to law. The defendant has failed to discharge its onus to prove that the arrest of the plaintiff was justified in the circumstances. Administrative convenience is not a justifiable reason to deprive a person of his liberty by means of an arrest.”

Available alternatives to arrest

69. The respondent also argued before the primary judge that there were alternative courses available to the arresting police officers, namely, to charge him, and to issue and serve him with a field court attendance notice, and serve him with the PAVO without the need to take the extreme last resort action of arresting and imprisoning him where the circumstances did not warrant an arrest. [47]

    47.    Ibid (at [216]).

70. The primary judge found that at the time he decided to arrest the respondent, Senior Constable Tye was unaware that s 89 of the Domestic and Personal Violence Act empowered him to give a direction to the respondent to remain at his home pending the processing of an application for an interim apprehended domestic violence order. [48]

    48. Ibid (at [219] – [220]); the terms of s 89 are set out above (at [44]).

71. The primary judge found that Senior Constable Tye had available to him a number of courses that were reasonable alternatives to simply arresting the respondent on sight. [49] First, to initiate, process and obtain the PAVO before going to the respondent’s property. Secondly, having obtained a PAVO, to speak to the respondent as part of an investigation that he acknowledged was required of him, in which event, his Honour concluded above, he would most likely have formed a view that an arrest was an unnecessary step for him to take in the circumstances. Thirdly, issue the respondent with a field court attendance notice in respect of the charge pursuant to s 195(1)(a) of the Crimes Act. [50] Accordingly his Honour concluded that the third element of the respondent’s claim was made out. [51] The SNSW contends that his Honour’s analysis that there was an alternative to arrest was part of his error in applying LEPRA, s 99.

    49. Ibid (at [235]).

    50. Ibid (at [236] – [237], [239]); see also (at [227] – [231]).

    51. Ibid (at [241]); see also above (at [45]).

Damages

72. The primary judge considered a number of cases as examples to guide the assessment of damages. His Honour concluded that the appropriate sum to be awarded for general damages for wrongful arrest and imprisonment was the sum of $20,000, including an allowance for an element for aggravated damages. He reasoned as follows:

“[265] It is not to the point that the plaintiff was ultimately convicted of the offence charged under s 195(1)(a) of the Crimes Act 1996 [sic, 1900]. That was not the purpose of his arrest. He was arrested for the administrative convenience of police officers. This occurred in order to render the process of serving him with a provisional apprehended domestic violence order a less onerous task for the police officer concerned. That process was wrong, and the reasonable alternative to arresting the plaintiff had not been considered or pursued. In my view, this calls for a significant damages award.

[266]   In my view, the appropriate sum to be awarded for general damages for wrongful arrest and imprisonment is the sum of $20,000, including an allowance for an element for aggravated damages.

[267]    As was observed in Zaravinos, at [52], damages in such cases are not capable of being related proportionately to the length of time in detention, and the substantial portion of the award must be applied to the initial shock of being arrested, following Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612.

[268]   In the present case, the shock of the arrest on sight was a significant one for the plaintiff. He was too shocked to initially ask questions about the basis for the deprivation of his liberty. The aggravating factors included the significant humiliation of being arrested and then searched in front of his wife, and then taken away in a police wagon, from his home, at night, and the uncomfortable journey to the police station, as described at paragraph [39] above. Such matters are not capable of precise dissection for the purpose of allocating separate portions of the award for compensatory damages.”

73. His Honour then considered whether the respondent was entitled to an award of exemplary damages. The SNSW submitted that the polite verbal nature of the respondent’s arrest, the subsequent permission given to him to change his attire, the respectful nature of his pat-down search, the non-physical aspect of the escorting of the respondent to the police wagon, the courteous offer of coffee and water, and allowing the respondent an appropriate toilet break on request, and the (eventual) provision of a lift home, all militated against an award of exemplary damages, as such matters contradicted the suggestion of a contumelious disregard of the respondent’s rights.

74. The primary judge rejected the SNSW’s submission on the basis that it failed to address the contumelious nature of the initial and planned disregard of the respondent’s rights “that were infringed on grounds of the application of a police directive that was interpreted to require an arrest at the outset rather than taking a lesser alternative course that was plainly available in the circumstances.”[52] His Honour found that this occurred because of a police training issue, and as such, it should attract disapprobation or disapproval because it applied an over-simplistic and incorrect template for determining whether or not an arrest should be effected rather than considering reasonable alternative courses that were available.

    52. Ibid (at [273]).

75. The primary judge ordered verdict and judgment for the respondent in the sum of $39,858. His Honour also ordered that the SNSW pay the respondent’s costs on the ordinary basis unless a party showed an entitlement to some other costs order.

Issues on appeal

76. The SNSW advances the following seven grounds of appeal:

1. The primary judge erred in finding that the arrest of the respondent on 20 May 2012 was unlawful. In doing so he:

1. misconstrued or alternatively failed properly to apply the provisions of s 99 of the LEPRA as it was prior to amendment on 16 December 2013;

2. construed “suspect” as requiring evidence (at [195]) rather than according it the meaning “conjecture or surmise when proof is lacking”;

3. stigmatised Senior Constable Tye’s state of mind as “speculation” (at [193], [200]);

4. misunderstood or misapplied the reasoning of the Court of Criminal Appeal in R v Rondo (at [198]); and

5. found that an evidence based conclusion was necessary rather than a positive feeling of actual apprehension (at [205]).

2. The primary judge misunderstood, misconstrued or misused the evidence of Senior Constable Tye with respect to his need to “thoroughly investigate the matter” before applying for an ADVO; the primary judge incorrectly characterised that evidence as a precondition to arrest, and recognised by Senior Constable Tye to be such. He was wrong to do so.

3. The primary judge misconstrued or alternatively misapplied s 99(3) of the LEPRA when he found (at [181] – [182]) that in order to justify the arrest Senior Constable Tye must have had reasonable grounds for suspecting that an offence would occur contrary to New South Wales law.

4. The primary judge misconstrued s 201 of the LEPRA when he found (at [145] – [155]) that the phrase “at the time” referred to the moment in time when there was communication of intention to make an arrest and a sufficient act of arrest or submission to arrest (at [146]). The primary judge should have construed the words “at the time” to be synonymous with “on, or at, the occasion” of the arrest, or “prior to the conclusion of the process of arrest”.

5. Alternatively, or in addition, to Ground 4, the primary judge erred in finding (at [150]) that the respondent submitted to arrest when he retreated into his house to change; submission to the arrest occurred when the respondent, after further conversation with police, left his premises and entered the police vehicle.

6. The primary judge erred in finding that the arrest was unlawful because the “domestic incident”, advanced as the “reason for arrest”, was a “vague” ground and, inferentially, the charge pursuant to s 195 of the Crimes Act was required to be stipulated to the respondent at the point of arrest (at [160]).

124. Having regard to s 5 of the Constitution Act1902 (NSW), [98] there is a compelling, albeit I would accept curious, logic in the primary judge’s finding that to justify the arrest, Senior Constable Tye must have had reasonable grounds for suspecting that an offence would occur contrary to the laws of the State of New South Wales. As a matter of practicality, I have some difficulty in accepting the proposition that if a police officer suspected a person intended imminently to leave the State to commit an act of violence, there would be no basis for arrest. However, the SNSW’s submissions on this aspect lacked any detail as to, for example, the powers of the police, if any, to effect arrests for the purposes of preventing interstate criminal acts. The outcome of the appeal does not turn on this issue and absent assistance from the party propounding the ground of appeal, I find it unnecessary to decide.

     98.    “The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever”.

125. Grounds 1 and 3 of the notice of appeal should be rejected. As I have said, Ground 2 was abandoned.

LEPRA, s 201

Arrest

137. The requirements for an arrest are (1) communication of intention to make an arrest, and (2) a sufficient act of arrest or submission. [99] At common law, in order for the arrest to be lawful, communication of intention to make an arrest should normally include informing the person that he or she is arrested and informing the person of the reason for the arrest unless the circumstances make these things obvious, or if the person arrested prevents it. [100]

     99.    Wilson (at [59]).

     100.    Ibid (at [60]).

138. There may be a process of arrest where, following a sufficient communication of intention to arrest and of the reason for arrest, the person in question flees, a step which can be sufficiently taken, for example, if the person being arrested makes it impracticable to complete the arrest by not submitting and retreating into a house and not returning. [101]

     101.    Ibid (at [63] – [67]).

139. The SNSW effectively accepted in the course of argument, correctly in my view, that the respondent’s question after being informed he was under arrest, “[w]ill you give me a moment to get in some clothes?” was an act of submission sufficient to indicate that the process of arrest was completed.

140. Although the SNSW did not abandon its contention that the process of arrest was not completed until after the respondent returned from changing his clothes and Senior Constable Tye took him by the elbow to guide him towards the police vehicle, [102] that submission cannot be accepted. It was sufficient to constitute “imprisonment” or arrest that, even though physical force was not used before the respondent asked to be able to change, he had “a justified apprehension that, if he did not submit to do what was asked of him, he would be compelled by force” to go with the officers. [103] As Senior Constable Tye accepted, at that stage, the respondent “wasn’t free to go anywhere [he] didn’t permit him to go; he was under arrest”. [104]

     102.    Primary judgment (at [35]).

     103. Watson v Marshall (1971) 124 CLR 621 (at 626) per Walsh J; [1971] HCA 33.

     104.    See above (at [23]).

141. But, in any event, even if there was a process of arrest as the SNSW contended, during which period Senior Constable Tye informed the respondent of his name and police station (s 201(1)(b)), the critical question to which I now turn is whether he also informed him of the reason for the exercise of the power of arrest (s 201(1)(c)).

142. Grounds 4 and 5 should be rejected.

Supplying the reason for the exercise of the power of arrest

143. The requirement that the person arrested should be informed of the reason why he or she is arrested is a matter of substance. It turns on the elementary proposition earlier stated in these reasons, and explained by Viscount Simon in Christie v Leachinsky, that a person is, prima facie, entitled to his or her freedom and is only required to submit to restraints on that freedom if he or she knows in substance the reason why it is claimed that restraint should be imposed. [105] His Lordship’s statement reflects the common law in New South Wales and is reflected in the LEPRA, s 201. [106]

     105.    (At 587 – 588).

     106. New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419 (NSW v Abed) (at [85]) per Gleeson JA (Bathurst CJ and Macfarlan JA agreeing); see also Poidevin v Semaan (at [21]); New South Wales v McCarthy (2015) 251 A Crim R 445; [2015] NSWCA 153 (at [69]) per Meagher JA (Gleeson JA and Adamson J agreeing).

144. As Gleeson JA explained in NSW v Abed:

“[88]   The rationale for the principle stated in Christie v Leachinsky was explained by Ipp JA in New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 at [9] as follows:

The rationale underlying the rule that persons are entitled to know why they are being arrested is that they should be put in a position to be able to give an explanation of any misunderstanding, or to call attention to others for whom they may have been mistaken, or to give some other exculpatory reason, and to assert that further inquiries may save them from the consequences of false accusation: see, for example, Christie (at 588) per Viscount Simon and (at 591–592) per Lord Simonds; Taylor v Chief Constable of Thames Valley Police [2004] 1 WLR 3155 (at 3162, [21]) per Clarke LJ.

[89]   Further, as Beazley JA noted in Johnstone v New South Wales at [43], Ipp JA’s observation that persons are entitled to know why they are being arrested, itself has an underlying rationale, namely, that a person is not to be deprived of her or his liberty without lawful cause.

[90]   Both parties referred to the decisions of New South Wales v Delly and Johnstone v New South Wales. It is sufficient to refer to two matters which those judgments may be taken to establish, as confirmed in Hamod v New South Wales (Hamod) [2011] NSWCA 375 at [425].

[91]   First, it is not necessary for the arrested person to be told the precise charge at the time of the arrest. Rather, the arrested person must be told why they are being arrested in terms that disclose why the person’s liberty has been restrained. This requirement is sometimes described in terms that the arrested person be told the ‘true reason’ for the arrest, or the ‘substance of the reason’ for the arrest.

[92]   Secondly, what is required will depend on the particular circumstances and will range from not needing to be told anything to being told both the facts which have given the police officer cause for suspicion that an offence has been committed, as well as what that suspected offence is: Johnstone v New South Wales at [56]. As this Court said in Hamod at [425]:

‘The law does not require that the arrested person be given detailed particulars of why he or she is arrested. How much detail is required depends upon the circumstances of the particular case.’ ”

145. Those circumstances might include, for example, that the person arrested must know the general nature of the alleged offence for which he or she is detained. [107] The question whether sufficient information has been given “has to be assessed objectively having regard to the information which is reasonably available to the officer”. [108]

     107.    Christie v Leachinsky (at 587).

     108. Abbassy v Commissioner of Police of the Metropolis [1990] 1 All ER 193 (at 197) per Woolf LJ; cited with approval in Johnstone v State of New South Wales (2010) 202 A Crim R 422; [2010] NSWCA 70 (at [57]) per Beazley JA (McColl and Young JJA agreeing).

146. To elaborate on the point Gleeson JA made in NSW v Abed, [109] the reason given must be sufficiently precise as to make it clear to the person being arrested why the arrest is taking place which, in turn, requires the arrestor to notify the arrested person, at least in general terms, of the alleged offence or charge for which the arrest is being made. [110] The reason will not suffice if the arrested person could not know “in any meaningful way the charge which was likely to be laid”. [111] Identification of conduct will often be sufficient. [112]

     109.    (at [91]).

     110. State of New South Wales v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303 (at [63]) per Tobias JA; see also (at [3] – [17]) per Ipp JA; special leave refused: State of New South Wales v Delly [2008] HCATrans 226.

     111. Ibid (at [65]) per Tobias JA (Basten JA agreeing (at [103])).

     112. Ibid (at [102]) per Basten JA.

147. Section 201 uses mandatory language. The police officer “must” do the matters to which s 201(1) – (2A) refers. The mandatory language is qualified to the extent that s 201(2) requires the information referred to in s 201(1) to be given “if it is practicable to do so, before or at the time of exercising the power” or “if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power”.

148. Testing the matter objectively having regard to the information which was reasonably available to Senior Constable Tye, there was no practicable reason why he did not inform the respondent of the reason he had decided to arrest him, in circumstances where, as the primary judge held, he had reasonable grounds for suspecting that the respondent had committed an offence against s 195(1)(a) of the Crimes Act. The respondent was standing passively at his front door in his pyjamas. Although as the previous discussion makes apparent, it is not necessary that the reasons for the exercise of the power of arrest be explained in technical language, it was not, in my view, an error on the primary judge’s part to hold that having formed that opinion, there was no reason or impracticality that prevented the respondent from being told that he was to be charged under that provision. [113]

     113.    Primary judgment (at [171]).

149. But, even if that is not correct, in my view the language Senior Constable Tye did use, namely to tell the respondent “your ex-missus has made an allegation of a domestic incident” did not convey to him the reason for the exercise of the power of arrest within the meaning of s 201(1)(c).

150. “Domestic incident” did not identify conduct. It could not convey in any meaningful way the charge which was likely to be laid. It was not until about 1 am when the respondent was finally charged that it can be said the reason for the exercise of the power of arrest was communicated to him.

151. The SNSW did not identify any offence synonymous in the circumstances with the expression “domestic incident”. [114] It faintly suggested that that expression was “a well-known, contemporary description of a domestic violence incident” which took the matter no further in my view in what s 201(1)(c) requires.

     114. Section 4 of the Domestic and Personal Violence Act contains a long list of matters which fall within the description in that Act of “personal violence offence”, but there was no suggestion the respondent might have been aware of any such matters.

152. Ground 6 should be rejected.

Damages

153. The tort of “[w]rongful imprisonment is a tort of strict liability [whose]…focus … is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant.” [115]

     115.    Ruddock v Taylor HC (at [140]) per Kirby J.

154. In Goldie v Commonwealth of Australia (No 2),[116] a case of unlawful detention for 4 days of a non-citizen, French J (as his Honour then was) held:

“[14] The assessment of damages for false imprisonment is necessarily informed by the general proposition that:

‘False imprisonment trenches not only upon a person’s liberty but also on his dignity and reputation, and this is reflected in the calculation of damages.’

J Fleming, The Law of Torts 8th ed, LBC (1992) at 29

The compensatory damages are assessed by reference, inter alia, to the duration of the deprivation of liberty and to hurt or injury to the plaintiff’s feelings, that is to say the injury, mental suffering, disgrace and humiliation suffered as a result of the false imprisonment – Trindade and Cane, The Law of Torts in Australia 3rd Edition, OUP (1999) at 302.” [Emphasis in original.]

116. [2004] FCA 156; (2004) 81 ALD 422.

155. In the Court of Appeal’s decision in Ruddock v Taylor, a case of wrongful imprisonment arising out of the respondent’s detention under the Migration Act1958 (Cth), Spigelman CJ dealt with the Minister’s challenge to the primary judge’s award of damages as follows:

“Damages for false imprisonment cannot be computed on the basis that there is some kind of applicable daily rate. A substantial proportion of the ultimate award must be given for what has been described as ‘the initial shock of being arrested’ (Thompson; Hsu v Commissioner of Police of the Metropolis [1998] QB 498 at 515). As the term of imprisonment extends the effect upon the person falsely imprisoned does progressively diminish.” [Emphasis added.][117]

117. (2003) 58 NSWLR 269; [2003] NSWCA 262 (at [49]) (Ipp JA agreeing) (Ruddock v Taylor CA); Ruddock v Taylor CA was the subject of a successful appeal to the High Court, but the issue of damages did not arise: Ruddock v Taylor HC (at [131]). Spigelman CJ’s statement was applied by Bryson JA in Zaravinos to which the primary judge referred (at [267 – 268]), albeit that he erroneously attributed the statement Bryson JA applied to the High Court decision.

156. In a false imprisonment case, “any evidence which tends to aggravate or mitigate the damage to a man’s reputation which flows naturally from his imprisonment must be admissible up to the moment when damages are assessed. A false imprisonment does not merely affect a man’s liberty; it also affects his reputation.”[118]

     118. Walter v Alltools Ltd (1944) 171 LT 371 (at 372) per Lawrence LJ, referring to Warwick v Foulkes (1844) 152 ER 1298.

157. Such is the value the common law places upon liberty, that “[e]ven apparently minor deprivations of liberty are viewed seriously by the common law”. [119] As Walsh J said in Watson v Marshall [120] when awarding damages of $200 for the unauthorised detention for a week of the plaintiff, “[a]n interference with personal liberty even for a short period is not a trivial wrong. The injury to the plaintiff’s dignity and to his feelings can be taken into account.”

     119. Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54; [2003] FCAFC 70 (at [88]) per curiam (Black CJ, Sundberg and Weinberg JJ).

     120.    (At 632).

158. In New South Wales v Radford,[121] Sackville AJA explained the distinction between aggravated and exemplary damages in cases such as the present as follows:

“[97] … [T]he various categories of damages that may be awarded for trespass to the person, including assault and false imprisonment, are not self-contained. There is a close relationship between an award of ordinary compensatory damages for injury to the plaintiff's feelings and an award of aggravated damages. It is necessary to assess compensatory damages, including aggravated damages, before determining whether exemplary damages should be awarded and, if so, the quantum of any such award.”

121. (2010) 79 NSWLR 327; [2010] NSWCA 276 (Beazley and Macfarlan JJA agreeing).

159. The assessment of damages for trespass and false imprisonment involves an evaluative judgment by the primary judge to which an appellate court asked to review the determination must adopt a constrained approach. An appellate court will not disturb such an award unless it is convinced that the primary judge has acted on a wrong principle of law, has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered. [122]

     122.    See generally NSW v Abed (at [218] – [220]).

160. The SNSW attacked the award of compensatory damages on the basis that the police officers’ breaches of s 99 and s 201 were “technical” and, accordingly, that the primary judge had awarded damages out of proportion to any wrong doing.

161. I do not accept the proposition that the police officers’ breaches were “technical”. Rather, they represented their failure to appreciate the statutory obligations with which they were required to comply in responsibly exercising the extraordinary powers reposed in them as police officers. [123]

     123.    Cf Fleet v District Court of New South Wales (at [74]).

162. In so submitting, in addition, the SNSW fails to understand the principles upon which awards of damages for wrongful arrest and false imprisonment, including aggravated damages, are based. The focus is not upon the police officers’ transgressions but, as I have explained, on the vindication of liberty and reparation to the victim.

163. In my view, the primary judge did not err in his award of compensatory damages. The SNSW has not demonstrated that his Honour applied a wrong principle of law or misapprehended the facts, nor that the amount of damages was inordinately high.

164. His Honour’s reasons for the compensatory damages award were succinct but, in my view, sufficiently recognised that the substantial portion of the award must be applied to the initial shock to the respondent of being arrested. In addition, in including in his award an amount for aggravated damages, his Honour recognised the damage to the respondent’s reputation which can be inferred to flow consequent upon his arrest not least from his wife witnessing the event as he particularised in his aggravated damages claim.

165. Ground 7(a) and (b) should be rejected.

166. I would, however, uphold the SNSW’s appeal insofar as it involves exemplary damages.

167. As Sackville AJA explained in State of New South Wales v Zreika:[124]

“[61] Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future and to reflect ‘detestation’ for the action: Lamb v Cotogno [1987] HCA 47; 164 CLR 1, at 8. Exemplary damages are awarded rarely and not every finding of fault warrants an award: Lamb v Cotogno, at 6 [12]. Nonetheless, such damages can be awarded in a wide variety of circumstances. Generally speaking, what is required for an award is ‘conscious wrongdoing in contumelious disregard of another’s rights’: Gray v MAC, at 7 [14].

[62] Exemplary damages may be awarded against the State in respect of the conduct of police officers for whose torts the State is responsible: NSW v Ibbett; NSW v Landini, at [114]. The assessment of exemplary damages in a case of conscious and contumelious disregard of the plaintiff’s rights by the police:

‘should indicate … that the conduct of the [police] was reprehensible, [and] mark the court’s disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses … do not happen.’

Ibbett, at 653 [51], citing Adams v Kennedy (2000) 49 NSWLR 78, at 87, per Priestley JA.”

124. [2012] NSWCA 37 (at [61] – [62]) per Sackville AJA (Macfarlan and Whealy JJA agreeing).

168. The primary judge concluded that an award of exemplary damages was appropriate because of the “contumelious nature of the initial and planned disregard of the plaintiff’s rights that were infringed on grounds of the application of a police directive that was interpreted to require an arrest at the outset”, that this resulted from a police training issue which resulted in the officers being unaware of the s 89, Domestic and Personal Violence Act alternative to arrest. [125]

     125.    Primary judgment (at [273] – [274], [278]).

169. In my view, the respondent did not establish that Senior Constable Tye’s ignorance of a s 89 alternative course of action represented a conscious wrongdoing in contumelious disregard of the respondent’s rights, nor that it was the product of a police training issue as opposed to being the product of ordinary human fallibility. [126]

     126. See State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 (at [142]) per Hodgson JA (Sheller JA and Nicholas J agreeing).

168. Ground 7(c) should be upheld.

Conclusion

171. The SNSW’s submissions to an extent conveyed a sense that the respondent’s arrest was justified because this was a case concerning domestic violence and the need for victim protection. They also highlighted the community’s concern with matters of domestic violence and the need for victim protection. The courts are acutely conscious of both matters and, too, of the community’s concern. So also, it is apparent is the legislature, as reflected in the Domestic and Personal Violence Act.

172. That legislation, however, also reflects the legislature’s concern that arrest in a case of an intended application for a PAVO only be used as a last resort where the person against whom the order was to be sought had refused a police direction to remain at a place as directed. That concern no doubt reflects the legislature’s acknowledgment of the fact that arrest should be reserved for circumstances in which the police have formed the opinions for which s 99, LEPRA provides. That did not occur in this case.

173. The SNSW sought both the costs of the appeal and of the trial. I would not vary the costs of the trial as the SNSW has succeeded only in setting aside the award of exemplary damages which was an amount awarded as a consequence of the primary judge’s liability findings, but, I would infer, did not independently add, or add substantively, to the length of the trial.

174. In my view, the SNSW should pay the costs of the appeal. Leave to appeal was granted because of its contention that it was in effect a test case. Even had the Court been of the view on a leave application that the primary judge may have erred in his assessment of exemplary damages, in the ordinary course, having regard to the quantum involved it is improbable that leave to appeal would have been granted. This is because, not least, of the fact that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute. [127]

     127. Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 (at [46]) per Campbell JA (Young and Meagher JJA agreeing).

Orders

175. I propose the following orders:

1. Grant leave to appeal;

2. Appellant to file a notice of appeal in the form of the draft in the White Book within seven days of the making of these orders;

3. Appeal allowed in part;

4. Set aside the judgment entered in favour of the respondent for $39,858 and, in its place, enter judgment for the respondent, with effect from 22 April 2016, in the amount of $22,776;

5. Appellant to pay the costs of the appeal.

176. LEEMING JA: I have had the very considerable advantage of reading in draft the reasons of McColl JA. I agree with the orders her Honour proposes, and with her Honour’s reasons and conclusions in relation to (a) the process of Mr Smith’s arrest being completed when he asked whether he could change his clothes, (b) the failure to inform Mr Smith of the reason for his arrest and (c) the unavailability of exemplary damages. It follows that it is not necessary to resolve the question of primary fact whether the police officers ever gave their name and station (as Mr Smith said in chief) or whether in fact Senior Constable Tye did so after he was arrested (as Mr Smith conceded in cross-examination) which, on one view, is left unresolved by the statement that the trial judge preferred and accepted the plaintiff’s account of the interchanges between himself and the arresting officers.

177. I also agree with her Honour’s conclusions that it was open to the primary judge to find that Senior Constable Tye did not suspect that it was necessary to arrest Mr Smith, and that even if that were not so, the finding that the officer was unaware of the alternative power under s 89 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) precludes, at least in this particular case, a finding that such suspicion would be on reasonable grounds.

178. I agree with McColl JA that it is to be concluded that ground 2 was abandoned. To the extent that ground 3 concerned the relationship between the power of arrest and laws other than laws of New South Wales, it too was not the subject of written or oral submissions in this Court, and I express no view about this. Indeed, no attempt was made to separate grounds 1-5 in the State’s written submissions in chief, and the entirety of those submissions occupied four paragraphs extending just under one page. The challenge in ground 7 extended to the aggravated damages ordered by the primary judge which formed an unidentified part of the $20,000 damages. In the near complete absence of written submissions, and only brief oral submissions which focussed on an alleged failure to make sufficient findings of aggravating circumstances, I agree with what McColl JA has said that what was said about the findings of shock and humiliation by Mr Smith being arrested in the presence of his wife was sufficient.

179. The orders proposed by McColl JA should be made.

180. SACKVILLE AJA: I agree with the orders proposed by McColl JA.

181. I agree with her Honour that there was no error in the primary Judge’s finding that Senior Constable Tye did not hold the suspicion that it was necessary to arrest the respondent for any of the purposes specified in s 99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPR Act). [128] That finding is sufficient to preclude reliance by the appellant (State) on s 99(3) of the LEPR Act.

     128. See at [127]-[128] above.

182. If, contrary to my view, Senior Constable Tye had a suspicion that it was necessary to arrest the respondent for one of the purposes stated in s 99(3) of the LEPR Act, in my opinion the primary Judge was correct to find that Senior Constable Tye did not have reasonable grounds for that suspicion.

183. In Prior v Mole,[129] Gageler J explained what is required to satisfy a precondition that a police officer “has reasonable grounds for believing” certain matters specified in the legislation:

“First, the member must have an actual subjective belief in the existence of each of the specific matters. Belief is more than ‘suspicion’; it is not merely an ‘apprehension’ or even a ‘fear’; it is an actual ‘inclination of the mind’. [130] Second, the subjective belief of the member must be a belief that is formed by the member by reference to objective circumstances. The relevant objective circumstances are those known to and taken into account by the member in forming the belief. That is not to say that those circumstances might not include information provided to the member by someone else. [131] Nor is it to say that the formation of the belief by reference to those circumstances might not involve an element of surmise or conjecture on the part of the member[132] . Third, the objective circumstances by reference to which the belief is formed must be such as can be determined by a court to be ‘sufficient to induce that state of mind in a reasonable person’[133] Even if the formation of the belief might involve an element of surmise or conjecture on the part of the member, the sufficiency of the objective circumstances to induce that belief in a reasonable person must be capable of appearing to the satisfaction of a court. [134] ” (Footnotes included.)

The other members of the Court expressed similar views. [135]

129. [2017] HCA 10; 91 ALJR 441.

130. George v Rockett (1990) 170 CLR 104 at 115-116.

131. Cf Liversidge v Anderson [194] AC 206 at 242; O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 at 298.

132. George v Rockett (1990) 170 CLR 104 at 116.

133. George v Rockett (1990) 170 CLR 104 at 112.

134. Prior v Mole at [24].

135.    Prior v Mole at [4] (Kiefel and Bell JJ), at [73] (Nettle J), at [98]-[99] (Gordon J).

184. Prior v Mole involved a statue requiring reasonable grounds for a belief as to certain matters whereas s 99(3) of the LEPR Act requires a police officer to suspect certain matters on reasonable grounds. Nonetheless the principles for determining whether reasonable grounds existed for a suspicion are those stated in Prior v Mole.

185. The primary Judge found that Senior Constable Tye was unaware of s 89(1)(a) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act) which empowered him to direct the respondent to remain at his premises pending the processing of an interim apprehended violence order. [136] Senior Constable Tye accepted in his evidence that had he been aware of s 89(1)(a) of the CDPV Act he would not have arrested the respondent but would have given a direction under s 89 and taken the steps required to serve an apprehended violence order on the respondent.

     136. Smith v State of New South Wales [2016] NSWDC 55 (Primary Judgment) at [233].

186. The objective facts known to Senior Constable Tye were not such as to be sufficient to induce a suspicion in a reasonable person that it was necessary to arrest the respondent to achieve one of the purposes stated in s 99(3) of the LEPR Act. That is because a reasonable person in Senior Constable Tye’s position would have known of the powers conferred by s 89(1)(a) of the CDPV Act and would have chosen to exercise those powers rather than arrest the respondent.

187. I should add that I see no inconsistency between the statement principle in State of New South Wales v Robinson [137] and the approach of the High Court in Prior v Mole. Nor do I see any conflict between State of New South Wales v Robinson and the recent decision of this Court in State of New South Wales v Bouffler. [138]

     137. (2016) 93 NSWLR 280; [2016] NSWCA 334 at [27] per curiam.

     138. [2017] NSWCA 185 at [87]-[92] per curiam.

188. I agree with McColl JA that:

• the process of arrest was completed when the respondent asked whether he could get his clothes; [139]

  139. See at [139] above.

• the primary Judge did not err in finding that Senior Constable Tye failed to inform the respondent of the reason for the arrest at the time of the arrest; [140] and

  140. See at [148] above.

• the appeal on damages should be upheld, but only insofar as the award includes exemplary damages. [141]

  141. See at [163], [169] above.

**********

Endnotes

Amendments

18 May 2018 - [34] "whilst" inserted before the word "imprisoned".

The heading "Legislative framework" moved from above [38] to above [37].

[82] "violence" replaced the word "violent".

[96] "they" inserted before "decided".

[114] "sufficient" inserted before "evidence".

22 August 2017 - Amended table of contents

Decision last updated: 18 May 2018