Zaravinos v State of New South Wales

[2004] NSWCA 320

Reported Decision: 151 A CRIM R 24
62 NSWLR 58

Court of Appeal

CITATION:	ZARAVINOS v STATE OF NEW SOUTH WALES; STATE OF NEW SOUTH WALES & ORS v ZARAVINOS [2004] NSWCA 320
HEARING DATE(S):	17/08/2004
JUDGMENT DATE:	10 December 2004
JUDGMENT OF:	Santow JA at 1; Bryson JA at 2; Adams J at 55
DECISION:	Leave granted and appeals dismissed: in detail see [54]
CATCHWORDS:	FALSE ARREST - false imprisonment - Mr Zaravinos attended Police Station by appointment for interview and was arrested successively by 2 police on different but related charges, interviewed, charged, fingerprinted, photographed, bailed and released - detained about 3 hours - after several adjournments, prosecutions discontinued - power of arrest in Crimes Act 2900 s.352(2) - DC Judge found no reasonable grounds for arrest "The case has all the hallmarks of heavy-handed and officious use of arbitrary power" and awarded $25,000 damages and $5083 interest - both sides applied for leave to appeal - consideration of purpose for which power of arrest without warrant may lawfully be exercised - English authorities distinguished - lawfulness of continued detention for interview - injunction requiring destruction of fingerprint records and photographs refused - held that the damages assessed included aggravated and exemplary damages, and should not be set aside as excessive or inadequate - leave to appeal refused except as to District Court power to grant injunction and as to lawfulness of arrest - appeals dismissed.
LEGISLATION CITED:	Crimes Act 1900 s.59, s.178 BA(1), subs.352(1), (2) District Court Act 1973 s.127(2)(c)(i) District Court Rules 1973 Pt.5 r.6A, s.46, s.83A Interpretation Act 1987 s.9(1) Interpretation Act 1897 s.23 Crimes Act 1914 (Cth) Liverpool Corporation Act 1921 s.531
CASES CITED:	Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 Bales v. Parmeter (1935) 35 SR (NSW) 182 Chung v. Elder (1991) 31 FCR 43 Clarke v. Bailey (1933) SR (NSW) 303 Dallison v. Caffery [1965] 1 QB 348 Director of Public Prosecutions v Carr [2002] NSWSC 194 Donaldson v. Broomby (1982) 40 ALR 525 Drymalik v. Feldman [1966] SASR 227 Dumbell v. Roberts [1944] 1 All ER 326 Ex parte Evers Re Leary (1945) 62 WN (NSW) 146 Fleet v. District Court of New South Wales at [2002] NSWCA 25 Frost v. State of New South Wales [2002] NSWCA 226 Holgate-Mohammed v. Duke [1984] AC 437 Pelechowski v. Registrar, Court of Appeal (1999) 198 CLR 435 R v. Banner [1970] VR 240 Ruddock v. Taylor [2003] NSWCA 262 Smith v. Corrective Services Commissioner of (NSW) (1980) 147 CLR 134 State of New South Wales v. Coleman [2000] NSWCA 183 Williams v. The Queen (1986) 161 CLR 278
PARTIES :	(1) CA 40091/04: George Zaravinos - Claimant State of New South Wales - 1st Opponent Mark Oswald Jenkins - 2nd Opponent Melinda Horan - 3rd Opponent (2) CA 41221/03: State of New South Wales - 1st Claimant Mark Oswald Jenkins - 2nd Claimant Melinda Horan - 3rd Claimant George Zaravinos - Opponent
FILE NUMBER(S):	CA 40091/04 and 41221/03
COUNSEL:	P. Menzies QC and P. Sternberg - Opponents (1)/Claimants (2) G. Ellis and A.S. Kostopoulos - Claimant (1)/Opponent (2)
SOLICITORS:	I V Knight, Crown Solicitor - Opponents (1) / Claimants (2) Greg Walsh & Co - Claimant (1) / Opponent (2)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 7307/01
LOWER COURT JUDICIAL OFFICER :	Walmsley DCJ

40091/04
41221/03

Santow JA
Bryson JA
Adams J

FRIDAY 10 DECEMBER 2004

ZARAVINOS v. STATE OF NEW SOUTH WALES & 2 ORS

STATE OF NEW SOUTH WALES & 2 ORS v. ZARAVINOS

Judgment

1 SANTOW JA: I agree with Bryson JA.

2 BRYSON JA: On 10 December 2003 his Honour Judge Walmsley SC in the District Court at Sydney gave judgment for $30,083.00 for George Zaravinos (the plaintiff) against the State of New South Wales, Superintendent Jenkins and Ms Melinda Horan (who were the defendants). Mr Zaravinos claimed damages and other remedies relating to charges made against him at Penrith Police Station on Saturday 6 November 1999. At that time Superintendent Jenkins was an Inspector and Ms Horan was a Constable in the New South Wales Police Service; she has since left that Service. Ms Horan charged Mr Zaravinos with assault against Nickolas Horvardas at Werrington County on 2 November 1999, an assault occasioning actual bodily harm under s.59 of the Crimes Act 1900. Superintendent Jenkins made two charges of obtaining money by deception under s.178BA(1) of the Crimes Act 1900, one of obtaining $53,000 by deception from Nickolas Horvardas between 1 January 1995 and 8 December 1995, and one of obtaining $53,000 by deception from George Kittirtzis between 1 January 1995 and 30 June 1995.

3 Mr Zaravinos attended at Penrith Police Station by an appointment for interview which Ms Horan arranged with him by telephone. Soon after he arrived he was first arrested by Ms Horan and told of the charge she intended to make. This was a complete surprise to him as he expected only to be interviewed at the Police Station. Soon after that Superintendent Jenkins told him to the effect that “Since you are here I might as well charge you with that other matter” and went on to tell him that he was arrested on the two charges of obtaining money by deception. Superintendent Jenkins also told him that he would not be released unless he surrendered his passport. Mr Zaravinos arranged by telephone for his passport to be brought to the Police Station, and his son brought the passport there soon afterwards. Mr Zaravinos then had an electronically recorded interview with Ms Horan relating to the assault charge. Then after some delay he was given bail by another member of the Police Service whom I refer to as the Bail Sergeant; that person was not well identified and did not give evidence, but was someone other than Superintendent Jenkins and Ms Horan. During the course of these events Mr Zaravinos was fingerprinted and photographed. Court Attendance Notices were prepared, and were given to him.

4 The times and sequence of the events were contentious in some respects, and were established, by findings by the Trial Judge or by their not being contentious, as follows:

1707 Zaravinos [arrived] at Penrith Police Station, arrested, taken to Custody Manager and charged.
1722 Zaravinos rang his ex-wife’s telephone number.
1728 Zaravinos was taken to the interview room for a recorded interview.
1730 – 1800 During this period Mr Zaravinos’ son arrived at the police station with Mr Zaravinos’ passport.
1750 Recorded interview commenced.
1837 Recorded interview concluded.
1841 Zaravinos placed in dock.
2010 Receipt issued for passport.
2025 Zaravinos charged and bailed.
2030 Zaravinos signs receipt on custody records.

5 That is to say, with approximations of only a few minutes, Mr Zaravinos was effectually detained for about 3 hours and 23 minutes and part of that time from 1728 to 1837 hours, that is 1 hour and 9 minutes, was taken up by the recorded interview.

6 The Court Attendance Notices directed Mr Zaravinos to appear at Penrith Local Court on 1 December 1999 to answer each charge. He did so, and he told the Local Court that he was not guilty of the charges. The charges were adjourned several times, and after some months they were withdrawn and the prosecutions ended.

7 The action initiated by Mr Zaravinos went to trial in the District Court on pleadings, and Mr Zaravinos’ claims appeared from his Further Amended Ordinary Statement of Claim of 15 March 2002. The Further Amended Ordinary Statement of Claim is more a narrative than a pleading, but it clearly based the action on one count for false arrest and imprisonment at the Penrith Police Station on 6 November 1999, beginning with the two arrests and concluding when Mr Zaravinos was granted bail, and on another count for malicious prosecution. The Trial Judge determined that Mr Zaravinos was not entitled to recover damages for malicious prosecution, and that claim is not involved on appeal. The question whether Mr Zaravinos’ arrests and detention were lawful turned on the course taken first by Ms Horan and very soon afterwards by Superintendent Jenkins of arresting Mr Zaravinos, charging him with offences and detaining him until he was given Court Attendance Notices and, after more than three hours, released on bail. The alternative was open to the defendants to commence prosecutions by laying Informations in the Local Court and obtaining Summonses. They did not take that course and the Trial Judge determined that they did not lawfully exercise their powers of arrest. The Trial Judge gave judgment for Mr Zaravinos based on this finding and awarded damages.

8 The defendants and also the plaintiff seek leave to appeal against Walmsley DCJ’s judgment. The defendants require leave to appeal under s.127(2)(c)(i) of the District Court Act 1973 as they challenge a judgment against them which is less in value than $100,000. The plaintiff requires leave to appeal for the same reason, as Mr Zaravinos was not prepared to undertake to prove that his claim involves a matter of issue amounting to or of the value of $100,000 or more; although he contends that the damages award should have been higher, he does not undertake to establish that it should have been more than $100,000. In conformity with an earlier direction, the parties presented at the hearing of their applications for leave to appeal the arguments which they wish to be considered on the proposed appeals.

9 During the hearing of the application for leave to appeal Mr Zaravinos’ counsel contended that the claim for false imprisonment related not only to there being, in the circumstances, no effectual exercise of any power of arrest but also and irrespective of the legality of the arrests, to Mr Zaravinos’ being kept in detention for a longer period than was necessary. The careful reasons given by the Trial Judge do not, to my reading, reflect an understanding that inappropriately lengthy detention was separately before him for adjudication. Mr Zaravinos’ counsel contended that expressions in the Further Amended Ordinary Statement of Claim showed that this claim was in issue and should have been adjudicated on; and contended that it should be considered on appeal.

10 The Further Amended Ordinary Statement of Claim contains allegations and particulars asserting that the imprisonment was unlawful and was not justified in the circumstances, and other expressions which clearly show that Mr Zaravinos alleged false arrest and imprisonment. Paragraph 11 alleges among other things:

The plaintiff was searched and kept in the police cells at the Penrith Police Station for approximately three hours and then granted bail.

At para.19 it is alleged:


As a consequence of the aforesaid imprisonment, arrest and prosecution:

(a) The plaintiff was held in a police cell at Penrith Police Station for some two hours on 6 November 1999.
…

11 These allegations do not in my opinion raise in a clear way an identifiably separate claim or count that the detention was unduly or unlawfully prolonged. All the circumstances of the detention, the events during the detention and its length were relevant to the claim for damages for false arrest and imprisonment, and the parties placed before the Trial Judge the evidence on which they wished the action to be adjudicated. The Trial Judge upheld the plaintiff’s claim based on false arrest and imprisonment, and awarded damages on that footing.

12 The defendants seek leave to appeal against the Trial Judge’s finding that the arrests and detention of Mr Zaravinos were unlawful. The Notice of Grounds of Defence of all defendants dated 3 September 2003 contains a number of denials, admissions and statements of non-admission of the allegations in Mr Zaravinos’ Further Amended Ordinary Statement of Claim, but does not in terms allege facts which would show that the arrests and detention were lawful. The Ordinary Statement of Claim was required by Pt.5 r.6A of the District Court Rules 1973 to contain a statement of each cause of action in respect of which the action was brought, and the plaintiff was also required by Pt.9 r.9 to plead specifically any matter which might take the defendants by surprise. The pleadings distinctly and unmistakably show that one claim or count was based on false arrest and imprisonment. However the burden of proving any facts or circumstances which show that the arrests and detention were lawful lay on the defendants, and in compliance with Pt.9 r.9 the defendants should have alleged in their Notice of Grounds of Defence any facts which would show lawful authority to arrest and detain Mr Zaravinos, and to avoid surprise they should have indicated the legal basis on which it was said that the arrests and detention were justified. There does not appear to have been any misunderstanding of the true position in the conduct of the trial, but in hindsight it appears unfortunate that the defendants’ principal ground of defence was not clearly stated in their Notice of Grounds of Defence.

13 No point was taken at any stage to the effect that as Ms Horan’s conduct brought about Mr Zaravinos’ detention, the purported arrest effected by Superintendent Jenkins a few minutes later had no causative effect on his detention. The proceedings were conducted on the basis that the defendants embarked on showing that the conduct of both officers was justified; and it was accepted that the State was vicariously liable for their conduct.

14 The powers of arrest on which the defendants relied are found in subs.352(1) and (2) of the Crimes Act 1900 in these terms:

352 Person in act of committing or having committed an offence

(1) Any constable or other person may without warrant apprehend,

(a) any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act,

(b) any person who has committed a serious indictable offence for which the person has not been tried,

and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law.

(2) Any constable may without warrant apprehend,

(a) any person whom the constable, with reasonable cause, suspects of having committed any such offence,

(b) any person lying, or loitering, in any highway, yard, or other place during the night, whom the constable, with reasonable cause, suspects of being about to commit any serious indictable offence,

and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law.

15 The term “may” in subs.352(2) is to be understood with s.9(1) of the Interpretation Act 1987.

9 Meaning of may and shall

(1) In any Act or instrument, the word “may”, if used to confer a power, indicates that the power may be exercised or not, at discretion.

16 Section 352 has been in effect since the enactment of the Crimes Act 1900, although there have been a number of amendments to its text. It was earlier to be read with s.23 of the Interpretation Act 1897, which was to a similar effect to s.9(1) of the Interpretation Act 1987.

17 The provision on which the defence was based is subs.352(2)(a), and the defendants did not embark on attempting to prove, as subs.352(1)(b) would require, that Mr Zaravinos actually had committed the offences charged. As they acted on complaints and information furnished by others which, according to the terms of the information so furnished, showed that there had been offences, reasonable cause existed for Superintendent Jenkins and Ms Horan to suspect Mr Zaravinos of having committed those offences. In his Honour’s judgment the Trial Judge said:

56. The arrest by Ms Horan was, I think, lawful, in the sense that it was permitted by s.352(1) and (2) Crimes Act 1900 …

57. I am satisfied each of Superintendent Jenkins and Ms Horan with reasonable cause suspected the plaintiff of having committed a serious indictable offence …

18 His Honour went on to deal with what was meant by the reference to a serious indictable offence, but on appeal it is no longer disputed that each of the offences charged was a serious indictable offence. His Honour went on:

58. But the power to arrest without warrant is discretionary. The authorities suggest that to arrest and charge a citizen who is reasonably believed to have committed a serious indictable offence is by no means the only option. There are of course obvious cases for the use of arrest. Reasonable fears of repetition, threats to witnesses, lying low, fleeing the jurisdiction, or the general inability of police to find an accused if he or she fails to attend court when asked to, are factors to take account of …

19 His Honour went on to refer to “The Australian Criminal Justice System” Chappel and Wilson, Butterworths 1972 and to passages in Donaldson v. Broomby (1982) 40 ALR 525 at 525-6, Fleet v. District Court of New South Wales [2002] NSWCA 25 at [73] and Director of Public Prosecutions v Carr [2002] NSWSC 194 at [43]. His Honour then reviewed the evidence of Ms. Horan and Superintendent Jenkins about the reasons why they arrested Mr Zaravinos as distinct from proceeding by Summons. His Honour found that Ms. Horan’s explanation of why a Summons was inappropriate was “disingenuous” and said:

62. There were clear alternatives here to arresting the plaintiff for assault. I am of the view that he should have been summonsed or given a court attendance notice- not arrested. To Ms Horan the assault charge was “trivial.” I am not persuaded she had any reasonable concern about his identity or whereabouts or inclination to attend court.
63. Nor do I consider he should have been arrested and charged with fraud…

20 His Honour reviewed the evidence relating to Superintendent Jenkins’ decision to arrest Mr Zaravinos, and other evidence explaining why he arrested Mr Zaravinos and did not issue a Court Attendance Notice; his Honour found that the evidence on those subjects was not frank. His Honour rejected Superintendent Jenkins’ evidence that he had a “minor fear” that Mr Zaravinos would abscond. From his Honour’s review and conclusions it is plain that his Honour did not regard either Ms. Horan or Superintendent Jenkins as having had reasonable grounds to fear that Mr Zaravinos might not attend the Local Court if summoned. His Honour concluded at [68]:

68. The case has all the hallmarks of heavy-handed and officious use of arbitrary power. The arrest and detention were in my view wrongful. On the claim for wrongful arrest there will be a verdict and judgment for the plaintiff.

21 The meaning and effect of the Trial Judge’s findings and conclusions are that his Honour rejected the explanations put forward for deciding to exercise powers of arrest, and acted on the basis that there were not reasonable grounds for exercising those powers. Notwithstanding his Honour’s statement at [56] of the judgment, which I understand is related to the finding that both arrests were lawful in the sense that they were permitted by s.352, his Honour must be taken to have concluded that there were not reasonable grounds for exercising those powers, and that the purported exercises of the power were unlawful, or (it might be restated) outside the power.

22 The nature of the controversy and the amount involved in the proposed appeal would not, in my view, warrant granting leave to appeal to the defendants if it were not that the proposed appeal raises a question of public importance about whether an exercise of powers of arrest which is, on the face of things, permitted by s.352 of the Crimes Act 1900 may nonetheless be unlawful and tortious. This may have effects on the conduct of future prosecutions and on decisions on whether arrests should be made or Summonses should be issued. There have been several occasions in recent years where the Court of Appeal has noticed or commented on the possibility that an arrest may be lawful but that proceedings on Summons may be appropriate; see Fleet v. District Court of New South Wales at [72]-[74], State of New South Wales v. Coleman [2000] NSWCA 183 at [26]-[27] referring to that passage in Fleet, and Frost v. State of New South Wales [2002] NSWCA 226 at [28]-[31]. In these circumstances leave to appeal should be granted to the defendants, limited to their proposed grounds of appeal relating to powers of arrest.

23 Section 352 does not according to its terms purport to be a code or a whole statement of the power of a Constable or other person to apprehend without warrant. There is no indication in its terms of an intention to displace general principles of law relating to the exercise of discretionary powers conferred by a statute or by law, or relating to powers of arrest. Nor has it been regarded in the law of New South Wales as displacing or being substituted for the general powers and duties of a person effecting an arrest. A statute which authorises the detention of a person must be strictly construed, because the law places a high value on personal liberty: see Williams v. The Queen (1986) 161 CLR 278 at 292 and 296 (Mason and Brennan JJ) and Smith v. Corrective Services Commissioner of (NSW) (1980) 147 CLR 134 at 139. Subsection (2) states in its own terms what the Constable is to do after apprehending a person, that is to take the person and any property before an authorised Justice, and this corresponds to the common law relating to arrest and must be understood as indicating the only proper purpose for which an arrest may be carried out. Questioning and other investigation may take place during the time available between the arrest and a reasonable opportunity to take the person arrested before a Justice: but the time available is not extended so as to allow for questioning or other investigation. See, in Williams v. The Queen, Gibbs CJ at 284, and these passages from the judgment of Mason and Brennan JJ: at 295:

If a person cannot be taken into custody for the purpose of interrogation, he cannot be kept in custody for that purpose, and the time limited by the words “as soon as practicable” cannot be extended to provide time for interrogation. It is therefore unlawful for a police officer having the custody of an arrested person to delay taking him before a justice in order to provide an opportunity to investigate that person’s complicity in a criminal offence, whether the offence under investigation is the offence for which the person has been arrested or another offence.

At 299:

The jealous protection of personal liberty accorded by the common law of Australia requires police so to conduct their investigation as not to infringe the arrested person’s right to seek to regain his personal liberty as soon as practicable. Practicability is not assessed by reference to the exigencies of criminal investigation; the right to personal liberty is not what is left over after the police investigation is finished.

See too Wilson and Dawson JJ at 305-306.

24 Whether or not the power to arrest is seen as having its source only in subs.352(2), or whether that subsection operates in the context of the common law of arrests which continues to have effect, the exercise of such power is subject to restrictions which affect exercise of powers conferred for public purposes generally. Such power must be exercised in good faith, and it must be exercised for the purposes for which it was conferred. Even if there are grounds, circumstances or good reasons which a reasonable person could regard as requiring that a person be arrested and taken before a Justice if a prosecution is to be conducted in an effective manner, and even if on the face of things an arrest is permitted by s.352(2) in the sense that a Constable in truth suspects the person arrested of having committed an offence, and there is reasonable cause for the Constable so to suspect, there must be more: there must be an exercise of the discretion alluded to by the word “may”, and it must be an effectual exercise. Literal fulfilment of subs.352(2)(a) is not enough.

25 I should begin by setting out a statement in relatively simple terms from the judgment of Davidson J for the Supreme Court in Banco in Clarke v. Bailey (1933) SR (NSW) 303 at 309:

Section 352 of the Crimes Act, 1900-1924, provides that any constable may, without warrant, apprehend any person whom he, with reasonable cause, suspects of an offence punishable on summary conviction, and take him and any property found upon him before a justice to be dealt with according to law.
At common law it was compulsory for a constable, in order to justify an arrest, to shew that he had taken the arrested person without delay, and by the most direct route, before a justice, unless some circumstances reasonable justify a departure from these requirements: Wright v. Court (4 B. & C. 596). And, in my opinion, the effect of the section is merely to reinforce the common law principle, and is not intended to give the constable discretion in the matter except to the same extent as existed before.

26 This passage shows that s.352 has not been regarded in New South Wales as substituting its provisions for the common law, but as reinforcing the common law principles. This view has not been departed from since Clarke v. Bailey. The passage also shows that in order to justify an arrest and show that it was lawful, it is not enough simply to point to fulfilment of circumstances mentioned in subs.352(2)(a).

27 The English case Holgate-Mohammed v. Duke [1984] AC 437 relates to an action for damages for wrongful arrest where a Constable, exercising power under a statutory provision with a general but not exact resemblance to subs.352(2), arrested the plaintiff on suspicion that she had stolen jewellery and took her to a police station where she was questioned. She was not charged with an offence and was released within six hours of arrest. Lord Diplock delivered the only speech in the House of Lords on the appeal; other Law Lords concurred. Lord Diplock spoke of the existence, with reasonable cause, of a suspicion that an arrestable offence had been committed as a condition precedent to a Constable’s having power lawfully to arrest without warrant; see 442E-F. His Lordship went on at 443 to deal with the discretion to arrest without warrant. The context of facts did not bring a choice between arrest and Summons under consideration. His Lordship said:

So the condition precedent to Detective Constable Offin’s power to take the appellant into custody and the power of the other constables at Southsea Police Station to detain her in custody was fulfilled; and, since the wording of the subsection under which he acted is “ may arrest without warrant,” this left him with an executive discretion whether to arrest her or not. Since this is an executive discretion expressly conferred by statute upon a public officer, the constable making the arrest, the lawfulness of the way in which he has exercised it in a particular case cannot be questioned in any court of law except upon those principles laid down by Lord Greene M.R. in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B. 223, that have become too familiar to call for repetitious citation. The Wednesbury principles, as they are usually referred to, are applicable to determining the lawfulness of the exercise of the statutory discretion of a constable under section 2(4) of the Criminal Law Act 1967, not only in proceedings for judicial review but also for the purpose of founding a cause of action at common law for damages for that species of trespass to the person known as false imprisonment, for which the action in the instant case is brought.

The first Wednesbury principle is that the discretion must be exercised in good faith. The judge in the county court expressly found that Detective Constable Offin in effecting the initial arrest acted in good faith. He thought that he was making a proper use of his power of arrest. So his exercise of that power by arresting Mrs. Holgate-Mohammed was lawful, unless it can be shown to have been “unreasonable” under Wednesbury principles, of which the principle that is germane to the instant case is: “he [sc. The exerciser of the discretion] must exclude from his consideration matters which are irrelevant to what he has to consider.”

28 In my respectful view this passage in Lord Diplock’s speech states clearly the basis for the view that the validity of an exercise of statutory power to arrest under subs.352(2) is not established conclusively by showing that the circumstances in subs.352(2)(a) exist, and that the validity of the decision to arrest and the lawfulness of the arrest also depend on the effective exercise of the discretion alluded to by the word “may”.

29 Substantially the same view is expressed in the judgment of the Supreme Court of South Australia (Napier CJ, Bright and Mitchell JJ) in Drymalik v. Feldman [1966] SASR 227 at 231 where their Honours said:

In our view, therefore, the appellants, when they arrested the respondent, honestly believed, on reasonable grounds, that he had committed an offence.
However, that is not an end of the matter. The power, which s.75 of the Police Offences Act 1953-1961 entrusts to every member of the Police Force, is admittedly very wide indeed, but that, as it seems to us, imports a power that has to be exercised within the limits, and for the purposes, contemplated by the enactment. It seems to us that it is incumbent on this Court to insist upon this view of the enactment. So that, even if the arrest is effected ostensibly in execution of the statutory power and within its letter, it must nevertheless be held not to come within the power, unless it is effected in good faith, and for the purposes contemplated by the enactment ( Maxwell on the Interpretation of Statutes 9th ed (1946) p.129; Stockton & Darlington Railway Co. v Brown (1860) 9 H.L.C. 246, at p.256 (11 E.R. 724. at p. 728).
…
We think therefore that the appellants were rightly adjudged guilty of the tort of false imprisonment, but we cannot, with all respect, accept the basis upon which that finding has proceeded. We think that the appellants had reasonable grounds for suspecting that the plaintiff had committed the offence for which the appellants purported to arrest him, and, if he had been taken before the justice without unnecessary delay, the plaintiff would have had no ground of complaint. But if the purpose of the arrest was to afford an opportunity for questioning, then the arrest was unlawful, and, be that how it may, the detention whilst the plaintiff was being questioned was unlawful.

30 Lord Diplock eschewed repetition of the Wednesbury principles. Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 contains a classic exposition of principles which has been applied many times in England and in Australia when examining validity of exercise of statutory and common law powers of many different kinds. It seems useful to refer to the judgment of Lord Greene MR in Wednesbury at 228-229 on the power of the Courts to review an exercise of discretion by an executive authority. His Lordship said:

When an executive’s discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the courts in a strictly limited class of case. As I have said, it must always be remembered that the court is not a court of appeal. When discretion of this kind is granted the law recognises certain principles upon which that discretion must be exercised, but within the four corners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any court of law. What then are those principles? They are well understood. They are principles which the court looks to in considering any question of discretion of this kind. The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral maters. There have been in the cases expressions used relating to the sort of things that authorities must not do, not merely in cases under the Cinematograph Act but, generally speaking, under other cases where the powers of local authorities came to be considered. I am not sure myself whether the permissible grounds of attack cannot be defined under a single head. It has been perhaps a little but confusing to find a series of grounds set out. Bad faith, dishonesty-those of course, stand by themselves- unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that have all been referred to, according to the facts of individual cases, as being matters which are relevant to the question. If they cannot all be confined under one head, they at any rate, I think, overlap to a very great extent. For instance, we have heard in this case a great deal about the meaning of the word “unreasonable.”
It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the work “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation [1926] Ch.66, 90, 91 gave the example of the red-hared teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.

31 When Lord Diplock went on in Holgate-Mohammed v. Duke to apply the Wednesbury principles his Lordship reached a conclusion which, it is altogether clear, would not be reached in Australian law because his Lordship treated the following as relevant to the exercise of the discretion:

Detective Constable Offin thought that she would be more likely to confess to what he had reasonable cause to believe to be the truth, if she were arrested and taken for questioning to the police station. In other words, the reason why Detective Constable Offin arrested her was that he held the honest opinion that the police inquiries were more likely to be fruitful in clearing up the case if Mrs. Holgate-Mohammed were compelled to go to the police station to be questioned there…

32 In Australian law such conclusion is clearly not a relevant basis, but is a vitiating basis on which to decide to effect an arrest. There is marked divergence between the law as understood in England, commencing with Dallison v. Caffery [1965] 1 QB 348 in which Lord Diplock as Diplock LJ was a member of the Court of Appeal, and the law in Australia, distinctly stated in Williams v. The Queen and appearing also in many other places. Mason and Brennan JJ in Williams v. The Queen reviewed and stated the Australian law at 292-299, referring to the authorities theretofore, the leading authorities being Bales v. Parmeter (1935) 35 SR (NSW) 182 at 188-190 (Jordan CJ) and R v. Banner [1970] VR 240 at 249-250. There are statements in Bales v. Parmeter at 188 to the effect that an arrest merely for the purpose of asking questions is not lawful; and in Ex parte Evers Re Leary (1945) 62 WN (NSW) 146 at 147 (Maxwell J) to the effect that because the arrest was for the purpose only of questioning it was at all times illegal.

33 The passages from the judgment of Jordan CJ in Bales v. Parmeter show that a purported exercise of the power of arrest for a purpose extraneous to the purpose of taking the person arrested before a magistrate is not authorised by law. At 188, his Honour said:

Where the imposition of physical restraint is authorised by law it may be imposed only for the purpose for which it is authorised.

At 190, his Honour said:

If a person has been arrested, and is in process of being brought before a magistrate questioning within limits is regarded as proper in New South Wales…; but a police officer has no more authority to restrain the liberty of a suspected person for the purpose, not of taking him before a magistrate, but of interrogating him, than he has of restraining the liberty of a person who may be supposed to be capable of supplying information as a witness.

I have omitted a part of this passage in which Jordan CJ referred to what then was, but no longer is, the law in England.

34 On behalf of the defendants it was contended to the effect that, whereas the power to arrest without warrant is discretionary, the discretion referred to was only relevant to the decision to arrest or not to arrest, and did not relate to a decision whether to arrest or to proceed by Summons. It was contended that Fleet v. District Court of New South Wales, to which the Trial Judge referred, was not authority for the proposition that a wrongful arrest could be committed in circumstances where the arrest itself was lawful, meaning that it fell within subs.352(2)(a). This contention is correct: in Fleet Handley JA (with whom Mason P and Priestley JA concurred), observed at [73] “Lawfulness of arrest is one thing, appropriateness is another” and made observations which show the importance of the distinction, but his Honour regarded it as inappropriate to express any view as to the lawfulness of the claimant’s arrest (see [72]).

35 Counsel for the defendants contended that the Trial Judge had failed to consider Frost v. The State of New South Wales. In oral submissions in Frost an argument was put which did not appear in the written submissions, and counsel for the appellant submitted that the tort of wrongful arrest could be committed even though the arrest itself was lawful. Counsel argued that this could occur simply on the basis that this arrest was “inappropriate” which at one point in his argument he equated with “unreasonable”. Foster AJA at [29] said to the effect that in his Honour’s opinion there was no support in the authorities for an argument which counsel had presented. His Honour did not accept this argument, of which it must be said that it does not appear to have been presented in a clear or well-considered way, because, as the argument was recounted by Foster AJA, evaluating the grounds for the exercise of discretion whether or not to arrest was precluded by the initial premise that the arrest itself was lawful.

36 The defendants’ counsel also observed that authorities referred to in Fleet relate to statutory powers of arrest which contain specific provisions for the exercise of the discretion to proceed by Summons. It was submitted to the effect that in the absence of any legislative provision requiring a Constable to decide whether or not a Summons was appropriate, a finding that a Summons or a Court Attendance Notice could have issued did not show that an arrest under s.352 was unlawful. In one of these authorities, Dumbell v. Roberts [1944] 1 All ER 326, s.531 of the Liverpool Corporation Act 1921 as set out at pp327-328 does not refer to a choice between arrest and Summons. The section bears a general but not close resemblance to subs.352(1), not subs.352(2). That case was decided on the absence of strict compliance with statutory conditions for arrest. References to the possibility of proceeding on Summons were only incidental to the matter under consideration, but I note that at 332 Goddard LJ said:

In giving this power of arrest Parliament obviously contemplated that it was only to be used if it was necessary to ensure the suspect being brought before the court. If his name and address could be ascertained the police could proceed by summons, which is the proper course to take in the case of misdemeanours or summary offences unless, where there is power to arrest, there is reason to believe a summons would not be effectual.

Another authority referred to by the defendants’ counsel is Chung v. Elder (1991) 31 FCR 43 (Foster J) which is related to a decision under s.8A of the Crimes Act 1914 (Cth) under which the Constable was expressly required to consider whether to proceed by Summons. The decision does not relate to a Constable’s arrest without warrant, but to the issue of a warrant by a Justice, and was referred to by Handley JA in Fleet , as I understand it to exemplify the importance of considering which course, proceed by arrest or by Summons, was appropriate, although in Chung v. Elder the consideration was required by a Justice and not by a Constable.

37 In the present case the burden of proof that the arrest and detention were lawful fell on the defendants under the defence of justification which was attributed to them. Even if the circumstances mentioned in subs.352(2)(a) exist, the lawfulness of the arrests of Mr Zaravinos are examinable, and the arrests were not lawful unless each decision to arrest was made in good faith and for the purposes for which the power to arrest exists, that is, the purposes of bringing the person arrested before a Justice and conducting a prosecution; and not for some extraneous purpose. Arresting a person for the purpose of questioning him and investigating the circumstances of the suspected offence or of any other offence is arrest for an extraneous purpose. It is even more clearly an extraneous purpose to arrest a person as a piece of unnecessary highhanded and humiliating behaviour in circumstances in which arrest is not reasonably necessary for the effective conduct of a prosecution. The availability of Information and Summons as an alternative course, and the considerations favouring and adverse to taking that alternative course, are relevant where the validity of the exercise of the power to arrest is in question.

38 Whether or not the arrests themselves were lawful, the burden of proof of the lawfulness of the continuance of the detention throughout the period rested on the defendants. There are no findings, and I cannot see that there was evidence of any reasonable explanation for Mr Zaravinos’ detention lasting as long as it did. Even if it was reasonable (as arguably but not clearly it was) to require that Mr Zaravinos surrender his passport as a condition of bail, the passport had been brought to the police station by about 1800 hours, and it was appropriate to proceed to a decision about the grant of police bail, with any necessary formalities including the preparation of charge sheets, Court Attendance Notices and any other necessary records. If it was appropriate to defer these formalities until completion of the recorded interview at 1837 hours, which was followed shortly afterwards by Mr Zaravinos’ being placed in the dock, it was for the defendants to show what explanation existed for the further delay until 2030 hours before Mr Zaravinos was finally able to leave. Some formalities which police officers regarded as necessary may well have been fulfilled in that time, perhaps taking photographs, recording fingerprints, or preparing documents; but there is no evidence explaining how the time was used. Oral evidence of Ms. Horan under cross-examination, although it does not provide a complete explanation, seems to show that she was of the view that there was a three-hour limit to the time during which Mr Zavarinos could be held, and that it was enough to comply with the limit. The basis for her having that impression was not provided, and it does not correspond with any legal rule. The burden of proof of an explanation lay on the defendants, and in the absence of an explanation, lack of appropriately prompt attention to the steps necessary for Mr Zaravinos’ release was among the matters relevant to the question whether the arrests were effected for a proper purpose. It was also relevant to aggravated and exemplary damages.

39 The time at which Mr Zaravinos was arrested, soon after 5 pm on a Saturday afternoon, was probably close to the nadir of availability of magistrates and authorised Justices, and also of lawyers able to give advice to persons under arrest. Although authorised Justices are available at a small number of courts on Sundays, there was really no rational prospect of Mr Zaravinos’ arrests ending in any other way than with his being granted police bail later that night; there were not imaginably reasons why, with his passport available to be surrendered, a Bail Sergeant would decide to keep him in custody until he could be taken before an authorised Justice on the following day Sunday or on Monday. The Trial Judge did not accept the contention that there was “a minor fear” that Mr Zaravinos might abscond but if there were, it was dealt with as fully as it reasonably could be when his passport was brought to the Police Station by 6 pm. As the Trial Judge rejected the evidence given by Superintendent Jenkins and Ms Horan about their reasons for effecting arrests, conclusions to the effect that the arrests were heavy-handed and officious uses of arbitrary power, and that the arrests and detention were wrongful, were reasonably open to the Trial Judge and his Honour could hardly find otherwise.

40 Mr Zaravinos also seeks leave to appeal in relation to the fingerprint records and police photographs, and he wishes to challenge a decision of the Trial Judge holding that his Honour did not have the power to make, and refusing to make an order that fingerprint records and police photographs of the plaintiff be destroyed. This ground of appeal raises consideration of the powers and limits on the powers of the District Court to grant injunctions, and on the civil remedies available where people in unlawful custody are fingerprinted and photographed. The importance of these powers, to Mr Zaravinos, to the Police Service and to the public generally requires that leave be granted.

41 In the last paragraph of his Honour’s judgment of 10 December 2003 the Trial Judge said:

73. Though the claims for malicious prosecution have been unsuccessful, the plaintiff has proved the prosecutions were dismissed. His finger prints and photographs ought be destroyed. I shall hear counsel on the appropriate order.

42 Later the Trial Judge heard argument on this matter and on 15 December 2003 declined to make any order dealing with this subject. In his Honour’s view what his Honour was asked to make was a mandatory injunction for the destruction of fingerprints and photographs. His Honour said: “I am not persuaded that a mandatory injunction to destroy fingerprints and photographs fits the description of an ‘injunction ancillary to the exercise of the Court’s jurisdiction to dispose of the action’ for wrongful imprisonment within the meaning of the expression in s.46.” His Honour earlier referred to the jurisdiction of the Court to hear or dispose of an action conferred by s.46 of the District Courts Act 1973 and the jurisdiction to make an injunction conferred by s.46.

43 Section 46 is in the following terms:

46 Ancillary equitable relief: injunctions

(1) Without affecting the generality of Division 8, the Court shall, in any action, have power to grant any injunction (whether interlocutory or otherwise) which the Supreme Court might have granted if the action were proceedings in the Supreme Court.

(2) In relation to the power of the Court to grant an injunction under this section:

(a) the Court and the Judges shall, in addition to the powers and authority otherwise conferred on it and them, have all the powers and authority of the Supreme Court and the Judges thereof in the like circumstances,

(b) the appropriate officer of the Court shall, in addition to the duties otherwise imposed on the officer, discharge:

(i) any duty which an officer of the Supreme Court would be required under the practice of the Supreme Court to discharge in the like circumstances, and
(ii) any duty imposed on the officer by the rules or by any order of the Court,

(c) the practice and procedure of the Court shall, so far as practicable and subject to this Act and the rules, be the same as the practice and procedure of the Supreme Court applicable in the like circumstances, and

(d) without affecting the generality of the foregoing provisions of this section, the powers, authority and duty conferred by paragraphs (a) and (b), and the practice and procedure of the Court referred to in paragraph (c) shall, subject to the rules, extend to the enforcement of any order of the Court made in connection with proceedings for the grant of the injunction.

(3) Without affecting the generality of any other provision of this Act authorising the making of rules, the rules may make provision for or with respect to:

(a) the procedure to be followed with respect to the granting and enforcing of an injunction under this section, and

(b) any other matter necessary or convenient for giving effect to this section.

44 The jurisdiction conferred on the District Court by s.46 was extensively considered in judgments in the High Court in Pelechowski v. Registrar, Court of Appeal (1999) 198 CLR 435. That case relates to the jurisdiction of the District Court to make an asset preservation order, sometimes referred to as a Mareva Order, ancillary to proceedings for enforcement of a judgment debt. The holding of the majority (Gaudron, Gummow and Callinan JJ) at 449 [44] is to the effect that:

It is apparent that the injunctive remedy for which provisions is made in s.46 in ancillary to the exercise of the jurisdiction of the District Court to hear and dispose of the actions specified in s.44. These are essentially in the nature of claims for damages for wrongs or other invasions of legal rights, titles and interests.

45 Their Honours went on to hold to the effect that s.46 did not extend to post-judgment remedies in aid of execution or other enforcement of a judgment debt. This holding has no real relation to Mr Zaravinos’ claim for an injunction. His claim is to the effect that taking fingerprints and photographs was part of the events constituting his unlawful false imprisonment, and that the appropriate remedies for the unlawful false imprisonment included not only the award of damages but also a mandatory injunction requiring destruction of the photographs and fingerprints which were wrongfully taken as part of the false imprisonment.

46 It is not a tort merely to take a person’s photograph. It is a tort, a trespass, to compel a person to participate in having his fingerprints recorded purportedly but not actually under lawful authority. Mr Zaravinos claimed remedies for false imprisonment, not for trespass in taking his fingerprints. It is not a tort for the State or its officers to have the fingerprint records so made in their possession, or to retain them. Mr Zaravinos’ counsel did not refer to any tort for which the proposed injunction would be a remedy other than the false imprisonment itself. In some contexts legislation may provide for the delivery up of such records, but except where there is some statutory obligation to do so, a person in Mr Zaravinos’ position has no legal or other right to have the photographs or fingerprints delivered up or destroyed to judicial enforcement of which a mandatory or other injunction would be ancillary. In my opinion the Supreme Court would not have power to make such an injunction, and in consequence s.46 does not confer any corresponding power on the District Court.

47 Mr Zaravinos applies for leave to appeal to challenge the Trial Judge’s award of damages and to raise contentions that the Trial Judge failed to consider his claims for aggravated and exemplary damages, that his Honour should have awarded damages under those headings, and that his Honour erred in excluding the period relating to the recorded interview from the assessment of damages and awarded inadequate general damages. The defendants also seek leave to appeal against the Trial Judge’s award of damages and contend that the damages awarded by the Trial Judge were excessive.

48 At [71] of the judgment the Trial Judge, dealing with the period of restraint, said:

71. The defendants submit the interview period should be excluded from my consideration, as it was a ‘voluntary’ restraint. With some hesitation, since a person wrongfully and unexpectedly arrested is in such a position more likely to agree to an interview, I have done so. The defendants submit the time in involuntary custody was two hours and six minutes. I find the time was 2-3/4 hours.

From this it appears that the Trial Judge did not, when awarding damages, treat the time taken by the interview as a detention for which damages should be awarded. His Honour did not examine in detail or make findings on what it was that brought about the interval between the conclusion of the interview at 1837 hours and Mr Zaravinos’ being bailed at 2025 hours. Mr Zaravinos’ counsel wishes to contend that his Honour was in error in both these respects.

49 In his Honour’s judgment, after a lengthy passage reviewing the evidence of Ms Horan and Superintendent Jenkins about their reasons for effecting arrests rather than proceeding on Summons, and other aspects of their conduct, the Trial Judge said:

72. The detention was unnecessary, highhanded, humiliating and unnecessarily long. I accept the plaintiff’s evidence of his humiliation and distress. I think the appropriate award for general damages is $25,000.00. I add interest of 4% on the whole sum, or $5,083.00. I have used 4% as almost all of the damages relate to the period of detention.

50 In my view it appears clearly that the Trial Judge did intend to award both aggravated and exemplary damages, and it is not reasonably arguable that his Honour did not intend to do so, or that his Honour did not do so. The basis and only strength of the view that his Honour did not award such damages are in the word “general” in the third sentence of [72]. While the word is unfortunate, I regard it as clear that the assessment of $25,000 related to the subjects which had been mentioned in the immediately preceding two sentences, that is, to “unnecessary, highhanded, humiliating and unnecessarily long” detention which caused Mr Zaravinos humiliation and distress. These subjects are at the heart of aggravated and exemplary damages. General damages could only have a small part in the assessment of damages; there is no alternative remunerative disposition of his time which Mr Zaravinos was shown to have had an opportunity to make if he had not been detained at Penrith Police Station.

51 Aggravated and exemplary damages are the real subjects for consideration, and the not inconsiderable sum of $25,000 assessed immediately after his Honour’s reasonably clear references to those classes of damages must have been intended to include allowances for them; I do not regard the contrary as reasonably arguable. The principal elements for consideration were the shock and affront to Mr Zaravinos’ feelings brought about by violation of his right to liberty, and punishment of unnecessarily highhanded and humiliating behaviour by the defendants; the amount awarded should reasonably be seen as including ample sums for these. Allowance of interest on the whole sum is not, in my view, indicative of whether or not these classes of damages were allowed for; it was within the discretion conferred by s.83A of the District Court Act 1973 to allow interest on the whole sum.

52 It is reasonably arguable that his Honour should have treated the time in involuntary custody as in the order of three and a half hours not two and three-quarter hours, but the difference could have little effect on the outcome and is not an appropriate subject for leave to appeal. Damages are not capable of being related proportionately to the length of the period of detention, and “a substantial proportion of the ultimate award must be given for what has been described as ‘the initial shock of being arrested’”. – Ruddock v. Taylor [2003] NSWCA 262 Spigelman CJ at 49. That substantial proportion of the ultimate award of damages could not vary according to whether the detention was for about two and three-quarter hours or for about three and a half hours.

53 Neither party advanced any concrete reason for regarding the assessment of damages on the one hand as excessive or on the other hand inadequate; the range of available conclusions is wide and I see no concrete reason for thinking that the assessment by the Trial Judge was unsatisfactory. In my opinion neither party should have leave to appeal on damages.

54 Orders:

In Ordinary Summons 40091/04 Zaravinos v State of New South Wales and Others

1 Grant leave to appeal limited to the powers of the District Court to grant injunctions.

2 Direct that Notice of Appeal be filed and served within seven days.

3 Dismiss the appeal.

In Ordinary Summons 41221/03 State of New South Wales and Others v Zaravinos

4 Grant leave to appeal limited to the proposed grounds of appeal relating to powers of arrest.

5 Direct that Notice of Appeal be filed and served within seven days.

6 Dismiss the appeal.

7 In each Ordinary Summons order that each party pay and bear its, his or her own costs of the Ordinary Summons and of the Appeal.

55 ADAMS J: I agree with the orders proposed by Bryson JA and with his Honour’s reasons for them.

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Last Modified: 12/15/2004