The submissions of counsel
21On the second application for judgment under Part 29 r 10, Mr Menzies submitted that since in the course of argument on the first application Mr McAuley conceded that at the time the plaintiff was arrested there was evidence to ground a suspicion which warranted further investigation (including putting the allegation of collusion to the plaintiff in the course of police questioning), and since he made the further concession that the evidence established that the plaintiff was in fact arrested on suspicion of having committed the offence of larceny, he must be taken to have had abandoned any reliance on Particular 4.1 pleaded in support of the plaintiff's claim of wrongful arrest and Particular 5.1 pleaded in support of the claim of false imprisonment.
22On enquiry, and despite some prevarication on Mr McAuley's part as to the adequacy of the evidence to ground the relevant suspicion, he confirmed the position that it was no longer to be asserted that the arrest was unlawful because the police officer did not in fact suspect, and on reasonable grounds, that the plaintiff had committed a criminal offence. He went further and conceded that she was in fact arrested on suspicion of having committed a criminal offence.
23That concession must have been made by counsel in light of the evidence that was available to the police officer at the time of arrest and the plaintiff's evidence as to what was said to her at the time of her arrest. Were it the plaintiff's case that Detective Cosgrove did not exercise the power to arrest without warrant on the basis of reasonable suspicion but for the unlawful purpose of questioning her, I can only assume the concession to which I have referred would not have been made and counsel would have placed unqualified reliance upon the police officer's narrative account as supporting an improper basis for arrest, namely for questioning.
24Since this was not a case that Mr McAuley sought to maintain, the apparent discrepancy between the plaintiff's evidence of the circumstances of the arrest and the police officer's narrative account is forensically redundant.
25Mr McAuley also conceded that for practical purposes Particulars 4.2, 4.3 and 4.5 had no material bearing on lawfulness of her arrest in the circumstances. Accordingly, the plaintiff's case depended upon the sufficiency of proof in the remaining two particulars (or either of them) to support her claim that the arrest was unlawful.
26Understood in this way Mr Menzies submitted that reliance on the provisions of s 352(2) of the Crimes Act as particularised in 4.4 (namely that the arrest was unlawful because the plaintiff was not immediately taken before a justice to be dealt with according to law) was insufficient to make out the plaintiff's case and that 4.6 does not take the case any further. He submitted that the arrest must be considered in the context of the investigative powers afforded the police officer under Part 10A of the Crimes Act and that the plaintiff's case, as re-particularised, suffers from an apparent failure to appreciate that s 354 of the Crimes Act (within Part 10A) expressly provides that a person who is under arrest may be detained by a police officer to enable the investigation of the person's involvement in the commission of an offence, despite any requirement imposed by law to bring that person before a justice, magistrate or court without delay. Under s 356D, an investigation period of four hours is specified within which a person arrested may be detained. The purposes of investigation in s 356C expressly include detention for the purpose of investigating whether the person committed the offence for which the person is arrested. The defendant relied upon the analysis given to this very question in Director of Public Prosecutions v Nicholls [2001] NSWSC 523; 123 A Crim R 66 where Adams J reasoned in the following way:
[11] It is clear that an arresting officer may well, and should, have in mind the possible use of the powers to investigate after arrest provided by Part 10A of the Act and to the object of that Part to authorise detention for the specified period for the purpose of such investigation "despite any requirement imposed by law to bring the person before a justice": s 354(b). It is not altogether easy to reconcile s 356B with the other provisions of Part 10A, having regard to the expanded meaning of the phrase "under arrest" in s 355(2) of the Act. Paragraph (c) of that definition comprehends restraint on a person's liberty which would not necessarily be lawful under the common law, whilst paragraphs (a) and (b) are satisfied if there is no restraint of any kind at all. Thus, paragraph 355(2)(a) has the effect that, "a person who is in the company of a police officer for the purpose of participating in an investigative procedure" that person is "under arrest" for the purpose of Part 10A, even where nothing more is done and there is no actual restraint or even an intention to restrain, merely if the officer "believes that there is sufficient evidence to establish that the person has committed the offence" that is to be investigated. (I pass over the great difficulty in understanding the actual nature or extent of the belief contemplated, especially in light of the apparently lesser degree of certainty required for arrest without warrant under s 352(2)(a).)
...
[15] It was submitted that the arresting police officer must, at the time of arrest, intend to take such a suspect before a justice to be dealt with according to law, even though, in the meantime, he could be detained for the statutory period for the purpose of investigation. I do not accept this submission. It is clear that the investigation envisaged by Part 10A following arrest might have, not only the effect of confirming the suspicions of the arresting officer, but of dispelling them. If the suspicions were dispelled it is obvious that the suspect must be released. This is specifically envisaged by s 356C(4) which provides that, within the investigation period, the suspect must either be released, unconditionally or on bail, or brought before a judicial officer. In the first instance, he would not have been charged; in the second and third instances, formal charge would have been necessary. Information might well be obtained in the investigation that would make it appropriate or preferable to proceed by summons rather than charge. Again, this would justify release rather than charge and release on bail. If the suspect is charged, an authorised or proper police officer can grant bail under Part 3 of the Bail Act 1978, so that, even in that event, the arrested person is not literally taken before a justice by the arresting officer. If the possibility, even the likelihood, that enquiries can lead to this result does not make the detention unlawful, I cannot see how the detention is made unlawful because the arresting officer considered from the time of the arrest itself that, if no additional evidence is forthcoming confirming the suspicions which gave rise to the arrest, it would be right to release the suspect, even if it is intended (as here) to continue inquiries with a view to proceeding in due course by way of summons if they were productive.
[16] Having regard to the objects of Part 10A as set out in s 354, the specific regime as to release or other disposition provided in s 356C(4) and the Bail Act 1978, an officer who arrests a person under s 352 must do so in circumstances provided in paragraphs 352(1) (a) and (b) and 352(2)(a) and (b) but may do so with the intention of taking the arrested person before an authorised justice or otherwise in accordance with the Bail Act 1978 (in which events, there can be no detention for the purpose of investigation and the officer must choose whichever procedure most expeditiously deals with the arrested person's liberty) or of dealing with the person under the provisions of Part 10A of the Act (in which event, the person must ultimately be dealt with in accordance with s 356C(4)).
27Mr Menzies addressed comprehensive written submissions in support of the first application for judgment under the UCPR. Mr McAuley was invited to state, with precision, the case the plaintiff sought to maintain, and the evidence he relied upon to support the sufficiency of that case in light of the defendant's submissions. The luncheon adjournment afforded him time to consider his position.
28After considering the evidence and the argument advanced by Mr Menzies, on resumption I directed Mr McAuley's attention to a basis upon which his client's case might be maintained, a case which I regarded as entirely consistent with the evidence that had been by that time tendered in the plaintiff's case. I put it in the following way. Were he to submit that the plaintiff's evidence that she was subjected to techniques of harassment and bullying while in custody supported an inference that her arrest was for the improper or collateral purpose of utilising those techniques to extract oral admissions which would then be confirmed electronically for evidential purposes, then Particular 4.1, when read in conjunction with 4.6 (albeit with what I described as a generous interpretation), supported a judgment in the plaintiff's favour and the defendant's application would fail.
29After Mr McAuley appeared to embrace that case on the plaintiff's behalf, the defendant's first application for judgment was withdrawn. That position, taken by Mr Menzies on behalf of the State of New South Wales as a model litigant, was entirely appropriate in light of him accepting that the plaintiff's case, put in the way I outlined, was open on the evidence and was capable of supporting a judgment in her favour.
30At the close of proceedings on 22 June I gave an ex tempore judgment in which I refused Mr Menzies' application to withdraw the first substantive application and refused the substantive application. Given the inadequate state of the pleadings, in particular the wholesale failure to particularise the wrongful arrest on the basis of an arrest for a collateral or improper purpose, I granted leave for the defendant to call evidence to meet that case.
31At the commencement of proceedings the following day Mr Menzies sought confirmation of the case the defendant was to meet before going into evidence. In particular, he sought confirmation as to whether the plaintiff's case on unlawful arrest was limited to the assertion that she was arrested for the collateral purpose of bullying or harassing her into making admissions. Given the course of proceedings the previous day, and the lateness of the hour when judgment was delivered, this request was entirely understandable.
32Mr McAuley was invited to confirm that Mr Menzies' understanding of the plaintiff's case was correct. He did not do so.
33He particularised the plaintiff's case in support of both the claim that the arrest was unlawful and the subsequent false imprisonment in a materially different way. His articulation of her case was that she was arrested for the purpose of interviewing her and for the purpose of obtaining admissions from her, and not for what he submitted was "the bona fide purpose" of taking her before an authorised justice to be dealt with according to law, a purpose which he contended governed the entitlement to arrest under s 352. He went on to submit that it was following her arrest, namely when she was at the police station, that she was bullied and harassed. He did not submit that any treatment she claims to have been subjected to at her home invalidated the arrest (see Zaravinos v State of New South Wales [2004] NSWCA 320; 62 NSWLR 58 at [28]). Even were the assertion of bullying and harassment borne out by the evidence, which it may well have been subject to what the police officers might have said in their evidence, at no time did Mr McAuley seek to make the case that at the time of arrest it was the intention of the police officer to question the plaintiff informally in the intimidating environment of detention with a view to extracting admissions from her, and that for that reason her arrest was affected for the improper purpose of questioning her in that particular way.
34After being given every reasonable opportunity to maintain the claim for wrongful arrest on what I had assumed were settled terms at the conclusion of proceedings the previous day (a case which I have said on repeated occasions was a case that would have grounded an entitlement to pursue a damages claim for wrongful arrest and false imprisonment), Mr McAuley did not articulate, or articulate with sufficient clarity, that his client's case of wrongful arrest was to be maintained on the basis that at the time of arrest police used their powers for an improper or collateral purpose. The closest he came to putting his client's case in a way that was consistent with her arrest (and subsequent detention) being unlawful was in the context of my enquiring of him as to how Particular 4.6 should be read and understood in light of his submissions that she was arrested for questioning. Mr McAuley submitted as follows:
She wasn't arrested bona fide for the purpose of investigating if [she] committed an offence. She was arrested for an extraneous purpose, not bona fide purpose, namely for the purpose of questioning her with a view to obtaining admissions. And that's not a purpose which comes within section 352(2).
35It was on the basis of this further refinement of the plaintiff's case, which Mr McAuley assured me was the case he put on his client's behalf after careful consideration, that Mr Menzies then made a fresh application for judgment under Part 29 r 10.
36He restated the submission that he had advanced the day before, namely that to arrest on the basis of a reasonable suspicion that an offence has been committed, and thereafter to detain the person arrested within the statutorily prescribed investigative period for the purposes of questioning before determining whether to take that person before a justice after charge or to discharge that person without charge, was not contrary to law. The correctness of that submission is beyond doubt. Whatever misconduct might be alleged against police after a person is taken into lawful custody does not invalidate the arrest. It may, of course, support an action for false imprisonment were the person's detention to become unlawful because of police misconduct. Mr McAuley did not seek to maintain the course of action for false imprisonment on the basis that her lawful arrest became unlawful in the course of the interview.
37I am compelled to the conclusion that Mr McAuley abandoned the contention that the plaintiff's arrest by Detective Cosgrove was for the collateral or improper purpose of ensuring she would be vulnerable to being harassed and bullied into making admissions, and that on her instructions, and on his advice, she would seek a verdict on the basis that the arrest was unlawful because she was not taken before a magistrate to be dealt with according to law.
38Mr Menzies submitted that in circumstances where it was conceded that the arrest was on the basis of the police officer's reasonable suspicion that the plaintiff had committed the offence of larceny, and where it was common ground that upon her arrival at the police station she was entered into formal custody in accordance with the protocols provided by Part 10A of the Crimes Act for the express purpose of investigating her involvement in the offence for which she was arrested by formally questioning her, the arrest was entirely lawful and in complete accordance with Part 10A of the Crimes Act .
39In the context of the application for judgment under the UCPR he submitted that in these circumstances there was no evidence capable of supporting the plaintiff's case that the arrest was unlawful, or that she was falsely imprisoned consequent upon an unlawful arrest, and that judgment should be entered in the defendant's favour.
40I repeat, despite what may be my view as to the way in which the plaintiff's case might have been sustained, and despite affording counsel every opportunity to clarify his re-particularised case on her behalf consistent with that approach, he elected not to do so. The defendant's application for judgment must succeed.
41Accordingly, the orders I make are as follows:
- In regard to the action for wrongful arrest and false imprisonment in paragraphs 2, 3, 4 (as amended), 5 (as amended), 6, 7 and 8 of the fourth amended statement of claim, judgment for the defendant.
- The plaintiff is to pay the defendant's costs with costs calculated as and from 2 June 2011 to be paid on an indemnity basis.