Dennis v State of New South Wales

The issues

1. The Defendant, the State of New South Wales, accepts that it is vicariously liable for any wrongdoing of SC Owen, but otherwise defends the proceedings alleging that SC Owen formed both requisite states of mind for the purpose of satisfying s 99(1) of the Law Enforcement (Powers and Responsibilities Act 2002 (NSW) ("LEPRA") and having done so, exercised his discretionary power to arrest Mr Dennis. The defence is that, in those circumstances, what would otherwise have been the unlawful deprivation of Mr Dennis' liberty was rendered lawful because of the operation of s 99(1) of LEPRA. The onus of demonstrating that lawfulness rests with the Defendant.
2. Leaving damages to one side, the central issues in the case are whether SC Owen formed the required states of mind for the purpose of s 99(1) and, if he did, whether his ultimate decision to arrest Mr Dennis is vitiated in some way so as to have the consequence that Mr Dennis' deprivation of liberty that afternoon was unlawful.
3. There is a subsidiary but related issue which turns on a subsequent decision, better described as a non-decision, by SC Owen, made while still at Wagga City Auto Centre that morning, to not consider exercising his discretion pursuant to s 105 of LEPRA when he was asked to do so by Mr Dennis' solicitor, who arrived at the scene and demanded that the decision be revoked and offered instead to immediately drive Mr Dennis to the police station himself.

The basic facts

1. Mr Dennis was born in March 1969. As at 19 March 2021, he was 51 years old. He was not known to police, was married to a former police officer, and had lived in Wagga Wagga all his life.
2. Mr Dennis purchased Wagga City Auto Centre in November 2001. He had operated it successfully since that time. Part of the business was to provide services as an Authorised Inspection Station ("AIS") for the purpose of the TNSW Business rules. Mr Dennis was an "Authorised Proprietor" and an "Authorised Inspector" for the purpose of the Authorised Inspection Scheme and the business was a registered inspection station for the purpose of that same scheme.
3. In around January 2021, Mr Dennis was diagnosed with Non-Hodgkin's lymphoma.
4. On 28 January 2021, Mr Dennis commenced chemotherapy treatment for his cancer.
5. On 11 March 2021, Mr Dennis had received his fifth course of chemotherapy.
6. At around 9am on 19 March 2021, SC Owen, TNSW Inspector Jonathan Smith, and NSW Fair Trading Employee Lauren Madden attended Wagga City Auto Centre for the purpose of carrying out an audit of the AIS aspect of the business relating to issuing pink slips. Large portions of the Audit, including the entire interview with Mr Dennis, were recorded on SC Owen's body worn camera. There is therefore very little doubt as to what occurred.
7. Mr Dennis, who at the time of the arrival of the Audit team, was at the shops buying his staff morning tea, returned shortly thereafter. Mr Dennis was at all times entirely calm, polite, compliant, and cooperative with the process.
8. SC Owen and TNSW Inspector Smith reviewed the equipment being used for "pink slip" testing by Mr Dennis, including a "tint metre" (referred to in the Business rules as a Light Transmitting Metre) and a "brake test machine" (referred to in the Business rules as a Portable Brake Testing Decelerometer). Both items were defined as "compulsory equipment" under the TNSW Business rules in force at the time. They observed that the tint metre did not work, and the brake test machine was wrongly calibrated as to date and time. Quite early in the process, after reviewing a small selection of brake test results, Inspector Smith suspected that the brake test machine was being manipulated. He explained this suspicion and its basis to SC Owen. SC Owen and Inspector Smith then requested that Mr Dennis conduct a brake test on his own vehicle, which he did. The result of that brake test which was recorded by the brake testing machine was provided to Inspector Smith. He compared it to other test results in the records of the business, and his suspicion as to the manipulation became more pronounced. He explained this suspicion and his reasons to SC Owen.
9. At around 10:50 am, Mr Dennis voluntarily participated in an interview in his office with SC Owen, Inspector Smith, and Ms Madden. It was clearly put to Mr Dennis that Inspector Smith thought he was manipulating brake tests. He denied manipulating the tests. There was discussion about the tint metre and brake testing machine and there was no issue from Mr Dennis that they did not comply with the Business rules.
10. At 11:22 am, SC Owen arrested Mr Dennis.
11. SC Owen called for a caged police vehicle to come and take Mr Dennis to Wagga Wagga Police Station.
12. Prior to the caged police vehicle arriving, Mr Dennis' solicitor Mr Austin McRae attended the premises and requested SC Owen discontinue the arrest. Mr McRae requested, or more accurately demanded, that he should be allowed to bring Mr Dennis to the Police Station. I will return to this incident later. It is fair to say that Mr McRae was, to say the least, forceful in his request and, on any view of the evidence, used bad language.
13. SC Owen declined Mr McRae's request and Mr Dennis was put into and conveyed in the caged police vehicle to Wagga Wagga Police Station and entered into custody. He was treated fairly, respectfully, and compassionately by all police officers involved thereafter. In fact, at his request, he was allowed to get into the vehicle behind the place of business, out of view of customers and staff. The police were aware of his cancer treatment and the risks involved if Mr Dennis contracted COVID and did their best to reduce those risks by wiping down the cage and, later, the cell at the police station.
14. Whilst at Wagga Wagga Police Station, SC Owen charged Mr Dennis with ten counts of "publish false misleading material to obtain financial advantage or cause disadvantage".
15. At 4:14 pm on the same day, Mr Dennis was released on bail from custody. The sole condition of bail imposed was to "not permit any examiner to issue any AIS report from the AIS station S00342".
16. Subsequently, Mr Dennis entered pleas of not guilty to all sequences.
17. On 16 June 2022, the criminal hearing occurred at Wagga Wagga Local Court.
18. The prosecution was unable to establish a prima facie case on any of the sequences to the satisfaction of the Magistrate, and they were all dismissed.

Section 99

1. In order to understand these reasons, I set out in full s 99(1)(a)-(b) of LEPRA: 99 Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if - (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons - (i) to stop the person committing or repeating the offence or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false, (iv) to ensure that the person appears before a court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested), (ix) because of the nature and seriousness of the offence.

The law - s 99(1)

1. For an exercise of power pursuant to s 99 to be valid, it is necessary that the arresting officer hold two states of mind. They are usually referred to as the first and second limb of the test. Those states of mind are: 1. A suspicion on reasonable grounds that the Plaintiff had committed a criminal offence. (s 99(1)(a)) - the first limb; and 2. A state of satisfaction that to arrest the Plaintiff was reasonably necessary for one or more of the reasons listed in s 99(1)(b)(i)-(ix). (s 99(1)(b)) - the second limb.
2. Having formed both those states of mind, it is not mandatory for a police officer to arrest someone, rather satisfaction of the s 99 matters is permissive. The ultimate decision to arrest is the product of a discretion as to the exercise of the power of arrest. This power is enlivened upon the two states of mind being present.
3. Insofar as the "first limb" is concerned, the plain words of the statute require the suspicion, which must be formed on reasonable grounds, to be "the person is committing or has committed an offence". The words of the statute do not dictate that the relevant state of mind necessarily must identify a particular offence, rather that a breach of the criminal law of some kind has taken place. So much is clear from State of New South Wales v Robinson [2019] HCA 46 and Robinson v State of New South Wales [2018] NSWCA 231. Because what is required is a suspicion, it must be irrelevant if ultimately the suspicion turns out to be misplaced.
4. It follows that for the purpose of the first limb, it is necessary for the Defendant to prove that SC Owen, at the time he arrested Mr Dennis, suspected on reasonable grounds that an offence had been committed.
5. As to the second limb, its proper construction was recently considered by the NSW Court of Appeal in Reeves v State of NSW [2024] NSWCA 125 ("Reeves") at [108] - [122], which I recently had cause to consider in the decision of Ghanem v State of New South Wales [2024] NSWDC 213 ("Ghanem") at [11] - [13].
6. By reference to Reeves at [108] - [122], satisfaction for the purposes of s 99(1)(b) (the second limb), if reached by the relevant officer, can only be impugned by application of the principle summarised by Basten AJA in AD v State of NSW [2023] NSWCA 115 ("AD") at [25] - [28].
7. In AD at [26] Basten AJA cited his Honour's previous decision in State of New South Wales v Randall [2017] NSWCA 88 ("Randall") at [13]. His Honour had there said (footnotes omitted): "Accordingly, unlike the requirement for reasonable grounds, a challenge to the existence of a suspicion or state of satisfaction will only be available where it can be shown that the suspicion or state of satisfaction was manifestly unreasonable, or 'arbitrary, capricious, irrational, or not bona fide', as explained by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu."
8. At [27] his Honour stated that: "[t]he basis of the challenge must turn on proof that the decision-maker has committed legally reviewable error in forming the requisite state of satisfaction."
9. Like all decisions based on a statutory power, the decision to arrest must be made in good faith and be based on assessing the relevant considerations and ignoring irrelevant considerations.
10. There is a question whether the Court of Appeal's decision in Jankovic v Director of Public Prosecutions [2020] NSWCA 31; 281 A Crim R 378 ("Jankovic") remains significant following Reeves. At [53]-[62] Barrett AJA (Macfarlan JA agreeing) comprehensively analysed the process of reasoning in which a police officer must engage in order to have truly formed the state of satisfaction required by s 99(1)(b) of LEPRA. While all of that passage is important, the following extracts are especially so (my emphasis added): "[53] For an arrest without warrant to be authorised by LEPRA, s. 99(1), it must be established that, as described in s 99(1)(b), the arresting officer was 'satisfied' that the arrest was 'reasonably necessary for' any one or more of the 'following reasons' stated in the section. An issue as to the officer's state of mind arises; and it is for the party asserting that the arrest was authorised by the section to show that, at the time of making the arrest, the officer had reached a state of being 'satisfied' that the circumstances as a whole made it 'reasonably necessary', for one or more of the stated reasons, that the person concerned be deprived of their liberty. [54] The party asserting the lawfulness of the arrest must thus prove that the police officer had formed a particular opinion (or state of satisfaction) about the connection, in terms of cause and effect, between depriving the person of their liberty and achieving the results with which the 'following reasons' are concerned. The connection is defined by the words 'reasonably necessary'… [60] That identifies the essence of the 'reasonably necessary' criterion in LEPRA, s. 99(1)(b). The section imports a requirement of proportionality into police officers' decision-making. Each of the reasons in s. 99(1)(b)(i) to (ix) is expressed in terms of a particular outcome relevant to law enforcement. The reasons are concerned with the risk that lack of constraint upon a person through arrest might frustrate the attainment of one or more of those outcomes and thereby prejudice law enforcement. In Robinson v State of New South Wales [2018] NSWCA 231 at [164], Basten JA said of the s. 99(1)(b)(i) to (ix) reasons: Those reasons provide, in effect, that the police functions of law enforcement would not be sufficiently carried out by steps short of arrest, which, with respect to the commencement of proceedings, would commonly mean the issue of a court attendance notice… [62] A vital component in the comparison is the alternatives to arrest at the disposal of the police officer. LEPRA, s. 107 says that nothing in Pt 8 (which includes s. 99) affects the power of a police officer either to commence proceedings for an offence otherwise than by arresting the person or to issue a warning, a caution or a penalty notice. Ch 4 Pt 2 of the Criminal Procedure Act 1986 (NSW) allows proceedings for numerous offences (including an offence of breaching an apprehended violence order) to be commenced by the issue of a court attendance notice. A range of measures obviously less drastic than arrest is thus identified as material to a police officer's decision to arrest without warrant."
11. My reading of Reeves is that, subject to some doubt about introducing concepts of proportionality into the equation (see Barrett AJA at [60] above), the remarks of Barrett AJA concerning a comparison between arrest and other available options remain good law, at least as a method of considering if a state of mind was manifestly unreasonable. In Reeves, the Court of Appeal considered there was no real tension between Barrett AJA in Jankovic and Basten AJA in AD. Upon that basis, the necessity for there to be some sort of comparative assessment in all but the clearest of cases remains good law. For my part, I think that if a police officer concluded that an arrest was reasonably necessary without considering alternatives to arrest, such a state of mind probably does not satisfy the statutory test at all, but if it does such an approach may well readily result in a state of mind that can be branded as capricious or irrational, perhaps even arbitrary.
12. A vital component in the "comparison" is the alternatives to arrest at the disposal of the police officer. A range of measures obviously less drastic than arrest is therefore a material matter to be considered as part of the police officer forming the relevant state of mind and then making a decision to arrest: Jankovic at [60], [61], and [62].
13. It is entirely clear following Reeves that if it be shown that an arresting officer had formed the two states of satisfaction required by s 99(1), that any decision to arrest and detain can only be impugned on the basis of what is known as "Wednesbury unreasonableness", or as explained in Randall at [13]: "Accordingly, unlike the requirement for reasonable grounds, a challenge to the existence of a suspicion or state of satisfaction will only be available where it can be shown that the suspicion or state of satisfaction was manifestly unreasonable, or "arbitrary, capricious, irrational, or not bona fide"
14. What follows from that is that I must keep firmly in mind that this is not some sort of appeal or merits review of the states of mind formed and the decision made by SC Owen on the day. It is entirely irrelevant if I conclude that I would have come to a different decision or if reasonable minds might differ as to what was the appropriate course. Rather, if I am satisfied that the requisite states of mind were held by SC Owen and that the relevant statutory tests had been satisfied, the only basis upon which the decision can be vitiated, and thus making the arrest unlawful, is a finding that the suspicion or state of satisfaction was either manifestly unreasonable or arbitrary, capricious, irrational, or not bone fide.

Some more detailed facts as to what happened on the day relevant to SC Owen's state of mind

1. Dealing with the first limb of s 99(1).
2. In order to understand SC Owen's state of mind as to whether or not Mr Dennis had committed a crime, it is necessary to understand the following.
3. Firstly, it is not in issue that the Business rules in place at the time required there to be available to an authorised inspector a working "tint metre". This is a device to measure the strength of window tinting on vehicles. There is no doubt that, at the time of the Audit, Mr Dennis did not have a working tint metre, the one he had was broken. He freely admitted this towards the start of discussions with Inspector Smith in the presence of SC Owen. He said that he felt perfectly capable, without using a tint metre, by looking at windows of cars, to tell whether there was too much tinting or not. This aspect of the matter, whilst undoubtedly a breach of the rules (a tint metre being "compulsory equipment" under the rules), did not appear to attract much attention or concern from Inspector Smith or SC Owen, although it was made clear that he ought to have a working tint metre. The second matter which is not controversial is that it is a requirement of the Business rules that a brake testing machine be used for the purpose of testing brakes on vehicles and that it be properly and accurately calibrated (again, an express requirement of the rules). The brake test machine being used by Mr Dennis was not properly calibrated. It had the wrong date and time settings and accordingly every printout which it had made, in at least the month before the Audit, which formed part of the records of Mr Dennis's business, and indeed were stapled to his copies of the relevant pink slips, were inaccurate. Again, there was no issue on the day as to the failure to have a properly calibrated brake testing machine. Mr Dennis accepted this but pointed out that he could not recalibrate it. There was discussion between Mr Dennis and Inspector Smith in the presence of SC Owen about borrowing a replacement machine that afternoon, updating the relevant records, and thereafter resuming pink slip testing.
4. It follows that if it be right that it constitutes a criminal offence to issue pink slips in circumstances where the person signing the certificate knew or was reckless as to the relevant Business rules not being followed, then SC Owen, based simply on the tint metre and brake testing machine issues, had every reason to suspect, indeed he actually knew, that such a crime had been committed.
5. The matter of more substance on the day, and undoubtedly what motivated SC Owen, was the requirement that the brake testing machine be properly used in each relevant vehicle whilst a physical brake test on a road is conducted, so as to test the capacity of their brakes to stop the vehicle, in other words that there actually be conducted a physical test of the vehicle's brakes, with the results measured by a brake testing machine. It is clear that both Inspector Smith and SC Owen, during the course of the Audit, suspected from very early on in the process that Mr Dennis was manipulating the equipment so as to make it look like actual brake testing had been conducted in vehicles, when in fact it had not been conducted. Rather, they both suspected the machine was being manually manipulated by someone, probably Mr Dennis, without taking the machine out of the workshop, let alone putting it in a car. This led them to suspect that no brake testing was being carried out at all. I think that suspicion was perfectly understandable and was based on reasonable grounds.
6. I make the following findings as to SC Owen's state of mind leading up to, and at the time of, the arrest.
7. Very early on in the process of the Audit, after checking one or two printouts attached to pink slips purportedly recording brake testing results, Inspector Smith told SC Owen that he was "concerned" that brake testing results were being "manipulated".
8. Thereafter, the problem with the tint metre not working was identified, followed by the inaccurate calibration of the brake testing machine.
9. At that point SC Owen suspected that the Business rules were not being complied with in two ways. The tint metre didn't work and the brake testing machine was not properly calibrated. His suspicions at that point were based on what Inspector Smith had told him and I am satisfied that he had reasonable grounds for so suspecting.
10. There then followed a discussion between Mr Dennis and Inspector Smith in the presence of SC Owen where Mr Dennis told Inspector Smith that he had some cars booked in for testing that afternoon and if he could not use the brake testing machine could he borrow one from another centre. Inspector Smith told Mr Dennis that that would be acceptable so long as he logged on to the TNSW website and updated his details with the serial number of the new machine. There was also a discussion about what would happen when the brake testing machine in Mr Dennis's possession had been recalibrated. Inspector Smith told him that when that happened, he could resume using the machine so long as he sent Inspector Smith an email indicating that the machine had been returned and had been recalibrated.
11. Shortly after that discussion, Inspector Smith asked Mr Dennis to provide him with the last months' pink slips. Mr Dennis complied and a few minutes later, after looking through a number of those results, Inspector Smith said to SC Owen "he is shaking the machine", and with his hands indicated a manual manipulation of the machine.
12. Inspector Smith explained to SC Owen why he thought the machine was being manipulated. He explained the graph that is printed out, what it means, and the like. Following this explanation, SC Owen's suspicion as to manipulation of brake testing, which already existed, was heightened. That heightened suspicion was to my mind entirely reasonable and based on reasonable grounds.
13. Shortly thereafter, Inspector Smith and SC Owen (or one of them) asked Mr Dennis to conduct a brake test in his own car, which he did. He then returned to the Centre and gave Inspector Smith the result. Inspector Smith in the presence of SC Owen compared that result to the various graphs Mr Dennis had given him dealing with the last month of testing and explained to SC Owen that he was now confident that the test results were being manipulated because the test that had just been conducted in Mr Dennis' car did not have the abnormalities which he observed in all the other tests. From this he deduced that there was nothing wrong with the machine.
14. At that point in time, SC Owen's suspicion that the brake testing was being manually manipulated and not conducted in cars at all was heightened even more. Again, I find that suspicion was perfectly understandable and based on reasonable grounds.
15. There followed a reasonably lengthy interview between Inspector Smith, SC Owen, and Mr Dennis where the question of whether the brake testing was being manipulated or not was discussed. It was fairly put to Mr Dennis that the printouts indicated that manipulation was taking place. His response was to the effect that brake testing was taking place, perhaps the machine did not work, and that, whilst he accepted that Inspector Smith had an opinion, he disagreed and said that it was "a matter of opinion".
16. The interview relevantly concluded with the following exchange which I have edited down (my emphasis added): "SC Owen: All right. So that might be, eh, a, ah, an avenue that we can also look at. Um (METALLIC SCRAPING) eh, we've obviously got concerns surrounding (CLICKING) um, the brake testing. But putting that aside, um, look, you're not complying with the AIS Business Rules. You tint, you don't have a tint metre, regardless of whether you think it's ridiculous or not, it's unfortunate that it is part of the business rules. Um, you're, in regards to the, um, the brake tester, it's out. (BELL RINGING) It's, it's not operating correctly and you've signed this document saying that everything is true and correct. Um, down the bottom, when you put your signature on here (TONGUE CLICKING) um, yours, that's what you're saying. I certify the report is true in the record of the vehicle's compliance with the inspection station's standards of the rules authorising inspection… at the time of inspections. So by signing that, you're saying that everything on that vehicle is correct and you're compliant with AIS Business Rules. But you're not. (RUSTLING) OK. Um, major or minor, a breach is on it, it's still a breach, unfortunately. And, um, as I said, we've got issues surrounding that brake, but if we look at the offence you're committing, if you broke 15 different rules on AIS Inspection List, it's still under the you've still committed the, eh, the same offence. One, 15, it's no different. It's still, ah, an offence. Um, so look (SIGHING) eh, at this stage, um, you're under arrest. OK. (SCOFFING) From the police, yes. 1, I'm placing you under arrest. So what's gunna happen is we're gunna go back to Wagga Police Station. And, um, we're going to have to go through some paperwork there in regards to this. Um, our concerns rest around this brake testing and the, the way that everything is being managed here. You're committing numerous offences. So every one of these is an offence because you haven't complied with the business rules. So you've technically got a whole heap of breaches here. So the only way that we can prevent further offences occurring, um, is to place you on bail and not to complete any more pink slips until the matter goes before a Magistrate. All right. Um, mm, that's why we, we went through, well, it's not… reason, but a part of it, we were looking to see what your, your take was on it. We disagree with the data on it, but that's, as you said, a matter of opinion. Um, that's why I'm asking if there's further stuff in regards to footage and so forth that can support you. Um, however, we've got, I believe we've got some serious problems. Because at the end of the day, I want to ensure there's safe cars on the road. I know you're telling me that you're a mechanic and that these cars are safe. That's fine. But when we've got data that's surrounding this, we've got concerns. And as I said, you're not complying. So what is gunna happen is you're gunna go back to the police station, we'll do some paperwork, um, and you'll be back out of there today. And I'll be as quick as I can typing stuff up. But unfortunately, I can only type so fast. Um, we will get a caged truck down here shortly. (SCOFFING) That's the way we transport people. And we can't say - Mr Dennis: Nuh(?). SC Owen: - Mate, you jump in your car and meet us there. And I can't take you back in my car. So it's the only way that we can deal with it. All right (GROANING) Um--- Mr Dennis: That's ridiculous. My wife was a police officer… for 15 years. I mean. I'm not going… that's ridiculous. SC Owen: OK. Mr Dennis: … SC Owen: So that's what's gunna happen. All right. I appreciate your cooperation, mate. I, I, I'm just limited with what I can do now. Mr Dennis: Se, eh, you, ah, under what, arrest me under what, what, will you, I mean, ah - SC Owen: Well, it's a fraud. Each - Mr Dennis: I understand there's a - SC Owen: Each of these are a fraud. Mr Dennis: There's, there's a - SC Owen: Each of these are a fraud. Mr Dennis: A fraud.
17. I am satisfied that, at the time of arrest, SC Owen suspected on reasonable grounds that Mr Dennis had committed an offence which at the time he believed was a "fraud".
18. I am satisfied he formed that suspicion on reasonable grounds. There was ample rational objective evidence to support such a conclusion and Inspector Smith, who had a level of expertise, had explained to him in some detail why he thought the brake testing machine was being manipulated.
19. He also, of course, suspected (indeed he knew) that the brake testing machine had not been calibrated and that the tint metre did not work.
20. Having heard all the evidence, and whilst I acknowledge that it is not my role to determine if Mr Dennis committed any offences or not, especially in light of the fact that he was acquitted by a magistrate, I am comfortably satisfied that SC Owen's suspicion that the tint metre did not work, that the brake testing metre was not properly calibrated, and that the brake testing machine was being systematically manipulated by Mr Dennis to avoid doing brake testing at all were more than justified. The objective evidence of the various printouts from the machine over very many vehicles suggests to me as a non-expert that the brake testing was not actually taking place. The line of the graph which indicates when the brake is activated does not correlate with the line of the graph that indicates the car is starting to stop. That strongly suggests to my mind, and this was the opinion formed by Inspector Smith, who did have a level of expertise, that there was manipulation going on. Moreover, the shape of the graphs over very many tests was exactly the same one to the other and did not show "suspension bounce" at all. Suspension bounce is the machine recording the car bouncing up and down after it comes to a stop, which Inspector Smith said was to be expected. Inspector Smith asked Mr Dennis to perform a brake test on his own car that morning and the result of that test was entirely inconsistent with the run of tests, which to my mind was a very strong indicator that the machine worked and therefore that the tests were not being conducted by placing the machine in the vehicles.

Is it necessary to identify the precise crime?

1. At the time of the arrest, SC Owen suspected that what he described as a "fraud offence" had been committed. He did not have in his mind any particular offence. Ultimately that afternoon, Mr Dennis was charged with "published false misleading material to obtain financial advantage or cause disadvantage".
2. I am not privy to the Magistrate's reasons, but I suspect the reason that Mr Dennis was acquitted was because the Crown was unable to prove that the pink slips issued to the customers who paid the statutory $42 in exchange were valueless.
3. In my judgement, SC Owen's state of mind that an offence had been committed was a reasonable one. It is irrelevant that he was unable to identify a specific offence. Moreover, I think it is tolerably clear, having looked at the pink slips themselves, that they are a certification by the person who signs them. Relevantly, they certify as follows: "Examiners Certification I certify that the report is a true record of the vehicle's compliance with the inspection standards of the rules for Authorised Inspection Stations at the time of inspection".
4. As one would expect, the relevant rules in place at the time required that actual brake testing in a car be carried out and properly recorded by a brake testing machine. As well as a requirement that a brake testing machine be properly calibrated and that there not only be a working tint metre available, but that it be used in inspections.
5. It follows that the certificate that was signed ("certified") by Mr Dennis (and there were many of them) was (were) false or misleading in circumstances where: "the statement is made to a person who is exercising or performing any power, authority, duty or function under, or in connection with, a law of the State": s 307A of the Crimes Act 1900 (NSW).
6. As is well known, pink slips have utility because they are presented to the registration authority for the purpose of registering motor vehicles and relied upon by that authority, or people within it, when exercising a power to register motor vehicles.
7. Accordingly, it seems to me clear enough that if the matters about which SC Owen had suspicions could be proved to the requisite standard, a breach of at least s 307A of the Crimes Act 1900 (NSW) would be made out. I think the fact that SC Owen did not identify, in his own mind, that particular offence is irrelevant to the statutory question. Indeed, even if upon reflections and research there was in fact no offence known to law, I would still conclude that SC Owen's suspicion that an offence had been committed in the circumstances was reasonable.

Resolution as to first limb of s 99(1)

1. For those reasons I am satisfied that at the time of the Mr Dennis' arrest, SC Owen suspected on reasonable grounds that Mr Dennis had committed offences, thus satisfying the first limb of s 99(1).

Section 99(1)(b) - the second limb

1. The first question is, did SC Owen hold the relevant state of mind, viz., that it was reasonably necessary to arrest Mr Dennis, at the time of arrest, based on one or more of the matters set out in s 99(1)(b)(i)-(ix)?
2. Based on what he said at the time and in his evidence before me, I am comfortably satisfied that he did. He believed it was reasonably necessary to arrest Mr Dennis because he was convinced that to not do so would lead inevitably to Mr Dennis issuing more pink slips that afternoon (presumably after he borrowed a replacement brake testing machine) in circumstances where SC Owen reasonably suspected that brake test manipulation had been going on. He considered the prospect of this continuing to pose a serious risk to public safety.
3. When he returned to Wagga Wagga Police Station that afternoon, SC Owen filled in a form indicating that his reason for arrest was "the nature and seriousness of the offence", however it is clear from the extract set out above as to what he said at the time of the arrest and everything he said in evidence, that his fundamental concern was to prevent further offences occurring. This is why he said: "So, the only way that we can prevent further offences occurring, um, is to place you on bail and not to complete any more pink slips until the matter comes before a magistrate"; and "because at the end of the day I want to ensure there is safe cars on the road".
4. He concluded with: "so what is gonna happen, is you're gonna go back to the police station, we'll do some paperwork… And you'll be back out there today".
5. In his evidence before me, SC Owen reiterated his opinion that he was concerned as to further pink slips being issued between the time of the conversation and when he anticipated Mr Dennis would be released on bail in a few hours time on conditional bail preventing him from issuing pink slips before the matter came before a court.
6. He said that he thought it was a near certainty that, if he did not arrest Mr Dennis, more pink slips would be issued in a way that did not ensure that the vehicles were safe to drive. The only way he felt this could be stopped was by arresting Mr Dennis with him being released shortly thereafter on conditional bail.
7. Undoubtedly, his concern to prevent further offending stemmed from, and was inextricably linked to, the nature and seriousness of the offence he had identified. However, the predominant reason was to prevent reoffending. SC Owen accepted, I think, that police bail could have been granted that same afternoon, if Mr Dennis was not arrested but rather charged by police. I have some doubts about the level of certainty professed by SC Owen but accept that he was fundamentally concerned and motivated by a desire to stop further pink slips being issued before a bail condition to that effect could be imposed.
8. I am satisfied that at the time of Mr Dennis' arrest, SC Owen was satisfied that Mr Dennis' arrest was reasonably necessary for a combination of the following: 1. to stop Mr Dennis repeating the offence or committing another offence (subs (i)); 2. to protect the safety or welfare of the public (subs (viii)); and 3. because of the nature and seriousness of the offences he suspected (subs (ix)).
9. As I said in Ghanem, it seems to me that it will often be the case where the nature and seriousness of the offence, as part of an arresting officer's reasoning process, will be inextricably tied up with some, or perhaps sometimes all, of the other identified reasons. This is another example of that phenomenon.
10. I find that SC Owen, motivated by his concern as to the serious danger posed to the public of cars being certified as safe when in fact they had not been checked, wanted to stop any further pink slips being issued by Mr Dennis that afternoon. He thought that it was close to inevitable that Mr Dennis would be released within a matter of hours but expected, as occurred, that there would be a bail condition imposed which would prevent the issue of further pink slips. His primary reason he thought it was reasonably necessary to arrest Mr Dennis was to prevent Mr Dennis issuing any more pink slips. What this means is that I am satisfied that SC Owen did hold the requisite state of mind for the purpose of the second limb.
11. The second question is has that state of mind been vitiated by one of the narrow categories of reasons known as "Wednesbury unreasonableness".
12. Mr Dennis' counsel, after referring to the relevant authorities, but in particular what was said in Jankovic by Barrett AJA at [53] to [62], concerning a connection between one of the reasons and the state of satisfaction requiring that a comparison needs to be made by reference to the whole of the circumstances prevailing at the time and that, whilst the matter is an evaluative judgement by a police officer on the ground, a vital component in the comparison is the alternatives to arrest at the disposal of the police officer, put it this way in writing: "15. It is a matter of iron logic that a person cannot be satisfied something is reasonably necessary unless they have considered alternatives. Specific to this power, a Police Officer cannot be satisfied it is reasonably necessary to arrest unless they've considered the alternatives to arrest … SC Owen needed to have demonstrated that he had considered the following at the time of the arrest: a) The "situation at hand" which were the relevant factors and that he had considered and assessed them; b) The alternatives to arrest that were available at the time, including the obvious alternatives of requesting the plaintiff to attend the Police Station; c) Why, despite considering the relevant factors and the alternatives to arrest, he was still satisfied it was reasonably necessary to arrest the plaintiff for the stated s 99(1)(b) purposes … 21. What makes SC Owen's failure to consider, properly or at all, the alternatives to arrest more puzzling and irrational, is that SC Owen was arresting the plaintiff to impose bail conditions and he presumed that the plaintiff would be immediately released, as he told the plaintiff "You'll be back out of there today" during the plaintiff's interview, see page 28 of Annexure 15 in Exhibit 2. What is indisputable is that SC Owen had myriad options available to have the plaintiff attend the Police Station, charged with bail conditions, without resorting to arrest. By not even considering some of the obvious options, or dismissing them without proper consideration, SC Owen's arrest of the plaintiff was arbitrary, capricious and/or irrational."

Resolution

1. As can be seen from the above submission, Mr Dennis does not suggest that the state of mind formed by SC Owen was arbitrary or not bone fide. Quite where the line between a capricious decision and a manifestly unreasonable decision is to be drawn in these matters is difficult to identify. Mr Dennis' submission is that the decision was either manifestly unreasonable or (or because it) failed to take into account relevant matters. The case turns fundamentally on Mr Dennis' submission that, as a matter of fact and in all the circumstances, there were available to SC Owen a raft of alternatives short of arresting Mr Dennis, which would have directly and completely met his concerns that he needed to put a stop immediately to the issuing of pink slips by Mr Dennis. Those alternatives included asking Mr Dennis to drive his own car to the police station, if necessary being followed by a police car, asking Mr Dennis to go with the police officers in a police car without arrest, asking Mr Dennis to have his wife (herself a former police officer) drive him to the police station, asking Mr Dennis to drive himself to the police station and telling him to get the police at the station to call SC Owen to confirm that he had arrived and in the meantime SC Owen remaining at the place of business, or alternatively leaving Inspector Smith at the place of business, and so on.
2. All of that, so Mr Dennis' submission goes, in the context of a 52-year-old man with no known record, who had been identified as not being a flight risk, who was suffering from cancer, and was obviously immunocompromised.
3. On behalf of the Defendant, the submission is firstly, relying on the authorities I have referred to, that because part of the reason for SC Owen forming his state of mind was the "nature and seriousness of the offence", then it was not necessary for SC Owen to consider any alternatives to arrest in order to come to the statutory state of mind. Secondly, the Defendant submits that the relevant state of mind having been reached, it is it is not possible for me to determine, to the requisite standard, viz., that no reasonable arresting officer in the same circumstances could have formed that state of mind. The submission is that this evaluative judgement by a particular police officer, if based on the nature and seriousness of the offence, is effectively immune from challenge on Wednesbury grounds, except in the most extreme and clear cases.
4. I do not think the submission, to the effect that there was no need for SC Owen to consider alternatives or when I form a judgement as to whether his decision was manifestly unreasonable or not, that I am not required to consider available alternatives is correct. I do not think anything the Court of Appeal said in Reeves in any way takes issue with Barrett AJA's analysis of that aspect of the question in Jankovic. The court was disapproving of the approach taken by Barrett AJA as to "proportionality". However, the Court of Appeal did not criticise the observations about a connection and the need to consider alternatives. Apart from the question of proportionality, the Court was unable to identify a real difference between Barrett AJA and Basten AJA's analysis. In any event, it does seem to me as a matter of logic to not be possible to form a relevant state of mind as to a reasonable requirement for arrest without considering available alternatives, and nor do I think it would be possible to ever come to a conclusion that such a decision was capricious, arbitrary, or manifestly unreasonable unless on the hearing of that application it is available to a Judge to consider the decision by reference to available alternatives.
5. As I sought to explain in Ghanem, whatever the position may be, if the only reason for an arrest is the "nature and seriousness of the offence", and it may well be that because there is no discernible purpose linking that reason to the conclusion, it stands in a different category, in a case such as this where there were multiple reasons and the predominant reason that drove SC Owen to his decision was, in my opinion, his desire to prevent any further repetition of what he saw as a serious crime that afternoon, considering a relevant and rational connection between the reason and the state of mind is essential.
6. SC Owen said in terms at the time of the arrest, "so the only way we can prevent further offences occurring is to place you on bail". I take this to be a statement that the only way he thought he could prevent further offences was to arrest Mr Dennis with the expectation that he would be released on conditional bail. SC Owen gave evidence before me to the effect that he did not consider any alternatives to arrest at all. This is consistent with what he said at the time and if it be right, his decision ought properly be branded as capricious or wholly irrational. However, I am not convinced that SC Owen's thought process was as simple as he thinks it was or as Mr Dennis brands it. The available alternatives must have been so obvious to him at the time that I find it difficult to accept that he did not consider them, if only subconsciously. If he did not consider the alternatives at all at the time, and that was his evidence and what he said at the time, the decision in my judgement was capricious, irrational, and arbitrary because he did not consider reasonable alternatives, in the sense that it was not thought through or properly considered. If he did (at least unconsciously) consider some of the available alternatives, then the question upon which the case turns becomes, was the state of mind formed irrational, capricious, manifestly unreasonable, or so unreasonable that no police officer acting reasonably in the circumstances would have come to the same decision.
7. I have firstly decided, contrary to SC Owen's own evidence of his thought process, that SC Owen did, at least subconsciously, consider some of the alternatives. Secondly, I have come to the conclusion that either the decision was capricious in the sense that not all obviously relevant alternatives were taken into account or properly weighed up, so as to make the decision no more than a "knee-jerk reaction", or if all were taken into account, in all the circumstances the state of mind reached by SC Owen was so unreasonable that I do not think any police officer acting reasonably in the same circumstances would have formed that state of mind. The simple fact is there were available to him many options short of arrest that totally met his fundamental reason. This means that the subsequent arrest and imprisonment of Mr Dennis is not rendered lawful by virtue of s 99.
8. Accordingly, I have found that the arrest and subsequent deprivation of liberty has not been proved by the Defendant to have been lawful, and I therefore find it was unlawful and Mr Dennis was falsely imprisoned for about four and a half hours that afternoon.

Section 105 - LEPRA

1. Mr Dennis has an alternative case based on what is contended was either a failure to exercise or a manifestly unreasonable exercise of the undoubted discretion, given to police officers who have exercised a power of arrest, to revoke that arrest.
2. Without getting into the details of the competing evidence between Mr McRae and SC Owen as to who said what and precisely how rude and aggressive Mr McRae was, but noting that I do not accept SC Owen's suggestion in his evidence that he did not believe Mr McRae was a solicitor, the simple fact is Mr McRae turned up at the scene as a solicitor, told SC Owen in very strong (and many would say offensive) language that his decision to arrest was "ridiculous", and suggested that the appropriate course was to allow Mr McRae to drive Mr Dennis to the police station without the need for arrest. He expressly asked (or demanded) SC Owen revoke the arrest.
3. It was clear to me from SC Owen's evidence, that he took the position that, with the decision having already been made and the arrest effected, matters simply needed to run their course and he actually did not consider the request by Mr McRae at all.
4. The question becomes, did SC Owen have an obligation to entertain the request and thereafter form an opinion (exercise his discretion) as to whether or not he should discontinue the arrest.
5. Section 105 is in the following terms: 105 Arrest may be discontinued (1) A police officer may discontinue an arrest at any time. (2) Without limiting subsection (1), a police officer may discontinue an arrest in any of the following circumstances - (a) if the arrested person is no longer a suspect or the reason for the arrest no longer exists for any other reason, (b) if it is more appropriate to deal with the matter in some other manner, including, for example, by issuing a warning or caution or a penalty notice or court attendance notice or, in the case of a child, dealing with the matter under the Young Offenders Act 1997. (3) A police officer may discontinue an arrest despite any obligation under this Part to take the arrested person before an authorised officer to be dealt with according to law.
6. The power is discretionary. It is obviously intended for circumstances where, for whatever reason, an arresting officer changes his or her mind. There is, however, no express obligation in the statute, nor do I think that there is any implied requirement, that when an arresting officer is asked to reconsider his or her decision, they are obliged to entertain the question. The fact is that SC Owen did not consider the request, however I do not think he was obliged to do so as a matter of law, and thus I don't think Mr Dennis has any independent claim to the effect that his detention thereafter was unlawful for that reason on its own.

Damages

1. Mr Dennis seeks general damages, aggravated damages, and exemplary damages.
2. During the course of oral submissions, Mr Dennis' counsel abandoned, or at least did not press, the claim for exemplary damages and conceded that the only aggravating factor he could point to was the fact that Mr Dennis was suffering from cancer and being treated with chemotherapy when he was made to get into the back of a caged police vehicle, and later spent some time in police cells whilst immunocompromised, all during the COVID pandemic.
3. It is quite clear that every police officer who dealt with Mr Dennis on the day following the arrest, including I must say SC Owen, treated Mr Dennis with dignity, respect, and kindness which is to the great credit of all involved. The situation was a very difficult one. They were dealing with an immunocompromised person at the height of the COVID pandemic. All involved are a credit to the NSW Police Force. I include in this comment SC Owen, who in my judgement did nothing more that day than make an honest mistake. He had the power to arrest Mr Dennis, but his decision to do so was flawed in the way I have described.
4. I do not think that there are any relevant aggravating factors but will take into account the fact of Mr Dennis' health condition when assessing general damages. His stress and anxiety would undoubtedly have been elevated because of his extreme concern not to catch COVID in his condition.
5. When considering general damages, I have been referred to a number of authorities by both counsel as to the level of quantum awarded in these types of cases.
6. The one thing those cases demonstrate is that there is a broad "range" available for general damages, although the cases are a little bit dangerous as precedents, not just because they all turn on specific facts, but also because some judges treat aggravated damages as a separate head, whilst others "roll it in" with an award of general damages. However, I think it fair to say that the range for an arrest and period of incarceration of about four hours lies somewhere between $5000 and perhaps $30,000 - $35,000.
7. Taking everything into account, and in particular the conduct of all the officers involved on the day and accepting that the experience would have been extremely shocking, humiliating, and terrifying for Mr Dennis at the time, I have concluded that the award of general damages must be very much towards the bottom end of that range.
8. I have considered Mr Dennis' submission that he was embarrassed and humiliated by press reports that appeared after his matter came before the Local Court in Wagga Wagga. However, whilst those reports do have embedded in them a statement that Mr Dennis was charged after he was arrested, the overwhelming message from the articles was that he had been charged with offences relating to the fraudulent issue of pink slips. Whatever embarrassment or hurt reputation he suffered from those articles; I think it was not a consequence of the part of the report that there had been an original arrest.
9. I also need to consider the "counterfactual". On any view of it, the police were going to charge Mr Dennis that day. That would have happened at the police station, where he would have spent three or four hours and ultimately would have been released having been charged on the same bail condition that was in fact imposed. On no view of things could that be described as a happy afternoon.
10. That being said, there is a significant difference between that counterfactual and what actually happened, being that Mr Dennis was arrested, placed in a caged vehicle, spent time in police cells listening to a prisoner in the next cell vomiting etc.
11. Taking all those matters into account, I have decided that an appropriate award for general damages is $10,000.

Orders

1. For those reasons I: 1. Enter a verdict for the Plaintiff in the sum of $10,000, together with interest at the Court rates from time to time, from 19 March 2021 until 28 June 2024. 2. Order the Defendant pay the Plaintiff's costs. 3. Direct the parties to confer and agree as to the quantum of the interest payable.

Amendments 28 June 2024 - Fixed mistaken upload- 28/6/24 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2024