Harris v State of New South Wales

Judgment (ex tempore)

1. BRERETON JA: Detective Senior Constable Coffee, for whose torts the respondent, the State of New South Wales, is admittedly vicariously liable, was the officer-in-charge of a fraud investigation at the Coffs Harbour Police Station which commenced in or about August of 2018. On 14 November 2018, she and other police executed a search warrant at premises occupied by the applicant April Anne Harris and her husband. At that time Mr Harris was arrested and subsequently interviewed, following which his arrest was discontinued and he was released pending further investigation. On 15 November 2018, Mr Harris was charged with fraud offences contrary to Crimes Act 1900 (NSW), s 192E, by way of future court attendance notice.
2. On 19 November 2018, Detective Senior Constable Coffee contacted the applicant by telephone at around 8:30am and indicated that she wished to interview the applicant about her involvement in a number of companies relevant to the alleged offences. The applicant at first indicated that she would attend the police station to be interviewed, but after a conversation with her husband changed her mind, and informed the detective that she would not come to the police station to be interviewed as had earlier been indicated. The detective then determined to arrest the applicant, and did so in the company of three other police officers at the applicant's home at about 11:00am that morning. The applicant was conveyed to Coffs Harbour Police Station, entered into custody, and subsequently, at around 12:30pm, asked whether she wished to participate in an interview. She agreed to be interviewed, and following that interview the arrest was discontinued and the applicant was released. She was later charged by future court attendance notice with fraud offences to which it appears that, after the proceedings in the Court below, she ultimately pleaded guilty; that, however, is beside the point.
3. The applicant commenced proceedings in the District Court for damages for false imprisonment, contending that the detective did not have the requisite state of mind referred to in s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA") to effect a lawful arrest without warrant. In proceedings that were heard over five days between 1 and 5 February 2021, Robison DCJ, in a judgment delivered on 8 February 2021, dismissed the claim, holding first that the applicant failed to establish that there was non-compliance with s 99 (and indeed that, in his Honour's words, s 99 had been complied with "to the letter"), alternatively on the basis that Civil Liability Act 2002 (NSW) ("CLA"), s 3B(1)(a), did not permit the claim to proceed because the damages did not amount to "injury" for the purposes of that provision, and in the further alternative that liability was excluded by CLA, s 43A. Contingently, his Honour assessed damages at $15,000.
4. By summons filed on 10 May 2021 the applicant applies for leave to appeal to this Court. Leave is required, under District Court Act 1973 (NSW), s 127(2), because the amount in issue of $15,000 is far below the threshold of $100,000.
5. Three proposed grounds of appeal are identified. The first is that it is contended that the trial judge erred in finding that the arrest complied with s 99(3) of LEPRA; the second is that the trial judge erred in finding that CLA, s 3B(1)(a), did not apply in respect of the respondent's liability to the applicant; and the third is that the trial judge erred in finding that CLA, s 43A, was engaged. The second and third grounds can arise only if the first succeeds. The respondent made no submissions on the issues raised by the second and third grounds, and the case therefore turns essentially on the first ground.
6. LEPRA, s 99, provides as follows: 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. (2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant. (3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law. Note - The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer - see section 105. (4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part. (5) This section does not authorise a person to be arrested for an offence for which the person has already been tried. (6) For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5.
7. Essentially, the section has the effect that for an arrest without warrant to be lawful three requirements have to be satisfied.
8. The first, under s 99(1)(a), is that the police officer suspects on reasonable grounds that the person is committing or has committed an offence. At least in this Court, that was not in issue.
9. The second, under s 99(1)(b), is that the police officer is satisfied that the arrest is reasonably necessary, for any one or more of the nine reasons specified in the sub-paragraphs. In this case, Detective Senior Constable Coffee said that she relied on sub-para (i) (to stop the person repeating the offence or committing another offence), sub-para (vi) (to prevent the fabrication of evidence), and sub-para (ix) (because of the nature and seriousness of the offence). Again, at least in this Court, satisfaction of that requirement was not in dispute.
10. The third requirement is that referred to in s 99(3), namely that, "[a] police officer who arrests a person must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law." As has been explained by the High Court in State of New South Wales v Robinson ("Robinson"), the practical effect of subs (3) is that at the time of making an arrest without warrant, the police officer must have an intention to charge that person. [1] The gravamen of the applicant's argument is that, accepting that first, as the trial judge found, the detective had the intention of charging the applicant, and secondly, as was conceded, that it was implicit - though not explicit - in the trial judge's reasons that it was accepted that she had the intention of bringing her as soon as reasonably practicable before an authorised officer, s 99(3) was nonetheless not satisfied, because the detective had an additional purpose of interviewing the applicant and obtaining "a version" of events from her. As to that, the detective had explained, in examination-in-chief [2] and elsewhere, that in order to prevent fabrication of evidence, about which she was concerned as a result of the communications obviously taking place between the applicant and her husband, her arrest would separate them and therefore prevent further communication, and further that if the applicant chose to participate in an interview, that would enable a version to be obtained from her "which would be less polluted" by her husband. In other words, there were multiple ways in which arrest might serve the purpose of preventing the fabrication of evidence.
11. The applicant's argument depended essentially on the following passage from Robinson (citations omitted): [3] "the Second Reading Speech for the Crimes Amendment (Detention after Arrest) Bill 1997 (NSW) indicates that the original introduction of the investigation period (as Pt 10A of the Crimes Act 1900 (NSW)) was not intended to alter the conditions of arrest - indeed, it was said that "[p]olice will not be able to arrest a person in any circumstance where the law does not otherwise already allow them to do so". That investigation period is therefore not to be taken into account by a police officer at the time of the arrest. Taking it into account at the time of arrest may lead to consideration, subconsciously or consciously, of the possibility of questioning as a reason for the arrest, which is impermissible. Moreover, it may lead to an arrest being made in the knowledge that the relevant level of persuasion of guilt required for charging might be formed as a result of the investigation period. It may therefore in substance lower the threshold for arrest and dilute the required purpose of arrest, which is to take a person before an authorised officer to be dealt with in accordance with law to answer a charge for the offence."
12. In my opinion, what the High Court was there stating was that it is impermissible for a police officer when making an arrest to do so on the basis that he or she may charge the accused following a period of questioning, and for that reason it is impermissible to make an arrest thinking, in effect, "well, I have six hours in which to interview the accused and I might have enough evidence to charge at the end of that period." It does not mean that a police officer making an arrest must disregard the possibility that, between the arrest and charging, matters may emerge - including through a permitted interview during the investigation period - that may negate the intention to charge. [4] In other words, so long as when making the arrest the police officer has the intention to charge, the requisite intention exists. It is not inconsistent with having the requisite intention to charge that the police officer also contemplates utilising the investigation period by questioning the accused, so long as the intention is to charge unless it emerges after investigation that arrest is no longer required. In the words of the majority in Robinson: [5] "The intention required at the time of arrest is an intention to charge unless it emerges after the arrest that the circumstances do not justify such a decision." That was said after acknowledging that: [6] "[the] intention to charge may be negated (and instead the arrest discontinued) if the circumstances after arrest are not sufficient to justify a decision to charge."
13. Accordingly, the mere fact that at the time of making an arrest a police officer, who then holds the intention of charging the accused, is also aware that there will be an opportunity to afford the accused an interview between then and charging, does not mean that the police officer does not hold the intention to charge that is required to make a valid arrest without warrant.
14. All of this sits comfortably with the traditional view, stated by Sir Frederick Jordan in Bales v Parmeter, [7] and approved by the majority in Robinson, [8] that an arrest merely for the purpose of asking questions or making investigations is an arrest for an improper purpose and is unlawful. The primary judge's express finding that Detective Senior Constable Coffee did not - his Honour was "not satisfied that she simply went out to arrest the plaintiff for questioning" - mirrors that test.
15. On the evidence of the detective, which his Honour accepted, she held the intention to charge at the time of the arrest; she would have charged had the applicant not participated in an interview and provided reasons for not proceeding to charge at that point; and implicitly, she had the intention of taking the applicant before an authorised officer. Moreover, for the reasons I have sought to express, even if the detective had the secondary purpose of obtaining a "version" in the course of an interview consequent upon an arrest, in circumstances where she had the intention to charge, that would not have vitiated the arrest.
16. An appeal has insufficient prospects of success to justify a grant of leave to appeal. For those reasons, in my opinion leave to appeal should be refused. I propose that the summons be dismissed with costs.
17. SIMPSON AJA: I agree.
18. BRERETON JA: Accordingly, the order of the Court is that leave to appeal be refused with costs.

Endnotes

1. (2019) 266 CLR 619 at 671 [109] (Bell, Gageler, Gordon and Edelman JJ); [2019] HCA 46.
2. Tcpt, 3 February 2021, pp 144(42)-145(27).
3. Robinson at 673 [113] (Bell, Gageler, Gordon and Edelman JJ).
4. As is clearly contemplated by Robinson at 672 [111] (Bell, Gageler, Gordon and Edelman JJ).
5. Robinson at 672 [111] (Bell, Gageler, Gordon and Edelman JJ).
6. Robinson at 672 [111] (Bell, Gageler, Gordon and Edelman JJ).
7. (1935) 35 SR (NSW) 182 at 188-190 (Jordan CJ; Stephen J and Street J agreeing); 52 WN (NSW) 41.
8. Robinson at 655 [63] (Bell, Gageler, Gordon and Edelman JJ). 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: 07 September 2021