NAZMUL HYDER v COMMONWEALTH OF AUSTRALIA

Reasonable grounds for belief 7 The burden of justifying an arrest is on the arresting party: NSW v Coleman [2000] NSWCA 183. 8 The officer's belief was based on information obtained in the course of the briefing on 28 October 2009. During the briefing, another Federal agent told the officer that "Nazmul Haider" was also known as "Nazmul Hyder"; that they were one and the same person. The officer read affidavits sworn by Mr Anderson in support of the search warrant applications. He read the "statement of facts" prepared by Mr Anderson. Inter alia, the affidavits stated: "6…n. ATO records show that the taxpayer Nazmul Hyder is linked to the following bank accounts nominated to receive 2008 refunds of income tax … u. Seized bank records for the above accounts [see above paragraph 6(n)] show that the bank accounts were established in the name of Nazmul Haider and not Nazmul Hyder. Identity documents produced at the time of the establishment of these bank accounts reveal they are one and the same person. v. … NSW Learners D/L 15699718 in the name of in the name of Nazmul Hyder, Bangladesh D/L DK0059950L in the name of Nazmul Haider and Bangladesh passport B0742681 in the name of Nazmul Haider were produced to establish these accounts." 9 The "Statement of facts" asserted that "the Defendant" had opened each of the fraudulent bank accounts, had withdrawn the proceeds of the false refund applications from the accounts, and had dealt with those proceeds. In fact, as the brief of evidence served on 10 December 2009 (Exhibit A) showed, while there were significant similarities between the false identity documents produced at the time that the bank accounts were established (similar name, same date of birth, same father's name), there were very substantial differences (differences in dates, addresses and identity numbers) between the false documents and the plaintiff's genuine documents (Exhibit A, tab 12). 10 The plaintiff contended (par 15 of the statement of claim) that there was no factual basis capable of founding a reasonable belief that he was the offender who opened the fraudulent accounts. The plaintiff argued that, as "Operation Starfish" was an investigation into fraud committed through "stolen identities", it was incumbent on the officer to reasonably eliminate the possibility that the plaintiff's identity had been "stolen" before the officer arrested the plaintiff. 11 When a statute requires that there be "reasonable grounds" for a state of mind (including suspicion or belief) before a power is exercised, it is the decision maker who must come to that conclusion on the materials presented to him or her, and that person may not discharge the function "by acting parrot-like, upon the bald assertion" of another: George v Rockett (1990) 170 CLR 104 at [112] - [113]. 12 One must consider the decision maker's state of mind at the time that the decision is made. When considering "reasonable grounds", one must consider what is known at the time: Ruddock v Taylor [2005] HCA 48 at [40]. 13 In Hussein v Chong Fook Kam [1970] AC 942, the Privy Council considered a provision that empowered police to make an arrest upon reasonable suspicion that an offence had been committed. The Court determined that "reasonable suspicion" could not be equated with prima facie proof; suspicion could take into account matters that would not be admissible in evidence, whereas prima facie proof consisted of admissible evidence. The material required to arouse suspicion is less than that required to induce a state of belief, and that required to induce belief is less than that required to establish a state of fact: Nye v State of NSW and Ors [2003] NSWSC 1212 at [39]. In George v Rockett at 115 - 116, the High Court said: "Suspicion, as Lord Devlin said in Hussein v Chong Fook Kam [1970] AC 942 at 948, "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect that I cannot prove'." The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown…The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of mind may, depending on the circumstances, leave something to surmise or conjecture." (emphasis added) 14 In O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] 1 All ER 129, the House of Lords considered a provision that empowered a constable to arrest "a person whom he has reasonable grounds for suspecting to be" a person concerned in acts of terrorism. An arresting officer had acted on the basis of a briefing by a superior officer, who had said no more than that the plaintiff had been involved in a murder and should be arrested. The Court found that the arrest was lawful. At [134], Lord Steyn said: "In order to have a reasonable suspicion the constable need not have evidence amounting to a prima facie case. Ex hypothesi one is considering a preliminary stage of the investigation and information from an informer or a t tip - off from a member of the public may be enough … Hearsay information may therefore afford a constable reasonable grounds to arrest. Such information may come from other officers (see Hussein's case)…" At [139], Lord Hope of Craighead said: "The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong." At [141], Lord Hope cited Castorina v Chief Constable of Surrey NLJ 24 June 1988 at [180] as support for the proposition that an arresting constable may have "reasonable grounds to suspect" on the basis of facts reported to him or her. 15 In Castorina, the Court of Appeal considered the expression "with reasonable cause suspects to be guilty of the offence". At [181], the Court said: "There is ample authority for the proposition that courses of inquiry which may or may not be taken by the investigating police officer before arrest are not relevant to the consideration whether on the information available to him at the time of the arrest he had reasonable cause for suspicion." 16 O'Hara was referred to in R v Rondo [2001] NSWCCA 540, in which the Court of Criminal Appeal considered the expression "reasonably suspects of having or conveying any thing stolen or otherwise unlawfully obtained". In the leading judgement, at [53] Smart A J said: "These propositions emerge: (a) A reasonable suspicion involves less than a reasonable belief but more than a possibility… There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s357E. A reason to suspect that a fact exists is more than reason to consider or look into the possibility of its existence. (b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value…" 17 In Hussein, Castorina, O'Hara and Rondo, the courts determined that hearsay material could be considered when a decision maker was forming a "reasonable suspicion" (rather than a "reasonable belief"). Although reasonable belief is a more definite state of mind than a reasonable suspicion and, consequently, must rest on a firmer foundation than that required for a reasonable suspicion, there is no logical basis to distinguish the categories of material that may found a reasonable belief from the categories that may found a reasonable suspicion. In either case, the state of mind may be based on hearsay material. It will be necessary for the decision maker to determine whether the particular hearsay material is sufficiently pertinent and reliable to found the requisite state of mind. 18 In this case, the officer formed his belief on the basis of a sworn affidavit and a "statement of facts" provided by a senior investigator with the ATO, the body responsible for investigating "Operation Starfish". In effect, the affidavit asserted that specific identity documents had been produced when the fraudulent accounts were opened, and that an examination of those identity documents established that it was the plaintiff who had opened the accounts. Had the officer examined the identity documents produced to the banks and compared them with the plaintiff's genuine documents and known circumstances, he may well have decided that the documents produced to the banks were not authentic and provided no evidence that the plaintiff was the offender. However, he was not obliged to involve himself in the investigation. The officer was entitled to treat apparently reliable hearsay material as providing "reasonable grounds" for a belief that the plaintiff was the offender who had opened the accounts, and to arrest the plaintiff.

Damages 19 Had the plaintiff succeeded, he would have been entitled to compensatory damages for loss of liberty and the physical and mental distress (including injury to reputation) associated with the period of a little over four hours during which he was imprisoned by the Commonwealth. The range of compensatory damages awarded in such cases is conveniently summarised by Judge Walmsley SC in Zreika v State of NSW [2011] NSWDC 67 at [91]. 20 The plaintiff suffered significant injury to reputation, both in Australia and in Bangladesh. He has no prior criminal convictions. The fact of his arrest and imprisonment became widely known within the Australian Bangladesh community, and became known to the family of his fiancee in Bangladesh. They terminated the marriage arrangement. The plaintiff's lacks permanent resident status in Australia. He had been studying to sit an examination for the purpose of obtaining permanent residence, but since his arrest he has suffered too much stress to sit the exam. 21 I would have awarded the plaintiff $40,000 by way of compensatory damages for loss of liberty and mental distress (including damage to reputation). In addition, the plaintiff would have been entitled compensation for loss of income in the sum of $400. 22 Aggravated damages are awarded to compensate a plaintiff for increased mental suffering due to the manner in which a tort has been committed. In this case, Exhibit 1 established that the arrest was effected in a courteous manner. There was no evidence of inappropriate behaviour during the period of imprisonment. I would have declined to award aggravated damages. 23 There will be a verdict for the defendant. 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: 12 August 2011