appellant. Appeal allowed; the two convictions under s 60(2) of the Crimes Act are set aside and the charges dismissed; related sentencing orders set aside (see ORDERS [65]).
Key principles
An arrest without a warrant under LEPRA s 99(1) is lawful only if three criteria are satisfied: (1) the officer suspects on reasonable grounds that an offence has been committed...
The phrase 'as soon as it is reasonably practicable' in s 202 requires the reason for arrest to be given at the earliest time it is reasonably practicable in the circumstances;...
If an arrest is unlawful because s 202 was not complied with (reason not given as soon as reasonably practicable), police actions taken pursuant to that unlawful arrest cannot...
Issues before the court
Was the initial contact and grabbing of the appellant's arm a lawful arrest under LEPRA s 99(1)?
Was there compliance with LEPRA s 202 that requires the reason for arrest be provided 'as soon as it is reasonably practicable to do so'?
If the arrest was unlawful, could the appellant be convicted of assaulting officers 'in the execution of their duty' occasioning actual bodily harm?
Plain English Summary
The District Court allowed Murray's conviction appeal. The court accepted the arresting officer subjectively believed arrest was necessary to identify Murray, satisfying LEPRA s 99(1)(b), but found the officer did not tell Murray the reason for arrest at the earliest practicable moment as required by s 202. Because the reason was not given until after the officer physically restrained Murray, the arrest was unlawful and the later convictions for assaulting officers in the execution of their duty could not stand; the convictions and sentences were set aside.
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Deep Dive
1,917 words · generated 20/06/2026
What happened
Murray was connected to earlier offending at or near a Domino's pizza shop: intimidation of members of the public and damage to an ambulance (background offences admitted and before the magistrate). Senior Constable Hadley in a marked police vehicle located Murray walking on Prince Street a short while later. Hadley asked Murray to “stop” and said “we need to have a chat about what happened down at Dominos and the Ambo” (evidence summarised at The evidence [1]-[6]). After a second request Hadley took hold of Murray’s left arm. That physical act was common ground to constitute an arrest (see The evidence [1]).
Cited legislation
3 cited instruments linked from this judgment.
Murray resisted. During the struggle Hadley says he was bitten and scratched; other officers were injured (statements from other officers corroborated). Hadley later told Murray he was under arrest for malicious damage. At the magistrate the Crown ran the arrest as being for identification (a ground permitted by LEPRA s 99(1)(b)) rather than for merely seeking to "have a chat." The magistrate found the officer had subjectively been satisfied it was necessary to arrest for identification and that s 202 had been satisfied by the officer giving the reason within a matter of seconds. The magistrate convicted Murray of two counts of assaulting officers occasioning ABH.
On appeal under s 18 of the Crimes (Appeal and Review) Act, Priestley SC, DCJ reconsidered the evidence (largely on the papers, with brief oral evidence from Hadley) and reached two principal conclusions: (1) the magistrate was correct to accept the officer’s subjective state of mind that he was satisfied the arrest was reasonably necessary to enable identification (s 99(1)(b)); but (2) the magistrate erred in concluding s 202 had been complied with because the reason for arrest was not given “as soon as it was reasonably practicable to do so”, it could and should have been given before the officer physically restrained Murray (see Discussion and conclusions [39]-[56]). The appeal was allowed and the two convictions and related sentencing orders were quashed (ORDERS [65]).
Why the court decided this way
Two statutory provisions controlled outcome: LEPRA s 99(1) (power to arrest without warrant) and s 202 (obligation to inform arrestee of the reason for the exercise of the power when making an arrest). Priestley DCJ applied a threefold test for a lawful arrest: (1) a reasonable suspicion an offence was committed (s 99(1)(a)), (2) the officer’s subjective satisfaction that arrest was reasonably necessary under one of the enumerated s 99(1)(b) grounds (subjective test), including to enable identification, and (3) compliance with s 202 by informing the arrestee of the reason “as soon as it is reasonably practicable to do so” (see [31] and following).
The court accepted the Crown’s evidence that Hadley had reasonable grounds to suspect and was subjectively satisfied that arrest was necessary to identify Murray (magistrate’s finding affirmed) (see [39]-[41]). That resolved the s 99(1)(b) issue in the Crown’s favour.
The decisive issue was timing and content under s 202. Priestley DCJ emphasised that the statutory phrase “as soon as it is reasonably practicable” demands the reason be communicated at the earliest practicable moment in the circumstances, which could be before, during or (if impossible earlier) soon after the moment liberty is first restrained (see [36]). Applying that standard to the factual matrix, a calm, short interaction where Murray was walking, not running, and there was no evidence of immediate peril or tumult, the judge concluded Hadley could and should have said that he was arresting Murray to enable identification before grabbing his arm and pushing him (see [52]-[56]). Because the reason was instead stated only after physical restraint, s 202 was not complied with: the arrest was unlawful and any subsequent use of powers arising from it could not be treated as lawful. That meant the assaults could not be characterised as occurring against officers “in the execution of their duty,” and the convictions could not stand (see [63]-[65]).
The court also indicated the subjective satisfaction of the officer remains subject to review where it is capricious, arbitrary or manifestly unreasonable, but found no such defect here (see [48]).
Before and after state of the law
Before: Authorities were settled that arrest without warrant under LEPRA required satisfaction of s 99(1)(a) and (b) and compliance with the notification obligations (previously s 201, now s 202). Randall, Hamilton, Abed and others explored those requirements, with some division on the precise test to apply to s 99(1)(b) (subjective versus objective emphasis) and the precise timing obligation when an arrestee must be informed.
This decision: Reaffirms three core requirements: reasonable suspicion, subjective satisfaction of necessity (s 99(1)(b)), and strict timing of the s 202 notification, construed as requiring the reason to be given at the earliest practicable moment. The decision clarifies that where the circumstances are calm and it is practicable to give the reason before physically restraining liberty, failing to do so renders the arrest unlawful. It emphasises that compliance with s 202 is not a formalistic afterthought; it can determine lawfulness of arrest and therefore whether subsequent criminal charges relying on the legality of arrest (for example, assaults on officers executing duties) can be sustained.
After: The case stands as a practical example applying s 202’s “as soon as reasonably practicable” standard to a short, non-chaotic public interaction and will be persuasive on timing questions where the arresting officer did not provide reasons before physical restraint.
Key passages with plain-English translation
Passage (summary of s 99 and s 202 obligations) (see [31]): “The officer must be satisfied that it was reasonably necessary to arrest the person for any one of the reasons set out in s 99(1)(b) ... and the person has been informed of the reason for the arrest as provided by s 202.”
Plain English: To arrest someone without a warrant the police must have a real basis for suspecting an offence, must actually believe arrest is needed for a reason the statute allows (for example, to identify the person), and must tell the person why they are being arrested promptly.
Passage (on meaning of s 202) (see [36]): “The current section 202 requires ... the reason for the arrest must be provided as soon as it is reasonably practicable to do so. ... this amendment seeks to make clear ... the reason for the arrest must be provided 'as soon as it is reasonably practicable to do so'.”
Plain English: The law requires the police to tell someone the reason for an arrest at the earliest moment it can reasonably be done, not sometime much later.
Passage (application to facts) (see [54]-[55]): “The earliest time ... that it was practicable to inform the appellant ... was just before the arrest occurred. ... there was no reason that the reason ... could not be provided earlier than they were ... the arrest is not a lawful one.”
Plain English: In this case the officer could have told Murray why he was being arrested before grabbing him; because he did not, the arrest was unlawful.
Passage (consequence) (see [63]-[65]): Court sets aside convictions for assaulting officers occasioning ABH.
Plain English: Because the arrest was unlawful, the resulting convictions for assaulting officers acting in their lawful duties could not be upheld.
What fact patterns trigger this precedent
This decision will be directly applicable where:
Police encounter a person shortly after suspected offending in a calm, public street context where the person is walking and not attempting active flight or creating immediate danger, and where the officer physically restrains the person without first giving the statutory reason for arrest.
Cases where the Crown relies on s 99(1)(b)(iii) (to enable identification) as the ground for arrest but where there is dispute about whether the reason was told “as soon as reasonably practicable.”
Situations where later criminal liability depends upon the lawfulness of the arrest (for example, charges of assaulting police 'in the execution of duty').
Patterns less likely to be governed by this authority:
Chaotic, dangerous or rapidly evolving incidents where it is impracticable to provide reasons until after immediate force is used; the court explicitly acknowledges that timing depends on context and that s 202 can be satisfied before, during, or after restraint depending on practicality (see [36], [52]-[56]).
How later courts have treated it
As this is a District Court judgment (Priestley SC DCJ) in 2020, its direct precedential weight is persuasive within NSW inferior courts. It applies established High Court and Court of Appeal principles (Fox v Percy approach to appellate fact-finding; Allesch on substitute decision-making; and Basten JA’s reasoning on subjective satisfaction in Randall as discussed via DPP v SB). Subsequent courts will treat the decision as a careful application of s 202’s timing requirement to low-tension street encounters and will cite it where timing of the reason-giving is determinative of lawfulness. The judgment notably distinguishes Hamilton (where a different set of facts led to a breach of the prior s 201) but treats Hamilton as instructive about assessing practicability in context (see [36]-[38], [44]-[51]). Practitioners should expect lower courts to adopt its emphasis on early communication of reasons where practicable.
(Readers should verify subsequent appellate treatment in case of later appellate authority modifying application; this analysis is grounded only in the text of R v Murray [2020] NSWDC 729.)
Still-open questions
Prospective validation: The court noted “prospective validation” (the idea that a subsequent compliance with s 202 might validate an earlier unlawful restraint) was raised in Randall but not argued or decided here (see [35]). Whether giving the reason a short time after an initial unlawful restraint can cure the unlawfulness, and in what circumstances, remains an open, important question.
Content sufficiency of reason: The court observed the reason actually told to Murray (“malicious damage”) did not align with the s 99(1)(b) ground the Crown relied on (identification), and the court did not fully decide whether the content later stated could have satisfied s 202 in substance (see [59]-[62]). The permissible specificity and form of “the reason” in marginal cases remains a practical question for police and courts.
Interaction of s 204A and s 202: Priestley DCJ held s 204A (requirement to provide officer’s name and place of duty) cannot remedy non-compliance with s 202 (see [60]). However, intersections between the different notification obligations (what can be said in what order and whether partial compliance can be sufficient) could be further explored in future cases.
Standard of review over subjective satisfaction: The judgment reiterates that s 99(1)(b) is subjective but reviewable if capricious or manifestly unreasonable (see [48]). How appellate courts should assess that review standard on differing evidentiary records (oral evidence, transcripts, magistrate’s credibility assessments) will continue to be shaped by future appeals.
Consequences for evidence and derivative exclusions: The decision resolves criminal liability arising from allegedly lawful exercise of powers. It leaves open broader evidentiary consequences (for example, admissibility of evidence obtained incident to an unlawful arrest) and civil liability consequences, which will depend on further authoritative rulings.
Conclusion: R v Murray emphasises procedural obligations surrounding arrest and enforces a practical, context-sensitive but firm standard on the timing of informing an arrestee of the reason for their arrest. Where the circumstances make it practicable to tell someone before restraining their liberty, failing to do so risks rendering the arrest unlawful with immediate criminal-law consequences for prosecutions that depend on the lawfulness of the arrest.
Judgment (11 paragraphs)
[1]
Introduction
This is a conviction appeal pursuant to section 18 of the Crimes (Appeal and Review) Act. The notice of the appeal stated it to be an all grounds appeal but the appellant has made clear that there is no appeal as to severity should the conviction appeal be unsuccessful.
The nature of a section 18 appeal is in my view best described by the passage below from Engelbrecht v DPP [2016] NSWCA 290. Engelbrecht was decided after Gianoutsos v Glykis [2006] NSWCA 137, (which is authority for the proposition that no error need be found in a s18 appeal) and after section 18 had been amended. At [89], Engelbrecht adopts the reasoning from Charara v R [2006] NSWCCA 244 which was decided on the same legislation as Gianoutsos but with a different outcome:
The nature of a conviction appeal pursuant to the Appeal and Review Act, s 18 in its current form was summarised in Dyason v Butterworth,[68] as follows:
[26] A s 18(1) appeal is not an appeal de novo: Charara v R [2006] NSWCCA 244; (2006) 164 A Crim R 39 (at [16] - [24]) per Mason P (Kirby and Hoeben JJ agreeing). Although s 18(1) is no longer precisely in the same form as it was when considered in Charara, the amendment does not detract from Mason P's reasoning: B v Director of Public Prosecutions [2014] NSWCA 232 (at [39]) per Beazley P (Barrett JA and Tobias AJA agreeing).
[27] The approach to be taken on a s 18(1) rehearing is analogous to that taken to a civil appeal under s 75A of the Supreme Court Act as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [23]): McKellar v Director of Public Prosecutions [2011] NSWCA 91 ('McKellar') (at [8]) per Basten JA (Beazley P and Whealy JA agreeing). The 'judge is to form his or her judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court': Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 (at [23]) per Beazley JA (Basten and Campbell JJA agreeing). While the Magistrate's reasons are not part of the transcript of evidence, recourse can be had to them on appeal as otherwise the appellate function cannot properly take place: Charara v R (at [23]).[28] The powers of the District Court on a s 18(1) rehearing are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (at [23]) per Gaudron, McHugh, Gummow and Hayne JJ."
The judge hearing the appeal needs to take proper account of the advantage had by the magistrate in hearing the oral evidence and observing the witnesses in the witness box. This is not of great significance in this case as the matter was largely determined "on the papers" with only some brief oral evidence of Senior Constable Hadley, and no cross examination.
The appeal relates to convictions for assaulting 2 officers in the execution of their duty and in each case occasioning actual bodily harm. Preceding the events giving rise to those charges were events that saw charges of intimidation later laid and pleas of guilty in relation to them entered as well as one charge of destroy or damage property which was also admitted. The full facts are set out in exhibit A. Relevantly the accused intimidated a number of people outside a pizza store about 6:10 PM. He was imposing himself on people attempting to get a lift in their motor vehicle. These attempts were unsuccessful and this was followed by him striking a motor vehicle and damaging the left side mirror and blinker of the vehicle. This led to police being called. The accused was located. It is the events between him being located and then escorted to a police truck that is the factual area giving rise to this dispute.
At the hearing the matter proceeded largely by way of statement with some additional short further evidence of SC Hadley, on which there was no cross examination. The argument for the appellant is that the 2 charges of assaulting an officer in the execution of duty cannot be made out because at the time of the alleged assault the officers were not executing their duty because they had in the lead up to that alleged event unlawfully arrested the appellant.
[2]
The evidence
There was a statement of Senior Constable Hadley, one of the alleged victims of an assault. That statement is dated 20 January 2020. In that statement the officer recounts attending at the scene and patrolling for the accused and locating the accused walking in a southerly direction on the footpath on Prince Street, near Victoria Street. The scene of the earlier occurring and later admitted offending was also in Prince Street, some two blocks north of where the appellant was located. The officer was in full police uniform and was travelling in a fully marked police caged vehicle. At paragraph 5 Senior Constable Hadley says that he exited the police vehicle and said to the accused "mate stop right there, we need to have a chat about what happened down at Dominos and the Ambo" (1). It was the ambulance officer who had been the subject of one of the acts of intimidation and whose vehicle (an ambulance) had been damaged. After these words were said the accused continued to walk along the footpath and was again requested to stop (2) and he again refused (the officer's description), or more accurately, continued to walk. The officer's statement then states that he moved towards the accused and grabbed hold of his left arm (3) and the accused immediately attempted to pull his arm away causing the officer to say "mate stop" (4). It is common ground that the act of grabbing the arm of the appellant constitutes arrest. This subsequent command (no longer a request as asserted in the statement, given the Crown concession as to arrest) was also not complied with. The officer then pushed the accused in the chest to attempt to stop him walking away (5). The accused then walked backwards up nearby steps (6). It is at this point that the officer informed the accused he was under arrest for the damage he caused to the ambulance vehicle saying:
"I'm Senior Constable Hadley from Grafton police. You're under arrest for malicious damage. You do not have to say or do anything if you do not want to but anything you
say or do I will record and the recording may be used as evidence in court. Do you understand that".
The accused said "let me go, I haven't done anything wrong" and continued to push and pull his arm forcefully in an attempt to break free and the officer said "stop resisting".
The injury to Senior Constable Hadley arose from the accused subsequently biting him and scratching him. After being detained by the police the accused continued to resist their efforts to control him. This led to Senior Constable Hadley utilising a leg sweep action causing the accused to fall. Senior Constable Hadley then dropped to the ground on his right knee but the moving of the accused caused him to lose balance. The accused attempted to bite the officer's leg. The officer put his right knee on the accused's head to prevent this happening again. The accused bit the officers right knee which was responded to by two approved hammer fist strikes to the head of the accused to get the accused to release. There then followed an attempt to place the accused in handcuffs which is when the scratching occurred. In the course of this the accused bit the right index finger of the officer.
[3]
The issues
Before the magistrate, and again in this appeal, the arguments of the appellant were:
17.1. That the police had no power to require the accused to answer questions. It was submitted the arrest occurred due to the failure of the appellant to answer the questions or comply with the requests being made of him by SC Hadley. This was said to be unlawful as it was not a valid reason for arrest. In terms of the Law Enforcement (Powers & Responsibilities) Act (LEPRA), this argument relies on section 99(1)(b).
17.2. That there was no need to arrest the appellant. In the circumstances a CAN could simply be issued. This argument also relies on section 99(1)(b).
17.3. That section 202 had not been complied with in that the appellant had not been informed of the reason for the arrest as soon as practicable. What was not argued was whether the reason ultimately stated, of being arrested for being suspected of committing the offence of malicious damage, satisfied the requirements of s99(1)(b).
The Crown argued that section 99(1)(b) had been complied with, in that SC Hadley was satisfied it was reasonably necessary to arrest the appellant for the reason to identify him. The Crown further argued that this occurred literally a number of seconds after the arrest and that in the circumstances this was as soon as was reasonably practicable.
There was no argument raised before the magistrate or on this appeal as to "prospective validation". Such an argument, which was raised but not determined in State of NSW v Randall [2017] NSWCA 88, and is to the effect that if the arrest was unlawful due to non compliance with s202, but there is subsequently compliance with s202, then the unlawful arrest ends at that point.
The case has been conducted on the basis that if the arrest by SC Hadley placing his hand on the arm of the appellant is unlawful, then the 2 offences of assault of an officer in the execution of duty, occasioning actual bodily harm pursuant to s62, cannot be made out.
[4]
The authorities
In State of NSW v Randall [2017] NSWCA 88 Basten JA at [10] stated that the validity of an arrest without a warrant turns on the satisfaction of three criteria. Firstly the officer must suspect on reasonable grounds that the person is committing or has committed an offence, as provided for by section 99 (1) (a). Secondly the officer must be satisfied that it was reasonably necessary to arrest the person for any one of the reasons set out in section 99 (1) (b). I note that those reasons include to stop the commission of further offences and to enable inquiries to be made to establish the person's identity. I further note that those specified exhaustive reasons do not include so as to be able to charge the person. Thirdly that the person has been informed of the reason for the arrest as
provided for by what is now section 202. Whilst Basten JA was in the minority in Randall
these three criteria are uncontroversial.
DPP v SB [2020] NSWSC 734 was an appeal by a prosecutor against the decision of a magistrate dismissing criminal proceedings against the defendant. The basis of the appeal was that the magistrate had applied the wrong test in determining whether section 99 (1)(b) had been complied with. The contention of the Director was that the magistrate had erred by considering the decision of the officer to arrest as being reasonably necessary on an objective rather than subjective basis.
At [50] Walton J referred to Donaldson v Broomby [1982] FCA 58 and the passage of the judgment of Deane J of the Federal Court as he then was, which noted in powerful terms the significance of arrest, including "the customary companions of arrest are ignominy and fear" and "a police practice of arbitrary arrest is a hallmark of tyranny". The point that his Honour was making with respect is that whether or not an arrest is lawful should not be determined by fine points, and that it is an area where the law needs to be clear, depriving as arrest does the individual of their freedom. To similar effect, albeit expressed differently and from a different perspective, were the words of Viscount Simon in Christie v Leachinsky [1947] UKHL 2 (in the third last par of the judgment). The point being made there was that if something is so obvious as to not need to be said, then the arrest may still be lawful; that is, in dealing with issues of fundamental rights, the focus should be on matters of substance. In that passage 5 common law propositions as to the lawfulness of arrest were stated. Key amongst them is the need to tell the arrestee the reason for the deprivation of his liberty. In our present case there are the obligations imposed upon an officer by LEPRA, and in particular ss 99 and 202. Part of the passage included the following:
In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2.) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3.) The
requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4.) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.
[5]
The magistrate's reasoning
The appellant submitted before the magistrate that the accused was arrested for the purposes of questioning. This submission was based on the fact of the arrest occurring upon the failure of the accused to talk to the police about what occurred at Dominos. Arrest for such a purpose is unlawful; see New South Wales v Robinson [2019] HCA 46.
The accused also submitted that there was no need for the arrest and that a court attendance notice would suffice (a submission with the obvious difficulty of not knowing the accused's identity).
The prosecution argued that the uncontested evidence showed SC Hadley was satisfied
it was reasonably necessary to arrest the accused to establish his identity and to prevent him fleeing. This was said to be the reason for the arrest, and it was not for the purpose of questioning.
It had been argued by the accused that s202 was not complied with (the magistrate
refers to this at T11 of 4.9.20). The prosecution relied on the fact that the whole exchange occurred in a matter of seconds, and s202 was complied with by SC Hadley saying what is set out at [6] above.
The magistrate spent some time on the issue of the entitlement of the police to ask the
accused to stop and chat when they first located him. The approach of the magistrate is clearly correct in this regard; see T12 of 4.9.20. I adopt that reasoning. With respect to
the submission of the accused, that this arrest was really an arrest for failing to comply with the request to chat, that submission had more force based on the statement evidence alone. The oral evidence of SC Hadley however, which was not challenged, shows that his subjective state of mind was that it was necessary for identification purposes, and I do not consider that capricious, arbitrary or manifestly unreasonable (see [48] below), in circumstances where the appellant had been non responsive. This was the conclusion of the magistrate at T16.35 of 4.9.20, based on the same evidence.
The finding just made means the challenge to s99(1)(b) being satisfied also fails. So too does the argument suggesting that arrest was not necessary; I consider that it was, in order to identify the appellant. At T16 of 4.9.20 her Honour came to this conclusion based on the unchallenged evidence of SC Hadley as to his state of mind, and in my view her Honour was correct to do so, though I do note a factual error in relying on the attempts of LSC Rheinberger to identify the appellant (see T16.25), which in fact occurred after the purported arrest.
[6]
Discussion and conclusions
For the reasons identified at [39] above, the submission that the arrest was for the purpose of, or a result of the appellant's disinterest in, having a chat, fails. To the extent that argument sought to challenge SC Hadley having a reasonable ground to suspect the appellant had committed an offence, it fails. The evidence clearly established a basis for SC Hadley to have reasonable grounds to suspect the appellant had committed an offence.
In my view the magistrate has made no error in her consideration of s99(1)(b). The correct subjective test, discussed above, was applied, and the conclusion at T16.35 of
4.9.20 reveals no error. I note I refer to this at [40] above.
The prosecution case was conducted by adducing evidence in addition to the statement at the hearing giving a basis for the relevant subjective state of mind of the arresting officer being established, namely that he was satisfied that the arrest was reasonably necessary to establish identity, giving a basis to show s99(1)(b)(iii) was satisfied. This
evidence was not challenged, but I note that at T18 the reason for taking hold of the appellant's arm was first said to be to prevent him leaving "the scene, the location" (the first response) and then later on that same page when pressed in chief, he stated the reason was "to get his identity" (second response). The first answer in my view would not survive scrutiny; the appellant was walking, had left the scene, and was making no attempt apart from continuing to walk to leave "the location". I consider that the reason for the arrest was the second response.
The Crown correctly argued that s99 is subjective as to the reasonable satisfaction requirement. I would note for completeness that this does not mean the arresting officer's subjective view is not subject to review. If a police officer is subjectively of the view something is reasonably necessary, but can be shown to be capricious, arbitrary or manifestly unreasonable (see Randall at [40]) then that can invalidate the arrest. That however is not this case.
[7]
Section 202
The remaining criterion to consider is s202. The magistrate's reasoning supporting her conclusion that s202 had been complied with is brief and is set out at [42] above, and in essence relies on the fact that the reason for the arrest was given within seconds of the arrest occurring. For the reasons that follow, it is my view that the learned magistrate has not correctly applied s202.
In terms of the nature of this appeal, the error that I find has been made is an error of law and or fact. Thus, if some error of law, fact or discretion needs to be established to succeed in a s18 appeal, as suggested in AG v DPP [2015] NSWCA 218 per Basten JA (but with which Simpson J disagreed), it has been established here.
Relevantly, section 202 has two requirements. Section 202(1) requires on the facts of this case that SC Hadley must give the reason for the exercise of the power of arrest.
Section 202(2) requires that reason must be provided as soon as it is reasonably practicable to do so.
[8]
"As soon as it is reasonably practicable"
It is common ground that the sequence of events is as set out at [6] above, and the steps taken before s202 was purportedly complied with are identified there by numbers in parentheses, specifically:
52.1. Request to stop for a chat about Dominos;
52.2. Second request to stop;
52.3. Act of grabbing arm, constituting arrest;
52.4. Command to stop;
52.5. Push in chest to prevent appellant walking away;
52.6. The accused walked backwards up nearby steps.
Significantly throughout the entirety of the events just outlined, the appellant walked. At no time did he run, and there is no evidence of him giving the appearance of being about to do so.
In the context of carrying out police duties, the events described by the evidence, and in
particular those just outlined, show that this is not a stressful event; it is an occasion of a man walking along the street, not far, in fact in my view, close, to the scene of his crimes, so apparently not making any concerted effort to be far from the scene, although the evidence is clear that the appellant had left the location of the offence. There is no evidence of any noise, or of any jostling, yelling, or panic in the way hypothesised by Campbell J in Hamilton. The events in question here are somnolent in comparison to
those described in Hamilton. The lead up to the arrest as outlined by the Crown in submissions does not alter my conclusion on this point.
The requirement of the section is that the reason for the arrest be provided "as soon as it is reasonably practicable to do so". The determination of when that may be is determined by the circumstances, as explained in Hamilton and Abed. The earliest time in the circumstances here that it was practicable to inform the appellant of the reason for the arrest was just before the arrest occurred. It was practicable to do so because the evidence discloses that there was nothing preventing SC Hadley to do so at that time. SC Hadley simply needed to state to the appellant as he was walking that he was to be placed under arrest so that he could be identified, (I query whether the reason to restrain the appellant leaving the location would withstand full analysis; s99(1)(b) refers to the location of the offence, which is not where the arrest occurred. This confirms my view expressed below that the two reasons discussed above are one and the same thing, which in my view is supported by the way the evidence was led). With respect, there was no reason that the reason (or reasons) for the arrest could not be provided earlier than they were, so that when they were in fact stated they were not stated as soon as it was reasonably practicable to do so. It follows that the reasons for the arrest were not stated in accordance with s202, so that the arrest is not a lawful one.
[9]
Reason for arrest
When a reason was provided to the appellant for his arrest, the appellant was told he was under arrest for malicious damage, which is not a reason provided for in s99(1)(b), which sets out the reasons which justify the exercise of the power of arrest. The police case was that the reason for the arrest was as discussed above, to identify the appellant, and again as discussed above, to prevent him leaving (which in my view in light of the oral evidence was two ways of saying the same thing, given the first and second responses; this was part of the basis for my acceptance of the second response).
The appellant was never told the reason for his arrest was so that the police could
identify him (they in fact never asked his name, though the likely response of the appellant would be to continue to walk).
The appellant was never told the reason for his arrest was to stop him "leaving the scene, the location" (T18), which as noted above, he had already left.
Section 202 imposes a mandatory obligation that the arrestee be provided with the reason for the arrest. The only reason given at any time was "malicious damage". The case was run by the police to show that the reason was either to stop the appellant leaving the scene or to identify him; neither of these reasons was ever stated. The statement that he is being arrested for malicious damage does not satisfy s202. Further, as an observation, absent any other matters of a kind anticipated by the reasons set out in s99(1)(b), malicious damage is the type of offence that, in and of itself would not justify arrest, and could be dealt with by Court Attendance Notice.
It follows that in my view not only was the appellant not provided with the reason for his arrest as soon as was reasonably practicable, when the section was purportedly complied with it was not in fact complied with in regards to the need to provide the reason. This is because the reason given, as is made very clear by the police case (see the evidence at T18 and T19), was not the reason for the exercise of the power of arrest.
In my view this appeal cannot be decided on this last aspect of what I consider likely to be further non compliance with s202. This is because neither party argued this point. Further submissions could be received on the point, and I could then consider whether the foregoing views are correct. In circumstances where the issue as to the time at which the reason for the arrest was provided was fully argued and where I have concluded that s202 has not been complied with on that basis, I have decided to simply decide the matter on that point. The outcome of the debate concerning whether the reason given satisfied s202 will not alter the outcome of the appeal.
[10]
ORDERS
I make the following orders:
1. The appeal is allowed.
2. The 2 convictions of offences under s60(2) of the Crimes Act are set aside and the charges dismissed.
3. The sentencing orders for those convictions are set aside.
[11]
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: 26 November 2020
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Murray
Legislation Cited (3)
Law Enforcement (Powers & Responsibilities) Act 2002(NSW)
Appeal allowed; the two convictions under s 60(2) of the Crimes Act are set aside and the charges dismissed; related sentencing orders set aside (see ORDERS [65]).
In his oral evidence Senior Constable Hadley was asked what was the reason for him taking hold of the accused left arm and stated "because he showed he wasn't going to stop and to prevent him from leaving the scene, the location"; T18. A further question was to ask what was the reason for wanting to prevent the accused from leaving and the answer was "to identify, to get his identity in relation to the incident that occurred down at Domino's".
He was then asked what happened at the point that he said "mate, stop" and he answered "The accused, he refused. At that point it was my judgment that he was not going to willing, to stop. So I've placed him under arrest". The evidence was these events, from the time the officer exited the police vehicle, until the officer identified
himself, all occurred within "a number of seconds". This was then described as being
"very short" in time; see T19.
As already noted, there was no cross examination. It may be because the accused's solicitor wished to preserve what was considered a winning position on s202. Yet even the prosecutor seems to have had difficulty accepting the time estimate of "a number of seconds" as he queries that answer. I accept that the events occurred in a very short period of time, consistent with the evidence that followed.
The officer was then asked "what was the reason that you made the decision to formally place him under arrest at that moment". This reference to "formally arrest" is identified as the moment that the officer identified himself as Senior Constable Hadley from Grafton police.
The answer then given was (at T19.25):
Because he wasn't willing to, to stop and speak and at that stage I've had no previous interaction with him. I had no idea who he was to obtain his details for, and for identification in relation to the incident that happened down at Domino's".
The officer then confirms that this was in relation to the malicious damage/incident.
Present at this struggle were Leading Senior Constable Rheinberger and Constable Watts and also Constable Fawcett. Senior Constable Hadley was doing what I have just described above which is taken from his statement, Leading Senior Constable Rheinberger was attempting to search the accused, and Constables Watts and Fawcett were helping to secure the accused by grabbing his wrists. In the course of this Constable Fawcett also suffered injury by way of scratching and this is the basis of the second of the two charges under appeal. There were statements from each of these officers supporting this description of events.
In my view the above are the essential factual matters. I note however that the Crown placed emphasis on the events preceding those just described. This included that the information SC Hadley had of the appellant's behaviour at the pizza shop, and the description of him not wearing a shirt, and wearing "camo" shorts. The submissions seemed to be suggesting that where the description so clearly matched the appellant, the police, and in particular SC Hadley, had a sound basis to suspect on reasonable grounds that the appellant had committed an offence. Further, because the offence was of malicious damage, the officers were right to act in a way, as I understood the submission, somewhat preemptively (my words). This was said to be relevant in determining whether there had been compliance with section 202, which provides that the police officer must provide the reason for the exercise of the power of arrest "as soon as it is reasonably practicable to do so".
Walton J followed the judgement of Basten JA from Randall on the question of section 99(1)(b). This interpretation is the consequence of the amendment to LEPRA in 2013. The majority in Randall refused leave to appeal largely because the parties had run the case at trial on the basis that a factual finding concerning whether the arrestee had punched an officer would be determinative of the section 99 (1) (b) issue. The majority judgment does not consider s99(1)(b) in the same way that Basten JA's judgment does. It can certainly be said that there was no expressed disapproval of the test outlined by Basten JA. In short that test is as cited by Walton J at [68]:
However, the correct question with respect to the second requirement was not what the judge thought, but what the officer thought was reasonably necessary in the circumstances;s99(1)(b) refers to the officer being "satisfied". The precondition to the exercise of the power is the officer's state of mind.
That it is a subjective test to be applied in respect of section 99(1)(b) is also clear from Lule v New South Wales [2018] NSWCA 125 at [2] per Beazley P who said that it "is a subjective matter and must exist as a matter of fact at the time of the arrest". Her Honour said the party seeking to establish lawfulness of arrest needed to lead evidence from which it can be inferred that at the time of the arrest the officer was actually of the state of mind required by the section.
The requirements of what is now section 202 were considered in Hamilton v State of New South Wales [2016] NSWSC 1311. That case dealt with what was then section
There is a notable difference in the provisions of the former section 201 and the present section 202. That difference is that the former section 201 (2) provided that the reason for the exercise of the power (relevantly to our present case arrest) must be
provided to the arrestee "if it is practicable to do so, before or at the time of exercising the power" or "if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power".
The current section 202 requires the police officer must provide the reason for the exercise of the power of arrest "as soon as it is reasonably practicable to do so".
The distinction in the two provisions is that the earlier provision expressly provides for
providing the reason for arrest before or at the time the arrest occurs and if that is not possible then as soon as practicable after it occurs, whereas the current provision provides that the reason is to be provided "as soon as it is reasonably practicable to do so". In my view this amendment seeks to make clear that whether or not the reason for arrest is provided before the arrest occurs should not be given undue weight let alone be considered determinative. Rather what is required is that the reason for the arrest must be provided "as soon as it is reasonably practicable to do so". This would mean, depending on the circumstances, it could occur before during or after the arrest in fact occurs.
To fully appreciate the decision in Hamilton some knowledge of the facts is necessary.
The essential points can be stated shortly which does a great injustice to the case which has a history suggesting it was authored by Charles Dickens. Mr Hamilton was a passenger in a taxi after having been at a Christmas party. There was an argument in the taxi with the taxi driver who accused Mr Hamilton of racially vilifying him and assaulting him by pushing him in the back of the head. The taxi driver stopped the cab and sought the assistance of police nearby in stationary traffic. At about this time Mr Hamilton left the taxi and entered the Grosvenor Place building. He was pursued by police one of whom applied physical force to arrest him. Mr Hamilton suffered injuries to his face and head and fractured ribs; see at [2]. At [74] Justice Campbell found that on exiting the taxi Mr Hamilton "moved quickly". He was not running but was moving at an
accelerated pace described as "power or speed walking" rather than jogging. His pace then slows to become a brisk walk. Campbell J accepted that Mr Hamilton moved away from the cab in the hope of avoiding police and slowed when he thought he was clear of them. He did not find however that he had any real apprehension of being arrested.
Rather the finding was that if the taxi driver was going to get the police Mr Hamilton's view was he was not going to wait to be questioned.
Even on the police case in Hamilton compliance with the then section 201 only comes after the arresting officer grabbed Mr Hamilton and swung him face first into a wall and pushed him down onto a concrete bench and after Mr Hamilton had endured what was described as two arm bar manoeuvres and a leg sweep. After some minutes Mr Hamilton was walked away from what was described as a nearby noisy bar and it was in that less noisy location that he was provided with the reason for his arrest; see at [123], [111] and [117].
Justice Campbell found that section 201 had not been complied with. I am conscious that, as noted in the judgement at [161] his Honour was applying a different test to that which is needed to be considered here. In that paragraph his Honour states "only if compliance is not practicable at the time of arrest may it be done when first reasonably practicable, a less stringent requirement". The obligation on the arresting officer in our present case pursuant to section 202 is to provide the reason for the arrest "as soon as it is reasonably practicable to do so".
Bearing that in mind that Campbell J stated that the arrest occurred when the officer
grabbed the left arm of Mr Hamilton for that was when his liberty was restrained, a position consistent with the agreed position in our present case. At that time, that is of restraining the arrestee's liberty, section 201 had not been complied with. In our present case that conclusion could only be reached if it was found that it was reasonably practicable to provide the reason for the arrest at that time. Section 202 (2) commences
with "as soon as"; that is, the reason is to be provided not at any time that it is reasonably practicable to do so but at the earliest time at which it is reasonably practicable to do so. That is the meaning of "as soon as".
Justice Campbell discussed the meaning of the word "practicable" and said it was to be read in its statutory context which includes "the consideration that the statute confers, and conditions, state power to restrain the liberty of the person for limited, albeit important public, purposes"; at [161]. I note that the passage cited at [161] by Campbell J from State of NSW v Abed [2014] NSWCA 4319 at [92] is one of a number of passages emphasising the entitlement of an arrestee to know why they are being arrested. At [91] Gleeson JA said "First it is not necessary for the arrested person to be told the precise charge at the time of the arrest. Rather the arrested person must be told why they are being arrested in terms that disclose why the person's liberty has been restrained". It is the next passage where Gleeson JA says that what is required depends on the circumstances.
The reasons why Campbell J found that in the particular circumstances of the case section 201 had not been complied with are set out at [162]-[168]. The circumstances relied upon by his Honour included the officer's perception (with which his Honour agreed), that Mr Hamilton was seeking to evade police; that Mr Hamilton was walking albeit at a brisk pace; the arresting officer was not running at the time he caught up to Mr Hamilton; the officer could easily have overtaken Mr Hamilton and had he done so would have allowed Mr Hamilton the opportunity to see his uniform which may have led to him stopping in his tracks; Mr Hamilton was 61 years old whereas the police officer was a younger man trained in the skills of the public order and riot squad; that whilst the officer may have had some concerns for his safety because he had been told Mr Hamilton assaulted the taxi driver it was equally obvious that no injury had been inflicted and there was no reason to suppose Mr Hamilton was dangerous; and that in most circumstances
identification as a police officer will be sufficient to extract cooperation contrasted with grabbing a person from behind which will extract a startle response inducing tension or even fear. Further his Honour was not satisfied that by hurrying away Mr Hamilton had produced the situation which made it practically impossible for the officer to comply with section 201.
There remains to consider the magistrate's determination of the s202 point. It was submitted that the magistrate failed to give meaning to the words "as soon as it is practicable to do so".
The magistrate found that s202 was satisfied. Having set out a number of precedents, her Honour said, at T18.15 of 4.9.20:
Taking into account the particular circumstances, as I am required to do, I am satisfied that Senior Constable Hadley has, in the particular circumstances, noting the period of the interaction, has complied with the requirements of s202.
The authorities her Honour referred to were Hamilton, New South Wales v Abed and a case relied on by the prosecution of McIntosh v Webster and some other unnamed case from 1980, which like McIntosh is apparently from the ACT, where there was a judgment by Justice Connor. No citations were provided for these last two cases, and I could find no trace of them on Austlii. Based on the references to those cases given by the
magistrate, and my review of Hamilton, those cases appear to support the opposite conclusion. The facts of Hamilton are very apposite to this case, and I repeat here the summary of those facts given above. The arrestee in that case was seen leaving a taxi after a taxi driver went to get police, and was doing so at a pace initially described as "power walking" and decelerating to a brisk walk. The arrest followed by the giving of the reason was found not to constitute a lawful arrest.
Similarly in McIntosh (based on the magistrate's reasons) the court emphasised the need to take into account the circumstances at the time of arrest, which were said to frequently be circumstances of excitement, panic and turmoil. In my view those were not the circumstances of the current arrest.
There is no evidence showing why it was not practicable to provide the reason for the arrest to the appellant prior to grabbing his arm, and pushing him in the chest. On the evidence, it is plain in my view that it was reasonably practicable to provide that reason before or at the time of the arrest, and certainly before the police conducted themselves in a way that, absent the powers of arrest, could well arguably be assault.
The magistrate has therefore erred in finding s202 satisfied by reason of the "period of the interaction". The section requires the reason to be provided as soon as reasonably practicable, not some later time. This approach is not one of taking a fine point. The
references above to Christie v Leachinsky and Donaldson v Broomby support this view. The law should be clear when it comes to the circumstances in which a person can be deprived of their liberty. To allow the term "as soon as it is reasonably practicable" to mean not when it is as soon as reasonably practicable, but after the police have grabbed the arrestee by the arm and pushed him in the chest, is one very small step towards the tyranny Justice Deane was referring to.
As there were some submissions made concerning s204A, my view is that the position is not changed by s204A. That section has no relevance to the obligation to provide a person with the reason for their arrest. Section 204A by its express words specifically applies to the obligation to provide the name of the police officer exercising a power under Part 15, and his or her place of duty. Section 204A does not have the effect that if the reason for the arrest is not given as soon as practicable the arrest will remain lawful. The Crown accepted this to be so in the course of oral submissions.