Reeves v State of New South Wales

The factual background

1. Mr Reeves was born in England, received his education and started his career in that country. After obtaining a qualification as a Chartered Accountant and commencing work at Deloitte, in London, he shifted to a Human Resources role within that firm. He worked at Deloitte for about 11 years. In the next 2 to 3 years, he worked at a law firm, in the Human Resources division before moving to Australia in 1999. From then until 2005, he had HR roles in various professional organisations in Sydney (Arthur Anderson, Phillips Fox and KPMG). In 2006, he joined the Australian Association of Graduate Employers. Thereafter he became the Chief Executive Officer of that organisation.

The content of the evidentiary material relied upon by police

The complainant's witness statement (21 October 2020)

1. As at 21 October 2020, Ms Hannah Scarpino was 21 years of age. She was employed at the Zimmermann clothing store in Westfield in the Sydney CBD.
2. Whilst she was working one day in the middle of September 2020, she stated that she noticed a man (Mr Reeves) coming down the escalator outside the store. She stated that the man "waved at me and kept walking and continued down the escalated level 3. I waved back because I thought he was friendly."
3. Ms Scarpino reported this incident to the manager of the store, Ms Michelle Lee, in the context of expressing her embarrassment about the episode. The two of them laughed it off.
4. About a week later, whilst in the food court of Westfield Sydney, the complainant stated that the same man who she waved to a week before came up to her and put his hands up and made the sound of 'raaa'. She stated that "it was like he was trying to scare me in a joking manner, like we were friends". She could not remember whether he actually said anything, and left. Ms Scarpino also reported this episode to the store manager, Ms Lee.
5. One week after the last incident at the food court, Ms Scarpino stated that she began to notice the man in the food court "more and more". There was no interaction between her and the man on these occasions and there was no suggestion that the man had noticed her.
6. But at about the same time, Ms Scarpino stated that she began to notice the man "standing outside the store next to a structure pole. He was not doing anything noticeable. He is pretending to be in a zone or daydream". On 19 September, Ms Scarpino sent a text to her boyfriend, Rafael Policastro complaining of the incident. That text was the first page of Exhibit D.
7. In the beginning of October 2020, between about 5:30 and 6:00pm, Ms Scarpino got on the train at Town Hall station with her boyfriend, Rafael Policastro. It was headed towards the North Shore (Ms Scarpino lived in or near McMahons Point). The next stop was Wynyard station. Mr Reeves walked downstairs in the carriage of the train to where Ms Scarpino was seated. (Mr Reeves lived in McMahons Point as well). There was no suggestion that Mr Reeves noticed her.
8. On 5 October 2020, Ms Scarpino was walking in Westfield and about to enter the Zimmermann store. Mr Reeves said "Excuse me" and the two of them began a conversation about a range of topics, including the new Botannica range of dresses at Zimmermann, the circumstance that Mr Reeves liked Ms Scarpino's dress; whether she worked over the long weekend; whether she was studying and the fact that Mr Reeves had just attended a yoga retreat. Mr Reeves introduced himself as "Ben" and the two shook hands. This turned out to be last occasion that Ms Scarpino saw Mr Reeves. A video recording - from multiple angles - of Mr Reeves walking through Westfield Centre, was in evidence (Exhibit E). At certain points during that video, Mr Reeves did pause and apparently looked through store windows; although it was not clear in the video recording which store he was looking through.
9. On the morning of 8 October 2020, Ms Michelle Lee was working with Ms Scarpino. She said that she heard a report about Mr Reeves approaching the complainant three days before. Ms Lee told Ms Scarpino that she would call Westfield security and explained what she knew from the previous few weeks whilst expressing her view that it was inappropriate behaviour.
10. On 9 October 2020, Ms Scarpino said she had a conversation with Westfield's security supervisor, who she knew as 'JP' (and was probably Mr Faapoi). She reproduced in her witness statement the following statement: "I reviewed the footage. The way the man was acting was concerning. He wasn't following you. I can't show you the CCTV footage, but he came into the sender and was loitering outside Rimowa store (a suitcase store near Zimmermann), and as soon as he saw you, it came to you. Then after the interaction left the centre. He was in the centre for less than 10 minutes. I think you should go to the police about it."
11. Ms Scarpino later complained to the police on 11 October.
12. On 20 October 2020, Ms Scarpino heard a report from her mother (Mrs Carolyn Scarpino) that the latter's partner (Mr Chris Dyson) had seen a man whose description matched Mr Reeves loitering outside a café near Ms Scarpino's home; looking at the post office. Ms Scarpino told police that she started crying and felt scared. She questioned herself why Mr Reeves was there and why he was following her. She stated to police that she felt fearful for her own safety and that of the boyfriend. She stated that because of his behaviour she felt she had to adjust her behaviour so as to avoid seeing him. No longer did she eat her lunch in the food court at Westfield.

Rafael Policastro's witness statement (21 October 2020)

1. Mr Policastro is the complainant's boyfriend. He also worked in Westfied in a store called Balenciaga, three stores away from Zimmermann; and on the same level (level 4).
2. On 30 September, at about 5:30pm, he was walking down escalators from Level 4 to Level 3, which were near the Zimmermann store. He located what he thought was Mr Reeves.
3. At about 6pm on 8 October 2020, Mr Policastro was leaving work. He stated that he saw Mr Reeves walking towards the escalators, near Zimmermann, at a time when that store was closed. Mr Policastro took it upon himself to approach Mr Reeves and asked him what he was doing. It is no exaggeration to say that he was effectively interrogating Mr Reeves, but the questioning was polite, in its content. Materially, Mr Policastro said to him "one of the girls in a store said that you have been making them uncomfortable recently" and "you might be making them uncomfortable by approaching them when you don't really know them". According to his police statement, Mr Reeves 'acted shocked like he didn't know what I was talking about'. Then Mr Policastro asked Mr Reeves point-blank "what is your reason for approaching people you don't know?", to which Mr Reeves responded "I was just being friendly". Mr Policastro took a 15 second colour video of their interaction. This brief recording was Exhibit F.
4. Mr Policastro then followed Mr Reeves who was approaching Wynyard Railway Station. He noticed that Mr Reeves (who he estimated was 50 metres in front of him) kept looking over his shoulders and was rubbing at the side of his face. Mr Policastro took a photo of him. A photo of Mr Reeves at Wynyard Station was included in Exhibit D. Both of them got on the train, which was headed towards the North Shore. Mr Policastro took another photo of Mr Reeves in the carriage, leaning against a pole (also included in Exhibit D). Mr Policastro stated that Mr Reeves had seen him and 'flinched'. He also stated that after the train stopped at Milsons Point station, after initially pausing when the doors of the carriage opened, and as it appeared that they were just about to close, Mr Reeves suddenly 'rushed' off the train. In his opinion, Mr Reeves was 'doing it to make sure I didn't follow him.'
5. Mr Policastro stated to police that Ms Scarpino keeps telling him that 'she is very stressed and scared to go to and from work because of Mr Reeves'.

Carolyn Scarpino's witness statement (22 October 2020)

1. Mrs Scarpino is the complainant's mother. She lives at McMahon's point with her partner (Chris Dyson ) and the complainant.
2. Mrs Scarpino gave what may be referred to as 'complaint evidence', regarding reports that she received from the complaints about the incidents concerning the plaintiff. She indicated, amongst other things, that the complainant had shown her a video on her phone of the man who had been following her.
3. More materially, however, Mrs Scarpino stated that at about 9am on 19 October, she was standing outside the "Piato" restaurant, at Blues Point Road McMahon's Point, waiting for her coffee. She stated that she saw the man who she thought looked very familiar and similar to the male in the video that the complainant had shown her. She stated that this man (Mr Reeves) walked past her and was about 3 m away. He walked past the post office and looked in the door.
4. Piato café and the Post office are approximately 300 m away from Mr Reeves' home address.

Chris Dyson's witness statement (20 October 2020)

1. Chris Dyson is Carolyn Scarpino's de facto partner. Mrs Scarpino told him about the sighting of Mr Reeves earlier in the day. He was at home at that point and tried to look for him, but could not find him. He needed to go into the city for work and intended to purchase camera equipment. He returned home by train and arrived at North Sydney train station before starting off on the walk home.
2. At about 12:30 pm on 19 October 2020, he was walking home from work when he saw Mr Reeves on Blues Point Road (he was wearing the brown jacket that Mrs Scarpino had reported him as wearing earlier in the day). He stated that Mr Reeves walked past him and Mr Dyson took a photograph on his mobile phone. But Mr Dyson was dissatisfied with the quality of that photograph so he turned around to get in front of Mr Reeves. Once he had done so, he took his phone again and tried to attract Mr Reeves attention by asking him "Don't I know you". He took the photograph and thereafter walked home and sent the photo to Mrs Scarpino.

Lemvelo Faapoi's witness statement (21 October 2020)

1. Mr Faapoi was Westfield's Security Supervisor. On 21 October 2020, he passed on to police CCTV footage on a USB depicting Mr Reeves between 16:05 and 16:20 on 5 October 2020.

The COPS entries

1. At 7:00pm on 11 October 2020, Senior Constable Lagana created the first of the relevant entries in COPS. The complainant's name was identified, but at that stage, Mr Reeves' name had not been identified.
2. Later that same evening, at 11:18pm, SC Lagana supplied a narrative. This, was essentially, concerning complaints about a POI's conduct between 21 September 2020 and 11 October 2020. It set out the incidents described by the complainant up to 11 October 2020.
3. On 20 October 2020, the complainant emailed SC Lagana informing him that Mr Reeves had been spotted near her home address at a café near her premises in North Sydney and indicated that she was concerned for her own for her safety.
4. At 5:50pm on 21 October 2020, Officer Bachar Adba, recorded that Sydney City Detectives had been apprised of the incident and took carriage.
5. At 1:39am on 22 October 2020, Officer Abda created a COPS entry. Mr Reeves had still not been identified by name. The narrative recorded for this particular entry later formed the basis for the content of the 'Full Facts' in the Court Attendance Notice which DS Michaelson prepared later that day after Mr Reeves' arrest.
6. At 9:51pm on 22 October 2020, DS Michaelson recorded Mr Reeves' arrest (and cautioning) on the COPS. A pertinent part of this entry (Exhibit A, p 74) was as follows: "FEARS HELD BY VICTIM: The victim holds significant concerns by this behaviour. The accused's continuous approach of her and loiering (sic) outside of work, combined with his recent attending of a café near her house has her significantly concerned for her safety. FEARS HELD BY POLICE: This behaviour exhibited by the accused is concerning. This type of 'stranger' approach without knowledge of the victim and continuos (sic) stalking is often a forerunner to more serious violence offences. Police hold significant fears that without a Personal Violence Order being placed upon the accused he will continue to attend the victims (sic) work, near her house or approach on public transport."

DS Michaelson's evidence

1. DS Michaelson prepared a witness statement (12 April 2021) which was relied upon in the Local Court, and was part of Exhibit A. The State called him as a witness in this proceeding.
2. On 21 October 2020, at about 4pm, he was briefed and reviewed the evidence contained in what he described as the 'case file'.
3. At about 5:00pm that day, he attended Westfield Mall Security office where he spoke to Mr Faapoi and was supplied with a USB containing footage on 5 October 2020 referred to above.
4. At 3:43pm on 22 October 2020, he received an email from Detective Adba, who had on-sent to him the results of an 'iAsk' request made by police to the RMS. The results disclosed Mr Reeves' name and address. Detective Abda thanked DS Michaelson for his help. DS Michaelson acknowledged that he realised that Mr Reeves lived merely 350 metres away from the complainant's address. He was challenged about his consideration (or lack thereof) in connecting the information received from the RMS and his own awareness of the complainant's address: he believed that it was relevant information for the purpose of arresting Mr Reeves.
5. On 22 October 2020, it was DS Michaelson, in company with Detective Langerak, who drove towards Mr Reeves' address but saw him on Blue Street in North Sydney. At about 6:40pm, he pulled his car over and arrested Mr Reeves.
6. DS Michaelson informed Mr Reeves that he was going to activate his Body Worn Video Camera to capture their conversation (which was Exhibit 2.1). During the course of that recorded conversation, DS Michaelson informed Mr Reeves that he was under arrest for stalking (which Mr Reeves attested to understanding). He told Mr Reeves that the latter was not obliged to do or say anything but anything he said or did could be recorded and used in Court. There followed a brief conversation in which, relevantly, Mr Reeves denied knowing anyone in the Zimmerman store by name. DS Michaelson explained that Mr Reeves would be taken back to (North Sydney) police station and foreshadowed that he would be put in custody and introduced to the custody manager where he would be informed of his rights. He explained that there would be a need to handcuff him whilst he was travelling in the rear of the police sedan. He organised to take Mr Reeves to the nearest custody station, which happened to be Chatswood police station. It was when he was seated in the rear of the vehicle that DS Michaelson placed handcuffs on Mr Reeves to prevent any chance of assault upon him or his colleague or injury to Mr Reeves himself.
7. After arriving at Chatswood police station, Mr Reeves was placed into 'dock 2' in the charge room. Mr Reeves was introduced to Acting Sergeant Vickery who, at 7:30 pm, read Mr Reeves his rights under Part 9 of the LEPRA.
8. When asked by the State's Senior Counsel what evidentiary material he had regard to in deciding to arrest him, DS Michaelson referred to: CCTV footage of Mr Reeves, police witness statements from the complainant, Hannah Scarpino; her boyfriend, Rafael Policastro, and Lemvelo Faapoi (regarding the CCTV footage) and the COPS entry narrative. He emphasised that it was principally the complainant's evidence and the CCTV footage that he had in mind.
9. He acknowledged reading the COPS narrative entries of Constable Lagana (11 October 2020 and also 21 October at 04:58). He was challenged about his asserted reliance upon the witness statements of the complainant and her boyfriend and accepted that it was possible he might have been mistaken. He came to accept that he had relied upon the COPS entries and the CCTV footage.
10. DS Michaelson said he turned his mind to whether Mr Reeves had committed an offence. He indicated that he had done so and that he had in mind the offence of stalking. He emphasised that Mr Reeves had approached the complainant, or was in her vicinity, a number of times. The CCTV footage at Westfield corroborated this.
11. He said he considered alternatives to arresting Mr Reeves. These were, firstly, to issue a 'field charge' Court Attendance Notice (CAN); the second was to issue a Future CAN (to accompany an application for an Apprehended Violence Order). He said that taking the evidence as a whole, he did not consider that he had any other option but to arrest Mr Reeves. He emphasised that, in his (14 year) experience, he had seen strangers approaching younger females repeatedly as a forerunner to more serious offending; including even homicide. A 'field charge' CAN could take up to 6 weeks.
12. DS Michaelson was vigorously challenged about the decision to arrest Mr Reeves. The officer accepted that he had received no evidence of any interaction between Mr Reeves and the complainant from 5 October 2020. He accepted that by his email at 3:43pm on 22 October, Detective Abda conveyed his recommendation that Mr Reeves be arrested, but said that this was his own decision. He denied that Detective Abda told him to make the arrest and said that he relied upon his own view. Later in re-examination, he said that he was senior in rank to Detective Abda and would not arrest Mr Reeves simply because Detective Abda told him to. It was also put to him that he only read the complainant's statement (and that of her boyfriend) after arresting Mr Reeves, and that this had occurred in the police station in the lead up to his interview. DS Michaelson accepted that he read these witness statements in the police station but disputed the suggested timing.
13. DS Michaelson was referred to exchanges of text messages with Detective Abda on 21 and 22 October 2020 (Exhibit B). At 8:41pm, he texted Detective Abda: "No commented the ERISP All I got out of him was he was British."
14. This was a reference to the interview with Mr Reeves.
15. At 9:02pm, he sent a further text to Detective Abda: "It was him but he lives in that immediate area"
16. I infer that this was recognition, or perhaps an understanding, on DS Michaelson's part, that although Mr Reeves had been sighted on 20 October 2020 at a café in McMahons Point, he lived nearby.
17. It was put to DS Michaelson, although DS Michaelson denied it, that he did not supply any material information to Detective Abda that was not inculpatory of Mr Reeves.
18. He said that he believed that it was inappropriate to apply (to the Local Court) for an APVO instead of arresting Mr Reeves: he did not consider that this did not reflect the risk to the complainant's safety and regarded this option as an insufficient response to the nature and seriousness of the alleged offending.
19. Later under cross-examination, DS Michaelson was asked why he did not just adopt the option of getting a Future CAN alongside an AVO. He accepted that this alternative course was possible but said he believed that it was not appropriate. By arresting Mr Reeves, a judicial proceeding had been commenced and he was motivated to protect the complainant. In response to this explanation, it was suggested that a judicial proceeding could be commenced by a Future CAN. The officer did not disagree; but he then said that bail conditions could align with the application for an AVO. It was then pointed out that the bail conditions would be expected to mirror the terms of an AVO. DS Michaelson did not disagree with this, but rejected the proposition that an AVO might alleviate the risk of Mr Reeves approaching the complainant. DS Michaelson was aware, though, that an AVO could be served without arresting Mr Reeves.
20. It was put to DS Michaelson, but he denied, that he decided to arrest Mr Reeves since he wanted to appease the complainant. The officer said that he was concerned about her safety.

The circumstances of the arrest

1. A video recording of the circumstances of the arrest was in evidence (Exhibit 2.1). My observations of the arrest included that the arrest still occurred when the daylight was good. It occurred in a busy street in North Sydney. Many motorists (and some cyclists) were travelling along the road. There were some pedestrians who were passer-bys. DS Michaelson and Officer Langerak were wearing plain clothes. Mr Reeves was smartly dressed, in a navy blazer and open neck shirt. He appeared calm and was not conspicuously distressed once it was explained to him that he was under arrest. DS Michaelson foreshadowed what would occur after the arrest, including Mr Reeves being transported to (what was then expected to be North Sydney) the Police station. It struck me that, as civilly as possible, the officers asked Mr Reeves to empty his pockets of his personal property. Mr Reeves was pat-searched. This was done without unnecessary fanfare. DS Michaelson said words to the effect that he sought to limit embarrassment to Mr Reeves. Mr Reeves readily co-operated.
2. More revealingly, DS Michaelson explained that ordinarily, an arrested person would be transported to a police station in a truck. But DS Michaelson explained, in effect, that because of the positive impression Mr Reeves had created and his cooperation during the period of arrest, the police officers were willing to transport him back in their sedan vehicle. However, he also explained, in effect, that the price for Mr Reeves being transported in the sedan was that he would need to be handcuffed in the rear seat of the vehicle and seated alongside Officer Langerak.
3. Prior to Mr Reeves being guided into the car, DS Michaelson also foreshadowed that when he was at the police station, Mr Reeves could expect to be spoken to further about the allegations.
4. Mr Reeves was positioned on the rear seat of the vehicle when he was handcuffed.
5. In his evidence in the hearing, DS Michaelson explained why he 'pat' searched Mr Reeves. This was to ensure Mr Reeves' safety and also his own. He accepted that there may have been an alternative to searching him in the street as the place where it was conducted. But the alternative was to do it by the use of a different kind of vehicle - a caged police truck. He said he wished to limit the sense of 'imposing' on Mr Reeves; and further, that if he did call for a truck, it could take upwards of half an hour for it to arrive. Although Mr Reeves was handcuffed in the rear seat of a police van, at least it was in a sedan rather the rear of a caged truck. Indeed, he slightly delayed the handcuffing until Mr Reeves was in the car to limit embarrassment to him.
6. The police officers drove Mr Reeves to Chatswood police station. It was the closest station where Mr Reeves could be placed in custody. A body worn video recording of the drive was in evidence (Exhibit 2.2). Not all of that drive was audio recorded. But in the initial stages of the drive, DS Michaelson asked Mr Reeves some questions. They concerned how his day was, where he lived and his line of work. Mr Reeves provided some answers, to a degree, which were sometimes hard to decipher, but not very material. But unsurprisingly, he queried why he was being asked questions. DS Michaelson clarified that he was only seeking to engage in "chit chat" and would postpone questions about the allegations against Mr Reeves until later. Whilst the 'background' questions appeared on their face innocuous, in my view, it was imprudent for DS Michaelson to ask them at all. Objectively, they could have been construed as an attempt to elicit information about Mr Reeves that the police may not already have had; whatever DS Michaelson's motivation for asking them. At any rate, Mr Reeves' apparent suspicion at being asked them was justified. (It may be noted, of course, that there would have been no opportunity for questions, of the 'chit chat' variety or any other variety, if Mr Reeves had instead been transported in a caged police truck).
7. But after the vehicle entered into the garage section of the police station, the handcuffs on Mr Reeves were removed and as the occupants of the vehicle entered into the station (proper), Mr Reeves not only did not complain about what occurred in the vehicle on the trip over, but engaged in what appeared to be a light-hearted discussion about the handcuffs.

Conduct inside Chatswood Police Station

1. At about 7:21pm, Mr Reeves arrived at Chatswood police station. At 7:23pm, he was read his rights pursuant to Part 9 of the LEPRA. This was apparently done by Acting Sergeant Vickery.

Mr Reeves' evidence

1. Mr Reeves explained that he had been placed in a holding cell within the police station (also referred to as 'the dock').
2. At 7:43pm, Mr Reeves spoke to his solicitor. This was Mr Samin. He mentioned that when he spoke by phone in the station to the solicitor, police officers were in the vicinity; although he could not say that they could hear what the solicitor was advising or informing him.
3. When he was taken out of his cell, he was not informed that he was being taken to a room to be interviewed, or indeed where he was going at all.
4. He was taken into the interview room at about 8:08pm. When taken into the room, he said he felt anxious. An electronically recorded interview commenced at 8:10pm. When asked questions, he said he felt scared: he thought that having indicated once that he wanted to exercise a right to silence, this might cause the termination of the interview altogether.
5. The interview concluded at 8:30pm. After the interview, he was returned to the cell (the door being closed and locked). He recalled a long wait. Meanwhile others (who he recalled as being intoxicated and screaming at police) were put into an adjacent cell. DS Michaelson gave some evidence about this, and redacted versions of the custody management records of the two individuals detained around 8:45pm and 9:00pm were in evidence (Exhibits 3.1 and 3.2).
6. Mr Reeves also recalled being asked to fill out paperwork by the duty officer. He said he noticed that a bail condition included an apparent restriction upon his freedom of movement in his own suburb; and says he was told that if he did not agree to the condition, he may need to stay in custody. He was shown a map and noted that the space for the restriction appeared to encompass his post office, a dry cleaner, café and ferry access; which he now thought was 'off limits'. He apprehended that this would cause inconvenience to him, who had lived in McMahons Point since 2001.
7. In cross-examination, it was pointed out that the bail condition concerning the area for restriction of his movement was varied 5 days later and that he had made no further application. He said that he did not know why it had not been varied earlier.

DS Michaelson's evidence

1. DS Michaelson acknowledged that the fingerprinting and photographing of Mr Reeves upon arrest was standard procedure. He said that he was in the vicinity when Sergeant Vickery read Mr Reeves his rights.
2. DS Michaelson said that it was standard procedure for arrested persons to be placed in a holding cell. It would be inappropriate to conduct any interview there. Interviews needed to be filmed and sound recorded, and the equipment used for that purpose was not portable. He accepted that he did not tell Mr Reeves where they were going, or for what purpose, after leading Mr Reeves out of his cell and telling Mr Reeves to follow him.
3. A video recording of the ERISP was played in Court (Exhibit 2.3). My observations of the ERISP included Mr Reeves looking downcast or flat. After only a few introductory questions, he made it clear that he not only wished to exercise his right to silence, but also that he did not wish to participate in the interview at all. DS Michaelson (also in the presence of Detective Longerak) acknowledged that this was Mr Reeves' prerogative, but asserted a "common law right to ask questions when conducting an investigation". DS Michaelson referred Mr Reeves to parts of the witness statements of the complainant and her boyfriend and Mrs Scarpino. These all concerned the specific incidents which gave rise to his arrest. Notwithstanding the indications supplied by Mr Reeves virtually at the outset of the interview, DS Michaelson afforded Mr Reeves the opportunity to comment on the incidents, but Mr Reeves remained silent. Towards the conclusion of the interview, he was also shown some still photographs of CCTV footage of him.
4. In his evidence, DS Michaelson said that although he understood that interviewees had a right to silence, or what was alternatively known as a right 'not to answer' police questions, they had no such (negative) right 'not to be asked' a question by a police officer. In cross-examination, DS Michaelson was challenged as to why he continued with the interview after Mr Reeves indicated that he did not wish to answer questions. DS Michaelson explained that he wanted to inform Mr Reeves of the extent of the allegations and, at any rate, he believed that he had a right "to ask" Mr Reeves questions. He later added that he did not expect that the answers to the questions he raised would necessarily assist police. He thought he had learnt about such right from a Detective course. It was put to DS Michaelson that proceeding in this way was futile but, so far as he was concerned, it was a matter for Mr Reeves if he chose to participate or not. He denied that he hoped that Mr Reeves might 'buckle' and give (incriminating) answers. Ultimately it was put to DS Michaelson, although he denied it, that he persisted in asking questions as he knew the case against Mr Reeves was weak.
5. He recalled that whilst he was in the interview room, he had a copy of the complainant's witness statement. He recalled that parts of that statement (presumably the allegations of certain incidents) were put to Mr Reeves.
6. DS Michaelson recalled mentioning part of the content of the witness statement of Rafael Policastro. He acknowledged that part of this indicated that Mr Reeves had told Mr Policastro that in his interactions with the complainant "he was just being friendly". It was put to DS Michaelson that this was the only 'direct evidence' of Mr Reeves' intention; which was an essential element to the charge. DS Michaelson disputed this. He asserted that that the case on Mr Reeves' mental state was circumstantial; and that what Mr Reeves said about his intention was a matter for weight.
7. DS Michaelson was referred to the Custody Management Record, and the explanation for the ground of detention. This was s 99(1)(b)(i) of the LEPRA. He said he was not surprised when that ground was nominated. It was put to him that having created the CAN and Facts Sheet around 9:08pm, and transferred them electronically (to Sgt Vickery) by about 9:30, he had no lawful authority to continue to detain Mr Reeves for the purpose of simply applying for an AVO. He said that this was for the Custody Manager; but he accepted that he could not detain Mr Reeves. Without further explanation, he disputed that this was what he did.

Process for charging Mr Reeves

1. DS Michaelson said that he was responsible for the decision to charge Mr Reeves. The charging process commenced at 9:08pm with the creation of the Court Attendance Notice (CAN). Mr Reeves was charged with contravening s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). At about 9:51pm, DS Michaelson essentially cut and pasted the narrative entry in the COPS entry at 01:39 on 22 October 2020, which had been created by Detective Adba and DS Michaelson inserted it in the 'Full Facts' section of the CAN.
2. It was put to DS Michaelson that the creation of the CAN should not have taken any more than 10 minutes. Reference was made, in effect, to pro forma forms in the police system. It was put to DS Michaelson, and denied by him, that when he inserted the information in the Facts Sheet (and later a Situation report - Exhibit C), he knew that Mr Reeves had not stalked the complainant and had not (on 19 October) loitered near the complainant's residence in McMahon's Point. He was referred to the complainant's mother, Carolyn Scarpino's witness statement about the sighting of Mr Reeves at McMahons Point on 19 October and it was effectively suggested that paragraph 10 of that statement indicated the antithesis of someone loitering: Mr Reeves was walking through.
3. DS Michaelson was taken to the Full Facts and in particular, the incident referred to on 19 October 2020, DS Michaelson acknowledged his expectation that the facts would be placed before a judicial officer and also that, according to his own understanding of the concept, Mr Reeves had a good reason for being 300 metres from the complainant, given the location of his home address. He conceded that he should have referred to this in the Facts sheet. It was put to him that he knew that this was material information, not only for a judicial officer who may be called upon to sentence Mr Reeves on the basis of these facts (if there was a guilty plea to the charge) but an earlier point of time, being when Sgt Vickery was deciding bail conditions.
4. In cross-examination, DS Michaelson was referred to each of the incidents identified in the complainant's police witness statement. This was for the forensic purpose of identifying differences between the Full Facts he had recorded in the Court Attendance Notice. He acknowledged discrepancies in the accounts in the complainant's version and the Full Facts. For example, there was nothing in the complainant's account about Mr Reeves looking at her for several incidents (paragraphs 9, 10 & 12 of the complainant's witness statement). For the incident on 5 October, there was nothing to indicate that the complainant told Mr Reeves that she did not wish to speak to him again. After Mr Policastro 'confronted' Mr Reeves on 8 October, there was no further interaction at all which, it was suggested, showed that Mr Reeves did not know that his conduct was adversely affecting the complainant.
5. It was put to DS Michaelson that by 8 October, not only was there little substance to suggest to him that Mr Reeves knew his conduct might engender fear in the complainant but that there was, to the contrary, positive evidence from him about his intention to be 'friendly'. Mr Reeves maintained that had looked at the evidence as a whole.
6. There were other matters incidental or ancillary to the charging process that DS Michaelson was asked about. DS Michaelson said that it was always clear that Detective Abda was going to be the prosecutor or Officer in Charge. Secondly, he said that he was not involved in the formulation of the bail conditions. This was the responsibility of the Custody Manager; although he acknowledged that he was capable of making recommendations.
7. Ultimately, it was put to DS Michaelson, but he denied, that he had no honest belief in the correctness of the charge of stalking.

Obtaining the APVO

1. DS Michaelson applied for the Personal Violence Order. He had transposed the narrative information from the COPS system to Justice Link for the application to be considered by a Registrar.
2. DS Michaelson was cross-examined on the 'Grounds of the Application' section in the application. In particular, it was suggested that he knew it was false to assert, as he did, that on an occasion, Mr Reeves had directly looked at the complainant as he stood outside the Zimmermann store. DS Michaelson responded that he did not recall as this was 'a very long time ago'. (In the complainant's witness statement about the 'incident', the complainant said that as he stood outside Mr Reeves was 'not doing anything noticeable'). He accepted that this statement in the Ground of Application (repeated in the Full Facts sheet) was inaccurate. Also omitted from the 'Grounds of Application' section was any recognition that Mr Reeves lived at McMahons Point, even though he accepted that this was material information. His attention was also drawn to the assertion that Mr Reeves had (as at 22 October) taken a 'continuous' approach towards the complainant when the last interaction had only occurred on 5 October. He acknowledged that that 'may' be correct. It was suggested that he (falsely) conveyed to a judicial officer receiving this application a continuous approach in the knowledge that his interactions had ceased as at 5 October. DS Michaelson was not prepared to accept that Mr Reeves had stopped his interactions.
3. In his cross-examination, it was put to DS Michaelson that he could have applied for a provisional AVO without arresting Mr Reeves. This was especially so after learning of Mr Reeves' identity and address upon receipt of Sgt Abda's email on 22 October 2020. The officer did not deny this, but said he did not consider that this course was appropriate. Asked why he did not apply for it sooner than when Mr Reeves was in custody, DS Michaelson said that it was urgent.

The institution and maintenance of the Local Court proceeding

1. DS Michaelson supplied a witness statement to the Officer in Charge. Apart from this, however, he believed that he was not involved in the institution or maintenance of the proceeding in the Local Court.
2. DS Michaelson was asked about his conversation(s) with Detective Abda after the proceeding was commenced. He said he was not involved in the prosecution after Mr Reeves' lawyers had made representations to police as to why the charge should be withdrawn. He said he could not recall Detective Abda expressing an opinion that he thought Mr Reeves' behaviour towards the complainant was 'inappropriate' because of the age differential.

Mr Reeves' representation to police

1. On 29 January 2021, lawyers for Mr Reeves made a representation to Officer Abda seeking that the charge be withdrawn.

The hearing in the Local Court on 17 May 2021

1. Following the hearing, Barko LCM dismissed the charge and his Honour ordered that professional costs be awarded to Mr Reeves, pursuant to s 214 of the Criminal Procedure Act 1986 (NSW).
2. A transcript of the hearing before Barko LCM was admitted, subject to a general limitation that it was relevant only as to damages. Subsequently, that general limitation was revised, so that Mr Reeves was also entitled to rely, on the issue of malice (applicable to the action for malicious prosecution), upon the following submission made by the prosecutor (T 24.41 - 24.47) before the learned Magistrate: "The prosecutor says that he should have known that contact - that the conduct was likely to cause fear based on the age difference and the couple of times that he approaches her and she runs away, and just for the multiple occasions that he's seen by the victim, her boyfriend and the co-workers at the time…"

LIABILITY ISSUES

1. I have considered the detailed written submissions of the State (MFI 2) and Mr Reeves (MFI 3) and the closing addresses of Counsel.
2. Mr Reeves ran four causes of action: (i) wrongful arrest; (ii) battery; (iii) false imprisonment and (iv) malicious prosecution.
3. In the way that he pleaded and ran his case, the battery occurred in the course of (a) effectuating the arrest and (b) as incidental to bringing Mr Reeves into custody in the course of the 'imprisonment'. The action for false imprisonment was consequent upon his arrest. Accordingly, his success upon causes of action (i)-(iii) substantially, although not entirely, hinged upon the Court's findings as to the legality of his arrest. The action for malicious prosecution was in this sense discrete, but even an element of that action was relevant to the legality of the arrest.
4. I will address the legality of the arrest first. That in turn directs inquiry to the offence which Mr Reeves was suspected of having committed.

The elements of the charge of 'stalking' and principles of construction

1. This offence is contained in s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Section 13 relevantly is defined as follows: "(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. : Maximum penalty--Imprisonment for 5 years or 50 penalty units, or both. ….. (3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm. …." (emphasis supplied)
2. Section 8(1) of this legislation relevantly provides: "Stalking" includes the following: (a) the following of a person about, (b) the watching or frequenting of the vicinity of, or an approach to, a person's place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity, (c) contacting or otherwise approaching a person using the internet or any other technologically assisted means".
3. It is notable that, for the purposes of s 13(1), there is an express mental element (intention to cause fear), coupled with a separate mental state (knowledge that conduct will likely cause fear) which is deemed to satisfy the express element of intention. The State submitted that the mental state in s 13(3) resembles the mental element of reckless indifference [1] , however Mr Reeves took issue with the correctness of that statement. Mr Reeves characterised the mental element as being one of specific intent.
4. The State emphasised high authority that posited that proof of the element of 'intention' may be proved by inference [2] . In his closing argument, Senior Counsel for the State reminded the Court of the content of the 'intention' direction which appears in the Criminal Law Bench Book ([3-210]). In its current iteration, this is (relevantly) in the following terms: "Intention may be inferred or deduced from the circumstances in which … [the event], and from the conduct of the accused before, at the time of, or after the [accused] did the specific act... Whatever a person says about [the accused's] intention may be looked at for the purpose of finding out what that intention was in fact at the relevant time. In some cases, a person's acts may themselves provide the most convincing evidence of [the accused's] intention. Where a specific result is the obvious and inevitable consequence of a person's act, and where [accused] deliberately does that act, you may readily conclude that [accused] did that act with the intention of achieving that specific result".
5. 'Knowledge' means the accused's actual knowledge, but that too can be inferred from all of the circumstances. Although it is the accused's subjective knowledge that is ultimately in question, it is not irrelevant for a trier of fact to take into account what a reasonable person in the accused's position and circumstances would know.

Statutory provisions and applicable principles concerning wrongful arrest

1. For an arrest of a person to be lawful, s 99 of LEPRA relevantly requires that: 1. The officer must suspect on reasonable grounds that the person is committing or has committed an offence (the 'suspicion requirement'); and 2. The officer must be satisfied that it was reasonably necessary to arrest the person for one or more of the reasons identified in s99(1)(b) of the LEPRA (the 'satisfaction requirement').
2. The State accepts that the arresting officer bears the onus of proving both matters. As to the requirement in s 99(1)(b), the State pleaded [3] the officer's reliance upon the following reasons in s 99(1)(b):

• protecting the safety and welfare of the complainant and the community (s 99(1)(b)(viii));
• preventing the harassment of, or interference with, the complainant (s 99(1)(b)(vii)); and
• because of the nature and seriousness of the offence (s 99(1)(b)(ix)).

1. As to the suspicion requirement, there are two aspects to this. First is the officer's subjective suspicion. The second is that there is or are objective reasonable grounds for the suspicion.
2. Reasonable suspicion means less than a reasonable belief, but more than a possibility and does not depend on proof of evidence that is only admissible at a trial [4] . This requires an assessment of what was known or reasonably capable of being known [5] . A relevant factor is to consider the timing of arrest relative to the stage of the investigation [6] . Another relevant factor involves an appreciation of the practicalities of investigations. This was described in terms approved in the Court of Appeal as follows: "an arresting officer's action is the culmination of various steps taken by other police officers, perhaps over a long period and perhaps also involving officers from other police forces. For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised" [7] .
3. For the satisfaction requirement, the relevant officer must have turned his mind to alternatives to making an arrest [8] .
4. The State submitted that both elements are however only impeachable if the plaintiff can show that the suspicion and satisfaction of the relevant officer was 'manifestly unreasonable, arbitrary, capricious, irrational or non-bona fide' [9] .
5. Counsel for Mr Reeves took issue with the correctness of this test. He submitted that it was a standard only referred to by Basten JA in State of New South Wales v Randall [2017] NSWCA 88 ("Randall") that had not been endorsed by other members of the Court of Appeal. He alluded to observations made by Barrett AJA (Macfarlan JA agreeing) in Jankovic at [61] as an indicator of the correct approach. (In Jankovic, White JA at [7] referred to Basten JA's approach in Randall without disapproval).

The suspicion element

1. I am satisfied that the suspicion requirement in s 99(1)(a) was satisfied. I find that DS Michaelson did turn his mind to the question of whether Mr Reeves had engaged in stalking (the physical element to the s 13 offence) in the period contemplated by the charge in the CAN. It was not seriously suggested that he did not. The main thrust of the challenge, on the physical element, was whether he had reasonable grounds for his suspicion. Whether or not he actually had recourse to the complainant's witness statement, and that of her boyfriend, I accept the officer's evidence that he turned his mind to the COPS entries (which substantially reproduced parts of the complainant's statements) and had seen the CCTV footage. He was entitled to rely upon what he read in the COPS entries. The information that was known or that was reasonably capable of being known by him included also text messages between the complainant and her boyfriend, which amounted to contemporaneous complaint evidence capable of furnishing additional evidence to support the allegations of stalking. I agree with the State that it was unnecessary for the arresting officer to suspect that stalking had been partly established by evidence of Mr Reeves actually looking through the store window at the complainant; although there was evidence of that as well.
2. I accept DS Michaelson's evidence about the significance of the volume of the allegations and incidents. In circumstances where the complainant had indicated in her police statement that the incidents that she specifically described were not exhaustive (e.g. paragraph 9), it did not matter, for the purpose of challenging the low bar of a suspicion, that one or more of those incidents were inaccurately described or insignificant. I find that he honestly and reasonably suspected that the stalking element of the offence had been established.
3. A more difficult query is whether he had an honest and reasonable suspicion about Mr Reeves' mental state to sustain the charge. I respectfully adopt what Basten JA said in McIlraith at [38]-[39] that by reason of s 13(3), it suffices to make out the mental element extends beyond specific intent (to cause harm) to consequences which he knows are likely.
4. A significant consequence of this is that DS Michaelson did not need to honestly and reasonably suspect that Mr Reeves knew that his conduct had actually caused the complainant to fear for her safety. It was enough that he knew that his conduct was likely to cause her to have that fear.
5. At T 30.33, DS Michaelson said: "… the behaviour described being a stranger approaching or alleged to have approached a young female significantly younger than (him) on various occasions at her work caused me great concern."
6. This evidence was given in the specific context of his state of satisfaction under s 99(1)(b), but what he said here was also relevant to s 99(1)(a) in what was indicated about his suspicion as to the mental element of the charge. I accept that evidence which was not seriously challenged.
7. Evidence that was known or was capable of being known by him was also in the complainant's statement (paragraph 6), at least on one occasion in September, that she had run away from Mr Reeves after one of the incidents (Exhibit A, pp &,69). A COPS entry for 5 October indicated that in the midst of the conversation between Mr Reeves and the complainant she was "looking around for someone to help her get away" (Exhibit A, pp 6 & 70). Then, after Mr Reeves had introduced himself by his first name, the complainant beat a hasty retreat, indicating that she "had to go" (Exhibit A, pp 6 & 70). The information known, or which was reasonably capable of being known by DS Michaelson, was also made apparent by the complainant's body language cues to Mr Reeves which exhibited the actual effect that his conduct was having upon the complainant. It was powerful evidence suggesting that any normal person in the position of Mr Reeves would have indicated that his conduct was likely causing the complainant to fear for her safety and the potential trier of fact is entitled to take into account what a normal or reasonable person would think even if the ultimate inquiry is consideration of what the accused knew.
8. In the exchange on 8 October, Mr Reeves admitted to Mr Policastro that he worked in North Sydney. But he did not explain the circumstances in which he had travelled into the city and had been walking and pausing in the vicinity of the complainant's workplace and place where she habitually had her lunch on multiple occasions over a period when his workplace was over the other side of the harbour.
9. Of course, Mr Reeves' statement that he was "being friendly" was something that the officer needed to consider and I accept that DS Michaelson considered it. But at the time that Mr Policastro confronted him on 8 October, Mr Reeves had initially appeared to brush off the accusation that he had been making one of the girls in the store uncomfortable and being told that he should think before approaching them. That might be taken as an initial reaction of denial to the stalking aspect of the alleged offending. At any rate, he did not deny that he had approached anyone but instead sought to explain it, on the basis that he was being friendly. Not unreasonably, DS Michaelson gave it little weight because of its obviously self-serving nature.
10. On the State's reliance upon Baden-Clay, I do not accept that what has also been called the 'Weissensteiner' principle assists the State. That applies only where there is an 'absence of evidence' to support the hypothesis said to be consistent with innocence [10] . In this case there was evidence consistent with the hypothesis of innocence: being Mr Reeves' explanation given that he was only trying to be 'friendly'.
11. I further accept that evidence known, or which was reasonably capable of being known by DS Michaelson, included Mr Reeves' behaviour in the light of being followed by Mr Policastro. Although Mr Reeves' Counsel relied upon this conduct for other reasons, this was a circumstance which, as Senior Counsel for the State submitted, was capable of being construed by a trier of fact as evidence of consciousness of guilt as he apprehended that his conduct, to that point, had been observed by other people and did not wish to account for it.
12. There was no information known or reasonably capable of being known that Mr Reeves was morally obtuse, had a mental impairment, including personality disorder, or even had a passing infatuation with or 'crush' on the complainant which might provide innocent explanation for the element of stalking, bearing upon the mental element for the offence. There is force in the State's submission that, when considering intention, (or, for the purpose of s 13(3), 'knowledge') intention can be "suspected" from (especially repeated) conduct; and that some acts, as they accumulate, may bespeak the intention of causing harm. But the mental element was established by knowledge which, in the way that the Court of Criminal Appeal construed s 13(3) in McIlraith, was even further diluted, in the sense of reckless indifference. It would be enough for the mental element that even if the offender did not appreciate the degree of fear in the victim his conduct was likely to have caused, he was aware of the likelihood that his conduct was likely to have caused some fear of physical or mental harm.
13. I do not accept Mr Reeves' submission that the officer was impermissibly infected in his reasoning process to the extent that he took into account information about Mr Reeves' sighting in McMahons Point on 19 October 2020 by the complainant's mother. Contrary to his submission, it was not in terms exculpatory. As the State argued, the circumstance that he lived in close geographical proximity to the complainant, coupled with Mr Reeves' own evidence that he was a frequent pedestrian in McMahons Point, may have assisted a prospective trier of fact to understand how it was that Mr Reeves had first recognised the complainant; which would at least be relevant to the element of stalking for the offence. As I have indicated, it could also ground a suspicion that there were even more incidents than those that had been specifically identified by the complainant and others who had given police statements, to that point. The complainant had not purported to be exhaustive in her evidence of her sighting Mr Reeves in that witness statement (see for example, paragraph 9). However, whilst the sighting of Mr Reeves was not irrelevant for the purpose of s 99(1)(a), in my view, the circumstances of what occurred on 19 October 2020 were more germane to the requirement in s 99(1)(b).
14. For much the same reason, it is not to the point that contact between the complainant and Mr Reeves had apparently tapered after 5 or 8 October before his sighting on 19 October 2020. Mr Sexton SC indicated, from the Bar Table, that the complainant was away in that period. In respect to both matters, s 99(1)(a) is not limited to a suspicion that someone is committing an offence but extends to a suspicion that someone "has" committed an offence.
15. DS Michaelson did not, of course, have to form a concluded view whether the mental element of the stalking charge was likely to be proved beyond reasonable doubt.
16. I am satisfied that DS Michaelson also honestly suspected, on reasonable grounds, that the element of intention in s 13(1) was satisfied.
17. The State has proven that the suspicion requirement under s 99(1)(a) is satisfied.

The standard for challenging the satisfaction element

1. Before I turn to the evidence, I will start with considering the area of disputed legal principle concerning the satisfaction requirement in s 99(1)(b) of LEPRA.

The legal standard for review

1. The statement of Basten JA in Randall sets out the requirements for s 99 and, more pertinently, the proper basis for challenge of both the requirements in s 99(1)(a) and s 99(1)(b). This is that both requirements, or pre-conditions to the police officer's exercise of the power of arrest, will be challenged only where it can be shown that the officer's suspicion or state of satisfaction was "manifestly unreasonable", or 'arbitrary, capricious, irrational, or not bona fide'.
2. This articulation of the standard for challenge was not displaced, either expressly or by necessary implication, by the Court's decision in Jankovic. Indeed in his concurring judgment (at [7]), White JA expressly affirmed it.
3. Most recently, in AD v State of New South Wales [2023] NSWCA 115 ("AD"), a judgment from the Court of Appeal delivered after judgment in this case was reserved, and which the parties subsequently brought to the Court's attention, the standard for review from Randall was re-affirmed (by Basten AJA (Meagher JA agreeing) at [26]-[28]).
4. There were other matters of significance to be drawn from Randall and Jankovic that are pertinent to the 'satisfaction' requirement in s 99(1)(b): 1. it is for the party asserting the lawfulness of the arrest to prove that the arresting officer formed the state of satisfaction about the connection between depriving the person of their liberty and achieving the results in s 99(1)(b) (Jankovic at [54]); 2. it is not what a judge thinks, but the officer's state of satisfaction which is in issue; i.e. it is what the arresting officer thought was 'reasonably necessary' in the circumstances (Randall at [38]; Jankovic at [63]); 3. the essence of the 'reasonable necessity' criterion is proportionality, with reference to the results in s 99(1)(b), and in particular the risk that a lack of constraint upon a person through arrest might frustrate the attainment of any one or more of those results (Jankovic [60]); 4. the arresting officer must compare the reasonably foreseeable consequences of continued freedom with the obvious consequences of arrest by reference to the whole of the circumstances at the time. The officer must make an evaluative judgment (Jankovic at [9], [61]-[62]) and this requires consideration of the alternatives; 5. if the officer was satisfied that an arrest was reasonably necessary for one of the purposes in s 99(1)(b), the arrest is not unlawful because the officer's state of mind is unreasonable (Jankovic at [6]-[7]).
5. In AD, Basten AJA (Meagher JA agreeing) reiterated (at [19]) that it is the view of the arresting officer, not the Court, that matters in relation to the satisfaction requirement.

Section 99(1)(b)(ix)

1. When amendments were made to LEPRA in 2013, the extrinsic material indicated that it was a matter of some significance for Parliament to add, as a reason for arrest, the nature and seriousness of the offending [11] . Further, as White JA noted in Jankovic (at [6]), in 2013, Parliament removed the need for the police officer to have a reasonable suspicion that it was necessary to arrest for one or more of the reasons; and, in 2016, the requirement for the officer to be satisfied that the arrest was "necessary" was removed [12] .
2. In AD, Basten AJA closely considered (at [21]-[24]) the reason in s 99(1)(b)(ix) in the circumstances of that case. His Honour was concerned that "the purposive constraints imposed by s 99(1)(b)(i)-(viii) may be evaded by reliance on a state of satisfaction as to the seriousness of the offence", and contemplated the possibility that some limitation could be imposed in its construction, relating to the need for immediacy in having regard to that particular reason, before finding that no limitation was supportable in the text, context or purpose.

Findings about DS Michaelson's state of mind

1. It is not Mr Reeves' case that, like the position of the arresting officer in Jankovic, DS Michaelson did not mentally undertake a comparison of the alternatives to arrest. Rather, it is that he did not properly compare them with the result that the evaluative assessment mandated by s 99(1)(b) was wrong.
2. It is apparent, on the face of his evidence (T 30-31) that DS Michaelson did consider alternatives to arrest and, moreover, he provided an explanation for choosing to effect the arrest over those alternatives. He provided a general explanation for his preference for arrest (T 30.30 - 30.39). Specifically, he explained why he did not choose the issue of a field court notice (T 30.47) or applied for an AVO in conjunction with a future court attendance (T 31.1 - 31.19). As indicated, this was not the position in Jankovic; where the arresting officer had not considered available alternatives and engaged in the evaluative task required by the provision.
3. It was apparent, in the passage at T 31.15 - 31.19, which evidence I accept, that DS Michaelson turned his mind to the considerations in s 99(1)(b)(viii) and 99(1)(b)(ix), respectively.
4. He said that he acknowledged that arrest was the course of last resort (T 30.31). He repeated this in cross-examination, when he said, more specifically (at T 80.20) that the nature of the suspected offending (s 99(1)(b)(ix)) was such that, to him, arrest was the only resort.
5. The substance of the cross-examination and Mr Jeeves' argument on this issue was a debate with DS Michaelson about the merits of his evaluative assessment.
6. It is fair to say that the cross-examination was effective in establishing it was at least arguable that, viewing the reason in s 99(1)(b)(viii) in isolation, the alternative options, and especially the combination of a future CAN and a provisional AVO, to arrest may have practicably achieved the same level of protection as arrest. Further there was no clear or immediate threat to the complainant: the end-point for the period of offending identified in the court attendance notice - 11 October - was over a week before the decision was taken to effect the arrest. Although he was 'caught' engaging in conduct that might have sustained the stalking element for the offence on 8 October by the complainant's boyfriend, there was no further suggestion that Mr Reeves had been in proximity to her to the date he was arrested.
7. That said, the evidence that DS Michaelson gave (at T30.31 - 30.39), which went to his satisfaction of his reason in s 99(1)(b)(viii), represented opinion evidence from an experienced police officer (and one with particular experience of stalking offences) and this evidence was not challenged and had significant weight. At or about the point of the arrest, he had been informed not only of Mr Reeves' identity and address but also received a report from Officer Abda that he had been seen 'loitering' near the complainant's residence on 19 October. If that was true, it would reasonably appear to DS Michaelson as representing a significant escalation of the nature of the stalking which, to that point, appeared to be confined to the complainant's workplace (and a luncheon outlet near that workplace). Although it was not expressly apparent from Carolyn Scarpino's account that Mr Reeves had indeed loitered (as distinct from walking past the café), DS Michaelson was entitled to consider the report that he had received from his fellow officer. I accept his evidence that he believed that Mr Reeves had been loitering around a café near the complainant's address on 19 October. Although challenged as to the materiality of what he had learnt about Mr Reeves' address to his decision to arrest, he said, and I accept his evidence, that he found that circumstance to be relevant even if the revelation of that particular circumstance post-dated the period for the alleged offending contained in the charge.
8. Some weight should also be given to DS Michaelson's view that an arrest would likely bring about bail conditions (T 80.45). To be sure, the officer was challenged as to how the situation would be any different to if an AVO had that been issued, but he maintained his belief in the force of that consideration.
9. Further, there was nothing in the cross-examination to gainsay DS Michaelson's view that the reason in s 99(1)(b)(ix), concerning the nature and seriousness of the offending, was better met by Mr Reeves' arrest in comparison with the alternatives either by reference to the reason in s 99(1)(b)(ix) individually, or in combination with s 99(1)(b)(viii). In this regard, the seriousness of the stalking offence was indicated by the maximum penalty (5 years or 50 penalty units) if such a charge was tried on indictment. As I have previously suggested, weight must be given to DS Michaelson's view that in stalking cases where an accused and a complainant are strangers, this can often be a forerunner to further and more serious offences. This concern, it will be recalled, could not be said to amount to a recent invention: the same concern was recorded in the COPS entry at 9:51pm on 22 October 2020. It is not hard to conceive why this may be so. Whereas 'domestic' contraventions of s 13 may sometimes occur in the heat of the moment, say between a married couple, or other persons in a domestic relationship, incidents of stalking between strangers may conceivably arise over a period and amount, in effect, to a 'slow burn' which might suddenly or unexpectedly escalate. This, to some extent, is what occurred here, where effectively more serious incidents of alleged stalking escalated from the middle of September to at least 5 October 2020, when Mr Reeves actually engaged in questioning with the complainant about personal matters. One of the reasons why judges should not impose their own view as to the reasonableness of the suspicion is that they only look at the arresting officer's state of mind through the prism of hindsight. DS Michaelson did not have that luxury. Nor was he seriously challenged about his process for considering that the reason in s 99(1)(b)(ix) was of concern to him.
10. I note further, that no expert opinion evidence was called by Mr Reeves to the effect that, say, on the complainant's account of the incidents, the other alternatives were so manifestly preferable to arrest as to make DS Michaelson's state of mind so unreasonable that no police officer in his position and circumstances would have reached that state of satisfaction, arbitrary, irrational or lacking in bona fides. Even though reasonableness was not itself the test per se, evidence of that kind may have assisted the Court to determine whether the high bar of (overwhelming) unreasonableness or irrationality [13] had been surmounted.
11. Minds may reasonably differ as to whether DS Michaelson struck the right balance in the comparative exercise he undertook. It is not, however, the role of the Court to determine that his assessment was simply unreasonable. I do not consider that the Randall standard for impugning the officer's state of mind has been attained. The requirement in s 99(1)(b) was also satisfied.
12. It follows that both the suspicion and satisfaction requirements were satisfied. Mr Reeves' arrest was therefore lawful.

The action in battery

1. The particulars of the batteries identified in Mr Reeves' statement of claim (to paragraph 45) are, as indicated, premised upon an unlawful arrest. It was not suggested that if Mr Reeves' action on wrongful arrest failed, it was unlawful for DS Michaelson to do the things referred to in the particulars.
2. The action for common law battery, with or without reliance upon s 231 of the LEPRA, also fails.

The post-arrest search

1. Another complaint remains. This is the alleged contravention of s 32(4)(a). It is pleaded in paragraph 14(c) of the Statement of Claim. It may be regarded as being discrete to the action in battery under common law.
2. Section 32 of the LEPRA relevantly [14] provides that: "(1) A police officer who searches a person must, as far as is reasonably practicable in the circumstances, comply with this section. …… (4) The police officer must conduct the search-- (a) in a way that provides reasonable privacy for the person searched …"
3. In neither his written closing submissions nor closing oral argument did Mr Reeves submit how s 32(4)(a) was contravened by DS Michaelson.
4. The State submitted that if the arrest was lawful, it could not be suggested that contravention of s 32(4)(a) could give rise to a claim in tort in any event. At any rate, DS Michaelson explained why he searched Mr Reeves on the street (T 31.32-31.46) and that evidence was not challenged. I accept it.
5. It is not self-evident how a contravention of s 32(4)(a) could arise where, as I have found, the arrest was lawful. It was not suggested that the bare fact that the search was conducted on a public street means that the suspect's privacy has been breached. Having seen the film of the arrest, I find that the police officers did what they reasonably could to respect Mr Reeves' privacy when searching and, in that regard, note that there was no contemporaneous complaint about a breach of his privacy nor any particulars as to how the police officers may have acted any differently.
6. Any action based upon contravention of s 32(4)(a) of the LEPRA also fails.

Statutory provisions

1. Section 109 of the LEPRA sets out the objects of Part 9 of the LEPRA Act. Part 9 is titled 'Investigations and Questioning'. Those objects relevantly include: "(a) to provide for the period of time that a person who is under arrest may be detained by a police officer to enable the investigation of the person's involvement in the commission of an offence, and ….. (c) to provide for the rights of a person so detained …"
2. Section 114 of the LEPRA provides: "(1) A police officer may in accordance with this section detain a person, who is under arrest, for the investigation period provided for by section 115. (2) A police officer may so detain a person for the purpose of investigating whether the person committed the offence for which the person is arrested. ……. (4) The person must be-- (a) released (whether unconditionally or on bail) within the investigation period"
3. Section 115 of the LEPRA defined 'investigation period' (i.e. the period in which DS Michaelson was only authorised, by s 114, to detain Mr Reeves) as being: "(1) The investigation period is a period that begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances, but does not exceed the maximum investigation period. (2) The maximum investigation period is 6 hours or such longer period as the maximum investigation period may be extended to by a detention warrant."
4. Section 116 of the LEPRA sets out the circumstances to be taken into account when determining a 'reasonable time', for the purposes of s 115(1). They were: "(1) In determining what is a reasonable time for the purposes of section 115(1), all the relevant circumstances of the particular case must be taken into account. (2) Without limiting the relevant circumstances that must be taken into account, the following circumstances (if relevant) are to be taken into account-- ………….. (d) whether the person has indicated a willingness to make a statement or to answer any questions, ………….. (l) the time required to carry out any other activity that is reasonably necessary for the proper conduct of the investigation. (3) In any criminal proceedings in which the reasonableness of any period of time that a person was detained under this Part is at issue, the burden lies on the prosecution to prove on the balance of probabilities that the period of time was reasonable. (emphasis supplied).
5. Section 113 of the LEPRA relevantly provides that: "(1) Existing powers relating to arrest and other matters This Part does not-- (a) confer any power to arrest a person, or to detain a person who has not been lawfully arrested, or (b) prevent a police officer from asking or causing a person to do a particular thing that the police officer is authorised by law to ask or cause the person to do (for example, the power to require a person to submit to a breath analysis under Division 2 of Part 2 of Schedule 3 to the Road Transport Act 2013 ), or …. (2) Certain evidentiary matters and rights not affected Nothing in this Part affects - …… (c) the right of a person to refuse to participate in any questioning of the person or any other investigative procedure unless the person is required by law to do so …"
6. It is at this point pertinent to emphasise that investigating officers are able to seek an extension of time of the initial investigation period by obtaining a detention warrant from an authorised justice.

Consideration

1. Finding as I have that his arrest was lawful, Mr Reeves is unable to establish that all of his subsequent period of custody consequently constituted false imprisonment. Further, with reference to the LEPRA, he made no generalised complaint about the unreasonableness of his period in custody. His case was put on the narrow basis of isolating two discrete periods from the time when he was brought into custody to the time of his release.
2. I accept the State's chronology, so far as can be ascertained: 1. at 7.23pm the plaintiff was cautioned at the Chatswood Police Station; 2. at 8.08pm, the plaintiff was conveyed within the Chatswood Police Station to the interview room, where a series of allegations were put to him, which ended at 8.30pm; 3. between 9.09pm and 10.58pm the charge process took place (by 9:40pm, DS Michaelson had prepared the charge and Full Facts for the CAN); 4. that process included, at 10.10pm, David Piper, a person whom it should be inferred is a Registrar of the Local Court of New South Wales, authorising the issuing of a Provisional Apprehended Violence Order; 5. at 10:50pm, the custody sergeant, Adam Vickery, had signed off on determining bail conditions; and 6. at 11.01pm, the plaintiff was released on bail.

Time in the interviewing room

1. On Mr Reeves' first argument, I accept Mr Reeves' evidence (T 20.28 - 20.31) that, after he had availed himself of the opportunity to confer with Mr Osmin, he was informed that he did not have to participate. I also accept his evidence that after the door to his cell was opened, he was told to follow them, without being told where he was going, or the purpose of his being taken out of the cell to that point (T 20.30 - 20.36). This was at 8:10pm. He had been cautioned at 7:23pm. Given that he was not informed where he was being taken, nor the purpose for where he was being taken, it was unsurprising that, to this point, Mr Reeves did not protest against being interviewed in connection with the investigation.
2. Once inside the interviewing room, he was interviewed. He was informed that the interview was recorded. Faced with the camera, it was unsurprising that he said that he felt that the 'spotlight' was on him (T 31.41). After some early questions about his address, where he was born and his citizenship, Mr Reeves clammed up. The transcript of the ERISP (Exhibit A) reveals that at Answer to Question 22, he stated that he did "not wish to participate in this interview". This declaration was stated immediately after DS Michaelson had acknowledged his "prerogative" to exercise his right to silence (Answer to Question 21 and Question 22).
3. This prompted DS Michaelson to say (Q 23 - 24): "That's fine, Sir. As, uh, police, cah, have a common, raw (sic) right, law right to ask questions whether an,investi, uh, when, uh, conducting of an investigation. So as I've explained and a Custody Manager …. ….. explained as well, you are, in, not obliged to say anything or do anything. OK. But, I am gunna ask you a number of questions. Because, that's my job, and I would lacking in it if I did not. OK.."
4. DS Michaelson proceeded to ask a question, which Mr Reeves did not respond to and then asked another one (Q 25), which elicited the following exchange: "I do not wish to participate in this interview. Q26. No problem, Sir. I understand that. A. I have nothing to say. Q27. No problem …"
5. DS Michaelson then indicated that he would read out the part of the complainant's witness statement, to the extent that it raised her allegations.
6. With reference to the statutory provisions in Part 9 of the LEPRA, and uninstructed by case law authority (the parties not having cited authorities on Part 9 of the LEPRA in their submissions), I find the following: 1. DS Michaelson's power to detain Mr Reeves was closely prescribed by statutory provision which, in my view, supplanted any right that may have existed under the common law; 2. DS Michaelson's right to detain Mr Reeves was limited: it was for the 'investigation period' (s 114(1)); 3. Mr Reeves had a right (recognised in s 113(2)(c)) to refuse to participate in any questioning, unless he was required by law to do so (s 113(1)(b)); 4. Mr Reeves plainly manifested his intention not to participate in questioning; 5. The State did not refer to a lawful requirement to compel such participation in questioning in the face of Mr Reeves' exercise of his right not to participate in it (ss 113(1)(b) and 113(2)(c)); 6. The State did not invoke s 114(2), which, it appears to me, would be subordinated to s 113(2)(c); 7. It was prima facie unreasonable to detain Mr Reeves for the purpose of questioning Mr Reeves in opposition to his exercising his right not to participate in such questioning (ss 115(1) and 116(2)(d)); 8. The State did not refer to other relevant circumstances (in s 116(2)) that would preclude the Court from finding that the investigation period was unreasonably protracted, to the extent of the period of time taken in questioning Mr Reeves after he exercised his right not to participate; and 9. To this extent, Mr Reeves was detained beyond a time that rendered the investigation period reasonable (s 115(1)).
7. I would estimate that the time beyond which it was unreasonable to keep questioning Mr Reeves would have been from approximately 8:16pm (see the time recording for Q20). I do not find the earlier part of the interview (8:10 - 8.16pm) to be unreasonable. This was because first, it was reasonable for the police officers to offer the opportunity to Mr Reeves to participate in an interview, if nothing else to learn of the particulars or scope of the allegation of stalking he was informed that he was arrested for. Secondly, I infer (from his conversation with his lawyer) that he would have realised that he had the opportunity to express comment and provide explanations which he apprehended might assist him. Further, at about the time of the arrest in North Sydney, he was told that he could expect to be spoken to again by DS Michaelson.
8. To the extent that the State suggested that there is authority in the common law to ask questions of a suspect in the face of their opposition to being questioned, this is partly reflected in s 114(2). But that provision is subordinated to s 113(2)(c), or to put the matter another way, the general entitlement to question must yield or give way to the specific right in Mr Reeves to refuse to participate in questioning.
9. Even if the matter was (contrary to my view) determined by the common law, the State did not cite authority for a common law right in an investigator to continue to question a suspect in an interviewing room, when the suspect has indicated that they did not wish to participate in an interview. Among the cases reviewed by Sully J in Quach, in R v Plevac (1995) 84 A Crim R 570, emphasis was placed upon the entitlement of an investigator to ask questions to a suspect who was "willing to be questioned..". In R v Clarke (1997) A Crim R 414, it appeared that the unstated premise for the observations were that the suspect was generally willing to participate in an interview, but had exercised the right to silence upon certain questions. Neither of those cases, nor anything else that was said by Sully J, or the other Judges in the Court of Criminal Appeal in Quach, provide support for DS Michaelson's apparent belief in an absolute, or unqualified right of an investigator to question a suspect in the face of a manifest unwillingness on the suspect's part to answer questions.
10. Relevant also is the 'rule of practice' identified by Hamill J in R v Taleb [2019] NSWSC 241 at [124]-[129] and the cases referred to therein (including Plevac). Although the rule of practice was considered in the context of the admissibility of evidence, it reflects part of the context for the bounds of proper police conduct, as remarked upon in cases, that Parliament would be taken to be aware of when enacting LEPRA.
11. As further confirmation of the rule of practice identified by Hamill J, and as I indicated in argument, it is a commonplace for judicial officers in this Court, when sentencing after guilty pleas to receive Court Attendance Notices which specifically indicate in the Full Facts that the (at that stage) accused declined to participate in an ERISP. I have not seen a single CAN in which it is apparent, on the face of the Full Facts, that investigating officers have persisted with questioning after such an indication has been supplied.
12. I find therefore that it was unreasonable for police to have detained Mr Reeves in the interviewing room from 8:16pm to the conclusion of the interview at what I estimate to be about 8:32pm.
13. The element for the tort of false imprisonment is that the imprisonment is wrongful. The bounds of lawfulness are set here by Part 9 of the LEPRA. I see no impediment, in principle, for false imprisonment to be available in a context where a person is under another person's lawful custody. Even under common law, although typically 'imprisonment' for the purpose of this tort arises through positive action, it may equally consist of breach of an obligation to release a person from confinement [15] . However 'novel', no such impediment was identified by the State.
14. I apprehend that there may be some concerned readers who may query whether what the plaintiff aptly described as 'secondary false imprisonment' could be compensable in circumstances where I have found that the arrest was lawful and he was lawfully under police custody. But even though the police officers had lawful authority to take Mr Reeves into custody, it does not follow that they could put him where they liked for any purpose and for however long they wanted. It also does not follow that if, as I have found, there was a deprivation of his liberty in the sense that I have identified, the State is immunised from an action in false imprisonment. DS Michaelson intended to keep Mr Reeves in the interviewing room, against Mr Reeves' will, about which the latter had no choice but to submit to enduring.
15. For this discrete period, Mr Reeves' action of false imprisonment is established.

Period after charging

1. As I understood him, Mr Reeves argued that DS Michaelson had completed the charging process by 9:40pm. Although bail needed to be dealt with, it should have been completed well before 10:50pm and because Acting Sergeant Vickery was not called to explain what he did in that interval, it should be inferred that his evidence would not assist the State to support its argument that his detention in this discrete period was reasonable.
2. It is to be noted that it was only at 10:10pm that David Piper, apparently a Registrar of the Local Court, issued the AVO. In my opinion, it does not sit easily for Mr Reeves to complain about the need for such process when he argued that this is the course that DS Michaelson should have pursued all along. Further in my view, arguably time taken to obtain an AVO falls within s 116(2)(l), as being reasonably necessary for the proper conduct of the investigation. It was not suggested that police could have truncated the time for the issue of this order earlier than occurred.
3. There are several difficulties with the Jones v Dunkel argument about Acting Sergeant Vickery. First, I agree with the State that in circumstances where custody management records for Mr Reeves, as well as two other detainees in the applicable period, were available, it is seriously to be doubted whether a Custody Manager, who undertakes routine activities, on a regular basis, would have any additional information that might throw light upon what, precisely, he was doing in the discrete period identified as it affected Mr Reeves. Some analogy may arise from the High Court's decision in ASIC v Hellicar (2012) 247 CLR 345, where a similar argument was made by defendants in a civil penalty proceeding that the regulator might have been expected to call a solicitor to give evidence about the content of a company minute many years after the event. Secondly, as has been emphasised, there is no compulsion about a trier of fact drawing the inference that the evidence of the missing witness would not have assisted the party not calling the witness. In my discretion I would not draw the inference for the above stated reason. In other words, I do not consider that the State decided not to call Acting Sergeant Vickery because it feared what he might say about the circumstances in custody [16] . Thirdly, Jones v Dunkel reasoning cannot be applied to plug gaps in another party's case, in the sense that I should infer that what Acting Sergeant Vickery might have said was adverse to the State's case. The non-calling of Acting Sergeant Vickery was a neutral circumstance.
4. The State did tender contemporaneous documentation. It so happens that in the period in issue (10.10 pm to 10:50pm), in addition to preparing Mr Reeves bail conditions, Acting Sergeant Vickery was occupied in inspections for other detainees, involving the charging process for a detainee aged 17; accepting into custody and reading Part 9 LEPRA rights to a detainee aged 16 and conducting inspections for him. Notwithstanding generalised criticisms of delay, I agree with the State that the calculations of the investigation period should not be conducted on a minute by minute basis. Some leeway should fairly attach to officers in custody lest they be induced by time pressures to cut corners and in so doing make mistakes.
5. So, in my view, it was not unreasonable for the investigation period to extend to 10:50 pm (when the bail conditions were acknowledged by the officer). Some leeway was to be permitted to the police officers before Mr Reeves was released at 11:01 pm.
6. I am satisfied on the probabilities that the time spent in the second of the intervals challenged by Mr Reeves was reasonable.

Principles

1. It is well-established that the elements of the tort of malicious prosecution are: 1. The proceedings to which the tort applies, generally being criminal proceedings, must have been initiated [or maintained] by the defendant against the plaintiff; 2. That prosecution must have been resolved favourably to the plaintiff; 3. The defendant, in initiating or maintaining the proceedings, acted maliciously; 4. The defendant acted without reasonable or probable cause [17] .
2. The State concedes that the first and second elements are made out in this case. Mr Reeves concedes that he bears the onus of proof on each of the elements of the tort. In this regard, he accepts that although malice is a serious allegation, the onus of proof is still that of proof on the probabilities under s 140 of the Evidence Act 1995 (NSW).
3. As to the third element of malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law - an "illegitimate or oblique" motive. That improper purpose must be the sole or dominant purpose actuating the prosecutor [18] . Absence of reasonable and probable cause may itself be evidence of malice [19] . But it is ordinarily insufficient to establish malice that a prosecutor too hastily formed a belief in the plaintiff's guilt on unreasonably insufficient grounds [20] .
4. Mr Reeves invoked what might be called the 'Trobridge principle'. This had its provenance in Trobridge v Hardy (1955) 94 CLR 147. There, Kitto J said if the jury: ".. think it more probable than not that the prosecutor lacked the belief in the guilt of the accused, they are justified in taking the next step of concluding the prosecution was not instituted from a genuine desire to serve the ends of justice and is not to be satisfactorily explained save on the supposition that the prosecutor was actuated by an indirect or improper motive. If so, they may legitimately make a finding of malice, even though they may not feel able to say precisely what the malicious motive was."
5. The 'Trobridge' principle was applied by Harrison J in Spedding v State of New South Wales [2022] NSWSC 1627 ("Spedding" [21] ) at [204], where his Honour observed that malice could be inferred from a combination of absence of reasonable and probable cause and the absence of explanation (by the prosecutor).
6. As to the fourth element, Mr Reeves carries the onus of proving a negative: that the prosecutor(s) acted without reasonable cause. This may be established in either one of two ways: first, he (they) did not honestly believe the case was instituted or maintained; or they had no sufficient basis for an honest belief. This (objective) alternative has been described as giving rise to the factual issue of whether an objective person, with reasonably sound judgment, would have regarded the facts and materials then available as sufficient for establishing reasonable and probable cause to institute (or maintain) the charges [22] . Whichever way the plaintiff seeks to establish the matter, the focus is on what use the prosecutor(s) made of material available when deciding to institute, or maintain, the proceeding [23] .

The 'prosecutors'

1. I accept that DS Michaelson and Officer Abda may be treated as prosecutors for the purpose of this tort and ultimately the State did not seriously resist that conclusion.
2. I do not accept that DS Michaelson was a puppet of Officer Abda, but rather that, befitting his more senior position and rank, he assumed responsibility for arresting and charging Mr Reeves.
3. I will address the element of malice first.

Malice

1. The test, as the High Court said in A v NSW, requires the identification of a purpose other than the proper invocation of the criminal law.
2. One contextual matter to this was referred to by the High Court in A v NSW, at [40]-[41], when after acknowledging that the absence of reasonable or probable cause may assist an inference of malice, the High Court said: "In the case of a public prosecution, initiated by a police officer, or a Director of Public Prosecutions or some other authority, where a prosecutor has no personal interest in the matter, and no personal knowledge of the parties or the alleged events, and is performing a public duty, the organisational setting in which a decision to prosecute is taken could be of factual importance in deciding the issue of malice. In the present case, which is not unusual, the second respondent's (ie the police officer's) conduct was being overseen by other authorities (that, indeed, is said to be part of the problem), and he must have been aware that, soon after the charges were laid, the proceedings could be taken over by an independent prosecuting authority and, presumably, discontinued if the view were taken that there was not a proper case to go forward."
3. Neither DS Michaelson nor Officer Abda had a personal interest in the prosecution of the complainant's complaints. DS Michaelson had not met or spoken to the complainant. He had no personal knowledge about the matters of which the complainant complained at the time he arrested Mr Reeves. It is not obviously apparent why, on the face of reports he had read in the COPS, he would have any personal animus against Mr Reeves. No such animus was manifestly apparent when DS Michaelson: (a) effected the arrest on Mr Reeves; (b) transported Mr Reeves to the police station; or (c) interviewed him. Both officers' conduct was overseen by other authorities. This was later illustrated by the response to the representations in the Godfrey report. Given the absence of any personal animus, and their knowledge (which may fairly be) imputed to them that there were others supervising them, it is difficult to divine in either officer a desire 'to punish', either because of distaste or disapproval to Mr Reeves' suspected acts of stalking a female complainant much younger than him. This bespeaks a lack of professionalism or objectivity in either police officer about which there was no evidentiary basis. Further, in this respect, I do not accept Mr Reeves' submission that what was submitted by Sgt Moore, as the ultimate prosecutor in the Local Court hearing, could in some way be imputed to the state of mind of either officer. Malice cannot be aggregated or imputed in this way.
4. The suggested other purpose of 'mollifying or appeasing' the complainant (and/or her mother) strikes me as a weak reed as well. The connotation of this ascribed purpose strikes me as persistent requests for protective action made to police by either or both of those other complainants that hitherto had been resisted by police, until a point had been reached on 22 October. This was not the reality of the situation even if information about the sighting of Mr Reeves in McMahons Point and recognition of his living in the vicinity of the complainant triggered the sense of urgency that day.
5. There was nothing in the reaction to the representations, in the Godfrey report, that could implicate DS Michaelson in being actuated by malice in the continuation of the proceeding. As I have explained, in Officer Abada's case, his comments did not represent the end word on the subject of the continuation of the prosecution. A number of other officers, less involved in the case, provided their views on the case and two of those officers gave their views well over a month later.
6. My provisional view, therefore, is that neither officer had the improper purpose ascribed to them as the sole or dominant purpose actuating their respective parts in prosecuting Mr Reeves. However, it is possible that a plaintiff's satisfaction of the element of absence of reasonable or probable cause may be an indicia of malice; so I will momentarily, hold off on expressing a concluded view on this element.

Absence of reasonable or proper cause?

1. In A v NSW, the High Court addressed (at [77] and [80]) the issues arising in relation to this element when the prosecutor does not have personal knowledge, but relies upon reports from third parties as follows: " First, it is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition may be established in either or both of two ways: the defendant prosecutor did not "honestly believe" the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis, for such an honest belief. The third point is that the critical question presented by this element of the tort is: what does the plaintiff demonstrate about what the defendant prosecutor made of the material that he or she had available when deciding whether to prosecute or maintain the prosecution? That is, when the plaintiff asserts that the defendant acted without reasonable and probable cause, what exactly is the content of that assertion? ….. In cases where the prosecutor acted on material provided by third parties, a relevant question in an action for malicious prosecution will be whether the prosecutor is shown not to have honestly concluded that the material was such as to warrant setting the processes of the criminal law in motion. (There may also be a real and lively question about the objective sufficiency of the material, but that may be left to one side for the moment.) In deciding the subjective question, the various checks and balances for which the processes of the criminal law provide are important. In particular, if the prosecutor was shown to be of the view that the charge would likely fail at committal, or would likely be abandoned by the Director of Public Prosecutions, if or when that officer became involved in the prosecution, absence of reasonable and probable cause would be demonstrated. But unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution, or to have formed that view on an insufficient basis, the element of absence of reasonable and probable cause is not established."
2. This is not a case where Mr Reeves demonstrated that at the point of instituting the proceeding (after which he essentially dropped out of the picture) DS Michaelson believed that the charge against Mr Reeves would fail. To briefly repeat what I said earlier in relation to the legality of the arrest, viewing each of the episodes identified by the complainant in her witness statement and the reports of them in the COPS entries in combination, notwithstanding the points raised by Mr Reeves (when challenging them for the validity of the arrest), I am unable to accept that Mr Reeves could demonstrate a lack of honest belief that the stalking element could be established. Further, although the element of intention was more difficult, the requirements for proof of the element in s 13(3), as interpreted, effectively lessened the burden of proof for the mental element of the offence. I am unpersuaded that at the point where he drew the charge, DS Michaelson did not honestly think that this element could be proven. To repeat what I found earlier, Mr Reeves' statement to Mr Policastro that he was just being "friendly" was not only inherently self-serving, but was uttered in a context where only a very short time before, he evinced a lack of awareness of what Mr Policastro was even talking about. That was a lie, even if it was instinctive. His so-called 'desisting' after 8 October was not illuminative of what his intention was for virtually all of the period of alleged offending identified in the charge.
3. For reasons previously explained, I reject Mr Reeves criticism of DS Michaelson as being impermissibly affected by Mr Reeves' sighting around McMahon's Point on 19 October and/or loitering in that area. This was evidentiary matter that could assist the trier of fact to understand how Mr Reeves came to have a connection with the complainant (as well as being relevant to bail conditions or the terms of an apprehended violence order).
4. Mr Reeves also contended that the material was objectively insufficient, but it was not clear to me how this submission was distinct from his first point that DS Michaelson did not have an honest belief.
5. As to officer Abda, although he performed a different role to DS Michaelson and went on to become the officer in charge, it has not been shown that the material he had, or was reasonably capable of having, was materially different to that which was available to DS Michaelson up to the point of arrest.
6. For the reasons indicated about DS Michaelson, I do not accept that the Trobridge maxim is engaged or even Jones v Dunkel, in the light of my findings about whether there was an absence of reasonable and proper cause in DS Michaelson up to the point of the institution of the proceeding.
7. I have also explained elsewhere that the matters referred to in Mr Reeves' lawyer's representations were not so compelling as to indicate that the maintenance of the proceeding at the point of receipt of the representations betokened an absence of reasonable or proper grounds.
8. I find that neither police officer were actuated by malice in their roles in instituting or maintaining the proceeding against Mr Reeves. That is dispositive of the action for malicious prosecution. Were it necessary to find, I am also not persuaded that Mr Reeves has proven that either or both officers had an absence of reasonable and proper cause.
9. As a consequence of these, and earlier findings, I have found only that Mr Reeves has established, to a limited extent, his action for false imprisonment.

Statutory provisions and principles

1. By s 3B(1)(a) of the CL Act , that Act does not apply to or in respect of "civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury …."

The plaintiff's evidence

1. In his evidence in chief, on the subject of the police interview, and to reiterate, Mr Reeves said that when he got into the interviewing room he felt "a bit anxious" and evinced discomfort in being "in the spotlight" (T 21.42). After he indicated his desire to exercise his right to silence and a desire not to continue to participate, but the police officers continued to question him, Mr Reeves said he was "really quite scared" and was made to feel "very anxious" (T 22.12 - 22.16). He elaborated that what was occurring was contrary to his expectations in the light of the advice he had received from his solicitor.

"Injury" for the purposes of s 3B(1)(a)

1. In Houda v State of New South Wales (2005) Aust Torts Rep 81-816; [2005] NSWSC 1053 ("Houda") Cooper AJ determined at [(336]) that in the context of a claim for false imprisonment the results of "depriving him of his freedom, restraining with force his mobility, causing him humiliation, damaging his reputation, causing him the emotional upset of having to undergo these experiences and of having a criminal charge hanging over his head" constituted an injury, or injuries, for the purposes of s 3B(1)(a) of the CL Act .
2. In New South Wales v Ibbett (2005) 65 NSWLR 168 ("Ibbett"), it was held that for the purpose of s 3B(1)(a) the term 'injury' encompassed anxiety, distress and fear of physical violence: at [11], [124]-[125], [218]. I agree also with Mr Reeves' submission that Spigelman CJ's citation of the passage from Cooper AJ's decision in Houda enhances the weight to be accorded to that passage in Houda. I also note that Ipp JA specifically rejected the State's submission in Ibbett (recorded at [122]) about the meaning of injury in s 3B(1)(a) which the State reprises in this case.
3. As Mr Reeves pointed out, Houda was also followed in Spedding. The Court was informed that although Spedding is currently on appeal by the State, that it is not on appeal on the point of the trial judge's decision on the application of s 3B(1)(a) insofar as it concerns the concept of 'injury'.
4. The result of these authorities is that whilst "injury" for the purpose of the restrictions on personal injury damages is expressly defined in s 11, it carries its ordinary and plain meaning under s 3B(1)(a).
5. In New South Wales v Williamson (2012) 248 CLR 417 ("Williamson") French CJ and Hayne J determined that "to the extent to which the claim for false imprisonment seeks damages for deprivation of liberty and loss of dignity, it is not a claim for damages for 'personal injury" ([8]). Their Honours said (at [34]) the deprivation of liberty (loss of dignity and harm to reputation) is not an 'impairment of a person's physical or mental condition" or otherwise a form of "injury" within s 11 of the Civil Liability Act".
6. This view was maintained by the High Court in Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326 ("Moore") at [57], again in the course of considering the meaning of 'injury' under Part 2 of the Civil Liability Act."
7. In his text, Mr Villa SC surmised that these observations may carry the consequence that a claim for damages for false imprisonment does not fall within the scope of s 3B(1)(a) and effectively overruled what Cooper AJ held in Houda at [336]. The learned author did however qualify that by saying that false imprisonment is often accompanied by some other form of trespass to the person [24] . The same qualification is picked up by the State in this case.
8. The learned author spoke in term of 'possibility' and even that was qualified. I do not accept that I can proceed on this suggested basis of a change in the law. First, the High Court did not address itself to the correctness of Ibbett. It would be unusual if authority of a decision of an intermediate appellate court was overturned impliedly. Until the NSW Court of Appeal or High Court determines otherwise, I consider that I am bound to hold that the concept of 'injury' in s 3B(1)(a) is not limited to 'personal injury' as that expression is defined in s 11.
9. Secondly, there are different policies at play in relation to the Parts of the Civil Liability Act in which s 3B and s 11 appear. The policy, or 'mischief' at which Part 2 (in which s 11 appears) was identified in Moore at [47] as "the (perceived) excessive strain on insurance schemes established to indemnify defendants against their liability under the common law for loss relating to personal injury". Section 3B, which appears in Part 1, sets out exceptions to the application of the provisions of Part 2 to certain claims. In his concurring judgment in Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658 ("Dickson") White JA at [37] referred to extrinsic material as arguably supporting the proposition that s 3B(1)(a) is directed to compensation claims for intentional criminal acts; which is not a species of claim to which policies of indemnity usually apply. Although there was residual debate left from Dickson about the nature of the intentional acts in s 3B(1)(a), it appeared that Simpson AJA accepted (at [132]) that some of the acts embraced within that provision could be criminal acts as well as civil acts.
10. The State did not advance a policy for its narrower construction of the word where it appears in s 3B(1)(a) other than a generalised submission which argued that assimilation of the two concepts would foster greater 'coherence'. But there are exceptions to the concept of injury in s 11, as recently demonstrated in Moore, at [41] when damages were awarded for disappointment and distress arising from a ruined holiday that fell outside the scope of Part 2 of the CL Act . In that paragraph, the plurality instanced claims for damages in defamation and, more pertinently, false imprisonment, as giving rise to injuries not covered by s 11. At any rate, legal coherence may be a virtue, but it depends on whether polices and principles indicate that the means to achieve that objective are appropriate. In very different contexts in the law, the High Court has so far resisted or eschewed attempts at assimilating various estoppels and consolidating species of restitutionary liability under an overarching doctrine of unjust enrichment even if, arguably, they may have been conducive to achieving coherence.
11. The State did not persuade me that there is any textual, contextual or purposive justification for assimilating the notion of 'injury' in s 3B(1)(a) to 'personal injury' in s 11 and the state of authority in this state presently precludes that course. I take the passages in Williamson to mean what they say, in the sense that the High Court was considering only the meaning of 'injury' where that appears in Part 2 of the legislation.
12. Before I pass from this issue, I wish to express my doubt about whether such concepts 'deprivation of liberty' or 'restraining with force (a person's) mobility' constitutes an 'injury' for the purpose of that word in s 3B(1)(a).
13. First, both concepts, in my view, manifest a condition, or a certain state of affairs. In my view, it is the natural consequences, generally, through injury to the victim's feelings (although it may be more than that) associated by that, or those condition(s), which is what constitutes the "injury". So in Ibbett, the intentional pointing of a gun at the claimant's head was apt to induce anxiety, fear or terror in the person against whom it is pointed. These are generally forms of injured feelings.
14. Secondly, s 3B(1)(a) posits in a defendant two intentions: the intention to commit the (wrongful) act and the intention to cause injury. In my view, properly construed, the provision does not allow those two mental states to be conflated, so that it inexorably follows that by bringing the claim of false imprisonment (an intentional tort), a claimant can sidestep the separate need for the claimant to prove an intention to cause injury. To imprison or detain a person or restrain a person's mobility, by definition, deprives the person of liberty. The focus of inquiry for this particular tort is the injured feelings, or other species of injury, associated with the condition of being detained (or restrained). This may, without being exhaustive, include anxiety or fear, distress, shock (not necessarily amounting to a psychiatric injury) or humiliation.
15. The injured feelings that Mr Reeves associated with being detained in the interviewing room after he had indicated that he did not wish to participate in the interview, do constitute an 'injury', or injuries, for the purposes of s 3B(1)(a).

Intent to cause injury

1. In Dickson, Simpson AJA, delivering the leading judgment (in which Basten JA and White JA separately concurred), explained (at [183]-[186]) that 'intent to cause injury', for the purposes of s 3B(1)(a), required that a plaintiff establish a defendant's 'actual subjective intention'. Although a defendant's knowledge that conduct will inevitably or almost certainly produce a particular result may give rise to a compelling inference that the result was intended, proof of knowledge or foresight of result remains insufficient.
2. Mr Reeves needed to prove more than that injury was inevitable or that DS Michaelson foresaw or should have foreseen or anticipated injury.
3. In his concurring judgment, Basten JA referred (at [7]) to a decision that preceded the enactment of the CL Act, being Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 as an illustration that many forms of battery (and by extension other intentional torts) may not fall within s 3B(1)(a). His Honour noted the prisoner's claim for damages for false imprisonment and observed that although the detention was deliberate, its purpose was not to harm the prisoner, but to give effect to the terms of a warrant. His Honour (at [9]) also emphasised that in construing the expression to require a defendant's subjective or actual attention, the natural and probable consequences, which may rise to the height of being inevitable, will not necessarily provide evidence of actual subjective intention.
4. White JA agreed with the observations of Basten JA and Simpson AJA about the requirement for an actual subjective intention.
5. What that means is that it is not to be presumed from the inevitability of injury that the defendant had the intention to injure, for the purposes of s 3B(1)(a). It was not enough that DS Michaelson actually or should have foreseen injured feelings or that such injury was inevitable. Mr Reeves needed to prove that DS Michaelson actually subjectively intended them.
6. To my mind, DS Michaelson did not intend to injure Mr Reeves' feelings by continuing to detain him in the interviewing room after Mr Reeves indicated his wish not to participate in such interview. Rather, he was trying to give effect to what I have found was an erroneous, or at least 'unreasonable', belief that he was entitled to detain Mr Reeves, even in spite of his protest in the interviewing room, in order to ask him questions. It was this which was operating on DS Michaelson's subjective state of mind. It did not matter that a foreseeable, likely, or even inevitable, consequence of DS Michaelson's continued detention was to injure Mr Reeves' feelings.
7. Although he plainly intended to detain Mr Reeves in the interviewing room, I am not persuaded that DS Michaelson intended to injure Mr Reeves.
8. It follows that this claim for damages for false imprisonment does not fall within s 3B(1)(a) of the CL Act so as to preclude the operation of other Parts of that Act, including, relevantly, s 43A of the legislation.

Consideration

1. Section 43A of the CLA falls within Part 5 of that Act.
2. That Part applies to civil liability in tort, save for civil liability that is excluded by operation by s 3B (s 40(3)). As I have found, Part 5 is not so excluded.
3. However, although s 40(1) and (2) are expressed in general terms, as a matter of construction, there is doubt whether it extends to liabilities of a public authority arising from claims other than negligence or a breach of statutory duty. In G Mullins, S Grant & R Douglas, Civil Liability Australia + Cases (electronic subscription, LexisNexis) [51,043]) the learned authors argue that the provisions in Part 5 do not so extend.
4. There is considerable force for this view. There is authority, for example, which posits that it does not apply to claims in nuisance: Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514 ("Gales Holdings") at [196]-[197]; Southern Properties (WA) Pty Ltd v Executive Director, Dept of Conservation and Land Management (2012) 42 WAR 287 at [328]-[329].
5. Section 43A has been described as imposing a modified standard for adjudication of whether an act or omission is wrongful: Queensland Bulk Water Supply Authority (t/as Seqwater) v Rodriguez & Sons Pty Ltd (2021) 393 ALR 162; [2021] NSWCA 206 at [123]. For a tort of false imprisonment, the premise is that the 'imprisonment' is 'wrongful'. It is counter-intuitive, to the point of contradiction, to defend such a claim on the basis that in the course of imprisoning a claimant (in the sense described) without lawful justification, the plaintiff could not establish that police conducted themselves so unreasonably that no person having the special statutory power in question could consider the conduct to be a reasonable exercise, or failure to exercise, of the power.
6. In Gales Holdings, Emmett JA (with whom Leeming JA and Sackville AJA agreed) said (at [196]): "The application of s 43A is limited to proceedings for civil liability to which Part 5 of the Liability Act applies. However, it applies only to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority. Assuming a special statutory power is involved, the anterior question is whether the proceedings were proceedings for civil liability, in which the liability was based on the Council's exercise of, or failure to exercise, a special statutory power conferred on it. A clear distinction is drawn in the legislation between a liability that is based on the exercise of, or failure to exercise, a special statutory power, and an act or omission involving an exercise or failure to exercise such a power (see Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278; 74 NSWLR 102 at 173)"
7. In my opinion, the liability of the State, being, by nature, vicarious for the action of DS Michaelson in falsely imprisoning Mr Reeves, in the sense that I have described, and persisting in asking him questions notwithstanding that indication after he had indicated that he did not wish to participate in such interview, was not "based" on a 'special statutory power'.
8. Even if it be assumed (contrary to my earlier analysis) that DS Michaelson was empowered under the common law, to question a suspect, s 43A requires the public authority to identify those activities based on a statutory power rather than the general law [25] . The State did not identify what statutory power DS Michaelson had to continue to question Mr Reeves after he indicated that he did not wish to participate in the interview. As was explained earlier in these reasons, the State did not rely upon and particularise the matter referred to in s 113(1)(b) of the LEPRA.
9. Generally, statutory exemptions from liability, or qualified immunities like s 43A are construed strictly [26] . No persuasive submission has been made by the state that any expansive construction should be given to s 43A(1).
10. It will be observed that in the way that I have reasoned upon the provision, it has been unnecessary for me to express a view as to the correctness of my brother Fitzsimmons SC DCJ's determination of the application of s 43A in Madden v The State of New South Wales [2022] NSWDC 647.
11. Section 43A is not engaged in a way that will affect the State's liability for false imprisonment.

SUMMARY & ORDERS

1. After this long judgment, it may assist the patient reader of these reasons to summarise my findings: 1. Mr Reeves' arrest was lawful; 2. Mr Reeves' claim in battery fails; 3. Subject to a qualification, his claim of false imprisonment fails. The qualification is that his claim of false imprisonment succeeds, to the extent that it is based on his detention being protracted, contrary to s 115(1) of the LEPRA; 4. Mr Reeves' claim of malicious prosecution fails; 5. The exception in s 3B(1)(a) of the CL Act is not engaged as DS Michaelson did not intend to cause injury to Mr Reeves; and 6. Section 43A of the CL Act is not engaged.
2. As indicated, the parties should have the opportunity to make supplementary submissions as to damages; noting that they have already made some written submissions on that topic during the hearing. In my view, it is appropriate that this be done by the provision of supplementary written submissions, rather than a further hearing. The issue of damages will be determined on the papers.
3. It is also appropriate to defer consideration of costs to after the question of damages is determined.
4. I direct that: 1. The plaintiff is to serve short written submissions, not exceeding 3 pages, within 3 days' of the date of this judgment. 2. The State is to serve short written submissions, not exceeding 3 pages, within a further 2 days. 3. The plaintiff is to serve any supplementary written submissions, not exceeding 1 page, within a further 2 days. 4. The issue of damages will be determined on the papers.

Endnotes

1. McIlraith v R [2017] NSWCCA 13 ("McIlraith") at [32], [38]
2. The Queen v Baden-Clay (2016) 258 CLR 308 ("Baden-Clay") at [46]-[47]
3. Paragraph 8(b) of the State's Defence
4. R v Rondo [2001] NSWCCA 540 at [52]-[53]
5. Ruddock v Taylor (2005) 222 CLR 612 at [40]
6. Azar v DPP [2014] NSWSC 132 at [37]
7. Hyder v Commonwealth of Australia [2012] NSWCA 336 at [15(8)] and [18]
8. Jankovic v DPP [2020] NSWCA 31 ("Jankovic") at [67]
9. Randall at [13], [40] and [119]-[120]
10. Davies v The Queen [2014] VSCA 284 at [117]
11. NSW Legislative Council, Second Reading Speech Law Enforcement (Powers and Responsibilities) Amendment (Arrest Without Warrant) Bill 2013, 13 November 2013
12. State of New South Wales v Robinson (2016) 93 NSWLR 280 at [42]-[43]
13. In a different context, see South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513 per Basten JA at [7]
14. In closing argument, Counsel for Mr Reeves expressly abandoned his client's reliance upon s 32(8) of LEPRA.
15. C Sappideen & P Vines, Fleming's The Law of Torts (10th ed, Lawbook Co) [2.80], p 38
16. Ling v Pang [2023] NSWCA 112 per Kirk JA (Leeming JA and Mitchelmore JA agreeing) at [27]
17. A v New South Wales (2007) 230 CLR 500 ('A v NSW') at [1]
18. A v NSW at [91]
19. A v NSW at [40]
20. Fleming, supra at [27.80], p 706
21. I observe that an appeal from this decision is currently before the Court of Appeal and, I understand, the hearing of the appeal is scheduled for August 2023.
22. Beckett v State of New South Wales [2015] NSWSC 1017 at [131]
23. A v NSW at [77]
24. D Villa, Annotated Civil Liability Act 2002 (NSW) (3rd ed, 2018, Thomson Reuters [1.3B.040])
25. Weber v Greater Hume Shire Council (2019) 100 NSWLR 1 per Basten JA (Gleeson JA and Sackville AJA) at [47]
26. Puntoriero v Water Administration Ministerial Corp (1999) 199 CLR 575 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: 29 June 2023