Reeves v State of New South Wales - [2024] NSWCA 125 - NSWCA 2024 case summary — Zoe

NSWNSWCA

Reeves v State of New South Wales

[2024] NSWCA 125

Court of Appeal (NSW)|2024-03-25|Before: Bell CJ, White JA, Stern JA, Agency Ltd J

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2024-03-25

Before

Bell CJ, White JA, Stern JA, Agency Ltd J

Catchwords

[1994] HCA 15 Director of Public Prosecutions (NSW) v Greenhalgh [2022] NSWSC 980 Hill v Zuda (2022) 275 CLR 24
[2022] HCA 21 Jankovic v Director of Public Prosecutions [2020] NSWCA 31
(2020) 281 A Crim R 357 Jones v Dunkel (1959) 101 CLR 298
[1959] HCA 8 Michaels v The Queen (1995) 184 CLR 117

Source

Original judgment source is linked above.

Catchwords

[1994] HCA 15 Director of Public Prosecutions (NSW) v Greenhalgh [2022] NSWSC 980 Hill v Zuda (2022) 275 CLR 24[2022] HCA 21 Jankovic v Director of Public Prosecutions [2020] NSWCA 31(2020) 281 A Crim R 357 Jones v Dunkel (1959) 101 CLR 298[1959] HCA 8 Michaels v The Queen (1995) 184 CLR 117[1995] HCA 8 North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569(2016) 90 ALJR 679 State of New South Wales v Randall [2017] NSWCA 88 State of New South Wales v TD (2013) 83 NSWLR 566[2013] NSWCA 32 Williams v The Queen (1986) 161 CLR 278[1986] HCA 88 Wotton v Queensland (2012) 246 CLR 1

Judgment (27 paragraphs)

[1]

Background to the stalking charges

At the time of his arrest, the Appellant was 56 years old and was living on Mitchell Street in McMahons Point, as he had done for about 19 years. The Appellant had no prior criminal history. He was employed as the Chief Executive Officer of the Australian Association of Graduate Employers and worked in North Sydney.

[2]

Interactions with the Appellant in September 2020

Ms Scarpino's statement then recounted the following interaction with the Appellant: "About a week later, I was walking at the food court on level 5, I was on my phone and I was not looking at my surrounding[s]. The same man with orange hair, came up to me and put his hands up and made a sound of "raaa." It was like he was trying to scare me in a joking manner, like we were friends. I kind of stepped back a bit and he sort of leaned forward like consoling in a way. I said, "Sorry", and I ran off in the direction where I was originally going. I can't remember if he said anything at that time. I can't remember what he was wearing on this day... I felt concerned, it was kind of creepy, because I was clearly on my phone and not interested. It was very strange and weird. I recognised him immediately because of his distinct look and … the way he dresses and how tall and skinny he was." (Emphasis added.)
Ms Scarpino informed her managers at Zimmermann, Ms Michelle Lee and "Sam", of the incident. She also informed her boyfriend, Mr Rafael Policastro (who worked at a store three shops down from Zimmermann on level 4 of Westfield). Ms Scarpino's WhatsApp messages with Mr Policastro suggest that this interaction with the Appellant took place on 19 September 2020. In those messages, Ms Scarpino said the following: "Ok I'm being dramatic But I have a stalker … There's this like tall skinny white dude that always walks past my store and he's ranga and like 40 And he always waves at me Which is weird Anyways I'm just in the foot [sic.] court And he's walking towards me And he goes "rahhh!!!!" In my face Like with hands Like what the fuck … … I was like obviously looking scared And I walked away And he tried to like Grab me almost But not really Just like put his hands out And went oh sorry And I was like sorry!!!! And ran away Hiding behind the pole in the food court"
In her statement to police, Ms Scarpino recalled that she saw the Appellant "more and more" after her encounter with him in the food court. In particular, she recalled that, instead of catching the escalator straight down in the same section from level 5 to level 3 of Westfield, he would exit the escalator at level 4 and walk past the Zimmermann store to take the escalator inside the H&M store.
On another occasion, as Ms Scarpino recounted in her statement to police, she had seen the Appellant standing outside the store next to a "structure pole … not doing anything noticeable." She again notified her manager, Sam. The following Whatsapp messages were sent by Ms Scarpino to Mr Policastro regarding this incident: "He was standing at the pole next to my store Like near Harris's Just STARING IN So weird … TRUST OMG I legit panicked to Sam"
In his statement to police, Mr Policastro recalled that on 30 September 2020 at about 5.30pm, he was going down the escalators from level 4 to level 3 near the Zimmermann store when he saw a person meeting Ms Scarpino's description of the Appellant walking "really slowly pasty [sic.] Zimmerman [sic.] and … looking inside like he was looking to see if there was anyone in there." Messages sent by Mr Policastro to Ms Scarpino record the following about that interaction: "I don't think he works in the mall I was going down the escalators when I saw him Otherwisee [sic.] I [would've] honestly had a little interrogation If I see him again though"

[3]

Interactions with the Appellant in early October 2020

On one occasion in early October 2020, between 5.30pm and 6.00pm, Ms Scarpino was on the train from Town Hall to North Sydney with Mr Policastro and another co-worker, Ms Eleanor ("Ellie") Tickle. When the train stopped at Wynyard, Ms Scarpino recalled seeing the Appellant come down the stairs to the bottom level of the carriage in which she, Mr Policastro and Ms Tickle were sitting. In her statement, Ms Scarpino said that she told Mr Policastro that the Appellant was the "guy [she had] been seeing everywhere" and asked Mr Policastro to kiss her so the Appellant would know she had a boyfriend. About a minute later, she checked to see if the Appellant was still in the carriage but she could not see him. Both Mr Policastro and Ms Tickle also recalled seeing the Appellant on the train with Ms Scarpino on that occasion in early October. However Mr Policastro's recollection was that the Appellant had gotten on the train at Wynyard and had "looked at" Ms Scarpino before walking to the next carriage.
On 5 October 2020, Ms Scarpino again interacted with the Appellant. She said the following about that interaction in her statement to police: "… I worked at the store because it was [a] public holiday. At about 4.15 pm I went to go to the bathroom on level 5 using the escalator at the front of my store. Afterwards, I came down the escalator from level 5. I was just about to walk into the store. I heard a male voice. He Said - 'Excuse me' I turned around and it was the man with the orange hair. When I recognised him, I felt my heart rate go up and started panicking and looking toward the store to see if any of the girls would be able to see me. I also looked towards where Raf [Mr Policastro] worked to see if he was there. The man with the orange hair was wearing the same type of clothes. I also noticed that he was talking in [an] English accent. He started talking to me. He Said - 'I like your dress' I Said - 'Oh thank you' He Said - 'I like a lot of the dresses from Zimmerman [sic.]. I know the new collection coming, botanica'. I Said - 'Yah that is next year.' He Said - 'How often you work here?' I Said - 'Oh, just whenever they need me' He Said - 'What days usually?'. I Said - 'Whenever' He Said - 'Are you studying?' I Said - 'No' I said no because I didn't want him asking me anymore questions. I felt worried as in, why did he need to know that information about me when we don't know each other. He Said - 'So, you just working the long weekend, has it been busy?'. I Said - 'Yeh, sort of'. He Said - 'This morning I got back from a yoga retreat' I Said - 'cool.' I kept looking around trying to see if I can spot Raf or another co-worker to flag them to come and help me get away from the man. He Said - 'Nice to meet you, my name is Ben'. He held his hand out to me in a way to shake it. I shook his hand and walked away. I Said - 'I have to go'."
Immediately after the incident, Ms Scarpino recalled informing her co-worker, her manager, Sam, and Mr Policastro of her interaction with the Appellant. In Whatsapp messages with Mr Policastro, Ms Scarpino said the following: "HE JUST STOPPED ME OUTSIDE MY FUCKING STORE INTROCUED [sic.] HIMSELF … IM SHAKING … I'm legit scared I was coming from the bathroom And he came up behind me and goes EXCUSE ME … He had a full chat to me … I kept looking away And he was like do you work here etc And how did you get the dresses He knew all about our new collections His name is ben"
On 8 October 2020 at about 6.00pm, Mr Policastro interacted with the Appellant as he was walking past the Zimmermann store towards the escalators. In his statement, Mr Policastro recalled approaching the Appellant, who he said "looked like he was walking as if he had just checked to see if Zimmerman [sic.] was open", and having the following conversation with him: "I Said - Hi. What're you doing? He Said - Oh you know just walking around mate. I Said - You looking for anyone? He Said - Nope. I Said - Then what're you doing here? He Said - Just walking around you know? I Said - Oh cool. You work around here? He Said - No I work in North Sydney. I Said - So why are you here? He Said - Just walking around."
At about 6.04pm, Mr Policastro filmed a 15 second video of his interaction with the Appellant. Mr Policastro then recounted having the following conversation with the Appellant: "I Said - One of the girls in a store said that you've been making them uncomfortable recently. He acted shocked like he didn't know what I was talking about. I Said - You might be making them uncomfortable by approaching them when you don't really know them. He just laughed but didn't give an answer back. I Said - You should think about it before approaching people you don't know because you might be making them uncomfortable so keep that in mind. What is your reason for approaching people you don't know? He Said - I was just being friendly. I Said - I appreciate your good intentions if that's what you're saying but keep that in mind before you approach these people." Mr Policastro then said that he and the Appellant walked to the end of Pitt Street before they went in opposite directions.
Not long afterwards, Mr Policastro said he saw the Appellant about 50 metres in front of him going towards Wynyard Station and recalled that the Appellant "was checking to see if anyone was following him" and was "looking worried." Mr Policastro took a photo of the Appellant at 6.15pm after they had both entered Wynyard Station via George Street. Mr Policastro then observed the Appellant go up the escalator towards where the buses depart, which he thought was odd because he had seen the Appellant on the train previously. Later, at about 6.20pm, Mr Policastro said he saw the Appellant come up the stairs to the train platform at which point Mr Policastro took a photo of him. At 6.22pm, Mr Policastro took another photo of the Appellant, who he described as "physically shocked" and "surprised" after he saw Mr Policastro on the train. When the train stopped at Milsons Point, Mr Policastro's recollection was that the Appellant waited until the doors were about to close before suddenly rushing off the train, as if to make sure he was not followed.
On the same day (although Ms Scarpino's recollection was that it was on 9 October 2020), Ms Lee, in her statement to police, recalled having a conversation with Ms Scarpino about her interactions with the Appellant after having been informed about the events of 5 October 2020 by Sam. Straight after her conversation with Ms Scarpino, Ms Lee's recollection was that she called Westfield Security and checked the Zimmermann security footage. In that footage, Ms Lee remembered observing Ms Scarpino leaving the store at about 4.20pm on 5 October 2020 and, before she returned through the doorway of the store, "two legs come into the frame following her very closely" and that Ms Scarpino did not come back into the store "for a minute or two".
A short time later, a Westfield Security guard, Mr Jean Paul Achterberg (JP), came to the Zimmermann store to confirm some of the details of the matter with Ms Scarpino and Ms Lee. Ms Scarpino recalled that JP said he would review the CCTV footage. In his statement to police, JP said the following of the security footage: "I went back to the control room and reviewed the footage again. I saw the male described entering the Westfield. I remember seeing him on CCTV, coming up the escalator from Pitt Street. He stands outside the bathrooms for [a] few minutes. The [sic.] he goes to JBHIFI, I could see him reading a pamphlet, then he returns to stand outside the bathroom. Then I saw him going down the escalator hanging around the outside of [the] Zimmerman [sic.] Store. Then once Hanna [sic.] goes down the escalator, she walks past him. The man approached Hanna [sic.] and seems [to be] talking to her. Once finished talking he enter [sic.] H&M and [disappeared] off the camera. The male looked suspicious because of his body language and behaviour. He was not onsite for very long. His behaviour seems like he was waiting for someone. He didn't do any shopping and [was] only onsite for ten or fifteen minutes." That footage was later made available to police by Mr Lemuello Faapoi, another Westfield Security guard.
Ms Scarpino recalled that a short time later, after reviewing the CCTV footage, JP returned to the Zimmermann store and said the following: "He Said - '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 centre and was loitering outside Rimowa store (Suitcase store near Zimmerman [sic.]), and as soon as he saw you, he came to you. Then after the interaction he left the centre. He was in the centre for less than 10 minutes. I think you should go to the police about it'."

[4]

First report to police

On 11 October 2020, Ms Scarpino reported the matter at Day Street Police Station. She also provided police with the photos of the Appellant taken by Mr Policastro. SC Lagana created the first COPS entry in the matter recording that Ms Scarpino's complaint was made at 7.00pm and, at 11.38pm, he supplied the following narrative which roughly recorded the course of the events between mid-September and 11 October 2020 set out above: "Between the 21st September 2020 [and] 11 October 2020, the VIC has been working at Zimmerman [sic.] Clothing, Westfield's Shopping Centre. During this time, the POI has attended the location between the hours of 4 pm - 5 pm, Monday to Sunday and [is] seen to be standing at the front of the store, looking into the store without entering the store. The POI would be looking directly at the VIC, on several occasions waving to the VIC trying to get her attention. About 4:15 pm on Monday 5th October 2020, the VIC was exiting the female toilets from level 5 and used the escalator to go down to level 4 where her shop it [sic.]. As the VIC was texting and entered the store, the POI was waiting at the front entrance of the store and engaged in conversation with her. The POI began asking questions to the VIC about days she works, start/finish times, what she is studying at university etc. The VIC felt uncomfortable with this and asked the POI to leave her alone. The POI spoke with a British accent. The POI asked the VIC questions about where in North Sydney she lives. The VIC became uncomfortable with the POI from the [sic.] point in time as she believed he may have followed her. About 6:20pm on Thursday 8th October 2020, the VIC and WIT boarded the train from platform 4 at Wynyard Railway Station. At the same time, the POI was following the VIC and WIT onto the same train heading to North Sydney. Whilst they were walking to the train station leaving Westfield's, the WIT was video recording the POI who identified himself as 'Ben', saying he lives in North Sydney. The WIT was able to take photographs of the POI whilst inside carriage 2 towards North Sydney. The VIC contacted Westfield's security who state they have been watching the POI for several weeks and think his behaviour is strange and to report his actions to police. Westfield's security have been saving CCTV of the POI. On Sunday 11 October 2020, the VIC and WIT attended Day Street … to report the POI. The VIC and WIT did not wish to provide a statement to police at this point in time, but are willing to assist police with their enquiries into providing photos of the POI when he arrives at Zimmermann. The VIC and WIT stated they would like to provide statements to police at a later date pending if any criminal charges can be laid against the POI and if he continues to attend the location…" (Emphasis added.)
Notably, a number of details included in this COPS entry made by SC Lagana did not find their way into the statements ultimately made by Ms Scarpino and Mr Policastro on 21 October 2020, and which were relied upon before Magistrate Barko. As Mr Sexton SC who appeared for the State pointed out in argument, those details included the fact that the Appellant had been "looking directly" at Ms Scarpino in the store and "on several occasions waving to … get her attention" as well as the fact that Ms Scarpino had "asked [the Appellant] to leave her alone" and the fact that he asked her "where in North Sydney she lives."
On 15 October 2020, SC Lagana emailed Ms Scarpino regarding the matter. Ms Scarpino's recollection was that, on the same day, she and Mr Policastro went on a short holiday from which they returned on 20 October 2020. Mr Policastro also recalled going on this holiday.

[5]

Sightings of the Appellant in McMahons Point

At about 9am on 19 October 2020, Ms Scarpino's mother, Mrs Scarpino, recalled that she was standing outside the restaurant "Piato" on Blues Point Road in McMahons Point waiting for her coffee when she saw a man who she recognised from the photos of the Appellant taken by Mr Policastro that she had been shown by Ms Scarpino. Mrs Scarpino saw the man walk past the post office and look inside before walking away up Mitchell Street. As set out above, the Appellant resided on Mitchell Street.
Mrs Scarpino then called her partner, Mr Dyson to inform him of what she had seen. Mr Dyson and Mrs Scarpino both attempted to find the man on the streets around Blues Point Road and Mitchell Street but could not do so.
In his statement to police, Mr Dyson recounted that at about 12.30pm on the same day, he was returning from the city and arrived at North Sydney Station. He identified a man who he thought resembled the man Mrs Scarpino had described. Mr Dyson attempted to take a photo of the man he saw but was unhappy with that photo so he ran back to get in front of the man and said "Don't I know you" before taking a photo of the man on his phone. He then texted Mrs Scarpino this photo and enquired whether it was the same man she had seen earlier in the day.
On 20 October 2020, Ms Scarpino had returned from her short holiday with Mr Policastro and was told by her mother about the sighting of the Appellant the previous day. In her statement to police, Ms Scarpino recounted the following about the conversation with her mother: "I Said - 'Constable LAGANA sent me an email and said they couldn't identify the man'. She Said - 'Well I think I saw him at the coffee shop outside our house yesterday. He didn't order a coffee, he was just loitering and looked at the post office'." Mrs Scarpino then showed her daughter the photos Mr Dyson had taken and Ms Scarpino identified the man captured in those photos as being the same man with whom she had interacted at Westfield. Ms Scarpino emailed SC Lagana at 8.30pm on the same night to inform him of the sighting of the Appellant at the café. SC Lagana told Ms Scarpino to attend her nearest police station.

[6]

Second report to police

At around 9.30pm on 20 October 2020, Ms Scarpino attended the North Sydney Police Station. She provided police with information about the sighting of the Appellant in McMahons Point on 19 October 2020 and copies of text messages between herself and Mr Policastro about the incident. SC Lagana updated the COPS narrative at 4.58am on 21 October 2020. That narrative noted that Mrs Scarpino "saw the POI … loitering around the post office and café 'Piato' … which is next door to where the vic lives."
At about 4.00pm on 21 October 2020, DS Michaelson was briefed in relation to the matter and reviewed the evidence which was then contained in a physical "case file". The COPS system records that SC Abda took carriage of the matter at 5.50pm on the same day.
At about 10.30pm on 21 October 2020, Ms Scarpino and Mr Policastro provided their statements to police.
At 1.39am on 22 October 2020, SC Abda added a further narrative of the incident into the COPS system which formed the basis of the "Full Facts" set out in the CAN later created by DS Michaelson. That narrative included the following: "Around mid-September 2020, the victim was standing in front of the Store waiting for customers. At that time, the accused was coming down the escalator from level five (5). He walked past the store, waved at the victim and kept walking and continued down the escalator to level three (3). That was the first time the victim saw the accused. About a week later, the victim was walking at the food court on level five (5), she was on her phone and was not looking at her surroundings. The accused, came up to the victim raised his hands up and made a sound of "raaa." The victim described the actions of the accused as he was trying to scare her in a joking manner, like they were friends. The victim stepped back a bit. The accused leaned forward towards the victim. The victim said, "Sorry", and ran off away from the accused. The [victim] felt concerned due to the actions of the accused. In the following weeks the accused attended the Zimmermann Store multiple times. He was seen to be using the escalator to go down from level five (5), turn to walk past the Zimmermann store. [On] one occasion the accused stood outside the Zimmermann Store, next to a structural pole, and was looking directly at the victim. In the beginning of October, between 5.30pm and 6 pm, the victim, her boyfriend Rafael, and her co-worker Ellie boarded the train at Town Hall Train station and travelled to North Sydney. They all sat on the bottom level of one of the carriages. The train stopped at Wynyard Station. At that time the accused, walked down the stairs of the carriage into the section where the victim was sitting ... The victim felt exceedingly concerned as she felt the accused is following her everywhere. About 4.15pm, Monday 5th of October the victim was coming down the escalator from level five (5) to the Zimmermann Store where she works. The accused approached the victim, from behind and started conversing with her. The accused was complementing [sic.] the victim's dress. The accused started asking the victim personal questions about her study and where she resides. The victim was concerned and started looking around for someone to help her to get away from the accused. The accused raised his hand to shake the victim's hand and said, 'Nice to meet you, my name is [B]en'. The victim shook the accused's hand and said, 'I have to go'. The victim went inside the store started shaking and felt fearful for her safety. The victim immediately messaged her boyfriend and told him about her fears. The incident was captured on Close Circuit Television Cameras (CCTV). About 6.00pm Thursday 8th October 2020 the accused was seen by witness loitering outside the Zimmermann Store. However, on this occasion the victim was not at the store at that time. On this occasion the witness Rafael took a photograph and a short video of the accused. On the 9th October 2020 the victim reported the matter to Westfield Security. Security reviewed the CCTV of the incident and advised the victim to report the matter to police. On Sunday 11 October 2020 the victim attended Day Street Police Station and reported the matter. The victim provided police with a photograph of the accused and told them what had occurred. On the 19th October 2020 the accused was seen by witnesses loitering near the victim's residence in McMahons Point. This caused the victim to be more fearful and reported [sic.] the matter again to police. The victim provided a statement. The actions of the accused caused fear to the victim which caused her [to] change behaviour and routes to avoid seeing him. The victim started boarding the train at a different station and [eating] her lunch in the back room at work now instead of the food court."
The narrative created by SC Abda also included the following matters which had not yet taken place but which were no doubt included in anticipation of them shortly occurring with details to be added in due course: "********The accused was arrested and cautioned, Police complied with Law Enforcement (Power and Responsibilities) Act 2002. The accused was conveyed to Day Street Police Station and introduced to the custody manager who red [sic.] his rights under part 9 of with [sic.] Law Enforcement (Power and Responsibilities) Act 2002. The accused participated in an interview R ****** where ********, the accused said '**********'."
At 3.43pm on 22 October 2020, DS Michaelson received an email from SC Abda who recommended that the Appellant be arrested and provided DS Michaelson with the Appellant's name and address which was obtained in response to an "iAsk" request sent to Roads and Maritime Services (RMS). By way of facial recognition technology, RMS identified the Appellant as the man in the images taken by Mr Dyson and Mr Policastro.
DS Michaelson gave evidence that he was more senior than SC Abda and said in respect of SC Abda's view that the Appellant should be arrested that he "took his views on board" but rejected any suggestion that he had deferred to SC Abda.
Under cross-examination, DS Michaelson accepted that at the time he received the results of the iAsk request, he realised that the Appellant lived about 300-350 metres from where Ms Scarpino lived and from the café where the Appellant was seen by Mrs Scarpino. Although DS Michaelson accepted that this information was "certainly material" to the prosecution of the Appellant for the stalking charge, his evidence was that it was not the entirety of the information upon which he formed his suspicion that the Appellant had committed the offence.
At around 5.00pm on 22 October 2020, DS Michaelson attended the Westfield Security Office where Mr Faapoi supplied him with a USB containing the CCTV footage from 5 October 2020 that JP had reviewed and discussed with Ms Scarpino (see [27] above).

[7]

The search and arrest

On 22 October 2020, DS Michaelson, together with Detective Langerak, drove towards the Appellant's address. At about 6.40pm, DS Michaelson pulled his car over and arrested the Appellant whom he had spotted on the corner of Blue Street and Miller Street in North Sydney. Both DS Michaelson and Detective Langerak were in plain clothes. At the time that the Appellant was stopped on the street, DS Michaelson informed the Appellant that he would be activating his body worn camera.
After activating his camera, DS Michaelson informed the Appellant that he was under arrest for the offence of stalking and that he was "not obliged to say or do anything". Subsequently, DS Michaelson asked the Appellant to remove all items from his pockets and hand them to Detective Langerak. DS Michaelson thereafter conducted a "pat down" search of the Appellant. At the time the search was conducted, there were a number of pedestrians on the footpath as well as vehicles and bicycles on the road.
During the search, DS Michaelson informed the Appellant of the general nature of the allegations against him. In particular, DS Michaelson told the Appellant that the allegation of stalking pertained to a "young lady that works at the Zimmermann store". The Appellant accepted that he had been to Westfield and that he may have engaged with a woman about 21 years old who worked at Zimmermann, but that he was not sure. He stated that he did not know anyone who worked at Zimmermann by name.
The only police officer called to give evidence in the proceedings at first instance was DS Michaelson. He gave evidence that, immediately prior to arresting the Appellant, he believed that the Appellant had committed the offence of stalking on the basis of his review of the CCTV footage, the statements of Ms Scarpino, Mr Policastro and Mr Faapoi and the COPS entries.
DS Michaelson also gave evidence that he considered it was reasonably necessary to arrest the Appellant. In respect of his consideration of the alternatives to arrest, DS Michaelson's evidence was as follows: "Q. Did you consider whether there were any alternative courses of action which would be appropriate for you to take other than arrest? A. Indeed I did. There were two other options, one of which would have been a field court attendance notice and the second would have been a future service [CAN] which could have ridden alongside an application for an apprehended violence order. However, in my opinion, when taking the evidence as a whole, it wasn't appropriate in the circumstance beyond - Q. Why was that? A. It wasn't appropriate in the circumstance[s] and there was no other option … apart from arresting Mr Reeves. The reason that I formed that view is that in 14 years as a police officer of which I spent 11 as a detective, 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 cause me great concern. In my opinion, it may have been an indication of a forerunner to more serious offending, which I have seen in the past. Stranger-related stalking can and quite often does forerun more serious and violent offences of which I've had to investigate, including both homicides and attempted homicides."
When DS Michaelson was cross-examined as to why he had formed the belief that the risks he identified would be better mitigated by arresting and charging the Appellant than by issuing an APVO, DS Michaelson offered the following explanation: "A. Yes, of course, because there were bail conditions added in compliance -which - sorry, I'll rephrase that. There were bail conditions added which aligned with the AVO, which allayed my fears for risk mitigation. Q. So, the bail conditions, you would agree, mirrored the terms of the provisional apprehended violence order? A. Of course. Q. So, there was no additional work for the bail conditions to do, I would suggest, if you had a provisional apprehended violence order issued? A. No, that's not correct." Mr Sexton made the point in argument that at the time of the arrest, it would not have been self-evident that an APVO would be issued.
DS Michaelson also gave evidence that he understood that arrest was "an option of last resort" and accepted that he could have served a future CAN and an APVO on the Appellant without arresting him but that he did not think it was "appropriate in the circumstances". DS Michaelson's evidence was that arresting the Appellant: "…commenced judicial proceedings for an offence. There was the need to protect the witness. The nature of the offending was such that it needed to - arrest was the only resort in my view, and the only way in which to manage the risk …"
When it was put to DS Michaelson that the evidence supported what was described as the Appellant's intention to be "friendly", and not to instil fear in Ms Scarpino, DS Michaelson's evidence was that while there was some evidence to support that this was the Appellant's intention, there was "other evidence which points the other way as well."
Following the pat down search, DS Michaelson informed the Appellant of what would take place upon his arrival at the nearest police station, including that DS Michaelson would "explain further the allegations". The Appellant was also told that he would be taken to the nearest police station in the back of the police car and for that reason, would need to be handcuffed.
DS Michaelson determined that the nearest police station was Chatswood Police Station and explained to the Appellant the process by which he would be transported to that police station in the back of the police vehicle. The following exchange between the Appellant and DS Michaelson is captured on the body worn camera footage: "Reeves: Are you going to handcuff me now? DS Michaelson: No no we'll go over … police uh car. I don't want to embarrass you any more than I have to, OK."
At around 6.46pm, DS Michaelson commenced driving the police vehicle to Chatswood Police Station with Detective Langerak and the Appellant in the back seat of the vehicle.

[9]

Police Interview

At 8.08pm, the Appellant was moved to the "ERISP room" or "interview room". At 8.10pm, DS Michaelson and Detective Langerak commenced conducting an interview with the Appellant. At the outset of the interview, DS Michaelson informed the Appellant that he was "not obliged to say or do anything". After answering some preliminary questions, the Appellant informed police that he did not "want to answer any more questions" after which point the following interaction occurred: "Q21 That's OK. That's your prerogative, OK. Um, so, we're here today, um, regarding an allegation of stalking, OK. And what I'd like to do is, I'd like to outline who it relates to. I'm going to have to show you a photograph, OK. And I'd like to get your side of, wuh, what's alleged to have occurred. Because, I only have one side at the moment provided to me. And I'd like to hear what you have to say on the matter, OK. So you --- A Uh, I wish to remain silent. Q22 That's you prerogative. A I do not, yes, and I do not wish to participate in this interview. Q23 That's fine, Sir. As, uh, police, cah, have a common … law right to ask to ask questions when … conducting … an investigation. So, as I've explained, and a Custody Manager has --- A Uh-huh. Q24 ---explained as well, you are, in, not obliged to say or do anything, OK. But, I am gunna ask you a number of questions. Because, that's my job, and I would be lacking in it if I did not. OK…" From this point forward, the Appellant did not offer any substantial replies to questions asked by DS Michaelson and the interview formally concluded at 8.30pm, with DS Michaelson completing his questioning at 8.26-8.27pm.
DS Michaelson's evidence as to why he persisted with the interview after the Appellant had indicated that he did not wish to participate was that he "wanted to ensure that he [the Appellant] was aware of the allegation, and the breadth of it." DS Michaelson also gave evidence that he believed he had a "common law right to ask questions", although he could not recall the source of that common law right. He rejected the suggestion that keeping the Appellant in the interview room was a "futile exercise".

[10]

Events following the interview

Between 8.38pm and 8.42pm, the Appellant again spoke with his lawyer. At 8.44pm, a forensic procedure was commenced which was completed at about 8.50pm.
At 8.41pm, DS Michaelson texted SC Abda the following, obviously referring to the interview: "No commented [sic.] the ERISP All I got out of him was he was British"
At 8.58pm, SC Abda texted DS Michaelson asking whether there was "[a]nything in the other event?" DS Michaelson gave evidence under cross-examination that he interpreted SC Abda as referring to Mrs Scarpino's sighting of the Appellant in McMahons Point on 19 October. DS Michaelson replied at 9.02pm: "It was him but he lives in that immediate area."
DS Michaelson commenced the charge process at 9.08pm by creating the CAN. His evidence was that the Facts Sheet would have been authored "shortly after" that. Although it was put to DS Michaelson under cross-examination that the process of creating the CAN and Facts Sheet should only have taken a few minutes, DS Michaelson's evidence was that this process "quite possibly" would have required more than 10 minutes. The Appellant's Custody Management Record recorded that the "charge process" commenced at 9.09pm and concluded at 10.58pm.
The CAN listed the "Officer in Charge" as SC Abda. It also stipulated that the date range for the alleged offending behaviour was between 4.00pm on 21 September 2020 and 11 October 2020. In other words, the CAN did not include the fact that Mrs Scarpino and Mr Dyson had sighted the Appellant on 19 October as being within the date range for the offending behaviour.
The Facts Sheet replicated the COPS narrative entered by SC Abda at 1.39am on 22 October 2020 (see [38] above). It also included the following five paragraphs which were based on the matters included in the COPS narrative by SC Abda set out at [39] above: "At 6.40pm on … 22 October 2020 Police approached and arrested the accused as he was walking on the footpath near the corner of Miller and Blue Streets, North Sydney. He was cautioned and was asked about his attendance at the Zimmerman [sic.] store and the victim, he gave vague answers. The accused was conveyed to Chatswood Police Station and introduced to the custody manager who red [sic.] his rights under part 9 of [the] Law Enforcement (Power[s] and Responsibilities) Act 2002. The accused participated in an interview R 0664897 where he refused to make comment upon the allegations. The accused's action caused the victim to fear for her safety and the safety of her family. The accused is now charged with the matters before the court."
DS Michaelson accepted under cross-examination that "the bulk" of the information contained in the Facts Sheet had been drawn from SC Abda's COPS entry made on 22 October 2020 at 1.39am.
DS Michaelson also gave evidence under cross-examination that, after creating the Facts Sheet, he would have sent it together with the CAN to Acting Sergeant Vickery to determine the question of bail and that he would have done so "electronically" and "as soon as reasonably practicable" after completing those documents.
The State submitted that the completion of the Facts Sheet and CAN was at about 9.50pm. In support of this submission, the State pointed to a COPS entry made by DS Michaelson at 9.51pm which, by way of an automated process, constituted an application to the Local Court for an interim APVO. The COPS entry replicated the information contained under the heading "Full Facts" on the Facts Sheet as "Grounds of the Application" for an APVO. The following was also included: "FEARS HELD BY VICTIM: The victim holds significant concerns by this behaviour. The accused's continuous approach of her and loiering [sic.] outside her 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 [sic] 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 her on public transport."
The Appellant's submission was that, although DS Michaelson did not "know the exact time" it took him to complete the CAN and Facts Sheet and send them to Acting Sergeant Vickery, it must have been by 9.30pm on the basis that DS Michaelson had accepted that "comparative to normal", it was a "fairly simple and quick process" to generate the Facts Sheet and CAN because he had "simply added in the second, third and fourth paragraphs" of the five paragraphs set out at [66] above. The Appellant argued that on this basis it could not be properly concluded that the process of generating the Facts Sheet and CAN took 42 minutes (from 9.08pm-9.50pm), particularly in circumstances where the electronic record as to the timing of the provision of these documents by DS Michaelson to Acting Sergeant Vickery was not in evidence.
At 10.10pm, DS Michaelson sent SC Abda a text indicating he was "Waiting for PVO". This was in reply to a text from SC Abda at 9.24pm which read: "Heading back soon?" The APVO was in fact issued at 10.10pm by David Piper, a Local Court Registrar.
DS Michaelson agreed that there was a period of time where the Appellant remained in custody after the CAN and Facts Sheet had been completed and when the APVO was issued. DS Michaelson accepted that ss 114-116 of LEPRA (see [93] below) do not authorise the detention of a person pending the issuing of an APVO but indicated that whether the Appellant was granted bail or released, was "a matter … entirely for the custody manager". The Custody Manager was Acting Sergeant Vickery.
At 10.50pm, Acting Sergeant Vickery signed off the Appellant's bail conditions and the Appellant was released on bail shortly after 11.00pm. It was not disputed at first instance, nor on appeal, that the Appellant's bail conditions mirrored the proscriptions contained in the APVO. Nonetheless, as set out at [64] above, the Appellant's Custody Management Record notes that the "charge process" was completed at 10.58pm. Another entry, also on the Appellant's Custody Management Record, noted that the Appellant was supplied with all charge and bail paperwork at 10.58pm.
It was the Appellant's submission that the charge process must have been completed before the Appellant was granted bail because the Bail Act 2013 (NSW) (Bail Act) is not engaged until a person has been charged. That argument is dealt with later in these reasons.
Acting Sergeant Vickery was also managing an additional two people in custody at Chatswood Police Station at the same time as the Appellant was in custody. Custody Management Records indicate that at 8.43pm, a 16 year old offender arrived at the station. Acting Sergeant Vickery read him his rights pursuant to Pt 9 of LEPRA and conducted a vulnerability assessment and inspection at 8.45pm. At 8.59pm, a 17 year old offender arrived at Chatswood Police Station. Acting Sergeant Vickery read that young person their rights at 9.00pm and, at the same time, conducted a vulnerability assessment and inspection.
At 9.20pm and 9.23pm respectively, Acting Sergeant Vickery conducted an additional inspection of the 16 year old and 17 year old offenders. At 9.32pm, he referred the 17 year old offender to Youth Legal Services and at 9.40pm, provided the 17 year old offender with dinner. Custody Management Records then indicate that Acting Sergeant Vickery commenced the charge process in relation to the 17 year old offender at 9.50pm and also at 9.50pm, conducted an inspection of the 16 year old offender. The charge process in relation to the 16 year old offender commenced at 9.56pm. Additional inspections of the 17 year old offender took place at 10.00pm and 10.30pm while inspections of the 16 year old offender occurred at 10.30pm and 11.00pm.
The Appellant submitted that limited reliance could be placed on the Custody Management Records in relation to the other two accused persons detained at Chatswood Police Station in light of "difficulties" with Acting Sergeant Vickery's record keeping and on the basis that those records were adduced after DS Michaelson had given evidence, with the consequence that their accuracy had not been attested to by any witness. That argument is dealt with in relation to grounds 8 and 9 of the appeal.
The Appellant was released at 11.01pm, shortly after being supplied with all charge and bail paperwork at 10.58pm.

[11]

Events following the Appellants' release

At 6.08am on 23 October 2020, DS Michaelson created a "situation report" which replicated much of what was set out in the Facts Sheet. He accepted that, in that report, he had referred to the Appellant sitting near Ms Scarpino, Ms Tickle and Mr Policastro on the train, but he could not recall where he had obtained that information. DS Michaelson also accepted that he had referred to the Appellant as "loitering" near Ms Scarpino's home in McMahons Point, consistent with the COPS narratives and Facts Sheet, but that he had not mentioned that the Appellant also resided in that area, and this was a matter that he should have included. DS Michaelson rejected the suggestion that the use of the word "loitering" was inapposite in light of Mrs Scarpino's statement which described the Appellant walking through the area.
On 29 January 2021, the Appellant's lawyer made representations to SC Abda inviting the withdrawal of the charges against the Appellant. Those representations were considered internally between 4 March and 23 April 2021.
On 4 March 2021, SC Abda recommended by way of a document called a "Godfrey Report" that the proceedings should be continued. Under the heading, "COMMENTS", SC Abda wrote the following: "Police obtained a victim statement and a number of witness statements. Police also obtained [g]ood quality CCTV footage from Westfield. In the footage, the accused is seen approaching the victim. … The accused was arrested, and he was interviewed for this matter. He did not give police any explanation [for] his action[s] and encounter with the victim. Police spoke with the victim in relation to the representation and she stated that she wants the matter to continue for hearing. Police believe that the matter should continue and … be determined by the court."
Under the heading "Supervisor Sergeant", DS N. Apolony wrote the following: "I beleive [sic.] the accused 'knew that his conduct is likely to cause fear in another person'. After the contact in the food court in late September, 2020, the victim [ran] away from the accused and therefore he would have known his conduct is likely to cause fear in the victim. The victim is 21 years old, the accused was 56 years old, the accused lives and works in North Sydney. The accused had no reason to keep attending a women's clothing store in Westfield's Sydney other than to stalk the victim… On … 5 October the accused asked the victim personal questions about where she lived and studied which is highly inappropriate to a young girl 35 years younger than he. The victim had to change her travel route and lunch procedures to avoid the accused."
DS Michaelson could not recall any conversation with SC Abda about the withdrawal of the charges against the Appellant.

[12]

The Local Court proceedings

On 28 October 2020, the Appellant pleaded not guilty to the stalking charge.
On 17 May 2021, the Appellant appeared in the Local Court before Magistrate Barko in relation to the stalking charge. An application for a final APVO was also made.
Magistrate Barko dismissed the stalking charges on the following basis: "The essence of the prosecution case … against the defendant is the police allege that he was frequenting the vicinity of where the complainant worked or lived, and … following that complainant about." His Honour went on: "It would be apparent that the defendant would frequent from time to time these particular areas. He was lawfully entitled to do so. He was never given a banning notice, for example. He was never told by the complainant, until her boyfriend intervened, to effectively cease and desist. He's lawfully entitled to be on a train, particularly when he lives in [the] area where the train was going. He's lawfully entitled to go near a coffee shop that's in the vicinity of his home, where he's lived for 19 years … …I suppose the only evidence of any note was the defendant coming up to the complainant, pretending to be like a lion, like a tiger, and there was a conversation thereafter, and the complainant responded, spoke, and then avoided. I'm not satisfied beyond a reasonable doubt the defendant stalked the complainant. I'm not satisfied beyond a reasonable doubt that even if he did, he did so with the intention of causing her to fear physical or mental harm. It's not an element of the offence that she actually has to have fear of physical or mental harm, and there's no evidence of intimidation or otherwise and no charge laid in that regard…"
Nonetheless, Magistrate Barko acknowledged in his reasons for dismissing the charges that "there was always going to be a prima facie case".
Magistrate Barko also revoked the interim APVO and did not make a final APVO on the basis that his Honour was not satisfied "on the balance of probabilities that there are reasonable grounds for the complainant to hold whatever fears I accept she may genuinely have."
In respect of the Appellant's application for criminal costs, Magistrate Barko reasoned as follows: "I am satisfied, in all the given facts and circumstances, that the prosecution of the criminal proceedings - not the AVO proceedings, a different kettle of fish - the criminal proceeding was doomed to fail on the evidence that's before me, with no supplementary evidence produced, as I said, to somehow corroborate … the criminal intent of the defendant … I'm satisfied in those given circumstances that the proceedings, the criminal proceedings, were commenced without reasonable cause, and accordingly I am satisfied in the given circumstances, on the balance of probabilities, that the prosecution should pay to the registrar to be paid out to the defendant his professional costs, which I will now determine as just and reasonable, taking into account I would be against you on the costs application if it was just the standalone AVO."

[13]

Relevant legislation

Before turning to consider the primary judgment, extracts of the legislation relevant to the events in question should be set out.
Section 13 of the Domestic and Personal Violence Act provides the following: "13 Stalking or intimidation with intent to cause fear of physical or mental harm (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. …"
Section 99 of LEPRA provides the following: "99 Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if - (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons - (i) to stop the person committing or repeating the offence or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false, (iv) to ensure that the person appears before a court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested), (ix) because of the nature and seriousness of the offence. (2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant. (3) The arresting police officer or another police officer must, as soon as is reasonably practicable, take the person who has been arrested under this section before an authorised officer to be dealt with according to law. Note - A police officer may discontinue the arrest of a person at any time and without taking the arrested person before an authorised officer - see section 105. (4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part. …"
Sections 114-116 of LEPRA are as follows: "114 Detention after arrest for purposes of investigation (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. (3) If, while a person is so detained, the police officer forms a reasonable suspicion as to the person's involvement in the commission of any other offence, the police officer may also investigate the person's involvement in that other offence during the investigation period for the arrest. It is immaterial whether that other offence was committed before or after the commencement of this Part or within or outside the State. (4) The person must be - (a) released (whether unconditionally or on bail) within the investigation period, or (b) brought before an authorised officer or court within that period, or, if it is not practicable to do so within that period, as soon as practicable after the end of that period. (5) A requirement in another Part of this Act, the Bail Act 2013 or any other relevant law that a person who is under arrest be taken before a Magistrate or other authorised officer or court, without delay, or within a specified period, is affected by this Part only to the extent that the extension of the period within which the person is to be brought before such a Magistrate or officer or court is authorised by this Part. (6) If a person is arrested more than once within any period of 48 hours, the investigation period for each arrest, other than the first, is reduced by so much of any earlier investigation period or periods as occurred within that 48 hour period. (7) The investigation period for an arrest (the earlier arrest) is not to reduce the investigation period for a later arrest if the later arrest relates to an offence that the person is suspected of having committed after the person was released, or taken before a Magistrate or other authorised officer or court, in respect of the earlier arrest. 115 Investigation period (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. 116 Determining reasonable time (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 - (a) the person's age, physical capacity and condition and mental capacity and condition, (b) whether the presence of the person is necessary for the investigation, (c) the number, seriousness and complexity of the offences under investigation, (d) whether the person has indicated a willingness to make a statement or to answer any questions, (e) the time taken for police officers connected with the investigation (other than police officers whose particular knowledge of the investigation, or whose particular skills, are necessary to the investigation) to attend at the place where the person is being detained, (f) whether a police officer reasonably requires time to prepare for any questioning of the person, (g) the time required for facilities for conducting investigative procedures in which the person is to participate (other than facilities for complying with section 281 of the Criminal Procedure Act 1986) to become available, (h) the number and availability of other persons who need to be questioned or from whom statements need to be obtained, (i) the need to visit the place where any offence concerned is believed to have been committed or any other place reasonably connected with the investigation of any such offence, (j) the time during which the person is in the company of a police officer before and after the person is arrested (including any period during which the person was a protected suspect), (k) the time taken to complete any searches or other investigative procedures that are reasonably necessary to the investigation (including any search of the person or any other investigative procedure in which the person is to participate), (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."

[14]

The primary judgment

In respect of the lawfulness of the Appellant's arrest, the primary judge was satisfied that, pursuant to s 99(1)(a) of LEPRA, DS Michaelson honestly suspected on reasonable grounds that the Appellant had committed the offence of stalking: PJ [135]. His Honour also held that DS Michaelson was satisfied that it was reasonably necessary to arrest the Appellant on the basis of one or more of the reasons provided in s 99(1)(b) of the LEPRA: PJ [154]. The primary judge went on to hold that the Appellant's claim in battery, which was premised upon a finding that his arrest was unlawful, failed: PJ [157].
In relation to the Appellant's claim that, in conducting the post-arrest search there was a breach of s 32(4)(a) of LEPRA, which provides that police officers must conduct a search in a way that provides reasonable privacy, the primary judge held that it was not clear how a breach could arise when the arrest was lawful and that the bare fact that the search was conducted on a public street did not mean that the Appellant's privacy was breached: PJ [162].
The primary judge also held that, given his finding that the Appellant's arrest was lawful, the Appellant was unable to establish that all of his subsequent period of custody constituted false imprisonment: PJ [170]. However, his Honour went on to find that it was unreasonable for the police to have detained the Appellant in the interview room from 8.16pm (the point of time at which the Appellant had indicated that he did not wish to answer questions) until the conclusion of the interview at approximately 8.32pm: PJ [183]. The primary judge reasoned that, even though the police officers had the lawful authority to take the Appellant into custody, it did not follow that they could "put him where they liked for any purpose and for however long they wanted" such that, within this discrete period, the Appellant was falsely imprisoned: PJ [185]-[186].
Nonetheless, the primary judge held that "it was not unreasonable for the investigation period to extend to 10.50pm" when the bail conditions were acknowledged by Acting Sergeant Vickery and that "Some leeway was to be permitted to police officers in relation to the Appellant's release at 11.01pm": PJ [191]. As such, the primary judge rejected the Appellant's contention that he was falsely imprisoned from 9.40pm, the time at which the Appellant contended that DS Michaelson completed the charging process, until his release: PJ [192].
The Appellant's claim in malicious prosecution was rejected by the primary judge on the basis that neither DS Michaelson nor SC Abda, who his Honour found were prosecutors for the purposes of the tort (PJ [199]), were actuated by malice in instituting and maintaining the proceedings against the Appellant: PJ [204]-[206]. His Honour was also not persuaded that the Appellant had proven there was an absence of reasonable and proper cause in bringing the stalking charge: PJ [215].
The primary judge held that s 3B(1)(a) of the Civil Liability Act 2002 (NSW) (CLA) did not apply to exclude the application of s 43A of the same Act. First, his Honour held that "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" did not constitute an "injury" for the purposes of s 3B(1)(a): PJ [233]. Second, the primary judge held that DS Michaelson did not intend to injure Mr Reeves: PJ [240].
Nonetheless, the primary judge held that s 43A of the CLA was not engaged in a way that would affect the State's liability for false imprisonment on the basis that 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: PJ [249].
In relation to damages, the primary judge considered that an award of $5,000 appropriately took into account the "injured feelings" identified by the Appellant after he indicated that he did not wish to participate in the interview and his "justifiable indignation" that he was unlawfully detained in the interview room: Damages judgment at [31]. His Honour did not accept that there should be an additional award for either aggravated or exemplary damages: Damages judgment at [44], [57].
The Appellant was ordered to pay 50% of the State's costs of the proceeding: Reeves v State of New South Wales (No 3) [2023] NSWDC 243.

[15]

Grounds of Appeal and Notice of Cross Appeal

The Appellant relies on the following extensive Grounds of Appeal: "2. In determining the issue as to whether DS Michaelson suspected on reasonable grounds that the appellant had committed [an] offence [under s 13(1) of the Domestic and Personal Violence Act], the primary judge erred in treating as evidence a submission from counsel for the respondent that the complainant in the criminal proceeding against the appellant was away during the period 5 or 8 October 2020 to 19 October 2020. 3. The primary judge erred in failing to find that DS Michaelson did not properly engage in the process of comparison and evaluation of the alternatives to arrest called for by s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). 4. The decisions of this Court in State of NSW v Randall [2017] NSWCA 88 and AD v State of NSW [2023] NSWCA 115 concerning the operation of s 99(1)(b) of LEPRA are incorrect, with the consequence that the primary judge erred in applying the ratio of these decisions to the question as to whether … DS Michaelson had complied with s 99(1)(b) of LEPRA. 5. Alternatively, if the Court determines that the cases referred to in paragraph 4 above were not incorrectly decided, the primary judge erred in failing to find that DS Michaelson's state of satisfaction that the arrest of the appellant was reasonably necessary, for the reasons specified in ss 99(1)(b)(viii) and (ix) of LEPRA, was manifestly unreasonable, or arbitrary, capricious, irrational, or not bona fide. 6. The primary judge erred in accepting DS Michaelson's evidence that he believed that the appellant had been loitering around a café near the complainant's address on 19 October 2020. 7. The primary judge erred in finding that the time taken by DS Michaelson to apply for a provisional apprehended violence order (AVO), whilst the appellant was in police custody, fell within s 116(2)(l) of LEPRA, as being reasonably necessary for the proper conduct of the investigation as to whether the appellant had committed an offence under s 13 of the Crimes (Domestic and Personal Violence) Act. 8. The primary judge erred in not drawing an inference that the evidence of Acting Sergeant Vickery, if he had been called to give evidence at the trial, would not have assisted the respondent's case that the appellant's time in custody was lawfully justified by s 115 of LEPRA. 9. In circumstances where the respondent carried the onus of proving that the appellant's time in police custody was reasonable, the primary judge erred in finding that the failure to call evidence from Acting Sergeant Vickery was a neutral circumstance. 10. The primary judge erred in failing to find that the appellant's time in police custody, in addition to the time he spent in the interview room, was not lawfully justified. 11. The primary judge erred in finding that what was submitted by Sergeant Moore during the criminal proceeding in the Local Court could not be imputed to the state of mind of either DS Michaelson or Detective Senior Constable Bachar Abda (DSC Abda), who the primary judge found were prosecutors for the purpose of the tort of malicious prosecution. 12. The primary judge erred in finding that neither DS Michaelson nor DSC Abda were actuated by malice in instituting or maintaining the criminal proceeding against the appellant. [In written submissions, the Appellant confined this ground to DSC Abda.] 13. The primary judge erred in failing to deal with the appellant's argument that there was an absence of reasonable and probable cause for the said charge because any honest belief in the charge on the part of DS Michaelson or DSC Abda did not have an objectively sufficient basis. 14. The primary judge erred in failing to find that DS Michaelson intended to injure the appellant when he detained the appellant in the interview room. 15. The primary judge erred in failing to award aggravated damages for the appellant's false imprisonment constituted by the time he spent in the interview room. 16. The primary judge erred in finding that the respondent's defence of the claim for false imprisonment, constituted by the appellant being detained in the interview room, was reasonably arguable. 17. The primary judge erred in failing to award exemplary damages for the appellant's false imprisonment constituted by the appellant being detained in the interview room. 18. The primary judge erred in finding that DS Michaelson acted on the misconceived basis that he had the right to question an arrested person over the arrested person's objection to participate in an interview. 19. The primary judge erred in finding that there was nothing contumelious or high-handed about the conduct of DS Michaelson in detaining the appellant in the interview room. 20. The primary judge's discretion in ordering that the appellant pay 50% of the respondent's costs of the proceedings, as agreed or assessed, miscarried because the primary judge failed to take into account all of the issues unsuccessfully litigated by the respondent at trial, and the time taken to argue those issues. 21. The primary judge's finding that the appellant should pay 50% of the respondent's costs of the proceedings was unreasonable or plainly unjust, such that this Court should infer that the primary judge failed to properly exercise his discretion in relation to costs."
The State's Notice of Cross Appeal raises the following grounds: "1. The primary judge erred in finding that the appellant was falsely imprisoned during the period from 8.16pm to 8.32pm. 2. The primary judge erred in finding that the period during which the appellant was questioned between 8.16pm and 8.32pm prolonged the time in which the appellant was detained in lawful custody by 16 minutes."

[17]

Ground 4

By ground 4 of the appeal, the Appellant contends that the decisions of Basten JA in State of New South Wales v Randall [2017] NSWCA 88 (Randall) and AD v State of New South Wales [2023] NSWCA 115 (AD) concerning the operation of s 99(1)(b) of LEPRA were wrongly decided, with the consequence that the primary judge erred in holding that DS Michaelson had complied with s 99(1)(b). Section 99 is set out at [92] above.
In Randall, Basten JA held that s 99(1) of LEPRA: "…has two elements, namely the suspicion held by the arresting officer and, secondly, there being 'reasonable grounds' for the suspicion. Most challenges to the validity of arrests turn on whether or not there were reasonable grounds for the suspicion, the grounds being a matter for assessment by the court. By contrast, both the first limb and the second requirement involve a precondition to the exercise of the power of arrest which depends, not upon objectively verifiable circumstances, but on the state of satisfaction of the officer. Accordingly, unlike the requirement for reasonable grounds, a challenge to the existence of a suspicion or state of satisfaction will only be available where it can be shown that the suspicion or state of satisfaction was manifestly unreasonable, or 'arbitrary, capricious, irrational, or not bona fide', as explained by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [(1999) 197 CLR 611; [1999] HCA 21 at [131]-[137]]." (Footnotes omitted; emphasis added.)
McDougall J, with whom Sackville AJA agreed (at [79]), refused leave to appeal, despite finding that the primary judge had erred in his Honour's application of s 99 of LEPRA. This was because, firstly, correction of those errors would have required a new trial at great cost, secondly, the principles associated with s 99 of LEPRA were "well-established" and the importance of them was vindicated by emphasising the failure of the primary judge to deal with them and, thirdly, the State's complaints on appeal were largely a product of the way in which it put its case at trial such that the grant of leave would permit it to argue a case that was not open before the primary judge: at [138]-[142].
In AD, the Applicant sought leave to appeal from a decision dismissing her three causes of action, namely false imprisonment, trespass and misfeasance in public office. In relation to the arresting officer's state of satisfaction pursuant to s 99(1)(b) of LEPRA, the primary judge had held that the decision to arrest could only be impugned on the basis of "Wednesbury unreasonableness" and dismissed any suggestion that the availability of review on this basis had been disapproved of in Jankovic v Director of Public Prosecutions [2020] NSWCA 31; (2020) 281 A Crim R 357 (Jankovic).
On appeal, albeit without reference to Jankovic, the Applicant argued that the primary judge had erred in applying the concept of "Wednesbury unreasonableness" to s 99(1)(b). In dismissing those arguments, at [25]-[28], Basten JA, with whom Meagher JA agreed (at [1]), held in respect of s 99(1)(b) of LEPRA that: "It is convenient to return to the grounds on which a state of satisfaction may be challenged. There was criticism of the judge's statement that the arresting officer's decision could 'only be impugned on the basis of the principle often referred to as 'Wednesbury Unreasonablenes' [sic.]'. The judge found support for that proposition in the reasons of McColl JA in Hyder v Commonwealth of Australia [[2012] NSWCA 336; (2012) 217 A Crim R 571 at [15]]. McColl JA stated that the decision 'whether or not to arrest and ... the lawfulness of the way in which the discretion was exercised in a particular case could not be questioned in any court of law except upon the principles Lord Greene MR enunciated in [Wednesbury] … applied in Zaravinos v State of New South Wales'. There are risks in relying upon English cases and cases under Commonwealth law in addressing the terms of a State statute, without identifying points of similarity or difference. However, the approach in Hyder was subsequently adopted in relation to s 99 by this Court in State of New South Wales v Randall… '13 … Most challenges to the validity of arrests turn on whether or not there were reasonable grounds for the suspicion, the grounds being a matter for assessment by the court. By contrast, both the first limb and the second requirement involve a precondition to the exercise of the power of arrest which depends, not upon objectively verifiable circumstances, but on the state of satisfaction of the officer. Accordingly, unlike the requirement for reasonable grounds, a challenge to the existence of a suspicion or state of satisfaction will only be available where it can be shown that the suspicion or state of satisfaction was manifestly unreasonable, or 'arbitrary, capricious, irrational, or not bona fide', as explained by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu.' The Court in Randall was divided as to whether the State should be granted leave to appeal, but not as to the principles to be applied to the substantive question. The basis of the challenge must turn on proof that the decision-maker has committed legally reviewable error in forming the requisite state of satisfaction. While the wholehearted endorsement of the arresting officer's views need not be accepted, the applicant has not established either that he did not hold the state of satisfaction as to reasonable necessity of the course taken, as he asserted in his evidence, or that such a state of satisfaction was manifestly unreasonable, or arbitrary or capricious in the sense identified in the authorities." (Footnotes omitted.) Griffiths AJA also held that there was no appellable error in the primary judge's conclusions as to the arresting officer's state of satisfaction under s 99(1)(b) of LEPRA: at [115]-[125].
In Jankovic at [7], White JA encapsulated the point that Basten JA had made in Randall as follows: "If a police officer is satisfied that an arrest is reasonably necessary for one of the stated purposes, the arrest is not unlawful merely because the police officer's satisfaction of that matter is not reasonable. The question rather is as to the police officer's state of mind as to whether the arrest is reasonably necessary for one of the stated purposes."
His Honour had pointed out at [6] of his judgment that: "Prior to its amendment in 2013, s 99 of the LEPRA provided that a police officer must not arrest a person without warrant for the purpose of taking proceedings for an offence against the person, unless the police officer suspected on reasonable grounds that it was necessary to arrest the person to achieve one or more of the specified purposes in s 99(3). Amendments made in 2013 changed the requirement that the police officer have reasonable grounds for suspecting that the arrest was necessary for one or more of the specified purposes, to a requirement that the police officer be satisfied that the arrest was reasonably necessary for one or more of the specified purposes. The element that the police officer's suspicion be reasonable was removed. The element that the police officer be satisfied that the arrest was necessary was diluted (State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334 at [42]-[43])."
It was put by the Appellant in the present case that Basten AJA in AD was incorrect to say (at [26]) that "the approach in Hyder was subsequently adopted in relation to s 99 by this Court in [Randall]" because neither McDougall J nor Sackville AJA had expressly approved of the statement of principle offered by Basten JA in Randall at [13]. However, as set out at [110] above, both McDougall J and Sackville AJA held that the principles in relation to s 99 of LEPRA were well-settled and did not raise an issue warranting the grant of leave to appeal: Randall at [74], [140]. Contrary to ground 4, I do not consider that either Randall or AD were incorrectly decided. The interpretation afforded to s 99(1) of LEPRA by Basten JA is consistent not only with the language of the statute but the deliberate legislative change in 2013 referred to by White JA in Jankovic.
The Appellant sought to generate a conflict between the decision of Barrett AJA in Jankovic and Basten JA in Randall and AD but I do not think that any conflict arises and, even if it did, the interpretation of s 99(1) given by Basten JA should be preferred. Barrett AJA's decision was focused on whether reasonable necessity required an arresting police officer to consider alternatives to arrest. His Honour referred to considerations of proportionality by reference to the decision of Kiefel J in Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2 (Wotton) in order to suggest that something more akin to an objective rather than subjective inquiry was to be made in relation to whether the arresting officer held the requisite state of satisfaction. To the extent that Barrett AJA's observations were derived from the reasons of Kiefel J in Wotton, it should be noted that her Honour wrote separately in that case and was considering a different statutory regime from s 99(1) of LEPRA, namely s 200(2) of the Corrective Services Act 2006 (Qld) which provided that the Parole Board could grant a parole order containing conditions that, pursuant to s 200(3) of the same Act, it "reasonably considers necessary" to "ensure [a] prisoner's good conduct" or "stop [a] prisoner committing an offence". That provision, unlike s 99(1)(b) of LEPRA, involved no element of subjectivity.
It was put that this Court should prefer the reasoning of Barrett AJA on two bases. First, it was argued that the principle of legality which, as established in North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 at [11] applies to the interpretation of arrest powers, necessitates that a construction of s 99(1)(b) be adopted which avoids or minimises encroachment upon fundamental rights and freedoms. The Appellant contended that Barrett AJA's interpretation of s 99(1)(b) in Jankovic, by introducing an objective component, encroached less on the right to liberty than the construction adopted by Basten JA in Randall and AD.
However, the principle of legality, important thought it undoubtedly is, only provides that where a piece of legislation is susceptible of two or more meanings, in the absence of "unmistakable and unambiguous language", it will not be construed to interfere with fundamental common law rights, freedoms, immunities or principles: Coco v The Queen (1994) 179 CLR 427 at 437, 446; [1994] HCA 15. The principle of legality is not a means by which a requirement of objective reasonableness may be implied into the terms of an otherwise unambiguous statutory provision.
Secondly, the Appellant submitted that the approach in Jankovic was consistent with that taken by Ierace J in Director of Public Prosecutions (NSW) v Greenhalgh [2022] NSWSC 980 at [186] in relation to s 230 of LEPRA which provides that "it is lawful for a police officer exercising a function under this Act or any other Act or law … to use such force as is reasonably necessary to exercise the function". His Honour held that a use of force is "reasonably necessary" where "a reasonable person in the position of the police officer would not consider the use of force … to be disproportionate to the risk or danger sought to be prevented": at [186]. The Appellant argued that there was no meaningful difference between the use of the term "reasonably necessary" in s 230 and in s 99(1)(b). That submission should be rejected. As the State pointed out, s 99(1)(b) can be distinguished from s 230 of LEPRA on the basis that s 230 has no subjective element and, instead, in terms only involves an assessment as to what was reasonably necessary at the time a police officer used force in exercising a function.
In support of its submission there was no tension between the reasons of Barrett AJA in Jankovic and Basten JA in Randall and AD, the State also pointed to the fact that any such tension was not addressed by Barrett AJA in Jankovic in circumstances where White JA referred to the decision in Randall in his Honour's separate reasons, nor was it discussed by Basten JA in AD in circumstances where, as set out above, the primary judge had rejected an argument that the test in Randall was incorrect in light of Barrett AJA's decision in Jankovic.
In any event, the State submitted that the reasoning of Basten JA in Randall and AD was correct and that there was no reason to depart from it. It was put that the Appellant did not demonstrate that Randall was "plainly" or "clearly wrong" or that there were compelling discretionary reasons that it should not be followed: Hill v Zuda (2022) 275 CLR 24; [2022] HCA 21 at [25]. I agree.
Ground 4 of the appeal should be rejected for the foregoing reasons. Ground 3 of the appeal, which was contingent on the Court concluding that Randall and AD were incorrectly decided, should, consequently, also be rejected.

[20]

Cross Appeal and Grounds 14 - 19

The two grounds of the Cross Appeal have been set out at [104] above.
The first ground of the Cross Appeal raises the question as to whether the Appellant who was otherwise lawfully detained became "falsely imprisoned" in the interview room after he had made it clear that he did not wish to answer any further questions. The interview continued for some 12 minutes after that point, and it was with respect to this 12 minute period (or 16 minute period as was held by the primary judge) that damages of $5,000 were awarded by the primary judge.
Because of the quantum of the damages awarded, leave to cross appeal is required. The State submitted, and I accept, that a novel question of public importance arises which warrants the grant of leave to cross appeal, namely whether police are obliged, once a person arrested declines to answer any questions, from continuing to ask questions, even in a courteous manner, so that any further questioning converts lawful custody into unlawful, false imprisonment. It was submitted that, if the decision below stands, it would have significant consequences for the investigation of crime in this State.
Sections 114(1) and (2) of LEPRA authorise a police officer to detain a person, who is under arrest, for the purpose of investigating whether the person committed the offence for which the person has been arrested, for the investigation period provided for by s 115. Section 115 provides that 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" (emphasis added) which, for relevant purposes, is 6 hours. Section 116 (set out in full at [93] above) sets out how reasonable time is to be determined and requires that "all the relevant circumstances of the particular case must be taken into account." One of the relevant circumstances is whether the person under arrest "has indicated a willingness to … answer any questions": s 116(2)(d).
The Appellant's case, upheld in this limited respect by the primary judge, was that what the primary judge referred to as the 16 minutes during which the Appellant continued to be asked questions in the interview room (in actual fact it was only 12 minutes) prolonged his detention and was unlawful. As the State correctly submitted, the finding of false imprisonment was not based on the physical characteristics of the interview room but only on the circumstance that the Appellant was questioned despite indicating that he did not wish to participate in the interview.
At PJ [185], the primary judge held that: "…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."
Whilst there are cases where a person otherwise lawfully in custody or otherwise detained have been held to be falsely imprisoned, these have turned upon an analysis and application of the relevant statute or authority pursuant to which that person has been detained. An example is where there has been lawful authority to detain a person in a particular location (for example, a hospital) but that person has been detained elsewhere (for example, a prison): State of New South Wales v TD (2013) 83 NSWLR 566; [2013] NSWCA 32.
On the facts of the current case, the Appellant had been lawfully arrested, and also lawfully taken to the interview room. It was open to the police to ask him questions, as they did, in relation to the serious complaint that had been made about him as part of their investigation. For the short period after he declined to answer questions, the Appellant would only have been unlawfully detained if the "investigation period", within the meaning of the Act, had in all the circumstances become unreasonable or exceeded 6 hours. That could not have been the case if DS Michaelson's continuing interaction with the Appellant could fairly be characterised as part of the investigation.
Focussing upon what occurred in that short period of time, most was spent not in the asking of further questions of the Appellant but in reading him Ms Scarpino's statement so as to apprise him of the complaints made against him in relation to which he was arrested. The interview concluded with DS Michaelson saying to the Appellant: "I'd like to just state if you do wish to partake in the interview regarding these allegations at a later stage, please feel free to, um, let me know. At which point I would be more than happy to, uh, ah, go at this process again with you."
This was said, and the entire interview was conducted, courteously. DS Michaelson's concluding statement anticipated the possibility that the Appellant might, on reflection, revisit his decision not to answer questions, once apprised of the allegations made against him. This was a reasonable approach for the officer to take and, in my view, was a legitimate step in the investigation and a permissible use of the investigation period.
The "investigation period" within the meaning of LEPRA had not come to an end and the 16 (or 12) minute period did not, in my opinion, entail any unlawful conduct so as to found a cause of action in false imprisonment. I accept the State's submission that it would be extraordinary if the investigation of criminal activity generally by questioning a person who might be able to assist police could be immediately and finally concluded simply by the person demanding that questions not be asked.
Further, it was not submitted that the investigation period became unreasonable (and thus ended) once the Appellant was returned to the holding cell prior to his being charged later that evening. The Appellant was lawfully detained at the police station which, pursuant to reg 17 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) was the preferred place for detention of a person in custody.
The logic of the primary judge's finding (which, with respect, I do not accept) was that, whilst lawfully detained at the police station, the Appellant was falsely imprisoned in the interview room for a 16 minute period whilst DS Michaelson continued his investigation. Ground 1 of the Cross Appeal should be upheld.
The second ground of the Cross Appeal (which it is not strictly necessary to answer) involves a question of causation, namely whether, had the Appellant had been returned to the holding cell after he had indicated he did not wish to be further interviewed, would he in fact have been released, following being charged and bailed, 16 (or, in my assessment, 12) minutes earlier than he in fact was? The second ground of the Cross Appeal challenges the primary judge's implicit conclusion that the Appellant would have been so released. If that were not established, there would be no relevant loss for which he was entitled to be compensated.
Mr Hooke submitted that the Appellant would have been released 16 (or 12) minutes earlier on what was effectively a linear argument to the effect that the timeline of the Appellant's charging and bail application would simply have been advanced. The matter is, however, rather more complicated and nuanced than that.
The complexity arises from the fact that Acting Sergeant Vickery was dealing with two other charge matters on the evening in question, both of which related to juvenile offenders, which needed to be dealt with. As the State submitted, Acting Sergeant Vickery was required to determine conditions of bail, and, although he had the information to do so at least by the time DS Michaelson made the APVO application at 9.51pm and, on the Appellant's submission, by 9.24pm, he was not able to ultimately complete that task until 10.50pm due to the interceding events concerning two other persons in custody. The State submitted that the Court should find that, even if Acting Sergeant Vickey had the paperwork to permit him to determine bail 12 (or 16) minutes earlier, the bail conditions probably still would have been determined at approximately 10.50pm.
In the course of argument, a question of onus of proof arose on the question of causation, with Mr Hooke submitting that it was for the State to establish that the timeline would not have relevantly been any different to what it ultimately was, even if the interview had been terminated 16 (or 12) minutes earlier than it in fact was. I disagree. On this question, the Appellant bore the onus of proof and, in circumstances where Acting Sergeant Vickery was dealing with two other custody matters, the Appellant's submission that, on the balance of probabilities, the determination of the Appellant's bail conditions and release would have been determined 16 (or 12) minutes earlier than they were was speculative.
The upholding of the Cross Appeal means that appeal grounds 14-17 and 19 to the effect that the primary judge erred in failing to award aggravated and/or exemplary damages for the Appellant's false imprisonment constituted by the time he spent in the interview room do not arise. Something further should, however, be said in relation to ground 19.
Ground 19 was that the primary judge erred in finding that there was nothing contumelious or high-handed about the conduct of DS Michaelson interviewing the Appellant in the interview room. The "detention" of the Appellant in the interview room, after he had indicated that he did not wish to answer any further questions, was only for a relatively brief period, and the questioning was polite and not hectoring or aggressive.
DS Michaelson also made it plain to the Appellant, when continuing to question him, that he was "not obliged to say anything or do anything." He went on to say that he was going to ask him a number of questions "because that's my job". When the Appellant still indicated that he did not wish to participate in the interview, DS Michaelson responded politely: "No problem, sir. I understand that." In point of fact, most of the time thereafter in the interview room, as set out at [140] above, was occupied not in questioning the Appellant but in reading out to him Ms Scarpino's statement so that the Appellant was apprised of the allegations against him.
Relevant to this ground of appeal are the following exchanges between Acting Sergeant Vickery (who entered the interview room at 8.28pm) and the Appellant: "DETECTIVE LANGERAK So, 8.28pm, Constable Langerak leaving the room. DETECTIVE VICKERY Q44 Um, Detective Vickery has entered the room. Benjamin, uh, as you know, my name's, uh, Adam Vickery. I'm a Custody Manager here tonight. Um, I'm a senior police officer not connected with the investigation in which you have been interviewed. Do you understand that? A I do. Q45 Have you taken part in this interview of your own free will? A Yes. Q46 Has any promise been made, was any promise made to you to make you take part in this interview? A No. Q47 Was any threat made to you to take part in this interview? A No. Q48 Were you induced to take part in this interview? A No. Q49 Were you induced to take part in this interview? A That was the same question. Q50 [20:30] I know. A Yep, OK, no. Q51 Have you any complaints about the way in which you were interviewed? A No. Q52 Time is 8.30pm, and that concludes the interview. Just wait here, please. A OK. Q53 It's still going. DETECTIVE SENIOR CONSTABLE MICHAELSON Q54 Thanks, Sergeant. DSC Michaelson re-entering the room. DETECTIVE LANGERAK Constable Langerak re-entering the room. DETECTIVE SENIOR CONSTABLE MICHAELSON Q55 Uh, that concludes the recording, Sir. I'd like to just state if you do wish to partake in the interview regarding these allegations at a later stage, please feel free to, um, let me know. At which point I would be more than happy to, uh, ah, go at this process again with you. INTERVIEW CONCLUDED"
This part of the transcript of interview is inconsistent, in my view, with any case that the interview by DS Michaelson was high handed and contumelious.
Even had the Cross Appeal not been upheld, I would have dismissed the Appellant's ground 19.
Grounds, 20, and 21 also do not arise in light of my findings in respect of the Cross Appeal. The consequence of the upholding of the Cross Appeal and the dismissal of the appeal is that the Appellant must pay the State's costs not only of the appeal but also of the proceedings at first instance.
It is necessary now to return to the remaining grounds of the Notice of Appeal.

[21]

Ground 7

By ground 7, the Appellant contended that, from the time at which DS Michaelson submitted the CAN and Facts Sheet to Acting Sergeant Vickery for consideration, and at least from 10.10pm (the time at which DS Michaelson texted SC Abda stating he was "Waiting for PVO to be granted"), until 11.01pm when the Appellant was released from custody, the Appellant was being kept in custody pending the issuance of an APVO which, contrary to ss 114-116 of LEPRA, was not "reasonably necessary" for the proper conduct of the investigation.
The Appellant submitted that the objects of Pt 9 of LEPRA, within which ss 115 and 116 are contained, are stated as including "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": s 109(a). It was thus submitted that the term "investigation", as it is used in ss 115 and 116, should be understood as referring only to the investigation of "the person's involvement in the commission of an offence." The Appellant then argued that applying for an APVO and waiting for it to be considered are administrative acts carried out in furtherance of a civil remedy and could not be considered as "reasonably necessary" for the investigation into the Appellant's alleged involvement in the commission of an offence contrary to s 13(1) of the Domestic and Personal Violence Act.
The Respondent submitted that the time in which police are waiting for the Local Court to issue an APVO is within the ambit of the "investigation period" pursuant to ss 115 and 116 of LEPRA if it is reasonable for police to apply for an order prior to releasing a person.
In any event, the Respondent submitted that the APVO was in fact granted at 10.10pm but bail was not determined until 10.50pm. As such, it was put that the time the Appellant remained in custody after the submission of the CAN and Facts Sheet by DS Michaelson to Acting Sergeant Vickery was not associated with awaiting the issuance of an APVO but rather was attributable to the time taken by Acting Sergeant Vickery to make a determination in relation to the Appellant's bail.
While I would not be inclined to agree with the primary judge's observation at PJ [188] that "arguably time taken to obtain an AVO falls within s 116(2)(l) [of LEPRA] as being reasonably necessary for the conduct of the investigation", I would reject ground 7 of the appeal.
It is crucial to appreciate that, on the night in question, while the Appellant was in custody, a number of matters were happening simultaneously. The issue of an interim APVO was a matter for the Local Court and appears to have been dealt with in a 20 minute period. At the same time, but quite separately and at a different location, the "charge process" was ongoing insofar as the question of whether the Appellant would be granted bail, and thus be able to be released from custody, was to be determined. It was not clear on the evidence when the Appellant was in fact charged, although his Custody Management Record records that he was "supplied with all [charge] and bail paperwork" at 10.58pm.
The Appellant was correct to submit that, logically, the question of bail falls to be determined after a person has been charged. Such a submission is consistent with s 44(1) of the Bail Act which provides that: "A police officer must ensure that, as soon as reasonably practicable after a person in police custody is charged with an offence - (a) a bail decision is made for the offence by a police officer with power to make a bail decision, or the person is brought before a court or authorised justice to be dealt with according to law, and (b) the person is given the bail eligibility information." (Emphasis added.)
Even if the Appellant was charged prior to 10.58pm and, as contended by him at first instance, by 9.40pm, he could not have been unlawfully detained pending a bail determination at least provided that any bail decision was made "as soon as reasonably practicable" after the charge. The evidence recited at [75]-[76] above demonstrates that Acting Sergeant Vickery had multiple tasks to perform in the window of time between 9.40pm and 10.58pm in relation to two other offenders. The detailed documentary record in relation to Acting Sergeant Vickery's activities in that period does not support a case that the Appellant was detained in custody longer than was necessary.

[22]

Grounds 8 and 9

These grounds are linked. They both relate to the State's failure to call Acting Sergeant Vickery.
The primary judge dealt with the arguments that are reflected in these grounds of appeal as follows (at PJ [189]): "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: Ling v Pang [2023] NSWCA 112 per Kirk JA (Leeming JA and Mitchelmore JA agreeing) at [27]. 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."
His Honour's reasoning was, in my view, sound.
Not calling a witness who has prepared or authored documents to give evidence, that fact does not deprive otherwise admissible documentary evidence of forensic force or significance. That is particularly so where, as in the present case, the witness, many years later, is quite unlikely to have a distinct or indeed, any recollection of the creation of routine documents or the circumstances surrounding them.
The Appellant submitted that, if it were, indeed, the case that Acting Sergeant Vickery could not shed light on what he was doing when the Appellant was in his custody, then "there would have been no harm in the respondent calling Acting Sergeant Vickery to give this evidence." The decision whether to call a witness is a forensic one for a party involved in civil litigation. Limited inferences may or may not be drawn from the failure to call a witness, as explained by the primary judge and in many cases that have dealt with Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (Jones v Dunkel) including RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270.
The Appellant was also critical of the primary judge's statement at PJ [190] that Acting Sergeant Vickery was "occupied in inspections for other detainees" in the period between 10.10pm and 10.50pm, although this finding of fact was not challenged. This conclusion was substantiated by the Custody Management Records which had been prepared by Acting Sergeant Vickery and which have been referred to earlier in these reasons. Those records were admitted into evidence and did not require Acting Sergeant Vickery to be called. His non-appearance as a witness did not defeat their obvious evidentiary significance.
In any event, given the limited nature of the inferences that can be drawn in accordance with Jones v Dunkel, it is not clear and was not explained how these two grounds of appeal vitiate the primary judge's principal conclusions and his rejection of almost all of the Appellant's case.
Grounds 8 and 9 are rejected.

[24]

Ground 11

This ground of appeal arises in the context of an argument advanced at first instance that what was submitted by Sergeant Moore, as the ultimate prosecutor in the Local Court hearing before Magistrate Barko, as to the 35 year age gap between the Appellant and Ms Scarpino could in some way be imputed to the state of mind of DS Michaelson or SC Abda for the purposes of the claim in malicious prosecution. The submission made by Sergeant Moore before Magistrate Barko which appears to be the focus of this ground of appeal was as follows: "We say - the prosecution 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 coworkers at the time. Those are my submissions unless I can assist the court further."
The prosecutor's observation about the age difference was one made in a broader context, and was factually accurate. Even before one turns to the question of attribution, it was not explained in the Appellant's submissions how it could sustain a finding of malice. In point of fact, at first instance, counsel appearing for the Appellant eschewed any suggestion that the submission was made with malice.
The Respondent submitted that there is no basis for an inference to be drawn that DS Michaelson and SC Abda instructed Sergeant Moore to make a submission to the Local Court regarding the age gap between the Appellant and Ms Scarpino, nor was this allegation put to DS Michaelson. It was also argued that, even if the inference was drawn, it was not apparent how it would make any material difference to the findings on malice ultimately made by the primary judge, especially in circumstances where any challenge to the primary judge's findings as to malice in respect of DS Michaelson were abandoned.
At PJ [215], the primary judge held that: "…neither police officer [was] 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."
Nothing advanced in support of ground 11 provides any basis for disturbing these findings.

[25]

Ground 12

This ground challenges the finding of the primary judge at PJ [204]-[207] that SC Abda was not actuated by malice in instituting or maintaining the criminal proceedings against the Appellant. It was submitted by the Appellant that the proceedings were commenced "to mollify or appease the complainant and her mother, and to punish behaviour which the police officers considered 'highly inappropriate'".
In support of that submission, the Appellant pointed to the reference by SC Abda in the Godfrey Report (referred to at [81] above) to the fact that Ms Scarpino "want[ed] the matter to continue for hearing." The Appellant argued that Ms Scarpino's views should have been a "neutral factor" in the decision to commence and maintain the prosecution.
Moreover, it was put that it is possible to infer from SC Abda's comment in the Godfrey Report, in combination with the submission made by Sergeant Moore during the Local Court proceedings that Ms Scarpino was "a young 21 year old female", that the prosecution was initiated and maintained because SC Abda thought the Appellant's conduct was inappropriate in light of the age difference between the Appellant and Ms Scarpino. The Appellant, with reference to Jones v Dunkel, contended that this inference could be more readily drawn in circumstances where the State did not call SC Abda to give evidence, his failure give evidence was not explained and that evidence would have been able to directly address the question whether the prosecution was instituted or maintained for an improper purpose. Ultimately, the Appellant submitted that the primary judge's finding that SC Abda was not actuated by malice was contrary to the "compelling inference" to be drawn from the evidence.
At PJ [204]-[206], the primary judge held the following as to malice: "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. 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. 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 [Abda'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."
I agree with the State's submission that the Appellant did not identify any error in the primary judge's reasoning at PJ [204]-[206], nor was it explained how the comment of SC Abda in the Godfrey Report as to Ms Scarpino's desire that the matter proceed to hearing, taken in isolation from the remainder of the Godfrey Report, provided a basis for inferring that SC Abda was motivated by a purpose other than the proper invocation of the criminal law. Ms Scarpino's recorded desire that the matter proceed to hearing was scarcely surprising, and no inference of impropriety or malice should be drawn from SC Abda's recording of that fact. This is the more so in light of the Appellant's candid submission on appeal that "the appellant does not suggest that the views of the complainant were to be ignored".
The Appellant's submissions in this regard also fail to have regard to the whole of the body of material which the police had to sustain the making of the charges. Contrary to the Appellant's submissions, there was no compelling inference to be drawn from the evidence to support a finding of malice on the part of SC Abda: Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679.

[26]

Conclusion

For the foregoing reasons, the appeal must be dismissed and the Cross Appeal upheld.
Consequently, the judgment in favour of the Appellant at first instance in the sum of $5,000 and the costs orders made on 7 July 2023 should be set aside.
The proceedings should be dismissed and the Appellant must pay the costs of the appeal and the proceedings at first instance.
WHITE JA: I agree with the orders proposed by the Chief Justice. Subject to what follows, I also agree with his Honour's reasons.
Although I agree with the Chief Justice that ground 7 of the notice of appeal (see at [103]) should be dismissed, I prefer to state my own reasons in relation to that ground.
The appellant's submissions in relation to this ground are summarised by the Chief Justice at [158].
In relation to this contention, the primary judge had held: "[188] 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."
I share the Chief Justice's reservations (at [161]) about the correctness of the statement that, arguably, time taken to obtain an AVO falls within s 116(2)(l).
Mr Reeves was arrested at about 6.35pm and was released at 11.01pm. This was within the six hour maximum investigation period provided by s 115(2) of LEPRA.
The objects of Pt 9 are specified in s 109. Section 109 relevantly provides: "The objects of this Part are - (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 (b) to authorise the detention of a person who is under arrest for such a period despite any requirement imposed by law to bring the person before a Magistrate or other authorised officer or court without delay or within a specified period, and (c) to provide for the rights of a person so detained, and…"
Sections 114 and 115 give effect to the objects stated in s 109(a) and (b) by providing, relevantly, as follows: "114 Detention after arrest for purposes of investigation (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, or (b) brought before an authorised officer or court within that period, or, if it is not practicable to do so within that period, as soon as practicable after the end of that period. (5) A requirement in another Part of this Act, the Bail Act 2013 or any other relevant law that a person who is under arrest be taken before a Magistrate or other authorised officer or court, without delay, or within a specified period, is affected by this Part only to the extent that the extension of the period within which the person is to be brought before such a Magistrate or officer or court is authorised by this Part. ... 115 Investigation period (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."
Where the maximum investigation period is not exceeded, as it was not in this case, then the investigation period is a time that is reasonable having regard to all the circumstances (s 115(1)).
Section 116(1) provides: "(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."
Section 116(2) then provides a list of circumstances that, if relevant, are to be taken into account in determining what is a reasonable period for detention after arrest. Nine matters are specified, including: "(l) the time required to carry out any other activity that is reasonably necessary for the proper conduct of the investigation."
The investigation referred to in s 116(1)(l) would appear to be an investigation as to whether the person arrested committed the offence (s 114(2)). I doubt that time taken to obtain an AVO would fall within that paragraph. Nonetheless, the question is whether the time taken between the applicant's arrest and release in this case was more than was reasonable "having regard to all the circumstances".
I reject the appellant's submission that the person arrested can only be detained for such period as is required to investigate his or her involvement in the commission of an offence. That submission construes s 114(2) as a restriction on a police officer's power of detention after arrest. That construction is not correct.
At common law, a person could neither be arrested for the purpose of carrying out an investigation, nor, if lawfully arrested, detained for longer than was reasonably necessary to charge the person and bring him or her before a magistrate or justice of the peace. In Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88, Gibbs CJ said, in relation to provisions of the Justices Act 1959 (Tas) that required the person arresting another to take him or her, or cause him or her to be taken, before a justice without delay (or as soon as practicable): "These provisions are not inconsistent. They require the person making the arrest to bring the arrested person before a justice in as short a time as is reasonably practicable. That, in effect, is the same as the common law rule discussed in John Lewis & Co Ltd v Tims [1952] AC 676, esp at p 691. Many cases in Australia have established that there is no power to detain a citizen merely for the purpose of questioning him and that the desire to question an arrested person does not in itself justify a delay in bringing him before a justice: see Bales v Parmeter (1935) 35 SR (NSW) 182, at 188-189; Ex parte Evers; Re Leary (1945) 62 WN (NSW) 146; Drymalik v Feldman [1966] SASR 227 at 234; Reg v Banner [1970] VR 240 at 249; Reg v Stafford (1976) 13 SASR 392 at 400-401; Reg v Clune [1982] VR 1 at 10-11, 17-19; Reg v Larson and Lee [1984] VR 559 at 568-569. There is a decision of this Court to the same effect: Reg v Iorlano (1983) 151 CLR 678 at 680."
This statement of the law was approved by the High Court in Michaels v The Queen (1995) 184 CLR 117 at 124; [1995] HCA 8: "It is unlawful for a police officer to delay taking an arrested person before a justice in order to question the person or to make further inquiries relating to the offence for which the person has been arrested, or to some other offence."
It remains the position that a person cannot be arrested without warrant in order to help the police with their enquiries. The police officer must suspect on reasonable grounds that the person is committing or has committed an offence (s 99(1)(a)).
If that criterion for a lawful arrest is satisfied, then the arrest is lawful if the police officer is also satisfied of any of the matters in s 99(1)(b). If the police officer has the reasonable suspicion of the commission of an offence, then the police officer may arrest the person if satisfied that the arrest is reasonably necessary for, amongst other reasons, the prevention of the harassment of or interference with any potential witness, or to protect the safety or welfare of any person (s 99(1)(b)(vii) and (viii)).
In AD v State of NSW [2023] NSWCA 115, Basten JA, with whom Meagher JA agreed, said at [20]: "[20] Secondly, on one reading of par (viii), for the arrest to be reasonably necessary to protect the safety or welfare of any person, it is the arrest itself which must be intended to provide such protection. However, in circumstances where there is no clear and immediate threat to the person arrested or another person, the arrest could not have been thought to be reasonably necessary for that purpose. However, as with the separate ground of stopping a person from repeating the offence or committing another offence (par (i)), it cannot be intended that the mere fact of the arrest will necessarily have the identified effect. The arresting officer is not required to form a view as to whether bail would be granted, or on what conditions; however, as a practical matter it is likely that in many circumstances (including the present) release on bail almost immediately is to be expected and it is the imposition of appropriate conditions which may well provide protection to others, or render the commission of further offences less likely. Accordingly, arresting with the intention that bail conditions (and conditions of a provisional AVO) be imposed as a consequence of the arrest, did not take the conduct outside the terms of par (viii)."
Section 114(2) enlarges the power of detention following arrest from that provided at common law. It gives effect to the objects of Pt 9 of LEPRA in s 109(a) and (b). Section 114(2) is not a limitation on the power to detain a person arrested. It would follow from the appellant's submissions that if an offender were caught red-handed and admitted to the offence, so that no investigation was required under s 114(2), he or she should be immediately released from custody, even before a charge could be laid. That is an absurd construction.
In this case, the maximum period of detention described by s 115(2) was not exceeded. The question therefore is whether, under s 115(1), the detention after arrest was for a time that was more than reasonable having regard to all the circumstances.
Because an arrest can lawfully be made for the purposes of obtaining a provisional apprehended violence order, or for releasing the arrested person on conditional bail, the time reasonably taken to obtain the provisional apprehended violence order, or conditional bail, should be taken into account in determining what is a reasonable time having regard to all of the circumstances for the detention under s 115(1).
It is for these reasons that I would reject ground 7 of the Notice of Appeal.
As indicated above, I otherwise agree with the reasons of the Chief Justice.
STERN JA: I agree with the Chief Justice.

Reeves v State of New South Wales

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