Robinson v State of New South Wales

District Court of NSW|2017-08-02

A. Introduction

Bradford Robinson walked into the Day Street Sydney City Police Station at 5pm on 22 December 2013 and was arrested by Constable Adam Smith in connection with a breach of an apprehended personal violence order. Mr Robinson was offered and accepted the opportunity to participate in a record of interview. An interview was conducted. At 6.18pm, after the interview had concluded, Mr Robinson was released without charge. He sues the State of New South Wales for unlawful imprisonment. The vicarious liability of the State for any tort of Constable Smith is not disputed.

B. Power of Arrest

Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA") deals with a police officer's power of arrest. It was amended a few days before the arrest. At the time of the arrest, it relevantly provided: "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, … (iv) to ensure that the person appears before a court in relation to the offence, … (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, … (ix) because of the nature and seriousness of the offence. … (3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law. Note. The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer - see section 105. (4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part. …"

C. Issues

Mr Robinson did not give evidence. He does not claim any personal injury damages and although compensatory, aggravated and exemplary damages are sought, no evidence of matters of aggravation personal to him is in evidence. For example, he relied upon a lack of apology by the police in his statement of claim as a matter of aggravation but it was not in dispute that he bore the onus on that matter and that there was no evidence about it. In submissions, Mr Robinson expressly conceded that not much could be awarded for aggravated damages because Mr Robinson had given no evidence, including no evidence of humiliation or of the presence of other persons at Mr Robinson's arrest.
Apart from the issue of damages and its components, issues arise from s 99. Constable Smith relies on s 99(1)(a) and (i), (iv) and (ix) of s 99(1)(b). Thus, the issues on liability are: 1. Did Constable Smith suspect that Mr Robinson had committed an offence? 2. Did Constable Smith have reasonable grounds for suspecting that Mr Robinson had committed an offence? 3. Was Constable Smith satisfied that the arrest was reasonably necessary to stop Mr Robinson repeating the offence? 4. Was Constable Smith satisfied that the arrest was reasonably necessary to ensure that Mr Robinson appeared before the Court in relation to the offence? 5. Was Constable Smith satisfied that the arrest was reasonably necessary because of the nature and seriousness of the offence?
Mr Robinson also raised two further issues. First, the need for the arrest to be made in good faith for the purpose of conducting the prosecution, not for some extraneous purpose such as investigation. Secondly, that the continued detention after the arrest was, in any event, unlawful.

D. The matters informing the belief of Constable Smith

The belief of Constable Smith is relevant to several of the issues. At the time of the arrest, that belief was informed by the following matters, recorded in a file which Constable Smith had read earlier on the day of arrest: 1. On 8 October 2013 Roselyn Singh reported threatening phone calls and blackmail by Mr Robinson. 2. On 9 October 2013 an apprehended personal violence order was made against Mr Robinson for the protection of Ms Singh. The order restrained Mr Robinson, among other things, from harassing Ms Singh, from engaging in conduct that intimidates Ms Singh, from contacting Ms Singh "by any means whatsoever" except by his lawyer, and from deliberately damaging or interfering with the property of Ms Singh. 3. On 16 October 2013 the Local Court of New South Wales made an apprehended violence order interim until future order in terms equivalent to the earlier order. 4. Mr Robinson ran a website with associated email addresses including "brad@datatheft.com.au". Those email addresses had been used to contact Ms Singh. She had blocked the email address, brad@datatheft.com.au. 5. On 18 December 2013 an employee of Ms Singh informed her that he had received an email from Mr Robinson. Ms Singh checked her computer and found the email in her junk box sent from brad@datatheft.com.au. Ms Singh read the email, became very frightened, began crying and felt unable to control her fear. Ms Singh was worried about Mr Robinson's future actions as he had previously attended her home addresses pretending to be police in an attempt to get her to answer the door. Because of this and previous incidents, Ms Singh was feeling paranoid that Mr Robinson was following her. 6. On 20 December 2013 Ms Singh attended Town Hall Police Station and reported some of the matters above, including (d) and (e) above. A statement was prepared, which Ms Singh signed, attesting to these matters. The statement also recorded that Mr Robinson had attempted to contact Ms Singh, her employees, colleagues, business partners and others to, in the words of Ms Singh, "inform them I have been defrauding people and am under police investigation" and that she has, "since blocked this email address" . Ms Singh named the employee who contacted her about having received the email from Mr Robinson. 7. In her statement, Ms Singh said the email received by her employee was also found in her junk box, that it was from brad@datatheft.com.au and that she opened it and it said: "Hi, Everybody, Hope you are all well. Thought you might like to know Ms Singh and her company UTSG Consortium Pty Ltd (Sydney City Medical) are being wound up. She finally tried to rip off somebody who had the financial clout to fight back. [Link to a web address at creditorwatch.com.au] You will notice in the article, Singh registered my blog name 'Data Theft Australian' as a business names [sic]. This is another scam Singh uses to convince victims she owns certain businesses or organisations. She did the same with City Clinic and other competitor businesses in the Sydney CBD. Kind regards Brad". 1. Ms Singh said in her statement at [10]: "As soon as I read the email I felt really frightened and my heart started beating really fast. I began crying as I could not control the fear I was feeling. I am worried about Brad's future actions as I believe he has an unstable state of mind. Brad has previously attended my home addresses and I am afraid he will go to my home again and this has caused me to be in a permanent state of anxiousness and stress which is causing me to become paranoid that he is following me." 1. The email in the file was apparently forwarded to Ms Singh by the employee. The email contained what might be described as a rational and unemotive reply by Ms Singh to the employee stating that she would "forward to detective - this is a breach of his Bail conditions". So far as appears from the email, the employee received his email from "'Brad Robinson' " and it was presumably sent to other unidentified email addresses, including the employee's email address.
Constable Smith's belief at the time of arrest was also informed by two further matters: 1. At 11.15am on Sunday, 22 December 2013 police, including Constable Smith, attended "the residence" of Mr Robinson and ascertained from neighbours that Mr Robinson no longer resided at the address. Enquiries of the real estate agency for a forwarding address were unsuccessful as it was closed on the Sunday. 2. At noon on Sunday, 22 December 2013 Mr Robinson called the police, stating to a Constable Colakides that he was made aware by the police at North Sydney that the Sydney City Police wanted to speak with him regarding a breach of an Apprehended Violence Order ("AVO"). Mr Robinson said he was homeless, currently interstate and would be in Sydney tomorrow. He refused to provide the police with an address of where he would be the next day and stated that he would not attend any police station before seeking legal representation. The police advised him to attend Sydney City Police Station tomorrow regarding breaching an AVO. Mr Robinson was argumentative and did not agree to attend the police station. The police proposed to follow up on the next day, 23 December 2013. Constable Colakides made a note on the COPS record in the terms indicated above, and informed Constable Smith of the conversation, including that Mr Robinson had said that he was interstate and would not be coming to the police station.
At 5pm that same day, Sunday, 22 December 2013 Mr Robinson entered the police station. Constable Smith immediately arrested him in connection with the breach of the AVO, and thereafter the interview with Mr Robinson was conducted. No details of the substance of that interview were in evidence.
Constable Smith, after reading the documents in the folder on the morning of 22 December 2013, formed the opinion that a breach of the AVO had occurred and that he would go to Mr Robinson's address to arrest him. He said that the basis of the arrest was the seriousness of breaching a court order, the AVO, and "to stop any further offences occurring, or breaches of that, that order." He was asked "Did you have any reason to suspect that another breach may occur?" And he answered, "Not at that time, but from what the information I'd been given, I believed that a breach had occurred and that it should have been dealt with."
Constable Smith also gave evidence that he did not believe Mr Robinson would turn up to court. The foundation for this belief was presumably the unsuccessful visit to Mr Robinson's noted address, that Mr Robinson was not residing at his last listed address (T48/5), and the information from Constable Colakides, including that Mr Robinson was interstate (T38/24) and "[h]e wouldn't tell us where he was living over the telephone" (T48/6).
Constable Smith also gave evidence that he believed it was necessary to arrest Mr Robinson for the alleged breach of the AVO. Constable Smith subsequently repeated in evidence the reasons for the arrest being the seriousness of the offence, to prevent a repetition of the offence and to ensure an appearance in court. Generally, I accepted Constable Smith's evidence.

E. Did Constable Smith suspect that Mr Robinson had committed an offence?

In submissions, Mr Robinson accepted that Constable Smith had suspected a breach of the AVO. Constable Smith gave evidence of a belief that he had sufficient evidence to arrest Mr Robinson, and the contrary to that belief was not put to him. I accept that Constable Smith suspected the commission of the offence.

F. Did Constable Smith have reasonable grounds for that suspicion?

In order to establish reasonable grounds for a suspicion, the objective circumstances need not establish, on the balance of probabilities, that the fact exists, for the assent of belief is given on more slender evidence than proof (see George v Rockett (1990) 170 CLR 104 at 116; [1990] HCA 26, Hyder v Commonwealth of Australia [2012] NSWCA 336 at [15(5)]). Suspicion is something less than belief (see R v Rondo [2001] NSWCCA 540 at [53]).
Mr Robinson did not dispute that he sending the quoted email to Ms Singh would be sufficient to provide reasonable grounds for the suspicion of Constable Smith. Whether there was sufficient evidence to provide reasonable grounds for the suspicion was disputed principally on two bases: 1. Constable Smith had not been provided with a copy of the email allegedly found in Ms Singh's junk email folder (and presumably that created a doubt about whether the email was sent to her); and 2. Constable Smith had not determined whether to charge Mr Robinson at the time of the arrest, and ultimately did not charge Mr Robinson.
As to (a), it is correct that the email from Ms Singh's junk folder had not been provided to the police. And despite requests for it, it appears never to have been provided to the police. The relevance of the requests for the junked email is limited and insofar as those requests are recorded on the COPS record, they occurred after the arrest and so do not constitute information available to Constable Smith at the time of the arrest. Constable Lance Carson made enquiries to obtain the original junked email, but there is no evidence that those attempts occurred before Mr Robinson was arrested, or, even if they did, that Constable Smith was informed of them.
Although reasonable grounds for a suspicion might be judged against "what was known or reasonably capable of being known at the relevant time" (Ruddock v Taylor (2005) 222 CLR 612 at [40]; [2005] HCA 48, see also Hyder at [15(7)]), I do not accept that it was reasonably capable of being known by Constable Smith that Ms Singh would not, and would be unable to, produce the directly received email from her junk folder despite repeated requests, since those repeated requests and a reasonable time for a response had not occurred at the time of the arrest.
However, there was information from Ms Singh, in her statement and on the COPS record, that she had received the email. In my view, that is enough to provide reasonable grounds for a suspicion that she did. Her failure to provide the email from her junk folder when she visited the police station on 20 December 2013 is not sufficient, in my mind, to displace the reasonable basis for the suspicion constituted by her provision of the copy email of her employee and the repeated notations on the file of her claim that she had directly received the same email.
I note that Ms Singh's statement refers to her receiving an email from the email address "brad@datatheft.com.au" whereas the email received by the employee appears to have been sent from "datatheft.au@gmail.com" and received by "brad@datatheft.com.au". The explanation for this may lie in the email Ms Singh found in her junk folder having come from a different address associated with Mr Robinson than the address used to send the email to her employee, and there are other possible explanations. It does not displace the evidence of Ms Singh recorded in the COPS record and in her signed statement that she received the same email (in substance) directly, having found it in her junk folder.
Mr Robinson also referred to the evidence that Ms Singh had "blocked" that sender, brad@datatheft.com.au. Of itself, this evidence does not clarify whether the method of "blocking" was effective only to direct an email to the junk email folder, or whether the blocking occurred only after the subject email had been received by Ms Singh. Again, it does not displace Ms Singh's account that she received the email.
I accept that a copy of the email received directly by Ms Singh might be required at a criminal trial to establish beyond a reasonable doubt that the email was in fact received. I do not accept that at 5pm on 22 December 2013, Constable Smith needed a copy of the email received directly by Ms Singh in her junk folder before he could hold a suspicion on reasonable grounds that the email had been received by Ms Singh.
The second challenge to the finding of reasonable grounds, item (b) above, was that Constable Smith had not determined to charge Mr Robinson at the time of the arrest. I think that matter might lead to an inference that Constable Smith may have had doubts as to whether the offence had occurred, and that he may have wanted to give Mr Robinson an opportunity to explain the matter before charging him. That does not address the question of whether he had reasonable grounds for a suspicion. As noted above, reasonable suspicion involves less than a reasonable belief and more than a possibility: Rondo at [53].
For these reasons, I accept that Constable Smith had reasonable grounds for his suspicion that an offence had been committed.
Although the principal challenge to the existence of reasonable grounds focused on whether there was a reasonable basis to conclude that Ms Singh had received the email directly, there seems to be another separate basis potentially available to establish reasonable grounds for a suspicion of an offence. The AVO prohibited Mr Robinson from harassing, engaging in conduct that intimidates, or deliberately interfering with the property of Ms Singh. It is not at all clear why an email of the kind sent by Mr Robinson to Ms Singh's employee, such as appears to have been accepted here, with the consequent impact on Ms Singh as she described, does not constitute conduct that intimidates Ms Singh, harasses her or deliberately damages or interferes with her property, namely her company, in contravention of the AVO. But as this matter was not argued before me by either party, I prefer not to rely upon it to determine the matter.

G. Was Constable Smith satisfied that the arrest was reasonably necessary to stop a repetition of the offence?

Although Constable Smith gave this as one of his reasons for the arrest, when asked in examination-in‑chief, "Did you have any reason to suspect that another breach may occur?" He said, "Not at that time, but from what the information I'd been given, I believed that a breach had occurred and that it should have been dealt with."
The context of this evidence indicates that "that time" to which Constable Smith made reference was a time during the morning of 22 December 2013, after he had read the documents in the folder and formed the opinion about an arrest at Mr Robinson's supposed residence. That was several hours prior to the arrest of Mr Robinson at the police station.
Subsequent to giving this evidence, Constable Smith was asked in cross‑examination about having given the evidence and he answered, "I don't know if there's going to be another breach or not."
There is no evidence that in the hours after Constable Smith had read the documents in the folder that he became aware of any further matters pertaining to the likelihood of Mr Robinson repeating the offence.
Constable Smith was aware of the conduct of Mr Robinson that had led to the AVO and he was aware from Ms Singh that similar conduct, in the sending of the email that went to Ms Singh's junk folder, had occurred after the AVO. These matters led Constable Smith to suspect a breach of the AVO. The similarity of the conduct which led to the AVO and the conduct thought to be in breach (contacting Ms Singh with intimidating material) might itself have led to a belief in Constable Smith of the likelihood of repetition of the offence.
It was not disputed that Mr Robinson had in fact prior to 21 December 2013 breached the AVO and been charged (see State of New South Wales v Robinson [2016] NSWCA 334). Constable Smith did not claim to be aware of that breach at the time of the arrest although the email received by the employee that Constable Smith saw prior to the arrest spoke of a "breach of his Bail conditions" which, if correct, could only have been a reference to the bail conditions imposed in respect to the earlier alleged offence.
Whether the information of the earlier alleged offence was "reasonably capable of being known" is not a question that arises under s 99(1)(b).
Some consideration should be given to the meaning of "reasonably necessary" in s 99(1)(b). The expression was considered in Thomas v Mowbray [2007] HCA 33. In some contexts, "reasonably necessary" may refer to what is required for reasonable protection (see Thomas at [21]-[25]). In Thomas at [490], reference was made to the judgment of Gleeson CJ in Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 199-200 [39] where "necessary" meant not "essential or indispensable" but "reasonably appropriate and adapted". The adjective "reasonably" in the phrase "reasonably necessary" tends to buttress such a construction.
Although the term "reasonable" often imports some level of objectivity, in this context "reasonably" moderates the meaning of "necessary" and makes clear that something less than what is essential is required. Here "reasonably necessary" concerns the satisfaction of the police officer: whether the police officer is satisfied that the arrest is "reasonably necessary" or "reasonably appropriate and adapted" to stop the repetition of the offence. Thus, "reasonable" in this context does not import an objective element. It is "not what the judge thought, but what the officer thought was reasonably necessary in the circumstances" (see State of New South Wales v Randall [2017] NSWCA 88 at [38] and also [142]). The challenge to such a suspicion can only be available where the suspicion was manifestly unreasonable or "arbitrary, capricious, irrational, or not bona fide" (see Randall at [113] and [142], Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [131]-[137]).
Is it "rational" for Constable Smith to say he had no reason to suspect that another breach may occur and yet be satisfied that arrest was necessary for the reason of stopping another breach? It may be. There is also a possibility that Constable Smith did not have the required satisfaction. A reason to believe or reason to suspect literally concerns the basis for the belief or suspicion rather than its actuality, although that distinction was not apparent in the answer given by Constable Smith. But the two concepts - the existence of a suspicion and a simultaneous acknowledgement of having no reasons to suspect - do not sit comfortably together, at least not without further explanation from Constable Smith, and no explanation was given. This suggests that Constable Smith did not on the Sunday morning or at the time of the arrest have a belief of a possible repetition of the offence.
The State bore the onus on this issue but gave no persuasive explanation of why the reasonable necessity of preventing a repeat of the offence became part of the belief of Constable Smith.
All of these matters leave me unpersuaded, on the balance of probabilities, that Constable Smith was satisfied that an arrest was reasonably necessary to prevent a repetition of the offence.

H. Was Constable Smith satisfied that arrest was reasonably necessary to ensure that Mr Robinson appeared before the Court?

The primary challenge to this asserted reason of Constable Smith was that Constable Smith had conceded that he had not determined at the time of the arrest whether he would charge Mr Robinson. Mr Robinson submitted that if, in the belief of Constable Smith, Mr Robinson might not be charged, Constable Smith could then not be satisfied that an arrest was necessary to ensure that Mr Robinson appeared in court since his appearance in court might never be necessary. Mr Robinson referred to Zaravinos v State of New South Wales [2014] NSWCA 320, where Bryson JA, with whom the other members of the Court of Appeal agreed, stated at [37]: "In the present case the burden of proof that the arrest and detention were lawful fell on the defendants under the defence of justification which was attributed to them. Even if the circumstances mentioned in subs.352(2)(a) exist, the lawfulness of the arrests of Mr Zaravinos are examinable, and the arrests were not lawful unless each decision to arrest was made in good faith and for the purposes for which the power to arrest exists, that is, the purposes of bringing the person arrested before a Justice and conducting a prosecution; and not for some extraneous purpose. Arresting a person for the purpose of questioning him and investigating the circumstances of the suspected offence or of any other offence is arrest for an extraneous purpose. It is even more clearly an extraneous purpose to arrest a person as a piece of unnecessary highhanded and humiliating behaviour in circumstances in which arrest is not reasonably necessary for the effective conduct of a prosecution. The availability of Information and Summons as an alternative course, and the considerations favouring and adverse to taking that alternative course, are relevant where the validity of the exercise of the power to arrest is in question."
However, Zaravinos concerned the common law power of arrest, or at least an earlier formulation of when a police officer is empowered to arrest and concerns not at all the powers of a police officer under s 99 of LEPRA.
Further, s 99 contemplated that an arrest may occur and may be discontinued before any appearance before a court (see s 105 and the notes to s 99(3)).
I was also referred by Mr Robinson to Konneh v State of New South Wales (No.3) [2013] NSWSC 1424 as to when a common law right is to be found to have been abrogated by statute. I accept that clear words or necessary intendment must be apparent for the common law right of liberty to be abrogated by a statute, but it is also the case that LEPRA, s 99, most clearly regulates that common law right and creates a statutory entitlement in an officer to arrest on compliance with certain conditions.
If Mr Robinson's construction of s 99(1)(b)(iv) were adopted, a person who was a known flight risk could not be arrested in reliance upon s 99(1)(b)(iv) unless the police officer was already persuaded that the person should be charged (or that the arrest would not be withdrawn under s 105). But a charge requires reasonable and probable cause, namely a positive belief and a sufficient (or reasonable) basis for the belief (see A v New South Wales [2007] HCA 10 at [77]), a higher obligation on the police officer to that imposed by s 99(1)(a), which requires only a suspicion on reasonable grounds.
Consistency is an important matter in statutory construction: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69], Deputy Commissioner of Taxation v Zammitt [2014] NSWCA 104 at [67], Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander (2012) 248 CLR 378 at [24]; [2012] HCA 56. It seems unlikely that s 99(1)(b)(iv) alone among the subparagraphs in s 99(1)(b), would be inoperative when s 105 was applicable. "[T]he process of construction commences with the construction of the ordinary and grammatical meaning of the words in question, having regard to their context and legislative purpose": Rail Corporation New South Wales v Brown (2012) 82 NSWLR 318 at [39]; [2012] NSWCA 296, Zammitt at [68]. As arrest does not produce an immediate and perpetual appearance before the court the word "appears" in s 99(1)(b)(iv) must be read as "appears as required". On that construction, the application of that subparagraph is not negatived in circumstances where an appearance before a court might ultimately not be required.
Mr Robinson submitted that it is not lawful to arrest for the purpose of investigation. I accept that this is so, not so much because that was the rule as stated in Zaravinos, but because it is not a permissible reason under s 99. It is a different question whether a person properly arrested may nevertheless be detained for the purpose of investigation, as s 109(4) permits. Here, Constable Smith was informed that Mr Robinson would not agree to attend the police station as requested, had refused to provide his place of residence, had indicated that he was homeless and that he was no longer at his noted residence. These matters all support a belief in Constable Smith of a concern about whether the person, Mr Robinson, would attend court and whether arrest was necessary for that purpose. I accept that this belief of Constable Smith was not displaced by the circumstance that Mr Robinson voluntarily attended the police station.

I. Was Constable Smith reasonably satisfied that an arrest was reasonable necessary because of the nature and seriousness of the offence

In the earlier Robinson decision at [69], the Court of Appeal held that a breach of an AVO is a serious offence and that "social media harassment is not to be lightly dismissed". Given the content of the email and the content of the AVO, these observations have application to a consideration of Constable Smith's belief at the time of arrest. It may be that email contact is a lower level of contact than by personal attendance. But the content of the email, and the breach of a court order show that the sending of the email was not at the "very lowest of the criminal spectrum" as was put to Constable Smith. In any event, I do not regard Constable Smith's answer to that question, that it was "[s]till a breaching of a court order though", as a concession that the breach was minor.
The primary argument on this ground advanced by Mr Robinson was that reliance upon this ground only appeared when the proposed amended defence was served in the weeks before the trial. That may be a reason to challenge Constable Smith's evidence on the point, but the challenge was faint. At no point was it put to him that he had no belief in the seriousness of the offence at the time of arrest, nor that the reasons for arrest appearing in the initial defence (relying upon the earlier, obsolete version of s 99) represented Constable Smith's belief at the time of the arrest. Nor does the evidence that Constable Smith thought (presumably at the time of giving evidence) that LEPRA had been amended after, rather than shortly before, the arrest have any real impact on the evidence of his belief.
I accept that Constable Smith was satisfied at the time of the arrest that arrest was necessary because of the nature and seriousness of the offence.
Mr Robinson also argued more generally that there were options other than arrest available and again referred to the passage in Zaravinos quoted earlier. Of course there are other options, possibilities, and it may be that, with the benefit of hindsight, another option to arrest might be seen as preferable. That view, if it existed in the Court, does not displace the test of lawfulness of the arrest contained in s 99. I accept that the requirements of s 99(1)(b)(ix) were satisfied.

J. Good faith and extraneous purpose of investigation

Mr Robinson also argued that the State has not established that the purpose of arrest was in good faith and not for the extraneous purpose of investigation, relying upon Zaravinos. I am not persuaded that, under s 99, the State bears the onus of disproving every possible extraneous purpose. In any event, I accept that the reasons under subparas (iv) and (ix) of s 99(1)(b) were matters of which Constable Smith was satisfied at the time of the arrest as set out above.
Constable Smith gave his reasons for the arrest, exhaustively, and a purpose of investigation was not one of them. It was not put to him that the purpose of the arrest was to investigate the offence or question Mr Robinson. While such a purpose would be improper there was nevertheless no evidence to support it. I am not persuaded that it was a purpose of Constable Smith.

K. Continued detention

The period of detention from the time of the arrest until release was about 1 hour and 18 minutes. Mr Robinson submitted that even if the arrest was lawful, the detention was excessive. But s 99(4) and s 114 both recognise that an arrested person can be detained for the purpose of investigation. In this case, an interview was conducted with Mr Robinson's consent, a matter which must fall within the ambit of "investigation" and "investigating whether the person committed the offence".
Section 115 of LEPRA limits the period of detention for investigation to six hours, a much longer period than occurred here. Mr Robinson submitted that it was not established that the entire period of the detention was needed for the interview or, I infer, for other investigations, if there were any. Constable Smith did not give evidence of how long the interview took, or what were his activities during the period of detention, but he was available to be asked that by either counsel. Neither took that opportunity.
Further, Mr Robinson could have given evidence about the period of the interview but did not.
In these circumstances, I am not persuaded that a Jones v Dunkel inference should be drawn in favour of the defendant or in favour of the plaintiff. In my view, the period of 1 hour and 18 minutes does not seem an excessive period to prepare for and conduct an interview with Mr Robinson about the matter and potentially do other investigations. On the basis of the limited evidence available, I am satisfied that it was a reasonable period in all the circumstances and that there was not an unlawful detention of Mr Robinson during that period.
Accordingly, for these reasons, I dismiss the claim for wrongful imprisonment.

L. Damages

I propose to make some brief comments about damages. Mr Robinson, as indicated above, accepted that little should be awarded in respect of aggravated damages and also accepted that the period of detention for which damages should be given should not include the period of the uncertain duration of the interview (see Peter Michael Travers v The State of New South Wales [2016] NSWDC 297 and Tilse v NSW [2013] NSWDC 265).
In Travers there was evidence of humiliation and a total period of detention somewhat longer than the present, although perhaps the period apart from the interview was not longer. In that case, an award of $2,000 plus $1,000 for aggravated and exemplary damages was made. In Tilse, an award of $2,500 was made for detention of one hour, although, in that case, the arrest was found to be lawful.
Of course the damages in this case would vary if there was an unlawful arrest or merely if there was a period after arrest of unlawful detention. Even assuming the former, I would not award any aggravated damages. So far as exemplary damages are concerned, Mr Robinson accepted that there was no deliberate, outrageous, heavy-handed or aggressive conduct. But deprivation of liberty is not a minor matter. It would justify an award, in this case, if unlawful arrest and wrongful imprisonment were established, of $2,000 exemplary damages and $3,000 compensatory damages.

N. Orders

The orders of the Court are therefore: 1. Judgment for the defendant. 2. Plaintiff to pay the defendant's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 May 2018

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