Robinson v State of New South Wales

Court of Appeal (NSW)|2018-06-28|Before: McColl JA, Basten JA

Introduction On 22 December 2013, the appellant, Mr Bradford Robinson (Mr Robinson), voluntarily attended Day Street Sydney City Police Station in response to a request from the police that he do so. He was immediately arrested by Constable Adam Smith (Constable Smith). Following his arrest, Mr Robinson was interviewed by Constable Smith. He was then released without charge, having been detained in custody for a period of approximately one hour and 18 minutes.

Mr Robinson sued the respondent, the State of New South Wales (the State), in the District Court, claiming damages for alleged wrongful arrest and false imprisonment by Constable Smith. Under s 8(1) of the Law Reform (Vicarious Liability) Act 1983 (NSW) (the Vicarious Liability Act), the State is vicariously liable for torts committed by a person in the service of the Crown in right of New South Wales. At all times, Constable Smith was, by the operation of s 6 of the Vicarious Liability Act, deemed to be a person in the service of the Crown. The State is liable to be sued pursuant to s 5 of the Crown Proceedings Act 1988 (NSW).
On 3 August 2017, for reasons published on that day, a judge of the District Court (the primary judge) directed the entry of judgment for the State and ordered Mr Robinson to pay the State's costs of the proceedings. By Notice of Appeal filed on 1 March 2018, pursuant to leave granted by this Court on 20 February 2018, Mr Robinson appeals from the orders made by the primary judge.

The Appeal

The only question raised by the appeal is whether s 99 of the Law Enforcement Act afforded a defence to a claim by Mr Robinson against the State that he was wrongly arrested and falsely imprisoned, in circumstances where Constable Smith, as the arresting officer, had not, at the time of arrest, formed an intention to charge Mr Robinson. Before dealing with that question, it is desirable to say something about the provisions of the Law Enforcement Act.

The Law Enforcement Act

Section 4(1) of the Law Enforcement Act provides that, unless the Act otherwise provides expressly or by implication, the Act does not limit:

the functions, obligations and liabilities that a police officer has as a constable at common law; or
the functions that a police officer may lawfully exercise whether under any act or any other law as an individual, otherwise than as a police officer, including, for example, powers for protecting property.

Further, s 4(2) provides that nothing in the Law Enforcement Act is to affect the powers conferred by the common law on police officers to deal with breaches of the peace. In addition, s 7 relevantly provides that nothing in the Law Enforcement Act is to limit any functions, or prevent a police officer from exercising any functions, that the police officer has under the Law Enforcement Act.
Relevantly for present purposes, s 99 provided that a police officer may, without a warrant, arrest a person if, first, the police officer suspected, on reasonable grounds, that the person was committing, or had committed, an offence, and secondly, the police officer was satisfied that the arrest was reasonably necessary for either of the following reasons:

to ensure that the person appears before a court in relation to the offence;
because of the nature and seriousness of the offence.

Section 99(3) of the Law Enforcement Act provided that a police officer who arrests a person under s 99 must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law. An authorised officer for the purpose of the Law Enforcement Act is a magistrate, a registrar of the Local Court or an employee of the Attorney General's Department authorised by the Attorney General as an authorised officer for the purposes of the Law Enforcement Act. Section 105 relevantly provided that the police officer could "discontinue the arrest" at any time without taking the arrested person before an authorised officer. The use of the term "discontinue" in relation to arrest is slightly unusual. Ordinarily, the term "arrest" would refer to the apprehension of a person, or a ship, by legal authority or the seizure or laying hold on of a person [155] . Once that has occurred, the arrest would be complete. The word "arrest" appears to be used in s 105 as referring to the continued "detention" of a person once arrested.
Under s 99(4) a person who has been lawfully arrested, in compliance with s 99, may be detained by any police officer under Pt 9 of the Law Enforcement Act 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 Pt 9. Part 9, which consists of ss 109 to 132 inclusive, deals with "investigations and questioning". Division 2 of Part 9 of the Law Enforcement Act, which consists of ss 114 to 121 inclusive, deals with "investigation and questioning powers" where persons are under arrest. The State places some store on the provisions of Pt 9, in so far as they are referred to expressly in s 99.
Under s 114(1), a police officer may, in accordance with s 114, detain a person who is under arrest for the investigation period provided for by s 115. The investigation period 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 period of six hours or such longer period as may be provided for under a detention warrant issued under s 118. Under s 114(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. If, while a person is so detained under s 114(3), 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. Section 114(4) requires that the person must be released within the investigation period or brought before an authorised officer or court within that period or as soon as is practicable after the end of that period.
Under s 116, in determining what is a reasonable time for the purposes of s 115, all the relevant circumstances of the particular case must be taken into account. Relevantly, for present purposes, the following circumstances are to be taken into account:

whether the presence of a person is necessary for the investigation;
the number, seriousness and complexity of the offences under investigation;
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; and
the time required to carry out any other activity that is reasonably necessary for the proper conduct of the investigation.

Section 117 provides that certain times are not to be taken into account in determining how much of an investigation period has elapsed. For example, any time that is reasonably required to convey the person from the place where the person is arrested to the nearest premises where facilities are relevantly available; any time reasonably spent waiting for the arrival of police officers; any time that is reasonably spent waiting for facilities complying with s 281 of the Criminal Procedure Act 1986 (NSW) to become available; any time that is required to allow the person to communicate with a friend, relative, guardian, independent person, Australian legal practitioner or consular official; and any time that is required to allow such a friend, relative, guardian independent person, Australian legal practitioner or consular official to arrive at the place where the person is being detained, is not to be taken into account.
Section 118 relevantly provides that a police officer may, before the end of the investigation period, apply to an authorised officer for a warrant to extend the maximum investigation period beyond six hours. An authorised officer must not issue a warrant to extend the maximum investigation period unless satisfied that:

the investigation is being conducted diligently and without delay;
a further period of detention is reasonably necessary to complete the investigation;
there is no reasonable alternative means of completing the investigation; and
circumstances exist in the matter that make it impracticable for the investigation to be completed within the four hour period.

Relevant Common Law Principles

Mr Robinson placed great reliance on the common law purpose of arrest. The statutory requirement to bring a person arrested before a justice or a court, as soon as is practicable, has its origins in the common law. Accordingly, s 99 of the Law Enforcement Act must be construed in the context of the general law in relation to the arrest of a citizen, against the background of which it, and its legislative predecessors, were enacted. Moreover, s 4 of the Law Enforcement Act specifies that the Act is not to derogate from the functions, obligations and liabilities of police officers under the common law, which arguably includes the common law purpose of arrest. Therefore, before addressing the detail of the parties' submissions, it is desirable to describe the nature and substance of the common law in relation to arrest, as well as its interaction with s 99 of the Law Enforcement Act.
Under the common law, a person cannot be deprived of personal liberty except to the extent, and for the time, that the law prescribes. The authority to hold the arrested person in custody is limited to the time necessary to bring the person before a justice or a court for the purpose of charge and prosecution. Thus, a police officer who arrests a person must bring the arrested person before a justice or a court in as short a time as is reasonably practicable, unless the person is earlier released unconditionally or on bail. [156]
Under the common law, a police officer does not have power to arrest a person merely for the purpose of questioning that person [157] . That is because arrest is the beginning of imprisonment and, whilst it is recognised that imprisonment before trial may be necessary for the administration of criminal justice, it must be justified in accordance with the law. There must be a charge and if the person charged can establish entitlement to bail and can furnish bail, the law requires that the person be released, subject to any conditions that might be imposed upon the person. The point at which an arrested person is brought before a justice or court upon a charge is the point at which the machinery of the law leading to trial is put into operation. It is the point from which the judicial process commences and purely ministerial functions cease. Therefore, any delay in bringing an arrested person before a justice or a court, even if it is to effectuate some other purpose, such as the questioning of that person in order to dispel or confirm the suspicion that was the basis of the arrest, is to defeat, however temporarily, the true purpose [158] .
An arrest may be lawful under the common law even if the police officer who effects the arrest does not immediately charge the arrested person because he or she is waiting for a superior officer to arrive, who, the arresting officer expects, will then charge the arrested person. Moreover, it is not unlawful for such an arrest to occur, notwithstanding that the arresting officer does not have sufficient knowledge or information about the crime or crimes of which the arrested person was suspected, and to charge the person then and there, if the superior officer had such knowledge and information and was merely obtaining the assistance of the inferior officer to effect the actual arrest. That is because the reasonable suspicion of the superior officer that the arrested person had committed offences can be attributed to the arresting officer. On the other hand, the arresting officer ought to be put in possession of the details of the charge or should be in a position to obtain those details immediately after the arrest is made [159] .
A police officer who has arrested a person reasonably suspected of having committed a crime must be allowed time to make such inquiries as are reasonably necessary either to confirm or to dispel the suspicion upon which the arrest was based [160] . Therefore, reasonable time must be allowed for making a decision to prefer a charge and then preferring the charge.
Nevertheless, while the common law allows a reasonable time to formulate and lay appropriate charges for the purpose of bringing a person before a justice, in that it must be done "as soon as is practicable", it is a different matter altogether to permit a police officer to detain an arrested person to enable the evidence necessary to support a charge to be gathered by further investigation. For example, it is one thing to take a suspected shoplifter to an office for the purpose of getting authority to prosecute. It is another thing to take the suspect to an office for the purpose of filling in gaps in the evidence [161] . Such a power, without limits, could, in cases where the evidence is complex, be used to hold persons in custody for longer periods than would be consistent with a citizen's basic right to freedom and personal liberty [162] . If the law requires modification in that regard, that modification should be effected by legislation, not by the courts, because there must be safeguards, such as in the form of time limits, and those safeguards must be set with particularity that cannot be achieved by judicial decision. Legislative change ought to take place against the background of the common law, which has always viewed detention for the purpose of investigation as an unwarranted encroachment upon the liberty of the citizen [163] .

Legislative History of s 99

Before dealing with the construction of s 99 of the Law Enforcement Act against that common law background, it is necessary to have regard to the legislative history of s 99. The relevant provisions of the Law Enforcement Act were preceded by provisions of the Crimes Act 1900 (NSW) (the Crimes Act). Further, s 99, as originally enacted, was subsequently amended. It is desirable to say something about the various iterations of the provisions.
Section 352 of the Crimes Act relevantly provided that any constable was authorised, without warrant, to apprehend any person whom the constable, with reasonable cause, suspected of having committed certain offences and to take the person before an authorised justice to be dealt with according to law. Section 352 did not purport to be a code or a whole statement of the power of a constable or other person to apprehend without warrant. There was no indication in its terms of an intention to displace general principles of law relating to the exercise of discretionary powers conferred by a statute or by law relating to powers of arrest. It was not regarded as displacing or being substituted for the general powers and duties of a person effecting an arrest.
Section 352 stated what a constable was to do after apprehending a person, namely, take the person before an authorised justice. That corresponded with the common law purpose of arrest and must be understood as indicating the only proper purpose for which an arrest could be carried out, namely, bringing the person before a justice or a court for the purpose of conducting a prosecution. Questioning and other investigation could take place during the time available between the arrest and when the arrested person was brought before a justice or a court. However, the time available could not be extended so as to allow for questioning or other investigation [164] .
Even if the circumstances mentioned in s 352 existed, the lawfulness of an arrest was examinable, and the arrest was unlawful unless each decision to arrest was made to give effect to the true, common law purpose of arrest. Arresting a person for any other purpose was an arrest for an extraneous purpose and was unlawful [165] .
The same underlying restriction was to be found in s 99(3), as originally enacted, under which a police officer could only arrest a person "for the purpose of taking proceedings for an offence against the person". That is to say, the provision assumed that that purpose underlay a valid arrest, such that an arrest would not be valid merely because the officer believed that an offence had been committed in circumstances where the officer had no intention of charging the person or having the person charged with that offence. If it were otherwise, the legal requirement that the person arrested should be informed of the true grounds of the arrest would be rendered nugatory [166] .
Section 99 of the Law Enforcement Act was amended by the Law Enforcement (Powers and Responsibilities) Amendment (Arrest Without Warrant) Act 2013 (NSW) (the Amending Act). The Amending Act was enacted as a result of a report presented to Parliament following a review of the Law Enforcement Act commissioned by the Premier of New South Wales (the Parliamentary Report). The authors of the Parliamentary Report were asked to inquire into and report on the Law Enforcement Act and, in particular, to provide advice on legislative amendments to ensure that police have clear, effective powers to do their job and to protect the community.
The Parliamentary Report stated that the then current provisions of s 99 were complicated and difficult to apply and that the lack of clarity around arrest powers had led to offenders escaping conviction, even in instances where an arrest had been made in good faith. The Parliamentary Report said that the authors were mindful that the Premier had requested clear and effective powers and responsibilities, and that they were of the view that the revised s 99, as proposed by them, was clearer and simpler and would be easier to apply in the field. The Parliamentary Report asserted that the proposed simplification of s 99 would also make the provision more transparent and would address the community's expectation for police powers and responsibilities to be clear and effective.
One interpretation that had been propounded was that arrest powers should be confined to circumstances where an offence was currently being committed or had just been committed. The Parliamentary Report recommended that s 99(1) and s 99(2), as originally enacted, be combined into one section to make it abundantly clear that police could arrest a person for any offence if they reasonably suspected an offence was being, or had been, committed.
The Parliamentary Report referred to concerns that the list of reasons for which police could arrest without a warrant in the then form of s 99 was not broad enough to allow police to arrest offenders in order to protect the community and prevent crime. It confirmed, however, that the intent of the legislation was not to allow police the power to arrest in order to investigate, although the proposed s 99(4) clarified that once a person had been lawfully arrested, the person could be detained under Pt 9 of the Law Enforcement Act for investigative purposes. Accordingly, the Parliamentary Report said s 99(1)(b)(v) had been drafted in such a way as to allow police to arrest to obtain property without conferring a wider power that would allow police to arrest for the purposes of investigation.
The Parliamentary Report did not support the introduction of a general power of arrest, as preferred by the police, but preferred the current formulation of a finite power with expanded reasons for arresting a suspected offender. It supported the inclusion of a power to arrest without warrant if the nature and seriousness of the offence warranted that course of action. The authors considered that that provision would give certainty to police to make an arrest when confronted with sufficient evidence of, for example, a domestic violence offence. They accepted that international academic research had demonstrated that arresting domestic violence offenders deterred future domestic violence offending.
The Parliamentary Report reported that the police were of the view that where a person is fleeing from police, there should be a corresponding power of arrest if the police reasonably suspect that person of having committed an offence. The authors were convinced by the argument that were that criterion to be omitted, then it may invite argument in court that Parliament intended that police could not arrest a person who was reasonably suspected of committing an offence who was running from the scene of a crime or from a police officer.
The Parliamentary Report concluded that the recommendations made by it, if implemented, would expand the list of reasons under which a police officer could arrest. The authors noted that concerns had been raised that increased arrest rates may also increase remand rates, but also noted that police rejected such a concern because not all people who are arrested are remanded and some arrests would be discontinued once the purpose of arrest no longer existed, in circumstances, for example, where the person's identity had been ascertained. The Parliamentary Report said that, for more abundant caution and transparency, a provision that clearly stated that a police officer could "discontinue" an arrest should be included, referring to the proposed s 105(3).
In his speech on the second reading of the Bill for the Amending Act, the Premier observed that the "job of frontline police is already hard enough, without being made harder by having to deal with legal complexities". The Premier said that the reforms proposed by the Parliamentary Report could give the community confidence that police would have the powers they needed to "keep the peace across the communities of New South Wales". The Premier said that the new provisions would clarify that police could arrest without a warrant for any offence that they reasonably suspected a person was committing or had committed, and that the proposed amended s 99(1)(a) made that abundantly clear. He said that the proposed amended s 99(1)(b) replicated and simplified the existing reasons for arrest contained in the previous form of s 99 and introduced new reasons to arrest without a warrant that, the Premier said, better reflected the circumstances in which police "are called on to act in order to keep the community safe".
The Premier also said that under the proposed amended s 99, police would be able to arrest a suspected offender without a warrant if the person's identification could not be readily ascertained by other means or if the officer suspected on reasonable grounds that identity information supplied was false. He said that the realities of day-to-day policing were also reflected by the inclusion of a power of arrest without warrant when a suspected offender who was fleeing from police or from the scene of a crime. Further, he said, the proposed amended s 99 clarified that a police officer could arrest a person without a warrant if directed to do so by another police officer who had reason lawfully to arrest that person.
The Premier also referred to the proposed amendment to make clear that an arrest may be "discontinued" and the person released without requiring the person to be brought before an authorised officer, saying that that might occur when inquiries revealed that the reasons for arrest no longer existed or if the police decided it was more appropriate to deal with the matter in some other manner, such as by issuing a penalty notice or Court Attendance Notice.
Finally, the Premier said s 99 would be amended to make it clear that a person who was "lawfully arrested" under s 99 could be detained for the purpose of an investigation in accordance with Pt 9, an amendment that was intended to remove uncertainty about whether a person who was otherwise "lawfully" arrested could be detained for questioning under Pt 9.

Relevant Principles of Construction

Clear words are required in a statute before it will be construed as authorising the holding of an arrested person in custody for a purpose other than for giving effect to the common law purpose of arrest [167] . It is of critical importance for the existence and protection under the law of personal liberty, that the circumstances in which a police officer may, without warrant, arrest or detain an individual be strictly confined, plainly stated and readily ascertainable. Arrest should be reserved for circumstances in which it is clearly necessary and where it is inappropriate to resort to the power of arrest when the issue and service of a summons would suffice adequately [168] .
It is improbable that the legislature would overthrow fundamental principles, infringe rights or depart from the general system of law described above without expressing its intention with irresistible clearness. To give any such effect to general words, simply because they have that meaning in the widest, usual, or natural sense, would be to give them a meaning in a sense in which they were not really used. Curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom enhances the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights [169] .
However, while that notion extends to the protection of fundamental principles and systemic values, it ought not be extended beyond its rationale. Thus, the notion does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means that are within the constitutional competence of the enacting legislature [170] . That principle of construction is fulfilled in accordance with that rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a positive legislative determination that the right, freedom or immunity is to be abrogated or curtailed [171] .

Submissions

Mr Robinson contends that his arrest was unlawful because it was effected for an extraneous purpose. He asserts that, because the only proper purpose for the exercise of the power of arrest under s 99(1) is to bring the arrested person before a justice in order to conduct a prosecution, there is an additional requirement to those specified in s 99(1), namely, that the arresting officer, or the officer directing arrest under s 99(2), must hold a positive intention, at the time of the arrest, to charge the arrested person, and that in the absence of such a positive intention, the arrest will be effected for an extraneous and unlawful purpose.
Mr Robinson contends that, if an arresting officer does not form such an intention, then that constitutes an arrogation by the police officer to himself or herself of the power of imprisonment vested only in the judiciary or an authorised officer. He bases that contention on the proposition that the arrest of a person is the first step in the process by which the arrested person is to be made answerable for the offence that the arresting police officer reasonably suspects the person of committing.
Mr Robinson relies on the proposition that a person must not be arrested, and thereby imprisoned, otherwise than upon the authority of a justice or a court except to the extent reasonably necessary to bring that person before a justice or a court to be dealt with according to law [172] . He asserts that that proposition holds good even if the matters set out in s 99(1) are strictly satisfied, and that reasonable satisfaction of the s 99(1)(b) matters cannot exist independently of the purpose of bringing the arrested person before a justice or a court for the purpose of conducting a prosecution [173] .
Mr Robinson contends that s 99 does not displace the fundamental purpose of arrest recognised by the general law and that the provisions of s 99 supplement the general law rather than derogate from it. [174] Thus, he contends, unless the arrest of a person is for the purpose of bringing that person before a justice or a court and conducting a prosecution, the fact that the purpose of arrest might be one of those specifically referred to in s 99(1)(b) does not of itself prevent the arrest from being unlawful. Moreover, he says, if s 99 provided a power of arrest in circumstances where the purpose was not to take the arrested person before a justice and conduct a prosecution, that would need to be expressed in clear, unambiguous language [175] . That is so, he says, because the allowance of such a power abrogates, or curtails, both the common law purpose of arrest and the fundamental common law principle of personal liberty.
The State contends that, in circumstances where it is clear that the current form of s 99 was introduced in order to broaden the powers of police arrest without a warrant, it is erroneous to assume that s 99 must operate in the same way as previous iterations [176] . The State contends that if the effect of the current form of s 99, properly construed, differs from previous iterations, which have been construed in previous cases, then the current form must be given effect according to its terms.
The State accepts that an arrest will not be lawful if the purpose of the arrest is merely for making further inquiries or asking further questions. It also accepts that an arrested person must be brought before a justice as soon as reasonably practicable. However, the State says the purpose of bringing the arrested person before a justice as soon as reasonably practicable is more accurately described as being to bring the arrested person before a justice as soon as reasonably practicable, if a decision is taken to charge the person. The State contends that if the purpose is understood in that way, then any tension between the mental state required for arrest, on the one hand, and the mental state required for prosecution, on the other, will be removed. That is to say, while reasonable suspicion is sufficient for a lawful arrest, unless reasonable and probable cause is acquired before the expiration of the time within which it is reasonably practicable to bring the arrested person before a justice, the arrested person must be released without charge. The State contends that the purpose of arrest understood in that way is consistent with the requirement that what must be stated to an arrested person at the time of arrest is not necessarily the precise charge, if any, to be laid, but, rather, the true ground for the arrest [177] .

Consideration

The task of statutory construction begins with the text of the statute. There are several textual matters that point away from Mr Robinson's contentions.
Section 99(1) specifies, in some detail, the state of mind that a police officer must hold in order lawfully to arrest a person without warrant. The section states expressly that a police officer may, without warrant, arrest a person if the relevant state of mind is shown to have existed. In those circumstances, the express language of s 99, which does not make any reference to an intention on the arresting officer's part to charge the arrested person, is contrary to the existence of a further requirement as to the state of mind of the arresting police officer, as posited by Mr Robinson.
Mr Robinson's only response to the above proposition is that it is an overstatement to observe that the text of s 99(1) does not state the requirement posited by him. That contention calls for the recognition of an unexpressed requirement as to the state of mind of a police officer that is in tension with the state of mind for which express provision is made.
Under s 99, it is a condition for a lawful arrest without warrant that the police officer suspects, on reasonable grounds, that the person is committing or has committed an offence. Nevertheless, Mr Robinson contends that before arresting a person without a warrant, a police officer must have reasonable and probable cause for commencing a prosecution.
An arresting police officer will have reasonable and probable cause for commencing a prosecution if the arresting officer:

believes that information in his or her possession points to the guilt of a person;
reasonably believes the information to be true; and
therefore believes that the person is so likely to be guilty of the offence for which the person has been arrested that a charge is warranted [178] . Thus, Mr Robinson's contention raises the distinction between suspicion, on the one hand, and belief, on the other.

In the case of arrest on suspicion, the arresting police officer must have satisfied himself or herself, at the time of the arrest, that there are reasonable grounds for suspecting the guilt of the arrested person. However, the grounds for the suspicion need not consist of admissible evidence. Suspicion is a state of conjecture or surmise where proof is lacking and the facts that can reasonably ground a suspicion may be quite insufficient to ground a reasonable belief. Nevertheless, a suspicion that something exists is more than a mere idle wondering whether it exists or not and there must be some factual basis for the suspicion. A suspicion is a positive feeling of actual apprehension or mistrust, amounting to a slight opinion but without sufficient evidence [179] . Consequently, a reason to suspect that a fact exists is more than a reason to consider the possibility of the existence of the fact. The reason to suspect is something that, in all the circumstances, would create in the mind of a reasonable person an actual apprehension or fear of the relevant matter [180] .
However, the objective circumstances sufficient to show a reason to believe something must point more clearly to the subject matter of the belief than suspicion of the matter. Belief is an inclination of the mind toward assenting to, rather than rejecting, a proposition, and the grounds that can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture [181] .
If a police officer must have reached that higher standard of having reasonable and probable cause to commence a prosecution before effecting a lawful arrest without a warrant, as Mr Robinson contends, the mental state necessary for a police officer to effect a lawful arrest without a warrant is something different from the mental state expressly referred to in s 99(1)(a), namely, suspicion on reasonable grounds. There is, therefore, a real tension between the express words of s 99(1)(a) and the implication for which Mr Robinson contends.
Mr Robinson responds to the suggestion of tension or inconsistency between the state of mind required by s 99(1)(a) and the state of mind required to commence a prosecution by saying that the distinction is, in practice, unreal. Thus, he says, there is no reason to think that, in general, an arresting police officer would be unable properly to make a complaint or lay a charge until the officer had had an opportunity to question the person arrested.
Moreover, while an arrested person must be brought before a justice, the time needed to bring the arrested person before a justice as soon as reasonably practicable is such as to allow time to decide whether or not to lay a charge. That is to say, even if there must be an intention to charge at the time of arrest, the actual decision to do so is the next step in the process. Thus, the purpose of bringing the arrested person before a justice as soon as reasonably practicable should be understood as being bringing the arrested person before a justice as soon as reasonably practicable if a decision is made to lay a charge against the person. Understood in that way, any tension between the mental state required for arrest and prosecution would be resolved. Reasonable suspicion is sufficient for arrest. If reasonable and probable cause to commence a prosecution is not reached by the expiry of the time within which it is reasonably practicable to bring the arrested person before a justice, the arrested person must be released without charge, as s 105 makes clear. That understanding is consistent with the fact that what must be stated to an arrested person at the time of an arrest is not the precise charge to be laid, if any, but, rather, the true ground for the arrest [182] .
It is clear from s 105(1) that a police officer may "discontinue" an arrest at any time. Section 105(2) demonstrates that the discontinuance might be for any reason, including because it is more appropriate to deal with the matter in some other manner, such as by issuing a warning or a caution. Section 105(3) provides expressly that discontinuance may occur despite any obligation on the part of a police officer to take the arrested person before an authorised officer to be dealt with according to law. The concept of "discontinuance" of an arrest is consistent with arrest being a process, which commences at the time when an arrest begins and continues through the subsequent detention. Thus, it is the detention that is discontinued.
When s 99 is read with s 105, it is clear that an arrested person might or might not be brought before an authorised officer to be dealt with according to law, depending upon the circumstances. Accordingly, while the arresting police officer must intend that the arrested person will be brought before an authorised officer, the police officer is not required to have decided that he or she will bring the person before an authorised officer for whatever reason. Those provisions, read together, recognise the kind of uncertainty on the point that may work on the mind of an arresting officer in the position of Constable Smith at the time of an arrest.
Mr Robinson asserts that such a contention misunderstands the purpose of s 105(1), which, he says, does no more than make it clear that if a police officer changes his or her mind about proceeding with the charge originally contemplated because, for example, the original suspicion has been dispelled by further investigation, then the officer would be under no obligation to continue the arrest merely to satisfy the duty imposed by s 99(3) to take the arrested person before an authorised officer. Mr Robinson's contention, of course, assumes the correctness of his basic proposition.
Mr Robinson accepts that there is nothing on the face of s 99(1) that expressly addresses the state of mind of an arresting police officer at the time of the arrest, but contends that the imposition by s 99(3) of a duty on the police officer to take the arrested person before an authorised officer to be dealt with according to law, as soon as reasonably practicable, suggests the additional requirement posited by him. Mr Robinson says that there can be no occasion to take the arrested person before an authorised officer unless there is an intention to charge the person. He also points to the fact that s 99(3) is consistent with, and has its origins in, the common law.
Again, Mr Robinson's contentions do no more than repeat his basic proposition that there is an additional requirement that must be met before an arrest is lawful. The fact that s 99(3) imposes a duty on the police officer to take the arrested person before an authorised officer as soon as reasonably practicable, to be dealt with according to law, says nothing about the state of mind of the arresting police officer at the time of the arrest.
It is clear from s 99(4) that a person who has been lawfully arrested under s 99(1) may be detained under Pt 9 for the purpose of investigating whether the person committed the offence for which the person was arrested and for any other purpose authorised by Pt 9. However, it is inconsistent with the facility for which Pt 9 provides that an arresting officer must, at the time of arrest, have concluded already that the arrested person will be charged. The notion underlying s 114(1) is that, following arrest, further investigation may be required before the commencement of criminal proceedings: the period of detention may need to be prolonged to permit that to occur. That indicates that, while the arresting police officer must have the intent to charge, the arresting officer is not required to have made the decision to do so.
While the linking of Pt 9 to s 99 is significant, the arrest must be "lawful". Whether or not an arrest is lawful depends upon the correctness of Mr Robinson's basic proposition. Mr Robinson contends that the statutory provision for detention to investigate is not inconsistent with an intention on the part of the arresting police officer, at the time of the arrest, to charge the arrested person. By the operation of s 105, the arrested person will be released if any subsequent investigation dispels the police officer's original suspicion that led to the formation of the intention to charge the arrested person. Those considerations rather support the conclusion that the link between Pt 9 and s 99 is equivocal as to the question presently under consideration.
The State also contends that certain of the reasons specified in s 99(1)(b), for which a police officer may consider arrest of a person to be reasonably necessary, are inconsistent with the requirement posited by Mr Robinson. For example, the State says, the purposes specified in pars (ii), (iii), (v), (viii) and (ix) are more directed to the investigation of an offence or to the protection of the public, rather than to laying a charge. The State propounds, by way of example, the circumstance of a police officer happening upon a person standing over a body, who, upon seeing the police officer, seeks to flee. It suggests that that may readily be a circumstance in which the police officer forms a reasonable suspicion, not necessarily amounting to a positive belief, that the person committed an offence, such that arrest is necessary to stop the person's flight. It would be difficult, the State says, to see how, without further investigation, the police officer could form a positive belief as to guilt so as to have reasonable and probable cause to commence a prosecution and therefore to charge a person. Nevertheless, the purpose of the arrest is not investigation. Rather, it is one or other reasons of the reasons set out in s 99(1)(b), depending on the circumstances. Additional information may be required to take the next step, which is limited by the six hour period in the Law Enforcement Act. Thus, a balance has been struck by the legislature.
Mr Robinson contends that the five reasons in s 99(1)(b) relied upon by the State are not inconsistent with the existence of the requirement posited by him. Thus, he says, a power to stop a person fleeing from a police officer is consistent with an intention to charge, being necessary only if it is proposed by the police officer to take the person before an authorised officer to answer a charge. Mr Robinson says that the power to enable inquiries to be made to establish a person's identity is not inconsistent with the posited requirement because it is only necessary to obtain the person's identity if it is proposed that the person be charged.
Mr Robinson also asserts that the power to obtain property in the possession of the arrested person that is connected with the offence can only be necessary for the purpose of securing evidence to be used against the person after a charge has been laid. Further, the power to protect the safety and welfare of persons other than the arrested person must, Mr Robinson asserts, be understood as concerning only those persons connected with, namely adversely affected by, the suspected offence. He says that the provision is consistent only with an intention on the part of the arresting officer to hold the arrested person accountable for the relevant offence. Finally, Mr Robinson says that the reference to the nature and seriousness of the offence should properly be regarded as supplementary to the considerations of securing the person's attendance before a court and the protection of the safety or welfare of others. He asserts that it is self-evident that the more serious the offence, the greater the risk of flight.
Mr Robinson asserts that all of the reasons set out in s 99(1)(b) are directed to the question of whether a Court Attendance Notice would be appropriate or whether, because of one or more of the considerations in s 99(1)(b), the police officer concerned could be satisfied that it is "reasonably necessary" to arrest. He asserts that that approach is consistent with the proposition that arrest should be reserved for circumstances in which it is clearly necessary and the proposition that it is inappropriate to resort to the power of arrest when issuing a Court Attendance Notice would suffice [183] . Those considerations support the conclusion that the matters relied on by the State in that regard are also equivocal as to the question presently under consideration.
Consideration of the context provided by the Amending Act, and of the differences between ss 99 and 105 before and after the amendments effected by the Amending Act, may be significant. Such a comparison helps to identify the mischief to which the amendments were directed.
First, the former s 99(3), which was expressed as a limitation on the power of arrest for the purpose of taking proceedings for an offence, has been deleted and incorporated in s 99(2), which no longer refers to the purpose of taking proceedings for an offence. That alteration weakens the connection between the arrest and the taking of proceedings, which lies at the heart of Mr Robinson's contentions. It also makes clear that there is a second step required, namely, to decide to charge. The purpose is not to commence prosecution, since that is a discrete phase.
Secondly, the reasons why a police officer may consider the arrest of a person to be reasonably necessary have been considerably expanded under the new s 99(1)(b) to include matters that are more directed to the investigation of an offence or for the protection of the public. That supports the State's contention that the common law purpose of arrest, to bring the arrested person before a justice or court as soon as is reasonably practicable, is but one of a number of lawful purposes, or reasons, for arrest.
Thirdly, if the reason for an arrest is, for example, to establish the identity of the arrested person rather than to charge the person, that purpose may be achieved relatively swiftly. The arrest may then be discontinued without bringing the person before an authorised officer. That would explain the introduction of s 105(3), as was acknowledged in the Parliamentary Report.
Fourthly, the Parliamentary Report referred to the view that the former terms of s 99 were complicated and difficult to apply and were lacking in clarity, saying that the proposed amended form of s 99 was intended to be clearer, simpler and more transparent. The current form of s 99 does not sit easily with a continued insistence that the purpose of arrest must be to bring the arrested person before an authorised officer as soon as reasonably practicable, particularly when s 99 is linked expressly to the investigative provisions in Pt 9 by s 99(4). The recognition of implied limitations, going beyond those expressly stated in s 99, would sit uneasily with the purpose of simplifying the provision so that it would be clearer and more transparent. Such considerations militate against the recognition of an implied limitation to the effect that the arresting officer must, before arrest, have formed the intention to charge the arrested person.
Mr Robinson contends that the text of s 99 is entirely consistent with the proposition for which he contends, as is the context in which s 99 was enacted and subsequently amended. He emphasises that the common law recognises as the only purposes of arrest and detention the purposes of charging the arrested person and taking the person before a court. He says that nothing in s 99 abrogates the right to personal liberty secured by the recognition of those purposes by the common law. He says that if the State's contention were accepted, there would be nothing in ss 99, 105 or the provisions of Pt 9 that would prevent a person from being subjected to serial arrests in respect of the same offence despite the fact that, on the occasion of each arrest, albeit that on such occasions the arrest is effected in good faith, the arresting officer had formed no intention of laying a charge. He asserts that such an outcome would be contrary to the fundamental right of personal liberty and at odds with the only purpose of arrest recognised by the common law.
It is difficult to imagine circumstances where there would be serial arrests that were all effected in good faith. The contention also ignores the fundamental stance adopted by the State that the current form of s 99 was intended to modify the common law, to the extent that the common law is inconsistent with the explicit terms of s 99.

Conclusion

The dual requirements of ss 99(1)(a) and 99(1)(b) must be met. However, arrest is the start of a process that must end within a limited time, either by the person arrested being taken before an authorised officer or by the person being released pursuant to s 105. The fact that one of the two possible endings to the process is laying a charge against the person does not mean that there must be a positive intent to lay a charge at the beginning of the process.
Mr Robinson's contentions do not grapple with the textual and contextual matters outlined above but proceed by reference to case law concerned with other provisions, including earlier iterations of s 99. While such matters may be relevant to the construction of s 99, to the extent that analogous reasoning is persuasive or general principle is relevant, the decided cases in relation to earlier, differently worded provisions are not determinative of the proper construction of the current form of s 99.
The restrictions that the common law places upon the purpose for which an arrested person may be held in custody may well, on occasions, hamper the police, sometimes seriously, in their investigation of crime and the institution of proceedings for its prosecution. That is to say, the jealousy with which the common law protects the personal liberty of the subject may not assist the police in the investigation of crime. However, such functions of the police are carried out in the interests of the community as a whole and not for some private end. Thus, legislative modification of such principles of the common law may be seen as reflecting a need that the common law does not meet. The striking of a balance between personal liberty and the exigencies of the investigation of crime is nevertheless a function of the legislature, not the courts. If the legislature considers that it is right to enhance the armoury of law enforcement, it is for the legislature to prescribe safeguards that might ameliorate the risk of unconscionable pressure being applied to persons under interrogation while being kept in custody [184] . In the absence of precise limits upon the power of police to detain an arrested person for questioning, the swing would be too far in favour of increased investigative powers at the expense of individual freedom [185] .
The principle of the common law, that the freedom of an individual should not be restricted without a warrant simply for the purpose of investigation, is of fundamental importance. While s 99 does not modify the common law principle to the extent contended by Mr Robinson, it has modified the common law to the extent that there is no longer a requirement that the person be charged. It is clear that, by amending s 99, the legislature intended to introduce a second step in the arresting process, the first being to satisfy ss 99(1)(a) and 99(1)(b), and the second being the exercise of discretion by a police officer when deciding to charge. In that way, the ultimate purpose of arrest is still to bring the arrested person before an authorised officer, by laying a charge, and the arrest cannot be for the purpose of investigation.
It follows that the conclusion of the primary judge was not erroneous and s 99 afforded a defence to the State against Mr Robinson's claim. Mr Robinson's appeal should be dismissed. Mr Robinson should pay the State's costs of the appeal.

Endnotes

Robinson v State of New South Wales [2017] NSWDC 289.
Ibid at [1].
The SNSW accepts that the references in Constable Smith's evidence to charging Mr Robinson were a loose way of describing the process under the Criminal Procedure Act 1986 (NSW) by which criminal proceedings are commenced against a person by a police officer issuing, and then filing, a Court Attendance Notice (CAN).
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2002 at 4846.
Ibid at 4848.
Section 9 dealt with a police officer's power to enter premises in emergencies.
Section 99 as it applied to the present case and subsection (3) of s 105 were inserted by the Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013 (NSW) (LEPRA Amendment Act).
In the LEPRA, authorised officer means (a) a Magistrate or a Children's Magistrate, or (b) a registrar of the Local Court, or (c) an employee of the Attorney General's Department authorised by the Attorney General as an authorised officer for the purposes of this Act either personally or as the holder of a specified office: s 3(1).
Section 105 had also been amended by the LEPRA Amendment Act, Sch 1[2].
Primary judgment at [14].
Ibid at [24].
Ibid at [44], [48].
Ibid at [38].
Ibid.
(2004) 62 NSWLR 58; [2004] NSWCA 320 (Zaravinos) at [37] (Santow JA and Adams J agreeing).
Primary judgment at [42].
Ibid at [44].
Ibid at [47] - [48].
[2017] HCA 34; (2017) 91 ALJR 936 (SZTAL) at [14] per Kiefel CJ, Nettle and Gordon JJ; see also [35] - [39] per Gageler J; Mighty River International Ltd v Hughes; Mighty River International Ltd v Mineral Resources Ltd [2018] HCA 38 at [42] per Kiefel CJ and Edelman J.
SZTAL at [14].
Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; [2014] HCA 42 per Crennan, Bell and Gageler JJ.
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 per Brennan CJ, Dawson, Toohey and Gummow JJ; Regional Express Holdings Ltd v Australian Federation of Air Pilots [2017] HCA 55; (2017) 92 ALJR 134 at [19] per Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ.
Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334 at [21] per Leeming JA (Ward and Emmett JJA agreeing).
Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37 at [62] per McHugh J; referred to with approval in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 at [31] per curiam (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
(2012) 250 CLR 503; [2012] HCA 55 (Consolidated Media Holdings) at [39] per curiam (French CJ, Hayne, Crennan, Bell and Gageler JJ).
Donaldson v Broomby (1982) 60 FLR 124 at 126 per Deane J (Kelly J agreeing) referred to with approval in Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441 at [22] per Gageler J and North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 (NAAJA v NT) at [222] per Nettle and Gordon JJ; Smith v Corrective Services Commission of NSW (1980) 147 CLR 134 at 139; [1980] HCA 49 per curiam (Stephen, Mason, Murphy, Aickin and Wilson JJ); Minogue v Victoria [2018] HCA 27; (2018) 92 ALJR 668 at [46] - [48] per Kiefel CJ, Bell, Keane, Nettle and Edelman JJ.
Webster v McIntosh (1980) 49 FLR 317 at 322 per Brennan J (Deane and Kelly JJ agreeing).
NAAJA v NT at [11] per French CJ, Kiefel and Bell JJ.
Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 (Williams) at 299 - 301 per Mason and Brennan JJ, at 305 per Wilson and Dawson JJ.
Christie v Leachinsky [1947] AC 573 (Christie) at 600 per Lord du Parcq.
Christie at 584 - 585 per Viscount Simon approving Scott LJ's statement to that effect in the Court of Appeal: Leachinsky v Christie [1946] KB 124 (Christie CA) at 130.
Zaravinos at [37] per Bryson JA (Santow JA and Adams J agreeing).
Williams at 306 per Wilson and Dawson JJ; cited with approval in NAAJA v NT at [24] per French CJ, Kiefel and Bell JJ.
Halliday v Nevill (1984) 155 CLR 1 at 12; [1984] HCA 80 per Brennan J; Williams at 292 - 293 per Mason and Brennan JJ.
Clarke v Bailey (1933) SR (NSW) 303 at 309 per Davidson J giving judgment for the Supreme Court in banco.
NAAJA v NT at [23]; Williams at 292 - 293 per Mason and Brennan JJ referring to Wright v Court (1825) 4 B & C 596 at 598; 107 ER 1182; at 305 per Wilson and Dawson JJ; see also Foster v The Queen [1993] HCA 80; (1993) 67 ALJR 550 (Foster) at 555 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ (Brennan and McHugh JJ agreeing with their Honours' orders); Nolan v Clifford (1904) 1 CLR 429; Zaravinos at [37] per Bryson JA (Santos JA and Adams J agreeing).
(1935) 35 SR (NSW) 182.
Ibid at 189 (Stephen and Street JJ agreeing). At that time, s 352(2)(a) of the Crimes Act empowered a constable to arrest without a warrant "any person whom he, with reasonable cause, suspects of having committed any such offence or crime … and take him …before a justice to be dealt with according to law." The words "such offence" referred to the expression "offence punishable, whether by indictment, or on summary conviction, under any Act" in s 352(1)(a): Thompson v Vincent [2005] NSWCA 219; (2005) 153 A Crim R 577 at [107] per Mason P (Handley JA and Pearlman AJA agreeing).
At 309.
Foster at 552.
Ibid.
Christie at 587 - 588 per Viscount Simon (Lord Thankerton and Lord Macmillan agreeing) at 591 - 593 per Lord Simonds; at 598 - 600 per Lord du Parcq; see also Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422 at [56] per Beazley JA (McColl and Young JJA agreeing).
See Christie CA at 130 (Uthwatt J agreeing).
The comparable process in this case would be a CAN.
Christie at 585 per Viscount Simon; see also Lord Simonds at 591 - 592.
Ibid at 586 - 587; see also Lord du Parcq at 600ff.
Adams v Kennedy (2000) 49 NSWLR 78 at [24] per Priestley JA (Sheller JA and Beazley JA agreeing); see also Wilson v New South Wales (2010) 207 A Crim R 499; [2010] NSWCA 333 at [60] per Hodgson JA (McColl and Young JJA agreeing); special leave refused: Wilson v New South Wales [2011] HCATrans 218.
(2012) 226 A Crim R 36; [2012] NSWCA 337 at [27] per Basten JA (McColl and Hoeben JJA agreeing). Dowse considered s 99, LEPRA, as in force prior to the LEPRA Amendment Act.
Ibid.
Lule v State of New South Wales [2018] NSWCA 125 (Lule) at [2] per Beazley P; State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185 at [87] per Beazley ACJ, Ward and Gleeson JJA; see also Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [40] per Gleeson CJ, Gummow, Hayne and Heydon JJ.
Clarke v Bailey at 309; see also Zaravinos at [26].
Williams at 298 (Mason and Brennan JJ); at 312 (Wilson and Dawson JJ).
Ibid at 312 - 313 (Wilson and Dawson JJ).
Attorney-General (NSW) v Dean (1990) 20 NSWLR 650 at 653 per Gleeson CJ, Kirby P and Priestley JA; see also Williams at 305 per Wilson and Dawson JJ. Although, as Samuels JA said in R v Walsh (Court of Criminal Appeal (NSW), 18 October 1990, unrep) (Walsh) at 24, this "statement may strictly be obiter'", I would agree with his Honour's observation that "it is a very strong expression of opinion and entitled to the greatest respect."
Primary judgment at [44].
At 310.
(2007) 230 CLR 500; [2007] HCA 10 (A v NSW) at [77].
Primary judgment at [42].
At 186; see also Trobridge v Hardy (1955) 94 CLR 147 at 152; [1955] HCA 68 per Fullagar J.
At 300.
The italicised passage was drawn almost verbatim from Dixon J's reasons in Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 at 382; [1935] HCA 30 and was cited with approval by the plurality in A v NSW at [82] in support of what will sustain "the objective aspect of an allegation of absence of reasonable and probable cause". Although their Honours counselled at [60] against the "inevitable tendency to translate the negative question - whether the defendant prosecutor acted without reasonable and probable cause - into the different question - what will constitute reasonable and probable cause to institute criminal proceedings", because of "the importance of the burden of proof and … the variety of factual and forensic circumstances in which the questions may arise", it is plain they accepted the basic principle applied in Williams as to what will constitute reasonable and probable cause to arrest.
(1990) 170 CLR 104; [1990] HCA 26.
(1938) 38 SR (NSW) 466 (Mitchell).
A v NSW at [64], referring to Mitchell at 469.
(1932) 48 CLR 81 at 106; [1932] HCA 54.
A v NSW at [65] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ; cf Callinan J at [165], [174], following Sharp v Biggs, albeit without discussing Mitchell.
Ibid at [66].
Ibid at [70].
Ibid at [71]. The word "prosecutor" was used throughout A v NSW to refer both to the police officer who preferred charges against A and to the Director of Public Prosecutions who took over the prosecution from the police: see [13] - [14].
Ibid at [76].
Ibid at [81].
Ibid at [84] - [85].
At [26].
Macfarlan JA (Beazley P and Barrett AJA agreeing) reached the same conclusion in relation to the present form of s 99 in Lule at [62] - [66]; see also per Beazley P at [2] in relation to s 99(1)(b).
O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 at 291, per Lord Steyn (Lords Goff of Chieveley, Mustill and Hoffmann agreeing).
At 115.
Ibid.
Ibid at 112; see also New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194 (NSW v Smith) at [122] per McColl JA.
At 469.
At [59].
(Samuels JA and Studdert J agreeing.)
At 8 - 9.
At 312.
At 24.
[2012] NSWCA 265.
At [62] - [64] (Campbell and Meagher JJA agreeing).
At [63].
[2001] NSWSC 523; (2001) 123 A Crim R 66 (DPP v Nicholls) at [15] - [16].
At [8].
Per Mason and Brennan JJ at 295; per Wilson and Dawson JJ at 306.
Part 10A was inserted in 1997: Crimes Amendment (Detention after Arrest) Act 1997, Sch 1(4).
DPP v Nicholls also appears to have been a very different case factually to Clyne having regard to the police officer's evidence as to why he placed Mr Nicholls "in custody": see [3] - [5], [14]. It was for that reason that Adams J had regard to the expanded definition of "under arrest". In Clyne, there was no doubt that Ms Clyne had been arrested as that term is ordinarily understood: see Clyne at [6].
[2001] NSWCCA 443; (2001) 126 A Crim R 216.
At [28] - [29] (Studdert and James JJ agreeing).
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; (2001) 21 NSWCCR 389 at [70] per Heydon JA (Priestley and Sheller JJA agreeing).
Section 34A(1), Justices Act 1959 (Tas).
R v Bathgate (1946) 46 SR 281 at 283 per Maxwell J, referred to with approval in R v Walsh per Samuels JA.
Review of the Law Enforcement (Powers and Responsibilities) 2002 [sic], Report Part 1 - Section 99, (25 October 2013) (Tink/Whelan Report).
At page 4.
At page 7.
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 October 2013 at 25092; see also the Tink/Whelan report at pp 2, 3 and 6.
NAAJA v NT at [86] per Gageler J; see also at [229] per Nettle and Gordon JJ.
At [23].
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) at [69] per McHugh, Gummow, Kirby and Hayne JJ.
Consolidated Media Holdings at [39].
Project Blue Sky, op cit.
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397; [1955] HCA 27 per Dixon CJ.
LEPRA, s 109(a), s 114(1) and (2).
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); [1997] HCA 2.
Williams v The Queen (1986) 161 CLR 278 at 304 (Wilson and Dawson JJ); [1986] HCA 88; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 at [222] (Nettle and Gordon JJ).
Christie v Leachinsky [1947] AC 573 at 596 (Lord du Parcq).
Alderson v Booth [1969] 2 QB 216 at 221 (Lord Parker CJ).
Christie at 592.
(1933) 33 SR (NSW) 303 (Davidson J, Street CJ and James J agreeing).
Clarke at 309.
(1825) 4 B&C 596; 107 ER 1182.
See Gillies, The Law of Criminal Investigation (Law Book Co, 1982), p 185.
(1935) 35 SR (NSW) 182 at 189 (Jordan CJ, Stephen J and Street J agreeing).
Bales at 190.
Williams at 293 (Mason and Brennan JJ), 306-307 (Wilson and Dawson JJ); [1986] HCA 88.
A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [1].
Williams at 283.
Williams at 284-285.
Williams at 285.
Williams at 291, quoting Underwood J in the court below.
Williams at 300.
(1938) 38 SR(NSW) 466 at 469.
(1935) 53 CLR 343 at 382.
[1962] AC 726 at 766-767.
A at [64]-[81].
[1952] AC 676 at 691; Williams at 297.
Williams at 306.
Williams at 312.
Williams at 305.
Unrep, 18 October 1990, NSW CCA (Gleeson CJ, Samuels JA and Studdert J).
The judgment, pp 8-9; see also pp 14-15 (Samuels JA) and p 26 (Studdert J agreeing with the Chief Justice).
Bales v Parmeter at 189.
[1966] SASR 227 at 235 (Napier CJ, Bright J and Mitchell J).
(2004) 62 NSWLR 58; [2004] NSWCA 320 at [23] (Bryson JA, Santow JA and Adams J agreeing).
These were the paragraphs satisfied in the present case; the full provision is set out at [15] above.
[2017] NSWCA 194 (McColl JA, Leeming JA and Sackville AJA agreeing with additional observations).
Law Enforcement Act, s 105(1).
Police Administration Act, s 137(2) and (3).
Police Administration Act, s 133AB(2).
(1986) 161 CLR 278 at 306 per Wilson and Dawson JJ.
(1986) 161 CLR 278 at 306.
Crimes Act 1914 (Cth), ss 23C‒23DA; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 114‒121; Police Powers and Responsibilities Act 2000 (Q), ss 403‒411; Summary Offences Act 1953 (SA), s 78; Criminal Law (Detention and Interrogation) Act 1995 (Tas), s 4; Crimes Act 1958 (Vic), ss 464A‒464B; Criminal Investigation Act 2006 (WA), ss 140‒142; Crimes Act 1900 (ACT), s 212.
North Australian Aboriginal Justice Agency at [230].
[2012] NSWCA 265.
Part 8A came into effect in December 2004.
[2012] NSWCA 337; 226 A Crim R 36.
Robinson v State of New South Wales [2017] NSWDC 289.
Robinson at [23] and [38].
Tcpt, 01/08/17, p 53(5).
See Shorter Oxford English Dictionary.
See Williams v The Queen (1986) 161 CLR 278 at 292-293; [1986] HCA 88 (Williams); Cleland v The Queen (1982) 151 CLR 1 at 26; [1982] HCA 67.
See Williams at 305-306; Zaravinos v New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320 at [37] (Zaravinos).
See Williams at 305-306.
See R v Walsh (Court of Criminal Appeal (NSW), Gleeson CJ and Samuels JA, 18 October 1990, unrep).
See Williams at 283-284.
Ibid at 298.
Ibid at 289-290.
Ibid at 312-313.
See Zaravinos at [23].
Ibid at [27].
See Dowse v New South Wales [2012] NSWCA 337 at [25]-[27].
See North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia (2015) 256 CLR 569; [2015] HCA 41 at [23].
See State of New South Wales v Smith [2017] NSWCA 194 (Smith).
See Coco v The Queen (1994) 179 CLR 427 at 437-438; [1994] HCA 15; Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [310] (Lee).
See Lee at [313].
Ibid at [314].
See Williams at 306.
See Zaravinos at [37].
See Law Enforcement Act, s 4.
See Al-Kateb v Godwin (2004) 219 CLR 562 at 577; [2004] HCA 37.
See Clyne v State of New South Wales [2012] NSWCA 265.
See Law Enforcement Act, ss 201(1)(c) and 201(3).
See Williams at 300.
See Lule v State of New South Wales [2018] NSWCA 125.
See George v Rockett (1990) 170 CLR 104 at 112, 115-116; [1990] HCA 26.
Ibid at 115-116.
See Law Enforcement Act, ss 201(1)(c) and 201(3).
See Smith at [102].
See Williams at 296.
Ibid at 312-313.

Amendments 17 October 2018 - [25] - changed "provides" to "provided" [36], [115] and footnote 48 - changed "2013 Amendment Act" to "LEPRA Amendment Act" [42] - changed "that effect" to "that the effect" [69] - inserted "(b)" after "99(1)" where cited [70] - inserted "(1)" between "99(b)" [77], [80] - changed "has" to "had" in Jordan CJ quote [80] - changed "an arrest" to "to arrest" [81] - changed "warrants" to "justifies" [110] - changed "relatively" to "relevantly" [114] - removed italics from "and" [157] - changed "Dawson and Wilson JJ" to "Wilson and Dawson JJ" [182] - changed "s 365C" to "s 356C" [189] - inserted "to" after Schedule 3" [197] - changed "s 8K" to "s 8(1) [206] - inserted "Part 9 of" "after Division 2 of" [225] - final sentence - changed "considering" to "conferring" [259] - final sentence - changed "four hour" to "six hour" 13 May 2020 - [15] corrected wording in citation s 99(1)(b)(vii) [76] corrected section cited to "s 352(2)" [109] inserting "nothing in" before "s 352(2)" [147] deleted "is" after "as soon as" [158] inserted "or her" before "liberty," Fn 136 corrected page number to "26" 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: 13 May 2020

Crimes Amendment (Detention after Arrest) Act 1997(NSW)

Law Enforcement (Powers and Responsibilities) Amendment (Arrest Without Warrant) Act 2013(NSW)

Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013(NSW)

Nicholls [2001] NSWSC 523; (2001) 123 A Crim R 66 Donaldson v Broomby (1982) 60 FLR 124 Dowse v New South Wales [2012] NSWCA 337; (2012) 226 A Crim R 36 Drymalik v Feldman [1966] SASR 227 Foster v The Queen [1993] HCA 80; (1993) 67 ALJR 550 George v Rockett (1990) 170 CLR 104; [1990] HCA 26 Glinski v McIver [1962] AC 726 Halliday v Nevill (1984) 155 CLR 1; [1984] HCA 80 John Lewis & Co Ltd v Tims [1952] AC 676 Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422 Leachinsky v Christie [1946] KB 124 Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Lule v State of New South Wales [2018] NSWCA 125 Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37 Mighty River International Ltd v Hughes; Mighty River International Ltd v Mineral Resources Ltd [2018] HCA 38 Minogue v Victoria [2018] HCA 27; (2018) 92 ALJR 668 Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194 Nolan v Clifford (1904) 1 CLR 429 North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334 Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Bathgate (1946) 46 SR 281 R v Dungay [2001] NSWCCA 443; (2001) 126 A Crim R 216 R v Walsh (Court of Criminal Appeal (NSW), 18 October 1990, unrep) Regional Express Holdings Ltd v Australian Federation of Air Pilots [2017] HCA 55; (2017) 92 ALJR 134 Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 Sharp v Biggs (1932) 48 CLR 81; [1932] HCA 54 Smith v Corrective Services Commission of NSW (1980) 147 CLR 134; [1980] HCA 49 State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185 State of New South Wales v Smith [2017] NSWCA 194 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936 Thompson v Vincent [2005] NSWCA 219; (2005) 153 A Crim R 577 Trobridge v Hardy (1955) 94 CLR 147; [1955] HCA 68 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 Webster v McIntosh (1980) 49 FLR 317 Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 Wilson v New South Wales (2010) 207 A Crim R 499; [2010] NSWCA 333 Wilson v New South Wales [2011] HCATrans 218 Wright v Court (1825) 4 B&C 596; 107 ER 1182 Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320 Texts Cited: Law Enforcement (Powers and Responsibilities) Bill 2002 (NSW)

Solicitors: Foott, Law & Co (Appellant) McCabes Lawyers Pty Ltd (Respondent) File Number(s): 2016/145043 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2017] NSWDC 289 Date of Decision: 03 August 2017 Before: P Taylor SC DCJ File Number(s): 2016/145043

headnote [This headnote is not to be read as part of the judgment] At 5 pm on 22 December 2013, the appellant attended a Sydney police station in response to attempts by police to contact him. Upon attendance he was immediately arrested, without warrant, for breach of an apprehended violence order. The appellant was offered, and accepted, the opportunity to participate in a record of interview. He was released without charge at 6.18pm, following the conclusion of the interview. The appellant commenced proceedings against the State of New South Wales, claiming damages for wrongful arrest and false imprisonment. The trial judge (P Taylor SC DCJ) dismissed the appellant's claim. The trial judge accepted the arresting officer's evidence that a decision whether to charge the appellant depended on what he said in the interview and that, at the time of the arrest, he had not decided to charge him. On appeal, the key issue was whether the arrest of the appellant was lawful under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), s 99, in circumstances where there was no positive intent to lay charges at the time of arrest. Section 99 of LEPRA relevantly provides: 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: … (iv) to ensure that the person appears before a court 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. The Court (McColl JA and Basten JA, Emmett AJA dissenting) allowed the appeal and held: Per McColl JA and Basten JA:

LEPRA s 99 must be construed in its context, including general law principles concerning the scope and purpose of arrest: [34]-[35]; [132]. North Australian Aboriginal Justice Agency Limited v Northern Territory (2015) 256 CLR 569; [2015] HCA 41; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, applied.
In legal terminology, "arrest" is generally used to identify that deprivation of liberty which is a precursor to the commencement of criminal proceedings against the person arrested, justified as necessary for the enforcement of the criminal law. The power to arrest exists, and must be exercised, for the purpose of bringing the person arrested before a justice as soon as reasonably practicable: [46]; [95]; [136]; [154]. Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88; Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320; Dowse v New South Wales [2012] NSWCA 337; 226 A Crim R 36; Bales v Parmeter (1935) 35 SR (NSW) 182; Christie v Leachinsky [1947] AC 573, applied; Clyne v State of New South Wales [2012] NSWCA 265, not followed.
Neither the text nor context of the statute suggests an intention to depart from these general law constraints: [120]; [124]-[127]; [165]-[167]; [173]. Rather, they are embedded in the language of s 99, and expressly preserved by LEPRA, s 4: [35]; [44]; [132]-[134]. As no decision whether to charge the appellant had been made at the time of arrest, the arrest was not for the purpose of commencing the criminal process; accordingly, it was unlawful: [128]-[129]; [194]. Per Emmett AJA, dissenting:
The legislative scheme contemplates a distinction between the decision to arrest and the decision to charge. A positive intent to charge at the time of arrest is not a necessary precondition of the valid exercise of the power of arrest under s 99; accordingly, the appellant's arrest was lawful: [251]; [253]; [257]; [270]-[274].

Primary judgment

The primary judge found, and Mr Robinson did not dispute at trial nor on appeal, that at the time of his arrest, Constable Smith suspected Mr Robinson had committed the offence of breaching the AVO. [10] His Honour also held that that Constable Smith had reasonable grounds for his suspicion that an offence had been committed. [11] Finally, relevantly, his Honour held that at the time of the arrest, Constable Smith was satisfied that Mr Robinson's arrest was necessary to ensure his appearance before a court (s 99(1)(b)(iv), LEPRA) and because of the nature and seriousness of the offence (s 99(1)(b)(ix), LEPRA). [12]
Mr Robinson's primary challenge to the question whether Constable Smith was satisfied that his arrest was reasonably necessary to ensure that he appeared before a court was that Constable Smith had conceded that he had not determined at the time of the arrest whether he would charge Mr Robinson. [13] He argued that if, in the belief of Constable Smith, Mr Robinson might not be charged, Constable Smith could 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. [14]
Mr Robinson relied in this respect on Zaravinos v State of New South Wales, [15] where Bryson JA held that an arrest was unlawful as being for an extraneous purpose if made "for the purpose of questioning [the arrested person] and investigating the circumstances of the suspected offence or of any other offence".
The primary judge rejected Mr Robinson's submission in this respect. His Honour held that if Mr Robinson's interpretation 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." [16]
Accordingly, the primary judge held that Constable Smith was satisfied that Mr Robinson's arrest was reasonably necessary to ensure that he appeared before a court within the meaning of the LEPRA, s 99(1)(b)(iv). [17]
The primary judge also held that he was satisfied that Mr Robinson's arrest was necessary because of the nature and seriousness of the offence such that the elements of the LEPRA, s 99(1)(b)(ix), were satisfied. [18]

Consideration

The competing contentions are whether, as Mr Robinson submits, a police arrest without warrant is unlawful unless, at the time of arrest, the arresting officer intends to charge the person arrested or, as the SNSW frames Mr Robinson's case, at the time of arrest an arresting police officer must have decided and intended to charge the plaintiff with an offence. Alternatively, as the SNSW contends, whether an arrest without warrant is lawful if effected for the purpose of investigating whether to charge the person arrested.
The SNSW accepted in the course of oral submissions in this court that Constable Smith's evidence that at the time of the arrest he had not decided if Mr Robinson was going to be charged was a sufficient evidentiary foundation for Mr Robinson's submission that he was unlawfully arrested.
Resolution of the issues raised on the appeal turns primarily upon issues of statutory construction. As emphasised most recently by the plurality in SZTAL v Minister for Immigration and Border Protection, [19] the starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, having regard to its context and purpose. Context should be regarded in its widest sense. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. [20]
Notwithstanding the necessity to construe s 99 by reference to its text, the pre-existing law concerning the common law power of arrest is necessary context for the purposes of the construction exercise. [21] That is not just because the modern approach to statutory interpretation uses "context" in its widest sense to include such things as the existing state of the law, [22] but also because the LEPRA, s 4, presupposes the continued existence of a police officer's powers at common law. [23]
The SNSW however criticises Mr Robinson's submissions as failing to grapple with the textual and contextual matters concerning s 99. It contends that, instead, Mr Robinson's submissions proceed by reference to a body of case law decided by reference to other provisions of the LEPRA including s 99 as it stood prior to the LEPRA Amendment Act. While the SNSW accepts that the case law may be relevant to the construction of s 99 to the extent that any analogy is persuasive or general principle is relevant, it submits that cases on previous provisions are not binding with respect to the new form of s 99 and that judicial decisions are not substitutes for the text of the legislation. Such decisions should not be given primacy. [24] As much may be accepted. Nevertheless, as I explain below, earlier decisions on powers of arrest without warrant form part of the interpretative context, and inform the process of interpreting s 99.
The SNSW emphasises the statement in Commissioner of Taxation v Consolidated Media Holdings Ltd, [25] that (footnote included): "[39] 'This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text'. [67 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself." [Emphasis added].
It is "plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable." [26] There is "a legal immunity from arrest and from the threat of arrest unless and until the conditions governing the exercise of the arresting power are fulfilled." [27]
Finally, "the principle of legality favours a construction, if one be available, which avoids or minimises the statute's encroachment upon fundamental principles, rights and freedoms at common law". [28]

(iv) case law

It will be necessary to refer to decisions dealing with the New South Wales legislation below; before taking that step it is appropriate to address the approach adopted by the High Court in North Australian Aboriginal Justice Agency with respect to legislation in the Northern Territory which, while not following the form of the Law Enforcement Act, adopted a similar structure.
Section 123 of the Police Administration Act (NT) conferred power on a police officer to, "without warrant, arrest and take into custody any person where he believes on reasonable grounds that the person has committed, or is committing or is about to commit an offence." (It is doubtful that the additional words "and take into custody" add anything to the concept of "arrest".) Section 137(1) provided that "a person taken into lawful custody … shall … be brought before a justice or a court of competent jurisdiction as soon as is practicable after being taken into custody, unless he or she is sooner granted bail under the Bail Act or is released from custody." (This provision reflects s 99(3) and s 105 of the Law Enforcement Act.) That obligation was subject to a power, with respect to certain defined offences, to hold the person "for a reasonable period" to enable the person to be questioned or investigations to be carried out. [143] With respect to relatively minor "infringement notice offences" the person could be held in custody for a period up to four hours or, if intoxicated, for a longer period until the police officer believed the person was no longer intoxicated. [144]
The case involved a challenge to the constitutional validity of those provisions. The challenge was rejected. Relevantly for present purposes, the joint reasons of French CJ, Kiefel and Bell JJ stated: "[24] Absent s 137, the common law would have imposed the like requirement that a person arrested under s 123 be taken before a justice of the peace as soon as practicable after arrest. At common law delay, even if for some purpose such as questioning or to dispel or confirm the suspicion which was the basis of the arrest, would defeat the true purpose of arrest. [145] Custody after arrest is an executive measure not an exercise of judicial power. As Wilson and Dawson JJ also observed in Williams: [146] 'The point at which an arrested person is brought before a justice upon a charge is the point at which the machinery of the law leading to trial is put into operation. It is the point from which the judicial process commences and purely ministerial functions cease.' The common law was modified by s 137(2) and (3) to enable post-arrest custody to be extended to 'a reasonable period' for the purpose of questioning the person arrested or for further investigations in relation to offences attracting custodial penalties. Similar modifications have been made in all Australian jurisdictions. [147] That modification reflected recommendations made by the Australian Law Reform Commission … in its interim report entitled Criminal Investigation published in 1975."
Nettle and Gordon JJ stated: "[223] Here, s 137(1) reflects the basic common law tenet that a person must be taken before a court as soon as reasonably practicable following arrest. A statute that departs from that fundamental position would need to be expressed in unmistakably clear terms." Nettle and Gordon JJ concluded that "the outer limit of four hours set by s 133AB(2)(a) is without prejudice to the requirement, which applies under s 137(1) to a person arrested under s 123 for an infringement notice offence, that the person be taken before a justice or court as soon as practicable after arrest unless sooner released …." [148]
It is convenient to turn to authorities in this Court. Clyne v State of New South Wales [149] dealt with provisions in Pt 10A of the Crimes Act as they operated in March 2003. (Relevant provisions of the Law Enforcement Act did not come into effect until 1 December 2005. [150] ) At that stage, (a) s 352(2) was in its historical form, including the obligation to take the arrested person before an authorised justice to be dealt with according to law; (b) s 356B reflected the current s 113; (c) s 356C reflected the current s 114, and (d) s 356D reflected the current s 115.
The critical reasoning in Clyne, at [63], commenced with the proposition that "s 352(2) … neither explicitly nor implicitly authorised arrests only if they were effected for the purpose of taking the person arrested before an authorised Justice." If that were literally true, it is a proposition which ignores the continued operation of the common law obligation (which was at least reflected in the language of s 352(2)) and is inconsistent with the approach adopted by the High Court in Williams, as well as earlier decisions of this Court in Clarke v Bailey and Bales v Parmeter.
The reasoning in Clyne continued in relation to s 352(2): "It simply required the constable to in fact take the arrested person before a court. However if some other statutory provision came into operation before the arrested person was taken before a court, the obligation to take the arrested person before a court might be displaced. Consistently with ss 356C and D, the arresting officer's intent at the time of arrest might lawfully have been only to question the person and deal with him or her as required by s 356C(4), that is, release the person or bring him or her before an authorised Justice."
Section 356C (now s 114) dealt with detention after arrest for the purpose of investigation and is conditioned upon the person already being under arrest. For the reasons set out above, in my view the approach adopted in Clyne in relation to these sections is inconsistent with basic principle and therefore untenable.
A different approach was adopted by a differently constituted court in Dowse v New South Wales. [151] It was no doubt unfortunate that Dowse was argued before Clyne, but judgment was delivered after Clyne. Clyne was not referred to in Dowse, which considered the relevant provisions of the Law Enforcement Act as in force in March 2007. I stated (with the agreement of McColl JA and Hoeben JA): "[26] While it is true, as Lord Hope explained in O'Hara, that there are two elements to be satisfied for a warrantless arrest to be valid, namely an honestly held suspicion in the mind of the arresting officer and information in the mind of the arresting officer which when objectively assessed provides reasonable grounds for the suspicion, these are not abstract and independent elements. They justify a deprivation of liberty which in turn is part of an ongoing process by which the person arrested must be taken before an authorised officer to be dealt with according to law: Law Enforcement Act, s 99(4). In other words, the arrest is a first step in the process by which the person is to be made answerable for the offence, the commission of which the officer suspects. The same underlying purpose is to be found in s 99(3) which limits the circumstances in which an officer may arrest a person 'for the purpose of taking proceedings for an offence against the person'; it thus assumes that such a purpose must underlie a valid arrest. [27] In other words, an arrest will not be valid merely because the officer believes that an offence has been committed, in circumstances where the officer has no intention of charging the person or having the person charged with that offence. If that were not so, the legal requirement that the person arrested be informed of the true grounds of the arrest would be rendered nugatory: see State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 at [9]-[11] (Ipp JA), adopting the reasoning of Lord Simonds in Christie v Leachinsky [1947] AC 573 at 591-592. …"
In favour of the reasoning in Clyne, it may be said that the issue now being addressed appears to have been directly raised in Clyne, but not in Dowse. Nevertheless, the approach adopted in Dowse is to be preferred; the result is consistent with that in relation to similar legislation upheld in North Australian Aboriginal Justice Agency.

(2001) 21 NSWCCR 389

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (18)

Cases Cited (81)

Cited By (12)