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[2025] NSWCA 118
appellant. Leave to appeal granted; the appellant must file its draft notice of appeal within seven days; appeal allowed; specified District Court orders and the interest order set aside and the plaintiff’s...
The Court of Appeal held that police do not have to consider alternatives to arrest in every case, and a court cannot simply substitute its own view about which option was best. A court can still review whether the officer’s state of satisfaction was legally unreasonable. The Court also held that, under the 2013 Bail Act, police bail powers apply to people in custody, not to someone who has not been arrested. Since the alternatives relied on at trial depended on imposing bail conditions without arrest, they were not available. The State’s appeal succeeded and Dennis’s claim was dismissed.
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2,315 words · generated 06/10/2026
Christopher Dennis operated Wagga City Auto Centre, a motor mechanic business in Wagga Wagga. The business inspected and tested vehicles and issued “pink slips”, which certify a vehicle’s roadworthiness for registration. On 19 March 2021, Senior Constable Owen attended the business with a Transport for NSW inspector and a Fair Trading employee for an audit [8].
20 cited instruments linked from this judgment.
The audit raised concerns about required testing equipment. The tint metre did not work, the brake test machine was set to the wrong date and time, and the inspector suspected that brake tests were being manipulated. Dennis accepted that the equipment did not meet applicable requirements but denied manipulating tests. The primary judge found Dennis had been calm, polite, compliant and cooperative during the audit [9].
After an interview, at 11:22 am, Owen arrested Dennis. Almost immediately, the officer said that “the only way that we can prevent further offences occurring is to place you on bail” and prevent further pink slips until the matter went before a magistrate [10]. Dennis was taken to the police station, charged with ten offences and released on police bail at 4:14 pm. A bail condition prevented his business from issuing authorised inspection station reports. He had been detained for about five hours. The charges were later dismissed [11].
Dennis sued the State for false imprisonment. The District Court found Owen had the required state of satisfaction under s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), but held the arrest unlawful because there were alternatives that would have met the officer’s purpose. Those suggested alternatives involved Dennis attending the station without being arrested, so that police could impose bail conditions. The District Court awarded $10,000 [3], [16]–[21].
The Court of Appeal granted leave because the issues had public and ongoing significance. The State agreed not to disturb the costs order below and to pay Dennis’s appeal costs regardless of the result [4]. The appeal was allowed. The Court set aside the relevant District Court orders and dismissed Dennis’s amended statement of claim [109], [111].
The first issue was how s 99(1)(b) works. It permits a police officer to arrest without a warrant where the officer is satisfied that arrest is reasonably necessary for one or more specified reasons. The officer must actually hold that state of satisfaction. The Court stressed, however, that this does not make the decision immune from review. A state of satisfaction may be legally flawed, including where it is manifestly unreasonable, arbitrary, capricious, irrational or not bona fide [28]–[30].
The Court construed “reasonably necessary” in this context as meaning “appropriate and adapted” to achieve one or more of the listed reasons [39]–[40], [60]. It rejected a construction that would require an objective proportionality assessment by a court. In the Court’s view, the statutory formulation gives the evaluative judgment to the arresting officer, subject to a restrained form of legal review [54]–[55].
That distinction mattered because the District Court had treated alternatives to arrest as matters the officer had to consider and weigh. The Court of Appeal held there is no universal rule that an officer must subjectively consider alternatives before every arrest. Alternatives can still be relevant: in an appropriate case, their availability may help show that the officer’s satisfaction was legally unreasonable. But the court is not to decide for itself whether an alternative should have been chosen [58]–[60].
The Court also rejected the idea that the existence of alternatives automatically proves invalidity. Even on the assumption that police could impose bail without arrest, the suggested courses involved Dennis being asked, or effectively required, to attend the station so that bail conditions could be imposed. The Court considered the practical difference between arrest and those alternatives limited. On the accepted facts, reasonable minds could differ about which course was appropriate, so the officer’s satisfaction was not legally unreasonable [65]–[66].
The second issue independently supported allowing the appeal. The Court considered whether the Bail Act 2013 (NSW) gave police power to impose bail conditions on a charged person who was not under arrest or otherwise in custody. It concluded that the Act’s structure points to police bail decisions being made in respect of people in custody. The statutory references to a person not in custody are not enough to imply a police power to impose conditions on that person’s liberty. They can be explained by court or authorised-justice decisions on detention applications [101], [104], [106].
Since each proposed alternative relied on police imposing a bail condition without arrest, the Court held those alternatives were not legally available [107]. This meant that the District Court’s reasoning failed on both the review of Owen’s state of satisfaction and the underlying assumption about police bail powers.
Before the 2013 amendments to s 99, the predecessor provision required an officer to suspect on reasonable grounds that arrest was necessary for an identified purpose. The Court described three material changes in the current provision: the reasonable-grounds requirement for the arrest necessity criterion was removed; “reasonably” was added before “necessary”; and the list of permissible reasons was expanded, including a reason based on the nature and seriousness of the offence [25]–[27].
The 2013 second reading speech described the legislative purpose as providing “clear, simple and effective powers of arrest” and responding to concerns that s 99 was complex [27]. The Court treated that legislative context as relevant to whether implied limits should be read into the current provision. It considered that context weighed against significant implied requirements, such as a mandatory alternatives analysis in every case [32]–[34], [53].
The judgment also addresses the relationship between earlier Court of Appeal authorities. In Randall and AD, the Court had described the relevant inquiry as the officer’s state of satisfaction, reviewable only on limited grounds [35]–[36]. Jankovic included statements suggesting a comparison of arrest with alternatives and an objectively reasonable assessment of whether continued freedom presented a significant risk. The Court of Appeal considered those statements had generated tension in the law. Kirk JA declined to adopt that approach [51]–[60]. Basten AJA said the relevant statements in Jankovic should not be followed because of the risk of error [135]–[137].
The judgment does not remove judicial review. Instead, it distinguishes review of legal limits from a court’s independent assessment of the best operational choice. The existence of an alternative may be evidence relevant to legal unreasonableness, but the Act does not make comparison of alternatives a universal precondition [58]–[60].
On bail, the judgment construes the 2013 Act as a comprehensive scheme. It does not simply carry forward an assumed approach under the repealed Bail Act 1978. The Court examined the police powers in ss 9, 11 and 43, read with provisions concerning custody, release and detention applications [82]–[83], [89]–[106]. Its stated conclusion is that the better view is that police may grant bail only with respect to a person in custody [106].
The decision is therefore a clarification of how the existing statutory text is to be read, rather than a legislative change. It also leaves room for alternatives to matter in an individual review, while rejecting a general obligation to compare them.
At [60], Kirk JA summarised the governing approach: “Reasonably necessary connotes, in this context, appropriate and adapted to achieve one or more of the identified reasons.” In plain English, the officer must be satisfied that arrest fits the stated law-enforcement purpose. The inquiry is not whether arrest was indispensable, nor is it a fresh judicial decision about the best possible response.
The same paragraph states that alternatives “might in some cases be relevant” but are not something police must subjectively consider “in every case as a condition of validity”. The practical point is that alternatives cannot be ignored as a possible part of the evidence, but they do not create a checklist that officers must work through each time.
At [66], the Court applied the restrained review standard to the facts. The officer’s concern was to stop further pink slips being issued where he suspected defective testing. Given the limited practical difference between arrest and the suggested courses, the Court said reasonable minds could differ. It was not enough that a judge preferred another course.
At [106], Kirk JA stated that “the better view is that police are only empowered to grant bail with respect to a person in custody.” This is a construction of the Bail Act’s scheme, not a statement that every person must be arrested before a court can make a bail decision. The Court specifically identified court and authorised-justice powers on detention applications as a way the Act can deal with a person not in custody [101], [104].
Basten AJA explained the concept more directly at [148]: “A person not in custody does not need to be released and therefore cannot be conditionally released.” His additional reasons emphasised that bail is conditional liberty, and that provisions dealing with persons not in custody do not imply an independent police power to restrict their liberty without arrest [148]–[151].
At [135], Basten AJA rejected the proposed proportionality gloss as a rewriting of the statutory test. His concern was that it would require courts to decide objectively whether continued freedom created a significant risk, rather than ask whether the officer held the state of satisfaction the statute requires.
The judgment is directly relevant where a claim of unlawful arrest turns on the second criterion in s 99(1)(b) of LEPRA: whether the officer was satisfied that arrest was reasonably necessary for a listed reason. It is particularly relevant where the officer’s actual state of mind is accepted or proved, but the plaintiff argues that the officer should have considered a less restrictive course [59]–[66].
The decision indicates that evidence of an alternative may matter where it bears on whether the officer’s satisfaction was legally unreasonable. It does not establish that every case with an available alternative is invalid. The question remains tied to the circumstances at the time and the stringent legal review standard [59]–[60], [66].
It is also relevant where a police officer arrests a person for the purpose of imposing bail conditions intended to prevent further conduct. The judgment treats arrest and bail as connected through the statutory scheme: on its construction, police bail powers apply to a person in custody, and an officer cannot rely on a supposed power to impose bail conditions on someone who has not been arrested [92]–[97], [106]–[107].
The case does not decide every possible question about arrest, nor does it determine the scope of bail powers under the repealed 1978 Act [78]–[82]. Its concrete setting involved an audit, suspected offences concerning vehicle testing, a contemplated condition against issuing pink slips, and proposed alternatives that all depended on imposing that condition without arrest [65], [107].
The judgment itself discusses several decisions that preceded it, rather than later treatment of State of New South Wales v Dennis. It cites Reeves v State of New South Wales [2024] NSWCA 125 and Emde v State of New South Wales [2025] NSWCA 41 as part of the prior appellate treatment of s 99(1)(b) [47]–[50]. Reeves preferred the approach in Randall and AD if there was a conflict with Jankovic [47]–[48]. Emde likewise treated the question as whether the officer’s state of satisfaction was legally unreasonable, rather than whether the court considered the response objectively proportionate [49].
Kirk JA used those decisions to explain why the District Court had faced tension in the authorities and why the Jankovic approach should not govern the issue [50]–[60]. Basten AJA separately traced the treatment of Randall, AD, Reeves and Emde and concluded that the statements in Jankovic concerning an objectively reasonable comparison should not be followed [118]–[137].
The supplied judgment provides no decisions issued after Dennis that show how later courts have treated this case. Accordingly, no conclusion about its subsequent reception can be drawn from the material provided. What can be said from the judgment itself is that it resolves the identified tension in favour of the state-of-satisfaction approach in Randall and AD, while accepting that alternatives can remain relevant to legal unreasonableness in a particular case [59]–[60].
The Court’s holding is framed around s 99(1)(b) and the facts before it. It does not decide that alternatives are irrelevant in every case. It expressly allows that alternatives may help demonstrate that the officer’s satisfaction was manifestly unreasonable, arbitrary, capricious, irrational or not bona fide [59]–[60]. The boundary between a relevant alternative and an impermissible merits comparison will therefore depend on the factual and statutory context.
Kirk JA did not decide whether directing a person to attend a police station, with police following, could itself amount to arrest [65]. That issue was unnecessary to the decision because the practical difference between the suggested courses and arrest was already limited, and because the proposed bail route was unavailable on the Court’s construction of the Act [65], [107].
The judgment does not determine police powers under the 1978 Bail Act. Kirk JA expressly left that historical issue unresolved [78]–[82]. Nor does the judgment explore every circumstance in which a person who is not in custody may be subject to a court or authorised justice bail decision. It identifies detention applications as the relevant statutory explanation for the provisions relied on in argument [101], [104].
Finally, the Court’s conclusion about police bail powers is expressed as the “better view” from the Act’s text and structure [106]. The judgment resolves that issue for this appeal, but questions about statutory amendments or materially different provisions are outside the supplied reasons.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: State of New South Wales v Dennis [2025] NSWCA 118
Hearing dates: 28 March 2025
Date of orders: 29 May 2025
Decision date: 29 May 2025
Before: Mitchelmore JA at [1];
Kirk JA at [2];
Basten AJA at [112].
Decision: (1) Leave to appeal is granted.
(2) The appellant must file its draft notice of appeal within seven days.
(3) Appeal allowed.
(4) Set aside orders 1 and 3 made by the District Court on 28 June 2024, along with the order made on 4 July 2024 with respect to interest, and in lieu thereof order that the plaintiff’s amended statement of claim is dismissed.
(5) The appellant is to pay the respondent’s costs of the appeal.
Catchwords: TORTS — trespass to the person — false imprisonment — wrongful arrest — whether power to arrest lawfully exercised under s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2022 (NSW) — whether arresting officer is required to consider available alternatives to arrest to form the requisite state of satisfaction under s 99(1)(b) — review by the court of state of satisfaction of arresting officer under s 99(1)(b) — construction of the “reasonable necessary” criterion
CRIME — bail — whether bail and bail conditions can be imposed pursuant to the Bail Act 2013 (NSW) where a person has been charged with an offence but not arrested — nature of bail — police not empowered to impose bail on a person not in custody
Legislation Cited: Bail Act 1978 (NSW), ss 7, 15, 17-21, 44-49 (repealed)
Bail Act 2013 (NSW), ss 4, 7, 8, 9-11, 13, 14, 17, 20A, 33-30A, 43, 44, 46, 48, 49, 50, 51, 92, Sch 1, cl 2.
District Court Act 1973 (NSW), s 127(2)(c)
Criminal Procedure Act 1986 (NSW), ss 15, 47, 53, 172, 173, 178, 229
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 105(2)(b), 107
Justices Act 1902 (NSW), s 153 (repealed)
Justices (Bail) Amendment Act 1918 (NSW)
Statute of Westminster 1275, 3 Edw 1, ch 12
Cases Cited: AD v State of New South Wales [2023] NSWCA 115; (2023) 308 A Crim R 367
Babet v Commonwealth; Palmer v Commonwealth [2025] HCA 21
Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24
Carey v State of New South Wales [2013] NSWDC 213
Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11
Emde v State of New South Wales [2025] NSWCA 41
Ex parte Hughes; re Moulden (1946) 47 SR (NSW) 91
Fleet v District Court of NSW [1999] NSWCA 363
George v Rockett (1990) 170 CLR 104; [1990] HCA 26
Ghanem v State of New South Wales [2024] NSWDC 213
Jankovic v Director of Public Prosecutions [2020] NSWCA 31; (2020) 281 A Crim R 378
Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299
Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180
Minister of Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12
Reeves v State of New South Wales [2024] NSWCA 125
Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
Re Nottingham Corporation [1897] 2 QB 502
State of New South Wales v Randall [2017] NSWCA 88
R v Peehi (1997) 41 NSWLR 476
State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334
State of New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46
State of New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194
Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33
Tilse v State of New South Wales [2013] NSWDC 265
Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88
Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2
Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320
Texts Cited: M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, 2022, Thomson Reuters),
R Creyke et al, Control of Government Action (6th ed, 2022, LexisNexis)
BHK Donovan, The Law of Bail: Practice, Procedure and Principles (1981, Legal Books)
P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Lawbook)
Sir William Holdsworth, A History of English Law (3rd ed, 1966, Sweet and Maxwell) Vol IX
New South Wales Law Reform Commission, Bail, Report no 133 (April 2012)
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 October 2013
Report of the Bail Review Committee, New South Wales, (August 1976)
Sir James Stephen, A History of the Criminal Law of England (1883, Macmillan & Co), vol 1, ch 6
Category: Principal judgment
Parties: State of New South Wales (Applicant)
Christopher Dennis (Respondent)
Representation: Counsel:
G Reynolds SC and M Gollan (Applicant)
D Toomey SC and D Woodbury (Respondent)
Solicitors:
McCabes Lawyers (Applicant)
McGirr & Associates (Respondent)
File Number(s): 2024/272080
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The respondent operated a motor mechanic business in Wagga Wagga. One service provided by the business was inspecting and testing motor vehicles and issuing “pink slips” for the purposes of vehicle registration. The respondent was arrested by an officer of the New South Wales Police Force following suspicions that his testing equipment was dysfunctional and that he was manipulating vehicle tests, following which he was charged with 10 offences. All charges were later dismissed.
The respondent sued the State (which is legally responsible for the police) in the District Court for false imprisonment in relation to the approximately five hours he spent in custody. The primary judge found that the officer’s predominant reason for arresting the respondent was so as to impose bail conditions to prevent him from issuing further defective pink slips. His Honour held that the arrest did not comply with s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) and was unlawful because there were alternatives available to the officer short of an arrest which would have met his purpose. Damages in the sum of $10,000 were awarded. A premise of this reasoning was that the police can grant bail on conditions with respect to a person who is not in custody.
The State sought leave to appeal. Two substantive issues arose:
(1) whether the primary judge erred in concluding that the officer’s state of satisfaction under s 99(1)(b) of LEPRA was vitiated because it was necessary for the officer to consider available alternatives in order to form the requisite state of satisfaction;
(2) whether the primary judge erred in proceeding on the basis that police can grant bail and impose bail conditions pursuant to the Bail Act 2013 (NSW) where a person has been charged with an offence but not arrested.
The Court held (Kirk JA, Mitchelmore JA agreeing and Basten AJA agreeing with additional reasons), granting leave to appeal and allowing the appeal:
As to leave to appeal
1. The case raises issues of principle and public importance which have ongoing significance for the police and the community. Given the lack of particular significance to the respondent beyond his own small claim, the State accepted that an appropriate condition of leave to appeal should be that it would not disturb the costs order below and would pay the respondent’s costs of the appeal regardless of the result. Leave should be granted on that basis: [4].
As to s 99(1)(b) of LEPRA
2. It has long been the case that a decision as to satisfaction is not unreviewable: [28]. The nature of the power, the circumstances in which it falls to be exercised and the nature of the decision-maker are all significant when construing a particular power and identifying applicable constraints or limitations. The context in which police officers exercise the power of arrest under s 99 militates against construing s 99(1)(b) as significantly hedged about with implied limitations: [29]-[34].
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275; [1996] HCA 6; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21; Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165, referred to.
Buck v Bavone (1976) 135 CLR 110 at 118-119; [1976] HCA 24, considered.
3. Section 99(1)(b) requires that the arresting police officer subjectively is satisfied that the arrest is reasonably necessary for one or more of the identified reasons. Reasonably necessary, connotes, in this context, appropriate and adapted to achieve one or more of the identified reasons. The arresting officer’s satisfaction must not be manifestly unreasonable, arbitrary, capricious, irrational, or not bona fide. The existence of alternatives to arrest might in some cases be relevant to assessing that issue. But the provision does not require police officers subjectively to consider alternatives to arrest in every case as a condition of validity. And it is not for the courts to substitute their own view as to whether alternatives should have been pursued: [60]. The trial judge’s three bases upon which he considered the decision of the officer to be invalid were erroneous, even on the assumption that it was open to police to impose bail conditions absent an arrest: [61]-[67].
State of New South Wales v Randall [2017] NSWCA 88; AD v State of New South Wales [2023] NSWCA 115; (2023) 308 A Crim R 367, applied.
Jankovic v Director of Public Prosecutions [2020] NSWCA 31; (2020) 281 A Crim R 378, disapproved.
Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41; Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, referred to.
Reeves v State of New South Wales [2024] NSWCA 125; Emde v State of New South Wales [2025] NSWCA 41, considered.
As to the powers of police to grant bail to someone not in custody
5. The notion of bail as identified in s 7(1) of the Bail Act involves a person being permitted to go free on conditions. The acknowledgements in ss 7(3) and 17(3) that the person in question might not be in custody when a bail decision is made is consistent with the fact that bail may be granted by a court or authorised justice to such a person when a detention application is made by a prosecutor. Section 43(1) does not have the significance attributed to it by the respondent and by the primary judge in Ghanem v State of New South Wales [2024] NSWDC 213. The police power to grant bail is found in a combination of ss 9, 11 and 43(2), and those provisions are suggestive of an assumption that the person is in custody (as is s 8(1)(a)). Such an assumption is also manifest in s 44(1)(b) and, if weakly, in s 46. In this context, the better view is that police are only empowered to grant bail with respect to a person in custody: [106]. Even if and to the extent that the officer had been obliged to consider alternatives to arrest, none of the putative alternatives was in fact available as they all assumed police were empowered to impose bail absent arrest: [107].
Ghanem v State of New South Wales [2024] NSWDC 213, disapproved.
State of New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46; R v Peehi (1997) 41 NSWLR 476; Dainer v Foster; Ex parte Tange (1984) 14 A Crim R 327, referred to.
6. Per Basten AJA: Bail only applies where a person is in custody or is subject to being returned to custody absent a further grant of conditional liberty. A person not in custody does not need to be released and therefore cannot be conditionally released: [148] The respondent’s attempts to construct by implication, in reference to ss 7(3) and 17(3), a power conferred on a police officer to constrain the liberty of an individual without arrest must be rejected: [149]-[151]. None of the “alternatives” available to the arresting officer could have resulted in the respondent being made the subject of a bail condition: [153].
MITCHELMORE JA: I agree with Kirk JA.
KIRK JA: Mr Christopher Dennis, the respondent, operated a motor mechanic business in Wagga Wagga. One service provided by the business was inspecting and testing motor vehicles and issuing “pink slips” for the purposes of vehicle registration. He was arrested by an officer of the New South Wales Police Force – for whom the appellant State is legally responsible – following suspicions that his testing equipment was dysfunctional and that he was manipulating vehicle testing. He was charged with 10 offences. The charges were later dismissed. He then sued the State in the District Court for false imprisonment in relation to the brief period he spent in custody.
The primary judge, Newlinds DCJ, found that the police officer’s predominant reason for arresting the respondent was to prevent him, by imposition of bail conditions, from committing further offences by issuing pink slips based upon a defective testing procedure. His Honour held that the arrest did not comply with s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) and was therefore unlawful because there were alternatives available to the arresting officer short of an arrest which would have met his purpose. A premise of this reasoning was that police can grant bail on conditions with respect to a person not in custody. Damages of $10,000 were awarded: Dennis v State of New South Wales [2024] NSWDC 252.
The State has sought leave to appeal. Leave is required given the amount at stake: District Court Act 1973 (NSW), s 127(2)(c). It is clear that the case raises issues of principle and public importance, militating in favour of a grant of leave. Those issues have ongoing significance for the police and the community. However, they are of no particular consequence to the respondent beyond his own, small claim. In that context the State accepted that an appropriate condition of leave to appeal should be that regardless of the result it would not seek to disturb the costs order made below and it would pay the respondent’s costs of the appeal. Leave to appeal should be granted on that basis.
Various matters were raised by the State in its submissions but it is sufficient to focus upon whether the primary judge erred in relation to two core issues:
in concluding that the officer’s state of satisfaction under s 99(1)(b) was vitiated because it was necessary for the arresting officer to consider available alternatives to arrest in order for the officer to form the requisite state of satisfaction;
in proceeding on the basis that police can grant bail and impose bail conditions pursuant to the Bail Act 2013 (NSW) (the 2013 Act) where a person has been charged with an offence but not arrested.
There was little dispute below about the facts. On 19 March 2021 a police officer from Wagga Wagga police station, Senior Constable Matthew Owen (SC Owen) attended the respondent’s business, Wagga City Auto Centre, for the purposes of conducting an audit. He was accompanying Inspector Jonathan Smith, an employee of Transport for New South Wales (TfNSW), and Ms Lauren Madden, an employee within the office of Fair Trading. The audit concerned the provision of pink slips to motor vehicle owners by the respondent’s business. Obtaining a pink slip certifying the roadworthiness of a vehicle is necessary for the vehicle to be registered for road use by TfNSW.
Whilst conducting the inspection SC Owen and Inspector Smith noticed issues with the “tint metre” and the “brake test machine”, both of which were listed as compulsory equipment under the relevant TfNSW rules. It was observed that the tint metre did not work, the brake test machine was wrongly calibrated as to date and time, and Inspector Smith suspected that the brake machine was being manipulated. That suspicion was reinforced following tests conducted that morning in the presence of the respondent. The respondent then voluntarily participated in an interview on site with SC Owen, Inspector Smith and Ms Madden. The respondent accepted that his tint metre and brake testing machine did not comply with the applicable rules but denied he was manipulating brake tests. Most of the interactions that day, including the interview, were recorded by SC Owen’s body worn camera. The primary judge noted that the respondent was calm, polite, compliant and cooperative throughout the audit process (at [14]).
At 11:22 am, following the interview, SC Owen arrested the respondent. Almost immediately after arresting him, SC Owen said that “the only way that we can prevent further offences occurring is to place you on bail and not to complete any more pink slips until the matter goes before a Magistrate”, adding that “at the end of the day, I want to ensure there’s safe cars on the road”.
Shortly thereafter the respondent’s solicitor attended the premises and requested that the arrest be discontinued. That request was declined and the respondent was conveyed to the local police station in a caged police vehicle. He was there charged with ten counts of publishing false and misleading material to obtain financial advantage or cause disadvantage. He was released on bail from custody at 4:14 pm that afternoon. He had been detained for some five hours. A condition of the police bail was “not permit any examiner to issue any [Authorised Inspection Station] report” – that is to say, the respondent was prevented from allowing pink slips to be issued by his business. He subsequently pleaded not guilty to the charges. The charges ultimately were all dismissed by the Local Court.
At the time of the arrest the respondent was suffering from non-Hodgkin’s lymphoma. He had received his fifth course of chemotherapy just over a week prior to his arrest. The police were aware of his cancer diagnosis and treatment and did their best to reduce any risks of him contracting COVID-19 – a great concern at the time – by wiping down various surfaces. The primary judge noted that the respondent was treated “fairly, respectfully, and compassionately by all police officers involved” (at [20]).
In proceedings filed in February 2023 the respondent sought general, aggravated and exemplary damages for false imprisonment. The claim depended upon the arrest being unlawful.
The arrest power relied upon was s 99(1) of LEPRA, which provides as follows:
(1) A police officer may, without a warrant, arrest a person if—
(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and
(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons—
(i) to stop the person committing or repeating the offence or committing another offence,
(ii) to stop the person fleeing from a police officer or from the location of the offence,
(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,
(iv) to ensure that the person appears before a court in relation to the offence,
(v) to obtain property in the possession of the person that is connected with the offence,
(vi) to preserve evidence of the offence or prevent the fabrication of evidence,
(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
(viii) to protect the safety or welfare of any person (including the person arrested),
(ix) because of the nature and seriousness of the offence.
The primary judge held that the arrest by SC Owen complied with s 99(1)(a) because the officer had reasonable grounds to suspect that the respondent had committed offences given that the tint metre did not work, the brake test machine was not properly calibrated, and there were reasons to suspect that the brake machine was being manipulated (at [57]-[67]).
As for s 99(1)(b), his Honour found that SC Owen did in fact hold the requisite state of mind with reference to the reasons in pars (i), (viii) and (ix) of the provision (at [70]-[78]). The judge concluded that the officer’s “predominant reason [for the arrest] was to prevent reoffending” (at [75]). His Honour said:
[70] … He believed it was reasonably necessary to arrest Mr Dennis because he was convinced that to not do so would lead inevitably to Mr Dennis issuing more pink slips that afternoon (presumably after he borrowed a replacement brake testing machine) in circumstances where SC Owen reasonably suspected that brake test manipulation had been going on. He considered the prospect of this continuing to pose a serious risk to public safety.
The judge held that if he was satisfied that SC Owen in fact had the requisite state of mind under s 99(1)(b), as he was, then the only basis upon which the decision could be vitiated would be if the state of satisfaction was unreasonable in the “Wednesbury” sense, that is, whether it was “manifestly unreasonable or arbitrary, capricious, irrational, or not bona fide” (at [40]). In that regard, his Honour cited authority of Basten AJA in this Court in AD v State of New South Wales [2023] NSWCA 115; (2023) 308 A Crim R 367 and State of New South Wales v Randall [2017] NSWCA 88.
The primary judge also discussed the judgment of Barrett AJA in Jankovic v Director of Public Prosecutions [2020] NSWCA 31; (2020) 281 A Crim R 378 and other decisions of this Court. Based upon his analysis of that case law he concluded:
[37] … Upon that basis, the necessity for there to be some sort of comparative assessment in all but the clearest of cases remains good law. For my part, I think that if a police officer concluded that an arrest was reasonably necessary without considering alternatives to arrest, such a state of mind probably does not satisfy the statutory test at all, but if it does such an approach may well readily result in a state of mind that can be branded as capricious or irrational, perhaps even arbitrary.
[38] A vital component in the “comparison" is the alternatives to arrest at the disposal of the police officer. A range of measures obviously less drastic than arrest is therefore a material matter to be considered as part of the police officer forming the relevant state of mind and then making a decision to arrest: Jankovic at [60], [61], and [62].
[81] … [T]here were available to SC Owen a raft of alternatives short of arresting Mr Dennis, which would have directly and completely met his concerns that he needed to put a stop immediately to the issuing of pink slips by Mr Dennis. Those alternatives included asking Mr Dennis to drive his own car to the police station, if necessary being followed by a police car, asking Mr Dennis to go with the police officers in a police car without arrest, asking Mr Dennis to have his wife (herself a former police officer) drive him to the police station, asking Mr Dennis to drive himself to the police station and telling him to get the police at the station to call SC Owen to confirm that he had arrived and in the meantime SC Owen remaining at the place of business, or alternatively leaving Inspector Smith at the place of business, and so on.
In this Court the parties accepted that the premise of all of these alternatives was that it was necessary to go to the police station in order to come before a sufficiently senior police officer who was authorised to impose bail conditions in order that a condition relating to pink slips be imposed. Thus all of the claimed alternatives to arrest depended upon an acceptance that police can impose bail conditions on a person who has not been arrested and who is not otherwise in custody. His Honour had earlier noted that “SC Owen accepted, I think, that police bail could have been granted that same afternoon, if Mr Dennis was not arrested but rather charged by police” (at [75]). SC Owen’s evidence was not clear on this issue, but at least on one view he did indeed assume that police could have imposed bail conditions on the respondent without having arrested him.
The primary judge noted that “SC Owen gave evidence before me to the effect that he did not consider any alternatives to arrest at all” (at [86]). However, his Honour did not accept that evidence as “I find it difficult to accept that he did not consider them, if only subconsciously” (ibid). Nevertheless, his Honour still considered SC Owen’s decision to arrest the respondent to be legally flawed:
[87] … I have come to the conclusion that either the decision was capricious in the sense that not all obviously relevant alternatives were taken into account or properly weighed up, so as to make the decision no more than a “knee-jerk reaction”, or if all were taken into account, in all the circumstances the state of mind reached by SC Owen was so unreasonable that I do not think any police officer acting reasonably in the same circumstances would have formed that state of mind. The simple fact is there were available to him many options short of arrest that totally met his fundamental reason. This means that the subsequent arrest and imprisonment of Mr Dennis is not rendered lawful by virtue of s 99.
Section 99(1)(b) in its current form has been considered by this Court in Randall in 2017, Jankovic in 2020, AD in 2023, in Reeves v State of New South Wales [2024] NSWCA 125 and in Emde v State of New South Wales [2025] NSWCA 41. There are somewhat disparate emphases in some of these judgments.
Section 99 was amended to its current form with effect from 16 December 2013 (leaving aside currently immaterial changes made in 2021 with respect to subsections (3) and (7)). Prior to that date s 99(3) was the predecessor to s 99(1)(b). It provided that a police officer could not arrest a person for the purpose of taking proceedings against them “unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes”, after which six purposes were listed.
There are relevantly three notable differences between the predecessor provision and s 99(1)(b):
The predecessor required the police officer not only to have a subjective suspicion that it was necessary to arrest the person for an identified purpose, but for that suspicion to be based on reasonable grounds: note State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334 (Robinson CA (No 1)) at [27], [34], [43]. The notion of reasonable grounds “requires the existence of facts which are sufficient to induce that state of mind in a reasonable person”: George v Rockett (1990) 170 CLR 104 at 112; [1990] HCA 26. In contrast, s 99(1)(b) is concerned with a state of satisfaction that an arrest is reasonably necessary, without any expressed requirement that the officer have reasonable grounds for having that satisfaction.
The predecessor used the word “necessary”. This Court construed the word to be employed in the sense of “needed to be done”, “required” or “cannot be dispensed with”: Robinson CA (No 1) at [42]-[43]. In s 99(1)(b) the word “reasonably” now qualifies “necessary”.
The list of purposes – now described as “reasons” – has been expanded in s 99(1)(b), including in particular by the inclusion of the ninth reason, “because of the nature and seriousness of the offence”.
The then Premier gave the second reading speech in the Legislative Assembly for the bill which revised s 99 in 2013 (Parliamentary Debates (Hansard), 30 October 2013, at 25092-25093), saying:
The purpose of this bill is … to ensure that police have clear, simple and effective powers of arrest to protect the community. …
Police have raised concerns that section 99 is complex and difficult to apply. This has resulted in offenders escaping conviction and at times large police payouts for wrongful arrests, even where the arrest is made by a police officer in good faith.
The job of front-line police is already hard enough, without being made harder by having to deal with legal complexities. The legislation seeks to “uncuff” the police so they can handcuff criminals. Concerns with section 99 were also raised in a recent decision by Judge Conlon of the District Court. In his judgement, Judge Conlon argued that section 99 was in urgent need of amendment. He stated:
The community would be entitled to be concerned that the provisions of this section do not take account of the extreme variables that confront police officers in dealing with aggressive, violent situations, especially when persons are under the influence of drugs and alcohol.
Section 99(1)(b) requires that the arresting police officer actually – ie subjectively – be satisfied that the arrest is reasonably necessary for one or more of the identified reasons. It is no longer necessary that the facts are sufficient to have also induced that state of mind in a reasonable person. However, the removal of the requirement for reasonable grounds does not mean that the issue depends only upon the officer’s own view. For a long time in this country it has not been “the case that a decision as to ‘satisfaction’ is unreviewable”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275; [1996] HCA 6; see also eg Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [131]-[137]; Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [54].
A classical explanation of how the courts approach statutory grants of power in such terms was given by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119; [1976] HCA 24:
It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.
This passage was approved by four members of the High Court in Liang at 275-276. It illustrates that the difference between the level of review applicable with respect to a satisfaction-type criterion and a reasonable grounds criterion is not necessarily substantial: note similarly Robin Creyke et al, Control of Government Action (6th ed, 2022, LexisNexis) at [9.3.49] in relation to review of such criteria and standard judicial review. Identifying what limits or conditions apply with respect to a statutory power is always a matter of construing the particular power in context. In that regard, the very fact that the power has been formulated in terms of the decision-maker’s satisfaction is relevant to its construction: note Liang at 276. And where the criterion in question “turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question”: Eshetu at [137].
The nature of the power, the circumstances in which it falls to be exercised, and the nature of the decision-maker, are all significant when construing a particular power and identifying any applicable constraints. Those factors are relevant because the Parliament can be presumed to have meant the power to be practically efficacious in the sorts of circumstances in which it will be exercised by the decision-maker in question.
The power of police officers to arrest without warrant is exercised in a wide range of conditions. It can be exercised in a relatively calm environment outside a police station, as this case illustrates. It can be exercised in the quietude of an interview room at a police station at the conclusion of voluntary questioning. It can also be exercised in the fraught atmosphere of dealing with domestic violence or in the midst of a street melee or violent demonstration, being situations of the kind the Premier referred to in his second reading speech. Commonly, although not invariably, the decision will need to be made quickly. So much is illustrated by many of the reasons listed in s 99(1)(b), such as stopping the person committing or repeating the offence or fleeing, or to preserve evidence, or to protect the safety and welfare of any person (including the person being arrested). The officers exercising the power may be a senior detective or a new constable, with concomitant variation of sophistication and experience. These matters militate against construing the criterion in s 99(1)(b) as significantly hedged about with implied limitations.
That is so even for implied limitations which generally apply to statutory powers. For example, where exercise of a statutory power is apt to affect the interests of an individual then it is presumed that the power must be exercised in a manner which affords procedural fairness: eg Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 at [75]. Yet, at least in general, a police officer could not be obliged to afford the person a chance to be heard as to whether or not they should be arrested. That is so taking account of the nature of the power, the circumstances in which it may be exercised, and the fact that the interests of the person are protected by the imperative that any person arrested be either bailed or brought before a court or authorised person as soon as practicable: LEPRA, s 99(3); 2013 Act, ss 44(1) and 46.
Accordingly, unlike the requirement for reasonable grounds, a challenge to the existence of a suspicion or state of satisfaction will only be available where it can be shown that the suspicion or state of satisfaction was manifestly unreasonable, or “arbitrary, capricious, irrational, or not bona fide”, as explained by Gummow J in [Eshetu at [131]-[137]]. [citations partially omitted]
His Honour did not refer there to other possible bases of review, such as failing to consider a mandatory relevant consideration or considering a prohibited irrelevant consideration. The passage does not necessarily exclude such matters, which were referred to in Buck v Bavone. Justice Basten referred to Gummow J’s judgment in Eshetu in which the passage from Buck v Bavone identified above was quoted (at [136]). Justice Basten himself referred to the passage from Buck v Bavone in AD at [19] (with Meagher JA agreeing at [1]; note also Griffiths AJA at [63] and [118]-[125]). As Basten JA put it in AD at [27], the issue turns on whether the police officer “has committed legally reviewable error in forming the requisite state of satisfaction”. That being said, there was nothing in either of his Honour’s judgments to suggest that there were other significant implied limitations or conditions to be applied.
In construing s 99(1)(b) there are two aspects in play, each of which can be argued to found some implied limitations: first, the notion of the officer’s satisfaction, which (as explained) at the least must not be manifestly unreasonable, arbitrary, capricious, irrational or not bona fide; second, the notion of being “reasonably necessary” to achieve one or more of the identified reasons. Needless to say the power must be construed as a whole and these two aspects must work sensibly together.
How should “reasonably necessary” be understood in the context of s 99(1)(b)? In Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41, at [39], Gleeson CJ noted that “the word ‘necessary’ has different shades of meaning”. In Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33, at [20]-[27], his Honour recognised that the phrase “reasonably necessary” was itself familiar to the law, again with varying connotations. In Robinson CA (No 1) this Court (at [43]) concluded that the then use of the word “necessary” in s 99(3) invoked the sense of “needed to be done” or “required” (see above at [26(2)]). In the 2013 amendments the qualifying word “reasonably” was added. As members of this Court recognised in Jankovic, that can be taken to have introduced an element of dilution: at [57] per Barrett AJA (with whom Macfarlan JA agreed at [1]), at [6] per White JA. Leaving aside the issue of proportionality, the Court did not there clearly articulate what degree of insistency the term “reasonably necessary” in s 99(1)(b) should now be understood to convey. Barrett AJA did appear to reject the view that it meant “essential or indispensable” (at [55]) and suggested it may connote something more than “convenient” (at [56]). White JA distinguished the notion from being “appropriate” (at [9]).
[60] … The section imports a requirement of proportionality into police officers' decision-making. Each of the reasons in s 99(1)(b)(i) to (ix) is expressed in terms of a particular outcome relevant to law enforcement. The reasons are concerned with the risk that lack of constraint upon a person through arrest might frustrate the attainment of one or more of those outcomes and thereby prejudice law enforcement. …
[61] The reasonably foreseeable consequences of continued freedom (either alone or in conjunction with other available measures) are to be compared with the obvious consequences of arrest. That comparison is to be made by reference to the whole of the circumstances prevailing at the time. The comparison will quantify the extent, if any, to which a continuation of freedom creates a risk that the attainment of any one or more of the stated law enforcement outcomes will be jeopardised. Only if, according to an objectively reasonable assessment, continuing freedom (with or without some other available measure) presents a significant risk to attainment of any of the law enforcement results will immediate arrest be a proportionate response to that risk and therefore substantially preferable and “reasonably necessary”. The police officer is required to assess the situation at hand and make an evaluative judgment.
[62] A vital component in the comparison is the alternatives to arrest at the disposal of the police officer. …
It is not necessary for police to arrest a person in order to charge them with an offence. A criminal proceeding can be commenced by serving the person with a court attendance notice regardless of arrest: see Criminal Procedure Act 1986 (NSW), ss 15, 47, 53, 172, 173 and 178. There may be other alternatives to arrest in certain circumstances, such as issuing the person with a caution or a warning: note LEPRA, ss 105(2)(b) and 107.
In Jankovic Barrett AJA referred at [67] to the arresting officer’s evidence in that case that “he did not turn his mind to the alternative of issuing a court attendance notice”, amongst other evidence. His Honour said:
That evidence, coupled with the absence of evidence that the police officer had considered any other alternative course of action, showed that he did not engage at all in the process of comparison and evaluation called for by LEPRA, s 99(1)(b) and did not address in any way the question whether arrest (the course he had decided upon in advance) was a proportionate response to a risk that he perceived upon coming into contact with the applicant.
His Honour seems to have concluded that the police officer could not have been satisfied as to the reasonable necessity of the arrest because he had not in fact considered alternatives to arrest. Thus his Honour seemed to consider that there was a subjective element involved in his recognition of proportionality insofar as it requires the arresting officer actually to consider alternatives. There seemed also to be an objective element to be assessed by the Court, as indicated in his reference at [61] to the necessity for “an objectively reasonable assessment” as to whether continuing freedom presents a significant risk to attainment of any of the law enforcement results. That understanding seems contrary to the view expressed by Basten JA in Randall that each limb of s 99(1) involves a precondition which “depends, not upon objectively verifiable circumstances, but on the state of satisfaction of the officer” (at [13], emphasis added).
In Jankovic, White JA dissented on the result for reasons relating to whether jurisdictional error had been established in the decision of the primary judge. Notably, however, his Honour said this:
[8] There may be many cases in which a police officer could be satisfied that an arrest was reasonably necessary for one of the stated purposes without the officer’s having consciously to weigh all alternatives. A violent assault could be such a case. ...
[9] Nonetheless, as Barrett AJA explains, it is not enough that the police officer effecting the arrest without warrant is satisfied that the arrest is appropriate for one of the purposes specified in s 99(1)(b). It must be reasonably necessary for one of those purposes and reasonable necessity calls for the consideration of alternatives, except perhaps if the case is so clear that no alternative could reasonably be available.
There is some tension between what is said in these paragraphs. The first contemplates “many cases” in which an arresting officer need not subjectively “weigh all alternatives”. Yet the second suggests that alternatives must be considered except perhaps in the clearest of cases.
In Reeves the plaintiff-appellant contended that the decisions of Basten JA in Randall and AD concerning the operation of s 99(1)(b) were wrongly decided, arguing that they were inconsistent with Jankovic. Chief Justice Bell, with whom Stern JA agreed (at [212]) and White JA relevantly agreed (at [189]-[190]), rejected the argument that Basten JA’s decisions were wrongly decided (at [116]). His Honour said:
The Appellant sought to generate a conflict between the decision of Barrett AJA in Jankovic and Basten JA in Randall and AD but I do not think that any conflict arises and, even if it did, the interpretation of s 99(1) given by Basten JA should be preferred. Barrett AJA’s decision was focused on whether reasonable necessity required an arresting police officer to consider alternatives to arrest. His Honour referred to considerations of proportionality by reference to the decision of Kiefel J in Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2 (Wotton) in order to suggest that something more akin to an objective rather than subjective inquiry was to be made in relation to whether the arresting officer held the requisite state of satisfaction. To the extent that Barrett AJA’s observations were derived from the reasons of Kiefel J in Wotton, it should be noted that her Honour wrote separately in that case and was considering a different statutory regime from s 99(1) of LEPRA, namely s 200(2) of the Corrective Services Act 2006 (Qld) which provided that the Parole Board could grant a parole order containing conditions that, pursuant to s 200(3) of the same Act, it “reasonably considers necessary” to “ensure [a] prisoner’s good conduct” or “stop [a] prisoner committing an offence”. That provision, unlike s 99(1)(b) of LEPRA, involved no element of subjectivity.
Thus whilst the Chief Justice tended to the view that there was no conflict between the identified decisions, his Honour made clear that if there was such a conflict then the interpretation adopted by Basten JA should be preferred. The remainder of the paragraph was implicitly critical of the analysis of Barrett AJA in Jankovic. His Honour went on to give further reasons for rejecting the appellant’s argument in that case (at [117]-[121]).
In Emde, decided earlier this year, this Court refused leave to appeal in a case in which the applicant had sought to rely upon what had been said as to proportionality in Jankovic. Justice McHugh, with whom Gleeson JA and I agreed, referred at [80] to what Bell CJ had said in Reeves at [116] about preferring the approach of Basten JA insofar as there was any conflict. His Honour then said:
[81] On that understanding, which was not challenged, the question is not whether the police officer’s response was objectively proportionate. An arrest is not ‘unlawful merely because the police officer’s satisfaction … is not reasonable’: see Jankovic at [7] (White JA), quoted in Reeves at [113]. If there are any remaining tensions in the case law they were not drawn out in argument in this matter and it is not appropriate to address them.
[82] The question thus was whether the officer’s s 99(1)(b) state of satisfaction was manifestly unreasonable, or arbitrary, capricious, irrational, or not bona fide. …
In this case the primary judge noted that there “is a question” as to whether Jankovic “remains significant” following Reeves (at [36]). His Honour said that his reading of Reeves was that “subject to some doubt about introducing concepts of proportionality into the equation”, the remarks of Barrett AJA concerning a comparison between arrest and other available options remain good law, “at least as a method of considering if a state of mind was manifestly unreasonable” (at [37]).
It is apparent from the primary judgment in this case, from the arguments presented on appeal by both sides, and from the analysis above, that there is at the least tension between Jankovic and other decisions of this Court. Resolution of that tension lies at the heart of this appeal.
As noted, Barrett AJA’s approach seemed to involve both a subjective requirement for the arresting officer actually to consider alternatives to arrest prior to exercising the s 99 power and an objective element of proportionality which could later be assessed by a court. Both seem to have been founded on the reference to reasonable necessity in s 99(1)(b). Neither should be accepted in the manner in which they were put by his Honour.
A subjective requirement to consider alternatives prior to effecting a lawful arrest seems to approach recognition of an implied mandatory relevant consideration, or at least a mandatory decision-making process. In any event, first, any such requirement is impractical and thus unlikely to have been intended. Such a mandatory consideration or process will commonly be unviable, at least when arrests are effected in circumstances of urgency, as the Premier alluded to. So much was implicitly recognised by White JA at [8] of Jankovic. That it is commonly unviable weighs heavily against it being considered a prerequisite to making a valid arrest. Also relevant here are the matters identified above at [31]-[34]. And an implied requirement does not sit well with the text understood in its context. It could reasonably be seen as an example of the sort of “legal complexities” which the Premier indicated the provision was meant to avoid. The Parliament’s move in 2013 to expressing the criterion in subjective terms without a requirement of reasonable grounds is relevant to construction here (see above at [30]). And as was noted in Jankovic itself, the introduction of the qualifying word “reasonably” before the word “necessary” was plainly meant to be a factor dilutive of legal scrutiny.
As for regarding the reasonable necessity aspect as introducing an “objectively reasonable assessment” going to proportionality, that is subject to much the same objections along with some additional concerns. At least on one view it seems to be rendering the issue of whether the arrest was proportionate a jurisdictional fact, for which courts are empowered to engage in their own merits review. Yet that understanding is inconsistent with the point – appropriately emphasised in and – that the criterion is expressed in terms of the satisfaction of the arresting officer. That formulation plainly is meant to confer the power of evaluative judgment on the arresting officer, subject to the somewhat restrained form of legal review that can apply to such powers. To regard the reference to “reasonable necessity” as introducing a form of objective merits review by the back door would defeat that intention.
[74] There have been many judicial statements about the inappropriateness of resort to the power of arrest (by warrant or otherwise) when the issue and service of a summons would suffice adequately (O'Brien v Brabner (1885) 49 JP 227, R v Thompson [1909] 2 KB 614 at 617, Dumbrell v Roberts [1944] 1 All ER 326 at 332, Chung v Elder (1991) 31 FCR 43). Some are in a legal context that differs from the present. … Nevertheless, it remains appropriate that those vested with extraordinary powers of arrest should be reminded of the need to consider whether they should be exercised in a particular case. The arrest in this case seems to have an element of the arbitrary about it, which brings to mind the tyranny Deane J warned against. Such cases are harmful to the free society we all want to preserve.
As is implicit in that discussion, such issues must be considered in the context of the operative statutory regime. Moreover, a rejection of the approach suggested by Barrett AJA in Jankovic does not mean that the availability of alternatives to arrest in any particular case cannot be of significance, especially when there is “an element of the arbitrary” about a decision to arrest someone.
It is now well-established, consistent with foundational authority about review of the satisfaction of a decision-maker, that the officer’s satisfaction referred to in s 99(1)(b) must not be legally unreasonable. The availability of alternatives to arrest can be relevant to the assessment of whether that implied requirement is satisfied. In some cases it may be so clear in all the circumstances that alternatives to arrest should have been pursued that the officer’s subjective satisfaction that arrest was reasonably necessary in the requisite sense would be regarded as manifestly unreasonable, arbitrary, capricious or not bona fide. Such an unreasonable view would not be a sufficient satisfaction for the purposes of the provision. But the possibility of that type of analysis is well removed from what seems to have been suggested in Jankovic.
In summary, then, s 99(1)(b) requires that the arresting police officer subjectively is satisfied that the arrest is reasonably necessary for one or more of the identified reasons. Reasonably necessary connotes, in this context, appropriate and adapted to achieve one or more of the identified reasons. The arresting officer’s satisfaction must not be manifestly unreasonable, arbitrary, capricious, irrational, or not bona fide. The existence of alternatives to arrest might in some cases be relevant to assessing that issue. But the provision does not require police officers subjectively to consider alternatives to arrest in every case as a condition of validity. And it is not for the courts to substitute their own view as to whether alternatives should have been pursued.
The primary judge – understandably – relied on an understanding of s 99(1)(b) derived from Jankovic. That understanding should not be accepted.
More specifically, the primary judge identified three ways in which he considered the decision of SC Owen to arrest the respondent could be said to be invalid (at [87] – quoted above at [21]). The first was that the decision was capricious in the sense that not all obviously relevant alternatives were taken into account. That point assumes that the officer was required subjectively to take into account alternatives to arrest. There is no such requirement.
The second – that not all alternatives had been “properly weighed up” – seems to involve merits review. That is not the role of the courts in such cases.
The third was expressed in terms that the conclusion was so unreasonable that no police officer acting reasonably in the same circumstances would have formed that state of mind. That is a way of expressing the requirement which is consistent with the principles explained above. However, his Honour fell into error in application of that requirement.
Let it be assumed here that the primary judge was correct to consider that the arresting officer could have granted bail to the respondent, on condition that he not continue issuing pink slips, without arresting him. The putative alternatives that the primary judge identified at [81] (quoted above at [19]) all involved “asking” the respondent to come to the police station to be bailed, whether driven by himself or his wife, and potentially “being followed by a police car”, with SC Owen or Inspector Smith potentially remaining at the respondent’s place of business until the respondent was at the police station so as to ensure that no further pink slips were issued. Presumably the respondent would have been “asked” to so act on the express or implicit basis that if he did not comply then he would be arrested. That being so, all the alternatives involved a degree of compulsion that the respondent attend the police station in order to be charged and put on conditional bail. Indeed, it may be arguable that for SC Owen to direct the respondent to go to the police station, following behind him in a police vehicle, would itself be a form of arrest. It is not necessary to resolve that point. It suffices to say that the practical difference between arrest and the putative alternatives is limited.
The primary judge accepted that SC Owen subjectively considered it reasonably necessary to arrest the respondent in order to stop him committing further offences, to protect the safety and welfare of other persons, and in recognition of the nature and seriousness of the offences in question. In the context just outlined, it cannot be said that SC Owen’s satisfaction was manifestly unreasonable or such like. The difference between arrest and the alternatives was relatively slight, and whether one should be pursued over the others was an evaluative matter upon which reasonable minds could reasonably differ (cf at [137]). The notion of legal unreasonableness is stringent and conclusions that it has been established are rare: (2013) 249 CLR 332; [2013] HCA 18 at [113] (Gageler J). This was not a case in which such a conclusion was warranted.
As noted, the State did not dispute in the Court below that police have power to grant bail on conditions to a person who has been charged but not arrested. The primary judge thus did not address the issue. His Honour had considered the point in an earlier decision, holding that there was such a power: Ghanem v State of New South Wales [2024] NSWDC 213 at [88]-[108]. As he aptly said there (at [92]), “[s]urprisingly, on what one might think is a rather important question, there does not appear to be direct considered authority one way or the other in a case where the point was argued”.
Such powers as the police relevantly have to grant bail are to be found in the 2013 Act. Neither party suggested otherwise. Before considering that Act it is useful to outline something of the historical context in which it was enacted.
Bail is a concept of very long standing, noting that there are definitional issues as to precisely what has been understood to constitute “bail” from time to time. It has been said that “[h]istorically, ‘bail’ applied only to release on financial recognizances”, as opposed to other conditional and unconditional forms of release: Report of the Bail Review Committee, New South Wales, (August 1976) at 13 (1976 Report). Bail has been distinguished from mainprise: Re Nottingham Corporation [1897] 2 QB 502 at 510-511 (Pollock B); Sir William Holdsworth, A History of English Law (3rd ed, 1966, Sweet and Maxwell) Vol IX at 105-106. It is not necessary to analyse such historical distinctions here. Sir James Stephen explained that “[t]he right to be bailed in certain cases is as old as the law of England itself”: A History of the Criminal Law of England (1883, Macmillan & Co), vol 1, ch 6 at 233. The granting of bail has been addressed by statute since at least the Statute of Westminster 1275*,* 3 Edw 1, ch 12: noted in Ex parte Hughes*; re Moulden* (1946) 47 SR (NSW) 91 at 96 (Davidson J). Stephen described that statute as “for 550 years the main foundation of the law of bail” (at 234).
In this State the topic of police bail (using the term broadly) was specifically addressed in a local statute when the Justices (Bail) Amendment Act 1918 (NSW) introduced s 153 into the Justices Act 1902 (NSW). Section 153 was an adaptation of an English provision: Hughes at 93 (Jordan CJ). As originally enacted, s 153(1) provided (emphasis added):
Any officer of police of or above the rank of inspector, and any officer of police of or above the rank of sergeant in charge of a police station, and any gaoler shall have the same power of discharging any person who is in custody upon his entering into a recognizance, with or without sureties, for a reasonable amount, to appear before a justice or a court at the time and place named in the recognizance, or to comply with any order, or to perform any act, as a justice has under the provisions of this Act. When any such officer or gaoler refuses to discharge any such person on recognizance as aforesaid the person shall, if he so demands, be brought before a justice as soon as practicable, and the justice shall thereupon hear and determine the matter.
Police bail powers are used only where a defendant is arrested. If the summons procedure is used instead, the defendant is not taken into custody and the need for bail does not arise.
Bail is when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or an such case, so that he is restrained of his liberty, and being by law bailable, offers sureties to those who have authority to bail him, which sureties are bound for him to the King’s use in a certain sum of money or body for body, that he shall appear before the justices of gaol delivery at the next sessions, &c.; then upon the bonds of these sureties as is aforesaid he is bailed, that is, set at liberty, until the day appointed for his appearance.
Other historical sources are also consistent with this understanding: see eg BHK Donovan, The Law of Bail: Practice, Procedure and Principles (1981, Legal Books) at 19-21. Donovan quotes Earl Jowitt’s Dictionary of English Law (1st ed, 1959) saying that “[a]n accused person is said at common law to be admitted to bail when he is released from the custody of officers of the law and is entrusted to the custody of person known as his sureties …” (at 21, emphasis added).
The 1976 Report arose as a result of KS Anderson and S Armstrong being commissioned by Attorney General Frank Walker to examine and report on the system of bail in this State and to propose any necessary changes.
Two years later the Bail Act 1978 (NSW) (the 1978 Act) was enacted. Under s 4 of that statute “bail” was defined to mean “authorisation to be at liberty under this Act, instead of in custody”. Section 7 related to rights following the grant of bail and said that when bail had been granted to an accused person (and certain other conditions met) then the person “is, subject to this Act, entitled to be released (if in custody) and to remain at liberty in respect of the offence, until he is required to appear before a court in accordance with his undertaking”. Section 15 was in the following terms:
(1) An accused person may be granted or refused bail in accordance with this Act, notwithstanding that he is not in custody.
(2) Nothing in this Act requires the grant of bail to an accused person who is not in custody.
Sections 17-21, within Pt III of the Act, set out relevant powers and processes regarding police bail. Section 17(1) provided that a police officer of the rank of sergeant or above, or who was in charge of the police station, “may grant bail in accordance with this Act to an accused person who is present at a police station”. Section 18(1) stated that “[w]here a person is charged by a police officer with an offence and the person is in custody” then the relevant officer was obliged to do certain things, including provide the person with certain information and to determine whether or not to grant bail (if the officer was authorised to do so).
In Carey v State of New South Wales [2013] NSWDC 213, Neilson DCJ held that “the ability of police to grant bail is … governed by s 18(1), which requires that police can grant bail only where a person is in custody” (at [47], see generally [40]-[47]). His Honour was of the view that the “general provision of s 15” did not override the “special provision in s 18” (at [47]). However, shortly thereafter his Honour changed his mind, concluding that bail could be granted by police whether or not a person was in custody: Tilse v State of New South Wales [2013] NSWDC 265 at [138]-[152]. It is not necessary for me to seek to address the issue as regards the 1978 Act.
It is worth noting, however, that the acknowledgement in s 15(1) that a person not in custody may be granted or refused bail does not necessarily establish that police officers had power to grant bail to a person not in custody. Courts had power to review bail decisions, including at the instigation of an informant or the Attorney-General (ss 44-49). Such reviews might lead to the detention of person not in custody. The position might thus have been as the New South Wales Law Reform Commission summarised it in 2012 (Bail, Report no 133 (April 2012) – the 2012 Report):
When a person is apprehended by police for a criminal offence, the person may be brought before a court or the person may be required to attend court by notice without arrest. Once arrested by police and once before a court with or without arrest, the Bail Act [1978] provides the framework for decisions to be made concerning the release or detention of the person pending determination of the proceedings.
The respondent argued that ss 15 and 17 of the 1978 Act were a clear departure from the requirement in s 153 of the Justices Act which had provided for police to grant bail to a person who was in custody. He accepted that there was “no clear equivalent” to s 15 of the 1978 Act in the 2013 Act, but argued that the later Act should be “construed according to its ordinary meaning against the background of the significant change made in 1978 from the position which had previously prevailed”. The argument is unpersuasive.
To begin with it assumes that police powers to grant bail could be exercised under the 1978 Act even when a person was not in custody – a point which is not beyond argument, as just discussed.
Even if that point is accepted, there is no particular reason to assume that the 2013 Act continued the approach of the 1978 Act as opposed to the statutory scheme before that, or the law that applied prior to 1918. The 2013 Act is a comprehensive legislative scheme. It was enacted after the thorough 2012 Report by the New South Wales Law Reform Commission, albeit that the Act does not reflect all the recommendations in the report. The 2013 Act is to be construed according to its own terms – taking account in the usual way of text, context and purpose – without any presupposition that it intended to repeat an approach taken in the previous statutory scheme.
Nothing in the 2013 Act directly addresses the issue at hand. And nothing in the extrinsic materials has been identified as having any particular significance here. The better view is that the police do not have a power to grant bail to a person who is not under arrest or otherwise in custody, for the following reasons.
The heading of s 7 of the 2013 Act is “What is bail”. The section answers as follows:
(1) Bail is authority to be at liberty for an offence.
Note. An offence includes an alleged offence.
(2) Bail can be granted under this Act to any person accused of an offence.
(3) A person who, because of bail, is entitled to be at liberty for an offence is entitled (if in custody) to be released from custody.
Note. Limitations to the entitlement to be at liberty are specified in section 14.
A grant of authority “to be at liberty for an offence” tends to suggest that the person’s liberty is otherwise restricted. There is no reason for a statute to grant a person liberty who is not already subject to some restraint founded on statute, as the starting position is a general law freedom. The preamble to the 2013 Act itself refers to “the general right to be at liberty”. That right reflects “the fundamental and long‑established principle that no person … may be detained by the executive absent statutory authority or judicial mandate”: NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005 at [27]; see further Williams v The Queen (1986) 161 CLR 278 at 292; [1986] HCA 88; Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 528; [1987] HCA 12.
Donovan aptly said that “[m]odern bail is conditional liberty” (at 19). The grant of bail allows someone to go free on conditions. The 2013 Act authorises bail to be granted on conditions: ss 20A, 23-30A. Even if specific conditions are not imposed, a person granted bail (or for whom bail has been dispensed with) is “required to appear in person before a court, and surrender to the custody of the court, as and when required to do so in proceedings for the offence for which the bail decision is made”: s 13(1). Section 13(2) provides that for a person granted bail, the requirement to appear means in accordance with their bail acknowledgement (which is required to be signed by the person, pursuant to s 14(1)). Section 14(2) states that bail “does not entitle a person to be at liberty on those occasions on which the person is required to appear before a court under his or her bail acknowledgment”. Thus whether by particular conditions or otherwise, the liberty of a person on bail under the Act is restricted and conditional.
The articulation in s 7(1) of what bail is tends to undercut the respondent’s argument that police may grant bail to someone who is not under arrest or otherwise under some legal restraint. The respondent placed weight on the reference in s 7(3) to the words in brackets, “if in custody”, saying that the section thus contemplates bail being granted to a person who is not detained. The point has some force. However, as shall appear, the 2013 Act provides for a court or authorised justice to make a bail decision with respect to someone who is not under arrest or in custody. The words in s 7(3) are consistent with that aspect of the scheme. That being said, I do not place substantial weight on this definitional point. As the respondent argued, the notion of bail being “authority to be at liberty for an offence” can be understood to refer to the effect of bail if granted, whereupon the person is thereafter on conditional liberty pursuant to the statutory scheme.
Section 8 is headed “Bail decisions that can be made”. Subsection (1) provides:
The following decisions (each of which is a bail decision) can be made under this Act in respect of a person accused of an offence—
(a) a decision to release the person without bail for the offence,
(b) a decision to dispense with bail for the offence,
(c) a decision to grant bail for the offence (with or without the imposition of bail conditions),
(d) a decision to refuse bail for the offence.
Note. Part 3 sets out how a bail decision is to be made by a bail authority.
Sections 9-11 then address who may make such bail decisions. The first type of decision, releasing the person without bail, “can be made only by a police officer with power to make that bail decision under this Act”: s 9. The second type of decision, dispensing with bail, “can be made only by a court or authorised justice with power to make that bail decision under this Act”: s 10(1). When bail is dispensed with the person “is entitled to be at liberty for the offence, in the same way as if bail had been granted”: s 10(2). Pursuant to s 10(3), a court or authorised justice “is taken to have dispensed with bail for an offence” if the person appears before the court/justice, has not previously been granted or refused bail for the offence, and the court/justice does not grant or refuse bail for the offence. The latter subsection creates a presumption that bail has been dispensed with if it has not specifically been addressed by the court/justice. Section 10 links to s 13, already discussed, pursuant to which a person for whom bail has been dispensed with is subject to a requirement to appear. Such persons thus have a form of conditional liberty.
The third and fourth types of bail decision, granting or refusing bail, “can be made only by a police officer, authorised justice or court with power to make that bail decision under this Act”: s 11.
Thus it is only (relevantly) police officers who can release a person without bail for an offence, only a court/authorised justice who can dispense with bail, and any of those can grant or refuse bail. The fact that ss 8(1)(a) and 9 refer to police releasing the person suggests that such persons are otherwise in custody. This fact weighs against the respondent’s argument.
Part 5 of the 2013 Act is headed “Powers to make and vary bail decisions”. Division 1 is headed “Powers of police officers”. The provisions of current significance within that Division are as follows:
43 Police power to make bail decision
(1) A police officer may make a bail decision for an offence if the person accused of the offence is present at a police station and the officer is—
(a) a police officer of or above the rank of sergeant and present at the police station, or
(b) for the time being in charge of the police station.
(1A) A police officer of or above the rank of sergeant at a hospital may make a bail decision for an offence if—
(a) the person accused of the offence is present at the hospital to receive treatment, and
(b) in the opinion of the police officer, it is not reasonable to take the person to a police station due to the person’s incapacity or illness.
(1B) A police officer of or above the rank of sergeant at a mental health facility (within the meaning of the Mental Health Act 2007) may, despite subsection (3), make a bail decision for an offence if the person accused of the offence is detained in the mental health facility for assessment under section 19(a) or (b) or section 21(1)(a) or (b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and has been found on assessment at the mental health facility not to be a mentally ill person or mentally disordered person.
(2) The police officer may—
(a) release the person without bail, or
(b) grant bail (with or without the imposition of bail conditions), or
(c) refuse bail.
…
44 Bail decision to be made after person is charged
(1) A police officer must ensure that, as soon as reasonably practicable after a person in police custody is charged with an offence—
(a) a bail decision is made for the offence by a police officer with power to make a bail decision, or the person is brought before a court or authorised justice to be dealt with according to law, and
(b) the person is given the bail eligibility information. …
(3) It is not necessary to give the bail eligibility information to a person if the person is released without bail.
The respondent argued that s 43 “reflects approximately what appeared in s 17 of the 1978 Act”, and then sought to link that to s 15(1) of that Act which provided that a person could granted or refused bail “notwithstanding that he is not in custody”. Yet there is no direct equivalent to that provision in the 2013 Act, as the respondent accepted. He further argued that the language of s 44(1) – which in contrast to s 43(1) refers in terms to “a person in police custody” – echoed s 18(1) of the 1978 Act. He argued that it “is s 43 which confers the power to grant bail, not s 44”. The primary judge similarly stated in Ghanem that under s 43(1) the “only precondition to the grant of bail is that the person be present at the police station” (at [103]).
It is true that s 43(1) refers to the person being present at a police station without stating that they are in custody. However, the key purpose of that subsection is to identify what type of police officer may make a relevant bail decision and in what circumstances. The same is true of subsections (1A) and (1B), the latter of which is expressed to apply in circumstances where the person is detained, albeit in a mental health facility. It is implicit in these subsections that a bail decision cannot be made elsewhere than at one of the three places identified. Thus, for example, such a decision cannot be made out in the field. The first of those places – being present at a police station – is consonant with being in custody. The second – being at a hospital – is consistent with being under arrest but it being necessary that the person be treated at hospital. The third of those places expressly involves being detained.
The actual grant of power to make one of the three types of bail decision open to police officers is found in s 43(2), working in combination with ss 8, 9 and 11. Section 43(2) does not state in terms that it is addressing situations where the person is in custody. However, so much is implied by the reference in subs (2)(a) to the first type of bail decision – which only police officers may make – being to release the person without bail.
As for s 44(1), it does refer to the person being in police custody. True it is that par (a) does not undermine the respondent’s argument, because it makes sense for the Parliament to require for those people who are in custody that a bail decision is made, or the person is taken before a court/authorised justice, as soon as reasonably practicable. However, par (b) does undermine the argument. It imposes a duty promptly to give the person the “bail eligibility information”, being “written information, of a kind prescribed by the regulations, about eligibility for bail and the entitlement to request a review of a bail decision made by a police officer” (s 44(5)). Such information would be relevant to a person who had been granted bail on conditions, as the person may wish to seek a review of the bail conditions imposed. There is no apparent reason why the Parliament would require only a charged person who had been in custody and then granted or refused bail to be given the bail eligibility information, without requiring that it be given to a person who was not in custody but granted bail on conditions by a relevant police officer (ie if that was possible, as the respondent contended). Section 44(1)(b) thus manifests an assumption that police make bail decisions with respect to persons in custody.
(1) A court or authorised justice may make or vary a bail decision, in the manner provided for by this Division, after hearing a bail application.
Note. There are 3 types of bail application—
(a) a release application (which can be made by the accused person), or
(b) a detention application (which can be made by the prosecutor), or
(c) a variation application (which can be made by any interested person).
Section 49 deals with release applications, implicitly dealing with circumstances where the person is in custody.
Section 51 deals with variation applications, which enables an “interested person” – including the accused or the prosecutor – to apply to a court/authorised justice “for a variation of bail conditions”, thus assuming that bail on conditions has already been granted.
Section 50 deals with detention applications, implicitly in circumstances where the person is not in custody. Applications may be made by the prosecutor in proceedings, who may seek “the refusal or revocation of bail for an offence or for the grant of bail with the imposition of bail conditions”: s 50(1). The court/authorised justice may then dispense with bail, grant bail with or without conditions, or refuse bail (thus leading to the person being taken into custody): s 50(3). Thus s 50 means there are instances where bail may be granted or refused to a person who is not already in custody, including because a police officer decided to release them without bail, because bail had previously been granted or dispensed with, or because the person had simply been charged with an offence by way of a court attendance notice. But the power is dealt with expressly; it is exercised on application made to a court/authorised justice; and it is given the label “detention application”. It is a distinct process from the decision-making power granted to police, which is dealt with in the previous division of the 2013 Act.
Of some relevance is s 92, which provides:
A person granted bail for an offence who is present in a courtroom or court premises when the matter is called is taken to be in the custody of the court on and from the calling of the matter concerned until the court completes its dealing with the matter (whether or not the person surrenders to the custody of the court).
The provision is consistent with what the Court of Criminal Appeal held was implied by the 1978 Act: R v Peehi (1997) 41 NSWLR 476. Justice Hidden, speaking for the Court, there said that “criminal lawyers in this State have long understood that a person who appears at court in accordance with a bail order is then in the custody of that court” (at 481). His Honour suggested that the matter should be the subject of express provision (ibid). Section 92 can be understood to respond to that suggestion. However, the provision does not provide that any defendant appearing in court is in the custody of the court. The section does not apply in terms to persons who have been released without bail or for whom bail has been dispensed with. Chief Justice Blackburn held in the ACT Supreme Court that a person present in court in response to a summons was not in custody: Dainer v Foster; Ex parte Tange (1984) 14 A Crim R 327 at 331, Kelly J agreeing at 332. Thus it cannot be said that a court determining a detention application is necessarily dealing with a person in custody. That understanding confirms that a s 50 detention application can be made with respect to a person not in custody.
Part 3 of the 2013 Act relates to the making and variation of bail decisions, including by courts/authorised justices hearing bail applications. The respondent relied on s 17, within the Part, which requires that a bail authority assess any “bail concerns”, as identified, before making a bail decision: s 17(1)-(2). A bail authority is a police officer, authorised justice or a court: s 4(1). Section 17(3) states that if the person “is not in custody, the assessment is to be made as if the person were in custody and could be released as a result of the bail decision”. The respondent pointed out that this contemplates that a bail decision may be made in respect of a person not in custody. This consideration seemed to be the most significant point for the primary judge in his decision in Ghanem (at [104]-[105]). Yet, as explained, bail decisions in response to a detention application can be made by a court/authorised justice with respect to people not in custody. Thus s 17(3), like s 7(3), has work to do without implying that police officers are empowered to grant bail to a person not in custody.
The respondent argued that “it would be curious” if the terms of the Bail Act, which is concerned with liberty, should be construed to require that a person be arrested “as a precondition to the grant of such liberty”. The respondent’s substantive point is that the Parliament should not be taken to have required that a person be subject to the deprivation of liberty involved in an arrest if the police officer simply wishes to impose bail conditions. That point is not without force. On the other hand, it can also be argued that the Parliament may not have wished to encourage police officers to impose bail on conditions – thus restricting liberty – in the absence of due cause. These arguments tend to neutralise each other.
Given that conclusion, even if and to the extent SC Owen had been obliged to consider alternatives to arresting the respondent prior to placing him under arrest, the putative alternatives were not in fact available. As noted above, all of those alternatives involved the respondent being placed on bail on conditions which would prevent him from issuing further pink slips. No argument was made that there was anything improper in SC Owen arresting the respondent for the purpose of placing him on bail, having charged him, on condition not to issue further pink slips: note AD at [20]. There was no suggestion that doing so was inconsistent with the requirement that the arresting police officer has the intention of bringing a person arrested before an authorised officer to be dealt with according to law: note State of New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46 at [109]-[110]. That could occur by charging him and promptly granting him bail. SC Owen did not arrest the respondent in order to question him, unlike the situation considered by the High Court in Robinson.
The respondent accepted in this Court that a conclusion that police officers did not have power to grant bail on conditions to a person not in custody would suffice to uphold the appeal.
The appeal must be upheld on the two independent bases addressed above. As noted, the State agreed to pay the costs of the respondent in this Court and not to seek to disturb the costs order made below (being order 2 made on 28 June 2024).
Finally, I note that this case involves the last judgment delivered by Justice Basten on this Court after 20 years of eminent and committed service. The significance of his Honour’s judgments in Randall and AD, as discussed and followed above, is illustrative of his substantial contribution to the law.
The orders of the Court should be as follows:
Leave to appeal is granted.
The appellant must file its draft notice of appeal within seven days.
Appeal allowed.
Set aside orders 1 and 3 made by the District Court on 28 June 2024, along with the order made on 4 July 2024 with respect to interest, and in lieu thereof order that the plaintiff’s amended statement of claim is dismissed.
The appellant is to pay the respondent’s costs of the appeal.
BASTEN AJA: I agree with Kirk JA that there should be a grant of leave to appeal in this matter and that the appeal should be upheld. The order in favour of the respondent made in the District Court should be set aside, for the reasons given by Kirk JA. The following additional reasons primarily address the reliance of the trial judge on the reasoning in Jankovic v Director of Public Prosecutions. [1] Statements in Jan**kovic have given rise to a view that to resist a claim of unlawful arrest, the State must prove that, before carrying out an arrest, a police officer must undertake a comparative analysis of whether alternative courses could achieve one or more of the purposes identified in s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (Law Enforcement Act). That involves a gloss on the statute: the validity of the arrest merely requires that the officer be satisfied that the arrest was reasonably necessary for a prescribed purpose.
The judgment in Jankovic was delivered on 5 March 2020. The conventional understanding of the statutory scheme had been applied in many decisions prior to that judgment. However, it is sufficient to refer to cases decided after 16 December 2013, when s 99 was amended and took its present form.
“[27] The State submitted that the primary judge … applied the wrong test in his construction and application of s 99(3). It submitted that, contrary to his Honour’s finding, the test is not whether the arrest was necessary for the stated purpose, but rather whether the arresting officer ‘suspected on reasonable grounds’ that the arrest was necessary for such purpose. The correct test, on the State’s submission, was whether the State had established that:
(i) the arresting officer honestly believed that the arrest was necessary for one of the purposes set out in s 99(3); and
(ii) the decision to arrest, when reviewed afterwards according to the information known to the arresting officer at the time of the arrest, was made on reasonable grounds.
The error committed by the primary judge was to require the State to prove that the arrest was in fact necessary for the purpose of preventing a repetition of the offence of knowingly contravening an AVO.”
The State’s submission was accepted; [3] however, the reasoning focused upon the scope of the term “necessary”. [4] Section 99(3), as then in force, imposed a prohibition on arrest unless its requirements were satisfied, and also required that the officer’s suspicion be based on reasonable grounds: both elements were removed in 2013. Changing “necessary” to “reasonably necessary”, a meaning rejected in Robinson, [5] was a third change designed to diminish the constraint on an officer considering an arrest. A fourth change, with similar effect, was to add as a permissible reason, “(ix) because of the nature and seriousness of the offence”. (That required that the list be identified, not as “purposes” but as “reasons”.) Another change was to replace the somewhat awkward requirement in s 99(3) that the officer “suspects” that the arrest was necessary to achieve a prescribed purpose, with reference to the officer being “satisfied” as to the arrest being reasonably necessary.
Shortly after Robinson (on 5 May 2017) the Court handed down a further judgment, State of New South Wales v Randall. [6] This case applied s 99 in its current (amended) form. I dealt with the relevant principles in the following passages:
“[10] The validity of an arrest without a warrant turns on the satisfaction of three criteria. First, the officer must suspect on reasonable grounds that the person is committing or has committed an offence. [7] Secondly, the officer must be satisfied that it was reasonably necessary to arrest the person for any one of a number of reasons, including (i) to stop the person committing or repeating the offence or committing another offence, (iv) to ensure that the person appears before a court in relation to the offence, and (viii) to protect the safety or welfare of any person (including the person arrested). [8] Thirdly, s 201 (as then in force) required that a person arrested be informed of the reason for the arrest. It was assumed that satisfaction of each criterion was a condition of the validity of the arrest.
…
[13] There is a further important distinction to be drawn between the nature of the three requirements. The first has two elements, namely the suspicion held by the arresting officer and, secondly, there being ‘reasonable grounds’ for the suspicion. Most challenges to the validity of arrests turn on whether or not there were reasonable grounds for the suspicion, the grounds being a matter for assessment by the court. [9] By contrast, both the first limb and the second requirement involve a precondition to the exercise of the power of arrest which depends, not upon objectively verifiable circumstances, but on the state of satisfaction of the officer. Accordingly, unlike the requirement for reasonable grounds, a challenge to the existence of a suspicion or state of satisfaction will only be available where it can be shown that the suspicion or state of satisfaction was manifestly unreasonable, [10] or ‘arbitrary, capricious, irrational, or not bona fide’, [11] as explained by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu. [12]
…
[38] This last passage in the reasons, read in the context of the passage set out at [33] above, makes it clear that the judge accepted that the arresting officer did suspect on reasonable grounds that the plaintiff was hindering his investigation, thereby satisfying s 99(1)(a). With respect to the second requirement, the judge was not satisfied that the course of arresting the plaintiff was ‘reasonably necessary’ in relation to that offending. However, the correct question with respect to the second requirement was not what the judge thought, but what the officer thought was reasonably necessary in the circumstances; s 99(1)(b) refers to the officer being ‘satisfied’. The precondition to the exercise of the power is the officer’s state of mind.”
Sackville AJA agreed with McDougall J that leave to appeal should be refused, but not without identifying four errors of principle in the reasons of the trial judge. Nevertheless, the statements as to the operation of s 99(1)(b) in my reasons did not bind the Court in subsequent cases.
The effect of Jankovic has been identified above and it will be necessary to return to its reasoning; however, it is convenient first to address more recent cases. The first judgment of this Court dealing with s 99(1)(b) following Jankovic was AD v State of New South Wales. [13] The Court unanimously dismissed an appeal from the District Court. Relevantly for present purposes I made the following observations:
“[19] To form a different opinion to that of the arresting officer is not, however, sufficient for the applicant to succeed in this case. Her difficulties are three-fold. First, s 99(1)(b) is expressed in terms of the state of satisfaction of the police officer, not of the court reviewing the arrest. While such a state of satisfaction is not unreviewable, [14] the limited grounds on which it may be reviewed will be addressed shortly.
…
[25] It is convenient to return to the grounds on which a state of satisfaction may be challenged. There was criticism of the judge’s statement that the arresting officer’s decision could ‘only be impugned on the basis of the principle often referred to as “Wednesbury Unreasonableness”’. The judge found support for that proposition in the reasons of McColl JA in Hyder v Commonwealth of Australia. [15] McColl JA stated that the decision ‘whether or not to arrest and ... the lawfulness of the way in which the discretion was exercised in a particular case could not be questioned in any court of law except upon the principles Lord Greene MR enunciated in [Wednesbury] … applied in Zaravinos v State of New South Wales’. [16] ”
“[63] As to s 99(1)(b) of the [Law Enforcement Act] (which required Senior Constable Burley to have been satisfied that it was reasonably necessary to arrest the applicant), the primary judge noted that Senior Constable Burley gave three reasons for the arrest. They were the ‘[n]ature and seriousness of the offence, protection of the victim, and to get [the applicant] before the Court at the earliest possibility’. The primary judge accepted Senior Constable Burley’s reasons and added that the decision to arrest the applicant ‘can only be impugned on the basis of the principle often referred to as “Wednesbury Unreasonableness”’. His Honour referred to Hyder v Commonwealth of Australia [2012] NSWCA 336; (2012) 217 A Crim R 571 at [15] per McColl JA (‘Hyder’) and rejected any implicit suggestion that the availability of review for Wednesbury unreasonableness as approved by McColl JA in Hyder had been disapproved in Jankovic v Director of Public Prosecutions [2020] NSWCA 31 (‘Jankovic’).”
No error was found in the judge’s approach with respect to that issue.
“[108] By ground 4 of the appeal, the Appellant contends that the decisions of Basten JA in State of New South Wales v Randall [2017] NSWCA 88 (Randall) and AD v State of New South Wales [2023] NSWCA 115 (AD) concerning the operation of s 99(1)(b) of [the Law Enforcement Act] were wrongly decided, with the consequence that the primary judge erred in holding that DS Michaelson had complied with s 99(1)(b).”
He then set out the passage from [13] in Randall set out above and summarised the approach taken by the other members of the Court in Randall and in AD. Turning to Jankovic, the Chief Justice set out two passages from the reasoning of White JA in Jankovic (to which reference will be made below) although those comments were obiter and provided only passing support for the reasons of Barrett AJA, with whom Macfarlan JA had agreed.
The Chief Justice continued:
“[115] It was put by the Appellant in the present case that Basten AJA in AD was incorrect to say (at [26]) that ‘the approach in Hyder was subsequently adopted in relation to s 99 by this Court in [Randall]’ because neither McDougall J nor Sackville AJA had expressly approved of the statement of principle offered by Basten JA in Randall at [13]. However, as set out at [110] above, both McDougall J and Sackville AJA held that the principles in relation to s 99 of [the Law Enforcement Act] were well-settled and did not raise an issue warranting the grant of leave to appeal: Randall at [74], [140]. Contrary to ground 4, I do not consider that either Randall or AD were incorrectly decided. The interpretation afforded to s 99(1) of [the Law Enforcement Act] by Basten JA is consistent not only with the language of the statute but the deliberate legislative change in 2013 referred to by White JA in Jankovic.
[116] The Appellant sought to generate a conflict between the decision of Barrett AJA in Jankovic and Basten JA in Randall and AD but I do not think that any conflict arises and, even if it did, the interpretation of s 99(1) given by Basten JA should be preferred. Barrett AJA’s decision was focused on whether reasonable necessity required an arresting police officer to consider alternatives to arrest. His Honour referred to considerations of proportionality by reference to the decision of Kiefel J in Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2 (Wotton) in order to suggest that something more akin to an objective rather than subjective inquiry was to be made in relation to whether the arresting officer held the requisite state of satisfaction. To the extent that Barrett AJA’s observations were derived from the reasons of Kiefel J in Wotton, it should be noted that her Honour wrote separately in that case and was considering a different statutory regime from s 99(1) of [the Law Enforcement Act], namely s 200(2) of the Corrective Services Act 2006 (Qld) which provided that the Parole Board could grant a parole order containing conditions that, pursuant to s 200(3) of the same Act, it ‘reasonably considers necessary’ to ‘ensure [a] prisoner’s good conduct’ or ‘stop [a] prisoner committing an offence’. That provision, unlike s 99(1)(b) of [the Law Enforcement Act], involved no element of subjectivity.”
“[121] In any event, the State submitted that the reasoning of Basten JA in Randall and AD was correct and that there was no reason to depart from it. It was put that the Appellant did not demonstrate that Randall was ‘plainly’ or ‘clearly wrong’ or that there were compelling discretionary reasons that it should not be followed: Hill v Zuda (2022) 275 CLR 24; [2022] HCA 21 at [25]. I agree.”
“[16] As to the legal basis on which it was open to challenge the officers’ state of satisfaction, the primary judge referred to State of New South Wales v Randall … and AD v State of New South Wales … as explained in Reeves v State of New South Wale**s … at [111]-[112], [116] (Bell CJ); [211] (White JA); [212] (Stern JA). The primary judge held at J[82] that:
‘once a defendant establishes that the officer subjectively held the relevant state of satisfaction, it falls to the plaintiff to challenge that state of mind on the basis that it was manifestly unreasonable, or arbitrary, capricious, irrational, or not bona fide. If a plaintiff cannot do so, the exercise of the power to arrest is valid under s 99(1).’
[17] Applying that approach, the primary judge considered that it was not manifestly unreasonable, or arbitrary, capricious, irrational or not bona fide for the officers to have arrested the appellant on 21 April 2022.”
“[80] The appellant’s complaint based on Jankovic that the arrest was not ‘proportionate’ was in substance an argument that the Court should form its own ‘objectively reasonable assessment’ of the arrest. It might be thought that that approach is in tension with what Basten JA said in Randall about the limited basis upon which the existence of a state of satisfaction may be challenged. The question whether there is any conflict between Randall and Jankovic was addressed in Reeves at [108]-[121]. It is unnecessary to rehearse what was said there. It is enough to note that the Chief Justice, while doubting that any conflict arose, held at [116] that if there was a conflict between those decisions, the interpretation of s 99(1) given by Basten JA should be preferred; see also at [121].”
Although the judgment in Reeves was delivered less than a month before final trial submissions in the present matter, the judgment being delivered expeditiously one week later, the trial judge made reference to Reeves, but for a limited purpose. It is necessary then to turn to the reasoning in Jankovic which was applied by the trial judge in the present case.
The relevant reasoning of Barrett AJA in Jankovic commenced with the following propositions:
“[53] For an arrest without warrant to be authorised by [the Law Enforcement Act], s 99(1), it must be established that, as described in s 99(1)(b), the arresting officer was ‘satisfied’ that the arrest was ‘reasonably necessary for’ any one or more of the ‘following reasons’ stated in the section. An issue as to the officer’s state of mind arises; and it is for the party asserting that the arrest was authorised by the section to show that, at the time of making the arrest, the officer had reached a state of being ‘satisfied’ that the circumstances as a whole made it ‘reasonably necessary’, for one or more of the stated reasons, that the person concerned be deprived of their liberty.
[54] The party asserting the lawfulness of the arrest must thus prove that the police officer had formed a particular opinion (or state of satisfaction) about the connection, in terms of cause and effect, between depriving the person of their liberty and achieving the results with which the ‘following reasons’ are concerned. The connection is defined by the words ‘reasonably necessary’.
No issue could be taken with the proposition in [53], which accurately reflects the language of the section. The proposition at [54], however, provided the basis for a later gloss.
The next step in the reasoning focused on the proposition that the term “necessary” does not always mean “essential or indispensable” but may mean “reasonably appropriate and adapted”, using language from the judgment of Gleeson CJ in a case concerning the implied freedom of political communication. [20] Reliance on the constitutional context continued in the following passage:
“[58] A ‘reasonably necessary’ criterion directs comparison of the situations or results that will pertain on alternative hypotheses or in alternative circumstances. In Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2, Kiefel J said (at [89]):
It could not be said that the means employed by a statute were reasonably necessary if there were other, less drastic, means available by which the legislative objective could be achieved.
[59] Kiefel J continued (at [91]), referring to the particular statutory provision in issue:
The restriction allows a parole board to attach only such conditions as are reasonably necessary to the achievement of the objectives of ensuring the good conduct of a parolee and preventing that person offending. The sub-section therefore imports a requirement of proportionality into a parole board's decision-making process.”
“[60] That identifies the essence of the ‘reasonably necessary’ criterion in [the Law Enforcement Act], s 99(1)(b). The section imports a requirement of proportionality into police officers’ decision-making. Each of the reasons in s 99(1)(b)(i) to (ix) is expressed in terms of a particular outcome relevant to law enforcement. The reasons are concerned with the risk that lack of constraint upon a person through arrest might frustrate the attainment of one or more of those outcomes and thereby prejudice law enforcement. In Robinson v State of New South Wales [22] at [164], Basten JA said of the s 99(1)(b)(i) to (ix) reasons:
Those reasons provide, in effect, that the police functions of law enforcement would not be sufficiently carried out by steps short of arrest, which, with respect to the commencement of proceedings, would commonly mean the issue of a court attendance notice.
[61] The reasonably foreseeable consequences of continued freedom (either alone or in conjunction with other available measures) are to be compared with the obvious consequences of arrest. That comparison is to be made by reference to the whole of the circumstances prevailing at the time. The comparison will quantify the extent, if any, to which a continuation of freedom creates a risk that the attainment of any one or more of the stated law enforcement outcomes will be jeopardised. Only if, according to an objectively reasonable assessment, continuing freedom (with or without some other available measure) presents a significant risk to attainment of any of the law enforcement results will immediate arrest be a proportionate response to that risk and therefore substantially preferable and ‘reasonably necessary’. The police officer is required to assess the situation at hand and make an evaluative judgment.
[62] A vital component in the comparison is the alternatives to arrest at the disposal of the police officer. [The Law Enforcement Act], s 107 says that nothing in Pt 8 (which includes s 99) affects the power of a police officer either to commence proceedings for an offence otherwise than by arresting the person or to issue a warning, a caution or a penalty notice. Ch 4 Pt 2 of the Criminal Procedure Act 1986 (NSW) allows proceedings for numerous offences (including an offence of breaching an apprehended violence order) to be commenced by the issue of a court attendance notice. A range of measures obviously less drastic than arrest is thus identified as material to a police officer’s decision to arrest without warrant.”
Several observations may be made in relation to this reasoning. First, the concept of proportionality has been controversial and often imprecise in its use in relation to the constitutional validity of legislation. [23] But proportionality reasoning is not something that can readily be required or analysed beyond a process of decision-making which, if not judicial, is at least undertaken with a degree of formality.
Secondly, understandably but perhaps erroneously, some trial judges have understood the reference at [60], repeated at [61], to an “objectively reasonable assessment” as requiring the court to determine the issue of reasonable necessity. As noted in Emde at [80], that approach is wrong: it is the officer who must form the prescribed opinion.
Thirdly, the description of the elements of s 99(1)(b) in Robinson 2018 was directed to a different point, namely whether the purpose of an arrest was to initiate a criminal proceeding:
“[164] Section 99(1)(b), however, imposes a constraint on the use of the power of arrest without warrant. It requires that the officer be satisfied that the arrest is “reasonably necessary” for one or more of a number of reasons. Those reasons provide, in effect, that the police functions of law enforcement would not be sufficiently carried out by steps short of arrest, which, with respect to the commencement of proceedings, would commonly mean the issue of a court attendance notice. Thus, a failure to consider such an alternative course resulted in a finding that an arrest was unlawful in State of New South Wales v Smith. [24] There is, however, no reason to derive from the existence of the additional constraint an implied variation of the long standing requirement that an arrest must be a preliminary step in invoking the criminal process.”
"The job of front-line police is already hard enough, without being made harder by having to deal with legal complexities. The legislation seeks to 'uncuff' the police so they can handcuff criminals.
… New section 99(1)(b) replicates and simplifies the existing reasons for arrest contained in section 99(3) of the Act. It also introduces new reasons to arrest without a warrant that better reflect the circumstances in which police are called on to act in order to keep the community safe."
Even where an identified purpose is relied on, the reasoning in Jankovic provides no justification for the imposition of a criterion of the validity of an arrest that the officer must have gone through an “objectively reasonable assessment” and determined that “continuing freedom … presents a significant risk” to attaining a prescribed outcome to be satisfied that arrest is “a proportionate response to that risk and therefore substantially preferable and ‘reasonably necessary’.” Such an approach does not so much construe the language of the statute as rewrite it without proper regard to its intended purpose.
There is no doubt that an arresting officer must form a state of mind with respect to the two criteria identified by s 99(1) in par (a) and par (b). The latter requires the officer to identify a purpose, or to characterise the offence, within the listed options in par (b). The failure to do so will mean that an essential precondition to a valid arrest was missing. However, it is not necessary for the officer to rely upon more than one purpose; nor it is necessary for the officer, if in fact reliant on more than one purpose, to identify which was the predominant or sole effective purpose. Furthermore, to describe the identified purpose as having to be “objectively reasonable” invites a court considering a challenge to the validity of the arrest to assess reasonableness for itself.
In my view there is, if not an irreconcilable contradiction between those statements in Jankovic and established principle, at least a sufficient risk of error that they should not be followed.
It is then necessary to turn to the reasons of the primary judge to demonstrate how the error infected his conclusions. The course taken in the judgment having been outlined by Kirk JA, it is convenient to turn directly to the dispositive reasoning.
The primary judge was satisfied as to the first criterion, namely that the arresting officer suspected on reasonable grounds that the respondent had committed an offence. Secondly, he accepted the officer was satisfied in terms of par (b):
“[76] I am satisfied that at the time of Mr Dennis' arrest, SC Owen was satisfied that Mr Dennis’ arrest was reasonably necessary for a combination of the following:
(1) to stop Mr Dennis repeating the offence or committing another offence (subs (i));
(2) to protect the safety or welfare of the public (subs (viii)); and
(3) because of the nature and seriousness of the offences he suspected (subs (ix)).”
“What this means is that I am satisfied that SC Owen did hold the requisite state of mind for the purpose of the second limb.”
The judge then considered whether that state of mind was “vitiated by one of the narrow categories of reasons known as ‘Wednesbury unreasonableness’”: at [79]. Relying on Barrett AJA in Jankovic, he accepted a submission that “a comparison needs to be made by reference to the whole of the circumstances prevailing at the time and that, whilst the matter is an evaluative judgement by a police officer on the ground, a vital component in the comparison is the alternatives to arrest at the disposal of the police officer”: at [80].
It is apparent that the judge was aware of Reeves, but stated:
“[84] I do not think anything the Court of Appeal said in Reeves in any way takes issue with Barrett AJA's analysis of that aspect of the question in Jankovic. The court was disapproving of the approach taken by Barrett AJA as to ‘proportionality’. However, the Court of Appeal did not criticise the observations about a connection and the need to consider alternatives. Apart from the question of proportionality, the Court was unable to identify a real difference between Barrett AJA and Basten AJA’s analysis. In any event, it does seem to me as a matter of logic to not be possible to form a relevant state of mind as to a reasonable requirement for arrest without considering available alternatives, and nor do I think it would be possible to ever come to a conclusion that such a decision was capricious, arbitrary, or manifestly unreasonable unless on the hearing of that application it is available to a Judge to consider the decision by reference to available alternatives.”
The last sentence is apt to lead to error. First, there is nothing in s 99(1)(b) about considering “alternatives”, nor does it assist to rely on logic. The correct legal analysis is to ask whether the officer failed to have regard to a mandatory consideration. [27] Whether a particular matter is one the officer is bound to have regard to is a question of statutory interpretation. [28] The listed “reasons” are no doubt mandatory considerations, but only in the sense that the officer is bound to identify one as a reason for a particular arrest: that is what the statute says. It does not require any fixed process of consideration, nor, given the context, should the valid exercise of such a power be subjected to implied constraints. The defined criterion is the satisfaction of the officer that a particular course is reasonably necessary. In accordance with the reasoning propounded in Project Blue Sky Inc v Australian Broadcasting Authority, [29] it may be accepted that failure to achieve such a state of satisfaction will invalidate an arrest, but the deliberate repeal of the requirement that the officer’s opinion be supported by reasonable grounds reduces the availability for judicial review of such decisions.
Secondly, the suggestion that the judge should consider possible alternatives in order to form a view as to whether the decision of the officer was manifestly unreasonable is apt to lead to an erroneous approach: the true question is whether the opinion in fact formed by the officer, in the circumstances at the time, was so unreasonable that no officer acting reasonably could have reached that decision. That terminology is no longer fashionable, [30] but it serves to emphasise the stringency of the test and that the court is policing the legal limits of a statutory power, and not forming its own view on the evidence as to the proper exercise of the discretion vested in the officer.
The judge then noted:
“[86] SC Owen said in terms at the time of the arrest, ‘so the only way we can prevent further offences occurring is to place you on bail’. I take this to be a statement that the only way he thought he could prevent further offences was to arrest Mr Dennis with the expectation that he would be released on conditional bail. SC Owen gave evidence before me to the effect that he did not consider any alternatives to arrest at all. This is consistent with what he said at the time and if it be right, his decision ought properly be branded as capricious or wholly irrational.”
This approach reveals a misconception as to what is capricious or irrational: as already noted, failure to have regard to a matter the officer is bound to address is a breach of a specific limit on power, not helpfully addressed by colourful epithets which may reflect breach of the duty to act rationally. [31] Further, the officer’s reasoning was more readily supportable than that of the court. At no stage did the judge consider that unless the suspect was arrested, he could not be placed on conditional bail. Indeed, at least during the trial, the judge appeared to work on the assumption, supported by the respondent’s counsel, that conditions could be imposed on a suspect’s liberty once a charge was laid. [32]
The judge identified the “alternatives” the officer was bound to consider as (i) asking Mr Dennis to drive his own car to the police station, (ii) asking him to go in a police car without arrest, (iii) asking Mr Dennis to have his wife drive him to the police station and, (iv) asking Mr Dennis to drive himself and telling the police at the station to call the officer, to confirm he had arrived, whilst the officer remained at the business: at [81].
However, an essential precondition to the grant of bail, being the only means of imposing conditions on the respondent’s liberty, was that he be in custody. As the Bail Act 2013 (NSW) states, “[b]ail is authority to be at liberty for an offence”: s 7(1). A person who is in custody under arrest can be released without bail, bail may be dispensed with, or bail may be granted: s 8(1). It is true that bail can be granted to a person who is not charged with (or suspected of committing) an offence as, for example, where a person has been arrested on a warrant for failing to comply with a subpoena. [33] However, bail only applies where a person is in custody or is subject to being returned to custody absent a further grant of conditional liberty. A person not in custody does not need to be released and therefore cannot be conditionally released.
The respondent sought to draw from s 7(3) an implication that “bail” (and hence conditional bail) could be granted by a police officer to a person not under arrest and therefore not in custody. The definition of “bail” in s 7 contains no such implication. Section 7(3) merely states that “[a] person who, because of bail, is entitled to be at liberty for an offence is entitled (if in custody) to be released from custody”. As an “authority to be at liberty”, bail is a continuing authority: it operates to require release for a person in custody and permits a person once released to continue to be at liberty. Section 7(3) says nothing about when and by whom bail may be granted.
The respondent sought to draw a similar inference from the language of s 17(3) of the Bail Act. Again, the context and purpose of the provision denies any such implication. Section 17 is directed to the assessment of “bail concerns” by an authority considering a “bail application”. Section 17(2) deals with a person seeking bail who is in custody; subs (3) requires that where an accused person (not necessarily an applicant) is not in custody “the assessment is to be made as if the person were in custody and could be released as a result of the bail decision”. Section 17 appears in Pt 3, titled “Making and variation of bail decisions”. The key is the reference to “variation”: thus s 17 applies where a prosecutor applies for revocation or variation of bail under s 50(1). Such an application may be made after a person has been released: it is defined in s 50 as a “detention application” and is thus a “bail application” within s 4(1). It follows that a “bail application” (referred to in s 17) may be made by a prosecutor in relation to an accused person who is not in custody. Section 17(3) provides for the assessment process with respect to such applications: it says nothing about the powers of a police officer. It provides no support for an implication that a police officer may impose conditions on the liberty of a person who is not in custody.
“The object of this writ was to get the release of the prisoner on mainprize, just as the object of the writ de homine replegiando was to get the release of the prisoner on bail. The difference between bail and mainprize seems to have been this – the prisoner is actually in the custody of the person who has given bail for him, so that technically he is still in prison; but if mainprize has been given he is not in custody at all, as the mainpernors are only sureties for his appearance. Thus, for instance, the justices of gaol delivery could try a prisoner who was released on bail, because, in contemplation of the law, he was still in gaol; but they could not try a prisoner who had been released on mainprize. [35] ”
**********
[2020] NSWCA 31; 281 A Crim R 378 (Macfarlan and White JJA, and Barrett AJA).
(2016) 93 NSWLR 280; [2016] NSWCA 334 (Beazley P, Payne JA, Sackville JA) (“Robinson 2016”).
Robinson 2016 at [43].
Robinson 2016 at [37]-[43].
Robinson 2016 at [39], [43].
[2017] NSWCA 88 (Basten JA, Sackville AJA and McDougall J).
Law Enforcement Act, s 99(1)(a).
Law Enforcement Act, s 99(1)(b)(i), (iv) and (viii).
See with respect to similar (though not identical) Northern Territory legislation, Prior v Mole (2017) 261 CLR 265; [2017] HCA 10 at [4] (Kiefel CJ and Bell J); [24]-[27] (Gageler J); and [98]-[101] (Gordon J).
Holgate-Mohammed v Duke [1984] AC 437 at 443 (Lord Diplock), adopted in Hyder v Commonwealth of Australia [2012] NSWCA 336; 217 A Crim R 571 at [15(10)] (McColl JA).
The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432 (Latham CJ); [1944] HCA 42.
(1999) 197 CLR 611; [1999] HCA 21 at [131]-[137].
[2023] NSWCA 115; (2023) 308 A Crim R 367 (Meagher JA, Basten AJA and Griffiths AJA).
Buck v Bavone (1976) 135 CLR 100 at 118-119 (Gibbs J); [1976] HCA 24.
[2012] NSWCA 336; 217 A Crim R 571 at [15].
(2004) 62 NSWLR 58; [2004] NSWCA 320 at [28] (Bryson JA, Santow JA and Adams J agreeing).
[2024] NSWCA 125 (Bell CJ, White and Stern JJA).
[2025] NSWCA 41 (McHugh JA, Gleeson and Kirk JJA agreeing).
Emde at [79].
Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 at [39].
Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2 at [32].
Robinson v State of New South Wales (2018) 100 NSWLR 782; [2018] NSWCA 231 (“Robinson 2018”).
Babet v Commonwealth; Palmer v Commonwealth [2025] HCA 21 at [179]-[181] (Edelman J).
[2017] NSWCA 194 (McColl JA, Leeming JA and Sackville AJA agreeing with additional observations).
See AD at [21]-[23].
See AD at [22].
Minister of Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J); [1986] HCA 40; Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 at [9]-[10].
M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, 2022, Thomson Reuters), p 282.
(1998) 194 CLR 355; [1998] HCA 28 at [91].
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [28], [30] (French CJ), [68], [72] (Hayne, Kiefel and Bell JJ); [106]-[108] (Gageler J).
Peko-Wallsend at 40; Minister v Li at [28].
DC Tcpt, 12 June 2024, pp 204(42)-(205)(10).
Bail Act, Schedule 1, cl 2; Criminal Procedure Act 1986 (NSW), s 229.
Holdsworth, A History of English Law, Vol IX (3rd ed, 1966, Sweet and Maxwell), pp 105-106.
Coke, Fourth Instit 178, 179-180; Hale, P.C. ii 124-125; P and M ii 587-588.
State of New South Wales
Dennis [2025] NSWCA 118
(1976) 135 CLR 110
(2019) 267 CLR 171
(1990) 170 CLR 104
(2021) 106 NSWLR 520
(2013) 85 NSWLR 86
(1986) 162 CLR 24
(2016) 259 CLR 180
Leave to appeal granted; the appellant must file its draft notice of appeal within seven days; appeal allowed; specified District Court orders and the interest order set aside and the plaintiff’s amended statement of claim dismissed; the appellant to pay the respondent’s appeal costs and not disturb the costs order below.
The second issue had not been raised by the State in its written submissions, although it was capable of falling within its grounds of appeal. The State had not disputed the issue in the Court below. Prior to the hearing the Court requested that both parties be prepared to address the Court on the point. The State then embraced the issue arguing that there was no such power and that this sufficed to uphold the appeal. The respondent sought to resist the issue being agitated but accepted that it raised a pure point of law. He could identify no prejudice once it was accepted that the parties should be given the chance to provide further written submissions, and taking account of the fact that the State will pay his costs in both courts in any event. The respondent took up the opportunity to provide further written submissions (the State did not). The issue is indeed one of law. It is important. This Court should address it.
The primary judge erred with respect to both issues. They will be addressed in turn after first setting out the context in which they arise and then summarising the reasons of the primary judge.
Also relevant here is that the Parliament amended s 99 to move from a reasonable grounds criterion to a satisfaction criterion. That change manifested an intention, in the words of the Premier, to grant “clear, simple and effective powers of arrest”. That purpose militates against recognising significant implied limitations on the power.
In Randall at [13] Basten JA relevantly said of s 99(1)(b) that it “involve[s] a precondition to the exercise of the power of arrest which depends, not upon objectively verifiable circumstances, but on the state of satisfaction of the officer”. His Honour then said:
In Mulholland Gleeson CJ explained that the word necessary “does not always mean ‘essential’ or ‘unavoidable’, especially in a context where a court is evaluating a decision made by someone else who has the primary responsibility for setting policy” (at [39]). His Honour then gave an example where the High Court had construed it, in a particular taxation context, to mean “clearly appropriate or adapted for”. He noted that that was consistent with a long line of constitutional cases where the notion had been understood in terms of what was reasonably appropriate and adapted. The type of decision at issue here is not one of policy, but it is one involving an evaluative factual judgment to be made in the range of circumstances described above at [32]. Given that the Parliament has made a choice to dilute the previous requirement, the notion of being appropriate and adapted to achieve one or more of the identified reasons is an apt way to articulate what is now conveyed by reasonable necessity in s 99(1)(b).
That understanding is consistent with the fact that the provision does not say that the arrest must in fact be reasonably necessary but rather that the officer must be satisfied that it is reasonably necessary. In that context the courts’ ability to review the necessity of an arrest arises from the implied requirement that the officer’s satisfaction not be legally unreasonable: note analogously Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [150]; P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Lawbook) at [13.100].
Turning then to the proportionality issue, in Jankovic Barrett AJA went on to say this of the notion of reasonable necessity (citation omitted):
In Jankovic Barrett AJA appeared to invoke a notion drawn from, or at least influenced by, the concept of proportionality as it has been applied with respect to the constitutional implied freedom of political communication. In that context the courts “have a duty to ensure that such burden as a particular democratically chosen legislative restriction places on political communication does not undermine the constitutionally prescribed system of government”: Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 at [207] (Gageler J). That constitutional duty is quite different from construing and giving effect to a statutory power of arrest, even acknowledging the importance of personal liberty. The analyses of Gleeson CJ in Mulholland and Thomas show that notions of necessity and reasonable necessity are applied in many different legal contexts, and their meaning must always be understood in the context at issue. The invocation of the constitutional notion of proportionality here, or something like it, was inapposite.
The respondent argued that a “requirement that, to reach the requisite state of satisfaction, the officer be shown to have considered alternatives” has been recognised since at least Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320, and was said to have been restated in State of New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194. Both of those decisions involved previous iterations of the statutory power of arrest. In any event they do not rise quite so high as the respondent suggested. In Zaravinos Bryson JA, with whom Santow JA and Adams J agreed, said that the “availability of Information and Summons as an alternative course, and the considerations favouring and adverse to taking that alternative course, are relevant where the validity of the exercise of the power to arrest is in question” (at [37]). In Smith McColl JA upheld the conclusion of a primary judge that a decision by an officer to arrest a person for reasons of administrative convenience meant that the officer did not suspect on reasonable grounds that it was necessary to arrest the person (see [124]-[127]). These decisions suggest that the availability of alternatives to arrest was relevant to assessment of the validity of arrest. That does not mean the availability of alternatives always had to be considered or that the courts could simply reach their own view on the merits as to whether such alternatives should have been pursued.
In Fleet v District Court of NSW [1999] NSWCA 363, Mason P, Priestley and Handley JJA said the following:
These conclusions suffice to uphold the appeal. However, lest this case go further, and given the importance of the issue, it is appropriate to go on to determine whether the putative alternatives to arrest in this case were in fact available.
A similar, if somewhat weaker, point can be made about s 46(1). It requires that a police officer must ensure any charged person who is refused bail by a police officer, or who is not released on bail, is brought before a court/authorised justice as soon as practicable. The reference to being released on bail again suggests an assumption that the person is in custody. The point is weak, however, because it can be argued that it was only necessary to make the duty apply in circumstances where the person was in custody.
Division 2 of Part 5 is headed “Powers of courts and authorised justices—bail applications”. Within the Division, s 48(1) provides:
In summary, the notion of bail as identified in s 7(1) involves a person being permitted to go free on conditions. The acknowledgements in ss 7(3) and 17(3) that the person in question might not be in custody when a bail decision is made is consistent with the fact that bail may be granted by a court or authorised justice to such a person when a detention application is made by a prosecutor. Section 43(1) does not have the significance attributed to it by the respondent and the primary judge in Ghanem. The police power to grant bail is found in a combination of ss 9, 11 and 43(2), and those provisions are suggestive of an assumption that the person is in custody (as is s 8(1)(a)). Such an assumption is also manifest in s 44(1)(b) and, if weakly, in s 46. In this context, the better view is that police are only empowered to grant bail with respect to a person in custody.
These attempts to construct by implication a power conferred on a police officer to constrain the liberty of an individual, without an arrest, from provisions having a different purpose and context must be rejected. They would render incoherent the controls imposed on the power of arrest without warrant under s 99(1) of the Law Enforcement Act and other carefully framed provisions dealing with police powers in particular circumstances. It was even unclear whether the proposed implied power was constrained by the requirement in s 99(1)(a) of reasonable grounds to suspect an offence had been committed.
This is not a novel conceptual framework. As Sir William Holdsworth explained, referring to Mainprize, a writ which pre-dated Magna Carta, a person granted bail in fact remained in custody, but the custody of the surety and not that of the sheriff: [34]
(2013) 249 CLR 332
(1996) 185 CLR 259
(1999) 197 CLR 611
(2004) 220 CLR 181
(2023) 97 ALJR 1005
(1998) 194 CLR 355
(1987) 162 CLR 514
(2003) 77 ALJR 1165
(1997) 41 NSWLR 476
(2016) 93 NSWLR 280
(2019) 266 CLR 619
(2017) 95 NSWLR 662
(2007) 233 CLR 307
(1986) 161 CLR 278
(2012) 246 CLR 1
(2004) 62 NSWLR 58
(1991) 31 FCR 43
(2022) 275 CLR 24
(2017) 261 CLR 265
(1944) 69 CLR 407
(1976) 135 CLR 100
(2018) 100 NSWLR 782