State of New South Wales v McLaughlin

Court of Appeal (NSW)|2024-05-27|Before: Meagher JA, Adamson JA

Solicitors: Norton Rose Fulbright (Applicant) Australian Criminal and Family Lawyers (Respondent) File Number(s): 2023/463744 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: McLaughlin v State of New South Wales [2023] NSWDC 525 (primary decision) McLaughlin v State of New South Wales (No 2) [2023] NSWDC 557 (costs decision) Date of Decision: 29 November 2023 (primary decision) 13 December 2023 (costs decision) Before: Russell SC DCJ File Number(s): 2021/77260

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The State of New South Wales (the State) sought leave to appeal from the orders of Russell SC DCJ (the primary judge) made on 29 November 2023 that it pay Callum McLaughlin $10,000 for falsely imprisoning him on the afternoon of 2 May 2020 until about 10am on 3 May 2020 (the judgment). It also sought leave to appeal against the primary judge's orders made on 13 December 2023 that the State pay Mr McLaughlin's costs up to 20 July 2022 on an ordinary basis and thereafter on an indemnity basis (the costs order). The circumstances giving rise to Mr McLaughlin's claim for false imprisonment are as follows. Mr McLaughlin was arrested on the morning of 2 May 2020 and was held at Surry Hills Police Station until he was charged at 12.30pm. A Court Attendance Notice (CAN) was created but not filed with a Local Court at that time. At about 1pm Mr McLaughlin was refused bail and at about 5pm he was transferred to a Corrective Services NSW (CS) facility. It was not until 10.35am the following day, Sunday 3 May 2020, that the CAN was registered with the Local Court. Mr McLaughlin's bail application came before a duty magistrate that day. Mr McLaughlin brought proceedings in the District Court against the State (on the basis that it was vicariously liable for the conduct of the NSW Police) alleging post-charge false imprisonment for the period in the afternoon of 2 May 2020 until 3 May 2020. The basis for Mr McLaughlin's claim was that NSW Police had failed to comply with s 46(1) of the Bail Act 2013 (NSW), which relevantly required the police to bring him before a court or authorised justice as soon as practicable after his bail was refused. The primary judge found that, by simply notifying CS that Mr McLaughlin had been processed and taking no further steps on 2 May 2020 to bring him before a court, the police officers had not discharged their obligations under s 46 of the Bail Act. The State sought leave to appeal against the primary judge's findings on liability and quantum of damages on the basis that the primary judge misconstrued or misapplied s 46 and accordingly the appeal raised an issue of principle, a question of public importance and a reasonably clear injustice which went beyond something that was merely arguable. It sought leave to appeal against the costs order on the basis that the primary judge misconstrued r 42.14 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and alleged that this raised a matter of principle and gave rise to a reasonably clear injustice. The Court held (Meagher and Adamson JJA) dismissing the leave application: Application for leave to appeal on liability and quantum of damages Per Meagher JA: (1) In the absence of evidence before the primary judge as to the current procedures or of those in place in May 2020 with respect to persons refused bail by police officers in the Sydney Metropolitan Area on weekends or public holidays, no question of public importance or issue of principle did or could arise. Nor was there any reasonably clear injustice in the outcome of the proceeding below: at [15]. Per Adamson JA: (2) While questions which concern the liberty of a subject and ambit of police powers are necessarily questions of public importance, not every case where false imprisonment is alleged or found warrants a grant of leave to appeal. In this case, the obligations of police officers were governed by express statutory provisions which did not leave room for ambiguity as to who was obliged to bring Mr McLaughlin before a court: at [45]. (3) The police officers were required to file the CAN and the reasons for the refusal of Mr McLaughlin's bail as soon as bail was refused: at [52], [54]. (4) In circumstances where the State did not adduce any evidence to show that Mr McLaughlin's bail application would not have been dealt with by the magistrate on 2 May 2020 had the CAN be filed as required at or shortly after 1pm, there is no reasonably arguable injustice in the primary judge's finding of false imprisonment: at [56]. (5) The issues of principle raised by the State (regarding the interaction between s 46 of the Bail Act and s 99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)) do not squarely arise given the way in which the proceedings were conducted in the Court below: at [59]. Application for leave to appeal against the costs order (6) The proposed appeal on costs did not raise any matter of general principle, much less that there was a clear injustice going beyond that which was merely arguable: at [4] (Meagher JA); [30] (Adamson JA).

JUDGMENT

MEAGHER JA: On 27 May 2024, this Court heard an application by the State of New South Wales for leave to appeal from orders of Russell SC DCJ delivered on 29 November 2023 (McLaughlin v State of New South Wales [2023] NSWDC 525 (J1)) and 13 December 2023 (McLaughlin v State of New South Wales (No 2) [2023] NSWDC 557). After a brief adjournment following the hearing of argument, this Court dismissed the application for leave to appeal with costs. In preparing these reasons, I have had the benefit of reading in draft the reasons of Adamson JA for joining in those orders. My reasons for joining in those orders are summarised below and are substantially consistent with those of Adamson JA.
Her Honour's reasons describe the facts giving rise to Mr McLaughlin's arrest on 2 May 2020 and transfer to the Surry Hills Police Station where he was refused bail. Later that day, he was transferred to the custody of Corrective Services NSW (Corrective Services) in the expectation that he would be brought before the Local Court at Parramatta to enable any bail (release) application to be made by audiovisual link (AVL).
Mr McLaughlin succeeded in his claim that he was falsely imprisoned during the period from when he was "bail refused" at about 1pm until the court attendance notice (CAN) in relation to the two charged offences was recorded as electronically filed in the Local Court, Parramatta at 10:35am on 3 May 2020. That finding was made on the basis that the relevant police officer, Sergeant Stanton, had failed to discharge his duty under s 46(1) of the Bail Act 2013 (NSW) to "ensure" that Mr McLaughlin was brought before a court "as soon as practicable" after he became bail-refused. Damages were assessed in the sum of $10,000, and, taking into account an offer of compromise made by Mr McLaughlin in July 2022, the State was ordered to pay Mr McLaughlin's costs of the proceedings assessed on the ordinary basis up to 20 July 2022, and on an indemnity basis from 21 July 2022. Those costs were considerable, partly because the proceedings were heard over nine days, with the sixth and following days of the hearing occurring approximately 13 months after the fifth day.
The State required leave to appeal on liability and quantum because the matter in issue did not exceed $100,000 (Supreme Court Act 1970 (NSW), s 101(2)(r)); and on the issue of costs, if considered alone (s 101(2)(c)). For the reasons given by Adamson JA I joined in the refusal of leave to appeal against the costs order.
It was submitted on behalf of the State that the proposed appeal on liability raised "significant questions of public importance", "issues of principle", and that the liability decision was "plainly wrong" in at least two respects. On that basis, and by reference to well-established principles (Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] (per Gleeson JA)), it was said there should be a grant of leave.
The significant question of public importance was said to be that if the judgment below stands uncorrected there will be required "wholesale changes to the procedures that NSW police and several other State agencies currently follow with respect to persons who are arrested (and refused bail by police) on weekends".
In support of that being the position, the State relied on the tender of the current standard operating procedures dealing with "adults whom police arrest and refuse bail in the Sydney metropolitan area on or shortly before weekends or public holidays". In addition to the tender of a copy of those procedures, Inspector Shannon Ryan, currently the manager of the South West Metropolitan Courts Sector, also swore an affidavit which was read in the application. The Inspector's evidence included a description of how those current procedures operate in practice with respect to the bringing of people arrested and refused bail in the Sydney Metropolitan Area before the Parramatta Bail Courts on Saturdays, Sundays and public holidays. The evidence directed to current procedures described arrangements for the transfer of bail-refused detainees from the custody of the police to the custody of Corrective Services to allow those persons to be brought before the Parramatta Bail Courts, either on the day of that transfer or on the following day. The evidence included that there was a "12pm Cut Off" time on each of the relevant weekend days or public holidays, after which a detainee could not be brought before that Court on the relevant day absent unusual circumstances justifying a "Late Admission Approval". That cut-off time was measured by reference to the time at which Corrective Services accepted and took custody of the relevant detainee from the NSW Police.
The document recording and describing the current procedures is dated October 2023. The standard operating procedures that existed before those procedures were in force from 2019 to October 2023. A copy of those procedures was in evidence on the application and described the procedure with respect to "late admissions" and the cut-off time of 12pm. None of this evidence was before the primary judge. Nor was there in evidence before his Honour any description of the procedure, if such a procedure existed, which applied following the electronic filing of a CAN and resulted in a bail-refused detainee being brought before the Parramatta Bail Courts via AVL over a weekend or on a public holiday. The evidence before the primary judge also did not identify any practice or procedure for ensuring compliance with the requirement in reg 12 of the Bail Regulation 2014 (NSW) that a police officer refusing bail must give reasons in an approved form, which form is then to be sent to the court before which the bail-refused detainee is required to appear by the relevant CAN. The effect of Sergeant Stanton's evidence as recorded by the primary judge was that he did not know of any legislation or regulation that authorised or required him to provide "paperwork" to Corrective Services (J1[62]).
In these circumstances one matter was plain. The asserted question of public importance did not and could not arise because the primary judge's finding of unlawful detention did not have to grapple with the current procedures or those in fact in place in May 2020 with respect to persons arrested and refused bail by police in the Sydney Metropolitan Area on weekends or public holidays.
There were also several issues of principle said to be "in play". They included: (1) the proper construction of s 46 of the Bail Act, and its interaction with s 99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW); (2) whether a police officer could fulfill the duty under s 46(1) by simply notifying Corrective Services personnel of the presence of a bail-refused detainee in the police station, or whether an officer must do more to discharge that duty; (3) whether in order to discharge that duty a police officer must personally file a CAN, electronically or otherwise; and (4) whether in the face of a breach of the duty in s 46(1) or s 99(3) any unlawful detention commences as soon as bail is refused or at some later point in time.
Again, as counsel for the State acknowledged, none of these issues was expressly raised in argument in the proceeding before the primary judge. There was no reference to s 99(3) and no argument was addressed to whether any period of unlawful detention commenced at the time bail was first refused, as Mr McLaughlin's case implicitly assumed. With respect to the electronic filing of the CAN, no evidence addressed in any detail the procedures or activities which might follow that event, either from the perspective of the Parramatta Bail Courts, the bail-refused detainee, the police or Corrective Services.
In addition, it was contended by the State in this Court that it was not necessary to file a CAN in order to engage the Local Court's power to hear a bail (release) application. Referring to s 64(3) of the Bail Act (and citing Trinh v R [2016] NSWCCA 110 at [7] (per Basten JA)), it was said that the Local Court could hear such an application irrespective of whether proceedings were pending in that Court, provided that the bail-refused detainee was charged with an offence. How this provision might apply where the charges were made by the issuance of a CAN which had not been filed was not explained. As a result, whether Mr McLaughlin could ever have made a bail application relying on that provision was at best speculation in circumstances where the means by which such an application might have been practicable were not the subject of evidence or argument before the primary judge.
Finally, whether the liability decision was "plainly wrong" so as to give rise to any injustice is not to be resolved by reference to the two respects in which the State submitted the primary judge's conclusion was wrong. The first was that his Honour held that the unlawful detention commenced immediately upon the refusal of bail, and not at a time before which it could not be said to have been "practicable" for the police to bring Mr McLaughlin before a court. The primary judge did not consider this question because it was not raised in argument. The State's case before his Honour was more straightforward and was that a breach of s 46 of the Bail Act had not been established. The second respect was said to be the primary judge's conclusion that it was "necessary" for the police to file a CAN in order to enliven the Local Court's jurisdiction. That was said not to follow because of the Local Court's additional power under s 64(3). Whether that was practically or only theoretically available in the circumstances of this case was not explored before the primary judge because the argument was never made. More significantly, the evidence before his Honour did not support a finding that Mr McLaughlin or someone else acting on his behalf could have made an application under that provision where the CAN issued and served upon him had not been filed.
Putting these two supposed errors to one side, as Adamson JA's reasons and analysis demonstrate, on the factual material before the primary judge it is not reasonably arguable that his Honour's conclusion that Mr McLaughlin had been unlawfully detained was wrong.
In the result, contrary to the State's submissions to this Court, this is not a case in which there should be a grant of leave on the questions of liability and quantum. The proposed appeal will not involve any question of public importance or issue of principle, and it is not apparent that there was any reasonably clear injustice in the outcome of the proceeding. For these reasons I joined in the making of the orders that the application for leave to appeal be dismissed with costs.
ADAMSON JA: On 29 February 2024, the applicant, the State of New South Wales (the State), filed a summons seeking leave to appeal from the judgment of Russell SC DCJ (the primary judge) delivered on 29 November 2023, ordering judgment for the respondent, Callum McLaughlin, in the sum of $10,000 for false imprisonment on 2-3 May 2020. The damages comprised $5,000 for general damages and $5,000 for exemplary damages. The proceeding was heard over 9 days (22-26 August 2022 and 25-28 September 2023).
At the conclusion of the hearing of the leave application on 27 May 2024, this Court dismissed the summons for leave to appeal with costs. What follows are my reasons for concurring in these orders.
Mr McLaughlin commenced proceedings in the District Court (the Court below) by filing a statement of claim on 18 March 2021. On 1 September 2021, he filed an amended statement of claim in which he claimed damages from the State, on the basis that it was vicariously liable for the conduct of the NSW Police. He alleged various torts against the NSW Police, including post-charge false imprisonment for a period in the afternoon of 2 May 2020 (some time after 1pm) until about 10am on 3 May 2020.
The basis for this claim for false imprisonment (which was the only claim that succeeded) was that the NSW Police had failed to comply with s 46(1) of the Bail Act 2013 (NSW), which provides: "A police officer must ensure any accused person charged with an offence who is refused bail by a police officer with power to grant bail, or is not released on bail granted by a police officer, is brought before a court or authorised justice as soon as practicable to be dealt with according to law."
On 13 December 2023, the primary judge made orders which included orders that the State pay Mr McLaughlin's costs up to 20 July 2022 on the ordinary basis and thereafter on an indemnity basis (the costs order). The costs order was made by reason of an offer of compromise served on behalf of Mr McLaughlin on 20 July 2022, in which he offered to settle the proceedings on the basis of a judgment in his favour in the sum of $10,000.
In these reasons, paragraph references in square brackets are references to the primary judge's reasons, unless otherwise indicated.

The facts

The primary judge relevantly found that Mr McLaughlin was arrested early on the morning of 2 May 2020 and taken to the Surry Hills Police Station where the Custody Manager, Sergeant Stanton, put him in a holding cell as he was intoxicated. At about 12.30pm, Mr McLaughlin was charged with two offences: common assault (s 61 of the Crimes Act 1900 (NSW)) and intentional choking (s 37(1)(a) of the Crimes Act). A Court Attendance Notice (CAN) was created but, relevantly, was not filed with a Local Court at that time.
At about 1pm, Mr McLaughlin was refused bail. At that time, Sergeant Stanton notified Corrective Services NSW (CS) of this matter with a view to CS officers taking Mr McLaughlin to the cells in the CS facility next door and bringing him before a court so that he could make a bail application before a magistrate. It was not until about 5pm that officers of CS contacted Sergeant Stanton to inform him that they were ready to collect Mr McLaughlin and transfer him to the CS facility. Sergeant Stanton handed the CAN and associated papers to the CS officers.
On Sunday, 3 May 2020, Mr McLaughlin's bail application came before a duty magistrate at the Parramatta Bails Court. Mr McLaughlin participated in the bail application by Audio Visual Link (AVL) from the CS facility. The Parramatta Bails Court is a Local Court which sits usual court hours on Saturdays and Sundays and deals with the bail applications of those taken into custody over the weekend. The magistrate granted bail at some time after 10.35am, when the CAN is recorded as having been "registered" with the Local Court.
The primary judge's reasons for finding that the State was liable for damages for false imprisonment are as follows: "143 Reference has been made above to the evidence of Officer Stanton, which includes the following: (1) After bail was refused, Officer Stanton notified Corrective Services that Mr McLaughlin needed to be collected 'to see the magistrate'. (2) Corrective Services notified him four hours later, at 5.00pm, that police could bring Mr McLaughlin next door to the Surry Hills Correctives office. (3) Officer Stanton sent all the paperwork, including the CAN, with Mr McLaughlin when he was taken to Corrective Services. (4) Officer Stanton did not file, print or register the CAN himself, which would have given the court jurisdiction to hear a bail application. (5) Officer Stanton had never sent any police bail decision directly to a court and had never heard of anybody else doing it that way. Conclusion in Relation to Second Imprisonment Claim 144 I find that Officer Stanton did not ensure (the verb in used s 46 of the Bail Act) that after he refused bail, Mr McLaughlin was brought before a court as soon as practicable. There was no power to delegate this obligation to Corrective Services. It was not a discharge of his obligation to simply notify Corrective Services that Mr McLaughlin had been processed fully at Surry Hills Police Station, and then take no further steps to bring Mr McLaughlin before a court, knowing that Corrective Services can take between five minutes and up to a day to accept a prisoner. Officer Stanton knew that Corrective Services had AVL facilities by which a prisoner can appear before the weekend bail court, but did nothing to ensure that this happened. Even more perplexing is the failure of Officer Stanton to print the CAN, which would have the effect of giving the court jurisdiction to deal with the charges, and of course hear a bail application. Once again this was left to Corrective Services when it should have been done by the police to ensure compliance with s 46 of the Bail Act. 145 The State, which bore the onus of proving that the continuing detention of Mr McLaughlin was lawful, called no evidence to demonstrate that it had brought Mr McLaughlin before a court as soon as reasonably practicable. Simply saying, in effect, this is the way we always do it, is not enough. 146 I find that Mr McLaughlin is entitled to succeed in relation on the second claim of false imprisonment." (Emphasis in original.)
The State seeks leave to appeal against the judgment and the costs order.

Application for leave to appeal

It was accepted that leave to appeal against liability and the quantum of damages was required under s 101(2)(r) of the Supreme Court Act 1970 (NSW) as the appeal does not "involve a matter in issue amounting to or of the value of $100,000". Leave to appeal against the costs order was also required by reason of s 101(2)(c) of the Supreme Court Act.

Application for leave to appeal against the costs order

The application for leave to appeal in respect of costs can be dealt with briefly. Mr Reynolds SC, who appeared with Mr Ward for the State, did not wish to add to the written submissions in support of the grant of leave. The State submitted that the primary judge's refusal to "otherwise order" to displace the consequences provided for in r 42.14 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) (which applied because the State had not accepted Mr McLaughlin's offer of compromise and the judgment sum was no less favourable than the terms of the offer) raised a matter of principle and gave rise to a "reasonably clear injustice". It submitted that the injustice arose from the circumstances that Mr McLaughlin succeeded on only one issue, the post-charge false imprisonment, and that the bulk of the proceedings had been taken up on matters in respect of which Mr McLaughlin was unsuccessful. The State submitted that the primary judge had misconstrued r 42.14 of the UCPR.
I do not consider the proposed appeal on costs raises any matter of general principle, much less that there was a clear injustice, going beyond that which was merely arguable. Accordingly, I concurred in the refusal of leave to appeal against the costs order.

Application for leave to appeal on liability and quantum of damages

Mr Reynolds submitted that leave to appeal on liability and quantum ought be granted because the appeal raised an issue of principle; a question of public importance; and a reasonably clear injustice which went beyond something that was merely arguable: see the authorities referred to in Cheng v Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15] (Bell CJ, Ward P and Basten AJA agreeing).
In support of the application for leave, Mr Reynolds read the affidavit of Inspector Shannon Ryan affirmed 15 May 2024. Inspector Ryan annexed the Standard Operating Procedures (SOPS) which currently apply to Bail Courts in NSW and annexed the SOPS which were in force as at May 2020. These documents address matters such as the transport and admissions of detainees to the Bail Court; preparations for the hearing; conduct of the bail hearing and communicating and actioning court orders made at the conclusion of a bail hearing.
Inspector Ryan also deposed as to the potential costs to the State as a consequence of the findings in the primary judgment whereby the police were found to be in breach of their duty under s 46 of the Bail Act by handing Mr McLaughlin to CS in circumstances where he was not brought before a court until the following morning. Mr Reynolds acknowledged that this evidence had not been adduced in the hearing in the Court below but confirmed that it was relied on exclusively for the purposes of the leave application to show the ramifications of the primary judge's decision.
The parties also tendered some pages of the transcript of the hearing before the Court below to indicate statements made by counsel in the Court below.
Mr Reynolds submitted that there were several issues of principle raised by the proposed appeal, which included the following questions of statutory interpretation: 1. how the obligation of a police officer under s 46(1) of the Bail Act differed (if at all) from the obligation imposed on a police officer by s 99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA); 2. the meaning of the words "ensure" and "reasonably practicable" in s 46(1) of the Bail Act, which related to how police were required to discharge their duty under that section and the circumstances in which a breach of that section could give rise to a claim of false imprisonment; and 3. how s 250 of the Crimes (Administration of Sentences) Act 1999 (NSW) (the CAS Act) interacts with s 46(1) of the Bail Act and s 99(3) of LEPRA.
He submitted that, as s 46 of the Bail Act had not been judicially considered by a superior court, leave ought be granted to give this Court the opportunity to address these questions of statutory construction and remedy what he contended was an erroneous construction of s 46(1).
The State submitted that the liberty of a subject and the ambit of police powers (which included the duty to bring a detainee before a bail court) plainly gave rise to questions of public importance in law enforcement and the administration of justice and relied on State of New South Wales v Smith (2017) 95 NSWLR 662; [2017] NSWCA 194 at [8] (McColl JA, Leeming JA and Sackville AJA agreeing). Mr Reynolds submitted that the primary judge's decision, unless reversed on appeal, would substantially affect the way in which the NSW Police and CS deal with those in custody who have been refused bail and who are therefore required to be brought before a magistrate, as required by s 46(1) of the Bail Act.
Mr Reynolds accepted that the factual substratum in the present case was "sub-optimal" to resolve the issues of principle but foreshadowed that, if leave were granted, the State would seek to re-open to adduce further evidence such as was contained in Inspector Shannon's affidavit. He acknowledged the difficulties of such an application but wished to preserve the State's position.
The State contended that the appeal raised a "reasonably clear injustice" in that the primary judge had misapprehended the process associated with the filing of a CAN. He submitted that the primary judge's finding at [144] (reproduced above) revealed error in so far as his Honour found that it was necessary that the CAN be "printed" (filed) and that this would have had the effect of conferring jurisdiction on the Local Court to deal with Mr McLaughlin's bail application. Mr Reynolds also submitted that it had not been put to Sergeant Stanton that there was anything else he could have done.
Mr Reynolds submitted that, while filing a CAN was a permissible condition precedent to the making of a bail application, it was not mandatory that a CAN be filed. He relied on s 64(3) of the Bail Act (which provides that "[t]he Local Court may hear a bail application for an offence if a bail decision has been made by a … police officer") in support of this submission and contended that the Local Court could have dealt with the bail application, whether or not the CAN had been filed. Mr Reynolds accepted that this provision had not been relied on in the Court below but sought to rely on it in support of a submission that there had been a clear injustice as the decision of the primary judge was "plainly wrong".
The submission was also made on behalf of the State that, before finding the State liable, the primary judge was obliged to determine the time at which Mr McLaughlin would have been brought before the Court had the police complied with their duty under s 46(1) of the Bail Act. Mr Reynolds submitted that the detention of Mr McLaughlin prior to that time could not amount to unlawful detention and therefore Mr McLaughlin could not be entitled to damages for false imprisonment unless and until there was an established breach of s 46(1) of the Bail Act.
Mr Reynolds further submitted that even if Sergeant Stanton had filed the CAN, this, of itself, would have been insufficient to bring Mr McLaughlin before the Parramatta Bails Court because he would also need either to have access to an AVL suite (which was available in the CS facility) or to be brought to court before his bail application could be dealt with. He argued that, in these circumstances, it could not be inferred that Mr McLaughlin's bail application would have been heard any sooner than in fact occurred.
Mr Reynolds submitted that the primary judge was incorrect to find, as his Honour did at [145], that the State, "which bore the onus of proving that the continuing detention of Mr McLaughlin was lawful, called no evidence to demonstrate that it had brought Mr McLaughlin before a court as soon as reasonably practicable." He submitted that, although the State bore the onus of proving that the initial detention was lawful, an evidentiary onus was cast on Mr McLaughlin to prove that his continued detention post-charge was unlawful.
Such was the public importance of the questions raised, Mr Reynolds confirmed that he was instructed that the State would pay the respondent's costs of the appeal, as condition of a grant of leave to appeal with respect to liability and quantum.

Consideration

Questions which concern the liberty of a subject and the ambit of police powers are, almost by definition, questions of principle which raise issues of public importance. However, it does not follow that every case where false imprisonment is alleged or found warrants a grant of leave to appeal, particularly where the obligations of police officers in the present case are governed by express statutory provisions, some of which are identified below. Although questions of statutory construction might arise in particular cases, the interaction between these provisions does not leave room for ambiguity in the identity of the person (a police officer, not an officer of CS) who has the obligation to bring a person who has been refused bail before a court to be dealt with.
When a person is charged, a police officer must create a CAN and serve it on the person charged (s 52 of the Criminal Procedure Act 1986 (NSW) (CP Act) for committal proceedings; s 177 of the CP Act for summary offences). The CAN must be in an approved form (ss 50 and 175 of the CP Act and Local Court Rules 2009 (NSW), rr 3.2 and 3.11) and filed in the Local Court, with the effect that proceedings are commenced in the Local Court for the offence or offences charged (ss 47, 48, 172 and 173 of the CP Act). Any document which, relevantly, the CP Act, requires to be filed, can be filed electronically (Local Court Rules, r 8.7).
As soon as reasonably practicable after a person in police custody is charged with an offence, a police officer must ensure that 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: s 44(1) of the Bail Act.
A police officer, who is of or above the rank of sergeant and present at the police station where an accused is present, may make a bail decision for an offence: s 43(1) of the Bail Act. Such a person is, relevantly, a "bail authority": s 4 of the Bail Act. A bail authority which refuses bail must "immediately record the reasons for refusing bail": s 38(1) of the Bail Act. If a police officer refuses bail to someone who has been charged, the officer is obliged to give reasons for the refusal in an approved form (Bail Regulation 2014 (NSW) (which was in force at the relevant time), reg 12(1)). The form must be sent "immediately" to the Court before which the applicant for bail is required to appear (Bail Regulation 2014, reg 12(2)).
Section 46(1) has been set out above. Section 99(3) of LEPRA echoes but does not exactly replicate s 46 of the Bail Act and provides: "The arresting police officer or another police officer must, as soon as is reasonably practicable, take the person who has been arrested under this section before an authorised officer to be dealt with according to law." (Emphasis added to highlight the additional word in s 99(3) of LEPRA, which does not appear in s 46(1) of the Bail Act)
Section 61 of the Bail Act provides that a court may hear a bail application if proceedings for that offence are pending in that court. Section 59 of the Bail Act provides that a reference to "proceedings for an offence pending in a court" is a reference to "substantive proceedings pending in the court." Section 5(3)(a) of the Bail Act specifically excludes "proceedings relating to bail" from the definition of "substantive proceedings for an offence."
Where a person in police custody has been refused bail by a police officer with power to make a bail decision under the Bail Act, the person is a "person in custody" for the purposes of Part 13 of the CAS Act. Such a person "may be given into the keeping of a correctional officer": s 250(1) of the CAS Act. A warrant of commitment or other warrant in respect of the person authorises a correctional officer to convey the person to the correctional centre referred to in the warrant: s 250(3) of the CAS Act.
The duty on police to bring Mr McLaughlin before the court as soon as practicable required the police to file the CAN together with the reasons for the refusal of police bail (as required by Bail Regulation, reg 12(1)) as soon as bail was refused.
It may be that, even had that been done, it would not have been possible for Mr McLaughlin's bail application to be heard and determined at the Parramatta Bails Court on the afternoon of Saturday 2 May 2020. However, I am not persuaded that there is an arguable error in the primary judge's finding that the State bore the onus on this question and had not adduced any evidence to show that it could not have been heard that afternoon (see [145]).
While a police officer who has refused bail to a person may, by warrant, transfer custody of that person to a correctional officer pursuant to s 250 of the CAS Act, this transfer does not affect that officer's duty to bring the person before the court as soon as practicable to permit a bail application to be made.
Mr Reynolds accepted and, indeed, submitted that the evidence adduced by the State in the Court below established the following uncontroversial facts (which were included in a document which he provided to this Court on the leave application), as found by the primary judge: 1. Sergeant Stanton refused bail to Mr McLaughlin at 12.59pm on 2 May 2020, after which he notified CS that Mr McLaughlin needed to be collected by CS "to see the magistrate" ([30], [143]); 2. Sergeant Stanton took no further steps with respect to Mr McLaughlin between that time and 5pm when CS notified him that they were ready to accept the transfer of Mr McLaughlin into CS custody ([63], [143]-[144]); and 3. at about 5.04pm, police transferred Mr McLaughlin into the custody of CS ([54]), by which time it was too late for his bail application to be heard by the magistrate as the Parramatta Bails Court kept usual court hours ([129]).
In light of these facts, I am not persuaded that there was any reasonably arguable injustice in the primary judge's finding that Mr McLaughlin had been unlawfully detained, in circumstances where the State, which bore the onus, failed to adduce any evidence to show that Mr McLaughlin's bail application would not have been dealt with by the magistrate on 2 May 2020 had Sergeant Stanton filed the CAN with his reasons for refusing police bail in the Local Court at, or shortly after, 1pm on that day.
The evidence did not establish that there was any requirement for Mr McLaughlin to be in CS custody, rather than police custody, before his bail application could be dealt with (and there is no statutory provision to that effect). Mr McLaughlin was not required to be in court in person as long as he was represented by a legal practitioner: McKellar v DPP [2014] NSWSC 459; (2014) 240 A Crim R 285. There was no evidence to indicate that the duty practitioner who represented him on 3 May 2020 could not have represented him on 2 May 2020 or that another duty practitioner would not have been available to represent him on 2 May 2020.
Nor was there any legislative requirement that Mr McLaughlin be in an AVL suite before his bail application could be heard. There may be administrative advantages in having a bail applicant in CS custody because this facilitates the conventional contact between the bail authority (the magistrate at the Parramatta Bails Court) and the AVL suite in the CS facility in which the bail applicant is in custody. However, these potential advantages (which lack statutory force) cannot override the obligations which Parliament has imposed on police officers to bring a person who has been charged and refused bail by police before the court to be dealt with according to law.
The questions of statutory construction identified by Mr Reynolds do not squarely arise, given the way in which these proceedings were conducted in the Court below. For example, I am not persuaded that the difference between "as soon as practicable" in s 46 of the Bail Act and "as soon as reasonably practicable" in s 99(3) of LEPRA, if there be one, could rationally affect the finding of breach on the facts of the present case. Whatever "ensure" means in s 46(1) of the Bail Act, it is difficult to see how, on the basis of the evidence before the primary judge, the police could be justified in doing nothing between 1pm and 5pm to bring Mr McLaughlin before a magistrate, apart from contacting CS, the officers of which had no relevant statutory obligation.
Further, the relationship between s 250 of the CAS Act, on the one hand, and s 46 of the Bail Act and s 99(3) of LEPRA would appear to be relatively clear: s 250 is mechanical and permits the transfer of custody of a detainee (including from a police officer to a correctional officer), whereas the other provisions impose a duty on the relevant police officer to ensure a particular objective (bringing the detainee before the court).
In these circumstances, I concurred in the refusal of leave as I was not satisfied that the proposed appeal against liability and quantum of damages gave rise to any issue of principle, any matter of public importance or any reasonably clear injustice.
As there was no reason why the costs of the leave application ought not follow the event in accordance with the general rule in UCPR, r 42.1, I also concurred in the order that the State pay Mr McLaughlin's costs of the appeal.

Conclusion

For the reasons given above, I concurred in the order which was made by the Court on 27 May 2024: "Summons for leave to appeal is dismissed with costs."

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 June 2024

Bail Regulation 2014(NSW)

(Supreme Court Act 1970(NSW)

(Bail Regulation 2014(NSW)

(2022) 108 NSWLR 342

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