State of NSW v Delly

State of NSW v Delly - [2007] NSWCA 303 - NSWCA 2008 case summary — Zoe

[14]

The respondent lived in an apartment with her de facto partner Mark Helmout. On 19 June 1998 the respondent, Mr Helmout and a number of other people had gone to the respondent's apartment at around midnight after a night of drinking. The respondent's daughters Rose, aged 3½, and Jasmine, aged 7 months, were also at the apartment. An argument started between Paul Harris and Mark Helmout's brother, Peter. Peter began punching Harris and the respondent was sent to her bedroom when she tried to intervene. Harris was murdered and the respondent later saw the body and helped clean up the lounge room once the body had been removed. Early the following morning police entered the apartment with a search warrant. The respondent heard the police inform Mark, Peter and Debbie Davidson, who had slept in the apartment overnight, that they were under arrest and to get up. A police officer asked the respondent for her name and date of birth and informed her that she was going to be taken to Queanbeyan Police Station. It was common ground that the respondent was then under arrest and was being taken into custody. It was also common ground that the respondent was not informed that she was under arrest or as to the reason for her arrest. The respondent spent the day at the police station and was never cautioned or charged. At 11am the police formed the view that she could not be charged with any offence but did not inform her of this fact. There was no challenge to the trial judge's finding that she ceased to be under arrest at 12:30pm. Held On Liability That the exception to the requirement that a person, when arrested, should be informed of the reason why they are arrested, unless the circumstances are such that they must know the general nature of the alleged offence for which they are detained, did not apply in the present case: (per Tobias JA, Basten JA agreeing) For the exception to apply, the respondent must have known that she was being arrested for some criminal offence that was connected to the murder and must have some meaningful knowledge of what the charge was likely to be.

[29]

1 IPP JA: I have had the benefit of reading the reasons to be published by Tobias JA. I agree with his Honour's statement of the facts and circumstances and with the orders his Honour proposes. 2 Although the police did not inform the respondent that she was under arrest, it was common ground that she was arrested and taken into custody. 3 As Adams v Kennedy (2000) 49 NSWLR 78 holds, Christie v Leachinsky [1947] AC 573 reflects the common law in New South Wales in regard to the obligation to notify an arrested person of the reasons for the arrest (see Priestley JA, with whom Sheller and Beazley JJA agreed, at 84, [24]). 4 In Christie, Viscount Simon said (at 587 to 588): "(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, eg, by immediate counter-attack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very, important matter."

[30]

5 Lord Simonds said (at 591 to 593): "[I]t is a condition of lawful arrest that the man arrested should be entitled to know why he is arrested, and then, since the affairs of life seldom admit an absolute standard or an unqualified proposition, see whether any qualification is of necessity imposed upon it. …[T]he law requires that, where arrest proceeds upon a warrant, the warrant should state the charge upon which the arrest is made. I can see no valid reason why this safeguard for the subject should not equally be his when the arrest is made without a warrant. The exigency of the situation, which justifies or demands arrest without a warrant, cannot as it appears to me, justify or demand either a refusal to state the reason of arrest or a mis-statement of the reason. Arrested with or without a warrant the subject is entitled to know why he is deprived of his freedom, if only in order that he may, without a moment's delay, take such steps as will enable him to regain it. … … [I]t is not an essential condition of lawful arrest that the constable should at the time of arrest formulate any charge at all, much less the charge which may ultimately be found in the indictment. But this, and this only, is the qualification which I would impose upon the general proposition. It leaves untouched the principle, which lies at the heart of the matter, that the arrested man is entitled to be told what is the act for which he is arrested. The 'charge' ultimately made will depend upon the view taken by the law of his act. In ninety-nine cases out of a hundred the same words may be used to define the charge or describe the act, nor is any technical precision necessary…This is I think, the fundamental principle, viz., that a man is entitled to know what, in the apt words of Lawrence LJ, are 'the facts which are said to constitute a crime on his part' [see [1946] KB 124 at 147]." 6 Lord du Parcq (at 600) stressed the need to tell the arrested person "with what offence he is charged". 7 There is a difference in the words used by Viscount Simon and Lord du Parcq on the one hand and Lord Simonds on the other. The former require the arrested person to be told the "charge" or the "crime" or the "offence" for which the arrest is made. The latter states that, while the arrested person must know the "reason of arrest", the arresting police officer need not "formulate any charge at all, much less the charge which may ultimately be found in the indictment". Lord Simonds points out that the "charge" will depend on a "view" that is taken at a later time. According to his Lordship, arrested persons are entitled to know what are the facts said to constitute the crime for which they are arrested. 8 Both approaches accommodate the proposition that it is not the law that an arrested person must be given detailed particulars of the case against him or her. "He must be told why he is being arrested. In some cases it will be necessary for the officer to give more facts than in others": Taylor v Chief Constable of Thames Valley Police [2004] 1 WLR 3155 (at 3166, [35]) per Clarke LJ (with whom Sedley LJ and Sir Andrew Morritt VC agreed). In Abbassy v Commissioner of Police of the Metropolis [1990] 1 WLR 385, Woolf LJ (with whom Mustill and Purchas LJJ agreed) said (at 392): "Whether or not the information which is given is adequate has to be assessed objectively having regard to the information which is reasonably available to the officer…[Doing what a reasonable person would have done in the circumstances] involves informing the person who is arrested in non-technical and not necessarily precise language of the nature of the offence said to constitute the crime for which he is being arrested." 9 The rationale underlying the rule that persons are entitled to know why they are being arrested is that they should be put in a position to be able to give an explanation of any misunderstanding, or to call attention to others for whom they may have been mistaken, or to give some other exculpatory reason, and to assert that further inquiries may save them from the consequences of false accusation: see, for example, Christie (at 588) per Viscount Simon and (at 591 to 592) per Lord Simonds; Taylor (at 3162, [21]) per Clarke LJ. 10 For my part, I prefer the approach of Lord Simonds. The notion that the lawfulness of the arrest depends on the police officer specifying the charge (and not on informing the person being arrested of the facts which have given rise to the arrest) goes further than is necessary to protect the position of the person arrested. Further, in my view, the notion is impractical and ignores the practical reality that the arresting officer may not be qualified or in a position to formulate the appropriate charge. 11 The rationale for the rule is to enable arrested persons to know in substance what acts they are alleged to have perpetrated so that they can explain their conduct. That rationale is satisfied by Lord Simonds' requirements. The exception recognised by Viscount Simon, namely, that arrested persons need be given no information when the circumstances of the arrest are such that they should know why they are being arrested, is consistent with the notion that the particular offence need not be specified (as is implied by Lord Simonds' observations). In practice, moreover, the charge on which the arrested person faces trial is often formulated long after the arrest. 12 The approach of Lord Simonds has been followed in R v Kane [2001] NSWCCA 150. In that case a police officer informed the person he arrested: "Mr Kane, as I have already told you, I am Detective Sergeant Smith and this is Detective Perry. We are attached to the Major Crime Squad North at Chatswood. We are investigating the death of Mr Wayne Tonks, a 35 year old high school teacher who was murdered at his home unit in Artarmon on the weekend of the 19th, 20th May 1990. We have received information that you may have some knowledge of the death of Mr Tonks."

[32]

See also the remarks of Martin CJ in Clark v Trenerry (1996) 125 FLR 260 (Supreme Court of the Northern Territory). 14 In my view, s 352(2) of the Crimes Act 1900 (NSW) (as in force in 1998) is not helpful. The fact that, by that section, an arresting officer was required to suspect that the arrested person had committed an offence punishable under any Act does not necessarily lead to an inference that the officer was required to inform the person of the particular offence the officer had in mind. The difficulties of drawing such an inference are well illustrated by Gelberg v Miller [1961] 1 WLR 153. 15 In Gelberg, the appellant left his motor vehicle in a restricted street and refused to move it, even though he was requested by the Metropolitan Police to do so. When the police threatened to move it, the appellant removed the distributor, rendering the car immobile, and refused to give his name and address. He was, thereupon, arrested for obstructing a constable in the execution of his duty by refusing to move a motor vehicle and refusing his name and address. The arresting officer specified as a ground of arrest the offence of obstruction by refusing to move a motor vehicle. This form of words fitted both the offence of obstructing a constable in the execution of his duty (for which there was then no power of arrest) and obstructing a thoroughfare (for which there was such a power). The Queen's Bench Division held that the accused, by being told that he was being arrested for obstructing as above, was sufficiently apprised of the facts to render the arrest lawful. Lord Parker CJ (who wrote the main judgment) in discussing the question as to what exactly should be told as a prelude to arrest, asked (at 160): "Must it be the specific section or subsection of the Act of Parliament which it is said the offender has offended against, or is it to be just a broad statement of the nature of the offence? Or is it to be a statement of the facts, facts which may give rise to a number of offences, it being left to those responsible hereafter to say exactly what the charge should be?" After quoting from parts of Lord Simonds' speech in Christie (at 593), in which his Lordship said that police officers, at the time of arrest, need not formulate any charge, Lord Parker went on to say (at 161): "[I]t is clear from that that the mere fact that in this case the charge ultimately brought was not a charge under section 54 of the Metropolitan Police Act, 1839, is neither here nor there. The question is: Did the appellant know or was he told the alleged facts which would make him guilty of that offence? In this case, it is true, the respondent said to him that he, the respondent, was arresting the appellant for obstructing him in the execution of his duty, and there was no power of arrest under the Metropolitan Police Act, 1839, in respect of the misdemeanour of obstructing a police officer in the execution of his duty. However, the exact words which appear in the case are these: 'he told him he was going to arrest him for obstructing him in the execution of his duty by refusing to move his car and refusing his name and address'. To my mind it is clear that, by saying that he was arresting him for refusing to move his motor-car, he was informing the appellant of a fact which, in all the circumstances, amounted to a wilful obstruction of the thoroughfare by leaving his car in that position. It seems to me to matter not that the respondent also coupled with that the refusal to give his name and address or the allegation of obstructing him in the execution of his duty. May I test it in this way: supposing the respondent had said nothing but had just arrested him, could it really be said that the appellant did not know all the facts constituting an alleged wilful obstruction of the thoroughfare without having that particular charge made against him at the time? In my judgment, what the appellant knew and what he was told was ample to fulfil the obligation as to what should be done at the time of an arrest without warrant." 16 As Lord Parker CJ in Gelberg indicates, the circumstances of the arrest may be such that the arrested person will know full well of the reasons for the arrest. In such a case, the arresting police officer is not required to give any reasons for the arrest. In Christie, Viscount Simon stated in this regard (at 587): "The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained".

[33]

Lord Simonds put it more colourfully (at 593): "I think it is clear that there is no need for the constable to explain the reason of arrest, if the arrested man is caught red-handed and the crime is patent to high Heaven". 17 I stress that it is the circumstances of the arrest that govern the issue, not the subjective knowledge of the arrested person as to how the crime was committed. In Christie, Viscount Simon (at 586 to 587) said: "The propositions laid down in the text books are supported by judicial decisions, to some of which I will briefly refer. What is particularly noteworthy is that in many of these decisions an exception to the general rule is explained and justified, and this indirectly establishes what the general rule is… In Rex v Howarth (1828) 1 Mood 207, it is laid down that there is no need to tell a man why he is being arrested when he must, in the circumstances of the arrest , know the reason already." [My emphasis.] 18 In the present case, the fact that the respondent may have known of the circumstances under which Mr Harris was murdered is irrelevant. That was not part of the circumstances of the arrest. The respondent was not caught red-handed and the crime for which she was arrested was not patent. The police said nothing to her from which she could infer or deduce why she was being arrested. The situation differed from that in R v Kane. 19 Hence, I agree that the appellant's challenge to the finding that the respondent was unlawfully detained should be rejected. 20 As regards the circumstances under which aggravated damages may be awarded, the rule in this State was expressed as follows by Clarke JA (with whom Priestley and Beazley JJA agreed) in Spautz v Butterworth (1997) 41 NSWLR 1 (at 17 to 18), following Toohey and McHugh JJ (in separate judgments) in Coyne v Citizen Finance Limited (1991) 172 CLR 211 (at 237 and 241): "[W]here a plaintiff is entitled to compensatory damages for wrongful arrest or false imprisonment, it is proper for the Court, in assessing ordinary compensatory damages, to take into account the whole of the conduct of the defendant at the time of verdict which may have the effect of increasing the injury to the person's feelings. Such matters might include the absence of apology and the reaffirmation of the truth of the matters. However, for a plaintiff to be entitled to aggravated damages, he or she must show that the conduct of the defendant was neither bona fide nor justifiable. Applying those principles to the present case, I would conclude that the additional matters relied on by the appellant are not grounds which may be taken into account by the Court in considering an award of aggravated damages absent any evidence of mala fides or lack of justifiability. However, they may be taken into account in assessing an award of general compensatory damages. Matters such as the indignity, mental suffering, disgrace and humiliation suffered by the appellant as a result of the false imprisonment are to be included in general damages. Any conduct of the first respondent which may have had the effect of increasing the injury to the appellant's feelings is also to be included in the general compensatory damages."

[34]

See also McDonald v Coles Myer Ltd (1995) Aust Torts Reports 81-361. 21 On this basis, in an action for false imprisonment, aggravated damages will not be awarded unless a plaintiff establishes that the conduct of the defendant was neither bona fide nor justifiable. 22 Having regard to Spautz v Butterworth, the only possible ground on which, arguably, a finding of aggravated damages could be made is Superintendent Little's failure to inform the respondent by 11.00 am on the morning of her arrest that she was no longer under arrest, and thereby keeping her under arrest for a further hour. 23 Even assuming that Spautz v Butterworth does not apply, I agree with Tobias JA for the reasons he gives that there should be no "increment to the ordinary compensatory damages already included in her Honour's award of $25,000". 24 As Tobias JA observes, exemplary damages will be awarded to plaintiffs in cases where it is necessary to punish the defendant for the defendant's anti-social behaviour to the plaintiff and to deter others from like conduct: see, for example, Lamb v Cotogno (1987) 164 CLR 1 (at 9 to 10). The defendant's conduct must amount to or exhibit "a conscious and contumelious disregard for the plaintiff's rights" (see Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 129 per Taylor J and at 154 per Windeyer J; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; Gray v Motor Accident Commission (1998) 196 CLR 1). 25 A tendency has developed to assume that, where plaintiffs are successful in cases of false imprisonment, exemplary (and, indeed, aggravated) damages should be awarded automatically against the police. Such a tendency is incorrect and should be avoided. The requirement laid down by the law must be applied, properly, in each individual case. I record my express agreement with what Basten JA has written in [115] to [117] of his reasons. 26 In the present case, Superintendent Little caused the respondent to be detained for an hour when he knew that he had no right to detain her and that she was no longer suspected of the offence for which she had been arrested. This was a knowing and deliberate act on his part. To that extent, he acted with a conscious and contumelious disregard for the respondent's rights. For that reason, I agree with Tobias JA that an award of exemplary damages should be made. 27 I also agree with Tobias JA that exemplary damages of $10,000 should be awarded, although, for my part, that amount is at the highest end of the spectrum (compare Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662). 28 TOBIAS JA: Pursuant to leave granted by this Court on 27 September 2006, the appellant appeals to this Court from a decision of her Honour Judge Balla of the District Court on 5 December 2005 whereby her Honour awarded the respondent damages in the sum of $60,000 together with interest in the amount of $10,360 in respect of her wrongful arrest and detention on 20 June 1998 by three police officers for whose conduct the appellant is vicariously responsible. 29 The sum of $60,000 comprised an award of $25,000 for general damages, $10,000 for aggravated damages and $25,000 for exemplary damages. Although the appellant's grounds of appeal included a challenge to the amount of general damages awarded to the respondent as being manifestly excessive, the issues in the appeal concentrated upon the questions of liability on the one hand and the award of aggravated and exemplary damages on the other.

[35]

The relevant background facts 30 On 19 June 1998 the respondent lived in an apartment in Queanbeyan with her de facto partner, Mark William Helmout. At 2pm on that day, after attending the funeral of Mr Helmout's brother, John, the respondent in the company of a number of other people, attended the Raiders Club at Mawson until roughly midnight. Upon leaving the club the respondent then returned to her apartment together with Mr Helmout (Mark), his brother Peter (Peter), a Mr Paul Harris (Harris), Ms Debbie Davidson and one or two others. 31 The party continued drinking until an argument started between Harris and Peter. The latter commenced repeatedly punching Harris notwithstanding the respondent telling him to desist. The respondent told Peter not to do anything in the apartment because his nieces lived there, this being a reference to her daughters Rose aged 3½ and Jasmine aged 7 months. In response the respondent was told "more or less" to "shut up" and to go into her bedroom. This she did with her daughter Jasmine. Harris was murdered by Mark and/or Peter whilst she was in her bedroom. 32 Peter then told the respondent to return to the lounge room, which she did. She observed Harris' body with blood splattered all over the apartment. The respondent then told the Helmout brothers to get rid of Harris' body, which they ultimately did. In the meantime the respondent started cleaning up the lounge room having been told to do so by Peter. She told her Honour that she did not telephone the police because she feared for her life and that of her daughter, Jasmine, who was with her and because she could not get near the phone as Mark was sitting there watching her every move. 33 After the respondent had cleaned up the apartment and the Helmout brothers had removed Harris' body, she mopped up the blood as well as "bits and pieces" and thereafter retired to bed. The last she saw of Harris' body was the Helmout brothers jumping on him and sitting him up and shoving cigarettes into his mouth whilst saying sorry. 34 Early the following morning whilst the respondent was in bed asleep with Mark, the police under the supervision of Superintendent Little, acting on information provided by one of group of people present when Harris was murdered, and having obtained a search warrant, entered the respondent's apartment. She heard the police inform Mark and Peter and the woman, Debbie Davidson, who had slept in the apartment overnight, that they were under arrest and to get up. Superintendent Little asked the respondent for her name and date of birth and informed her that she was going to be taken to Queanbeyan Police Station. It was common ground that the respondent was arrested and taken into custody. 35 It was also common ground that the respondent was not informed that she was under arrest. Superintendent Little had apparently been nominated to "target" the respondent. He conceded that he considered that when he informed her that she was going to be taken Queanbeyan Police Station, she was at that stage as far as he was concerned under arrest. 36 The respondent agreed to go to the Queanbeyan Police Station and was taken there with Jasmine. Rose was by this time in the apartment next door but, according to the respondent, saw her mother being removed from her apartment and taken away in the police vehicle. This was distressing to the respondent. 37 The respondent's evidence was that she agreed to attend the police station as she felt she had to comply with the police request to do so. At Superintendent Little's request, Sergeant Hanrihan took her to the police station. Sergeant Hanrihan also understood the respondent to be under arrest. 38 The primary judge found (at Red 13) that, first, the respondent was arrested by Superintendent Little and, second, that she was not told she was under arrest or the reason for the arrest. This was so notwithstanding that Superintendent Little agreed that it was police procedure to not only advise a person when he or she was arrested of the fact that that person had been arrested, but also to inform the person of the reason for the arrest. As noted above, neither occurred in the present case. 39 On arriving at Queanbeyan Police Station at approximately 8.30am, the respondent was taken to the Monaro anti-theft room where she remained with Jasmine in the company of Sergeant McGee and Police Officer Hughes until approximately 12 noon. The anti-theft room was the usual office for those two officers. It was small, containing two desks. At no time was the respondent left in the room alone. No one told her that she could leave the room and her evidence was that she felt she had to stay there because she had been asked to come down to the police station. She said that if she had been given a choice she would have left the room. 40 Superintendent Little accepted that he had sent her to that room with Sergeant McGee intending to ensure that her liberty was restrained and that she remained in police custody. Officer Hughes' evidence was that if the respondent had attempted to leave the room, he would have detained her. Accordingly, the primary judge held (at Red 14) that she was satisfied that the evidence established that the respondent was not free to leave while she was within the anti-theft room with Sergeant McGee and Officer Hughes at least up until 11am. 41 Superintendent Little became aware that the respondent was Mark's de facto wife. He was concerned that as a de facto partner she could not be liable as an accessory to a crime committed by her de facto husband. Having carried out some research on the subject, by 11am Superintendent Little had formed the view that the respondent could not be convicted of the charge of accessory after the fact for a crime committed by Mark. By this time Superintendent Little had also been briefed by those who had interviewed Peter and thereby ascertained that the respondent had been sent to her bedroom whilst the actual murder had been committed. 42 Superintendent Little also became aware of the content of an ERISP interview by Mark which confirmed his view that the respondent was a witness rather than a suspect as she had not been present when the murder took place. In addition, although he had originally been informed that the respondent had participated with Debbie Davidson in removing Harris' wallet after he had been killed, neither Peter nor Mark confirmed that that was so. Accordingly, at about 11am Superintendent Little decided not to charge the respondent and was of the opinion that she was then no longer in custody. However, he did not inform her of her change in status; nor did he in evidence provide any reason for not doing so. 43 In the foregoing circumstances the primary judge found (at Red 16) that Superintendent Little's change of mind had no effect on the respondent's status. She was satisfied that the respondent was detained by the police while she remained in the anti-theft room up until about 12 noon when the respondent was taken by police officers to her home to collect some of Jasmine's belongings and then her daughter was dropped off at a carer's home. The respondent was then returned to the police station. At around 12.30 pm the respondent was given some money by Superintendent Little and told that she could leave the police station for the purpose of obtaining a sandwich. This she did. 44 The primary judge was satisfied (at Red 17) that at this stage the respondent was no longer being detained by the police. Although she might have felt that she had to return after obtaining some lunch, her Honour was not persuaded that there was anything done by a police officer which would reasonably have given her this impression in circumstances where she had agreed to return to the police station to undergo an interview.

[36]

The primary judge's decision 45 The respondent submitted to her Honour that her arrest was unlawful because first, there were no reasonable grounds for her arrest and, second, she was neither told that she was under arrest nor given any reasons for her arrest. As to the first of these issues, her Honour referred to s 352 of the Crimes Act 1900 which relevantly authorises an arrest where the police officer, with reasonable cause, suspects a person of having committed an offence. Her Honour was satisfied that the matters of which Superintendent Little was aware at the time of the respondent's arrest were such as to provide a reasonable suspicion on which he was entitled to act under s 352 to effect that arrest. 46 However, the second ground upon which the respondent relied to allege that her arrest was unlawful was that she was neither told that she was under arrest nor was she given any reasons for her arrest. It was common ground that this was so. However, the appellant submitted to her Honour and repeated on the appeal that the officers had satisfied the third proposition articulated by Viscount Simon in Christie v Leachinsky [1947] AC 573 at 587-588, where his Lordship said, after reviewing the authorities, that they established the following propositions: "(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained . (4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, eg, by immediate counter-attack or by running away. … If a policeman who entertained a reasonable suspicion that X has committed a felony were at liberty to arrest him and march him off to a police station without giving any explanation of why he was doing this, the prima facie right of personal liberty would be gravely infringed." (Emphasis added) 47 Lord Simonds spoke to the same effect (at 591-593) when he observed: "Putting first things first, I would say that it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful. How can these rights be reconciled with the proposition that he may be arrested without knowing why he is arrested? ... Is citizen A bound to submit unresistingly to arrest by citizen B in ignorance of the charge made against him? I think, my Lords, that cannot be the law of England. Blind, unquestioning obedience is the law of tyrants and of slaves: it does not yet flourish on English soil. I would, therefore, submit the general proposition that it is a condition of lawful arrest that the man arrested should be entitled to know why he is arrested, and then, since the affairs of life seldom admit an absolute standard or an unqualified proposition, see whether any qualification is of necessity imposed upon it." 48 Lord Simonds then considered what qualifications, if any, must be imposed upon the fundamental rule that he had articulated. His Lordship expressed one such qualification in the following terms (at 593): "Again, I think it is clear that there is no need for the constable to explain the reason of arrest if the arrested man is caught red-handed and the crime is patent to high Heaven... These and similar considerations lead me to the view that it is not an essential condition of lawful arrest that the constable should at the time of arrest formulate any charge at all, much less the charge which may ultimately be found in the indictment. But this, and this only, is the qualification which I would impose upon the general proposition. It leaves untouched the principle, which lies at the heart of the matter, that the arrested man is entitled to be told what is the act for which he is arrested. The 'charge' ultimately made will depend upon the view taken by the law of his act. In ninety-nine cases out of a hundred the same words may be used to define the charge or describe the act, nor is any technical precision necessary: for instance, if the act constituting the crime is the killing of another man, it will be immaterial that the arrest is for murder and at a later hour the charge of manslaughter is substituted. The arrested man is left in no doubt that the arrest is for that killing. This is I think, the fundamental principle, viz., that a man is entitled to know what, in the words of Lawrence LJ are 'the facts which are said to constitute a crime on his part'. " 49 The primary judge then referred to the decision of this Court in Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78 where it was held, applying Christie, that it was a condition of lawful arrest that the person arrested should be entitled to know why he is arrested. The leading judgment was delivered by Priestley JA with whom Sheller and Beazley JJA agreed. His Honour cited the passages from the speeches of Viscount Simon and Lord Simonds in Christie which I have set out above. To those passages he added (at 84 [33]) a reference to the speech of Lord du Parcq which included the following (at 600): "The omission to tell a person who is arrested at, or within a reasonable time of, the arrest with what offence he is charged cannot be regarded as a mere irregularity. Arrest and imprisonment, without a warrant on a charge which does not justify arrest, are unlawful and, therefore, constitute false imprisonment, …" 50 In Adams, Priestley JA (at 84[24]) referred to the statements of the common law by Lords Simon, Simmonds and du Parcq as concerning "the obligation to notify an arrested person of the charge for which the arrest was made." 51 His Honour concluded (at 85 [26]) that the common law as so stated in Christie was applicable in New South Wales subject only to any statutory alteration. None was identified. 52 It was therefore submitted to the primary judge that in the circumstances the respondent must have known the general nature of the alleged offence for which she had been arrested within the meaning of the third proposition enunciated by Viscount Simon in Christie. It was submitted that the respondent had heard and seen the others being arrested, that she had mopped up the blood in the apartment (although the police did not know that at that stage) and that she had been present during the murder. Accordingly, she knew the reason for her arrest. 53 The primary judge dealt with this submission in the following manner (at Red 25): "The [respondent] did agree that when she heard the police tell Mark he was under arrest she understood it was in relation to the death of Paul Harris. She agreed that at that time she knew, because of what she had seen and because she had cleaned up some blood, that she could be in trouble. However, I am not persuaded that any of the exceptions discussed in the cases apply. She was not caught red-handed. Whilst she may have understood in a general way the circumstances in relation to which the police were present, she could not know in any meaningful way the charge which was likely to be laid. I am satisfied that [the respondent's] arrest was unlawful because she was not told that she was under arrest nor was she told the reasons for the arrest. For the reasons I have already given I am satisfied that the [respondent] was then unlawfully detained until she was allowed to leave the police station alone at around 12.30." 54 On the question of damages, her Honour found (at Red 26) that on the day in question the respondent's liberty was restrained. She was anxious because she was not able to look after her daughter Rose and she had to care for her other daughter Jasmine within the restraints of the police station. In addition the appellant conceded that it had failed to comply with Pt 10A of the Crimes Act 1900, as a consequence of which the respondent was not informed of her rights on or after her arrest. Although Superintendent Little enumerated a number of reasons for that failure, her Honour was not persuaded that any of them excused his failure to comply with the Act. She accepted that this impacted upon the assessment of the respondent's damages. 55 As to general damages, her Honour rejected (at Red 27) the respondent's submission that she had ongoing psychological symptoms arising from the police officers' actions but nevertheless assessed general damages in the sum of $25,000 "taking into account my other findings". 56 As to aggravated damages, her Honour observed (at Red 27) that such damages were intended to compensate a plaintiff for conduct of the defendant which appeared to the plaintiff to be insulting or reprehensible. She accepted that such an award was appropriate in the present case "where [the respondent] was kept with her child in a small room for some hours."

[45]

(f) Although the respondent was under arrest, she was unaware of that fact but nevertheless agreed to accompany the police officers to Queanbeyan Police Station because they had requested her to do so and, so it was submitted, because she knew that she could be " in trouble ". I interpolate that at Black 13W-14D the respondent, when asked in chief whether she wanted to go to the police station, answered that she did not wish to do so but felt that she had to because she had been asked to. When asked why she did not want to go, she replied - " because I knew I hadn't done anything wrong ". 60 When cross-examined, Superintendent Little agreed that it was obvious to him that from the respondent's perspective she would have understood that she was under arrest: Black 131W-132G. The witness added "I think she would have understood that she was under arrest and she would have understood exactly what for. Q. What do you say it was for? A. In relation to the murder of Paul Harris. … Q. What do you say she was under arrest for? A. Well, the information that we had was that she had removed the wallet from Paul Harris after he was deceased, so therefore she was under arrest as either one of the principals or an accessory to that murder." 61 The appellant further submitted that the exception to the first proposition referred to in the third proposition in Viscount Simon's speech in Christie, did not require that the respondent be informed in precise words as to why she was being arrested; nor was there a requirement that she be advised of any precise charge in respect of which she was being arrested. It was sufficient that the respondent knew that she was being arrested for doing something in connection with Harris' murderer; that she was suspected of having done something in connection with his murder albeit that that "something" was unspecified. The appellant went so far as to submit that it was sufficient that the respondent knew no more than that she was being arrested in relation to Harris' murder and that if she had that knowledge then she must have known the general nature of the alleged offence for which she was being detained. 62 Viscount Simon's third proposition was thus satisfied, so it was submitted, at that level of generality which established only that the respondent must have known that she was being taken to the police station because she was suspected of having something to do with Harris' murder, albeit that she had no knowledge of what that something was. In the present case, so it was submitted, the position was a fortiori as the respondent did not know she was being arrested but went voluntarily with the police to the station. The clear inference was that she only did so because she must have known that she had done something criminally wrong in relation to Harris' murder. 63 In my opinion the appellant's submissions should be rejected. Viscount Simon's third proposition is that it is only if the person arrested "must know" the general nature of the alleged offence for which he or she is being detained that the requirement that that person be informed of the reason why he or she has been arrested ceases to apply. True it is, as his Lordship's fourth proposition makes clear, that it is unnecessary that the arrestee be informed by the use of technical or precise language but he or she is still required to be informed in substance of the reason why he or she is required to submit to a restraint on his or her freedom. That reason must be sufficiently precise as to make it clear to the person arrested as to why the arrest is taking place which, in turn, requires the arrestor to notify the arrested person, at least in general terms, of the alleged offence or charge for which the arrest is being made: Adams at 84 [24]; Abbassy v Commissioner of Police of the metropolis [1990] 1 All ER 193 at 197-198. 64 However, those requirements were far from satisfied in the present case. At the very least, the police would only be discharged from complying with the requirement that the respondent be informed of the reason why she was being arrested if she must have known (not may or likely to or ought to have known) that she was being arrested for some criminal offence that was connected to Harris' murder. The evidence, from the appellant's point of view, was at its highest when the respondent agreed that at the time Mark was arrested for Harris' murder, because of what she had seen and what she had done in terms of cleaning up blood, she "could be in trouble". In my view that concession falls far short of the requirement that she must have known the general nature of the alleged offence for which she was being arrested. As the respondent submitted, the appellant was able to advance no more than an inference that the respondent had committed some unspecified offence which had something to do with Harris' murder. 65 For the foregoing reasons in my view no error has been demonstrated on the part of the primary judge when she found that whilst the respondent may have understood in a general way the circumstances in relation to which the police were present, "she could not know in any meaningful way the charge which was likely to be laid." 66 In my opinion there is no relevant difference in substance between the requirements of Viscount Simon's third proposition and the language adopted by her Honour to support her finding that the requirements of that proposition were not satisfied. 67 It was submitted on behalf of the respondent that Viscount Simon's third proposition could only be satisfied where the arrested person must have known the arresting officer's reason for arresting him or her and that otherwise the arrestee's state of mind was irrelevant. In other words, if the arresting officer's reason for the arrest was that the arrested person was reasonably suspected of having committed the offence of murder, it is irrelevant that the arrested person thought that he or she was being arrested for a totally unrelated offence. 68 In the present case the evidence of Superintendent Little to which I have referred in [60] above was that the respondent was under arrest as either one of the principals to the murder of Harris or as an accessory to that murder. The respondent submitted that for the third proposition to apply, the evidence had to establish that she must have known that the reason why she was being placed under arrest was because she was alleged to have killed Harris or that she knew that she was an accessory to his murder by Mark. She knew neither. 69 In my opinion the respondent's submissions should be accepted. That there must be a correlation between the uncommunicated reason for the arrest and the arrestee's knowledge of that reason is made plain by Viscount Simon's own words. In his first proposition his Lordship, after stating that the policeman must in ordinary circumstances inform the person arrested of the true ground of arrest, observed that: "he is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized."

[46]

70 Again, his Lordship's language in articulating his third proposition makes clear that the requirement that an arrested person should be informed of the reason why he is seized does not apply only where the person seized must already know that reason. As it is the reason of the arresting officer which is required to be communicated unless that reason must otherwise be known to the arrested person, it follows that the requirement that the arrested person is entitled to know the nature of the charge or offence for which he is being arrested is only negatived where the arrested person "must know" the general nature of that particular charge or crime. It is therefore only the charge or crime in respect of which the arrested person has been detained that is relevant. Unless the arrested person must know that he or she is being arrested for that same charge or crime, the fact that that person thinks that he or she is being arrested on some other uncommunicated charge or crime is irrelevant. 71 Thus as Basten JA observes in [3] of his judgment, s 352(2) of the Crimes Act 1900, as in force in 1998, required an arresting officer, with reasonable cause, to suspect a person who it was proposed to arrest without warrant of having committed an offence punishable, whether by indictment, or on summary conviction, under any Act. It logically follows that where an arrest which complied with that requirement was effected, the arresting officer was obliged by the common law to inform the arrestee of the nature of the offence which he, the arresting officer, suspects the arrestee to have committed. To arrest a person on the suspicion of that person having committed offence A but to inform that person that the reason for the arrest is offence B, would be a nonsense and contrary to the clear policy which underpins what has been described by Lord Simmonds in Christie as a fundamental rule of the common law with respect to the lawful deprivation of a person of his or her liberty. The same principle applies to the exception to the rule where the arrestee must know, without being told, the nature of the offence for which he or she is arrested. 72 Accordingly, in the absence of any correlation between the alleged offence for which a person is arrested on the one hand and that person's actual knowledge that he or she is being arrested for that same offence on the other, the exception to the general proposition that the person arrested must be informed of the reason why he or she has been detained has no application. 73 Irrespective of any question of correlation in the present case, in my opinion the proposition for which the appellant contends namely, that it was sufficient to satisfy Viscount Simon's third proposition in the present case that the respondent must have known that reason why she was being arrested was because she was suspected of having something to do with Harris' murder, notwithstanding that she was unaware of what that something was, must be rejected. That level of generality in my opinion is insufficient to engage the exception to what has been referred to in the authorities as an elementary proposition of fundamental significance in terms of the right of a citizen to be free from arrest unless that arrest is lawful. As Lord Simonds said in the passage from his speech referred to in [47] above and which bears repetition: "Is citizen A bound to submit unresistingly to arrest by citizen B in ignorance of the charge laid against him? I think, my Lords, that cannot be the law of England. Blind, unquestioning obedience is the law of tyrants and slaves: it does not yet flourish on English soil."

[49]

(b) Did the primary judge err in awarding aggravated damages? 78 The only reason given by the primary judge for awarding aggravated damages was that the respondent was kept with her child in a small room for some hours. Her Honour accepted that such damages are intended compensate a wrongfully detained person where the defendant's conduct is insulting or reprehensible. I have already made reference to the appellant's submission supported by the respondent's own evidence that at all times the police officers were polite, treated her with courtesy and did not touch or threaten her in any way. Their conduct was, therefore, not in any way insulting and it is difficult to comprehend how keeping the respondent with her child in small room for four hours, which was the gravamen of her unlawful detention, could be regarded as reprehensible albeit wrongful. 79 In New South Wales v Ibbett [2006] HCA 57; (2006) 81 ALJR 427 at 433[31], the High Court in a joint judgment stated general proposition that: "Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from circumstances and manner of the wrongdoing." 80 It was nevertheless common ground that the relevant principles to be applied in determining whether an award of aggravated damages was appropriate were articulated by Hodgson JA, with whom on the question of damages Sheller JA and Nicholas J agreed, in State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 where, after observing (at 528 [127]) that ordinary compensatory damages are supposed to be an amount adequate to compensate a plaintiff for all consequences of the defendant's wrongful conduct that are not too remote, his Honour asked himself: what room is there for additional damages, which although dependant on some aggravating feature of the defendant's wrongful conduct, are still supposed to do no more than compensate for the consequences of that conduct? His Honour responded to his own question in the following terms: "131 In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt [feelings] neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified." 81 The issue which therefore arises is whether the conduct of the police in detaining the respondent in the circumstances found by the primary judge went beyond ordinary human fallibility so as to justify any increment to the ordinary compensatory damages already included in her Honour's award of $25,000. What made the respondent's detention unlawful was the failure of the police officers to inform her that she was under arrest and the reason why she was being arrested. That position continued for four hours. It would seem that the difficulty was that the relevant police officers simply could not determine whether the respondent had committed an offence or not - at least until they had interviewed other witnesses. As such, they kept the respondent in the dark. 82 On the other hand, as already indicated, they treated the respondent politely and with courtesy and at no time during the relevant period of detention was she physically or verbally threatened. 83 Furthermore, when one considers that her Honour's award of general damages was, as I have found, close to or at the highest end of the possible range of damages, it must follow that for her Honour to have awarded the respondent a further $10,000 for aggravated damages would have over-compensated her in circumstances where the compensatory award of $25,000 was in all respects sufficient for that purpose. 84 Accordingly, in my opinion, her Honour erred in awarding the respondent aggravated damages and the amount so awarded should be set aside.

[51]

and, further, at [10], "to mark the court's condemnation of the defendant's behaviour." 88 In Riley Hodgson JA, after referring (at 529 [136]) to the appellant's submission that exemplary damages were an exceptional remedy which was rarely awarded and then only where there is "high-handed, insolent, vindictive or malicious conduct" amounting to or exhibiting a "conscious wrong-doing in contumelious disregard of another's rights", observed as follows (at 530 [138]): "138 In my opinion, as made clear in Gray [ Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1], while "conscious wrong-doing in contumelious disregard of another's rights" describes the greater part of the field in which exemplary damages may properly be awarded, it does not fully cover that field. Similarly, malice is not essential: Lamb v. Cotogno . Conduct may be high-handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrong-doing. However, ordinarily conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the court's disapproval or (in cases where the defendant stood to gain more than the plaintiff lost) demonstrate that wrongful conduct should not be to the advantage of the wrong-doer." 89 The appellant submitted that the primary judge made no finding that any police officer acted in the manner referred to in the appellant's submission in Riley referred to by Hodgson JA above. The process of reasoning employed by her Honour appeared to be, so it was submitted, that because false arrest and false imprisonment had been established, exemplary damages automatically followed. 90 In my opinion the only conduct of the police officers that demonstrated contempt for the respondent's rights was the failure of Superintendent Little to inform the respondent at 11 am that she was no longer under arrest, he having formed the view that she could not be convicted of a charge of accessory after the fact to the crime committed by Mark. It was one thing for Superintendent Little not to have informed the respondent as to the reason for her arrest: that made her arrest and detention unlawful. But that failure could not of itself constitute conscious wrong-doing on the part of Superintendent Little or a contumelious disregard of the respondent's rights. On the other hand, Superintendent Little exacerbated the situation when he consciously made a decision not to charge the respondent with any offence and acknowledged that by 11 am she was no longer under arrest, but failed to so inform her so as to allow her to resume her liberty. 91 It may well be that that failure was not malicious and that Superintendent Little was not conscious of any wrongdoing when he failed to so inform the respondent. Nevertheless, it was conduct which in my opinion clearly demonstrated contempt for the respondent's rights and thus was capable of forming a proper basis for an award of exemplary damages. This is particularly so given that no attempt was made by Superintendent Little in evidence to provide any reason for, or to otherwise explain, his conduct. 92 However, I would agree with the appellant's submission that not only was there no finding of malice against the police but also there was no evidence that Superintendent Little's failure to inform the respondent that she was no longer under arrest was due to a conscious attempt on his part to seek some advantage such as keeping the respondent at the police station until the police officers had the opportunity to interview her. 93 However, as Hodgson JA observed (at 530 [139]) in Riley, "it is extremely important that police know and observe the limits and conditions of a valid arrest". Equally, it is extremely important that police appreciate when the arrest of a person has come to an end and that they acknowledge the right of the arrestee to be so informed so that he or she can go free. This did not occur in the present case to the further disadvantage of the respondent. 94 The next question is whether the award of compensatory damages in the sum of $25,000 was a sufficient expression of the Court's disapproval of Superintendent Little's conduct. In my opinion it was not. Accordingly, an award of exemplary damages is justified to mark the Court's condemnation of Superintendent Little's lack of respect and concern for the respondent by failing to inform her that she was free to depart the police station and was no longer suspected of being an accessory after the fact to Harris' murder. Regrettably, the respondent was unnecessarily kept in suspense for a further 1½ hours. This should not have occurred. 95 It was bad enough that the respondent was unlawfully detained in the first place because of the failure of the police to inform her of the reason for her arrest and detention, but that failure was exacerbated by the further failure to inform her that she was no longer under arrest. Thus failure was piled upon failure. 96 The primary judge awarded exemplary damages in the sum of $25,000 on three grounds, only one of which in my opinion is justifiable. In the circumstances her Honour's award in the sum of $25,000 should be set aside and replaced by an award of $10,000.

[54]

(c) The appellant to pay the respondent's costs of the appeal and of the summons for leave to appeal. (d) Grant leave to the parties to make such written submissions as they may be advised with respect to the following: (i) the addition of pre-judgment interest to the damages of $35,000, and/or (ii) the effect of any relevant Calderbank offer on the costs of the trial or of the appeal such submissions to be filed within 14 days of the date of these orders. 100 BASTEN JA: The circumstances giving rise to this appeal have been fully set forth by Tobias JA and require no repetition. With respect to the question of liability, the Appellant's contentions must be dismissed. The failure of the arresting officer to identify the grounds of the Respondent's arrest must be tested against general law principles explained in Christie v Leachinsky [1947] AC 573, it not being suggested that those principles have been abrogated or modified by statute in this State. 101 The suggestion that the need to state the grounds of the arrest was not engaged because they were obvious from circumstances well-known to the person being arrested is falsified by Superintendent Little's own evidence, set out at [60] above. The grounds depended on a matter believed by the police officer, but which later proved to be false. The exception depends on that which is obvious to the suspect. An uncommunicated erroneous belief of the arresting officer will rarely satisfy that test. A precondition to a valid arrest was therefore absent and the Respondent was wrongly deprived of her liberty. 102 The other judgments in this Court consider in some detail the nature of the information to be conveyed by the police officer to the person being arrested. Ipp JA, adopting the language of Lord Simonds in Christie, concludes that it is not necessary for the arresting officer to "formulate any charge at all, much less the charge that may ultimately be found in the indictment": at [7] above. The distinction sought to be drawn is between notification of a charge and notification of the act or conduct which forms the reason for the arrest. However, the use of explanatory language to define the parameters of the requirement should not be understood as drawing a distinction between two different categories of information. The information to be supplied by the arresting officer is his or her reason for carrying out the arrest. Pursuant to s 352(2) of the Crimes Act 1900 (NSW), as then in force, the arresting officer was required, with reasonable cause, to suspect the person of having committed a particular kind of offence. Unless Superintendent Little had such a suspicion, he was not entitled to arrest the Respondent. If he did have such a suspicion, it must have been with respect to an offence of the kind identified in the section. It was that suspicion which needed to be conveyed. As the authorities make clear, technical language is not required (such as reference to being an accessory after the fact) and identification of conduct will often be sufficient (I believe that X was murdered and that you stabbed him). In the present case, Superintendent Little gave evidence as to his suspicion in the passage set out at [60]: it was that information which should have been conveyed. 103 This approach appears to be consistent with that adopted by the trial judge and accepted by Tobias JA at [65] above. It is consistent with each of the authorities identified by Ipp JA at [3]-[9] above. It is also consistent with the test applied in R v Kane [2001] NSWCCA 150 at [28], referred to by Ipp JA at [12] above. That the statement made by the arresting officer in Kane, also set at out [12] above, satisfied the test is by no means self-evident. However, the correctness of the conclusion reached in Kane is not presently in issue and could not in any event derogate from the underlying principle to be applied.

[55]

Compensatory damages 104 The second question concerns the award of compensatory damages. In my view the award of $35,000 made by the trial judge was not shown to be excessive, nor does her Honour's approach to the assessment reveal error. 105 The term "aggravated damages" is something of a misnomer. It refers to a component of compensatory damages referrable to circumstances of aggravation: see, eg, Plenty v Dillon (1991) 171 CLR 635 at 655 (Gaudron and McHugh JJ). Thus false imprisonment may be accompanied by threats, with rudeness or with appreciable contempt; or it may be carried out courteously but in error. It may continue after it is challenged; or it may occur without challenge. The question is how to assess the effect of the circumstances of aggravation, once established, on the plaintiff: State of New South Wales v Ibbett [2006] HCA 57; (2006) 81 ALJR 427 at [33] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ). Damages attributable to the circumstances of aggravation are primarily awarded for injury to the plaintiff's feelings caused by insult or humiliation. 106 Ipp JA concludes that an award of aggravated damages will not be available unless the conduct of the defendant "was neither bona fide nor justifiable": at [21] above. That test is derived from Spautz v Butterworth (1996) 41 NSWLR 1 at 18A. However, the application of those criteria as a general constraint on an award may give rise to difficulties. Thus, it is clear that the conduct in question cannot be that which constitutes the elements of the tort, as that conduct could usually be described as 'not justifiable'. On the other hand, even in relation to an award of exemplary (punitive) damages (as to which see further below) there is no pre-requisite of want of good faith in the sense of malice, as required by the first criterion. 107 The language of these criteria is derived from the judgment of Toohey J in Coyne v Citizen Finance Ltd (1991) 172 CLR 211. Coyne was a defamation case in which the question was whether damages could be increased because the defendant elected to defend the action and maintain a plea of justification or persist in otherwise defending the publication. In such proceedings, it is necessary to distinguish between a proper and justifiable defence and a situation where "the defendant's conduct lacks bona fides, or is improper or unjustifiable" being the language adopted by Toohey J from Triggell v Pheeney (1951) 82 CLR 497 at 514. (Dawson J and McHugh J agreed with Toohey J, McHugh J adding some further comments to similar effect at p 241.) 108 That a similar principle might apply in relation to false imprisonment was explained by Powell JA in McDonald v Coles Myer Ltd (1995) Aust Torts Rep ¶81-361 at p62,690 (col 2) after referring to the fact that the principal heads of damage were for injury to liberty, injury to feelings and any deleterious effect on the plaintiff's health: "In addition to damages falling under one or other of the heads to which I have just referred, the manner in which the imprisonment is effected may lead to an award of aggravated compensatory damages, as also may the subsequent conduct of the defendant, if it tends to show that the defendant is persevering in the charge ( Warwick v Foulkes (1844) 12 M&W 507; Walter v Alltools (1944) 61 TLR 39 (CA)), although it has been suggested ( McGregor on Damages 15 Ed (1988) p.1029) that an unsuccessful plea by the defendant that the plaintiff was guilty of the offence charged against him by the defendant should not lead to an aggravation of damages, unless it is shown the defendant made the charge mala fide." 109 Clarke JA noted in Spautz, after referring to Coyne, that it was "proper for the Court, in assessing ordinary compensatory damages, to take into account the whole of the conduct of the defendant to the time of verdict which may have the effect of increasing the injury to the person's feelings": at pp 17G-18A. His Honour stated that relevant matters "might include the absence of apology and the reaffirmation of the truth of the matters", being the language of defamation proceedings. This being the context in which the criteria were identified, the judgment does not support their general application as a constraint on the award of aggravated damages in other circumstances. That no such general application was intended is reflected in the awkwardness of applying such criteria generally. 110 Whilst in McDonald Clarke JA considered that the principles established in the defamation cases were applicable to cases of wrongful arrest and false imprisonment, no such criteria were applied in considering awards of aggravated damages for assault and trespass to land in State of New South Wales v Ibbett [2005] NSWCA 445, nor was error asserted in that respect when the matter was considered by the High Court: State of New South Wales v Ibbett (2006) 81 ALJR 427. 111 Whether Clarke JA was correct in modifying the disjunctive language adopted by Toohey J in Coyne into the conjunctive form adopted in Spautz need not be determined for present purposes. Read in context, his Honour's comments were attributable to subsequent conduct of the defendant, occurring after the completion of the tort. So understood, it has no bearing on the present case. However, even if it did, it would not provide a reason for doing other than assess reasonable compensation for well-established heads of damage identified by Clarke JA in McDonald at p 62,690, col 1-col 2. 112 One might have expected that any assessment of the effect of the arrest on the Respondent would have started with a consideration of the effect on her of the brutal murder of the night before, it having occurred in her apartment and she having witnessed at least its aftermath. But that factor was not addressed on the appeal and should be put to one side, although to do so gives any assessment of compensatory damages an air of unreality. 113 The circumstances of aggravation relied upon were those identified as the effect on the Respondent of knowing that one of her daughters had witnessed her arrest, the failure of the police to comply with Part 10A of the Crimes Act 1900 (NSW) and advise her of her rights whilst under arrest, and the continuation of the custody for one hour after Superintendent Little had decided not to charge her: see [54]-[57] above. In State of New South Wales v Riley (2003) 57 NSWLR 496 at [131] Hodgson JA suggested that one way of determining compensation in circumstances of aggravation is for the Court to aim "towards the upper limit of the wide range of damages which might conceivably be justified". However, it is not always clear how this approach will work in practice. For example, there will be varying degrees of aggravation; if one is to aim towards the upper end of the range for any significant circumstance of aggravation, what should one do with the most serious forms of aggravation? Further, one may ask why the 'upper end of the range' for a tort without elements of aggravation necessarily sets the limit for cases of serious aggravation. To speak of "the wide range of damages which might conceivably be justified", suggests a degree of flexibility in setting the range which in turn suggests that his Honour was giving general guidance, rather than formulating a principle. That conclusion is also supported by his Honour's reference to wrongdoing of a kind "that goes beyond ordinary human fallibility". That language appears in a passage which, correctly, focuses on the question of hurt to feelings caused by such wrongdoing and not the moral culpability of the tortfeasor: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 151 (Windeyer J). The culpability of the wrongdoer may have been seen as a way of assessing the seriousness of the hurt to feelings. 114 In the circumstances, I have been unable to discern error in her Honour's overall assessment of compensatory damages in the amount of $35,000. I would not interfere with that award.

[56]

Exemplary damages 115 Circumstances of aggravation do not necessarily demonstrate conduct of a kind warranting an award of exemplary damages. Such an award is justified by reference, not to the effects on the plaintiff, but to the knowledge, intention or recklessness of the tortfeasor: see Port Stephens Shire Council v Tellamist Pty Ltd (2004) 235 LGERA 98 at [401] (Ipp JA), applied in State of New South Wales v Ibbett [2005] NSWCA 445 at [231]. An award of exemplary damages may be justified by "conscious wrongdoing in contumelious disregard of the plaintiff's rights": see Gray v Motor Accident Commission (1998) 196 CLR 1 at [14]. On the other hand, actual subjective advertence to wrongdoing is not necessary, at least, it would seem, in circumstances where the conduct is objectively outrageous so that the tortfeasor can properly be described as reckless: see State of New South Wales v Ibbett at [35]-[49] (Spigelman CJ). 116 One purpose of an award of exemplary damages is to deter both the wrongdoer and others who may be in his or her position from a repetition of the kind of conduct under scrutiny. In the present case, it is the State of New South Wales, rather than the individual police officers who will suffer the financial burden of an award. Such an award is, nevertheless, permissible under s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW), as this Court held in State of New South Wales v Bryant (2005) 64 NSWLR 281. Further, as noted in Ibbett, such an award may indirectly have a deterrent effect on the police officers concerned through the response of the Police Service. It is, therefore, important to preserve the deterrent effect of such an award. That effect will tend to be diminished if the preconditions for an award are not tightly controlled. No doubt it is important that police officers know and observe the limits of their powers: however that desirable end will not make a careless or mistaken exercise of power outrageous or high-handed. 117 The fact that an award of exemplary damages constitutes an expression of the Court's disapproval of the conduct does not mean that the Court's disapproval is a sufficient reason to make an award. 118 The conclusion that Superintendent Little was neither malicious nor acted with conscious wrongdoing, but nevertheless "demonstrated contempt for the respondent's right" (at [90] above) is not easy to follow. There should be a clear basis for an award of exemplary damages, but no such basis is established by the findings of the trial judge accepted in this Court. Accordingly, her Honour's award of exemplary damages should be set aside.

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