State of New South Wales v Smith

1. [1]

   McCOLL JA: The applicant, the State of New South Wales (SNSW), seeks leave to appeal and to appeal against a decision of his Honour Judge Levy SC awarding the respondent, Peter Smith, damages in the amount of $39,858 for wrongful arrest and false imprisonment, an award which included aggravated and exemplary damages. [1]

2. [2]

   This is the concurrent hearing of the SNSW’s application for leave to appeal and the appeal. Leave to appeal is required because the primary judgment does not involve a matter in issue amounting to or of the value of $100,000 or more. [2]

3. [3]

   The trial from which leave to appeal is sought concerned proceedings the respondent brought against the SNSW, claiming general compensatory, aggravated and exemplary damages for wrongful arrest and false imprisonment in respect of his arrest at about 9.20pm on 20 May 2012 following a complaint to police by his former wife. The complaint concerned an incident she said had occurred earlier that evening in which she alleged the respondent broke the windscreen of her car while she and two children were inside it.

4. [4]

   After his arrest the respondent was taken to a police station where he remained for 3 hours and 40 minutes. [3] While there, he was charged with an offence under s 195(1)(a) of the Crimes Act 1900 (NSW), given a provisional apprehended domestic violence order (PAVO) issued pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (Domestic and Personal Violence Act) then granted bail.

5. [5]

   The primary judge upheld the respondent’s claim because he concluded, in short, that, in breach of s 99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), the arresting police officer had not suspected on reasonable grounds that it was necessary to arrest the respondent without a warrant and, further, in breach of s 201 of the LEPRA, at the time of his arrest the arresting police officer had not informed the respondent of his name or the reason for his arrest.

6. [6]

   Although the amount in issue is not large, as in State of New South Wales v Robinson, [4] the Court was informed of the parties’ agreement that there are between 12 and 17 matters pending before New South Wales courts in which, in answer to allegations of wrongful arrest and false imprisonment, the SNSW has pleaded s 99(3) of the LEPRA. The SNSW contended that the issues of the proper construction of the LEPRA raised in this matter are relevant to the defences filed in those matters.

7. [7]

   The form of s 99 relevant to the present case was amended with effect from 16 December 2013. The respondent relied on the amendments to oppose leave to appeal on the basis that the construction of the former provisions could not have any continuing significance. Insofar as it might be thought that leave to appeal should be granted because of policy considerations concerning the exercise of the power of arrest, the respondent submitted the SNSW should bear the costs of the proceedings no matter the outcome.

8. [8]

   It is apparent that the proper construction of s 99 of the LEPRA in the form it took at the time of the respondent’s arrest will arise in some, if not all, of the cases referred to in the agreed statement. [5] Its proper construction and application, accordingly, involves issues of principle and a question of general public importance. [6] The case concerns the exercise by the Police Force of its statutory powers of arrest. Courts should be assiduous to ensure that the police exercise those powers in accordance with law, [7] and that legislation “intended to achieve a balance between protecting the individual against unjustified arrest or detention and protecting members of the community, including those who are vulnerable to acts of violence, against the threat of imminent criminal conduct” be properly construed. [8]

9. [9]

   I would accordingly grant leave to appeal. For the reasons that follow, I would uphold the appeal in part, but only on the basis that the primary judge erred in awarding the respondent exemplary damages.

Statement of the case

1. [10]

   At approximately 9:20pm on Sunday 20 May 2012, the respondent was at home with his wife and their two children on their isolated rural property near the town of Legume, in northern New South Wales. The property was approximately two kilometres south of the Queensland border. [9]

2. [11]

   At that time, two officers of the New South Wales Police, Senior Constable Graeme Tye and Senior Constable Gary Stubbings, attended the respondent’s home and requested his presence at the front door to his house. When the respondent went to the front door, Senior Constable Tye told him he was under arrest. The officers took him to Woodenbong Police Station. As I have said, he remained there for 3 hours and 40 minutes before being released on bail.

Circumstances leading to arrest

1. [12]

   The circumstances leading to the respondent’s arrest arose out of what the primary judge described as “longstanding interpersonal difficulties” between the respondent and his ex-wife, Cheryl Smith. [10] The respondent and Mrs Smith had four children during the course of their marriage. At the time of the events in question, the three surviving children of that marriage were aged 10, 12 and 18 years, the youngest two of whom lived with Mrs Smith. The respondent was entitled to access visits with his youngest children pursuant to an informal shared custody arrangement. As some animosity had been expressed by Mrs Smith towards the respondent’s second wife, Mrs Smith was prohibited from entering the respondent’s property. Accordingly, in order to exercise his access rights, the respondent picked up the children and dropped them off at an agreed location near Mrs Smith’s home, in Killarney in Queensland. Her home was about 7.5 kilometres, and a less than 10 minute drive, from the respondent’s home. [11]

2. [13]

   On 20 May 2012, at a time when the respondent was exercising his right of access to his children, at about 5:25pm, and apparently contrary to their earlier arrangements, Mrs Smith drove from Queensland, partly onto the respondent’s property, to seek to collect the two children. Despite the fact Mrs Smith was not supposed to enter his property, she drove to a point just past a cattle grid at the entrance to where the respondent’s parked truck blocked further vehicular access. A verbal altercation then occurred between the two during which the respondent said the children would stay with him until they had finished their evening meal, and that he would then return them home. This caused some dissatisfaction on the part of Mrs Smith.

3. [14]

   According to the respondent’s evidence, Mrs Smith drove away after the verbal exchange. He said that between 8:00pm and 8:30pm on the evening in question, in accordance with the pre-existing drop-off arrangements, and after the children had finished their dinner, he drove them to a corner store near their home in Killarney in Queensland, and dropped them there so they could walk to their mother’s house, about 100 metres away. He did not see his ex-wife at that time.

4. [15]

   At about 6.30pm on 20 May 2012, Senior Constable Tye, who was stationed alone at Woodenbong, a one officer police station, received a call over the police radio alerting him to Mrs Smith’s desire to report a malicious damage domestic incident. He then drove from Woodenbong to Legume in order to interview Mrs Smith. The town of Legume is about 10 kilometres from her home, but south of the respondent’s property. Mrs Smith drove from Killarney in Queensland for the purpose of making a statement to the police.

5. [16]

   In that statement, Mrs Smith alleged that during the verbal altercation between herself and the respondent at the entrance to his property, approximately 2 hours earlier he had approached the vehicle in which she was seated with two other children she had had from subsequent relationships. She claimed that he had struck her vehicle a number of times with the metal head of a wooden handled tool, ultimately causing the glass windscreen of her vehicle to break and pieces of glass to fly towards her, following which she drove away. She said she was “fearful for her safety, and that she didn’t want [the respondent] to be able to approach her.” In her statement to police, she formally applied for an apprehended domestic violence order (ADVO) against the respondent. She did not express any fear that the respondent was likely to turn up at her house and commit an act of violence.

The arrest

1. [17]

   Senior Constable Tye formed the opinion that, based on Mrs Smith’s allegations, domestic violence-related malicious damage had occurred. He therefore concluded that he should visit the respondent. Senior Constable Tye had determined to obtain a PAVO to serve on the respondent, but only after he was arrested and transported to the police station. [12] Senior Constable Tye stated that as the visit was for a “domestic matter”, for reasons of officer safety, he had to wait in Legume about half an hour until about 9:10pm for Senior Constable Stubbings to arrive from Tabulam (where he was, it appears, in charge of another one officer police station), before going to the respondent’s property. This was because, in domestic matters, it was usual to have a second officer present “for officer safety”.

2. [18]

   While he was waiting, Senior Constable Tye ascertained that the respondent had no prior criminal history in New South Wales, and that he had no registered firearms. During this period, there was nothing to stop the respondent from driving to Mrs Smith’s house without Senior Constable Tye’s knowledge. Indeed, as I have recorded, during this period, the respondent dropped the children near Mrs Smith’s house.

3. [19]

   At the time Senior Constable Tye went to the respondent’s house, he believed there had been no contact between the couple since the incident about 4 hours earlier of which Mrs Smith complained.

4. [20]

   The primary judge did not set out in his reasons the respondent’s evidence of the conversation he had with the police officers at the time of, and shortly after, the events which took place when he came to the door. The parties accepted that the following evidence the respondent gave in chief and in cross-examination records his account.

5. [21]

   The police officers attended at the respondent’s home and requested his presence at the front door to his house. The respondent went to the front door dressed in his pyjamas. His evidence of what happened, which the primary judge accepted, was:

6. [22]

   The primary judge concluded for reasons it is unnecessary to reproduce, that the respondent’s account of his exchanges with the police was more likely to be accurate and correct than the account by the police officers. The SNSW does not challenge that finding.

7. [23]

   Senior Constable Tye gave evidence in cross-examination as to the situation following the exchange I have emphasised in [21]:

8. [24]

   After the respondent returned to the front door after changing into more suitable clothing, he was subjected to a pat-down search. He was then escorted to the nearby police wagon by both officers, one of whom placed his hand behind the respondent’s elbow to guide him towards the vehicle. He was placed in the locked rear caged section of the wagon and driven for about 45 minutes to Woodenbong Police Station.

9. [25]

   On arrival, the respondent was asked if he wanted to provide a formal statement. He was informed that if he did it would be necessary for him to be taken to the police station at Lismore, which would have involved a further 90 minute journey in the back of the police wagon. That was apparently necessary as Woodenbong Police Station did not have facilities to record a video statement. The respondent declined the offer of transportation to Lismore. He was placed in an enclosed lock-up area within the single room police station at Woodenbong.

10. [26]

    At about 12.49am on 21 May 2012, the respondent was charged and given a court attendance notice in relation to an offence contrary to s 195(1)(a) of the Crimes Act, for allegedly intentionally or recklessly destroying or damaging property, namely the windscreen of his ex-wife’s vehicle. Whilst at the police station, he was also served with a PAVO. When he was served with that documentation, he was required to agree to comply with the terms and directions of that order. After he did so, he was released on bail.

11. [27]

    The PAVO served on the respondent was based on three factual allegations. The first was that on 20 May 2012 the respondent had, according to his ex-wife, taken two of their children in common and that “he was keeping them”. The second was that, on the same day, a heated argument had ensued between the respondent and his ex-wife on that subject. The third was that in the course of that argument, the respondent had maliciously damaged the windscreen of his ex-wife’s vehicle with an implement. [13]

12. [28]

    The primary judge summarised the circumstances of the respondent’s detention as follows:

13. [29]

    The respondent was released from police custody at about 1:00am on 21 May 2012.

14. [30]

    Upon his release on bail, the respondent was told that he could go home. He was also told that he could not be driven home by police, and that his wife should come to Woodenbong to collect him. The respondent then told the police officers that his wife had no experience of driving at night. In those circumstances, it would also have been unreasonable to require the respondent’s wife to make the 45 minute road journey to Woodenbong to collect him, bearing in mind the hour, and the fact that she was also responsible for the care of two infant children, who would ordinarily have been sleeping at that time. Ultimately the respondent was returned to his home by police at 2.30am on 21 May 2012.

15. [31]

    Until the subject arrest, the respondent did not have a criminal record, or any history of adverse involvement with police. He had never been arrested before. [14]

Events following the arrest

1. [32]

   On 15 June 2012, the respondent attended the Local Court pursuant to a notice to attend to answer the charge brought pursuant to s 195(1)(a) of the Crimes Act relating to the windscreen damage. After a contested hearing, he was convicted. An appeal to the District Court from that conviction was dismissed, and his conviction and the resultant penalty were confirmed. [15]

2. [33]

   The respondent commenced proceedings against the SNSW, claiming damages for alleged wrongful arrest and false imprisonment. He claimed that he was arrested on sight, wrongfully, by the police officers, on the basis of a disputed allegation of domestic violence made against him by Mrs Smith, without the police having beforehand ascertained his version of events, or having properly considered available alternatives to arrest.

3. [34]

   The respondent sought compensatory damages to recognise the offence and indignity to his rights caused by his unlawful arrest and wrongful imprisonment. He particularised this claim by reference to the facts that, at the time of his arrest, he was 49 years of age and had never before been arrested by police; that he was imprisoned for a period of about 3 ½ hours; and that the conduct complained of resulted in his loss of liberty whilst imprisoned; humiliation, embarrassment and loss of dignity; harm to reputation; anxiety, emotional distress and mental anguish; feelings of being intimidated and coerced by police; and fear of the behaviour and conduct of the police being repeated.

4. [35]

   The respondent also sought aggravated damages for the unlawful arrest and wrongful imprisonment by reason of the fact that whilst he was under arrest at his home he was subjected to a frisk search by Senior Constable Tye and the fact that his arrest was observed by his wife, all of which he alleged aggravated his humiliation, embarrassment, loss of dignity, his anxiety, emotional distress and mental anguish and his feelings of being intimidated and coerced by police.

5. [36]

   Finally, the respondent also sought exemplary damages on the bases that the conduct of which he complained showed a contumelious disregard of his rights and was held in high approbation by the law, by reason of the fact that the New South Wales Police Force had failed to acknowledge the unlawfulness of the conduct of its police officers. He asserted that an award of such damages was a means of the Court conveying to the SNSW the need to take all such steps as were necessary or appropriate to train members of the Police Force sufficiently as to the correct procedures relating to arrest and the recognition of people's rights, which have not been observed in respect of him.

Legislative framework

1. [37]

   The SNSW is vicariously liable for the tortious conduct of police officers pursuant to s 8(1) of the Law Reform (Vicarious Liability) Act 1983 (NSW).

2. [38]

   Section 4 of the LEPRA “expressly presuppose[s] the continued existence of the police officer’s powers at common law.” [16] Neither party sought to point to any common law power to support, or detract from the legality of the respondent’s arrest. That issue therefore turns on the powers conferred on police officers by the LEPRA.

3. [39]

   At the time of the arrest, the relevant provisions of the LEPRA were as follows. [17]

4. [40]

   Part 8 of the LEPRA deals with “Powers relating to arrest”. At the time of the events in question, s 99 in Part 8 provided:

5. [41]

   The case was conducted on the basis that it was Senior Constable Tye’s state of mind which was relevant for the purposes of s 99. [18]

6. [42]

   Section 201 is contained in LEPRA, Pt 15 (Safeguards relating to powers). At the time of the respondent’s arrest, it relevantly provided:

7. [43]

   In the Second Reading Speech made on the introduction of the Law Enforcement (Powers and Responsibilities) Bill, the Attorney General, the Hon Bob Debus, said of Pt 15:

8. [44]

   At the time of the arrest, s 89 of the Domestic and Personal Violence Act provided:

Primary judgment

1. [45]

   The primary judge summarised the essential issues in the case as follows:

2. [46]

   His Honour held that no estoppel arose as the respondent was not asserting in the proceedings “a right or obligation or … an issue of fact or law”, that had already been determined in the Local Court proceedings and in the subsequent appeal from those proceedings. [21] The SNSW does not challenge this conclusion. Nor does it contend that the respondent’s subsequent conviction had any bearing on the resolution of the issues in his civil proceedings.

3. [47]

   In dealing with the second issue, being whether a provisional domestic violence order issued in New South Wales operated in Queensland, his Honour found as a matter of fact and law, that without registration in Queensland, the PAVO issued to the respondent had no operative effect beyond the borders of New South Wales. [22]

4. [48]

   His Honour then turned to the question of whether the respondent’s arrest and imprisonment was lawful.

Wrongful arrest and false imprisonment

1. [49]

   The respondent contended before the primary judge that his arrest, and therefore his subsequent detention and imprisonment, were unlawful in the following respects. First, the arresting police had not complied with the provisions of s 201(1) of the LEPRA. Secondly, there was no basis to support, on reasonable grounds, the claim that his arrest was necessary for any of the purposes specified in s 99(3) of the LEPRA. Thirdly, there was an alternative course available to the arresting officers to deal with the situation and the respondent. [23]

2. [50]

   The SNSW argued that in the prevailing circumstances, Senior Constable Tye and Senior Constable Stubbings were entitled to arrest the respondent by reason of the operation of s 99(2) and s 99(3) of the LEPRA. The basis for that claim of entitlement was identified as being the “domestic incident” alleged by Mrs Smith, which constituted a relevant offence. The SNSW argued that incident had formed the basis of a reasonable belief by police officers, that Mrs Smith, a witness, was relevantly in fear of harm from the respondent, and that she was therefore in need of protection of the kind that would be afforded by the arrest of the respondent. [24]

Reasons for the arrest

1. [51]

   The primary judge first considered what his Honour described as the police officers’ stated indications for the arrest. His Honour set out Senior Constable Tye’s reasoning process for the course he took, and the process that was involved, as follows:

2. [52]

   The primary judge held that before Senior Constable Tye attended at the respondent’s premises, on the basis of Mrs Smith’s statement he already had sufficient information to constitute reasonable grounds for suspicion that the respondent had committed an alleged offence against s 195(1)(a) of the Crimes Act. [26] However, his Honour considered that “a deliberate decision was made not to initially make that charge … and to instead, arrest the plaintiff without specifying that charge.” [27]

3. [53]

   The primary judge found that this decision was made despite Senior Constable Tye’s understanding that he needed to beforehand “thoroughly investigate the matter”, which would have necessarily involved him in at least speaking to the respondent along the lines of what could reasonably be considered to be an investigation. His Honour found that in fact, there was no investigation of the respondent’s account of the events prior to his arrest. He was simply arrested on sight when he appeared at his front door. [28]

The time the arrest was completed

1. [54]

   In the course of submissions before the primary judge, a dispute arose as to the actual time at which the respondent’s arrest had been completed. [29] The SNSW argued that the process of the respondent’s arrest had commenced when he was informed that he was under arrest, and continued whilst he went and changed from his pyjamas into other clothing, and until he was cautioned, which was just before he was escorted to the police vehicle to be taken away. The primary judge considered that the SNSW’s argument implied that the relevant act of submission by the respondent was when he accompanied the arresting officers to the police vehicle following those events.

2. [55]

   In his Honour’s view, that argument was inconsistent with the evidence of Senior Constable Tye, in which he confirmed that, at the outset, he had told the respondent, “… right now you are under arrest and you have to come with us back to the station”. Senior Constable Tye’s account indicated the respondent was under an immediate arrest, as indicated by the use of the word “now”, and at that time, the respondent was told he was already under a compulsion to go to the police station. The primary judge formed the view that Senior Constable Tye’s words operated as a sufficient act of arrest. [30] His Honour also found that the respondent’s request that he be allowed to change clothes was a sufficient act of submission to indicate the arrest had been completed at that time. From that moment, and until he was released on bail, the respondent was no longer able to exercise his free will to act. [31]

Non-compliance with s 201

1. [56]

   The primary judge then turned to the question of compliance with s 201 of the LEPRA. The respondent claimed that at the time of his arrest Senior Constable Tye had failed to comply with s 201(1) of the LEPRA, because neither before, nor at the time of the arrest, had Senior Constable Tye informed him of his name, his place of duty, or the reason for the arrest. [32] The SNSW asserted that relevant details were provided to the respondent “during the time of his arrest whilst on the front porch of the plaintiff’s residence”. [33]

2. [57]

   The primary judge rejected the SNSW’s argument in the light of his earlier finding that the respondent was arrested on sight. [34] He found that the police officers did not inform the respondent of their names or their places of duty at the time of the respondent’s arrest, and that that information was only provided to the respondent after he was arrested and after he had requested that information following his return to the front porch of his house after he had changed his attire. The primary judge held that that earlier omission by Senior Constable Tye and Senior Constable Stubbings to identify themselves, by name and place of duty, was a relevant non-compliance with the requirements of s 201(1)(b) of the LEPRA. [35]

3. [58]

   The primary judge also concluded that there was a failure on the part of the arresting police officers to adequately inform the respondent of the particular reason for the exercise of the power of arrest, which also constituted a relevant non-compliance with the requirements of s 201(1)(c) of the LEPRA. [36] In his Honour’s view, that conclusion necessarily arose because at the time of his arrest, the respondent was only vaguely informed that the reason for his arrest was a “domestic incident”. [37] He found that that was plainly an insufficient explanation for depriving the respondent of his liberty, particularly since Senior Constable Tye had already formed the view in the period of time from when he had taken a statement from Mrs Smith and before he first saw and arrested the respondent, that he would be charged with a particular offence against s 195(1)(a) of the Crimes Act. That state of mind meant that what Senior Constable Tye told the respondent permitted a much more specific particularisation than a “domestic incident”. [38]

Non-compliance with s 99(3)

1. [59]

   The primary judge next turned to the issue of compliance with LEPRA, s 99(3). The respondent claimed that his arrest occurred in breach of s 99(3) in that, at the time of the arrest, there was no basis to suspect, on reasonable grounds, that the arrest was necessary. The SNSW claimed that the arrest was justified by ss 99(2) and 99(3)(b) and (d), as it was necessary to arrest the respondent and convey him to Woodenbong Police Station to prevent a repetition or continuation of the offence (presumably being the alleged offence comprising the altercation at the front of the respondent’s property) or the commission of another offence, and to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the earlier alleged offence. [39] In addition, the SNSW contended Senior Constable Tye had reasonable grounds to suspect that the respondent had committed an offence so as to enliven his power of arrest pursuant to LEPRA, s 99(2). [40]

2. [60]

   The primary judge found that although the statement given by Mrs Smith provided Senior Constable Tye with reasonable grounds for suspecting that the respondent had committed an offence against s 195(1)(a) of the Crimes Act, thereby satisfying the requirements of s 99(2) of the LEPRA, the power of arrest could only be invoked if the requirements of s 99(3) of the LEPRA were also satisfied. This is uncontroversial.

3. [61]

   The primary judge gave a number of reasons for concluding s 99(3) had not been complied with.

4. [62]

   First, Senior Constable Tye did not have reasonable grounds for suspecting that an offence would occur contrary to the laws of the State of New South Wales (s 99(3)(b)), for these reasons:

5. [63]

   Secondly, his Honour turned explicitly to the provisions of s 99(3):

6. [64]

   His Honour also held that there was no evidence to suggest that there was a risk of fabrication of evidence (s 99(3)(e)), or that the respondent’s safety or welfare was in need of preservation (s 99(3)(f)). [42]

7. [65]

   Although these reasons appeared dispositive, the primary judge then appears to have returned to the s 99(3) issue. He referred to Smart AJ’s statement in R v Rondo, [43] that suspicion in relation to s 99(3) matters, based on reasonable grounds, being more than a mere possibility or something that is arbitrary in nature.

8. [66]

   His Honour then concluded that the requisite reasonable grounds had not been established because of Senior Constable Tye’s evidence concerning his reasoning process prior to the arrest, in particular the two sentences of his evidence I have emphasised when setting out that passage earlier in these reasons. [44] He held:

9. [67]

   Instead, his Honour accepted the respondent’s submission that “the most charitable interpretation of the events was that a pre-emptive arrest had been made, without reasonable grounds for a suspicion”. [46]

10. [68]

    His Honour continued, still engaged, it is apparent, on the process of determining whether the SNSW had established either s 99(3)(b) or (d) purpose as a lawful basis for the arrest:

Available alternatives to arrest

1. [69]

   The respondent also argued before the primary judge that there were alternative courses available to the arresting police officers, namely, to charge him, and to issue and serve him with a field court attendance notice, and serve him with the PAVO without the need to take the extreme last resort action of arresting and imprisoning him where the circumstances did not warrant an arrest. [47]

2. [70]

   The primary judge found that at the time he decided to arrest the respondent, Senior Constable Tye was unaware that s 89 of the Domestic and Personal Violence Act empowered him to give a direction to the respondent to remain at his home pending the processing of an application for an interim apprehended domestic violence order. [48]

3. [71]

   The primary judge found that Senior Constable Tye had available to him a number of courses that were reasonable alternatives to simply arresting the respondent on sight. [49] First, to initiate, process and obtain the PAVO before going to the respondent’s property. Secondly, having obtained a PAVO, to speak to the respondent as part of an investigation that he acknowledged was required of him, in which event, his Honour concluded above, he would most likely have formed a view that an arrest was an unnecessary step for him to take in the circumstances. Thirdly, issue the respondent with a field court attendance notice in respect of the charge pursuant to s 195(1)(a) of the Crimes Act. [50] Accordingly his Honour concluded that the third element of the respondent’s claim was made out. [51] The SNSW contends that his Honour’s analysis that there was an alternative to arrest was part of his error in applying LEPRA, s 99.

Damages

1. [72]

   The primary judge considered a number of cases as examples to guide the assessment of damages. His Honour concluded that the appropriate sum to be awarded for general damages for wrongful arrest and imprisonment was the sum of $20,000, including an allowance for an element for aggravated damages. He reasoned as follows:

2. [73]

   His Honour then considered whether the respondent was entitled to an award of exemplary damages. The SNSW submitted that the polite verbal nature of the respondent’s arrest, the subsequent permission given to him to change his attire, the respectful nature of his pat-down search, the non-physical aspect of the escorting of the respondent to the police wagon, the courteous offer of coffee and water, and allowing the respondent an appropriate toilet break on request, and the (eventual) provision of a lift home, all militated against an award of exemplary damages, as such matters contradicted the suggestion of a contumelious disregard of the respondent’s rights.

3. [74]

   The primary judge rejected the SNSW’s submission on the basis that it failed to address the contumelious nature of the initial and planned disregard of the respondent’s rights “that were infringed on grounds of the application of a police directive that was interpreted to require an arrest at the outset rather than taking a lesser alternative course that was plainly available in the circumstances.” [52] His Honour found that this occurred because of a police training issue, and as such, it should attract disapprobation or disapproval because it applied an over-simplistic and incorrect template for determining whether or not an arrest should be effected rather than considering reasonable alternative courses that were available.

4. [75]

   The primary judge ordered verdict and judgment for the respondent in the sum of $39,858. His Honour also ordered that the SNSW pay the respondent’s costs on the ordinary basis unless a party showed an entitlement to some other costs order.

Issues on appeal

1. [76]

   The SNSW advances the following seven grounds of appeal:

   1. (1)

      The primary judge erred in finding that the arrest of the respondent on 20 May 2012 was unlawful. In doing so he:

   2. (2)

      The primary judge misunderstood, misconstrued or misused the evidence of Senior Constable Tye with respect to his need to “thoroughly investigate the matter” before applying for an ADVO; the primary judge incorrectly characterised that evidence as a precondition to arrest, and recognised by Senior Constable Tye to be such. He was wrong to do so.

   3. (3)

      The primary judge misconstrued or alternatively misapplied s 99(3) of the LEPRA when he found (at [181] – [182]) that in order to justify the arrest Senior Constable Tye must have had reasonable grounds for suspecting that an offence would occur contrary to New South Wales law.

   4. (4)

      The primary judge misconstrued s 201 of the LEPRA when he found (at [145] – [155]) that the phrase “at the time” referred to the moment in time when there was communication of intention to make an arrest and a sufficient act of arrest or submission to arrest (at [146]). The primary judge should have construed the words “at the time” to be synonymous with “on, or at, the occasion” of the arrest, or “prior to the conclusion of the process of arrest”.

   5. (5)

      Alternatively, or in addition, to Ground 4, the primary judge erred in finding (at [150]) that the respondent submitted to arrest when he retreated into his house to change; submission to the arrest occurred when the respondent, after further conversation with police, left his premises and entered the police vehicle.

   6. (6)

      The primary judge erred in finding that the arrest was unlawful because the “domestic incident”, advanced as the “reason for arrest”, was a “vague” ground and, inferentially, the charge pursuant to s 195 of the Crimes Act was required to be stipulated to the respondent at the point of arrest (at [160]).

   7. (7)

      The damages awarded by the primary judge were excessive because:

SNSW’s submissions

1. [77]

   The SNSW submitted that the primary judge erred in his construction of s 99(3). In particular, it submitted that in deciding (at [193] and [195]) that Senior Constable Tye had not reached the required state of suspicion under s 99(3) and that there were no reasonable grounds for any such suspicion, the primary judge misconstrued the word “suspects” in s 99(3) as requiring evidence to support the suspicion.

2. [78]

   The SNSW submitted that the primary judge’s finding that Senior Constable Tye did not have the state of mind referred to in s 99(3) was contrary to the decision in George v Rockett, [53] where the Court held that “suspicion” is a state of conjecture or surmise where proof is lacking, or a positive feeling of actual apprehension or mistrust, amounting to a “slight opinion, but without sufficient evidence”. The SNSW also argued that his Honour misunderstood or misapplied the reasoning of the Court of Criminal Appeal in R v Rondo (at [198]) in determining that an evidence based conclusion was necessary rather than a positive feeling of actual apprehension (at [205]).

3. [79]

   The SNSW next contended that “necessary” in s 99(3) of the LEPRA must be construed as requiring an evaluation of the circumstances as they appeared to the police officer at the relevant time, for the following reasons. First, the text, context and purpose of the LEPRA, and in particular the requirement of suspicion, rather than belief or knowledge, informed such a construction. Secondly, s 99(3) was directed to “attaining or preventing states of affairs in the future the realisation of which would depend on the unpredictability of the mental processes of the person the subject of arrest”. Thirdly, to construe the word “necessary” as requiring a basis in objective, assessable fact, as the primary judge did, would so circumscribe the power of arrest as to be inconsistent with its use as a tool for the protection of society, one of its important functions.

4. [80]

   The SNSW also argued that the primary judge misconstrued or misapplied s 99(3) when his Honour found (at [181] – [182]) that in order to justify the arrest of the respondent, Senior Constable Tye was required to suspect on reasonable grounds that an offence contrary to New South Wales law would occur. It argued that to construe “necessary” as being restricted to offences “contrary to the laws of the State of New South Wales”, as the primary judge did (at [182]) and to factor that into the relevant state of mind of the police officer was “self-evidently wrong”. It further contended that to do so in the circumstances of the present case “would ask more of a relatively junior police officer in the dead of night in remote New South Wales dealing with an alleged domestic violence complaint than Parliament could ever have intended.”

5. [81]

   The SNSW submitted that the primary judge’s conclusion that there was an alternative to arresting the respondent was part of his error in applying s 99, LEPRA. It argued that the possibility that there were alternative ways of proceeding was only relevant if it meant Senior Constable Tye’s suspicion that it was necessary to arrest the respondent for either of the purposes in s 99(3)(b) or (d) was not based on reasonable grounds. But, in any event, the SNSW argued that even if there were alternatives to arrest, that did not mean Senior Constable Tye’s suspicion that it was necessary to arrest the respondent was not based upon reasonable grounds given the factual matters upon which the police officers were focused, being the damage to Mrs Smith’s motor car, Mrs Smith’s allegations that the respondent had prevented her from entering his property with his truck, his threat to keep their two children, the violent nature of the shattering of the windscreen of Mrs Smith’s car while Mrs Smith and her two young children were inside, the rural location of the respondent’s property and the fact that if Senior Constable Tye had first spoken to the respondent, then left to obtain a PAVO, the respondent would be left close to his former wife for 2 ½ hours without the restraint of such an order or bail conditions.

6. [82]

   Further, the SNSW contended that the primary judge’s conclusions that there were alternatives to arrest were reached with the impermissible use of hindsight having regard to the fact that, at the time of the arrest, Senior Constable Tye did not know about s 89 directions and, in any event, such a direction was not a practical alternative as it was contrary to the standard operating procedure of having two officers present where a domestic violence incident was concerned.

7. [83]

   In respect of Grounds 4 and 5, the SNSW submitted that s 201 was intended to protect persons arrested and ensure the accountability of the arrestor. It argued that s 201 circumscribed or qualified the power to arrest contained in s 99 by seeking to protect individuals’ fundamental right to liberty by requiring that “before or at the time” of arrest certain information be provided to the individual being arrested.

8. [84]

   The SNSW contended, however, that the primary judge’s construction of “at the time” in s 201 denied the “practicality, efficacy and meaningfulness” of the balance struck between the two provisions. If “at the time” was construed as meaning the millisecond in time at which there was, relevantly, submission to words or acts of arrest, the SNSW submitted it would be impossible to achieve what Parliament articulated as an effective and appropriate way of protecting the interests of the individual the subject of the arrest. It would be impossible “at the time” of arrest to state one’s name, station and the reason for arrest, as those particulars would of necessity have to be provided “before” the time of arrest.

9. [85]

   The SNSW also contended that the primary judge’s reliance on Wilson v State of New South Wales [54] (at [146]) of his reasons was “selective, and misplaced”. It submitted that the primary judge’s determination of the proper construction of s 201 would have been better informed by Hodgson JA’s analysis in Wilson (at [67]), where his Honour embraced the concept of a “continuous process of arrest”, which could be considered as “one transaction”. In the present case, the SNSW submitted that the process of arrest continued up to and including, at least, the point at which the respondent left his premises and walked towards the police vehicle with one of the police officers placing his hand on the respondent’s elbow. The SNSW contended that no relevant act of submission occurred before Senior Constable Tye told the respondent his name, station and the reason for the arrest.

10. [86]

    In respect of Ground 6, directed to the reason advanced for the arrest, the SNSW relies on the following statement in Christie v Leachinsky. [55]

11. [87]

    In respect of the primary judge’s finding that the proposed s 195 of the Crimes Act ought to have been told to the respondent, as the reason for his arrest, the SNSW submitted that such an approach would not have been in accordance with either the law or good sense, as the respondent had not yet been interviewed, nor had he had any opportunity to put his side of the story.

12. [88]

    The SNSW contended that the respondent was told the substantial reason for his arrest and he made no challenge to the reason given, its adequacy or its detail, nor did he require of Senior Constable Tye any further or other particularisation. Given that the “domestic incident” had occurred barely four hours earlier, and it was uncontroversial that it had been heated, the officers’ reference to a “domestic incident” was more than sufficient to convey to the respondent why an arrest was being effected.

13. [89]

    The SNSW submitted that the power to arrest contained in s 99, LEPRA, conferred on Senior Constable Tye an executive discretion, the lawfulness of whose exercise could not be questioned save upon if it was manifestly unreasonable or, arbitrary, capricious, irrational or not bona fide. It argued that the evidence was incapable of satisfying that test in circumstances where two experienced country police officers formed the view that the risk to Mrs Smith’s life and safety outweighed any infringement of the respondent’s right to personal integrity. It submitted that LEPRA, s 99 in recognising the importance of witness safety and the prevention of recurrence of events as grounds for arrest, qualified all concerns about the inviolability of personal integrity to the extent necessary to provide some degree of protection to persons vulnerable to violence including women and children in domestic situations.

14. [90]

    Finally, the SNSW submitted that it was not open to the primary judge to conclude that the police arrested the respondent as a matter of expediency in circumstances where that characterisation was not squarely put to the police officers and, accordingly, was not a finding available to the primary judge. In this context, the SNSW submitted that Senior Constable Tye and Senior Constable Stubbings were effectively parties such that they were entitled to have any matter which could be the subject of an adverse finding squarely and unambiguously put to them, a matter which the SNSW contended did not occur.

15. [91]

    Contrary to this conclusion, the SNSW submitted, the apparent logic of events was that the police officers arrested the respondent because of concerns for victim protection in the domestic violence context.

16. [92]

    In respect of Ground 7, which is directed to the primary judge’s award of damages, the SNSW argued that such damages do not follow as a matter of course, particularly exemplary damages. It submitted that “[f]acts must be found and reasons must be given to support the award of such damages”, and contended that the primary judge failed to direct his attention to such matters.

17. [93]

    The SNSW did not address any written or oral submissions to Ground 2 in the notice of appeal and I have assumed it is abandoned.

Respondent’s submissions

1. [94]

   The respondent submitted that the primary judge was correct to find that, in the circumstances of the case, s 99 required that there be a reasonable ground for suspecting, even on a preliminary basis, that an offence contrary to New South Wales law might occur. The respondent contended that while the SNSW concentrated on the word “suspects” in s 99(3), the primary judge directed consideration to the whole phrase “suspects on reasonable grounds that it is necessary”. He argued that isolating the word “suspects” distorted the construction of s 99 and distracted from its meaning.

2. [95]

   He also contended that the law in relation to reasonable suspicion was clear and was correctly applied by the primary judge, as demonstrated by his Honour’s application of R v Rondo, Rockett and Hyder v Commonwealth of Australia. [56] In particular, he submitted that his Honour’s use of the word “evidence” did not demonstrate error, relying on the proposition that “[t]here must be some factual basis for either the suspicion or the belief”. [57]

3. [96]

   The respondent next contended that neither police officer present gave any coherent evidence of a legitimate purpose for the arrest. Despite both officers emphasising the importance of thorough investigation before arrest or seeking an apprehended violence order, neither undertook even the most rudimentary investigation, and they decided to arrest the respondent even before they arrived at his home. Neither Senior Constable Tye nor Senior Constable Stubbings were aware of the targeted provision providing an alternative to arrest in s 89 of the Domestic and Personal Violence Act. The respondent submitted that, as the primary judge found, the evidence revealed that the officers arrested the respondent as a matter of expediency, and not for any legitimate purpose or with any relevant “reasonable suspicion”.

4. [97]

   The respondent submitted that the primary judge’s finding of a want of reasonable suspicion was supported by a thorough analysis of the evidence (at [199]). His Honour found that, as Senior Constable Tye had not spoken to the respondent before arresting him, nor conducted other identified rudimentary inquiries, he had engaged in an entirely speculative analysis as to the possible threat to victim safety and had not made an assessment as to whether the respondent posed a significant and realistic threat in the circumstances. Any inquiry of either the respondent or his ex-wife would have revealed that, between the time of the alleged incident and the arrival of police at the respondent’s home, he had driven to Killarney to return the children to Mrs Smith without incident, a fact that Senior Constable Tye said would “definitely” have affected his decision-making in determining whether to proceed straight to an arrest. As it transpired, no attempt was made to speak with the respondent until after he had been “booked into custody” at Woodenbong Police Station. [58]

5. [98]

   At trial, the respondent put his case as to the unlawfulness of his arrest and imprisonment on the basis that, independently of compliance with s 99(3), there was an alternative course available to the arresting officers to deal with the situation and him. [59] In this Court, he submitted that the availability of an alternative course fed into the s 99(3) point, and demonstrated the absence of reasonable grounds for the necessity to arrest him.

6. [99]

   In respect of Grounds 4 and 5, the respondent submitted that the SNSW’s reliance on Wilson was misplaced. He distinguished Wilson on the basis that when Mr Wilson was informed he was under arrest, he retreated, did not submit, and was not under the control of the arresting officer. In the present case, the respondent was placed under arrest at the front door of his home and “submitted then and there”, a matter demonstrated by him seeking permission to be allowed to change clothes.

7. [100]

   In respect of Ground 6, the respondent submitted that the primary judge found that the police officers failed to comply with s 201 by using the term “domestic incident” as the reason for the respondent’s arrest. In his submission, that term was “entirely lacking in specificity” and could relate to any number of matters. The respondent also contended it is irrelevant that he did not challenge the reason given, its adequacy or its detail, or seek further and better particulars from the arresting officers. He argued the obligation to inform is that of the arrestor, and there was no impediment to its discharge in the present case. There is no requirement that a citizen being detained embark on an exploration of the reason for detention.

8. [101]

   In respect of Ground 7, the respondent submitted that the primary judge addressed the modest award of damages in some detail, and explained, by reference to the evidence and to authority, how he reached his assessment. The respondent also contended that his Honour made clear that the basis of the award of exemplary damages was the systemic failure of the State to train police officers in accordance with law. The absence of malice, as opposed to contumeliousness, was reflected in the small size of the award.

Consideration

1. [102]

   It is “of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable.” [60] Arrest should be reserved for circumstances in which it is clearly necessary. [61] It is inappropriate to resort to the power of arrest when the issue and service of a summons would suffice adequately. [62]

2. [103]

   Because the law places a high value on personal liberty, a statute which authorises the detention of a person must be strictly construed. The protection of the subject lies in the nature of the test which has to be applied in order to determine whether, in a case of arrest without warrant, the requirement that there be reasonable grounds for the suspicion (or the belief) said to justify the arrest is satisfied. [63] Contrary to the SNSW’s submission, the mandatory language in the chapeau to s 99(3) and the requirements that the suspicion be held “on reasonable grounds” and that it is necessary to arrest a person for a s 99(3) purpose, give effect to the statement in the Second Reading Speech “that arrest is a measure that is to be exercised only when necessary [and] should only be used as a last resort”. [64]

3. [104]

   The law does not lose sight of the public interest in the detection of crime and bringing those who commit it to justice. Thus, while it is “desirable as a general rule that an arrest should not be made until the case is complete ... if arrest before that were forbidden, it could seriously hamper the police”. [65] In determining whether the arresting officer had the relevant state of mind (be it suspicion or belief), it is necessary to bear in mind that the Court is considering a preliminary stage of the investigation, rather than one requiring evidence amounting to prima facie proof. [66]

4. [105]

   For a warrantless arrest to be valid, two elements have to be satisfied: an honestly held suspicion in the mind of the arresting officer and information in the mind of the arresting officer which, when objectively assessed, provides reasonable grounds for the suspicion. [67]

5. [106]

   The proposition that it must be the arresting officer who has reasonable grounds to suspect the matters referred to in s 99 is intended to ensure that “[t]he arresting officer is held accountable ... [and] is the compromise between the values of individual liberty and public order”. [68]

6. [107]

   An arrest without a warrant is not lawful unless effected in good faith and for the purposes contemplated by statute. [69] The tort of false imprisonment requires proof by the plaintiff of a restraint imposed by the defendant which amounts to imprisonment. Upon proof of such imprisonment, the defendant, to escape liability, needs to establish legal justification. [70]

LEPRA, s 99

1. [108]

   The structure of s 99 is that subsections (1) and (2) confer a power of arrest upon a police officer, while subsection (3) operates as a constraint on those powers of arrest, prohibiting a police officer from arresting a person for a particular purpose, namely, the purpose of taking proceedings against the person for an offence, unless the conditions stated in s 99(3) are satisfied. [71]

2. [109]

   The critical matter, which the primary judge held the SNSW failed to establish, turned on whether Senior Constable Tye suspected on reasonable grounds that it was necessary to arrest the respondent for one of the reasons set out in s 99(3). The SNSW relied upon s 99(3)(b) and (d). Thus it must establish that the primary judge erred in concluding that Senior Constable Tye did not suspect on reasonable grounds that it was necessary to arrest the respondent either to prevent a repetition or continuation of the offence or the commission of another offence (s 99(3)(b)) or to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence (s 99(3)(d)).

3. [110]

   Although the construction of the LEPRA must proceed from an analysis of the text and context and purpose of the relevant provision, [72] it is convenient in the first instance to consider the disparate elements of the critical phrase.

4. [111]

   In SNSW v Robinson, the Court held that the Shorter Oxford English Dictionary definition of “necessary” to mean “that which is indispensable; an essential, a requisite” and the online English Oxford Living Dictionary definition of “necessary” as “needed to be done, achieved … essential” were most apt to the meaning of “necessary” in s 99(3) in the form hereunder consideration, saying: [73]

5. [112]

   On that basis, the Court held that, properly construed, the correct test for whether arrest was necessary for one of the s 99(3) purposes was whether the State establishes that:

6. [113]

   At the heart of the SNSW’s submissions is its criticism of the primary judge’s apparent conclusion that to establish the requisite state of suspicion on reasonable grounds for the purposes of s 99(3), it had to establish Senior Constable Tye’s state of mind was evidence based, rather than based, at least in part, upon speculation.

7. [114]

   The SNSW contended that his Honour failed to apply the test established in Rockett, that suspicion for the purposes of s 99(3) “is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’”, [75] or a positive feeling of actual apprehension or mistrust, amounting to a “slight opinion, but without sufficient evidence”. [76] It contended that, on that approach, Senior Constable Tye held the requisite state of suspicion.

8. [115]

   Rockett concerned the state of mind a justice had to hold to satisfy the “reasonable grounds for suspecting” test required for the valid issue of a search warrant for the purposes of s 679 of the Criminal Code (Qld). The starting point for a consideration of Rockett is the Court’s statement that:

9. [116]

   In considering the sufficiency of a sworn complaint to show reasonable grounds for the suspicion and belief to which s 679 referred, their Honours made it clear it was “necessary to bear in mind that suspicion and belief are different states of mind”, [78] then said in a passage which includes that upon which the SNSW relied:

10. [117]

    R v Rondo to which the primary judge referred (at [198]), concerned, in part, the legality within the meaning of s 357E of the Crimes Act of a police officer stopping and searching a person’s car. Such acts were lawful if, at the time, the police officer reasonably suspected the matters set out in the provision.

11. [118]

    Smart AJ summarised the authorities as follows:

12. [119]

    In the High Court’s decision in Ruddock v Taylor, [80] Gleeson CJ, Gummow, Hayne and Heydon JJ held that “what constitutes reasonable grounds for suspecting” a matter (in that case whether a person was an unlawful non-citizen) must be judged against “what was known or reasonably capable of being known at the relevant time”. [81] I do not understand this Court in SNSW v Robinson [82] in holding that part of the test for s 99(3) was whether “the decision to arrest, when reviewed afterwards according to the information known to the arresting officer at the time of the arrest, was made on reasonable grounds” excluded information of the sort to which Ruddock v Taylor HC referred being that “reasonably capable of being known at the relevant time”. If it did, that conclusion was, with respect, per incuriam, as it is apparent the Court was not referred to that decision.

13. [120]

    The High Court recently applied Rockett in Prior v Mole [83] in considering s 128(1) of the Police Administration Act (NT), which empowered a member of the police force, “without warrant, [to] apprehend a person and take the person into custody if the member has reasonable grounds for believing” a number of matters relating to a person being intoxicated in a public place. Although the case concerned “belief” rather than “suspects”, some of the observations made concerning the test required by the reasonable grounds requirement are germane.

14. [121]

    Relevantly, it is apparent that the High Court determined that the question whether a person held the relevant state of mind turned on both a subjective test (whether that person held the belief referred to in the relevant provisions) and an objective test, namely whether the facts and circumstances known to the relevant person “constituted objectively reasonable grounds for those beliefs … sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the subject matter of the belief”. [84] It was also accepted that “[f]acts and circumstances that suffice to establish the reasonable grounds for a belief may include some degree of conjecture” and that proof on the balance of probabilities was not required. [85]

15. [122]

    The SNSW’s submissions, in my view, took the statement in Rockett concerning what constitutes “suspicion” [86] out of context and failed to have regard to the Court’s statement that, when used in a composite phrase such as that in s 99(3) (suspects on reasonable grounds), suspicion “requires the existence of facts which are sufficient to induce that state of mind in a reasonable person”. [87]

16. [123]

    It is not sufficient that the police officer subjectively (or honestly to use the expression in SNSW v Robinson) hold the belief that arrest is necessary, that subjective belief has to be one which can be upheld on an objective basis as having been formed on reasonable grounds.

Section 99(3) conclusion

1. [124]

   In my view, the primary judge did not err in concluding that Senior Constable Tye did not hold the requisite suspicion on reasonable grounds that the respondent’s arrest was necessary for the purposes of s 99(3)(b) and (d).

2. [125]

   Adapting Kiefel and Bell JJ’s statement in Prior v Mole, [88] determining whether there was at least some factual basis for Senior Constable Tye’s suspicion required determining whether the facts and circumstances known to him “constituted objectively reasonable grounds for [his suspicion] … sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the subject matter of the [suspicion]”.

3. [126]

   The first reason that the primary judge gave for rejecting the SNSW’s reliance on s 99(3)(b) or (d) was that Senior Constable Tye did not hold the suspicion referred to in either sub-paragraph because he had decided to arrest the respondent before he went to the property for reasons of administrative convenience. [89] As the respondent submitted, that finding went directly to the s 99(3) issue. It negated any finding that Senior Constable Tye honestly believed the arrest was necessary for one of the purposes in s 99(3). [90] It also negated any finding that the arrest was “necessary” for one of the s 99(3) purposes.

4. [127]

   Contrary to the SNSW’s submission, in my view, it was open to his Honour to make that finding. A proposition to that effect was squarely put to Senior Constable Tye. He accepted in cross-examination that as an alternative to the course he took, he considered speaking to the respondent first, and then returning to the police station, typing up a domestic violence order then returning to the premises, and then either proceeding by way of a court attendance notice, or a field court attendance notice. Either way, however, he said he had to have an apprehended violence order to serve on the respondent as soon as possible. In that light, he accepted that the easier way to do that was to arrest him.

5. [128]

   The proposition that Senior Constable Tye arrested the respondent for reasons of administrative convenience was also squarely put to counsel for the SNSW by his Honour as an available finding in the course of address.

6. [129]

   However, it is also apparent that, notwithstanding that finding, the primary judge considered the question whether Senior Constable Tye held a state of mind which rose above “speculation”. In this context, his Honour considered, consistently with Rockett, whether, applying an objective test, there were “facts which are sufficient to induce that state of mind in a reasonable person”, [91] in the position of Senior Constable Tye and, in accordance with R v Rondo, whether those facts supported a suspicion which was “more than a possibility”. [92]

7. [130]

   I accept that, at times, the primary judge strayed into language indicating an evidence based test, [93] but his Honour did not, in so doing, impermissibly apply evidentiary burdens of proof. [94] Rather, it is apparent his Honour analysed the evidence to determine whether there was some factual basis for Senior Constable Tye’s asserted suspicion for s 99(3) purposes. [95]

8. [131]

   The first difficulty Senior Constable Tye faced in satisfying this standard was that he had made the decision to arrest the respondent before he went to his house. This meant that he did not undertake the risk assessment of the respondent he accepted was part of the process of determining whether in cases of domestic violence he should be arrested. He accepted that he did not undertake that risk assessment because his purpose in arresting the respondent was to keep him in custody until such time as a PAVO could be issued.

9. [132]

   Moreover, Senior Constable Tye agreed in cross-examination that “the only fact that [he] had to suspect that there might be a reoccurrence was the fact that there’d been an occurrence” and that the “facts that … said that it was unlikely to be a recurrence were greater in number than that”. Those facts included whether the suspect had a record (which it will be recalled he had ascertained was not the case), the fact that Mrs Smith had not expressed any fear that anything might happen that evening, or that the respondent might approach her, the fact that by the time he went to the property, four hours had passed and nothing had happened and, that when he first saw the respondent before he arrested him he was dressed in pyjamas. Having regard to those matters, he accepted that it was unlikely at the very least that the offence would recur. On that basis it was clearly open to the primary judge to conclude the SNSW had not established the matters set out in s 99(3)(b).

10. [133]

    It is not clear on what basis Senior Constable Tye claimed he believed the respondent might engage in the conduct referred to in s 99(3)(d). To the extent he gave evidence in chief concerning his decision to arrest the respondent, it was expressed to be out of concerns for “the victim’s welfare and safety” if he first spoke to the respondent then travelled to Woodenbong Police Station to arrange a PAVO. In circumstances where he had not undertaken a risk assessment of the respondent, but accepted that, had he done so, the facts militated against the likelihood of a repetition of the offence, the primary judge did not err in concluding the SNSW had failed to establish Senior Constable Tye suspected on reasonable grounds that the arrest was necessary for the purpose referred to in s 99(3)(d).

11. [134]

    It was also relevant to take into account, as the primary judge did, and contrary to the SNSW’s submission, at the very least on the question whether the respondent’s arrest was “necessary” for one of the purposes referred to in s 99, that Senior Constable Tye said in cross-examination that if he had known of the s 89, Domestic and Personal Violence Act option, his decision to arrest the respondent would have been different. In that event, he would have asked Senior Constable Stubbings to wait at the property, while he went to the station and took out a PAVO and then returned and served it upon the respondent. Contrary to the SNSW’s submission, this was not impermissible hindsight or ex post facto acquired knowledge. [96] It was a matter of which Senior Constable Tye was reasonably capable of knowing at the relevant time. [97]

12. [135]

    Having regard to s 5 of the Constitution Act 1902 (NSW), [98] there is a compelling, albeit I would accept curious, logic in the primary judge’s finding that to justify the arrest, Senior Constable Tye must have had reasonable grounds for suspecting that an offence would occur contrary to the laws of the State of New South Wales. As a matter of practicality, I have some difficulty in accepting the proposition that if a police officer suspected a person intended imminently to leave the State to commit an act of violence, there would be no basis for arrest. However, the SNSW’s submissions on this aspect lacked any detail as to, for example, the powers of the police, if any, to effect arrests for the purposes of preventing interstate criminal acts. The outcome of the appeal does not turn on this issue and absent assistance from the party propounding the ground of appeal, I find it unnecessary to decide.

13. [136]

    Grounds 1 and 3 of the notice of appeal should be rejected. As I have said, Ground 2 was abandoned.

LEPRA, s 201

1. [137]

   The requirements for an arrest are (1) communication of intention to make an arrest, and (2) a sufficient act of arrest or submission. [99] At common law, in order for the arrest to be lawful, communication of intention to make an arrest should normally include informing the person that he or she is arrested and informing the person of the reason for the arrest unless the circumstances make these things obvious, or if the person arrested prevents it. [100]

2. [138]

   There may be a process of arrest where, following a sufficient communication of intention to arrest and of the reason for arrest, the person in question flees, a step which can be sufficiently taken, for example, if the person being arrested makes it impracticable to complete the arrest by not submitting and retreating into a house and not returning. [101]

3. [139]

   The SNSW effectively accepted in the course of argument, correctly in my view, that the respondent’s question after being informed he was under arrest, “[w]ill you give me a moment to get in some clothes?” was an act of submission sufficient to indicate that the process of arrest was completed.

4. [140]

   Although the SNSW did not abandon its contention that the process of arrest was not completed until after the respondent returned from changing his clothes and Senior Constable Tye took him by the elbow to guide him towards the police vehicle, [102] that submission cannot be accepted. It was sufficient to constitute “imprisonment” or arrest that, even though physical force was not used before the respondent asked to be able to change, he had “a justified apprehension that, if he did not submit to do what was asked of him, he would be compelled by force” to go with the officers. [103] As Senior Constable Tye accepted, at that stage, the respondent “wasn’t free to go anywhere [he] didn’t permit him to go; he was under arrest”. [104]

5. [141]

   But, in any event, even if there was a process of arrest as the SNSW contended, during which period Senior Constable Tye informed the respondent of his name and police station (s 201(1)(b)), the critical question to which I now turn is whether he also informed him of the reason for the exercise of the power of arrest (s 201(1)(c)).

6. [142]

   Grounds 4 and 5 should be rejected.

7. [143]

   The requirement that the person arrested should be informed of the reason why he or she is arrested is a matter of substance. It turns on the elementary proposition earlier stated in these reasons, and explained by Viscount Simon in Christie v Leachinsky, that a person is, prima facie, entitled to his or her freedom and is only required to submit to restraints on that freedom if he or she knows in substance the reason why it is claimed that restraint should be imposed. [105] His Lordship’s statement reflects the common law in New South Wales and is reflected in the LEPRA, s 201. [106]

8. [144]

   As Gleeson JA explained in NSW v Abed:

9. [145]

   Those circumstances might include, for example, that the person arrested must know the general nature of the alleged offence for which he or she is detained. [107] The question whether sufficient information has been given “has to be assessed objectively having regard to the information which is reasonably available to the officer”. [108]

10. [146]

    To elaborate on the point Gleeson JA made in NSW v Abed, [109] the reason given must be sufficiently precise as to make it clear to the person being arrested 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. [110] The reason will not suffice if the arrested person could not know “in any meaningful way the charge which was likely to be laid”. [111] Identification of conduct will often be sufficient. [112]

11. [147]

    Section 201 uses mandatory language. The police officer “must” do the matters to which s 201(1) – (2A) refers. The mandatory language is qualified to the extent that s 201(2) requires the information referred to in s 201(1) to be given “if it is practicable to do so, before or at the time of exercising the power” or “if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power”.

12. [148]

    Testing the matter objectively having regard to the information which was reasonably available to Senior Constable Tye, there was no practicable reason why he did not inform the respondent of the reason he had decided to arrest him, in circumstances where, as the primary judge held, he had reasonable grounds for suspecting that the respondent had committed an offence against s 195(1)(a) of the Crimes Act. The respondent was standing passively at his front door in his pyjamas. Although as the previous discussion makes apparent, it is not necessary that the reasons for the exercise of the power of arrest be explained in technical language, it was not, in my view, an error on the primary judge’s part to hold that having formed that opinion, there was no reason or impracticality that prevented the respondent from being told that he was to be charged under that provision. [113]

13. [149]

    But, even if that is not correct, in my view the language Senior Constable Tye did use, namely to tell the respondent “your ex-missus has made an allegation of a domestic incident” did not convey to him the reason for the exercise of the power of arrest within the meaning of s 201(1)(c).

14. [150]

    “Domestic incident” did not identify conduct. It could not convey in any meaningful way the charge which was likely to be laid. It was not until about 1 am when the respondent was finally charged that it can be said the reason for the exercise of the power of arrest was communicated to him.

15. [151]

    The SNSW did not identify any offence synonymous in the circumstances with the expression “domestic incident”. [114] It faintly suggested that that expression was “a well-known, contemporary description of a domestic violence incident” which took the matter no further in my view in what s 201(1)(c) requires.

16. [152]

    Ground 6 should be rejected.

Damages

1. [153]

   The tort of “[w]rongful imprisonment is a tort of strict liability [whose]…focus … is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant.” [115]

2. [154]

   In Goldie v Commonwealth of Australia (No 2), [116] a case of unlawful detention for 4 days of a non-citizen, French J (as his Honour then was) held:

3. [155]

   In the Court of Appeal’s decision in Ruddock v Taylor, a case of wrongful imprisonment arising out of the respondent’s detention under the Migration Act 1958 (Cth), Spigelman CJ dealt with the Minister’s challenge to the primary judge’s award of damages as follows:

4. [156]

   In a false imprisonment case, “any evidence which tends to aggravate or mitigate the damage to a man’s reputation which flows naturally from his imprisonment must be admissible up to the moment when damages are assessed. A false imprisonment does not merely affect a man’s liberty; it also affects his reputation.” [118]

5. [157]

   Such is the value the common law places upon liberty, that “[e]ven apparently minor deprivations of liberty are viewed seriously by the common law”. [119] As Walsh J said in Watson v Marshall [120] when awarding damages of $200 for the unauthorised detention for a week of the plaintiff, “[a]n interference with personal liberty even for a short period is not a trivial wrong. The injury to the plaintiff’s dignity and to his feelings can be taken into account.”

6. [158]

   In New South Wales v Radford, [121] Sackville AJA explained the distinction between aggravated and exemplary damages in cases such as the present as follows:

7. [159]

   The assessment of damages for trespass and false imprisonment involves an evaluative judgment by the primary judge to which an appellate court asked to review the determination must adopt a constrained approach. An appellate court will not disturb such an award unless it is convinced that the primary judge has acted on a wrong principle of law, has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered. [122]

8. [160]

   The SNSW attacked the award of compensatory damages on the basis that the police officers’ breaches of s 99 and s 201 were “technical” and, accordingly, that the primary judge had awarded damages out of proportion to any wrong doing.

9. [161]

   I do not accept the proposition that the police officers’ breaches were “technical”. Rather, they represented their failure to appreciate the statutory obligations with which they were required to comply in responsibly exercising the extraordinary powers reposed in them as police officers. [123]

10. [162]

    In so submitting, in addition, the SNSW fails to understand the principles upon which awards of damages for wrongful arrest and false imprisonment, including aggravated damages, are based. The focus is not upon the police officers’ transgressions but, as I have explained, on the vindication of liberty and reparation to the victim.

11. [163]

    In my view, the primary judge did not err in his award of compensatory damages. The SNSW has not demonstrated that his Honour applied a wrong principle of law or misapprehended the facts, nor that the amount of damages was inordinately high.

12. [164]

    His Honour’s reasons for the compensatory damages award were succinct but, in my view, sufficiently recognised that the substantial portion of the award must be applied to the initial shock to the respondent of being arrested. In addition, in including in his award an amount for aggravated damages, his Honour recognised the damage to the respondent’s reputation which can be inferred to flow consequent upon his arrest not least from his wife witnessing the event as he particularised in his aggravated damages claim.

13. [165]

    Ground 7(a) and (b) should be rejected.

14. [166]

    I would, however, uphold the SNSW’s appeal insofar as it involves exemplary damages.

15. [167]

    As Sackville AJA explained in State of New South Wales v Zreika: [124]

16. [168]

    The primary judge concluded that an award of exemplary damages was appropriate because of the “contumelious nature of the initial and planned disregard of the plaintiff’s rights that were infringed on grounds of the application of a police directive that was interpreted to require an arrest at the outset”, that this resulted from a police training issue which resulted in the officers being unaware of the s 89, Domestic and Personal Violence Act alternative to arrest. [125]

17. [169]

    In my view, the respondent did not establish that Senior Constable Tye’s ignorance of a s 89 alternative course of action represented a conscious wrongdoing in contumelious disregard of the respondent’s rights, nor that it was the product of a police training issue as opposed to being the product of ordinary human fallibility. [126]

18. [170]

    Ground 7(c) should be upheld.

Conclusion

1. [171]

   The SNSW’s submissions to an extent conveyed a sense that the respondent’s arrest was justified because this was a case concerning domestic violence and the need for victim protection. They also highlighted the community’s concern with matters of domestic violence and the need for victim protection. The courts are acutely conscious of both matters and, too, of the community’s concern. So also, it is apparent is the legislature, as reflected in the Domestic and Personal Violence Act.

2. [172]

   That legislation, however, also reflects the legislature’s concern that arrest in a case of an intended application for a PAVO only be used as a last resort where the person against whom the order was to be sought had refused a police direction to remain at a place as directed. That concern no doubt reflects the legislature’s acknowledgment of the fact that arrest should be reserved for circumstances in which the police have formed the opinions for which s 99, LEPRA provides. That did not occur in this case.

3. [173]

   The SNSW sought both the costs of the appeal and of the trial. I would not vary the costs of the trial as the SNSW has succeeded only in setting aside the award of exemplary damages which was an amount awarded as a consequence of the primary judge’s liability findings, but, I would infer, did not independently add, or add substantively, to the length of the trial.

4. [174]

   In my view, the SNSW should pay the costs of the appeal. Leave to appeal was granted because of its contention that it was in effect a test case. Even had the Court been of the view on a leave application that the primary judge may have erred in his assessment of exemplary damages, in the ordinary course, having regard to the quantum involved it is improbable that leave to appeal would have been granted. This is because, not least, of the fact that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute. [127]

Orders

1. [175]

   I propose the following orders:

   1. (1)

      Grant leave to appeal;

   2. (2)

      Appellant to file a notice of appeal in the form of the draft in the White Book within seven days of the making of these orders;

   3. (3)

      Appeal allowed in part;

   4. (4)

      Set aside the judgment entered in favour of the respondent for $39,858 and, in its place, enter judgment for the respondent, with effect from 22 April 2016, in the amount of $22,776;

   5. (5)

      Appellant to pay the costs of the appeal.

2. [176]

   LEEMING JA: I have had the very considerable advantage of reading in draft the reasons of McColl JA. I agree with the orders her Honour proposes, and with her Honour’s reasons and conclusions in relation to (a) the process of Mr Smith’s arrest being completed when he asked whether he could change his clothes, (b) the failure to inform Mr Smith of the reason for his arrest and (c) the unavailability of exemplary damages. It follows that it is not necessary to resolve the question of primary fact whether the police officers ever gave their name and station (as Mr Smith said in chief) or whether in fact Senior Constable Tye did so after he was arrested (as Mr Smith conceded in cross-examination) which, on one view, is left unresolved by the statement that the trial judge preferred and accepted the plaintiff’s account of the interchanges between himself and the arresting officers.

3. [177]

   I also agree with her Honour’s conclusions that it was open to the primary judge to find that Senior Constable Tye did not suspect that it was necessary to arrest Mr Smith, and that even if that were not so, the finding that the officer was unaware of the alternative power under s 89 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) precludes, at least in this particular case, a finding that such suspicion would be on reasonable grounds.

4. [178]

   I agree with McColl JA that it is to be concluded that ground 2 was abandoned. To the extent that ground 3 concerned the relationship between the power of arrest and laws other than laws of New South Wales, it too was not the subject of written or oral submissions in this Court, and I express no view about this. Indeed, no attempt was made to separate grounds 1-5 in the State’s written submissions in chief, and the entirety of those submissions occupied four paragraphs extending just under one page. The challenge in ground 7 extended to the aggravated damages ordered by the primary judge which formed an unidentified part of the $20,000 damages. In the near complete absence of written submissions, and only brief oral submissions which focussed on an alleged failure to make sufficient findings of aggravating circumstances, I agree with what McColl JA has said that what was said about the findings of shock and humiliation by Mr Smith being arrested in the presence of his wife was sufficient.

5. [179]

   The orders proposed by McColl JA should be made.

6. [180]

   SACKVILLE AJA: I agree with the orders proposed by McColl JA.

7. [181]

   I agree with her Honour that there was no error in the primary Judge’s finding that Senior Constable Tye did not hold the suspicion that it was necessary to arrest the respondent for any of the purposes specified in s 99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPR Act). [128] That finding is sufficient to preclude reliance by the appellant (State) on s 99(3) of the LEPR Act.

8. [182]

   If, contrary to my view, Senior Constable Tye had a suspicion that it was necessary to arrest the respondent for one of the purposes stated in s 99(3) of the LEPR Act, in my opinion the primary Judge was correct to find that Senior Constable Tye did not have reasonable grounds for that suspicion.

9. [183]

   In Prior v Mole, [129] Gageler J explained what is required to satisfy a precondition that a police officer “has reasonable grounds for believing” certain matters specified in the legislation:

10. [184]

    Prior v Mole involved a statue requiring reasonable grounds for a belief as to certain matters whereas s 99(3) of the LEPR Act requires a police officer to suspect certain matters on reasonable grounds. Nonetheless the principles for determining whether reasonable grounds existed for a suspicion are those stated in Prior v Mole.

11. [185]

    The primary Judge found that Senior Constable Tye was unaware of s 89(1)(a) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act) which empowered him to direct the respondent to remain at his premises pending the processing of an interim apprehended violence order. [136] Senior Constable Tye accepted in his evidence that had he been aware of s 89(1)(a) of the CDPV Act he would not have arrested the respondent but would have given a direction under s 89 and taken the steps required to serve an apprehended violence order on the respondent.

12. [186]

    The objective facts known to Senior Constable Tye were not such as to be sufficient to induce a suspicion in a reasonable person that it was necessary to arrest the respondent to achieve one of the purposes stated in s 99(3) of the LEPR Act. That is because a reasonable person in Senior Constable Tye’s position would have known of the powers conferred by s 89(1)(a) of the CDPV Act and would have chosen to exercise those powers rather than arrest the respondent.

13. [187]

    I should add that I see no inconsistency between the statement principle in State of New South Wales v Robinson [137] and the approach of the High Court in Prior v Mole. Nor do I see any conflict between State of New South Wales v Robinson and the recent decision of this Court in State of New South Wales v Bouffler. [138]

14. [188]

    I agree with McColl JA that: