State of New South Wales v Robinson

THE COURT: The State of New South Wales (the State) seeks leave to appeal from the order of Curtis DCJ made on 15 April 2016, in which his Honour awarded the respondent, Mr Robinson, damages “for the indignity of [his] arrest” in the sum of $5,000. The summons for leave to appeal was heard concurrently with the argument on the appeal.

Insofar as it is relevant to the issue on the appeal, Mr Robinson, in his statement of claim, alleged that he had been wrongly arrested on 13 October 2013 because the arresting police officer, Constable McColl, did not suspect on reasonable grounds that it was necessary to arrest him for any of the purposes specified in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99(3). The only ‘purpose’ in issue in the proceedings was para (b) of subs (3), namely, “to prevent a repetition or continuation of [an] offence”. The full terms of s 99 are set out below.

The State contended that the primary judge applied the wrong test in determining whether the arresting police officer suspected on reasonable grounds that it was necessary to arrest Mr Robinson to prevent a repetition or continuation of an offence.

Mr Robinson, by a notice of contention (amended orally in Court), contended that the primary judge’s decision should be upheld on the basis that the arrest was objectively unnecessary: contention ground (b); that a decision to arrest should not have been made at least until after speaking with Mr Robinson: contention ground (c); and further, on the basis that the arresting officer did not effect the arrest in consequence of certain of the findings made by the primary judge: new contention ground (d). Contention ground (a) was abandoned.

On 9 October 2013, at 1:20pm, Mr Robinson was served with a Provisional Order (Ex Parte) Apprehended Personal Violence Order (the interim AVO), based upon a complaint made by a Ms Singh that Mr Robinson:

At 9pm on the same day, Ms Singh made a further complaint to police that Mr Robinson had breached the interim AVO by contacting her. The alleged contact involved two telephone calls, one of which Ms Singh did not pick up, and insulting messages sent to her Facebook account.

At 8:45am on 13 October 2013, Constable McColl, accompanied by another police constable, attended at Mr Robinson’s home and informed him that there was an allegation that he was in breach of the interim AVO and that he was under arrest. Mr Robinson was cautioned and conveyed to North Sydney Police Station by the two officers.

At the police station, Mr Robinson was interviewed and charged with an offence contrary to the Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1), in that he had knowingly contravened the interim AVO. He was released on bail that day. Subsequently, on 6 February 2014, Mr Robinson pleaded guilty to the charge.

Mr Robinson commenced proceedings claiming damages for wrongful arrest on 6 February 2015.

The Law Enforcement (Powers and Responsibilities) Act, s 99, in the form it was at the time of Mr Robinson’s arrest provided:

Section 99 was amended by the Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013 (NSW). The amendment took effect on 16 December 2013.

After reciting the essential facts, the primary judge found, at [29], that Constable McColl had cause to believe that:

The first four of these findings are subject of the amended notice of contention.

The primary judge, at [30], accepted Constable McColl’s evidence that he suspected that it was necessary to arrest Mr Robinson to prevent a repetition or continuation of the offence of knowingly contravening an AVO.

His Honour, at [32], identified the question in issue as being whether Constable McColl’s suspicion that the arrest was necessary was reasonable. It is convenient to note at this point that it was not in issue at first instance, nor is it in issue on the appeal, that the arrest was for the purpose of taking proceedings for an offence against Mr Robinson.

His Honour, at [33]-[34], recorded the submission made on behalf of Mr Robinson that the arrest was not necessary because the purpose of preventing a repetition or continuation of the offence may have been achieved by alternative methods, including asking Mr Robinson to voluntarily attend the police station, or serving a Court Attendance Notice on him.

His Honour, at [37], observed that an arrest may be necessary and appropriate where an offender has demonstrated a resolve to ignore lawful restraints upon his behaviour. At [39], his Honour noted, in circumstances where Mr Robinson had flouted an AVO within hours of it being served upon him, that it was not unreasonable for an arresting officer to believe that Mr Robinson would ignore a warning from a police officer or service of a Court Attendance Notice.

Nonetheless, his Honour considered, at [40], that there was no reason to suppose that Mr Robinson would not attend at North Sydney Police Station for questioning, given that he had voluntarily attended a police station to accept service of the interim AVO.

Against that background, his Honour, at [41], asked what purpose was served by arresting Mr Robinson, rather than asking him to attend the police station.

His Honour referred, at [45], to the decision of Tilse v New South Wales (2013) 17 DCLR (NSW) 177; [2013] NSWDC 265. According to his Honour, Neilson DCJ concluded in that case that the word “necessary” in s 99(3) “must be construed to mean absolutely necessary rather than reasonably necessary”.

The primary judge then reasoned:

His Honour stated, at [51], that Constable McColl’s decision to arrest Mr Robinson was “not unreasonable”, although he had found it wrong in law. His Honour, at [52], considered that the decision to arrest was “understandable” because the word “necessary” in s 99(3) “is to be applied by law enforcement officers in context”. In that regard, his Honour noted that:

However, as his Honour found that Constable McColl had acted unlawfully, he found that Mr Robinson was entitled to an award of compensatory damages in the sum of $5,000 for the indignity of his arrest. His Honour rejected Mr Robinson’s claim for exemplary or aggravated damages.

The Court considers that leave to appeal should be granted. The principles for the grant of leave are well established. As Bathurst CJ stated in Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 at [12], leave will ordinarily only be granted where there are:

The amount involved in this case is $5,000, and in the normal course leave would most likely be refused because of the small amount involved: see Berry v Nicholls [2016] NSWCA 272 especially at [7]. However, the Court was informed that there are 12-17 matters still to be determined based upon the powers of arrest contained in s 99 in the form it stood at the time of Mr Robinson’s arrest. Although Mr Robinson submitted that there was no evidence as to whether the question of construction raised in this matter will be raised in those outstanding matters, it can be inferred that the proper construction of s 99 will arise in at least some of them.

Further, in our view, the primary judge has misconstrued important legislation which governs the circumstances in which persons may lawfully be arrested. The legislation is 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. The proper construction of that legislation is of great public importance. While s 99(3) of the Law Enforcement (Powers and Responsibilities) Act has been repealed, sufficient cases remain to be determined to ensure that the error which has occurred in this case is not repeated.

The State submitted that the primary judge, at [47], applied the wrong test in his construction and application of s 99(3). It submitted that, contrary to his Honour’s finding, the test is not whether the arrest was necessary for the stated purpose, but rather whether the arresting officer “suspected on reasonable grounds” that the arrest was necessary for such purpose. The correct test, on the State’s submission, was whether the State had established that:

Mr Robinson accepted that the primary judge’s reasoning in [47] was not correct for the reason given by the State. Nor did he contend, as his Honour appeared to have accepted, that the word “necessary” in s 99(3) meant “absolutely necessary”. He submitted, however, that the test posited by the State omitted any reference to the threshold requirement in s 99(3) that the arrest be “for the purpose of taking proceedings for an offence against the person intended to be arrested”.

According to Mr Robinson, the purpose of s 99(3) is to work out whether court proceedings for an offence can be commenced without an arrest. On his submission, the necessity for the arrest to be for the purpose of taking proceedings for an offence is a fundamental pre-condition to the operation of subs (3). It followed, according to this submission, that in order for the State to be able to rely on any of the matters contained in paras (a)-(f), it must establish that it was necessary to arrest Mr Robinson for the purpose of taking proceedings for the offence.

Mr Robinson further contended that although his Honour erred in his construction of s 99(3), his ultimate decision was correct and should be upheld on the bases set out in grounds 4(b), 4(c) and the new 4(d) of the notice of contention. The notice of contention issues are dealt with below.

Section 99 is directed to the circumstances in which an arrest may be effected without a warrant.

Pursuant to s 99(1), a police officer who comes across a crime in the course of its commission, or who encounters a person who has just committed a crime, may arrest the person without a warrant. A police officer may also arrest without a warrant under subs (1) where a person has committed a serious indictable offence for which the person has not been tried. The latter power would be exercisable, for example, if the police officer, upon coming across a person, was aware, or on making inquiries became aware, that the person was a person who satisfied the description in subs (1). This could occur in any number of situations, including where the person was stopped at a random breath testing station, or was in premises the police were entitled to enter.

Pursuant to s 99(2), a police officer may also arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. It is neither necessary nor possible to set out all the circumstances in which or the basis upon which a police officer may reach the required state of suspicion. It would obviously include circumstances in which information had been provided to the police officer or enquiries were made by the police officer which indicated that the person had just committed an offence. The mere fact that information had been provided may not be sufficient in a given situation, as the suspicion must be one that is formed on reasonable grounds. That will be a question of fact in each case.

Section 99(3), unlike subs (1) and (2), does not confer a power of arrest upon a police officer. It operates as a constraint on the powers conferred by subs (1) and (2). A police officer is prohibited 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. Those conditions are:

It follows that the State, in order to demonstrate that the police officer complied with s 99(3) of the Act, does not have to establish that it was necessary to arrest the person for the purposes of taking proceedings against him or her for the offence. Section 99(3) is enlivened when a police officer has arrested a person for the purpose of taking proceedings against that person for an offence. In that situation, the arrest is not lawful unless the State establishes that the conditions specified in s 99(3) are satisfied.

There was no dispute in the present case that Constable McColl arrested Mr Robinson for the purpose of taking proceedings against him for an offence. Accordingly, the State had to demonstrate that the conditions specified in s 99(3) were satisfied.

The conditions specified in s 99(3) of the Act incorporate the word “necessary”, which is not a defined term. The primary judge found that in Tilse v New South Wales, Neilson DCJ had concluded:

Tilse concerned the construction of “necessary” in s 99(3) which was, at that time, in the same terms as it was at the time of Mr Robinson’s arrest. Neilson DCJ explained at [123] that:

Neilson DCJ referred at [126], to the decision of O’Keefe J in Elcham v Commissioner of Police (2001) 53 NSWLR 7; [2001] NSWSC 614. In that decision, O’Keefe J, at [57], considered circumstances where “necessary” had been construed as meaning “reasonably necessary”, in the context of the Liquor Act 1982 (NSW), and concluded, at [60], that “the word ‘necessary’ [in the section of the Liquor Act under consideration] … is not to be understood in the sense of essential or absolutely necessary.” The defendant in Tilse had used these remarks from Elcham in support of a submission that “necessary” in s 99(3) should be construed as meaning “reasonably necessary”. That submission was rejected, with Neilson DCJ concluding, at [128], that the word “necessary” should be construed “in its original, or primary meaning, that is, it must be necessary to do so, not that it is reasonably necessary to do so”.

Neilson DCJ in Tilse rejected the contention that the word “necessary” was qualified by the word “reasonably”. Rather, it bore its ordinary meaning. We do not understand his Honour to have said that the word “necessary” in s 99(3) meant “absolutely necessary”, so as to imply some requirement additional to its ordinary meaning. If his Honour did so conclude he was in error.

All definitions of “necessary” in the Macquarie Dictionary are directed to something required or indispensable or imperative. Thus, when used as an adjective, it refers to something “that cannot be dispensed with”; when used as a noun, its meaning is, “something necessary or indispensable or requisite”.

The Shorter Oxford English Dictionary defines “necessary” to mean “that which is indispensable; an essential, a requisite”. In the online English Oxford Living Dictionary “necessary” is defined to mean “needed to be done, achieved … essential”.

In our opinion, this last definition is the most apt to the meaning of “necessary” in s 99(3) in its form at the time of Mr Robinson’s arrest. That is, “necessary” means “needed to be done” or “required” in the sense of “requisite”, or something “that cannot be dispensed with”, to pick up the language in the other two dictionaries, for one or more of the purposes specified in the sub-section. Given that meaning of “necessary” we agree, as was submitted by the State, that properly construed, the correct test for s 99 is that for which the State contended and which is set out above at [27].

As it was common ground, and is apparent from a consideration of the proper construction of s 99(3), that the primary judge applied the wrong test at [47] of his reasons, subject to the matters raised in the notice of contention, this, in our view, is sufficient for the appeal to be allowed.

That leaves for consideration whether the grounds contained in the notice of contention are made out. The grounds of contention upon which Mr Robinson relied, including the amendment made during the course of oral submissions, were as follows:

The terms of the notice of contention require a consideration of the evidence before the primary judge.

The arresting officer was Constable McColl. It was his state of mind, adjudged by reference to whether he had reasonable grounds for that state of mind, which was in issue.

Constable McColl gave evidence that, when he reported for duty on Sunday 13 October 2013, he was made aware by his supervising officer that an arrest was required and was provided with a number of documents, including Ms Singh’s statement and the COPS entry in relation to the interim AVO and its alleged breach.

In summary, the information in those documents included that Ms Singh had reported that there had been: disputed financial dealings between her and Mr Robinson resulting in a judgment against Mr Robinson, following which Ms Singh commenced insolvency proceedings against him; harassing and threatening conduct by Mr Robinson towards Ms Singh on social media; the making of bomb threats to the builders of the business premises Ms Singh was having fitted out; and bomb threats to the receptionists when the business was opened. The documents also included information that there had been a break in at Ms Singh’s business premises.

Ms Singh had also reported that on three separate occasions, including in the early hours of the morning, a Mini Cooper was parked in or near her driveway and there were flashing lights and what sounded like a police siren. On the first occasion that this occurred she had made enquiries of the police and ascertained that a police vehicle was not involved. The COPS report recorded that Ms Singh was “very fearful” of Mr Robinson and had moved out of her home as she did not feel safe.

The information in the documents also recorded that on Sunday 6 October 2013, Ms Singh received two telephone calls and a further telephone call on 7 October from a person whose voice she recognised as Mr Robinson’s. The calls were made from a private number. On each occasion he made threatening statements, as follows:

The reference to “Saturday” was understood to be a reference to the Miss Earth Australia Pageant of which Ms Singh was the President and which was to take place on Saturday 12 October 2013.

On 8 October, Ms Singh received four telephone calls from a private number, which she did not answer.

There was also reference in the documents to an email to Ms Singh, dated 6 October 2013, from Mr Robinson which stated:

The interim AVO was made on 9 October 2013. The terms of the interim AVO were as follows:

Mr Robinson attended the Sydney City Local Area Command at 12:29pm on 9 October and at 1:20pm was served with the interim AVO. The COPS report recorded that Mr Robinson gave a diametrically opposed version of events from that given by Ms Singh.

It was uncontested that Mr Robinson breached the interim AVO within hours of the order being served upon him. The breaches alleged were the making of two telephone calls and posting two messages on Ms Singh’s Facebook account. Whilst none of the messages contained threats of violence, in one telephone call Ms Singh was called “bitch” and in one Facebook posting she was called “a fraud”. In the other Facebook message she was accused of being “a liar and a fraud”.

At the time of reporting the breaches, Ms Singh stated she “was very stressed and feared for her safety”.

Mr Robinson pleaded guilty to the charge that led to his arrest.

In his evidence, Constable McColl stated that, before he went to Mr Robinson’s home to effect the arrest, he had read Ms Singh’s statement relating to the breaches and “looked up” the COPS report and Mr Robinson’s criminal record. Mr Robinson’s criminal record revealed that he had a criminal history of stealing and also of assault, although the last assault had been committed in 1992. All charges had been dealt with in the courts of petty sessions or the Local Court. A 2007 charge of destroy or damage property was dealt with by way of a s 10 bond and an order for the payment of compensation in the sum of $79.

Constable McColl gave evidence that based on the information available to him, he formed the opinion that Mr Robinson’s arrest was required:

Constable McColl stated that the arrest was necessary “[t]o prevent repetition of the offence occurring again”.

Constable McColl said in cross-examination that the Facebook posting constituted a breach of the interim AVO, albeit that it was of a “non-threatening nature”. He agreed that none of the breaches threatened personal violence and also agreed that the breach was at the “minor end”. He added, however, “a breach of the AVO … is serious … a serious offence”.

Constable McColl rejected the suggestion that he should have proceeded by other means and also rejected the suggestion that it was not necessary to arrest Mr Robinson. His evidence in examination in chief was that he “formed the opinion that an arrest was required” and in cross-examination, that he “felt it was necessary to arrest”.

Mr Robinson contended (contention (b)) that given the delay between the receipt of the complaint of the breach and the decision to arrest with no complaints in the meantime, the arrest when effected was objectively unnecessary.

The immediate difficulty with this contention is that it was never put to Constable McColl that the delay between the breaches and the arrest were such as to make it, to use the words of the contention raised by Mr Robinson, “objectively unnecessary” to arrest Mr Robinson. But in any event, given the material available to Constable McColl, including the nature of the conduct that constituted the basis for the making of the interim AVO and its immediate breach, there were reasonable grounds for his opinion that it was necessary to arrest to prevent a repetition of the offence, namely, another breach of the interim AVO.

This contention is rejected.

Contention (c) was directed to the nature of the alleged breaches of the interim AVO said to be “minor”, taken in conjunction with the police record that it was not clear where the truth lay as between Ms Singh’s and Mr Robinson’s versions of events. It was contended that the police should have spoken to Mr Robinson first before deciding whether to arrest him.

This submission overlooks the fact that there was evidence of harassing conduct by Mr Robinson in the form of the email dated 6 October 2013, being part of the conduct that formed the basis for the interim AVO. The evidence of breaches of the interim AVO within hours of the order being made, in the form of the Facebook posts, was also incontrovertible. Verbal or social media harassment is not to be lightly dismissed. This case was more serious in circumstances where Mr Robinson had been constrained by the interim AVO from engaging in the very conduct which constituted the breach. As Constable McColl stated in his evidence, a breach of an AVO is a serious offence.

Further, as was the case with contention (b), the evidentiary basis for this contention was not established. Constable McColl was never asked whether he could have or should have spoken to Mr Robinson before deciding to arrest him. All that was suggested to Constable McColl in cross-examination was that he “should have proceeded by other means”.

This contention is also rejected.

The last ground of contention was that Constable McColl did not effect the arrest as a consequence of the first four matters in [29] of his Honour’s judgment, reproduced above at [12]. For ease of reference, those matters were: Mr Robinson was an angry man who bore a strong animus against Ms Singh; Mr Robinson had stalked Ms Singh at her home; Mr Robinson had threatened to bomb Ms Singh’s professional premises; and Mr Robinson had threatened to bomb a pageant at the University of New South Wales.

Contrary to the assertion made in contention (d), each of the matters found by his Honour were matters that were contained within or were readily inferred from Ms Singh’s statement and the COPS report which Constable McColl took into account in coming to his decision to arrest Mr Robinson. This contention is also rejected.

As each of the grounds of contention upon which Mr Robinson relied have been rejected, it follows that the appeal should be allowed and the following orders made: