Robinson v State of New South Wales

1. [1]

   McCOLL JA: The appellant, Bradford James Robinson, appeals pursuant to leave to appeal granted on 20 February 2018 against Taylor SC DCJ’s decision of 3 August 2017, in which his Honour held that Mr Robinson’s arrest without a warrant by a Leading Constable Adam Smith on 22 December 2013 and subsequent detention by police was lawful. [1] In so doing, his Honour rejected Mr Robinson’s submission that his arrest was unlawful having regard to the fact that, at the time of his arrest, Constable Smith had not formed an intention to charge him with any offence.

2. [2]

   The respondent, the State of New South Wales (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). Mr Robinson brought proceedings against the SNSW claiming he had been wrongfully arrested, and thereby falsely imprisoned, and sought to recover damages.

3. [3]

   Mr Robinson relies upon a single ground of appeal. He submits that the primary judge erred in finding that his arrest and subsequent detention were lawful in circumstances where, at the time of the arrest, Constable Smith had not formed an intention to charge him with any offence.

4. [4]

   For the reasons that follow, I would allow the appeal.

Factual background

1. [5]

   The factual background is uncontroversial.

2. [6]

   On 9 October 2013, Mr Robinson was served with a Provisional Order (ex parte) Apprehended Personal Violence Order based upon a complaint made by a Ms Roselyn Singh.

3. [7]

   On 16 October 2013, the Local Court made an Apprehended Violence Order (AVO) against Mr Robinson in standard terms with additional orders that he must not approach or contact or enter the premises at which Ms Singh lived or worked.

4. [8]

   On 20 December 2013 Ms Singh complained to police that Mr Robinson had threatened her by emailing one of her employees, falsely claiming that her company was being wound up. Ms Singh’s complaint was recorded in a file, which the primary judge found Constable Smith had read earlier on the day of Mr Robinson’s arrest.

5. [9]

   After receiving the complaint, at 11.15am on Sunday, 22 December 2013, police, including Constable Smith, tried unsuccessfully to locate Mr Robinson.

6. [10]

   Mr Robinson voluntarily attended Day Street Police Station at 5pm on 22 December 2013 and was immediately arrested by Constable Smith who told him he was being arrested for breaching the AVO. Mr Robinson was offered, and accepted, the opportunity to participate in a record of interview. Constable Smith then conducted an interview with Mr Robinson. At 6.18pm, after the interview concluded, Mr Robinson was released without charge. [2]

7. [11]

   At the time Constable Smith arrested Mr Robinson, he had not decided to charge him with any offence. He gave evidence that he “did not believe there was enough to charge him.” [3] He said the decision whether to charge him depended on what Mr Robinson said in the interview. He said he did not charge him after the interview as Mr Robinson had given an explanation during it which led Constable Smith to believe further evidence would need to be obtained.

Legislative framework

1. [12]

   In the Second Reading Speech made on the introduction of the Law Enforcement (Powers and Responsibilities) Bill 2002 (NSW) which became the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), the Attorney General, the Hon Bob Debus, explained that the Bill was the outcome of the consolidation process envisaged by the Royal Commission into the New South Wales Police Service to help strike a proper balance between the need for effective law enforcement and the protection of individual rights. [4] In dealing with the powers relating to arrest, the Attorney General said that Pt 8 of the Bill “substantially re-enacts arrest provisions of the Crimes Act 1900 and codifies the common law.” [5]

2. [13]

   At the time of Mr Robinson’s arrest, Pt 1 (Preliminary) of LEPRA relevantly provided:

3. [14]

   Section 99 appeared in Pt 8 (Powers relating to arrest). [7] Note 2 at the commencement of Pt 8 stated “Safeguards relating to arrests by police officers, including the requirement to state the reason for an arrest, are set out in Part 15”.

4. [15]

   Section 99 relevantly provided:

5. [16]

   Section 99 had been significantly amended by the LEPRA Amendment Act with effect from 16 December 2013, six days before Mr Robinson’s arrest.

6. [17]

   Section 105, which also appeared in Pt 8, provided: [9]

7. [18]

   Section 107 in Pt 8 relevantly provided:

8. [19]

   The objects of Pt 9 (Investigations and questioning) as set out in Div 1 (Preliminary) s 109(b) and (c) include “to authorise the detention of a person who is under arrest for such a period despite any requirement imposed by law to bring the person before a Magistrate or other authorised officer or court without delay or within a specified period, and … to provide for the rights of a person so detained.”

9. [20]

   Section 113, which also appears in Pt 9, Div 1 provides relevantly:

10. [21]

    Part 9, Div 2 (Investigation and questioning powers) includes the following:

11. [22]

    Section 116 made provision for determining what a reasonable time is for the investigation period referred to in s 115. Section 117 identified certain times which could be disregarded in calculating the investigation period.

12. [23]

    Pursuant to s 121, also in Pt 9, Div 2, a person’s detention after arrest for purposes of investigation may count towards sentence (cf Crimes Act 1900, s 356W)

13. [24]

    Part 9, Div 3, deals with safeguards relating to persons in custody for questioning. Section 131(1) requires the “custody manager for a detained person [to] open a custody record in the form prescribed by the regulations for the person.” Section 131(2)(c) requires the custody manager to record the grounds for the person’s detention in the custody record for the person.

14. [25]

    Section 201 which appears in Pt 15 (Safeguards relating to powers) relevantly provided that:

Primary judgment

1. [26]

   The primary judge found, and Mr Robinson did not dispute at trial nor on appeal, that at the time of his arrest, Constable Smith suspected Mr Robinson had committed the offence of breaching the AVO. [10] His Honour also held that that Constable Smith had reasonable grounds for his suspicion that an offence had been committed. [11] Finally, relevantly, his Honour held that at the time of the arrest, Constable Smith was satisfied that Mr Robinson’s arrest was necessary to ensure his appearance before a court (s 99(1)(b)(iv), LEPRA) and because of the nature and seriousness of the offence (s 99(1)(b)(ix), LEPRA). [12]

2. [27]

   Mr Robinson’s primary challenge to the question whether Constable Smith was satisfied that his arrest was reasonably necessary to ensure that he appeared before a court was that Constable Smith had conceded that he had not determined at the time of the arrest whether he would charge Mr Robinson. [13] He argued that if, in the belief of Constable Smith, Mr Robinson might not be charged, Constable Smith could not be satisfied that an arrest was necessary to ensure that Mr Robinson appeared in court since his appearance in court might never be necessary. [14]

3. [28]

   Mr Robinson relied in this respect on Zaravinos v State of New South Wales, [15] where Bryson JA held that an arrest was unlawful as being for an extraneous purpose if made “for the purpose of questioning [the arrested person] and investigating the circumstances of the suspected offence or of any other offence”.

4. [29]

   The primary judge rejected Mr Robinson’s submission in this respect. His Honour held that if Mr Robinson’s interpretation of s 99(1)(b)(iv) were adopted:

5. [30]

   Accordingly, the primary judge held that Constable Smith was satisfied that Mr Robinson’s arrest was reasonably necessary to ensure that he appeared before a court within the meaning of the LEPRA, s 99(1)(b)(iv). [17]

6. [31]

   The primary judge also held that he was satisfied that Mr Robinson’s arrest was necessary because of the nature and seriousness of the offence such that the elements of the LEPRA, s 99(1)(b)(ix), were satisfied. [18]

Consideration

1. [32]

   The competing contentions are whether, as Mr Robinson submits, a police arrest without warrant is unlawful unless, at the time of arrest, the arresting officer intends to charge the person arrested or, as the SNSW frames Mr Robinson’s case, at the time of arrest an arresting police officer must have decided and intended to charge the plaintiff with an offence. Alternatively, as the SNSW contends, whether an arrest without warrant is lawful if effected for the purpose of investigating whether to charge the person arrested.

2. [33]

   The SNSW accepted in the course of oral submissions in this court that Constable Smith’s evidence that at the time of the arrest he had not decided if Mr Robinson was going to be charged was a sufficient evidentiary foundation for Mr Robinson’s submission that he was unlawfully arrested.

3. [34]

   Resolution of the issues raised on the appeal turns primarily upon issues of statutory construction. As emphasised most recently by the plurality in SZTAL v Minister for Immigration and Border Protection, [19] the starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, having regard to its context and purpose. Context should be regarded in its widest sense. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. [20]

4. [35]

   Notwithstanding the necessity to construe s 99 by reference to its text, the pre-existing law concerning the common law power of arrest is necessary context for the purposes of the construction exercise. [21] That is not just because the modern approach to statutory interpretation uses “context” in its widest sense to include such things as the existing state of the law, [22] but also because the LEPRA, s 4, presupposes the continued existence of a police officer’s powers at common law. [23]

5. [36]

   The SNSW however criticises Mr Robinson’s submissions as failing to grapple with the textual and contextual matters concerning s 99. It contends that, instead, Mr Robinson’s submissions proceed by reference to a body of case law decided by reference to other provisions of the LEPRA including s 99 as it stood prior to the LEPRA Amendment Act. While the SNSW accepts that the case law may be relevant to the construction of s 99 to the extent that any analogy is persuasive or general principle is relevant, it submits that cases on previous provisions are not binding with respect to the new form of s 99 and that judicial decisions are not substitutes for the text of the legislation. Such decisions should not be given primacy. [24] As much may be accepted. Nevertheless, as I explain below, earlier decisions on powers of arrest without warrant form part of the interpretative context, and inform the process of interpreting s 99.

6. [37]

   The SNSW emphasises the statement in Commissioner of Taxation v Consolidated Media Holdings Ltd, [25] that (footnote included):

7. [38]

   It is “plainly 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.” [26] There is “a legal immunity from arrest and from the threat of arrest unless and until the conditions governing the exercise of the arresting power are fulfilled.” [27]

8. [39]

   Finally, “the principle of legality favours a construction, if one be available, which avoids or minimises the statute’s encroachment upon fundamental principles, rights and freedoms at common law”. [28]

The text

1. [40]

   The SNSW accepts that the effect of s 4 of LEPRA was to preserve the common law power of arrest, although it argues that that power had, to a significant extent, been overtaken by the LEPRA (no doubt by reason of the words “Unless this Act otherwise provides expressly or by implication”) or, at least, by virtue of s 7, that the s 99 power of arrest without warrant was not inhibited by the continuation of the common law power.

2. [41]

   The SNSW recognises that an arrest is the start of a process which must end within a limited time, either by the person arrested being taken before an authorised officer or released pursuant to s 105. However, the SNSW argues that the fact that one of the two possible endings to the process is that the arrested person is charged does not mean that there must be a positive intention to charge that person at the time of arrest.

3. [42]

   It contends that the effect of Mr Robinson’s argument is to read in a third condition, namely that at the time of arrest a decision had to have been made by the arresting officer or his superior (s 99(2)) to charge the arrested person. The SNSW contends that there was no textual foundation for that contention. It concedes, however, that the requirement in s 99(3) to take the arrested person before an authorised officer “as soon as is reasonably practicable … to be dealt with according to law” supports Mr Robinson’s argument.

4. [43]

   That concession is properly made. As I explain below, at common law, the requirement to take the arrested person before an authorised officer is intended to enable that person to be charged and to seek to regain his or her personal liberty as soon as practicable either absolutely or on bail by a justice’s order. It is therefore unlawful for a police officer having the custody of an arrested person to delay taking that person before a justice in order to provide an opportunity to investigate that person’s complicity in a criminal offence, whether the offence under investigation is the offence for which the person has been arrested or another offence. [29]

5. [44]

   What the SNSW’s concession, and a contextual analysis of s 99, demonstrates is that common law principles are embedded in s 99, in particular, in ss 99(1)(a) and 99(3). It is necessary to turn to the common law at this stage to demonstrate why that is so. The principles of common law, expressly preserved by s 4, provide both contextual background to the LEPRA and inform its interpretation.

6. [45]

   “Arrest … ‘may be called the beginning of imprisonment’”. Those who arrest a person must justify the whole imprisonment and not its beginning alone. [30]

7. [46]

   Arrest is the first step in a criminal proceeding against a suspected person on a charge which is intended to be judicially investigated. [31] The power to arrest exists for the purposes of bringing the person arrested before a justice and conducting a prosecution. [32] The point at which an arrested person is brought before a justice upon a charge is the point at which the machinery of the law leading to trial is put into operation, the point from which the judicial process commences and purely ministerial functions cease. [33]

8. [47]

   The common law conferred on constables a power to arrest without warrant on suspicion on reasonable grounds of commission of a felony, but the authority to keep the person arrested in custody was limited “till he can be brought before a justice of the peace”. [34] At common law it was compulsory for a constable, in order to justify an arrest, to show that he had taken the arrested person without delay, and by the most direct route, before a justice, unless some circumstances reasonably justified a departure from these requirements. [35] An arrested person could not be detained for the purposes of being questioned. [36]

9. [48]

   Section 99(1)(a) substantially reflects s 352(2)(a) of the Crimes Act 1900 (NSW) considered in Bales v Parmeter, [37] albeit, whereas s 352(2)(a) enabled an arrest without a warrant where a constable had “reasonable cause [to] suspect”, s 99(1)(a) requires the suspicion to be held “on reasonable grounds”.

10. [49]

    In Bales v Parmeter, Jordan CJ held that s 352(2)(a) “like the common law … authorise[d] the [arresting officer] only to take the person so arrested before a justice to be dealt with according to law.” [38] In so holding, his Honour referred with approval to Clarke v Bailey, where Davidson J held the effect of s 352(2)(a) was “merely to reinforce the common law principle, and [was] not intended to give the constable discretion in the matter except to the same extent as existed before.” [39]

11. [50]

    In Foster, the appellant was arrested without warrant pursuant to s 352 of the Crimes Act, then relevantly in the same terms as in force when Bales v Parmeter was decided. It was common ground between the parties, and accepted by the plurality, that the appellant’s arrest was unlawful in circumstances where the police gave evidence at the trial to the effect that, without a confession by him, they “did not have any other evidence to charge him” and that, at the time of his arrest, “the police did not intend to charge him.” [40] The plurality did not, therefore, discuss the principles leading to their acceptance of this position. However, it is clear, in my view, that it followed from their Honours’ view that “the appellant’s arrest [had been] solely for the purpose of questioning, as distinct from the purpose of taking the appellant before a ‘Justice’ to be charged.” [41]

12. [51]

    A conclusion that at the time of an arrest without a warrant there should be an intention to charge the person arrested also flows from the common law requirement that the person arrested should be informed of the reason for the arrest. That meant that the arresting officer should inform the person arrested of the charge on which he or she was being arrested. That did not mean “technical or precise language” needed to be used; a statement of the act for which the person was arrested was sufficient. [42] The common law obligation to inform the person arrested of the reason for the exercise of the power of arrest is also found in the LEPRA, s 201(1)(c).

13. [52]

    In Christie, the House of Lords unanimously accepted Scott LJ’s explanation in the Court of Appeal of the rationale for the obligation to inform a person arrested without a warrant of the reason for his or her arrest. [43] That obligation is based, by way of analogy, on an arrest authorised by magisterial warrant, or proceedings instituted by the issue of a summons. [44] In such cases, the warrant or summons had to specify the offence and the warrant “in normal cases” had to be read to the person arrested. This was “for the obvious purpose of securing that a citizen who is prima facie entitled to personal freedom should know why for the time being his personal freedom is interfered with”. Scott LJ’s reasoning was that “if the law circumscribed the issue of warrants for arrest in this way, it could hardly be that a policemen acting without a warrant was entitled to make an arrest without stating the charge on which the arrest was made.” [45]

14. [53]

    Scott LJ’s conclusion, Viscount Simon pointed out, was supported by “direct authority, both in text books of acknowledged weight and in cases actually decided, that in normal circumstances an arrest without warrant either by a policeman or by a private person can be justified only if it is an arrest on a charge made known to the person arrested”. [46]

15. [54]

    Christie reflects the common law in New South Wales in regard to the obligation to notify an arrested person of the reasons for the arrest. [47]

16. [55]

    Christie was applied in Dowse v New South Wales, [48] where Basten JA stated “an arrest will not be valid merely because the officer believes that an offence has been committed, in circumstances where the officer has no intention of charging the person or having the person charged with that offence”.

17. [56]

    The SNSW contended that Basten JA’s remarks should be understood in the light of a case where the arresting officer has decided not to charge the arrested person with an offence, presumably as opposed to this case, where Constable Smith had not determined to charge Mr Robinson with any offence and gave evidence that he “did not believe there was enough to charge him.”

18. [57]

    I do not accept the SNSW’s submission in this respect. After the passage to which I have referred Basten JA observed that, “[i]f that were not so, the legal requirement that the person arrested be informed of the true grounds of the arrest would be rendered nugatory”. [49] In my view his Honour’s statement is equally applicable to the circumstance that at the time of the arrest, the arresting officer had not determined to charge the arrested person. The effect of both the common law and s 201 of the LEPRA is that the person arrested must know why he or she has been deprived of his or her liberty. The only purpose for which that can be done is to charge the person with an offence and take him or her before an authorised officer as soon as possible.

19. [58]

    An obligation to inform the person arrested without warrant of the charge on which he or she is being arrested, presupposes that a decision has been made at the time of the arrest to so charge that person.

20. [59]

    It is uncontroversial, and consistent with the obligation to inform the arrested person of the reason for the arrest, that whether at common law, or pursuant to the LEPRA s 99, the arresting officer’s state of mind to sustain the legality of the arrest, “must exist as a matter of fact at the time of the arrest”. [50]

21. [60]

    As I have earlier indicated, the proposition that the arresting officer must intend to charge the person arrested at the time of arrest is consistent with the obligation in s 99(3) to take the person arrested as soon as is reasonably practicable before an authorised officer to be dealt with according to law. Section 99(3) reinforces the common law principle that it was compulsory for a constable, in order to justify an arrest, to show that he had taken the arrested person without delay, and by the most direct route, before a justice, unless some circumstances reasonably justified a departure from these requirements. [51]

22. [61]

    The common law requirement, reflected in s 99(3), to take the person arrested before a justice “as soon as practicable” allowed reasonable time for the arrestors to formulate and lay appropriate charges for the purposes of bringing a person before a justice. [52] It did not empower “the police … to detain an arrested person to enable them, by further investigation, to gather the evidence necessary to support a charge.” [53]

23. [62]

    The s 99(3) requirement recognises the ordinary right to liberty of the citizen by ensuring that an accused person is transferred as soon as practicable after being charged by the executive branch of government to the judicial branch of government where the question of bail can be independently considered. [54]

24. [63]

    The proposition that proceedings must be commenced against a person arrested pursuant to s 99 “as soon as is reasonably practicable” is also supported by s 107 of the LEPRA set out above (at [18]). It is implicit in s 107 that the power to arrest without a warrant has been exercised in order to commence proceedings against that person. Coupled with s 99(3), those proceedings must be commenced as soon as reasonably practicable.

25. [64]

    The consequence of this analysis is that the power to arrest without a warrant expressed in s 99(1)(a), carrying with it the obligation to inform the person arrested of the reason for the exercise of the power of arrest (s 201(1)(c)) means that at the time of arrest, the arresting officer must inform the person arrested of the charge to be preferred. To do so, the arresting officer must have an intention to so charge the arrested person.

26. [65]

    Thus, properly understood, s 99(1)(a) requires the arresting officer at the time of an arrest without warrant to have formed the intention to charge the arrested person and to advise the arrested person of that charge in the terms I have earlier discussed.

27. [66]

    Section 99(1)(b) is cumulative on s 99(1)(a). It is notable that it does not confer a power upon the police to investigate the offence. Such an investigation can only be undertaken pursuant to Pt 9.

28. [67]

    The SNSW does not contend that an intention to investigate per se suffices as the basis for an arrest without a warrant. It accepted that in order for Mr Robinson’s arrest to have been lawful, it was necessary that it satisfy both s 99(1)(a) and (b).

29. [68]

    The SNSW submits that s 99(1)(b) sets out exhaustively the purposes for which a person may be arrested. It argues that Mr Robinson seeks impermissibly to add another purpose. It also contends that various of the s 99(1)(b) purposes are inconsistent with implying a requirement of a decision, or intention, to charge the arrested person at the time of arrest.

30. [69]

    In this respect the SNSW points to s 99(1)(b)(ii) (to stop the person fleeing from a police officer or from the location of the offence); s 99(1)(b)(iii) (to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false); s 99(1)(b)(v) (to obtain property in the possession of the person that is connected with the offence); s 99(1)(b)(viii) (to protect the safety or welfare of any person (including the person arrested)); and s 99(1)(b)(ix) (because of the nature and seriousness of the offence) as being matters directed to the investigation of an offence, or, more generally to the protection of the public, rather than to laying a charge.

31. [70]

    I cannot accept that submission. As Mr Robinson submitted, the s 99(1)(b)(ii) power to stop the arrested person fleeing is consistent with the posited requirement being necessary only if it is proposed by the arresting officer to take the person before a court to answer a charge as required by s 99(3). Second, the s 99(1)(b)(iii) power enabling inquiries to be made to establish a person’s identity is arguably only necessary to obtain that information if it is proposed that the arrested be charged. Third, the s 99(1)(b)(v) power to obtain property in the possession of a person can only be necessary for the purpose of securing evidence to be used against that person when prosecuted. Fourth, the s 99(1)(b)(viii) power to protect the safety or welfare of any person on its face would be directed to protecting such people who may be adversely affected by the offence the police officer suspects the arrested person as having committed or was committing at the time of the arrest. Fifth, the s 99(1)(b)(ix) power to arrest because of the nature and seriousness of the offence appears to be directed to the proposition that the arrested person may repeat the offence the police officer suspects that person has committed or was committing at the time of the arrest.

32. [71]

    Finally, while still dealing with Pt 8, s 105, which enables a “police officer [to] discontinue an arrest despite any obligation under this Part to take the arrested person before an authorised officer to be dealt with according to law”, does not, in my view, assist the SNSW. As Mr Robinson submitted, it depends upon there having been a prior lawful arrest.

33. [72]

    The SNSW also placed great weight on the provisions of Pt 9 permitting detention of the arrested person for the purposes of investigation. It contends that, while the primary judge recognised that “it is not lawful to arrest for the purpose of investigation … because it is not a permissible reason under s 99”, his Honour also correctly stated that it was “a different question whether a person properly arrested may nevertheless be detained for the purposes of investigation, as s 109(4) [sic, s 99(4)] permits.” [55] As will be recalled, s 99(4) provides that “[a] person who has been lawfully arrested under [s 99] may be detained by any police officer under Part 9 for the purpose of investigating …”.

34. [73]

    As will be apparent, the route to Pt 9 proceeds via the express requirement in both Pt 8 (s 99(4)) and Pt 9 (s 113(1)(a)) that such further investigation may only be undertaken if there has been a lawful arrest, a requirement also implicit in s 114(1). However, a lawful arrest can only be effected pursuant to s 99 if both s 99(1)(a) and (b) are satisfied.

35. [74]

    The position is analogous to s 353A(1) of the Crimes Act considered in Clarke v Bailey. Section 353A(1) provided that, “[w]here a person is in lawful custody upon a charge of committing any crime or offence, any constable may search his person and take from him anything found upon his person.” Sub-sections (2) and (3) were also predicated upon the arrested person being “in lawful custody”. Davidson J held that the “terms of the three sub-sections to [s 353A] indicate clearly that the intention of the Legislature was directed to the time when an arrested person is in custody after a formal charge had been laid against him”. [56] [Emphasis added.] Such, in my view, is equally the case in relation to s 99(4).

State of mind to effect an arrest

1. [75]

   One of the reasons the primary judge gave for rejecting Mr Robinson’s submission that an arrest was unlawful if made for the purpose of questioning or investigating the person arrested was his Honour’s concern that “a charge requires reasonable and probable cause, namely a positive belief and a sufficient (or reasonable) basis for the belief (see A v New South Wales [57] ), a higher obligation on the police officer to that imposed by s 99(1)(a), which requires only a suspicion on reasonable grounds.” [58]

2. [76]

   In supporting this aspect of the primary judge’s reasons, the SNSW submitted that in none of the early authorities dealing with s 352(2) of the Crimes Act, such as Bales v Parmeter, did the court consider what the SNSW contends is the differing mental states relating to the decision to arrest and the decision to prosecute.

3. [77]

   It is not the case that previous authorities did not consider the mental state relating to the decision to arrest and the decision to prosecute in the context of an arrest without warrant. However, it is apparent that the courts did not draw the distinction for which the SNSW contends. Thus, in Bales v Parmeter, a case concerning both unlawful arrest and false imprisonment, Jordan CJ held: [59]

4. [78]

   The phrase “with reasonable cause” reflected s 352(2)(a) of the Crimes Act as then in force.

5. [79]

   Mason and Brennan JJ spoke to like effect in Williams, [60] a case concerning unlawful detention as a basis for excluding evidence of records of interview containing confessions allegedly made to the police by the applicant, where their Honours explained:

6. [80]

   When the LEPRA was enacted, the phrase “with reasonable cause” in s 352(2)(a) of the Crimes Act was not repeated. Rather, as I have said, s 99(2) empowered a police officer to arrest a person without a warrant on suspicion “on reasonable grounds” that the person had committed an offence under any Act or statutory instrument. That language has been continued in the present s 99. Accordingly, Jordan CJ’s statement in Bales v Parmeter would now be:

7. [81]

   The test for “reasonable and probable cause” in this context conforms to the state of mind required to be held by the person arresting the person without warrant pursuant to s 99(1)(a). There are not two states of mind. Rather, on this approach the state of mind of the arresting officer which justifies the arrest of a person without warrant is also sufficient to found a finding that the arresting officer who charges the person arrested had “reasonable and probable cause” to do so.

8. [82]

   I do not accept that either A v NSW or George v Rockett [62] (discussed below) lead to a different conclusion.

9. [83]

   A v NSW concerned, relevantly, the test to be applied to determine for the purpose of the tort of malicious prosecution that the defendant acted without reasonable and probable cause. Consideration of that question involved, in part, consideration of the five conditions Jordan CJ held in Mitchell v John Heine & Son Ltd [63] had to be met if a person was to have reasonable and probable cause for prosecuting another for an offence. To succeed on the issue of reasonable and probable cause the plaintiff had to establish “that one or more of these conditions did not exist”. The plaintiff could do this “by proving, if he can, that the defendant prosecutor did not believe him to be guilty, or that the belief in his guilt was based on insufficient grounds.” [64]

10. [84]

    After an extensive consideration of Mitchell, the question whether it was inconsistent with observations by Dixon J in Sharp v Biggs, [65] (the plurality held it was not), [66] the plurality held that Jordan CJ’s five conditions were not, and could not have been, intended as “directly or indirectly providing a list of elements to be established at trial of an action for malicious prosecution.” [67]

11. [85]

    When the plurality considered the issue of what is absence of reasonable and probable cause, their Honours explained that there are two kinds of inquiry to determine that issue: one subjective (what the prosecutor made of the available material) and the other objective (what the prosecutor should have made of that material). [68]

12. [86]

    The subjective issue concerns the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion. [69] As their Honours explained, “absence of reasonable and probable cause will not in every case be shown by demonstrating that the prosecutor had no positive belief that the accused person was, or was probably, guilty.” [70] Insofar as the subjective test was concerned, the plurality concluded that “[t]he expression ‘proper case for prosecution’ is not susceptible of exhaustive definition without obscuring the importance of the burden of proving the absence of reasonable and probable cause, and the variety of factual and forensic circumstances in which the questions may arise. … [I]t will require examination of the prosecutor’s state of persuasion about the material considered by the prosecutor.” [71]

13. [87]

    The objective aspect of an allegation of absence of reasonable and probable cause is “to an objective standard of sufficiency”, resolution of which is “ultimately one of fact”, depending “upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution.” [72] That is to say, the objective aspect turns upon an analysis of the prosecutor’s subjective state of mind based on the materials to which he, she or it had regard in either setting the processes of the criminal law in motion or continuing a prosecution.

14. [88]

    This two-step test for determining the validity of a warrantless arrest pursuant to the previous s 99 was accepted in Dowse, [73] where Basten JA held that “there are two elements to be satisfied for a warrantless arrest to be valid, namely 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” that the person being arrested “is committing or has committed an offence”. [74] This is to ensure that “[t]he arresting officer is held accountable”. [75] “Accountable” is clearly used in the sense of the arresting officer being accountable for the legality of the arrest.

15. [89]

    George v Rockett concerned the proper construction of s 679 of The Criminal Code (Qld), a provision concerning a justice issuing a search warrant which required a sworn complaint going to issues of both reasonable grounds for suspicion and belief. It was in that context that the High Court referred to the proposition that “suspicion and belief are different states of mind … and the section prescribes distinct subject matters of suspicion on the one hand and belief on the other.” [76] Their Honours observed that the “facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for suspicion must be shown.” [77]

16. [90]

    That statement recognises, rather than excludes as the SNSW appears to contend, the proposition that facts which can reasonably ground a suspicion may be sufficient reasonably to ground a belief. It will turn on the facts of each case. As much is apparent as I have sought to explain from Bales v Parmeter and Williams. As was said in George v Rockett, when used in a composite phrase such as that in s 99(1)(a) (suspects on reasonable grounds), suspicion “requires the existence of facts which are sufficient to induce that state of mind in a reasonable person”. [78]

17. [91]

    Although I accept that in Bales v Parmeter Jordan CJ spoke in terms of the police officer “proving that he, with reasonable cause suspected …”, the outcome of such a factual finding was to establish “reasonable and probable cause” for arresting and imprisoning the defendant. It is plain that his Honour was of the view that if the police officer proved the relevant suspicion was held, that would demonstrate the relevant belief to ground a finding of “reasonable and probable cause” to which his Honour referred three years later in Mitchell. [79]

18. [92]

    The position is made even plainer in Mason and Brennan JJ’s reasons in Williams from which it is apparent that the information held in the case of an arrest on suspicion based on reasonable grounds (now of course the language of s 99(1)(a)) will, where there is evidence to the effect to which their Honours referred, sustain a finding of reasonable and probable cause to prosecute, that is to say, to charge a person.

19. [93]

    On the SNSW’s submission, and the primary judge’s reasons, no arrest which conformed either to the common law test of “arrest without warrant on suspicion on reasonable grounds of commission of a felony” or the like s 99(1)(a) requirement, could be an arrest with “reasonable and probable cause” for the purposes of the tort of malicious prosecution. The position may differ, of course, as the prosecution is maintained. This is because, as explained in A v NSW, [80] an action for malicious prosecution has a temporal element, and necessarily directs attention to the material the prosecutor had available for consideration when deciding whether to maintain the prosecution.

20. [94]

    The proposition that there is a different state of mind to charge a person from the state of mind warranting a person being arrested (whether or not with a warrant) is inconsistent with the authorities to which I have referred.

21. [95]

    Moreover, as a matter of principle it does not, in my mind, withstand scrutiny. This is particularly so when it is recognised that the purpose of arrest is to charge the person arrested, that is to say, to set the processes of the criminal law in motion.

22. [96]

    In my view the primary judge fell into error in drawing a distinction between the state of mind to arrest and the state of mind to prosecute.

Context: previous cases

1. [97]

   The SNSW relies upon a number of cases decided under previous statutory iterations of the power of arrest to contend that case law did not establish as broad a proposition as that for which Mr Robinson contends.

2. [98]

   The SNSW contended that Gleeson CJ’s reasons in Walsh, [81] decided when the statutory power of arrest was found in Crimes Act, s 352(2), were consistent with its submission that the arresting officer did not have to intend to charge the person at the time of the arrest.

3. [99]

   In Walsh, the police officers who arrested the appellant at the direction of a senior officer did not charge him immediately because they were waiting for the senior officer to arrive. They expected the senior officer both to question and charge the appellant. Gleeson CJ held that “the question whether if they had regarded it as necessary or appropriate to do so, they could have obtained enough information to charge the appellant themselves, was not explored in evidence”.

4. [100]

   The Court of Criminal Appeal heard argument on the appeal to the effect that on the facts as found there had been an unlawful arrest or detention of the appellant and that, in those circumstances, the trial judge should have exercised a discretion to reject evidence of admissions the appellant was said to have made.

5. [101]

   Gleeson CJ rejected the appellant’s submission that it was unlawful for the police officers to arrest him if they did not have sufficient knowledge or information about the crimes of which he was suspected to charge him then and there. His Honour said [82] in the passages on which the SNSW relied:

6. [102]

   The SNSW contends that if Mr Robinson’s submissions were correct, the absence of an intention on the part of the junior officers to charge the appellant should have been fatal to the lawfulness of his arrest.

7. [103]

   I would not accept that submission. First, immediately preceding the first passage quoted by the SNSW, Gleeson CJ observed that “[a]s the High Court pointed out in Williams …, and as this Court has pointed out on numerous occasions, it is of the utmost importance that police officers pay proper regard to their obligation to take an arrested person before a court or justice as soon as practical.” As is apparent from the passage I have quoted, his Honour also referred to the evidence the trial judge accepted from “the police officers [who] were adamant in their denials that the appellant was being held solely for questioning (cf Williams 161 CLR 278 at 313)”.

8. [104]

   In the passage to which Gleeson CJ referred, Wilson and Dawson JJ emphasised the common law obligation that an arrested person should be taken before a justice as soon as is reasonably possible and that neither the common law nor s 34A(1) of the Justices Act 1959 (Tas) there under consideration permitted delay merely for the purpose of further investigation either of the offence for which the person was arrested or of any other offence or offences. That statement was preceded by their Honours’ statement on the previous page of Williams that, “there must be reasonable time to formulate and lay appropriate charges for the purpose of bringing a person before a justice.” [83] It is clear that Gleeson CJ was accepting that the junior officers had not arrested the appellant to interrogate him, and expected the senior officer to charge him. The intention to charge the appellant was held contemporaneously with the appellant’s arrest, albeit it was held by the senior officer.

9. [105]

   Gleeson CJ’s reasons also have to be understood in the context of the facts more fully set out in Samuels JA’s reasons. As his Honour explained, the senior officer gave evidence that when he arrived at Flemington police station where the appellant was being held, he had already decided to charge him with two of the charges of armed robbery upon which he was ultimately arraigned. In Samuels JA’s view, [84] applying the doctrine of principal and agent, there was no reason why the senior officer’s “reasonable suspicion that the appellant had committed two armed robberies should not be attributed to the arresting police so as to make the arrest lawful.” His Honour added that if the doctrine were to be extended to circumstances such as those before the court, “the arresting officers ought to be put in possession of the details of the charge before they are dispatched to take up the suspect; or they should be in the position to obtain those details immediately after the arrest has been made.”

10. [106]

    Next, the SNSW submits that in Clyne v New South Wales [85] this Court had rejected the proposition for which Mr Robinson contends. In Clyne, Macfarlan JA rejected a submission by Ms Clyne to the effect that the trial judge had erred in rejecting her submission that she had been wrongfully arrested because those who arrested her did not intend to take her before an authorised officer to be dealt with according to law but, rather, had arrested her for the purpose of questioning. [86] Macfarlan JA held that the trial judge had not erred as s 352(2), Crimes Act, as in force at the time of Ms Clyne’s arrest (15 October 2003), “neither explicitly nor implicitly authorised arrests only if they were effected for the purpose of taking the person arrested before an authorised Justice.” [87]

11. [107]

    Macfarlan JA also held that “[c]onsistently with ss 356C and D, the arresting officer’s intent at the time of arrest might lawfully be only to question the person and deal with him or her as required by s 356C(4), that is, release the person or bring him before an authorised Justice.”

12. [108]

    Macfarlan JA’s conclusion was, as the SNSW accepts, reached without reference to the authorities on which Mr Robinson relies. However, in reaching this conclusion, his Honour agreed with the view to like effect expressed by Adams J in Director of Public Prosecutions v Nicholls. [88]

13. [109]

    In DPP v Nicholls, Adams J accepted that nothing in s 352(2) of the Crimes Act qualified the common law principle “that there is no power to detain a citizen for the purpose of questioning him or her, still less that the intention to do so could justify a delay in bringing the arrested person before a justice in as a short a time as is reasonably practicable.” [89] His Honour referred to passages in Williams as supporting that proposition. [90] However, Adams J reached his conclusion that this principle did not apply on the facts he was considering by reference to Pt 10A of the Crimes Act. [91]

14. [110]

    In DDP v Nicholls, Adams J appears to have accepted the DPP’s submission that Mr Nicholls had been detained under s 356C in Pt 10A of the Crimes Act (substantively, relevantly, in the same terms as s 114 of LEPRA) by reason of the expanded definition of “under arrest” in s 355 (cf s 110(2) LEPRA). It was in that context, as I understand Adams J’s reasons, that his Honour held such an arrest might lawfully be for the purposes of investigation. It was that reasoning which Macfarlan JA applied in Clyne. [92]

15. [111]

    However, after DPP v Nicholls was decided, the Court of Criminal Appeal reached a contrary conclusion in R v Dungay. [93] In that case, Ipp AJA held that an arrest solely for investigative purposes was unlawful. In the course of doing so, his Honour held that lawful detention for the purposes of investigation pursuant to Pt 10A of the Crimes Act was dependent upon lawful arrest having been effected, referring to s 356B(1)(a), s 356C(1) and s 356C(2). [94] It does not appear that R v Dungay was drawn to the Court’s attention in Clyne. It is directly contrary to the conclusion Adams J reached in DPP v Nicholls. This court will follow decisions of the Court of Criminal Appeal unless convinced they are plainly wrong. [95] In my view R v Dungay was not “plainly wrong”, rather, it was correct. Regrettably, it does not appear to have been drawn to the court’s attention in Clyne. It follows, in my view, that Clyne was decided per incuriam and should not be followed.

16. [112]

    The SNSW also relied upon Dowse as having been incorrectly decided because the Court was not referred to Clyne. As I have earlier explained (at [55]-[57]), I disagree with the SNSW’s submissions concerning Dowse independently of the fact Clyne was not referred to. Having regard to my conclusion concerning Clyne, the failure to refer to it in Dowse cannot advance the SNSW’s case.

17. [113]

    What is apparent from an examination of the authorities throughout the various iterations of the statutory power to arrest without warrant is that where the requirement to take person arrested before a justice or an authorised officer is limited by words such as “as soon as practicable” [96] or “without unreasonable delay” [97] it cannot be extended to provide time for interrogation.

18. [114]

    Contrary to Clyne and DPP v Nicholls, and as I have already explained, that decision cannot be reached insofar as Pt 9 of LEPRA is concerned, unless there has been a lawful arrest pursuant to Pt 8.

Context: the LEPRA Amendment Act

1. [115]

   Finally, the SNSW contended that if there were any doubt about its submissions concerning the text and previous authorities, such doubt was dispelled by the context provided by the LEPRA Amendment Act which introduced the current form of s 99 and subsection (3) into s 105. It relied, in this respect, on the Second Reading Speech to the LEPRA Amendment Act and on a report by the former shadow Attorney General, Mr Andrew Tink, and the former police minister, the Honourable Paul Whelan, [98] which it contended were extrinsic materials legitimately to be taken into account in construing s 99(1), LEPRA.

2. [116]

   In my view, whatever use may be made of the Tink/Whelan report, it should be noted, as the SNSW acknowledges, for its statement that “[t]he intent of the [proposed] legislation is not to allow police the power to arrest in order to investigate”. [99] Somewhat inconsistently with this observation, in the next paragraph the authors refer to the then proposed s 99(1)(b)(v) (which was ultimately enacted) as having “been drafted in such a way to allow police to arrest to obtain property, without conferring a wider power allowing police to arrest for the purpose of investigation.” Elsewhere, the Tink/Whelan report states that subsection 3 of s 105 was to be included “for abundant caution and transparency”. [100]

3. [117]

   In addition, the SNSW relies on the Second Reading Speech to the LEPRA Amendment Act in which the premier, the Hon Mr Barry O’Farrell, described its purpose as being “to ensure that police have clear, simple and effective powers of arrest to protect the community”. [101]

4. [118]

   In reliance on these extrinsic materials, the SNSW submits that the “features” of the new section 99 as compared to its predecessor sat uneasily with a continued insistence that the purpose of arrest must be to bring the arrested person before an authorised officer as soon as reasonably practicable, all the more so when s 99 was “now linked more strongly to the investigative provisions in Pt 9 by the presence of s 99(4)”.

5. [119]

   For the reasons I have earlier given, the pathway to Pt 9 lies in there having been a lawful arrest under Pt 8.

6. [120]

   The extrinsic material to which the SNSW refers, does not, in my view, assist its submissions. In any event, it should be borne in mind that such material “cannot be determinative: it is available as an aid to interpretation” and cannot displace the text but can illuminate its meaning. [102] In my view the extrinsic materials to which the SNSW refers cast no light which supports its submissions.

Conclusion

1. [121]

   In NAAJA v NT, [103] the plurality described as “an obvious application of the principle of legality that clear words are required if a statute is to authorise holding an arrested person in custody for a purpose other than for the purpose of charging that person and bringing him or her before a justice of the peace or court as soon as is practicable if he or she is not earlier released on bail or unconditionally.” In my view, such clear words are not found in the LEPRA.

2. [122]

   The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. [104] While the text is both the starting and the end point, [105] the meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. [106]

3. [123]

   While it has been said that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”, [107] in the case of s 99 both its text, logic and context, as well as the overall logic of the LEPRA support Mr Robinson’s contention.

4. [124]

   As is apparent from the textual analysis of the LEPRA, in particular s 99, nothing in the LEPRA expressly requires the police to charge a person arrested without a warrant. But that must occur at some stage. The SNSW accepts that that obligation is embedded in the s 99(3) requirement to take a person before an authorised officer, unless the person is released. As I have said, that interpretation is also supported by s 107 which is found in Pt 8.

5. [125]

   Further, nothing in s 99 expressly permits the police to interview the person arrested without warrant to determine whether he or she committed the offence referred to in s 99(1)(a). The s 99(1)(b)(iii) power to make inquiries as to the arrested person’s identity “if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false”, would presumably permit asking questions of the arrested person, but confined to the subject of the power.

6. [126]

   The only ability to detain and interview the arrested person to “investigat[e] … the person’s involvement in the commission of an offence” [108] is found in Pt 9. As I have explained, the route to Pt 9 is found in Pt 8, s 99(4) of which proceeds on the premise there has been a lawful arrest pursuant to s 99.

7. [127]

   The consequence is first, that the intention to charge the arrested person must have been formed at the time of the arrest pursuant to s 99 and, second, subject to the confined s 99(1)(b)(iii) power, the arrested person cannot be interviewed in relation to the s 99(1)(a) offence (or any other, I would add out of abundant caution). Logic dictates that the decision to charge must also have been made at that time.

8. [128]

   Constable Smith had not made any such decision. Rather, he had not decided if Mr Robinson was going to be charged. Consistently with that state of mind, he did not inform Mr Robinson of the reason for his arrest. He arrested Mr Robinson in order to interview him in relation to the reported breach of the AVO.

9. [129]

   Mr Robinson’s arrest was, accordingly, unlawful.

Orders

1. [130]

   I propose the following orders:

   1. (1)

      Appeal allowed.

   2. (2)

      Set aside the orders of Taylor DCJ and in their place make the following orders:

   3. (3)

      Respondent to pay the appellant’s costs of the appeal and the application for leave to appeal.

2. [131]

   BASTEN JA: On 22 December 2013, the appellant, Bradford James Robinson, was arrested when he voluntarily attended a Sydney police station in response to a request from police. The sole question in this case is whether the arrest of the appellant was lawful in circumstances where the arresting officer conceded that he did not have an intention to lay charges when he carried out the arrest. The appellant contends that such an intention was an essential precondition to a lawful arrest. The State contends that the essential preconditions are to be found in s 99(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“Law Enforcement Act”) and they do not include an intention to charge.

3. [132]

   Although the State insisted that the question should be answered by reference to the terms of the Law Enforcement Act, as is often the case, the statute uses language having a specific legal meaning which provides essential context in which to understand its operation. [109] It is necessary to start with a correct understanding of the common law. [110] That is not to deny the importance of s 99 of the Law Enforcement Act in identifying the powers of a police officer to arrest without a warrant. Nor is it to accord pre-emptive force to the principle of statutory interpretation known as the principle of legality. That principle requires a clear statement of legislative intent in order to construe a statute as impairing or overriding a fundamental right or freedom accorded to individuals under the common law, or as interfering with the general system of administration of law.

4. [133]

   This was the approach adopted by all members of the majority in the High Court in considering the scope of police powers in North Australian Aboriginal Justice Agency, to which further reference will be made below.

5. [134]

   The need to identify relevant common law principles arises, in further part, because the Law Enforcement Act specifically addresses the relationship between its provisions and the common law in s 4:

6. [135]

   All these matters aside, it is necessary to identify the scope and operation of the common law powers of a constable to carry out an arrest without warrant in order to test the appellant’s description of the limitation upon which he relies. Without undertaking that exercise it is not possible to say whether the statute varies the limitation, either expressly or by implication. The fact that it does not do so expressly will be unsurprising if the limitation does not arise in the terms contended for.

7. [136]

   The conclusion reached below is that in legal terminology “arrest” is generally used to identify that deprivation of liberty which is a precursor to the commencement of criminal proceedings against the person arrested, and which may be justified as necessary for the enforcement of the criminal law. There is no indication in the Law Enforcement Act that it is used in any other sense. Accordingly, an arrest without warrant in exercise of the power conferred by s 99(1) of the Law Enforcement Act is not a valid arrest unless carried out for that purpose.

Arrest under the general law

1. [137]

   The common law accepted that a police constable had power to arrest and detain a person without warrant upon holding a reasonable suspicion that the person was committing or had committed a felony. Other persons could arrest in such circumstances, but the arrest would only be lawful if the person arrested had in fact committed the offence. [111] The power, even for a police officer, to arrest without warrant for a lesser offence depended upon statute rather than the common law.

2. [138]

   That power has long since been extended to cover other offences, in the process providing a statutory basis for the common law powers of arrest. As the categorisation of crimes as felonies and misdemeanours has been abandoned it is more accurate to speak of general law powers, rather than common law powers. Thus, s 352 of the Crimes Act 1900 (NSW), as enacted, provided (not for the first time):

3. [139]

   The predecessor to s 352 was s 429 of the Criminal Law Amendment Act of 1883 (46 Vic. No.17), which provided:

4. [140]

   Those provisions expanded the common law power of a constable, and indeed, in subs 352(1), the powers of other persons. The power to arrest without warrant on suspicion in subs 352(2) extended to the same crimes, namely statutory offences and felonies. Nevertheless, this was not a codification of the law relating to arrest. For example, it said nothing about how an arrest was to be carried out; there was no reference to the need to communicate the intention to arrest and, if the person does not submit, to at least touch the person. [112] Nor, importantly for present purposes, was there any reference in these sections to the obligation of the arresting officer to notify the person of the reason for the arrest.

5. [141]

   What must be conveyed to the arrestee is not necessarily the charge, but the conduct in respect of which the person is being arrested. Thus, in Christie v Leachinsky, Lord Simonds stated that “if a man is to be deprived of his freedom he is entitled to know the reason why.” [113] Lord Simonds continued:

6. [142]

   As was made clear in Christie, the underlying principle was one that might today be described as procedural fairness. It was necessary to explain the reason both to justify the deprivation of liberty and to allow the person an opportunity to provide an immediate explanation to allay the suspicion underlying the arrest.

7. [143]

   The case law accepted that s 352 of the Crimes Act represented an expansion of common law powers of arrest without warrant, and not their displacement. In one such case, Clarke v Bailey, [114] the plaintiff sued for damages for an unlawful arrest and search. He was found to have been lawfully arrested, but was subsequently taken to a hotel and searched without lawful authority. The Full Court upheld the jury’s award of damages in respect of the post-arrest conduct. The Court stated: [115]

8. [144]

   Authority for the common law constraint was found in Wright v Court (1825). [116] It has been affirmed in various jurisdictions over the years. [117] It is sufficient for present purposes to note that Clarke v Bailey was applied in Bales v Parmeter, [118] Jordan CJ stating: [119]

9. [145]

   As will be discussed below, the Law Enforcement Act varies the constraints imposed on police by these authorities. However, consistently with the appellant’s submissions, there is support in Clarke and Bales v Parmeter for the view that the arresting officer must have had an intention at the time of arrest of taking the plaintiff before a magistrate, or the arrest would have been invalid.

10. [146]

    Counsel for the State submitted that there is an internal inconsistency or incoherence in this approach. That is because the power of arrest under s 99 of the Law Enforcement Act is expressly conditioned upon a reasonable suspicion that the person arrested has committed an offence, or as it was earlier described in s 352 of the Crimes Act, the person should “with reasonable cause” suspect that the person has committed the offence. On the other hand, it is now generally accepted that, to lay a charge, an informant must have reasonable and probable cause to believe that a prosecution would be likely to succeed. That language is derived from an element of the tort of malicious prosecution, although absence of reasonable and probable cause alone will not establish liability for the tort. [121] However, if that be the test to be satisfied before a charge can be laid, it is a higher test than the requirement of reasonable suspicion of the commission of an offence, which is sufficient for a valid arrest. It would render the law incoherent, it was submitted, if two differing standards were to be applied to the same activity (arrest) in order for it to be lawful. It is, perhaps, curious that this potential anomaly has not been squarely addressed in the cases dealing with the common law power.

11. [147]

    The leading case in Australia, prior to the extensive statutory amendments in the last three decades expanding the powers of police to interrogate and investigate following an arrest, was Williams v The Queen. Of the three judgments in Williams, Gibbs CJ took a more liberal approach to the powers of police than did other members of the Court. Nevertheless, the Chief Justice concluded that there was “no power to detain a citizen merely for the purpose of questioning him”; [122] rather, “[t]he power given by the common law, and by [statute], to arrest a person reasonably suspected of having committed a crime is given for the purpose of enabling that person to be brought before a justice as soon as reasonably practicable so that he may be dealt with according to law.” [123] He accepted, however, that the police had broad powers of investigation within such a temporal framework, so long as the period of reasonable delay was not exceeded. [124]

12. [148]

    Mason and Brennan JJ rejected the proposition adopted by the Tasmanian Court of Criminal Appeal that it must be lawful “to continue detention for a reasonable period to enable investigating officers to establish with some precision the charge or charges upon which the accused is to be presented to the justice and what evidence there is to support any such charges.” [125] Their joint reasons continued: [126]

13. [149]

    Mitchell, Brain and Glinski were all cases involving the tort of malicious prosecution; they were dealt with in some detail in A v State of New South Wales, [130] another case dealing with malicious prosecution and not unlawful arrest. In effect the reasoning of Mason and Brennan JJ acknowledged the theoretical discrepancy between the respective tests for arrest and laying a charge, but rejected it as a basis for extending the powers of police to arrest without being in a position to lay a charge.

14. [150]

    Mason and Brennan JJ in Williams also adopted the following statement from Lord Porter in John Lewis & Co Ltd v Tims: [131]

15. [151]

    John Lewis v Tims involved an arrest by shop detectives of two customers who were believed to have stolen goods, the arrest taking place after they had left the shop. The shop detectives returned with them to the shop in order to allow a senior person in management to decide what steps should be taken, the decision being to hand them over to the police to pursue charges. The House of Lords rejected the proposition that they were to be taken before a justice immediately or forthwith, accepted that the requirement was to take them before a justice as soon as reasonably practicable, and held that there was no breach of that standard involved in taking them back to a responsible officer, who might then deliver them to the authority of the police. Being an arrest by private citizens, the validity of the arrest presumably turned on whether a theft had been committed.

16. [152]

    The second joint judgment in Williams, that of Wilson and Dawson JJ, also addressed the potential inconsistency between allowing an arrest on the basis of reasonable suspicion and, in effect, requiring that the arresting officer be in a position to proceed immediately to lay a charge. The joint reasons stated: [132]

17. [153]

    Wilson and Dawson JJ joined with Mason and Brennan JJ in rejecting the approach adopted in England of allowing a period in which to obtain evidence which may be necessary to formulate a charge, concluding: [133]

18. [154]

    It therefore appears from the cases that, at least in Australia, under general law principles, an arrest must be carried out for the purpose of taking the person before a court or justice as soon as reasonably practicable. As explained in Williams by Wilson and Dawson JJ, the rationale for the principle is as follows: [134]

19. [155]

    It does not follow that the person carrying out the arrest must personally intend to lay a charge; an expectation that others will do so may be sufficient. In Williams itself, the suspect was arrested in Scottsdale, a town in northern Tasmania and detained until senior officers came from Launceston. He was then taken by police vehicle to Launceston. Having been arrested at 6am at Scottsdale, he arrived at Launceston at about 11am and could reasonably have been taken before a magistrate at about 2.15pm. The further conduct of interviews thereafter which led to his appearance being delayed until the following day rendered the detention unlawful for the additional period.

20. [156]

    In John Lewis v Tims, it does not appear that the arresting store security officers were those responsible for laying the charges. Similarly, in relation to police, in Regina v Walsh [135] the offender was arrested at about 3pm in relation to a shooting which had occurred the previous day. The arrest was carried out by police officers under the instruction of a senior officer, Detective Sergeant Rees, who informed them of his suspicions but not the detail of the specific offences. Walsh was taken to a police station and the senior officer notified. Had Detective Sergeant Rees driven directly to the police station, he would have arrived at about 5.30pm; however, he travelled first to another area to endeavour to arrest a suspected co-offender, arriving at the police station where Walsh was being held at about 8.15pm. Gleeson CJ stated:

21. [157]

    It must therefore be concluded, for the reasons set out by Wilson and Dawson JJ in the extract at [152] above, that an arrest can only lawfully be carried out for the purpose of bringing the suspect before a justice to be dealt with according to law. It does not follow, however, that the arrest is invalid if the arresting officer does not at the time of the arrest have the state of mind necessary to lay charges, so long as a superior does. This approach is illustrated by the cases which refer to detention following an arrest becoming unlawful where the arrest has been carried out “otherwise for a lawful purpose”. [137] To similar effect, the Supreme Court of South Australia in Drymalik v Feldman [138] stated:

22. [158]

    These cases, and the reasoning in Williams, explain why a reasonable suspicion must be accompanied by an intention to charge the person being arrested, but need not be accompanied by a clearly formulated charge, and may be subject to contingencies. The officer must give a reason for the arrest, but this should refer to the suspected conduct rather than an offence. The specific state of mind of the arresting officer will depend on the facts of the case; in one case the existence of an offence may be in doubt, in another the identity of the offender. The purpose must be to lay a charge within a reasonable time frame to allow the suspect to seek his or her liberty, if he or she wishes.

23. [159]

    To similar effect, this Court in Zaravinos v State of New South Wales [139] held that s 352 of the Crimes Act did not displace general principles with respect to powers of arrest; rather, in providing that a constable is to take the arrested person and any property before an authorised justice, the section used language reflecting the common law and “must be understood as indicating the only proper purpose for which an arrest may be carried out.”

24. [160]

    At least in a formal sense, the incoherence of a dual test of intention for a lawful arrest may be resolved by treating the obligation to take the person as soon as practicable before a justice as a separate obligation imposed by law once an arrest has taken place, rather than a requirement that the arresting officer have a particular subjective intention. On that understanding, an arrest based on reasonable suspicion would remain valid, and the detention lawful, until the reasonable period had elapsed. From that point, if the suspect had not been taken before a justice (or released), the detention would become unlawful. It would also follow that, if the person were released before the reasonable period expired, there would be no unlawful detention. However, that conclusion is not consistent with the passages from Bales v Parmeter and Drymalik v Feldman set out above; the reason is that the purpose of commencing the criminal process attaches at the moment of arrest.

Effect of statutory amendments

1. [161]

   The first step in considering the effect of relevant statutory provisions is to note that the common law referred to above developed against the background of statute, including provisions equivalent to s 352 of the Crimes Act, to which reference has already been made.

2. [162]

   The replacement of s 352 of the Crimes Act with the current s 99 of the Law Enforcement Act came about through a series of stages, which included the addition of various provisions to the Crimes Act before the relevant parts (Pts 10 and 10A) were removed. Thus, ss 114 and 115 of the Law Enforcement Act were formerly ss 356C and 356D of the Crimes Act. Although the stages may be relevant in considering the authorities, it is sufficient to consider the provisions of the Law Enforcement Act in their present form, as applicable to the present case. Section 99 relevantly provides:

3. [163]

   There are several aspects of this provision to be noted. First, s 99(1)(a) provides that a police officer may arrest a person if he or she “suspects on reasonable grounds that the person … has committed an offence”. That language does not suggest any variation in principle from the language of s 352, as enacted in 1900 (or indeed 1883).

4. [164]

   Section 99(1)(b), however, imposes a constraint on the use of the power of arrest without warrant. It requires that the officer be satisfied that the arrest is “reasonably necessary” for one or more of a number of reasons. Those reasons provide, in effect, that the police functions of law enforcement would not be sufficiently carried out by steps short of arrest, which, with respect to the commencement of proceedings, would commonly mean the issue of a court attendance notice. Thus, a failure to consider such an alternative course resulted in a finding that an arrest was unlawful in State of New South Wales v Smith. [141] There is, however, no reason to derive from the existence of the additional constraint an implied variation of the long standing requirement that an arrest must be a preliminary step in invoking the criminal process.

5. [165]

   Indeed, this purpose is expressly referred to in s 99(3), which imposes a requirement that the officer who arrests a person must, as soon as reasonably practicable, take the person before an authorised officer to be dealt with according to law. This statement of the general law obligation is not in the form of a condition precedent involving a state of mind of an arresting officer. Rather, it constitutes a statement of obligation which is engaged by the carrying out of an arrest.

6. [166]

   On the other hand, that is the form which the obligation has taken since the enactment of the Crimes Act in 1900 (and in 1883); it has never been expressed as the required purpose of the arrest, absent which an arrest will be invalid. Nevertheless, throughout that period, the existence of such a purpose has been held to be a condition of validity. The terms of s 99(3) do not suggest a change in the law in this regard.

7. [167]

   Further, if the effect of the new legislative form were to remove the conventional purpose underlying a valid arrest, it has been done without any indication as to any alternative purpose or rationale. If the State were correct in submitting that the general law obligation has been removed, it must be sufficient that the officer have, as a sole purpose of the arrest, the questioning of the suspect or the taking of some other step in an investigation into the suspected offending.

8. [168]

   Emmett AJA has referred to the Parliamentary Review of the Law Enforcement Act undertaken in 2013. Part 1 of the Report of the Review proposed amendments to s 99, including the insertion in what is now s 99(1)(b) of additional matters justifying an arrest. Under a subheading, “to obtain property in the possession of the person that is connected with the offence” (a reason now to be found in par (b)(v)), the following comment appears:

9. [169]

   The extrinsic materials therefore provide express support for the view that the legislation was not intended to vary the pre-existing requirement as to the purpose for which an arrest might be carried out. The extrinsic materials do, however, draw attention to provisions in Pt 9 of the Law Enforcement Act which permit further investigation subsequent to an arrest. Part 9 is headed “Investigations and questioning”. The explanatory note to the Bill stated that the provisions in Pt 9 “re-enact existing NSW legislation”. That is so: equivalent provisions were found in Pt 10A of the Crimes Act, introduced in 1997. Section 114 now provides that a police officer may detain a person “who is under arrest” for the investigation period provided for by s 115. The officer may detain the person “for the purpose of investigating whether the person committed the offence for which the person is arrested.” Where the officer forms a reasonable suspicion of the person’s involvement in another offence, that offence may also be investigated. Section 115 identifies a period which commences “when the person is arrested” and extends for a reasonable period not exceeding six hours (which may be extended by a detention warrant).

10. [170]

    In their terms, these provisions permit investigation following arrest, whilst the suspect is in detention. However, they assume that an arrest has taken place. Further, s 111 states that Pt 9 applies “to a person … who is under arrest by a police officer for an offence”. There must be a valid arrest before the powers in Pt 9 are engaged.

11. [171]

    Not only do the powers not expressly affect the power of arrest, s 113 provides (in part):

12. [172]

    It is tolerably clear from these provisions that there is no intention to affect the conditions of a valid arrest or otherwise affect the power to arrest. Part 9 confers powers which are only engaged upon the carrying out of a valid arrest.

13. [173]

    In short, neither the Act nor the extrinsic materials provide any basis for concluding that an arrest is now something other than a preliminary step to the commencement of the criminal process and a step to be taken only for the purpose of commencing the criminal process.

14. [174]

    The State nevertheless contends that s 99(1) provides a complete statement of the preconditions to a valid arrest. As the second limb of subs (1) (namely par (b)) imposes an additional constraint, the primary condition for the carrying out of an arrest must be the existence of a reasonable suspicion that the person has committed an offence. However, that proposition, if correct, would remove the fundamental rationale for the power to arrest without warrant, namely that imprisonment before trial may be necessary in the administration of criminal justice, but is only justified for the purpose of laying a charge and thus commencing the criminal process. To accept that submission would be inconsistent with principle and would create a basis for depriving a person of his or her liberty which has not hitherto existed.

15. [175]

    There is one further matter relied on by the State. Although s 99(3) requires that the person be taken as soon as practicable before an authorised officer to be dealt with according to law, that obligation is now qualified by the conferral of a power on a police officer to “discontinue an arrest at any time”. [142] That step may be taken either because the person is no longer a suspect or because it is no longer necessary to bring the person before an authorised officer in order to deal with the relevant offence.

16. [176]

    It may be conceded that this power qualifies the obligation to commence the criminal process by taking the person before a magistrate. However, it is unclear why the conferral of an additional power to release following an arrest should be read as allowing an arrest for a purpose other than the conventional purpose.

17. [177]

    Subject to consideration of authorities dealing with the amended statutory provisions, the better view is that there is nothing in Pt 8, read with Pt 9, of the Law Enforcement Act which should be taken to broaden the power of arrest in a manner inconsistent with its long acknowledged purpose as part of the administration of criminal justice.

18. [178]

    It will be necessary to refer to decisions dealing with the New South Wales legislation below; before taking that step it is appropriate to address the approach adopted by the High Court in North Australian Aboriginal Justice Agency with respect to legislation in the Northern Territory which, while not following the form of the Law Enforcement Act, adopted a similar structure.

19. [179]

    Section 123 of the Police Administration Act (NT) conferred power on a police officer to, “without warrant, arrest and take into custody any person where he believes on reasonable grounds that the person has committed, or is committing or is about to commit an offence.” (It is doubtful that the additional words “and take into custody” add anything to the concept of “arrest”.) Section 137(1) provided that “a person taken into lawful custody … shall … be brought before a justice or a court of competent jurisdiction as soon as is practicable after being taken into custody, unless he or she is sooner granted bail under the Bail Act or is released from custody.” (This provision reflects s 99(3) and s 105 of the Law Enforcement Act.) That obligation was subject to a power, with respect to certain defined offences, to hold the person “for a reasonable period” to enable the person to be questioned or investigations to be carried out. [143] With respect to relatively minor “infringement notice offences” the person could be held in custody for a period up to four hours or, if intoxicated, for a longer period until the police officer believed the person was no longer intoxicated. [144]

20. [180]

    The case involved a challenge to the constitutional validity of those provisions. The challenge was rejected. Relevantly for present purposes, the joint reasons of French CJ, Kiefel and Bell JJ stated:

21. [181]

    Nettle and Gordon JJ stated:

22. [182]

    It is convenient to turn to authorities in this Court. Clyne v State of New South Wales [149] dealt with provisions in Pt 10A of the Crimes Act as they operated in March 2003. (Relevant provisions of the Law Enforcement Act did not come into effect until 1 December 2005. [150] ) At that stage, (a) s 352(2) was in its historical form, including the obligation to take the arrested person before an authorised justice to be dealt with according to law; (b) s 356B reflected the current s 113; (c) s 356C reflected the current s 114, and (d) s 356D reflected the current s 115.

23. [183]

    The critical reasoning in Clyne, at [63], commenced with the proposition that “s 352(2) … neither explicitly nor implicitly authorised arrests only if they were effected for the purpose of taking the person arrested before an authorised Justice.” If that were literally true, it is a proposition which ignores the continued operation of the common law obligation (which was at least reflected in the language of s 352(2)) and is inconsistent with the approach adopted by the High Court in Williams, as well as earlier decisions of this Court in Clarke v Bailey and Bales v Parmeter.

24. [184]

    The reasoning in Clyne continued in relation to s 352(2):

25. [185]

    Section 356C (now s 114) dealt with detention after arrest for the purpose of investigation and is conditioned upon the person already being under arrest. For the reasons set out above, in my view the approach adopted in Clyne in relation to these sections is inconsistent with basic principle and therefore untenable.

26. [186]

    A different approach was adopted by a differently constituted court in Dowse v New South Wales. [151] It was no doubt unfortunate that Dowse was argued before Clyne, but judgment was delivered after Clyne. Clyne was not referred to in Dowse, which considered the relevant provisions of the Law Enforcement Act as in force in March 2007. I stated (with the agreement of McColl JA and Hoeben JA):

27. [187]

    In favour of the reasoning in Clyne, it may be said that the issue now being addressed appears to have been directly raised in Clyne, but not in Dowse. Nevertheless, the approach adopted in Dowse is to be preferred; the result is consistent with that in relation to similar legislation upheld in North Australian Aboriginal Justice Agency.

28. [188]

    The foregoing discussion has not addressed the common law power of an officer or a private person to carry out an arrest to prevent, or prevent the continuation of, a breach of the peace. Neither party suggested that any assistance was to be obtained from consideration of that power.

29. [189]

    Nor has consideration been given to the handful of particular statutes which permit an arrest without warrant, but for a purpose other than commencing the criminal process. Thus, s 25E of the Terrorism (Police Powers) Act 2002 (NSW) permits the arrest of a person suspected of a terrorist offence “for the purpose of investigative detention” under Part 2AA of that Act. Schedule 3 to the Road Transport Act 2013 (NSW) provides for a police officer to arrest the driver of a vehicle in relation to testing for alcohol and drug use for the purpose of the person providing a blood sample. The prescription of a specific purpose of arrest renders these statutes irrelevant; at least neither party suggested that such provisions assisted in determining the present issue.

Application of principles

1. [190]

   The appellant presented himself at Sydney City Police Station in response to attempts by police to contact him, of which he had learned indirectly. He was immediately arrested by Constable Smith. Constable Smith was aware of the history of police concerns, which included a complaint that the appellant had breached an apprehended violence order. The trial judge was satisfied by Constable Smith’s evidence that at the time of the arrest he held a reasonable suspicion that the appellant had committed an offence, for the purposes of s 99(1)(a) of the Law Enforcement Act. The judge also accepted Constable Smith’s evidence that he thought it reasonably necessary to arrest the appellant pursuant to s 99(1)(b)(iv) and (ix).

2. [191]

   Further, the judge stated: [152]

3. [192]

   On the other hand, the judge also accepted Constable Smith’s concession that, at the time of the arrest, he had not determined whether he would charge Mr Robinson. [153] The case was run on the basis that whatever Constable Smith’s purpose in carrying out the arrest (assuming he had one) it did not involve taking Mr Robinson before a court to be dealt with according to law, because he then had no intention to charge him. Although not challenged in this Court, it is convenient to set out the brief evidence which supported that finding. In the course of his cross-examination, Constable Smith gave the following evidence: [154]

4. [193]

   This evidence, which was accepted, was sufficient to allow the judge to form the view that Constable Smith was stating that he believed paragraphs (a) and (b) of s 99(1) were satisfied, and that that was sufficient to allow an arrest and thereby engage the powers under Pt 9 of the Act.

5. [194]

   For the reasons set out above, that was not sufficient to allow an arrest in the absence of any intention at the time of carrying out the arrest to charge the appellant and take him before a justice (or bail officer) to be dealt with according to law. It will often be possible to infer the relevant purpose without evidence of a subjective intention; however, given the express evidence of an absence of such an intention, that inference was not drawn. There was, in effect, no purpose of commencing the criminal process contemporaneous with the arrest.

6. [195]

   It follows that the judgment dismissing the claim for wrongful imprisonment must be set aside. The trial judge having contingently assessed damages in an amount of $5,000, it is appropriate that Mr Robinson have judgment against the State for that amount, together with the costs of the trial, to be assessed on a basis appropriate to such an award. The State should pay his costs of the proceedings in this Court.

7. [196]

   EMMETT AJA:

Introduction

1. [197]

   Mr Robinson sued the respondent, the State of New South Wales (the State), in the District Court, claiming damages for alleged wrongful arrest and false imprisonment by Constable Smith. Under s 8(1) of the Law Reform (Vicarious Liability) Act 1983 (NSW) (the Vicarious Liability Act), the State is vicariously liable for torts committed by a person in the service of the Crown in right of New South Wales. At all times, Constable Smith was, by the operation of s 6 of the Vicarious Liability Act, deemed to be a person in the service of the Crown. The State is liable to be sued pursuant to s 5 of the Crown Proceedings Act 1988 (NSW).

2. [198]

   On 3 August 2017, for reasons published on that day, a judge of the District Court (the primary judge) directed the entry of judgment for the State and ordered Mr Robinson to pay the State’s costs of the proceedings. By Notice of Appeal filed on 1 March 2018, pursuant to leave granted by this Court on 20 February 2018, Mr Robinson appeals from the orders made by the primary judge.

The Arrest

1. [199]

   It was common ground that, at the time of the arrest, Constable Smith had not formed the intention to charge Mr Robinson with any offence. However, the primary judge found that, when Constable Smith arrested Mr Robinson, he suspected that Mr Robinson had committed an offence under s 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), namely, breach of an apprehended violence order (the Relevant Offence). His Honour also found that Constable Smith had reasonable grounds for that suspicion and that Constable Smith was satisfied that the arrest was reasonably necessary:

2. [200]

   Having made those findings, the primary judge held that s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the Law Enforcement Act) afforded the State a lawful justification for Mr Robinson’s arrest. I shall refer to s 99 in some detail below. None of the above findings is challenged by Mr Robinson in the appeal.

The Appeal

1. [201]

   The only question raised by the appeal is whether s 99 of the Law Enforcement Act afforded a defence to a claim by Mr Robinson against the State that he was wrongly arrested and falsely imprisoned, in circumstances where Constable Smith, as the arresting officer, had not, at the time of arrest, formed an intention to charge Mr Robinson. Before dealing with that question, it is desirable to say something about the provisions of the Law Enforcement Act.

The Law Enforcement Act

1. [202]

   Section 4(1) of the Law Enforcement Act provides that, unless the Act otherwise provides expressly or by implication, the Act does not limit:

2. [203]

   Further, s 4(2) provides that nothing in the Law Enforcement Act is to affect the powers conferred by the common law on police officers to deal with breaches of the peace. In addition, s 7 relevantly provides that nothing in the Law Enforcement Act is to limit any functions, or prevent a police officer from exercising any functions, that the police officer has under the Law Enforcement Act.

3. [204]

   Relevantly for present purposes, s 99 provided that a police officer may, without a warrant, arrest a person if, first, the police officer suspected, on reasonable grounds, that the person was committing, or had committed, an offence, and secondly, the police officer was satisfied that the arrest was reasonably necessary for either of the following reasons:

4. [205]

   Section 99(3) of the Law Enforcement Act provided that a police officer who arrests a person under s 99 must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law. An authorised officer for the purpose of the Law Enforcement Act is a magistrate, a registrar of the Local Court or an employee of the Attorney General’s Department authorised by the Attorney General as an authorised officer for the purposes of the Law Enforcement Act. Section 105 relevantly provided that the police officer could “discontinue the arrest” at any time without taking the arrested person before an authorised officer. The use of the term “discontinue” in relation to arrest is slightly unusual. Ordinarily, the term “arrest” would refer to the apprehension of a person, or a ship, by legal authority or the seizure or laying hold on of a person [155] . Once that has occurred, the arrest would be complete. The word “arrest” appears to be used in s 105 as referring to the continued “detention” of a person once arrested.

5. [206]

   Under s 99(4) a person who has been lawfully arrested, in compliance with s 99, may be detained by any police officer under Pt 9 of the Law Enforcement Act for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by Pt 9. Part 9, which consists of ss 109 to 132 inclusive, deals with “investigations and questioning”. Division 2 of Part 9 of the Law Enforcement Act, which consists of ss 114 to 121 inclusive, deals with “investigation and questioning powers” where persons are under arrest. The State places some store on the provisions of Pt 9, in so far as they are referred to expressly in s 99.

6. [207]

   Under s 114(1), a police officer may, in accordance with s 114, detain a person who is under arrest for the investigation period provided for by s 115. The investigation period begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances, but does not exceed the period of six hours or such longer period as may be provided for under a detention warrant issued under s 118. Under s 114(2), a police officer may so detain a person for the purpose of investigating whether the person committed the offence for which the person is arrested. If, while a person is so detained under s 114(3), the police officer forms a reasonable suspicion as to the person’s involvement in the commission of any other offence, the police officer may also investigate the person’s involvement in that other offence during the investigation period for the arrest. Section 114(4) requires that the person must be released within the investigation period or brought before an authorised officer or court within that period or as soon as is practicable after the end of that period.

7. [208]

   Under s 116, in determining what is a reasonable time for the purposes of s 115, all the relevant circumstances of the particular case must be taken into account. Relevantly, for present purposes, the following circumstances are to be taken into account:

8. [209]

   Section 117 provides that certain times are not to be taken into account in determining how much of an investigation period has elapsed. For example, any time that is reasonably required to convey the person from the place where the person is arrested to the nearest premises where facilities are relevantly available; any time reasonably spent waiting for the arrival of police officers; any time that is reasonably spent waiting for facilities complying with s 281 of the Criminal Procedure Act 1986 (NSW) to become available; any time that is required to allow the person to communicate with a friend, relative, guardian, independent person, Australian legal practitioner or consular official; and any time that is required to allow such a friend, relative, guardian independent person, Australian legal practitioner or consular official to arrive at the place where the person is being detained, is not to be taken into account.

9. [210]

   Section 118 relevantly provides that a police officer may, before the end of the investigation period, apply to an authorised officer for a warrant to extend the maximum investigation period beyond six hours. An authorised officer must not issue a warrant to extend the maximum investigation period unless satisfied that:

Relevant Common Law Principles

1. [211]

   Mr Robinson placed great reliance on the common law purpose of arrest. The statutory requirement to bring a person arrested before a justice or a court, as soon as is practicable, has its origins in the common law. Accordingly, s 99 of the Law Enforcement Act must be construed in the context of the general law in relation to the arrest of a citizen, against the background of which it, and its legislative predecessors, were enacted. Moreover, s 4 of the Law Enforcement Act specifies that the Act is not to derogate from the functions, obligations and liabilities of police officers under the common law, which arguably includes the common law purpose of arrest. Therefore, before addressing the detail of the parties’ submissions, it is desirable to describe the nature and substance of the common law in relation to arrest, as well as its interaction with s 99 of the Law Enforcement Act.

2. [212]

   Under the common law, a person cannot be deprived of personal liberty except to the extent, and for the time, that the law prescribes. The authority to hold the arrested person in custody is limited to the time necessary to bring the person before a justice or a court for the purpose of charge and prosecution. Thus, a police officer who arrests a person must bring the arrested person before a justice or a court in as short a time as is reasonably practicable, unless the person is earlier released unconditionally or on bail. [156]

3. [213]

   Under the common law, a police officer does not have power to arrest a person merely for the purpose of questioning that person [157] . That is because arrest is the beginning of imprisonment and, whilst it is recognised that imprisonment before trial may be necessary for the administration of criminal justice, it must be justified in accordance with the law. There must be a charge and if the person charged can establish entitlement to bail and can furnish bail, the law requires that the person be released, subject to any conditions that might be imposed upon the person. The point at which an arrested person is brought before a justice or court upon a charge is the point at which the machinery of the law leading to trial is put into operation. It is the point from which the judicial process commences and purely ministerial functions cease. Therefore, any delay in bringing an arrested person before a justice or a court, even if it is to effectuate some other purpose, such as the questioning of that person in order to dispel or confirm the suspicion that was the basis of the arrest, is to defeat, however temporarily, the true purpose [158] .

4. [214]

   An arrest may be lawful under the common law even if the police officer who effects the arrest does not immediately charge the arrested person because he or she is waiting for a superior officer to arrive, who, the arresting officer expects, will then charge the arrested person. Moreover, it is not unlawful for such an arrest to occur, notwithstanding that the arresting officer does not have sufficient knowledge or information about the crime or crimes of which the arrested person was suspected, and to charge the person then and there, if the superior officer had such knowledge and information and was merely obtaining the assistance of the inferior officer to effect the actual arrest. That is because the reasonable suspicion of the superior officer that the arrested person had committed offences can be attributed to the arresting officer. On the other hand, the arresting officer ought to be put in possession of the details of the charge or should be in a position to obtain those details immediately after the arrest is made [159] .

5. [215]

   A police officer who has arrested a person reasonably suspected of having committed a crime must be allowed time to make such inquiries as are reasonably necessary either to confirm or to dispel the suspicion upon which the arrest was based [160] . Therefore, reasonable time must be allowed for making a decision to prefer a charge and then preferring the charge.

6. [216]

   Nevertheless, while the common law allows a reasonable time to formulate and lay appropriate charges for the purpose of bringing a person before a justice, in that it must be done “as soon as is practicable”, it is a different matter altogether to permit a police officer to detain an arrested person to enable the evidence necessary to support a charge to be gathered by further investigation. For example, it is one thing to take a suspected shoplifter to an office for the purpose of getting authority to prosecute. It is another thing to take the suspect to an office for the purpose of filling in gaps in the evidence [161] . Such a power, without limits, could, in cases where the evidence is complex, be used to hold persons in custody for longer periods than would be consistent with a citizen’s basic right to freedom and personal liberty [162] . If the law requires modification in that regard, that modification should be effected by legislation, not by the courts, because there must be safeguards, such as in the form of time limits, and those safeguards must be set with particularity that cannot be achieved by judicial decision. Legislative change ought to take place against the background of the common law, which has always viewed detention for the purpose of investigation as an unwarranted encroachment upon the liberty of the citizen [163] .

Legislative History of s 99

1. [217]

   Before dealing with the construction of s 99 of the Law Enforcement Act against that common law background, it is necessary to have regard to the legislative history of s 99. The relevant provisions of the Law Enforcement Act were preceded by provisions of the Crimes Act 1900 (NSW) (the Crimes Act). Further, s 99, as originally enacted, was subsequently amended. It is desirable to say something about the various iterations of the provisions.

2. [218]

   Section 352 of the Crimes Act relevantly provided that any constable was authorised, without warrant, to apprehend any person whom the constable, with reasonable cause, suspected of having committed certain offences and to take the person before an authorised justice to be dealt with according to law. Section 352 did not purport to be a code or a whole statement of the power of a constable or other person to apprehend without warrant. There was no indication in its terms of an intention to displace general principles of law relating to the exercise of discretionary powers conferred by a statute or by law relating to powers of arrest. It was not regarded as displacing or being substituted for the general powers and duties of a person effecting an arrest.

3. [219]

   Section 352 stated what a constable was to do after apprehending a person, namely, take the person before an authorised justice. That corresponded with the common law purpose of arrest and must be understood as indicating the only proper purpose for which an arrest could be carried out, namely, bringing the person before a justice or a court for the purpose of conducting a prosecution. Questioning and other investigation could take place during the time available between the arrest and when the arrested person was brought before a justice or a court. However, the time available could not be extended so as to allow for questioning or other investigation [164] .

4. [220]

   Even if the circumstances mentioned in s 352 existed, the lawfulness of an arrest was examinable, and the arrest was unlawful unless each decision to arrest was made to give effect to the true, common law purpose of arrest. Arresting a person for any other purpose was an arrest for an extraneous purpose and was unlawful [165] .

5. [221]

   The same underlying restriction was to be found in s 99(3), as originally enacted, under which a police officer could only arrest a person “for the purpose of taking proceedings for an offence against the person”. That is to say, the provision assumed that that purpose underlay a valid arrest, such that an arrest would not be valid merely because the officer believed that an offence had been committed in circumstances where the officer had no intention of charging the person or having the person charged with that offence. If it were otherwise, the legal requirement that the person arrested should be informed of the true grounds of the arrest would be rendered nugatory [166] .

6. [222]

   Section 99 of the Law Enforcement Act was amended by the Law Enforcement (Powers and Responsibilities) Amendment (Arrest Without Warrant) Act 2013 (NSW) (the Amending Act). The Amending Act was enacted as a result of a report presented to Parliament following a review of the Law Enforcement Act commissioned by the Premier of New South Wales (the Parliamentary Report). The authors of the Parliamentary Report were asked to inquire into and report on the Law Enforcement Act and, in particular, to provide advice on legislative amendments to ensure that police have clear, effective powers to do their job and to protect the community.

7. [223]

   The Parliamentary Report stated that the then current provisions of s 99 were complicated and difficult to apply and that the lack of clarity around arrest powers had led to offenders escaping conviction, even in instances where an arrest had been made in good faith. The Parliamentary Report said that the authors were mindful that the Premier had requested clear and effective powers and responsibilities, and that they were of the view that the revised s 99, as proposed by them, was clearer and simpler and would be easier to apply in the field. The Parliamentary Report asserted that the proposed simplification of s 99 would also make the provision more transparent and would address the community’s expectation for police powers and responsibilities to be clear and effective.

8. [224]

   One interpretation that had been propounded was that arrest powers should be confined to circumstances where an offence was currently being committed or had just been committed. The Parliamentary Report recommended that s 99(1) and s 99(2), as originally enacted, be combined into one section to make it abundantly clear that police could arrest a person for any offence if they reasonably suspected an offence was being, or had been, committed.

9. [225]

   The Parliamentary Report referred to concerns that the list of reasons for which police could arrest without a warrant in the then form of s 99 was not broad enough to allow police to arrest offenders in order to protect the community and prevent crime. It confirmed, however, that the intent of the legislation was not to allow police the power to arrest in order to investigate, although the proposed s 99(4) clarified that once a person had been lawfully arrested, the person could be detained under Pt 9 of the Law Enforcement Act for investigative purposes. Accordingly, the Parliamentary Report said s 99(1)(b)(v) had been drafted in such a way as to allow police to arrest to obtain property without conferring a wider power that would allow police to arrest for the purposes of investigation.

10. [226]

    The Parliamentary Report did not support the introduction of a general power of arrest, as preferred by the police, but preferred the current formulation of a finite power with expanded reasons for arresting a suspected offender. It supported the inclusion of a power to arrest without warrant if the nature and seriousness of the offence warranted that course of action. The authors considered that that provision would give certainty to police to make an arrest when confronted with sufficient evidence of, for example, a domestic violence offence. They accepted that international academic research had demonstrated that arresting domestic violence offenders deterred future domestic violence offending.

11. [227]

    The Parliamentary Report reported that the police were of the view that where a person is fleeing from police, there should be a corresponding power of arrest if the police reasonably suspect that person of having committed an offence. The authors were convinced by the argument that were that criterion to be omitted, then it may invite argument in court that Parliament intended that police could not arrest a person who was reasonably suspected of committing an offence who was running from the scene of a crime or from a police officer.

12. [228]

    The Parliamentary Report concluded that the recommendations made by it, if implemented, would expand the list of reasons under which a police officer could arrest. The authors noted that concerns had been raised that increased arrest rates may also increase remand rates, but also noted that police rejected such a concern because not all people who are arrested are remanded and some arrests would be discontinued once the purpose of arrest no longer existed, in circumstances, for example, where the person’s identity had been ascertained. The Parliamentary Report said that, for more abundant caution and transparency, a provision that clearly stated that a police officer could “discontinue” an arrest should be included, referring to the proposed s 105(3).

13. [229]

    In his speech on the second reading of the Bill for the Amending Act, the Premier observed that the “job of frontline police is already hard enough, without being made harder by having to deal with legal complexities”. The Premier said that the reforms proposed by the Parliamentary Report could give the community confidence that police would have the powers they needed to “keep the peace across the communities of New South Wales". The Premier said that the new provisions would clarify that police could arrest without a warrant for any offence that they reasonably suspected a person was committing or had committed, and that the proposed amended s 99(1)(a) made that abundantly clear. He said that the proposed amended s 99(1)(b) replicated and simplified the existing reasons for arrest contained in the previous form of s 99 and introduced new reasons to arrest without a warrant that, the Premier said, better reflected the circumstances in which police “are called on to act in order to keep the community safe”.

14. [230]

    The Premier also said that under the proposed amended s 99, police would be able to arrest a suspected offender without a warrant if the person’s identification could not be readily ascertained by other means or if the officer suspected on reasonable grounds that identity information supplied was false. He said that the realities of day-to-day policing were also reflected by the inclusion of a power of arrest without warrant when a suspected offender who was fleeing from police or from the scene of a crime. Further, he said, the proposed amended s 99 clarified that a police officer could arrest a person without a warrant if directed to do so by another police officer who had reason lawfully to arrest that person.

15. [231]

    The Premier also referred to the proposed amendment to make clear that an arrest may be “discontinued” and the person released without requiring the person to be brought before an authorised officer, saying that that might occur when inquiries revealed that the reasons for arrest no longer existed or if the police decided it was more appropriate to deal with the matter in some other manner, such as by issuing a penalty notice or Court Attendance Notice.

16. [232]

    Finally, the Premier said s 99 would be amended to make it clear that a person who was “lawfully arrested” under s 99 could be detained for the purpose of an investigation in accordance with Pt 9, an amendment that was intended to remove uncertainty about whether a person who was otherwise “lawfully” arrested could be detained for questioning under Pt 9.

Relevant Principles of Construction

1. [233]

   Clear words are required in a statute before it will be construed as authorising the holding of an arrested person in custody for a purpose other than for giving effect to the common law purpose of arrest [167] . It is of critical importance for the existence and protection under the law of personal liberty, that the circumstances in which a police officer may, without warrant, arrest or detain an individual be strictly confined, plainly stated and readily ascertainable. Arrest should be reserved for circumstances in which it is clearly necessary and where it is inappropriate to resort to the power of arrest when the issue and service of a summons would suffice adequately [168] .

2. [234]

   It is improbable that the legislature would overthrow fundamental principles, infringe rights or depart from the general system of law described above without expressing its intention with irresistible clearness. To give any such effect to general words, simply because they have that meaning in the widest, usual, or natural sense, would be to give them a meaning in a sense in which they were not really used. Curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom enhances the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights [169] .

3. [235]

   However, while that notion extends to the protection of fundamental principles and systemic values, it ought not be extended beyond its rationale. Thus, the notion does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means that are within the constitutional competence of the enacting legislature [170] . That principle of construction is fulfilled in accordance with that rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a positive legislative determination that the right, freedom or immunity is to be abrogated or curtailed [171] .

Construction of s 99

1. [236]

   Mr Robinson contends that his arrest was unlawful because it was effected for an extraneous purpose. He asserts that, because the only proper purpose for the exercise of the power of arrest under s 99(1) is to bring the arrested person before a justice in order to conduct a prosecution, there is an additional requirement to those specified in s 99(1), namely, that the arresting officer, or the officer directing arrest under s 99(2), must hold a positive intention, at the time of the arrest, to charge the arrested person, and that in the absence of such a positive intention, the arrest will be effected for an extraneous and unlawful purpose.

2. [237]

   Mr Robinson contends that, if an arresting officer does not form such an intention, then that constitutes an arrogation by the police officer to himself or herself of the power of imprisonment vested only in the judiciary or an authorised officer. He bases that contention on the proposition that the arrest of a person is the first step in the process by which the arrested person is to be made answerable for the offence that the arresting police officer reasonably suspects the person of committing.

3. [238]

   Mr Robinson relies on the proposition that a person must not be arrested, and thereby imprisoned, otherwise than upon the authority of a justice or a court except to the extent reasonably necessary to bring that person before a justice or a court to be dealt with according to law [172] . He asserts that that proposition holds good even if the matters set out in s 99(1) are strictly satisfied, and that reasonable satisfaction of the s 99(1)(b) matters cannot exist independently of the purpose of bringing the arrested person before a justice or a court for the purpose of conducting a prosecution [173] .

4. [239]

   Mr Robinson contends that s 99 does not displace the fundamental purpose of arrest recognised by the general law and that the provisions of s 99 supplement the general law rather than derogate from it. [174] Thus, he contends, unless the arrest of a person is for the purpose of bringing that person before a justice or a court and conducting a prosecution, the fact that the purpose of arrest might be one of those specifically referred to in s 99(1)(b) does not of itself prevent the arrest from being unlawful. Moreover, he says, if s 99 provided a power of arrest in circumstances where the purpose was not to take the arrested person before a justice and conduct a prosecution, that would need to be expressed in clear, unambiguous language [175] . That is so, he says, because the allowance of such a power abrogates, or curtails, both the common law purpose of arrest and the fundamental common law principle of personal liberty.

5. [240]

   The State contends that, in circumstances where it is clear that the current form of s 99 was introduced in order to broaden the powers of police arrest without a warrant, it is erroneous to assume that s 99 must operate in the same way as previous iterations [176] . The State contends that if the effect of the current form of s 99, properly construed, differs from previous iterations, which have been construed in previous cases, then the current form must be given effect according to its terms.

6. [241]

   The State accepts that an arrest will not be lawful if the purpose of the arrest is merely for making further inquiries or asking further questions. It also accepts that an arrested person must be brought before a justice as soon as reasonably practicable. However, the State says the purpose of bringing the arrested person before a justice as soon as reasonably practicable is more accurately described as being to bring the arrested person before a justice as soon as reasonably practicable, if a decision is taken to charge the person. The State contends that if the purpose is understood in that way, then any tension between the mental state required for arrest, on the one hand, and the mental state required for prosecution, on the other, will be removed. That is to say, while reasonable suspicion is sufficient for a lawful arrest, unless reasonable and probable cause is acquired before the expiration of the time within which it is reasonably practicable to bring the arrested person before a justice, the arrested person must be released without charge. The State contends that the purpose of arrest understood in that way is consistent with the requirement that what must be stated to an arrested person at the time of arrest is not necessarily the precise charge, if any, to be laid, but, rather, the true ground for the arrest [177] .

7. [242]

   The task of statutory construction begins with the text of the statute. There are several textual matters that point away from Mr Robinson's contentions.

8. [243]

   Section 99(1) specifies, in some detail, the state of mind that a police officer must hold in order lawfully to arrest a person without warrant. The section states expressly that a police officer may, without warrant, arrest a person if the relevant state of mind is shown to have existed. In those circumstances, the express language of s 99, which does not make any reference to an intention on the arresting officer’s part to charge the arrested person, is contrary to the existence of a further requirement as to the state of mind of the arresting police officer, as posited by Mr Robinson.

9. [244]

   Mr Robinson’s only response to the above proposition is that it is an overstatement to observe that the text of s 99(1) does not state the requirement posited by him. That contention calls for the recognition of an unexpressed requirement as to the state of mind of a police officer that is in tension with the state of mind for which express provision is made.

10. [245]

    Under s 99, it is a condition for a lawful arrest without warrant that the police officer suspects, on reasonable grounds, that the person is committing or has committed an offence. Nevertheless, Mr Robinson contends that before arresting a person without a warrant, a police officer must have reasonable and probable cause for commencing a prosecution.

11. [246]

    An arresting police officer will have reasonable and probable cause for commencing a prosecution if the arresting officer:

12. [247]

    In the case of arrest on suspicion, the arresting police officer must have satisfied himself or herself, at the time of the arrest, that there are reasonable grounds for suspecting the guilt of the arrested person. However, the grounds for the suspicion need not consist of admissible evidence. Suspicion is a state of conjecture or surmise where proof is lacking and the facts that can reasonably ground a suspicion may be quite insufficient to ground a reasonable belief. Nevertheless, a suspicion that something exists is more than a mere idle wondering whether it exists or not and there must be some factual basis for the suspicion. A suspicion is a positive feeling of actual apprehension or mistrust, amounting to a slight opinion but without sufficient evidence [179] . Consequently, a reason to suspect that a fact exists is more than a reason to consider the possibility of the existence of the fact. The reason to suspect is something that, in all the circumstances, would create in the mind of a reasonable person an actual apprehension or fear of the relevant matter [180] .

13. [248]

    However, the objective circumstances sufficient to show a reason to believe something must point more clearly to the subject matter of the belief than suspicion of the matter. Belief is an inclination of the mind toward assenting to, rather than rejecting, a proposition, and the grounds that can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture [181] .

14. [249]

    If a police officer must have reached that higher standard of having reasonable and probable cause to commence a prosecution before effecting a lawful arrest without a warrant, as Mr Robinson contends, the mental state necessary for a police officer to effect a lawful arrest without a warrant is something different from the mental state expressly referred to in s 99(1)(a), namely, suspicion on reasonable grounds. There is, therefore, a real tension between the express words of s 99(1)(a) and the implication for which Mr Robinson contends.

15. [250]

    Mr Robinson responds to the suggestion of tension or inconsistency between the state of mind required by s 99(1)(a) and the state of mind required to commence a prosecution by saying that the distinction is, in practice, unreal. Thus, he says, there is no reason to think that, in general, an arresting police officer would be unable properly to make a complaint or lay a charge until the officer had had an opportunity to question the person arrested.

16. [251]

    Moreover, while an arrested person must be brought before a justice, the time needed to bring the arrested person before a justice as soon as reasonably practicable is such as to allow time to decide whether or not to lay a charge. That is to say, even if there must be an intention to charge at the time of arrest, the actual decision to do so is the next step in the process. Thus, the purpose of bringing the arrested person before a justice as soon as reasonably practicable should be understood as being bringing the arrested person before a justice as soon as reasonably practicable if a decision is made to lay a charge against the person. Understood in that way, any tension between the mental state required for arrest and prosecution would be resolved. Reasonable suspicion is sufficient for arrest. If reasonable and probable cause to commence a prosecution is not reached by the expiry of the time within which it is reasonably practicable to bring the arrested person before a justice, the arrested person must be released without charge, as s 105 makes clear. That understanding is consistent with the fact that what must be stated to an arrested person at the time of an arrest is not the precise charge to be laid, if any, but, rather, the true ground for the arrest [182] .

17. [252]

    It is clear from s 105(1) that a police officer may “discontinue” an arrest at any time. Section 105(2) demonstrates that the discontinuance might be for any reason, including because it is more appropriate to deal with the matter in some other manner, such as by issuing a warning or a caution. Section 105(3) provides expressly that discontinuance may occur despite any obligation on the part of a police officer to take the arrested person before an authorised officer to be dealt with according to law. The concept of “discontinuance” of an arrest is consistent with arrest being a process, which commences at the time when an arrest begins and continues through the subsequent detention. Thus, it is the detention that is discontinued.

18. [253]

    When s 99 is read with s 105, it is clear that an arrested person might or might not be brought before an authorised officer to be dealt with according to law, depending upon the circumstances. Accordingly, while the arresting police officer must intend that the arrested person will be brought before an authorised officer, the police officer is not required to have decided that he or she will bring the person before an authorised officer for whatever reason. Those provisions, read together, recognise the kind of uncertainty on the point that may work on the mind of an arresting officer in the position of Constable Smith at the time of an arrest.

19. [254]

    Mr Robinson asserts that such a contention misunderstands the purpose of s 105(1), which, he says, does no more than make it clear that if a police officer changes his or her mind about proceeding with the charge originally contemplated because, for example, the original suspicion has been dispelled by further investigation, then the officer would be under no obligation to continue the arrest merely to satisfy the duty imposed by s 99(3) to take the arrested person before an authorised officer. Mr Robinson’s contention, of course, assumes the correctness of his basic proposition.

20. [255]

    Mr Robinson accepts that there is nothing on the face of s 99(1) that expressly addresses the state of mind of an arresting police officer at the time of the arrest, but contends that the imposition by s 99(3) of a duty on the police officer to take the arrested person before an authorised officer to be dealt with according to law, as soon as reasonably practicable, suggests the additional requirement posited by him. Mr Robinson says that there can be no occasion to take the arrested person before an authorised officer unless there is an intention to charge the person. He also points to the fact that s 99(3) is consistent with, and has its origins in, the common law.

21. [256]

    Again, Mr Robinson’s contentions do no more than repeat his basic proposition that there is an additional requirement that must be met before an arrest is lawful. The fact that s 99(3) imposes a duty on the police officer to take the arrested person before an authorised officer as soon as reasonably practicable, to be dealt with according to law, says nothing about the state of mind of the arresting police officer at the time of the arrest.

22. [257]

    It is clear from s 99(4) that a person who has been lawfully arrested under s 99(1) may be detained under Pt 9 for the purpose of investigating whether the person committed the offence for which the person was arrested and for any other purpose authorised by Pt 9. However, it is inconsistent with the facility for which Pt 9 provides that an arresting officer must, at the time of arrest, have concluded already that the arrested person will be charged. The notion underlying s 114(1) is that, following arrest, further investigation may be required before the commencement of criminal proceedings: the period of detention may need to be prolonged to permit that to occur. That indicates that, while the arresting police officer must have the intent to charge, the arresting officer is not required to have made the decision to do so.

23. [258]

    While the linking of Pt 9 to s 99 is significant, the arrest must be “lawful”. Whether or not an arrest is lawful depends upon the correctness of Mr Robinson’s basic proposition. Mr Robinson contends that the statutory provision for detention to investigate is not inconsistent with an intention on the part of the arresting police officer, at the time of the arrest, to charge the arrested person. By the operation of s 105, the arrested person will be released if any subsequent investigation dispels the police officer’s original suspicion that led to the formation of the intention to charge the arrested person. Those considerations rather support the conclusion that the link between Pt 9 and s 99 is equivocal as to the question presently under consideration.

24. [259]

    The State also contends that certain of the reasons specified in s 99(1)(b), for which a police officer may consider arrest of a person to be reasonably necessary, are inconsistent with the requirement posited by Mr Robinson. For example, the State says, the purposes specified in pars (ii), (iii), (v), (viii) and (ix) are more directed to the investigation of an offence or to the protection of the public, rather than to laying a charge. The State propounds, by way of example, the circumstance of a police officer happening upon a person standing over a body, who, upon seeing the police officer, seeks to flee. It suggests that that may readily be a circumstance in which the police officer forms a reasonable suspicion, not necessarily amounting to a positive belief, that the person committed an offence, such that arrest is necessary to stop the person’s flight. It would be difficult, the State says, to see how, without further investigation, the police officer could form a positive belief as to guilt so as to have reasonable and probable cause to commence a prosecution and therefore to charge a person. Nevertheless, the purpose of the arrest is not investigation. Rather, it is one or other reasons of the reasons set out in s 99(1)(b), depending on the circumstances. Additional information may be required to take the next step, which is limited by the six hour period in the Law Enforcement Act. Thus, a balance has been struck by the legislature.

25. [260]

    Mr Robinson contends that the five reasons in s 99(1)(b) relied upon by the State are not inconsistent with the existence of the requirement posited by him. Thus, he says, a power to stop a person fleeing from a police officer is consistent with an intention to charge, being necessary only if it is proposed by the police officer to take the person before an authorised officer to answer a charge. Mr Robinson says that the power to enable inquiries to be made to establish a person’s identity is not inconsistent with the posited requirement because it is only necessary to obtain the person’s identity if it is proposed that the person be charged.

26. [261]

    Mr Robinson also asserts that the power to obtain property in the possession of the arrested person that is connected with the offence can only be necessary for the purpose of securing evidence to be used against the person after a charge has been laid. Further, the power to protect the safety and welfare of persons other than the arrested person must, Mr Robinson asserts, be understood as concerning only those persons connected with, namely adversely affected by, the suspected offence. He says that the provision is consistent only with an intention on the part of the arresting officer to hold the arrested person accountable for the relevant offence. Finally, Mr Robinson says that the reference to the nature and seriousness of the offence should properly be regarded as supplementary to the considerations of securing the person’s attendance before a court and the protection of the safety or welfare of others. He asserts that it is self-evident that the more serious the offence, the greater the risk of flight.

27. [262]

    Mr Robinson asserts that all of the reasons set out in s 99(1)(b) are directed to the question of whether a Court Attendance Notice would be appropriate or whether, because of one or more of the considerations in s 99(1)(b), the police officer concerned could be satisfied that it is “reasonably necessary” to arrest. He asserts that that approach is consistent with the proposition that arrest should be reserved for circumstances in which it is clearly necessary and the proposition that it is inappropriate to resort to the power of arrest when issuing a Court Attendance Notice would suffice [183] . Those considerations support the conclusion that the matters relied on by the State in that regard are also equivocal as to the question presently under consideration.

28. [263]

    Consideration of the context provided by the Amending Act, and of the differences between ss 99 and 105 before and after the amendments effected by the Amending Act, may be significant. Such a comparison helps to identify the mischief to which the amendments were directed.

29. [264]

    First, the former s 99(3), which was expressed as a limitation on the power of arrest for the purpose of taking proceedings for an offence, has been deleted and incorporated in s 99(2), which no longer refers to the purpose of taking proceedings for an offence. That alteration weakens the connection between the arrest and the taking of proceedings, which lies at the heart of Mr Robinson’s contentions. It also makes clear that there is a second step required, namely, to decide to charge. The purpose is not to commence prosecution, since that is a discrete phase.

30. [265]

    Secondly, the reasons why a police officer may consider the arrest of a person to be reasonably necessary have been considerably expanded under the new s 99(1)(b) to include matters that are more directed to the investigation of an offence or for the protection of the public. That supports the State’s contention that the common law purpose of arrest, to bring the arrested person before a justice or court as soon as is reasonably practicable, is but one of a number of lawful purposes, or reasons, for arrest.

31. [266]

    Thirdly, if the reason for an arrest is, for example, to establish the identity of the arrested person rather than to charge the person, that purpose may be achieved relatively swiftly. The arrest may then be discontinued without bringing the person before an authorised officer. That would explain the introduction of s 105(3), as was acknowledged in the Parliamentary Report.

32. [267]

    Fourthly, the Parliamentary Report referred to the view that the former terms of s 99 were complicated and difficult to apply and were lacking in clarity, saying that the proposed amended form of s 99 was intended to be clearer, simpler and more transparent. The current form of s 99 does not sit easily with a continued insistence that the purpose of arrest must be to bring the arrested person before an authorised officer as soon as reasonably practicable, particularly when s 99 is linked expressly to the investigative provisions in Pt 9 by s 99(4). The recognition of implied limitations, going beyond those expressly stated in s 99, would sit uneasily with the purpose of simplifying the provision so that it would be clearer and more transparent. Such considerations militate against the recognition of an implied limitation to the effect that the arresting officer must, before arrest, have formed the intention to charge the arrested person.

33. [268]

    Mr Robinson contends that the text of s 99 is entirely consistent with the proposition for which he contends, as is the context in which s 99 was enacted and subsequently amended. He emphasises that the common law recognises as the only purposes of arrest and detention the purposes of charging the arrested person and taking the person before a court. He says that nothing in s 99 abrogates the right to personal liberty secured by the recognition of those purposes by the common law. He says that if the State’s contention were accepted, there would be nothing in ss 99, 105 or the provisions of Pt 9 that would prevent a person from being subjected to serial arrests in respect of the same offence despite the fact that, on the occasion of each arrest, albeit that on such occasions the arrest is effected in good faith, the arresting officer had formed no intention of laying a charge. He asserts that such an outcome would be contrary to the fundamental right of personal liberty and at odds with the only purpose of arrest recognised by the common law.

34. [269]

    It is difficult to imagine circumstances where there would be serial arrests that were all effected in good faith. The contention also ignores the fundamental stance adopted by the State that the current form of s 99 was intended to modify the common law, to the extent that the common law is inconsistent with the explicit terms of s 99.

Conclusion

1. [270]

   The dual requirements of ss 99(1)(a) and 99(1)(b) must be met. However, arrest is the start of a process that must end within a limited time, either by the person arrested being taken before an authorised officer or by the person being released pursuant to s 105. The fact that one of the two possible endings to the process is laying a charge against the person does not mean that there must be a positive intent to lay a charge at the beginning of the process.

2. [271]

   Mr Robinson’s contentions do not grapple with the textual and contextual matters outlined above but proceed by reference to case law concerned with other provisions, including earlier iterations of s 99. While such matters may be relevant to the construction of s 99, to the extent that analogous reasoning is persuasive or general principle is relevant, the decided cases in relation to earlier, differently worded provisions are not determinative of the proper construction of the current form of s 99.

3. [272]

   The restrictions that the common law places upon the purpose for which an arrested person may be held in custody may well, on occasions, hamper the police, sometimes seriously, in their investigation of crime and the institution of proceedings for its prosecution. That is to say, the jealousy with which the common law protects the personal liberty of the subject may not assist the police in the investigation of crime. However, such functions of the police are carried out in the interests of the community as a whole and not for some private end. Thus, legislative modification of such principles of the common law may be seen as reflecting a need that the common law does not meet. The striking of a balance between personal liberty and the exigencies of the investigation of crime is nevertheless a function of the legislature, not the courts. If the legislature considers that it is right to enhance the armoury of law enforcement, it is for the legislature to prescribe safeguards that might ameliorate the risk of unconscionable pressure being applied to persons under interrogation while being kept in custody [184] . In the absence of precise limits upon the power of police to detain an arrested person for questioning, the swing would be too far in favour of increased investigative powers at the expense of individual freedom [185] .

4. [273]

   The principle of the common law, that the freedom of an individual should not be restricted without a warrant simply for the purpose of investigation, is of fundamental importance. While s 99 does not modify the common law principle to the extent contended by Mr Robinson, it has modified the common law to the extent that there is no longer a requirement that the person be charged. It is clear that, by amending s 99, the legislature intended to introduce a second step in the arresting process, the first being to satisfy ss 99(1)(a) and 99(1)(b), and the second being the exercise of discretion by a police officer when deciding to charge. In that way, the ultimate purpose of arrest is still to bring the arrested person before an authorised officer, by laying a charge, and the arrest cannot be for the purpose of investigation.

5. [274]

   It follows that the conclusion of the primary judge was not erroneous and s 99 afforded a defence to the State against Mr Robinson’s claim. Mr Robinson’s appeal should be dismissed. Mr Robinson should pay the State’s costs of the appeal.