Reeves v State of New South Wales

BELL CJ: The Appellant, Mr Benjamin Reeves, appeals from a decision of Abadee DCJ (the primary judge) dismissing his claim against the Respondent, the State of New South Wales (the State), for compensatory, aggravated and exemplary damages for wrongful arrest, battery, false imprisonment and malicious prosecution, except in respect of the Appellant’s claim of false imprisonment to the extent that it was based on his detention being protracted for a short period of time, contrary to s 115(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA): Reeves v State of New South Wales [2023] NSWDC 196 (the primary judgment). The primary judge awarded the Appellant $5,000 in damages plus interest in respect of this limited aspect of the false imprisonment claim but declined to make any award of exemplary or aggravated damages in the circumstances: Reeves v State of New South Wales (No 2) [2023] NSWDC 232 (the Damages judgment).

In relation to each of the torts, the Appellant contended that the State was vicariously liable for the conduct of several New South Wales Police officers, namely Detective Sergeant Michaelson (DS Michaelson), Detective Langerak, Acting Sergeant Vickery and Senior Constable (SC) Abda.

The case arose out of events on 22 October 2020 when, at about 6.40pm, DS Michaelson and Detective Langerak arrested the Appellant as he was walking along the footpath at the corner of Blue Street and Miller Street in McMahons Point. In front of some people on the footpath, as well as motorists and cyclists, the Appellant was subjected to a “pat down” search, placed in the back of a police vehicle and handcuffed. He was then transported to Chatswood Police Station where he was subjected to another search and placed in a holding cell.

Whilst at the police station, the Appellant indicated that he did not wish to participate in an interview but was nevertheless taken by two officers into an interview room at about 8.10pm. In the interview room, the Appellant, having initially answered a number of questions, stated shortly after 8.14pm that he did not wish to answer any more questions and wished to remain silent. Nonetheless, DS Michaelson asserted a “common … law right to ask questions” of the Appellant and the interview proceeded for approximately 12 more minutes, during which time the Appellant remained silent. The interview by DS Michaelson concluded at 8.26 or 8.27pm.

Following the completion of a forensic procedure, in which the Appellant agreed to participate, DS Michaelson created a Court Attendance Notice (CAN) and Facts Sheet and updated the case narrative in the Computerised Operational Policing System (COPS) database, which also included entries that had been made earlier by SC Abda. The Appellant was subsequently charged with the offence of stalking pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (Domestic and Personal Violence Act) (the stalking charge). An application made to the Local Court by DS Michaelson for an interim Apprehended Personal Violence Order (APVO) was granted at 10.10pm and the APVO was served on the Appellant in custody. Police records indicated that the “charge process” was completed at 10.58pm at which time the Appellant was served with charge and bail papers. Having been granted bail by the Custody Manager, Acting Sergeant Vickery, the Appellant was released from Chatswood Police Station at 11.01pm.

The stalking charge and the APVO related to a complaint made by Ms Hannah Scarpino who, at the time of the Appellant’s arrest, was working at Zimmermann, a clothing store located in the Westfield shopping complex in the Sydney CBD. The facts are more fully exposed at [11]ff below but, for present and introductory purposes, it may be noted that Ms Scarpino first complained to police on 11 October 2020 after the Appellant was observed near her place of work and on public transport on a number of occasions after mid-September 2020. Ms Scarpino alleged that she was also approached by the Appellant in the Westfield food court in mid-September 2020 and again on 5 October 2020 in front of the Zimmermann store. Further information was provided to police on 20 October 2020 after the Appellant was observed on 19 October 2020 at a café near the complainant’s home in McMahons Point. At the time the Appellant was arrested, police were aware that the Appellant also resided in McMahons Point about 300-350 metres from Ms Scarpino’s home and the café where he was seen on 19 October 2020.

On 28 October 2020, the Appellant entered a plea of not guilty in respect of the stalking charge and, on 17 May 2021, Magistrate Barko dismissed the charge against the Appellant and revoked the interim APVO made on 22 October 2020. His Honour also awarded costs in favour of the Appellant pursuant to s 214 of the Criminal Procedure Act 1986 (NSW) (the Criminal Procedure Act) in relation to the defence of the stalking charge.

On 21 April 2022, by way of a Statement of Claim filed in the District Court, the Appellant commenced proceedings against the State for unlawful arrest, false imprisonment, battery and malicious prosecution. Apart from the sum of $5,000 awarded in relation to an aspect of his detention referable to the 12 minute period in which he continued to be questioned after he said he did not wish to answer any further questions, the proceedings were dismissed.

An extensive Notice of Appeal was filed on 8 September 2023 and the appeal was heard on 25 March 2024. The State also filed a Notice of Cross Appeal in respect of the primary judge’s findings as to the State’s liability for the Appellant’s false imprisonment in respect of which he was awarded damages of $5,000.

Before turning to the primary judgment, it is necessary to set out the largely undisputed facts, including the way in which events came to the police’s knowledge. That is material to a number of the alleged torts and grounds of appeal.

At the time of his arrest, the Appellant was 56 years old and was living on Mitchell Street in McMahons Point, as he had done for about 19 years. The Appellant had no prior criminal history. He was employed as the Chief Executive Officer of the Australian Association of Graduate Employers and worked in North Sydney.

The complainant, Ms Scarpino, was 21 years old and lived with her mother, Ms Carolyn Scarpino (Mrs Scarpino) and her mother’s partner, Mr Chris Dyson, also in McMahons Point. Ms Scarpino worked at the Zimmermann store in Westfield, Sydney CBD from Thursday to Sunday from 10.00am until 5.00pm.

In her statement to police made on 22 October 2020, Ms Scarpino recalled that she was standing inside the Zimmermann store in mid-September 2020 when she first saw the Appellant coming down the escalator from level 5 of Westfield. Her recollection was that he waved at her, and she waved back because he seemed “friendly”.

Ms Scarpino’s statement then recounted the following interaction with the Appellant:

Ms Scarpino informed her managers at Zimmermann, Ms Michelle Lee and “Sam”, of the incident. She also informed her boyfriend, Mr Rafael Policastro (who worked at a store three shops down from Zimmermann on level 4 of Westfield). Ms Scarpino’s WhatsApp messages with Mr Policastro suggest that this interaction with the Appellant took place on 19 September 2020. In those messages, Ms Scarpino said the following:

In her statement to police, Ms Scarpino recalled that she saw the Appellant “more and more” after her encounter with him in the food court. In particular, she recalled that, instead of catching the escalator straight down in the same section from level 5 to level 3 of Westfield, he would exit the escalator at level 4 and walk past the Zimmermann store to take the escalator inside the H&M store.

On another occasion, as Ms Scarpino recounted in her statement to police, she had seen the Appellant standing outside the store next to a “structure pole … not doing anything noticeable.” She again notified her manager, Sam. The following Whatsapp messages were sent by Ms Scarpino to Mr Policastro regarding this incident:

In his statement to police, Mr Policastro recalled that on 30 September 2020 at about 5.30pm, he was going down the escalators from level 4 to level 3 near the Zimmermann store when he saw a person meeting Ms Scarpino’s description of the Appellant walking “really slowly pasty [sic.] Zimmerman [sic.] and … looking inside like he was looking to see if there was anyone in there.” Messages sent by Mr Policastro to Ms Scarpino record the following about that interaction:

On one occasion in early October 2020, between 5.30pm and 6.00pm, Ms Scarpino was on the train from Town Hall to North Sydney with Mr Policastro and another co-worker, Ms Eleanor (“Ellie”) Tickle. When the train stopped at Wynyard, Ms Scarpino recalled seeing the Appellant come down the stairs to the bottom level of the carriage in which she, Mr Policastro and Ms Tickle were sitting. In her statement, Ms Scarpino said that she told Mr Policastro that the Appellant was the “guy [she had] been seeing everywhere” and asked Mr Policastro to kiss her so the Appellant would know she had a boyfriend. About a minute later, she checked to see if the Appellant was still in the carriage but she could not see him. Both Mr Policastro and Ms Tickle also recalled seeing the Appellant on the train with Ms Scarpino on that occasion in early October. However Mr Policastro’s recollection was that the Appellant had gotten on the train at Wynyard and had “looked at” Ms Scarpino before walking to the next carriage.

On 5 October 2020, Ms Scarpino again interacted with the Appellant. She said the following about that interaction in her statement to police:

Immediately after the incident, Ms Scarpino recalled informing her co-worker, her manager, Sam, and Mr Policastro of her interaction with the Appellant. In Whatsapp messages with Mr Policastro, Ms Scarpino said the following:

On 8 October 2020 at about 6.00pm, Mr Policastro interacted with the Appellant as he was walking past the Zimmermann store towards the escalators. In his statement, Mr Policastro recalled approaching the Appellant, who he said “looked like he was walking as if he had just checked to see if Zimmerman [sic.] was open”, and having the following conversation with him:

At about 6.04pm, Mr Policastro filmed a 15 second video of his interaction with the Appellant. Mr Policastro then recounted having the following conversation with the Appellant:

Not long afterwards, Mr Policastro said he saw the Appellant about 50 metres in front of him going towards Wynyard Station and recalled that the Appellant “was checking to see if anyone was following him” and was “looking worried.” Mr Policastro took a photo of the Appellant at 6.15pm after they had both entered Wynyard Station via George Street. Mr Policastro then observed the Appellant go up the escalator towards where the buses depart, which he thought was odd because he had seen the Appellant on the train previously. Later, at about 6.20pm, Mr Policastro said he saw the Appellant come up the stairs to the train platform at which point Mr Policastro took a photo of him. At 6.22pm, Mr Policastro took another photo of the Appellant, who he described as “physically shocked” and “surprised” after he saw Mr Policastro on the train. When the train stopped at Milsons Point, Mr Policastro’s recollection was that the Appellant waited until the doors were about to close before suddenly rushing off the train, as if to make sure he was not followed.

On the same day (although Ms Scarpino’s recollection was that it was on 9 October 2020), Ms Lee, in her statement to police, recalled having a conversation with Ms Scarpino about her interactions with the Appellant after having been informed about the events of 5 October 2020 by Sam. Straight after her conversation with Ms Scarpino, Ms Lee’s recollection was that she called Westfield Security and checked the Zimmermann security footage. In that footage, Ms Lee remembered observing Ms Scarpino leaving the store at about 4.20pm on 5 October 2020 and, before she returned through the doorway of the store, “two legs come into the frame following her very closely” and that Ms Scarpino did not come back into the store “for a minute or two”.

A short time later, a Westfield Security guard, Mr Jean Paul Achterberg (JP), came to the Zimmermann store to confirm some of the details of the matter with Ms Scarpino and Ms Lee. Ms Scarpino recalled that JP said he would review the CCTV footage. In his statement to police, JP said the following of the security footage:

Ms Scarpino recalled that a short time later, after reviewing the CCTV footage, JP returned to the Zimmermann store and said the following:

On 11 October 2020, Ms Scarpino reported the matter at Day Street Police Station. She also provided police with the photos of the Appellant taken by Mr Policastro. SC Lagana created the first COPS entry in the matter recording that Ms Scarpino’s complaint was made at 7.00pm and, at 11.38pm, he supplied the following narrative which roughly recorded the course of the events between mid-September and 11 October 2020 set out above:

Notably, a number of details included in this COPS entry made by SC Lagana did not find their way into the statements ultimately made by Ms Scarpino and Mr Policastro on 21 October 2020, and which were relied upon before Magistrate Barko. As Mr Sexton SC who appeared for the State pointed out in argument, those details included the fact that the Appellant had been “looking directly” at Ms Scarpino in the store and “on several occasions waving to … get her attention” as well as the fact that Ms Scarpino had “asked [the Appellant] to leave her alone” and the fact that he asked her “where in North Sydney she lives.”

On 15 October 2020, SC Lagana emailed Ms Scarpino regarding the matter. Ms Scarpino’s recollection was that, on the same day, she and Mr Policastro went on a short holiday from which they returned on 20 October 2020. Mr Policastro also recalled going on this holiday.

At about 9am on 19 October 2020, Ms Scarpino’s mother, Mrs Scarpino, recalled that she was standing outside the restaurant “Piato” on Blues Point Road in McMahons Point waiting for her coffee when she saw a man who she recognised from the photos of the Appellant taken by Mr Policastro that she had been shown by Ms Scarpino. Mrs Scarpino saw the man walk past the post office and look inside before walking away up Mitchell Street. As set out above, the Appellant resided on Mitchell Street.

Mrs Scarpino then called her partner, Mr Dyson to inform him of what she had seen. Mr Dyson and Mrs Scarpino both attempted to find the man on the streets around Blues Point Road and Mitchell Street but could not do so.

In his statement to police, Mr Dyson recounted that at about 12.30pm on the same day, he was returning from the city and arrived at North Sydney Station. He identified a man who he thought resembled the man Mrs Scarpino had described. Mr Dyson attempted to take a photo of the man he saw but was unhappy with that photo so he ran back to get in front of the man and said “Don’t I know you” before taking a photo of the man on his phone. He then texted Mrs Scarpino this photo and enquired whether it was the same man she had seen earlier in the day.

On 20 October 2020, Ms Scarpino had returned from her short holiday with Mr Policastro and was told by her mother about the sighting of the Appellant the previous day. In her statement to police, Ms Scarpino recounted the following about the conversation with her mother:

At around 9.30pm on 20 October 2020, Ms Scarpino attended the North Sydney Police Station. She provided police with information about the sighting of the Appellant in McMahons Point on 19 October 2020 and copies of text messages between herself and Mr Policastro about the incident. SC Lagana updated the COPS narrative at 4.58am on 21 October 2020. That narrative noted that Mrs Scarpino “saw the POI … loitering around the post office and café ‘Piato’ … which is next door to where the vic lives.”

At about 4.00pm on 21 October 2020, DS Michaelson was briefed in relation to the matter and reviewed the evidence which was then contained in a physical “case file”. The COPS system records that SC Abda took carriage of the matter at 5.50pm on the same day.

At about 10.30pm on 21 October 2020, Ms Scarpino and Mr Policastro provided their statements to police.

At 1.39am on 22 October 2020, SC Abda added a further narrative of the incident into the COPS system which formed the basis of the “Full Facts” set out in the CAN later created by DS Michaelson. That narrative included the following:

The narrative created by SC Abda also included the following matters which had not yet taken place but which were no doubt included in anticipation of them shortly occurring with details to be added in due course:

At 3.43pm on 22 October 2020, DS Michaelson received an email from SC Abda who recommended that the Appellant be arrested and provided DS Michaelson with the Appellant’s name and address which was obtained in response to an “iAsk” request sent to Roads and Maritime Services (RMS). By way of facial recognition technology, RMS identified the Appellant as the man in the images taken by Mr Dyson and Mr Policastro.

DS Michaelson gave evidence that he was more senior than SC Abda and said in respect of SC Abda’s view that the Appellant should be arrested that he “took his views on board” but rejected any suggestion that he had deferred to SC Abda.

Under cross-examination, DS Michaelson accepted that at the time he received the results of the iAsk request, he realised that the Appellant lived about 300-350 metres from where Ms Scarpino lived and from the café where the Appellant was seen by Mrs Scarpino. Although DS Michaelson accepted that this information was “certainly material” to the prosecution of the Appellant for the stalking charge, his evidence was that it was not the entirety of the information upon which he formed his suspicion that the Appellant had committed the offence.

At around 5.00pm on 22 October 2020, DS Michaelson attended the Westfield Security Office where Mr Faapoi supplied him with a USB containing the CCTV footage from 5 October 2020 that JP had reviewed and discussed with Ms Scarpino (see [27] above).

On 22 October 2020, DS Michaelson, together with Detective Langerak, drove towards the Appellant’s address. At about 6.40pm, DS Michaelson pulled his car over and arrested the Appellant whom he had spotted on the corner of Blue Street and Miller Street in North Sydney. Both DS Michaelson and Detective Langerak were in plain clothes. At the time that the Appellant was stopped on the street, DS Michaelson informed the Appellant that he would be activating his body worn camera.

After activating his camera, DS Michaelson informed the Appellant that he was under arrest for the offence of stalking and that he was “not obliged to say or do anything”. Subsequently, DS Michaelson asked the Appellant to remove all items from his pockets and hand them to Detective Langerak. DS Michaelson thereafter conducted a “pat down” search of the Appellant. At the time the search was conducted, there were a number of pedestrians on the footpath as well as vehicles and bicycles on the road.

During the search, DS Michaelson informed the Appellant of the general nature of the allegations against him. In particular, DS Michaelson told the Appellant that the allegation of stalking pertained to a “young lady that works at the Zimmermann store”. The Appellant accepted that he had been to Westfield and that he may have engaged with a woman about 21 years old who worked at Zimmermann, but that he was not sure. He stated that he did not know anyone who worked at Zimmermann by name.

The only police officer called to give evidence in the proceedings at first instance was DS Michaelson. He gave evidence that, immediately prior to arresting the Appellant, he believed that the Appellant had committed the offence of stalking on the basis of his review of the CCTV footage, the statements of Ms Scarpino, Mr Policastro and Mr Faapoi and the COPS entries.

DS Michaelson also gave evidence that he considered it was reasonably necessary to arrest the Appellant. In respect of his consideration of the alternatives to arrest, DS Michaelson’s evidence was as follows:

When DS Michaelson was cross-examined as to why he had formed the belief that the risks he identified would be better mitigated by arresting and charging the Appellant than by issuing an APVO, DS Michaelson offered the following explanation:

DS Michaelson also gave evidence that he understood that arrest was “an option of last resort” and accepted that he could have served a future CAN and an APVO on the Appellant without arresting him but that he did not think it was “appropriate in the circumstances”. DS Michaelson’s evidence was that arresting the Appellant:

When it was put to DS Michaelson that the evidence supported what was described as the Appellant’s intention to be “friendly”, and not to instil fear in Ms Scarpino, DS Michaelson’s evidence was that while there was some evidence to support that this was the Appellant’s intention, there was “other evidence which points the other way as well.”

Following the pat down search, DS Michaelson informed the Appellant of what would take place upon his arrival at the nearest police station, including that DS Michaelson would “explain further the allegations”. The Appellant was also told that he would be taken to the nearest police station in the back of the police car and for that reason, would need to be handcuffed.

DS Michaelson determined that the nearest police station was Chatswood Police Station and explained to the Appellant the process by which he would be transported to that police station in the back of the police vehicle. The following exchange between the Appellant and DS Michaelson is captured on the body worn camera footage:

At around 6.46pm, DS Michaelson commenced driving the police vehicle to Chatswood Police Station with Detective Langerak and the Appellant in the back seat of the vehicle.

DS Michaelson’s body worn camera footage captured the police vehicle arriving at Chatswood Police Station at around 7.00pm. However, the Appellant’s Custody Management Record, which was in evidence, created by the Custody Manager, Acting Sergeant Vickery, lists the Appellant’s time of arrival at the police station as being 7.21pm.

The Custody Management Record also sets out the “Original Grounds for Detention” as being “LEPRA 99(1)(b)(i) Stop repetition or another offence”. DS Michaelson accepted under cross-examination that there had been no repetition of the stalking offence since 5 October 2020.

Between 7.00pm and 8.08pm, the Appellant largely remained in a cell referred to as “dock 2”. At 7.23pm, Acting Sergeant Vickery read the Appellant his rights under Pt 9 of LEPRA and conducted visual and vulnerability assessments of him.

Between 7.43pm and 8.01pm, the Appellant made a phone call to his solicitor, Mr Osman Samin, in the “custody area”.

At 8.08pm, the Appellant was moved to the “ERISP room” or “interview room”. At 8.10pm, DS Michaelson and Detective Langerak commenced conducting an interview with the Appellant. At the outset of the interview, DS Michaelson informed the Appellant that he was “not obliged to say or do anything”. After answering some preliminary questions, the Appellant informed police that he did not “want to answer any more questions” after which point the following interaction occurred:

DS Michaelson’s evidence as to why he persisted with the interview after the Appellant had indicated that he did not wish to participate was that he “wanted to ensure that he [the Appellant] was aware of the allegation, and the breadth of it.” DS Michaelson also gave evidence that he believed he had a “common law right to ask questions”, although he could not recall the source of that common law right. He rejected the suggestion that keeping the Appellant in the interview room was a “futile exercise”.

Between 8.38pm and 8.42pm, the Appellant again spoke with his lawyer. At 8.44pm, a forensic procedure was commenced which was completed at about 8.50pm.

At 8.41pm, DS Michaelson texted SC Abda the following, obviously referring to the interview:

At 8.58pm, SC Abda texted DS Michaelson asking whether there was “[a]nything in the other event?” DS Michaelson gave evidence under cross-examination that he interpreted SC Abda as referring to Mrs Scarpino’s sighting of the Appellant in McMahons Point on 19 October. DS Michaelson replied at 9.02pm: “It was him but he lives in that immediate area.”

DS Michaelson commenced the charge process at 9.08pm by creating the CAN. His evidence was that the Facts Sheet would have been authored “shortly after” that. Although it was put to DS Michaelson under cross-examination that the process of creating the CAN and Facts Sheet should only have taken a few minutes, DS Michaelson’s evidence was that this process “quite possibly” would have required more than 10 minutes. The Appellant’s Custody Management Record recorded that the “charge process” commenced at 9.09pm and concluded at 10.58pm.

The CAN listed the “Officer in Charge” as SC Abda. It also stipulated that the date range for the alleged offending behaviour was between 4.00pm on 21 September 2020 and 11 October 2020. In other words, the CAN did not include the fact that Mrs Scarpino and Mr Dyson had sighted the Appellant on 19 October as being within the date range for the offending behaviour.

The Facts Sheet replicated the COPS narrative entered by SC Abda at 1.39am on 22 October 2020 (see [38] above). It also included the following five paragraphs which were based on the matters included in the COPS narrative by SC Abda set out at [39] above:

DS Michaelson accepted under cross-examination that “the bulk” of the information contained in the Facts Sheet had been drawn from SC Abda’s COPS entry made on 22 October 2020 at 1.39am.

DS Michaelson also gave evidence under cross-examination that, after creating the Facts Sheet, he would have sent it together with the CAN to Acting Sergeant Vickery to determine the question of bail and that he would have done so “electronically” and “as soon as reasonably practicable” after completing those documents.

The State submitted that the completion of the Facts Sheet and CAN was at about 9.50pm. In support of this submission, the State pointed to a COPS entry made by DS Michaelson at 9.51pm which, by way of an automated process, constituted an application to the Local Court for an interim APVO. The COPS entry replicated the information contained under the heading “Full Facts” on the Facts Sheet as “Grounds of the Application” for an APVO. The following was also included:

The Appellant’s submission was that, although DS Michaelson did not “know the exact time” it took him to complete the CAN and Facts Sheet and send them to Acting Sergeant Vickery, it must have been by 9.30pm on the basis that DS Michaelson had accepted that “comparative to normal”, it was a “fairly simple and quick process” to generate the Facts Sheet and CAN because he had “simply added in the second, third and fourth paragraphs” of the five paragraphs set out at [66] above. The Appellant argued that on this basis it could not be properly concluded that the process of generating the Facts Sheet and CAN took 42 minutes (from 9.08pm-9.50pm), particularly in circumstances where the electronic record as to the timing of the provision of these documents by DS Michaelson to Acting Sergeant Vickery was not in evidence.

At 10.10pm, DS Michaelson sent SC Abda a text indicating he was “Waiting for PVO”. This was in reply to a text from SC Abda at 9.24pm which read: “Heading back soon?” The APVO was in fact issued at 10.10pm by David Piper, a Local Court Registrar.

DS Michaelson agreed that there was a period of time where the Appellant remained in custody after the CAN and Facts Sheet had been completed and when the APVO was issued. DS Michaelson accepted that ss 114-116 of LEPRA (see [93] below) do not authorise the detention of a person pending the issuing of an APVO but indicated that whether the Appellant was granted bail or released, was “a matter … entirely for the custody manager”. The Custody Manager was Acting Sergeant Vickery.

At 10.50pm, Acting Sergeant Vickery signed off the Appellant’s bail conditions and the Appellant was released on bail shortly after 11.00pm. It was not disputed at first instance, nor on appeal, that the Appellant’s bail conditions mirrored the proscriptions contained in the APVO. Nonetheless, as set out at [64] above, the Appellant’s Custody Management Record notes that the “charge process” was completed at 10.58pm. Another entry, also on the Appellant’s Custody Management Record, noted that the Appellant was supplied with all charge and bail paperwork at 10.58pm.

It was the Appellant’s submission that the charge process must have been completed before the Appellant was granted bail because the Bail Act 2013 (NSW) (Bail Act) is not engaged until a person has been charged. That argument is dealt with later in these reasons.

Acting Sergeant Vickery was also managing an additional two people in custody at Chatswood Police Station at the same time as the Appellant was in custody. Custody Management Records indicate that at 8.43pm, a 16 year old offender arrived at the station. Acting Sergeant Vickery read him his rights pursuant to Pt 9 of LEPRA and conducted a vulnerability assessment and inspection at 8.45pm. At 8.59pm, a 17 year old offender arrived at Chatswood Police Station. Acting Sergeant Vickery read that young person their rights at 9.00pm and, at the same time, conducted a vulnerability assessment and inspection.

At 9.20pm and 9.23pm respectively, Acting Sergeant Vickery conducted an additional inspection of the 16 year old and 17 year old offenders. At 9.32pm, he referred the 17 year old offender to Youth Legal Services and at 9.40pm, provided the 17 year old offender with dinner. Custody Management Records then indicate that Acting Sergeant Vickery commenced the charge process in relation to the 17 year old offender at 9.50pm and also at 9.50pm, conducted an inspection of the 16 year old offender. The charge process in relation to the 16 year old offender commenced at 9.56pm. Additional inspections of the 17 year old offender took place at 10.00pm and 10.30pm while inspections of the 16 year old offender occurred at 10.30pm and 11.00pm.

The Appellant submitted that limited reliance could be placed on the Custody Management Records in relation to the other two accused persons detained at Chatswood Police Station in light of “difficulties” with Acting Sergeant Vickery’s record keeping and on the basis that those records were adduced after DS Michaelson had given evidence, with the consequence that their accuracy had not been attested to by any witness. That argument is dealt with in relation to grounds 8 and 9 of the appeal.

The Appellant was released at 11.01pm, shortly after being supplied with all charge and bail paperwork at 10.58pm.

At 6.08am on 23 October 2020, DS Michaelson created a “situation report” which replicated much of what was set out in the Facts Sheet. He accepted that, in that report, he had referred to the Appellant sitting near Ms Scarpino, Ms Tickle and Mr Policastro on the train, but he could not recall where he had obtained that information. DS Michaelson also accepted that he had referred to the Appellant as “loitering” near Ms Scarpino’s home in McMahons Point, consistent with the COPS narratives and Facts Sheet, but that he had not mentioned that the Appellant also resided in that area, and this was a matter that he should have included. DS Michaelson rejected the suggestion that the use of the word “loitering” was inapposite in light of Mrs Scarpino’s statement which described the Appellant walking through the area.

On 29 January 2021, the Appellant’s lawyer made representations to SC Abda inviting the withdrawal of the charges against the Appellant. Those representations were considered internally between 4 March and 23 April 2021.

On 4 March 2021, SC Abda recommended by way of a document called a “Godfrey Report” that the proceedings should be continued. Under the heading, “COMMENTS”, SC Abda wrote the following:

Under the heading “Supervisor Sergeant”, DS N. Apolony wrote the following:

DS Michaelson could not recall any conversation with SC Abda about the withdrawal of the charges against the Appellant.

On 28 October 2020, the Appellant pleaded not guilty to the stalking charge.

On 17 May 2021, the Appellant appeared in the Local Court before Magistrate Barko in relation to the stalking charge. An application for a final APVO was also made.

Magistrate Barko dismissed the stalking charges on the following basis:

Nonetheless, Magistrate Barko acknowledged in his reasons for dismissing the charges that “there was always going to be a prima facie case”.

Magistrate Barko also revoked the interim APVO and did not make a final APVO on the basis that his Honour was not satisfied “on the balance of probabilities that there are reasonable grounds for the complainant to hold whatever fears I accept she may genuinely have.”

In respect of the Appellant’s application for criminal costs, Magistrate Barko reasoned as follows:

Before turning to consider the primary judgment, extracts of the legislation relevant to the events in question should be set out.

Section 13 of the Domestic and Personal Violence Act provides the following:

Section 99 of LEPRA provides the following:

Sections 114-116 of LEPRA are as follows:

In respect of the lawfulness of the Appellant’s arrest, the primary judge was satisfied that, pursuant to s 99(1)(a) of LEPRA, DS Michaelson honestly suspected on reasonable grounds that the Appellant had committed the offence of stalking: PJ [135]. His Honour also held that DS Michaelson was satisfied that it was reasonably necessary to arrest the Appellant on the basis of one or more of the reasons provided in s 99(1)(b) of the LEPRA: PJ [154]. The primary judge went on to hold that the Appellant’s claim in battery, which was premised upon a finding that his arrest was unlawful, failed: PJ [157].

In relation to the Appellant’s claim that, in conducting the post-arrest search there was a breach of s 32(4)(a) of LEPRA, which provides that police officers must conduct a search in a way that provides reasonable privacy, the primary judge held that it was not clear how a breach could arise when the arrest was lawful and that the bare fact that the search was conducted on a public street did not mean that the Appellant’s privacy was breached: PJ [162].

The primary judge also held that, given his finding that the Appellant’s arrest was lawful, the Appellant was unable to establish that all of his subsequent period of custody constituted false imprisonment: PJ [170]. However, his Honour went on to find that it was unreasonable for the police to have detained the Appellant in the interview room from 8.16pm (the point of time at which the Appellant had indicated that he did not wish to answer questions) until the conclusion of the interview at approximately 8.32pm: PJ [183]. The primary judge reasoned that, even though the police officers had the lawful authority to take the Appellant into custody, it did not follow that they could “put him where they liked for any purpose and for however long they wanted” such that, within this discrete period, the Appellant was falsely imprisoned: PJ [185]-[186].

Nonetheless, the primary judge held that “it was not unreasonable for the investigation period to extend to 10.50pm” when the bail conditions were acknowledged by Acting Sergeant Vickery and that “Some leeway was to be permitted to police officers in relation to the Appellant’s release at 11.01pm”: PJ [191]. As such, the primary judge rejected the Appellant’s contention that he was falsely imprisoned from 9.40pm, the time at which the Appellant contended that DS Michaelson completed the charging process, until his release: PJ [192].

The Appellant’s claim in malicious prosecution was rejected by the primary judge on the basis that neither DS Michaelson nor SC Abda, who his Honour found were prosecutors for the purposes of the tort (PJ [199]), were actuated by malice in instituting and maintaining the proceedings against the Appellant: PJ [204]-[206]. His Honour was also not persuaded that the Appellant had proven there was an absence of reasonable and proper cause in bringing the stalking charge: PJ [215].

The primary judge held that s 3B(1)(a) of the Civil Liability Act 2002 (NSW) (CLA) did not apply to exclude the application of s 43A of the same Act. First, his Honour held that “The injured feelings that Mr Reeves associated with being detained in the interviewing room after he had indicated that he did not wish to participate in the interview” did not constitute an “injury” for the purposes of s 3B(1)(a): PJ [233]. Second, the primary judge held that DS Michaelson did not intend to injure Mr Reeves: PJ [240].

Nonetheless, the primary judge held that s 43A of the CLA was not engaged in a way that would affect the State’s liability for false imprisonment on the basis that the State did not identify what statutory power DS Michaelson had to continue to question Mr Reeves after he indicated that he did not wish to participate in the interview: PJ [249].

In relation to damages, the primary judge considered that an award of $5,000 appropriately took into account the “injured feelings” identified by the Appellant after he indicated that he did not wish to participate in the interview and his “justifiable indignation” that he was unlawfully detained in the interview room: Damages judgment at [31]. His Honour did not accept that there should be an additional award for either aggravated or exemplary damages: Damages judgment at [44], [57].

The Appellant was ordered to pay 50% of the State’s costs of the proceeding: Reeves v State of New South Wales (No 3) [2023] NSWDC 243.

The Appellant relies on the following extensive Grounds of Appeal:

The State’s Notice of Cross Appeal raises the following grounds:

This ground may be quickly disposed of. At PJ [132], the primary judge noted:

Mr Sexton’s submission from the Bar Table as recorded in this passage of the PJ was supported by evidence that was before the Court, namely paragraphs [31] and [32] of Ms Scarpino’s police statement and paragraph [19] of Mr Policastro’s statement (referred to at [30] above). This was not a case of “giving evidence” from the Bar Table in the sense that what was indicated was not in fact supported by any evidence. Rather, as one would expect from counsel of Mr Sexton’s seniority and care, what he indicated to the primary judge was entirely supported by the evidence in the case.

It is next convenient to turn to ground 4 given the submission by Mr Hooke SC, who appeared for the Appellant, that the disposition of this ground would affect the resolution of grounds 3, 5, and 6.

By ground 4 of the appeal, the Appellant contends that the decisions of Basten JA in State of New South Wales v Randall [2017] NSWCA 88 (Randall) and AD v State of New South Wales [2023] NSWCA 115 (AD) concerning the operation of s 99(1)(b) of LEPRA were wrongly decided, with the consequence that the primary judge erred in holding that DS Michaelson had complied with s 99(1)(b). Section 99 is set out at [92] above.

In Randall, Basten JA held that s 99(1) of LEPRA:

McDougall J, with whom Sackville AJA agreed (at [79]), refused leave to appeal, despite finding that the primary judge had erred in his Honour’s application of s 99 of LEPRA. This was because, firstly, correction of those errors would have required a new trial at great cost, secondly, the principles associated with s 99 of LEPRA were “well-established” and the importance of them was vindicated by emphasising the failure of the primary judge to deal with them and, thirdly, the State’s complaints on appeal were largely a product of the way in which it put its case at trial such that the grant of leave would permit it to argue a case that was not open before the primary judge: at [138]-[142].

In AD, the Applicant sought leave to appeal from a decision dismissing her three causes of action, namely false imprisonment, trespass and misfeasance in public office. In relation to the arresting officer’s state of satisfaction pursuant to s 99(1)(b) of LEPRA, the primary judge had held that the decision to arrest could only be impugned on the basis of “Wednesbury unreasonableness” and dismissed any suggestion that the availability of review on this basis had been disapproved of in Jankovic v Director of Public Prosecutions [2020] NSWCA 31; (2020) 281 A Crim R 357 (Jankovic).

On appeal, albeit without reference to Jankovic, the Applicant argued that the primary judge had erred in applying the concept of “Wednesbury unreasonableness” to s 99(1)(b). In dismissing those arguments, at [25]-[28], Basten JA, with whom Meagher JA agreed (at [1]), held in respect of s 99(1)(b) of LEPRA that:

In Jankovic at [7], White JA encapsulated the point that Basten JA had made in Randall as follows:

His Honour had pointed out at [6] of his judgment that:

It was put by the Appellant in the present case that Basten AJA in AD was incorrect to say (at [26]) that “the approach in Hyder was subsequently adopted in relation to s 99 by this Court in [Randall]” because neither McDougall J nor Sackville AJA had expressly approved of the statement of principle offered by Basten JA in Randall at [13]. However, as set out at [110] above, both McDougall J and Sackville AJA held that the principles in relation to s 99 of LEPRA were well-settled and did not raise an issue warranting the grant of leave to appeal: Randall at [74], [140]. Contrary to ground 4, I do not consider that either Randall or AD were incorrectly decided. The interpretation afforded to s 99(1) of LEPRA by Basten JA is consistent not only with the language of the statute but the deliberate legislative change in 2013 referred to by White JA in Jankovic.

The Appellant sought to generate a conflict between the decision of Barrett AJA in Jankovic and Basten JA in Randall and AD but I do not think that any conflict arises and, even if it did, the interpretation of s 99(1) given by Basten JA should be preferred. Barrett AJA’s decision was focused on whether reasonable necessity required an arresting police officer to consider alternatives to arrest. His Honour referred to considerations of proportionality by reference to the decision of Kiefel J in Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2 (Wotton) in order to suggest that something more akin to an objective rather than subjective inquiry was to be made in relation to whether the arresting officer held the requisite state of satisfaction. To the extent that Barrett AJA’s observations were derived from the reasons of Kiefel J in Wotton, it should be noted that her Honour wrote separately in that case and was considering a different statutory regime from s 99(1) of LEPRA, namely s 200(2) of the Corrective Services Act 2006 (Qld) which provided that the Parole Board could grant a parole order containing conditions that, pursuant to s 200(3) of the same Act, it “reasonably considers necessary” to “ensure [a] prisoner’s good conduct” or “stop [a] prisoner committing an offence”. That provision, unlike s 99(1)(b) of LEPRA, involved no element of subjectivity.

It was put that this Court should prefer the reasoning of Barrett AJA on two bases. First, it was argued that the principle of legality which, as established in North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 at [11] applies to the interpretation of arrest powers, necessitates that a construction of s 99(1)(b) be adopted which avoids or minimises encroachment upon fundamental rights and freedoms. The Appellant contended that Barrett AJA’s interpretation of s 99(1)(b) in Jankovic, by introducing an objective component, encroached less on the right to liberty than the construction adopted by Basten JA in Randall and AD.

However, the principle of legality, important thought it undoubtedly is, only provides that where a piece of legislation is susceptible of two or more meanings, in the absence of “unmistakable and unambiguous language”, it will not be construed to interfere with fundamental common law rights, freedoms, immunities or principles: Coco v The Queen (1994) 179 CLR 427 at 437, 446; [1994] HCA 15. The principle of legality is not a means by which a requirement of objective reasonableness may be implied into the terms of an otherwise unambiguous statutory provision.

Secondly, the Appellant submitted that the approach in Jankovic was consistent with that taken by Ierace J in Director of Public Prosecutions (NSW) v Greenhalgh [2022] NSWSC 980 at [186] in relation to s 230 of LEPRA which provides that “it is lawful for a police officer exercising a function under this Act or any other Act or law … to use such force as is reasonably necessary to exercise the function”. His Honour held that a use of force is “reasonably necessary” where “a reasonable person in the position of the police officer would not consider the use of force … to be disproportionate to the risk or danger sought to be prevented”: at [186]. The Appellant argued that there was no meaningful difference between the use of the term “reasonably necessary” in s 230 and in s 99(1)(b). That submission should be rejected. As the State pointed out, s 99(1)(b) can be distinguished from s 230 of LEPRA on the basis that s 230 has no subjective element and, instead, in terms only involves an assessment as to what was reasonably necessary at the time a police officer used force in exercising a function.

In support of its submission there was no tension between the reasons of Barrett AJA in Jankovic and Basten JA in Randall and AD, the State also pointed to the fact that any such tension was not addressed by Barrett AJA in Jankovic in circumstances where White JA referred to the decision in Randall in his Honour’s separate reasons, nor was it discussed by Basten JA in AD in circumstances where, as set out above, the primary judge had rejected an argument that the test in Randall was incorrect in light of Barrett AJA’s decision in Jankovic.

In any event, the State submitted that the reasoning of Basten JA in Randall and AD was correct and that there was no reason to depart from it. It was put that the Appellant did not demonstrate that Randall was “plainly” or “clearly wrong” or that there were compelling discretionary reasons that it should not be followed: Hill v Zuda (2022) 275 CLR 24; [2022] HCA 21 at [25]. I agree.

Ground 4 of the appeal should be rejected for the foregoing reasons. Ground 3 of the appeal, which was contingent on the Court concluding that Randall and AD were incorrectly decided, should, consequently, also be rejected.

By ground 5 of the appeal, the Appellant submitted that if (as I have held) Randall and AD were not incorrectly decided, the primary judge nevertheless erred in failing to find that DS Michaelson’s state of satisfaction that the arrest of the Appellant was reasonably necessary for the purposes of s 99(1)(b)(viii) and (ix) of LEPRA was manifestly unreasonable or arbitrary, capricious, irrational or not bona fide.

There was nothing, in my view, manifestly unreasonable or arbitrary, capricious, irrational or lacking in bona fides about DS Michaelson’s state of satisfaction.

The police had received complaints of behaviour of a much older man (the Appellant) appearing on multiple occasions at, or in the immediate vicinity of, Ms Scarpino’s workplace, staring into the Zimmermann store; engaging Ms Scarpino on one occasion in the food court in an antisocial and uninvited way, resulting in her running away from him; engaging her on another occasion in unsolicited conversation which quickly turned into highly personal questions being asked of her in an unwanted way; and all in circumstances where the Appellant (at least according to what he had told Mr Policastro, as reported to police) did not work in the Sydney CBD at all but in North Sydney.

Moreover, DS Michaelson drew on his experience as a detective giving the answers under cross-examination set out at [48] above. This wealth of evidence more than warranted the finding by the primary judge that DS Michaelson held the required state of satisfaction under s 99(1) of LEPRA.

Ground 5 is rejected for these reasons. These reasons also provide a basis for rejecting ground 13 which had at its core the proposition that “any honest belief in the charge on the part of DS Michaelson or [SC] Abda did not have an objectively sufficient basis”. SC Abda, in pursuing the prosecution, knew all of the matters which have been referred to in [125] above.

This ground asserts that the primary judge erred in accepting DS Michaelson’s evidence that he believed that the Appellant had been loitering around a café near Ms Scarpino’s residence on 19 October 2020.

There was ample basis in the evidence for DS Michaelson to hold this belief, whether or not the underlying fact was true. Paragraph [35] of Ms Scarpino’s police statement (referred to at [34] above), read by DS Michaelson prior to the Appellant’s arrest, recorded this fact. It was not only open to the primary judge to accept that DS Michaelson held this belief but entirely reasonable for DS Michaelson to have done so at the time of the Appellant’s arrest. The primary judge had the benefit of observing DS Michaelson under cross-examination and his evidence as to his belief was supported by contemporaneous material.

It may be noted that DS Michaelson knew by the time of the arrest that the Appellant in fact lived in the vicinity of the café. It is significant, in this regard, that the charge raised against the Appellant did not extend to 19 October 2020.

It is convenient at this point of the reasons to turn to the Cross Appeal by the State, as well as grounds 14-19 of the appeal.

The two grounds of the Cross Appeal have been set out at [104] above.

The first ground of the Cross Appeal raises the question as to whether the Appellant who was otherwise lawfully detained became “falsely imprisoned” in the interview room after he had made it clear that he did not wish to answer any further questions. The interview continued for some 12 minutes after that point, and it was with respect to this 12 minute period (or 16 minute period as was held by the primary judge) that damages of $5,000 were awarded by the primary judge.

Because of the quantum of the damages awarded, leave to cross appeal is required. The State submitted, and I accept, that a novel question of public importance arises which warrants the grant of leave to cross appeal, namely whether police are obliged, once a person arrested declines to answer any questions, from continuing to ask questions, even in a courteous manner, so that any further questioning converts lawful custody into unlawful, false imprisonment. It was submitted that, if the decision below stands, it would have significant consequences for the investigation of crime in this State.

Sections 114(1) and (2) of LEPRA authorise a police officer to detain a person, who is under arrest, for the purpose of investigating whether the person committed the offence for which the person has been arrested, for the investigation period provided for by s 115. Section 115 provides that the “investigation period is a period that 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 maximum investigation period” (emphasis added) which, for relevant purposes, is 6 hours. Section 116 (set out in full at [93] above) sets out how reasonable time is to be determined and requires that “all the relevant circumstances of the particular case must be taken into account.” One of the relevant circumstances is whether the person under arrest “has indicated a willingness to … answer any questions”: s 116(2)(d).

The Appellant’s case, upheld in this limited respect by the primary judge, was that what the primary judge referred to as the 16 minutes during which the Appellant continued to be asked questions in the interview room (in actual fact it was only 12 minutes) prolonged his detention and was unlawful. As the State correctly submitted, the finding of false imprisonment was not based on the physical characteristics of the interview room but only on the circumstance that the Appellant was questioned despite indicating that he did not wish to participate in the interview.

At PJ [185], the primary judge held that:

Whilst there are cases where a person otherwise lawfully in custody or otherwise detained have been held to be falsely imprisoned, these have turned upon an analysis and application of the relevant statute or authority pursuant to which that person has been detained. An example is where there has been lawful authority to detain a person in a particular location (for example, a hospital) but that person has been detained elsewhere (for example, a prison): State of New South Wales v TD (2013) 83 NSWLR 566; [2013] NSWCA 32.

On the facts of the current case, the Appellant had been lawfully arrested, and also lawfully taken to the interview room. It was open to the police to ask him questions, as they did, in relation to the serious complaint that had been made about him as part of their investigation. For the short period after he declined to answer questions, the Appellant would only have been unlawfully detained if the “investigation period”, within the meaning of the Act, had in all the circumstances become unreasonable or exceeded 6 hours. That could not have been the case if DS Michaelson’s continuing interaction with the Appellant could fairly be characterised as part of the investigation.

Focussing upon what occurred in that short period of time, most was spent not in the asking of further questions of the Appellant but in reading him Ms Scarpino’s statement so as to apprise him of the complaints made against him in relation to which he was arrested. The interview concluded with DS Michaelson saying to the Appellant:

This was said, and the entire interview was conducted, courteously. DS Michaelson’s concluding statement anticipated the possibility that the Appellant might, on reflection, revisit his decision not to answer questions, once apprised of the allegations made against him. This was a reasonable approach for the officer to take and, in my view, was a legitimate step in the investigation and a permissible use of the investigation period.

The “investigation period” within the meaning of LEPRA had not come to an end and the 16 (or 12) minute period did not, in my opinion, entail any unlawful conduct so as to found a cause of action in false imprisonment. I accept the State’s submission that it would be extraordinary if the investigation of criminal activity generally by questioning a person who might be able to assist police could be immediately and finally concluded simply by the person demanding that questions not be asked.

Further, it was not submitted that the investigation period became unreasonable (and thus ended) once the Appellant was returned to the holding cell prior to his being charged later that evening. The Appellant was lawfully detained at the police station which, pursuant to reg 17 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) was the preferred place for detention of a person in custody.

The logic of the primary judge’s finding (which, with respect, I do not accept) was that, whilst lawfully detained at the police station, the Appellant was falsely imprisoned in the interview room for a 16 minute period whilst DS Michaelson continued his investigation. Ground 1 of the Cross Appeal should be upheld.

The second ground of the Cross Appeal (which it is not strictly necessary to answer) involves a question of causation, namely whether, had the Appellant had been returned to the holding cell after he had indicated he did not wish to be further interviewed, would he in fact have been released, following being charged and bailed, 16 (or, in my assessment, 12) minutes earlier than he in fact was? The second ground of the Cross Appeal challenges the primary judge’s implicit conclusion that the Appellant would have been so released. If that were not established, there would be no relevant loss for which he was entitled to be compensated.

Mr Hooke submitted that the Appellant would have been released 16 (or 12) minutes earlier on what was effectively a linear argument to the effect that the timeline of the Appellant’s charging and bail application would simply have been advanced. The matter is, however, rather more complicated and nuanced than that.

The complexity arises from the fact that Acting Sergeant Vickery was dealing with two other charge matters on the evening in question, both of which related to juvenile offenders, which needed to be dealt with. As the State submitted, Acting Sergeant Vickery was required to determine conditions of bail, and, although he had the information to do so at least by the time DS Michaelson made the APVO application at 9.51pm and, on the Appellant’s submission, by 9.24pm, he was not able to ultimately complete that task until 10.50pm due to the interceding events concerning two other persons in custody. The State submitted that the Court should find that, even if Acting Sergeant Vickey had the paperwork to permit him to determine bail 12 (or 16) minutes earlier, the bail conditions probably still would have been determined at approximately 10.50pm.

In the course of argument, a question of onus of proof arose on the question of causation, with Mr Hooke submitting that it was for the State to establish that the timeline would not have relevantly been any different to what it ultimately was, even if the interview had been terminated 16 (or 12) minutes earlier than it in fact was. I disagree. On this question, the Appellant bore the onus of proof and, in circumstances where Acting Sergeant Vickery was dealing with two other custody matters, the Appellant’s submission that, on the balance of probabilities, the determination of the Appellant’s bail conditions and release would have been determined 16 (or 12) minutes earlier than they were was speculative.

The upholding of the Cross Appeal means that appeal grounds 14-17 and 19 to the effect that the primary judge erred in failing to award aggravated and/or exemplary damages for the Appellant’s false imprisonment constituted by the time he spent in the interview room do not arise. Something further should, however, be said in relation to ground 19.

Ground 19 was that the primary judge erred in finding that there was nothing contumelious or high-handed about the conduct of DS Michaelson interviewing the Appellant in the interview room. The “detention” of the Appellant in the interview room, after he had indicated that he did not wish to answer any further questions, was only for a relatively brief period, and the questioning was polite and not hectoring or aggressive.

DS Michaelson also made it plain to the Appellant, when continuing to question him, that he was “not obliged to say anything or do anything.” He went on to say that he was going to ask him a number of questions “because that's my job”. When the Appellant still indicated that he did not wish to participate in the interview, DS Michaelson responded politely: “No problem, sir. I understand that.” In point of fact, most of the time thereafter in the interview room, as set out at [140] above, was occupied not in questioning the Appellant but in reading out to him Ms Scarpino’s statement so that the Appellant was apprised of the allegations against him.

Relevant to this ground of appeal are the following exchanges between Acting Sergeant Vickery (who entered the interview room at 8.28pm) and the Appellant:

This part of the transcript of interview is inconsistent, in my view, with any case that the interview by DS Michaelson was high handed and contumelious.

Even had the Cross Appeal not been upheld, I would have dismissed the Appellant’s ground 19.

Grounds, 20, and 21 also do not arise in light of my findings in respect of the Cross Appeal. The consequence of the upholding of the Cross Appeal and the dismissal of the appeal is that the Appellant must pay the State’s costs not only of the appeal but also of the proceedings at first instance.

It is necessary now to return to the remaining grounds of the Notice of Appeal.

By ground 7, the Appellant contended that, from the time at which DS Michaelson submitted the CAN and Facts Sheet to Acting Sergeant Vickery for consideration, and at least from 10.10pm (the time at which DS Michaelson texted SC Abda stating he was “Waiting for PVO to be granted”), until 11.01pm when the Appellant was released from custody, the Appellant was being kept in custody pending the issuance of an APVO which, contrary to ss 114-116 of LEPRA, was not “reasonably necessary” for the proper conduct of the investigation.

The Appellant submitted that the objects of Pt 9 of LEPRA, within which ss 115 and 116 are contained, are stated as including “to provide for the period of time that a person who is under arrest may be detained by a police officer to enable the investigation of the person’s involvement in the commission of an offence”: s 109(a). It was thus submitted that the term “investigation”, as it is used in ss 115 and 116, should be understood as referring only to the investigation of “the person’s involvement in the commission of an offence.” The Appellant then argued that applying for an APVO and waiting for it to be considered are administrative acts carried out in furtherance of a civil remedy and could not be considered as “reasonably necessary” for the investigation into the Appellant’s alleged involvement in the commission of an offence contrary to s 13(1) of the Domestic and Personal Violence Act.

The Respondent submitted that the time in which police are waiting for the Local Court to issue an APVO is within the ambit of the “investigation period” pursuant to ss 115 and 116 of LEPRA if it is reasonable for police to apply for an order prior to releasing a person.

In any event, the Respondent submitted that the APVO was in fact granted at 10.10pm but bail was not determined until 10.50pm. As such, it was put that the time the Appellant remained in custody after the submission of the CAN and Facts Sheet by DS Michaelson to Acting Sergeant Vickery was not associated with awaiting the issuance of an APVO but rather was attributable to the time taken by Acting Sergeant Vickery to make a determination in relation to the Appellant’s bail.

While I would not be inclined to agree with the primary judge’s observation at PJ [188] that “arguably time taken to obtain an AVO falls within s 116(2)(l) [of LEPRA] as being reasonably necessary for the conduct of the investigation”, I would reject ground 7 of the appeal.

It is crucial to appreciate that, on the night in question, while the Appellant was in custody, a number of matters were happening simultaneously. The issue of an interim APVO was a matter for the Local Court and appears to have been dealt with in a 20 minute period. At the same time, but quite separately and at a different location, the “charge process” was ongoing insofar as the question of whether the Appellant would be granted bail, and thus be able to be released from custody, was to be determined. It was not clear on the evidence when the Appellant was in fact charged, although his Custody Management Record records that he was “supplied with all [charge] and bail paperwork” at 10.58pm.

The Appellant was correct to submit that, logically, the question of bail falls to be determined after a person has been charged. Such a submission is consistent with s 44(1) of the Bail Act which provides that:

Even if the Appellant was charged prior to 10.58pm and, as contended by him at first instance, by 9.40pm, he could not have been unlawfully detained pending a bail determination at least provided that any bail decision was made “as soon as reasonably practicable" after the charge. The evidence recited at [75]-[76] above demonstrates that Acting Sergeant Vickery had multiple tasks to perform in the window of time between 9.40pm and 10.58pm in relation to two other offenders. The detailed documentary record in relation to Acting Sergeant Vickery’s activities in that period does not support a case that the Appellant was detained in custody longer than was necessary.

These grounds are linked. They both relate to the State's failure to call Acting Sergeant Vickery.

The primary judge dealt with the arguments that are reflected in these grounds of appeal as follows (at PJ [189]):

His Honour's reasoning was, in my view, sound.

Not calling a witness who has prepared or authored documents to give evidence, that fact does not deprive otherwise admissible documentary evidence of forensic force or significance. That is particularly so where, as in the present case, the witness, many years later, is quite unlikely to have a distinct or indeed, any recollection of the creation of routine documents or the circumstances surrounding them.

The Appellant submitted that, if it were, indeed, the case that Acting Sergeant Vickery could not shed light on what he was doing when the Appellant was in his custody, then “there would have been no harm in the respondent calling Acting Sergeant Vickery to give this evidence.” The decision whether to call a witness is a forensic one for a party involved in civil litigation. Limited inferences may or may not be drawn from the failure to call a witness, as explained by the primary judge and in many cases that have dealt with Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (Jones v Dunkel) including RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270.

The Appellant was also critical of the primary judge's statement at PJ [190] that Acting Sergeant Vickery was “occupied in inspections for other detainees” in the period between 10.10pm and 10.50pm, although this finding of fact was not challenged. This conclusion was substantiated by the Custody Management Records which had been prepared by Acting Sergeant Vickery and which have been referred to earlier in these reasons. Those records were admitted into evidence and did not require Acting Sergeant Vickery to be called. His non-appearance as a witness did not defeat their obvious evidentiary significance.

In any event, given the limited nature of the inferences that can be drawn in accordance with Jones v Dunkel, it is not clear and was not explained how these two grounds of appeal vitiate the primary judge’s principal conclusions and his rejection of almost all of the Appellant’s case.

Grounds 8 and 9 are rejected.

The Appellant submitted that, if the Court accepted his submissions in relation to grounds 7, 8 and 9, it follows that his Honour erred in failing to find that the Appellant’s time in custody, in addition to the time spent in the interview room, was not lawfully justified.

Grounds 7, 8 and 9 having been rejected, ground 10 does not arise.

This ground of appeal arises in the context of an argument advanced at first instance that what was submitted by Sergeant Moore, as the ultimate prosecutor in the Local Court hearing before Magistrate Barko, as to the 35 year age gap between the Appellant and Ms Scarpino could in some way be imputed to the state of mind of DS Michaelson or SC Abda for the purposes of the claim in malicious prosecution. The submission made by Sergeant Moore before Magistrate Barko which appears to be the focus of this ground of appeal was as follows:

The prosecutor’s observation about the age difference was one made in a broader context, and was factually accurate. Even before one turns to the question of attribution, it was not explained in the Appellant’s submissions how it could sustain a finding of malice. In point of fact, at first instance, counsel appearing for the Appellant eschewed any suggestion that the submission was made with malice.

The Respondent submitted that there is no basis for an inference to be drawn that DS Michaelson and SC Abda instructed Sergeant Moore to make a submission to the Local Court regarding the age gap between the Appellant and Ms Scarpino, nor was this allegation put to DS Michaelson. It was also argued that, even if the inference was drawn, it was not apparent how it would make any material difference to the findings on malice ultimately made by the primary judge, especially in circumstances where any challenge to the primary judge’s findings as to malice in respect of DS Michaelson were abandoned.

At PJ [215], the primary judge held that:

Nothing advanced in support of ground 11 provides any basis for disturbing these findings.

This ground challenges the finding of the primary judge at PJ [204]-[207] that SC Abda was not actuated by malice in instituting or maintaining the criminal proceedings against the Appellant. It was submitted by the Appellant that the proceedings were commenced “to mollify or appease the complainant and her mother, and to punish behaviour which the police officers considered ‘highly inappropriate’”.

In support of that submission, the Appellant pointed to the reference by SC Abda in the Godfrey Report (referred to at [81] above) to the fact that Ms Scarpino “want[ed] the matter to continue for hearing.” The Appellant argued that Ms Scarpino’s views should have been a “neutral factor” in the decision to commence and maintain the prosecution.

Moreover, it was put that it is possible to infer from SC Abda’s comment in the Godfrey Report, in combination with the submission made by Sergeant Moore during the Local Court proceedings that Ms Scarpino was “a young 21 year old female”, that the prosecution was initiated and maintained because SC Abda thought the Appellant’s conduct was inappropriate in light of the age difference between the Appellant and Ms Scarpino. The Appellant, with reference to Jones v Dunkel, contended that this inference could be more readily drawn in circumstances where the State did not call SC Abda to give evidence, his failure give evidence was not explained and that evidence would have been able to directly address the question whether the prosecution was instituted or maintained for an improper purpose. Ultimately, the Appellant submitted that the primary judge’s finding that SC Abda was not actuated by malice was contrary to the “compelling inference” to be drawn from the evidence.

At PJ [204]-[206], the primary judge held the following as to malice:

I agree with the State’s submission that the Appellant did not identify any error in the primary judge’s reasoning at PJ [204]-[206], nor was it explained how the comment of SC Abda in the Godfrey Report as to Ms Scarpino’s desire that the matter proceed to hearing, taken in isolation from the remainder of the Godfrey Report, provided a basis for inferring that SC Abda was motivated by a purpose other than the proper invocation of the criminal law. Ms Scarpino’s recorded desire that the matter proceed to hearing was scarcely surprising, and no inference of impropriety or malice should be drawn from SC Abda’s recording of that fact. This is the more so in light of the Appellant’s candid submission on appeal that “the appellant does not suggest that the views of the complainant were to be ignored”.

The Appellant’s submissions in this regard also fail to have regard to the whole of the body of material which the police had to sustain the making of the charges. Contrary to the Appellant’s submissions, there was no compelling inference to be drawn from the evidence to support a finding of malice on the part of SC Abda: Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679.

For the foregoing reasons, the appeal must be dismissed and the Cross Appeal upheld.

Consequently, the judgment in favour of the Appellant at first instance in the sum of $5,000 and the costs orders made on 7 July 2023 should be set aside.

The proceedings should be dismissed and the Appellant must pay the costs of the appeal and the proceedings at first instance.

WHITE JA: I agree with the orders proposed by the Chief Justice. Subject to what follows, I also agree with his Honour’s reasons.

Although I agree with the Chief Justice that ground 7 of the notice of appeal (see at [103]) should be dismissed, I prefer to state my own reasons in relation to that ground.

The appellant’s submissions in relation to this ground are summarised by the Chief Justice at [158].

In relation to this contention, the primary judge had held:

I share the Chief Justice’s reservations (at [161]) about the correctness of the statement that, arguably, time taken to obtain an AVO falls within s 116(2)(l).

Mr Reeves was arrested at about 6.35pm and was released at 11.01pm. This was within the six hour maximum investigation period provided by s 115(2) of LEPRA.

The objects of Pt 9 are specified in s 109. Section 109 relevantly provides:

Sections 114 and 115 give effect to the objects stated in s 109(a) and (b) by providing, relevantly, as follows:

Where the maximum investigation period is not exceeded, as it was not in this case, then the investigation period is a time that is reasonable having regard to all the circumstances (s 115(1)).

Section 116(1) provides:

Section 116(2) then provides a list of circumstances that, if relevant, are to be taken into account in determining what is a reasonable period for detention after arrest. Nine matters are specified, including:

The investigation referred to in s 116(1)(l) would appear to be an investigation as to whether the person arrested committed the offence (s 114(2)). I doubt that time taken to obtain an AVO would fall within that paragraph. Nonetheless, the question is whether the time taken between the applicant’s arrest and release in this case was more than was reasonable “having regard to all the circumstances”.

I reject the appellant’s submission that the person arrested can only be detained for such period as is required to investigate his or her involvement in the commission of an offence. That submission construes s 114(2) as a restriction on a police officer’s power of detention after arrest. That construction is not correct.

At common law, a person could neither be arrested for the purpose of carrying out an investigation, nor, if lawfully arrested, detained for longer than was reasonably necessary to charge the person and bring him or her before a magistrate or justice of the peace. In Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88, Gibbs CJ said, in relation to provisions of the Justices Act 1959 (Tas) that required the person arresting another to take him or her, or cause him or her to be taken, before a justice without delay (or as soon as practicable):

This statement of the law was approved by the High Court in Michaels v The Queen (1995) 184 CLR 117 at 124; [1995] HCA 8:

It remains the position that a person cannot be arrested without warrant in order to help the police with their enquiries. The police officer must suspect on reasonable grounds that the person is committing or has committed an offence (s 99(1)(a)).

If that criterion for a lawful arrest is satisfied, then the arrest is lawful if the police officer is also satisfied of any of the matters in s 99(1)(b). If the police officer has the reasonable suspicion of the commission of an offence, then the police officer may arrest the person if satisfied that the arrest is reasonably necessary for, amongst other reasons, the prevention of the harassment of or interference with any potential witness, or to protect the safety or welfare of any person (s 99(1)(b)(vii) and (viii)).

In AD v State of NSW [2023] NSWCA 115, Basten JA, with whom Meagher JA agreed, said at [20]:

Section 114(2) enlarges the power of detention following arrest from that provided at common law. It gives effect to the objects of Pt 9 of LEPRA in s 109(a) and (b). Section 114(2) is not a limitation on the power to detain a person arrested. It would follow from the appellant’s submissions that if an offender were caught red-handed and admitted to the offence, so that no investigation was required under s 114(2), he or she should be immediately released from custody, even before a charge could be laid. That is an absurd construction.

In this case, the maximum period of detention described by s 115(2) was not exceeded. The question therefore is whether, under s 115(1), the detention after arrest was for a time that was more than reasonable having regard to all the circumstances.

Because an arrest can lawfully be made for the purposes of obtaining a provisional apprehended violence order, or for releasing the arrested person on conditional bail, the time reasonably taken to obtain the provisional apprehended violence order, or conditional bail, should be taken into account in determining what is a reasonable time having regard to all of the circumstances for the detention under s 115(1).

It is for these reasons that I would reject ground 7 of the Notice of Appeal.

As indicated above, I otherwise agree with the reasons of the Chief Justice.

STERN JA: I agree with the Chief Justice.