Jeffries

New South Wales v Jeffries [2019] HCA 46

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

 

BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

 

STATE OF NEW SOUTH WALES APPELLANT

AND

James Jeffries RESPONDENT

 

New South Wales v Jeffries

[2019] HCA 46,

 

Date of Hearing: 3 September 2019

Date of Judgment: 4 December 2019

S119/2019

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

J K Kirk SC with P D Herzfeld for the appellant (instructed by McCabe Curwood
Pty Ltd)

D R J Toomey SC with D C Morgan and D J Woodbury for the respondent
(instructed by Foott, Law & Co Solicitors)

Notice: This copy of the Court’s Reasons for Judgment is subject to formal
revision prior to publication in the Commonwealth Law
Reports.

CATCHWORDS

New South Wales v Jeffries

Police – Arrest without warrant – Where s 99(1) of Law
Enforcement (Powers and Responsibilities) Act 2002
(NSW) provides that
police officer may, without warrant, arrest person if police officer suspects on
reasonable grounds that person
is committing or has committed offence and police
officer is satisfied that arrest is reasonably necessary for one or more
specified
reasons – Where s 99(3) provides that police officer who
arrests person under s 99 must, as soon as is reasonably practicable, take
person before authorised officer to be dealt with according to law – Where
police officer had not formed intention to charge arrested person with offence
at time of arrest – Where police officer had
not formed intention to bring
arrested person before authorised officer to be dealt with according to law at
time of arrest –
Where arrested person brought claim for damages for
wrongful arrest and false imprisonment – Whether arrest unlawful.

Words and phrases – “answer a charge for an offence”, “arrest”, “arrest
without a warrant”, “as soon as is reasonably practicable”,
“authorised
officer”, “dealt with according to law”, “false imprisonment”, “improper
purpose”, “intention to charge”, “investigation
period”, “police officer”,
“power to arrest”, “purpose of arrest”, “suspects on reasonable grounds”.

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 4,
99, 105, 109, 113, 114, 115, 116.

  1. KIEFEL CJ,
    KEANE AND NETTLE JJ. This is an appeal from a decision of the Court of
    Appeal of the Supreme Court of New South Wales
    (McColl and Basten JJA,
    Emmett A-JA dissenting) that the power of arrest without warrant under
    s 99 of the Law Enforcement (Powers and Responsibilities) Act
    2002
    (NSW) (“LEPRA”) is conditional upon the arresting police
    officer having determined by the time of arrest that the person to be arrested
    will be charged with the offence of which he or she is reasonably
    suspected.
  2. For
    the reasons which follow, the appeal should be allowed. Although the only
    permissible purpose of arrest under s 99 of LEPRA is to take the arrested
    person before an “authorised
    officer”[1] to be
    dealt with according to law, it is not necessary that the arresting police
    officer have determined at the time of arrest that
    the arrested person will
    definitely be taken before an authorised officer to be dealt with according to
    law or, therefore, charged.

The facts

  1. On
    8 October 2013, Rochelle Mitchell reported that she had received threatening
    telephone calls and been blackmailed by the respondent
    (“Mr Jeffries”). On
    9 October 2013, an apprehended violence order (“AVO”) was made in her favour
    against Mr Jeffries. The order restrained
    Mr Jeffries from, among
    other things, harassing Ms Mitchell, engaging in conduct that intimidated her,
    deliberately damaging or interfering
    with her property, or contacting her “by
    any means whatsoever” except by Mr Jeffries’s lawyer. On 16 October 2013,
    the AVO was extended
    until further order.
  2. At
    the relevant times, Mr Jeffries ran a website with an associated email
    address: “brad@datatheft.com.au”. That email address had
    been used to contact Ms
    Mitchell. Ms Mitchell had blocked receipt of emails from the address but, on
    18 December 2013, one of her employees
    informed her that he had received an
    email from it. Ms Mitchell checked her computer and found the email in
    her junk box. After reading the email, Ms Mitchell replied to the employee to
    the
    effect that she would “forward to detective – this is a breach of his
    [Mr Jeffries’s] Bail conditions”.
  3. On
    20 December 2013, Ms Mitchell attended the Town Hall Police Station and
    reported her concerns. She made a signed statement in which
    she deposed that
    Mr Jeffries had attempted to contact her, and her employees, colleagues,
    business partners and others, to “inform
    them I [Ms Mitchell] have been
    defrauding people and am under police investigation”. She stated that she had
    “blocked this email address”.
    Ms Mitchell named the employee who had contacted
    her regarding the email from the “brad@datatheft.com.au” email address, and
    stated
    that on finding it in her junk box she had opened it and found it to be
    as follows:

“Hi, Everybody, Hope you are all well. Thought you might like to know
Ms Mitchell and her company UTSG Consortium Pty Ltd (Sydney City Medical) are
being
wound up. She finally tried to rip off somebody who had the
financial clout to fight back. [Link to a web address at
creditorwatch.com.au] You will notice in the article, Mitchell registered my
blog name ‘Data Theft Australian’ as a business names [sic]. This is another
scam
Mitchell uses to convince victims she owns certain businesses or
organisations. She did the same with City Clinic and other competitor
businesses
in the Sydney CBD. Kind
regards Brad”.

  1. So
    far as appeared from the email, Ms Mitchell’s employee had received it from
    “Brad Jeffries” and it had, presumably, been sent to the
    employee’s email
    address and other unidentified email addresses.
  2. Ms Mitchell
    further stated:

“As soon as I read the email I felt really
frightened and my heart started beating really fast. I began crying as I could
not control
the fear I was feeling. I am worried about Brad’s future actions as
I believe he has an unstable state of mind. Brad has previously
attended my home
addresses and I am afraid he will go to my home again and this has caused me to
be in a permanent state of anxiousness
and stress which is causing me to become
paranoid that he is following me.”

  1. On
    the morning of Sunday, 22 December 2013, Constable Smith of the Sydney City
    Police Station read the file relating to Ms Mitchell’s
    complaint. He formed
    the opinion that Mr Jeffries had breached the AVO and he determined to go
    to Mr Jeffries’s residence and arrest
    him. At 11.15 am that day, police
    officers, including Constable Smith, went to what they believed to be
    Mr Jeffries’s residence but
    were there informed by neighbours that
    Mr Jeffries no longer lived at that address. Further preliminary inquiries
    failed to reveal
    a forwarding address.
  2. At
    noon the same day, Mr Jeffries telephoned the police and told
    Constable Colakides that he had been informed by police at North
    Sydney
    that the Sydney City police wished to speak to him regarding a breach of an AVO.
    Mr Jeffries further stated that he was homeless
    and currently interstate
    but that he would be in Sydney the next day. He refused, however, to provide the
    address where he would
    be the next day, and he said that he would not be
    attending any police station before seeking legal representation.
    Constable Colakides
    advised Mr Jeffries to attend the Sydney City
    Police Station the next day, but Mr Jeffries was argumentative and did not
    agree to
    do so. Constable Colakides made a note of the conversation on the
    New South Wales Police Force’s Computerised Operational Policing
    System and
    informed Constable Smith of what had occurred.
  3. At
    5.00 pm the same day, Mr Jeffries entered the Sydney City Police Station.
    Thereupon, Constable Smith arrested him in connection
    with the breach of
    the AVO. Constable Smith offered Mr Jeffries the opportunity of an
    interview, which Mr Jeffries accepted, and
    an interview was then conducted.
    At the conclusion of the interview, at 6.18 pm, Mr Jeffries was released
    without charge.

Relevant statutory provisions

  1. At
    the time of Mr Jeffries’s arrest, s 99 of LEPRA provided that:

Power of police officers to arrest without warrant (cf
Crimes Act 1900, s 352, Cth Act, s 3W)

(1) A police officer may, without a warrant, arrest a person if:

(a) the police officer suspects on reasonable grounds that the person is
committing or has committed an offence, and

(b) the police officer is satisfied that the arrest is reasonably necessary
for any one or more of the following reasons:

(i) to stop the person committing or repeating the offence or committing
another offence,

(ii) to stop the person fleeing from a police officer or from the location of
the offence,

(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,

(iv) to ensure that the person appears before a court in relation to the
offence,

(v) to obtain property in the possession of the person that is connected with
the offence,

(vi) to preserve evidence of the offence or prevent the fabrication of
evidence,

(vii) to prevent the harassment of, or interference with, any person who may
give evidence in relation to the offence,

(viii) to protect the safety or welfare of any person (including the person
arrested),

(ix) because of the nature and seriousness of the offence.

(2) A police officer may also arrest a person without a warrant if directed
to do so by another police officer. The other police officer
is not to give such
a direction unless the other officer may lawfully arrest the person without a
warrant.

(3) A police officer who arrests a person under this section must, as soon as
is reasonably practicable, take the person before an
authorised officer to be
dealt with according to law.

Note. The police officer may discontinue the arrest at any time and
without taking the arrested person before an authorised officer –
see
section 105.

(4) A person who has been lawfully arrested under this section may be
detained by any police officer under Part 9 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 that Part.

(5) This section does not authorise a person to be arrested for an offence
for which the person has already been tried.

(6) For the purposes of this section, property is connected with an offence
if it is connected with the offence within the meaning
of Part 5.”

  1. Section 105
    of LEPRA provided that:

Arrest may be discontinued

(1) A police officer may discontinue an arrest at any time.

(2) Without limiting subsection (1), a police officer may discontinue an
arrest in any of the following circumstances:

(a) if the arrested person is no longer a suspect or the reason for the
arrest no longer exists for any other reason,

(b) if it is more appropriate to deal with the matter in some other manner,
including, for example, by issuing a warning or caution
or a penalty notice or
court attendance notice or, in the case of a child, dealing with the matter
under the Young Offenders Act 1997.

(3) A police officer may 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.”

  1. Section 107
    of LEPRA provided that:

Part does not affect alternatives to
arrest

(1) Nothing in this Part affects the power of a police officer to commence
proceedings for an offence against a person otherwise than
by arresting the
person.

(2) Nothing in this Part affects the power of a police officer to issue a
warning or a caution or a penalty notice to a person.”

  1. Part 9
    of LEPRA was entitled “Investigations and questioning”. The objects of Pt 9
    were set out in s 109 of LEPRA as follows:

“(a) 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, and

(b) 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

(c) to provide for the rights of a person so detained.”

  1. Section 113(1)
    of LEPRA provided that Pt 9 of LEPRA did
    not:

“(a) confer any power to arrest a person, or to detain a person
who has not been lawfully arrested, or

(b) prevent a police officer from asking or causing a person to do a
particular thing that the police officer is authorised by law
to ask or cause
the person to do (for example, the power to require a person to submit to a
breath analysis under Division 2 of Part 2 of Schedule 3 to the
Road Transport Act 2013), or

(c) independently confer power to carry out an investigative procedure.”

  1. Division 2
    of Pt 9 of LEPRA, which was entitled “Investigation and questioning
    powers”, was comprised of ss 114 to 121. Section 114 provided that:

Detention after arrest for purposes of investigation
(cf Crimes Act 1900, s 356C)

(1) A police officer may in accordance with this section detain a person, who
is under arrest, for the investigation period provided
for by
section 115.

(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.

(3) If, while a person is so detained, 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. It is immaterial whether
that other offence was committed before or after the commencement of this Part
or
within or outside the State.

(4) The person must be:

(a) released (whether unconditionally or on bail) within the investigation
period, or

(b) brought before an authorised officer or court within that period, or, if
it is not practicable to do so within that period, as
soon as practicable after
the end of that period.

(5) A requirement in another Part of this Act, the Bail Act 1978 or
any other relevant law that a person who is under arrest be taken before a
Magistrate or other authorised officer or court, without
delay, or within a
specified period, is affected by this Part only to the extent that the extension
of the period within which the
person is to be brought before such a Magistrate
or officer or court is authorised by this Part.

(6) If a person is arrested more than once within any period of 48 hours, the
investigation period for each arrest, other than the
first, is reduced by so
much of any earlier investigation period or periods as occurred within that 48
hour period.

(7) The investigation period for an arrest (the earlier arrest)
is not to reduce the investigation period for a later arrest if the later arrest
relates to an offence that the person is suspected
of having committed after the
person was released, or taken before a Magistrate or other authorised officer or
court, in respect
of the earlier arrest.”

  1. Section 115
    provided in substance 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;
    and that
    the “maximum investigation period” is four hours or such longer period
    as the maximum investigation period may be extended to by
    a detention
    warrant.
  2. Section 116(1)
    provided in substance that, in determining what is a reasonable time for the
    purposes of s 115(1), all the relevant
    circumstances of the particular case
    must be taken into account; and s 116(2) provided that, without limiting
    the relevant circumstances
    that must be taken into account, the following
    circumstances (if relevant) were to be taken into account:

“(a) the
person’s age, physical capacity and condition and mental capacity and
condition,

(b) whether the presence of the person is necessary for the
investigation,

(c) the number, seriousness and complexity of the offences under
investigation,

(d) whether the person has indicated a willingness to make a statement or to
answer any questions,

(e) the time taken for police officers connected with the investigation
(other than police officers whose particular knowledge of
the investigation, or
whose particular skills, are necessary to the investigation) to attend at the
place where the person is being
detained,

(f) whether a police officer reasonably requires time to prepare for any
questioning of the person,

(g) the time required for facilities for conducting investigative procedures
in which the person is to participate (other than facilities
for complying with
section 281 of the Criminal Procedure Act 1986) to become
available,

(h) the number and availability of other persons who need to be questioned or
from whom statements need to be obtained,

(i) the need to visit the place where any offence concerned is believed to
have been committed or any other place reasonably connected
with the
investigation of any such offence,

(j) the time during which the person is in the company of a police officer
before and after the person is arrested,

(k) the time taken to complete any searches or other investigative procedures
that are reasonably necessary to the investigation (including
any search of the
person or any other investigative procedure in which the person is to
participate),

(l) the time required to carry out any other activity that is reasonably
necessary for the proper conduct of the investigation.”

The District Court proceedings

  1. Mr Jeffries
    brought proceedings in the District Court of New South Wales against the State
    of New South Wales claiming damages for
    false imprisonment constituted by his
    arrest. The State of New South Wales defended the claim on the basis that the
    arrest was lawfully
    effected pursuant to ss 99(1)(a) and 99(1)(b)(i), (iv)
    and (ix) of LEPRA. Although the pleadings are not before the Court, in his
    reasons for judgment the trial judge (Judge
    P Taylor SC) identified
    the issues at trial as being:

(1) Did Constable Smith suspect
that Mr Jeffries had committed an offence?

(2) Did Constable Smith have reasonable grounds for suspecting that
Mr Jeffries had committed an offence?

(3) Was Constable Smith satisfied that the arrest was reasonably
necessary to stop Mr Jeffries repeating the offence?

(4) Was Constable Smith satisfied that the arrest was reasonably
necessary to ensure that Mr Jeffries appeared before the court in
relation
to the offence?

(5) Was Constable Smith satisfied that the arrest was reasonably
necessary because of the nature and seriousness of the offence?

(6) Was the arrest made in good faith for the purpose of conducting the
prosecution and not for some extraneous purpose such as investigation?

(7) Was Mr Jeffries’s continued detention after the arrest, in any
event, unlawful?

  1. At
    trial, Constable Smith gave evidence that he believed it had been necessary
    to arrest Mr Jeffries for the alleged breach of the
    AVO because of the
    seriousness of the alleged offence and because he believed that it should be
    dealt with; to prevent a repetition
    of the offence; and to ensure
    Mr Jeffries’s appearance in court. As to the last of those reasons, the
    trial judge noted that, when
    Constable Smith had gone to Mr Jeffries’s
    last listed address to arrest him, he had found that Mr Jeffries was no
    longer living there,
    and that Constable Colakides had informed
    Constable Smith that Mr Jeffries had said that he was interstate and
    “[h]e wouldn’t tell
    us where he was living over the telephone”.
    Constable Smith conceded that he did not believe at the time of arrest that
    he had enough
    evidence to charge Mr Jeffries. He said that whether he
    would, ultimately, have been able to charge Mr Jeffries depended on what,
    if anything, Mr Jeffries might say in his record of interview.
  2. The
    trial judge found that:

(1) Constable Smith had suspected that
Mr Jeffries had committed an offence of breaching the AVO and believed that
it should be dealt
with;

(2) Constable Smith had reasonable grounds for that suspicion;

(3) Constable Smith had been satisfied that it was reasonably necessary
to arrest Mr Jeffries to ensure that he appeared before the
court;

(4) Constable Smith had been satisfied that it was reasonably necessary
to arrest Mr Jeffries because of the nature and seriousness
of the
offence;

(5) it was not established that Constable Smith was satisfied that
arrest was reasonably necessary to prevent a repetition of the offence;

(6) it had not been put to Constable Smith, and, there being no
other evidence of the fact, it was thus not established, that a purpose
of the arrest was to investigate the offence or question Mr Jeffries; and

(7) the period of one hour and 18 minutes for which Mr Jeffries had been
detained after being arrested was a reasonable period in
all the circumstances.

  1. The
    trial judge rejected Mr Jeffries’s contention that, in substance, an arrest
    under s 99 was unlawful unless the arresting officer had determined at the
    time of arrest that the arrested person would be charged. His Honour
    reasoned[2] that:

“If Mr Jeffries’s construction of s 99(1)(b)(iv) were
adopted, a person who was a known flight risk could not be arrested in reliance
upon s 99(1)(b)(iv) unless the police officer was already persuaded that
the person should be charged (or that the arrest would not be withdrawn under
s 105). But 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
[3]), a
higher obligation on the police officer to that imposed by s 99(1)(a),
which requires only a suspicion on reasonable grounds.” (emphasis
added)

  1. On
    those bases, his Honour dismissed the claim.

Proceedings before
the Court of Appeal

  1. Mr Jeffries
    appealed to the Court of Appeal on the sole ground that the trial judge erred in
    failing to hold that the arrest and subsequent
    detention of Mr Jeffries was
    unlawful because, at the time of arrest, Constable Smith had not formed an
    intention to charge him with
    any offence. The factual premise of this complaint
    was said by Mr Jeffries to follow from the fact that, at the time of
    arrest, Constable
    Smith “did not believe there was enough to charge him”
    and thus must have contemplated the possibility that Mr Jeffries would be
    released without charge. So characterised, it is apparent that
    Mr Jeffries’s complaint was that any intention which Constable Smith
    may have had to charge Mr Jeffries at the time of arrest was not an
    unqualified intention. Mr Jeffries contended that such an intention
    was an
    essential precondition to lawful arrest. The State of New South Wales responded
    that the essential preconditions of a lawful
    arrest are those found in
    s 99(1) of LEPRA and that they do not include an intention to charge.
  2. McColl JA
    held[4] that
    s 99(1)(a) upon its proper construction was to be understood as requiring
    that an arresting officer must at the time of arresting a person have
    formed the
    intention to charge that person and advise the arrested person of that charge.
    This was, in her Honour’s view, the result
    of construing the provision against
    the background of the common law requirement reflected in s 99(3) of LEPRA
    that an arrested person must be taken before a justice “as soon as is reasonably
    practicable”, which permits of no more
    than reasonable time to formulate and lay
    charges for the purpose of bringing the arrested person before a justice; the
    implication
    which her Honour derived from s 107 of LEPRA that the power to
    arrest without warrant is to be exercised only in order to commence
    proceedings
    against the arrested person; and the requirement in s 201(1)(c) of LEPRA
    that an arresting officer must inform the person arrested of the reason for the
    exercise of the power of arrest (in the
    sense of conveying to the person
    arrested the charge to be preferred against the
    person[5]) and
    so, therefore, must have an intention so to charge the arrested person at the
    time of arrest. In her Honour’s
    view[6], it was
    notable that the power to detain a suspect for the purpose of investigating the
    offence for which the person is arrested
    is conferred by Pt 9 of LEPRA,
    given that Pt 9 was relevantly beside the point because it proceeded “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” and “a lawful arrest can only be
    effected
    pursuant to s 99 if both s 99(1)(a) and (b) are satisfied”.
  3. McColl JA
    expressly
    rejected[7] the
    trial judge’s reasoning that, if that were so, it would be at odds with the fact
    that the requisite state of mind for an arresting
    officer to effect an arrest
    under s 99(1) of LEPRA is reasonable grounds to suspect the commission of
    an offence, which falls well short of the state of mind of reasonable
    and
    probable cause necessary to prosecute and, therefore, to charge. In her Honour’s
    view[8], it was
    apparent from the judgment of Jordan CJ in Bales v
    Parmeter
    [9],
    and the joint judgment of Mason and Brennan JJ in Williams v The
    Queen
    [10],
    that:

“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.”

  1. Basten JA
    likewise reasoned from the general law that an arrest without warrant must be
    for the purpose of taking the arrested person
    before a court or justice as soon
    as reasonably practicable, which, his Honour
    considered[11],
    implied that an arresting officer or his or her superior must, at the time of
    arrest, “have the state of mind necessary to lay charges”.
    Basten JA
    observed[12]
    that the position had been altered by statute, inasmuch as s 99(1)(b)
    imposed an additional constraint on the use of the power of arrest without
    warrant. But in his Honour’s view, there was “no reason
    to derive from the
    existence of [that] additional constraint an implied variation of the long
    standing requirement that an arrest
    must be a preliminary step in invoking the
    criminal
    process”[13].
    Nor, in his Honour’s view, did s 99(3) suggest any change in the law “in
    this
    regard”[14],
    for, as his Honour
    reasoned[15],
    if the effect of the new form of s 99(3) were to remove the conventional
    purpose underlying a valid arrest, it had been done without any indication as to
    any alternative
    purpose or rationale, and the extrinsic materials lent support
    to the view that the amendment to s 99(3) was not intended to vary that
    requirement. Basten JA considered it to be immaterial that Pt 9
    expressly contemplated that an arrested person may be released before being
    taken before an authorised officer to be dealt with according
    to law. As his
    Honour put it, it was “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”[16].
    And, like McColl JA, Basten JA rejected the trial judge’s reasoning
    that so to conclude would be to ignore that the state of mind
    necessary to
    arrest is merely reasonable grounds to suspect and that that falls well short of
    the degree of certainty of guilt necessary
    to prosecute and therefore to charge.
    Basten JA
    observed[17]
    that,

“[a]t 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”.

But, his Honour
said, to do so would be inconsistent with Bales v Parmeter and
Drymalik v
Feldman
[18],
which he
understood[19]
to stand for the proposition that the purpose of commencing the criminal process
attaches at the moment of arrest.

  1. By
    contrast, Emmett A-JA accepted that there is a clear distinction between
    reasonable grounds to suspect – as his Honour put
    it, “a state of
    conjecture or surmise where proof is lacking and the facts [only] reasonably
    ground a suspicion” – and the
    degree of reasonable and probable cause
    necessary to prosecute and, therefore, to
    charge[20]. As
    Emmett A-JA
    reasoned[21],
    if an arresting officer were required to reach the higher standard of reasonable
    and probable cause before effecting a lawful arrest
    without warrant, the mental
    state required to effect a lawful arrest without warrant would be different from
    the mental state of
    suspicion on reasonable grounds expressly provided for in
    s 99(1)(a). Additionally, as Emmett A-JA
    observed[22],
    it is clear from s 105(1) that a police officer may discontinue an arrest
    at any time; s 105(2) demonstrated that the discontinuance
    may be for any
    reason, including that it may be considered more appropriate to deal with the
    matter by other means; and s 105(3)
    expressly provided that discontinuance
    may occur despite any obligation to bring the arrested person before an
    authorised officer,
    leading to the conclusion that arrest is a process which
    commences at the time when an arrest begins and continues through subsequent
    detention. Consequently, as Emmett A-JA
    reasoned[23],
    when s 99 and s 105 are read together, it is apparent that an arrested
    person might or might not be brought before an authorised officer, and
    hence it
    must be that, while an arresting officer must intend that the arrested person
    will be brought before an authorised officer,
    the arresting officer is not
    required to have “decided” at the time of arrest that he or she will bring the
    arrested person before
    an authorised officer.
  2. Finally,
    Emmett A-JA
    observed[24]
    that it is apparent 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 he or she has
    been arrested, and thus it would
    be inconsistent with Pt 9 if an arresting
    officer were required at the time of arrest to have “concluded” or “decided”
    that the arrested person will be taken
    before an authorised officer and charged.

Legislative history of s 99 of LEPRA

  1. At
    common law, in order to justify an arrest without warrant it was necessary for
    the arresting constable to show that he had taken
    the arrested person without
    delay and by the most direct route before a justice unless some circumstance
    reasonably justified a departure
    from those
    requirements[25].
    There was no power to detain the subject in order to assemble sufficient
    evidence in support of the intended charge – to do
    so was a trespass to
    person – which meant that an arresting constable had only a limited period
    of time between arresting the
    person and bringing the subject before a justice
    to be
    charged[26].
    For that reason, it was desirable that an arresting constable have assembled
    sufficient evidence to support the intended charge
    before arresting the subject.
    But it was
    recognised[27]
    that there are cases in which, if police are prevented from arresting a suspect
    before assembling sufficient admissible evidence
    to mount a prima facie case,
    the work of the police can be seriously hampered: for example, because the
    suspect might flee, evidence
    might be destroyed, or further offending might
    occur. Consequently, under the common law, a constable had a
    discretion[28]
    to arrest a person on reasonable suspicion that the person had committed an
    offence.
  2. Reasonable
    suspicion required an arresting constable to have reasonable grounds for
    suspicion of guilt. It did not, however, require
    anything like reasonable and
    probable cause for prosecution or, in other words, a prima facie case for
    conviction. Consequently,
    as was recognised by Lord Devlin in delivering
    the opinion of the Privy Council in Hussien v Chong Fook
    Kam
    [29],
    where under common law an arresting constable arrested a person on the basis of
    reasonable suspicion, the constable had to act promptly
    to verify his suspicions
    or otherwise release the subject without charge: for, if the constable proceeded
    to charge the subject without
    prima facie proof of the offence charged, the
    constable would be at risk of an action for malicious prosecution.
  3. The
    origins of s 99 of LEPRA lie in s 429 of the Criminal Law Amendment
    Act 1883
    (NSW) (46 Vic No 17). It provided that:

“Every
constable or other person may without a warrant apprehend any person in the act
of committing or immediately after having committed
an offence punishable
whether by indictment or on summary conviction under this or any other Act and
take such person together with
any property found upon him before a Justice to
be dealt with according to law – And may in like manner apprehend and
deal
with any offender who has committed a crime punishable by death or penal
servitude and for which he has not been tried – And
every constable may
without warrant apprehend and in like manner deal with any person whom he with
reasonable cause suspects of having
committed any such crime”.

As Basten JA
observed[30] in
the Court of Appeal, that provision in some respects expanded the powers of
arrest of constables and other persons but it did
not codify the law relating to
arrest. In large part the power of arrest without warrant continued to be
governed by the common law.

  1. Section 352
    of the Crimes Act 1900 (NSW) recast the form of s 429 of the
    Criminal Law Amendment Act 1883 but with little substantive change. When
    enacted, it was as follows:

“(1) Any constable or other person may
without warrant apprehend,

(a) any person in the act of committing, or immediately after having committed,
an offence punishable, whether by indictment, or
on summary conviction, under
any Act,
(b) any person who has committed a felony for which he has not been tried,
and take him, and any property found upon him, before a Justice to be dealt with
according to law.
(2) Any constable may without warrant apprehend,
(a) any person whom he, with reasonable cause, suspects of having committed any
such crime,
(b) any person lying, or loitering, in any highway, yard, or other place during
the night, whom he, with reasonable cause, suspects
of being about to commit any
felony,
and take him, and any property found upon him, before a Justice to be dealt with
according to law.”

  1. In
    Clarke v
    Bailey
    [31],
    Davidson J (with whom Street CJ and James J agreed) observed that
    the effect of s 352 of the Crimes Act as it appeared in that form
    reinforced the common law principle that a constable was required to take an
    arrested person without
    delay and by the most direct route before a justice
    unless circumstances reasonably justified a departure from those requirements,
    and that the section did not give an arresting constable any discretion in the
    matter except to the extent that existed before. It
    remained, as it had been at
    common law, that there was no power to detain a suspect for longer than was
    reasonably practicable to
    bring the suspect before a magistrate to be dealt with
    according to law.
  2. Similarly,
    as Jordan CJ later concluded in Bales v
    Parmeter
    [32],
    the only legitimate purpose for which the power of arrest could be exercised
    under s 352 was to take the arrested person before
    a magistrate as soon as
    reasonably practicable to be dealt with according to law, and s 352 gave no
    power to restrain a person for
    any other purpose:

“[S]uspicion that
a person has committed a crime cannot justify an arrest except for a purpose
which that suspicion justifies; and
arrest and imprisonment cannot be justified
merely for the purpose of asking questions. … Where the imposition of physical
restraint
is authorised by law it may be imposed only for the purpose for which
it is authorised. … [I]t may be imposed by a police officer
in the course of
arresting and bringing before a magistrate a person for whose arrest no warrant
has issued, but whom the officer,
with reasonable cause, suspects of having
committed a crime or an offence punishable whether by indictment or summarily
under any
Act. … But the statute, like the common law, authorises him only
to take the person so arrested before a justice to be dealt with according
to
law, and to do so without unreasonable delay and by the most reasonably direct
route
“. (emphasis added)

  1. Over
    the years following Bales v Parmeter, a practice grew up among police
    forces throughout Australia, as it did in England, of treating the concept of
    “as soon as is reasonably
    practicable” as sufficiently flexible to enable police
    officers to detain an arrested person for some time for investigation of the
    person’s involvement in the offence for which he or she had been arrested before
    taking the person before an authorised officer to
    be dealt with according to
    law. That practice was sanctioned by English
    courts[33]. But
    in Williams v The Queen, Mason and
    Brennan JJ[34]
    and Wilson and
    Dawson JJ[35]
    concluded that, without a clear legislative warrant, the practice was unlawful
    under the common law of
    Australia[36].
    Hence, in Williams v The Queen, it was
    held[37] that
    neither the power of a police officer under s 27 of the Criminal Code
    (Tas) to arrest a person on reasonable grounds to suspect he or she had
    committed an offence, nor the obligation under s 34A(1) of the Justices
    Act 1959
    (Tas) to bring that person before a justice as soon as was
    reasonably practicable after the person had been brought into custody,
    gave any
    power to delay bringing the person before a justice in order to take the
    opportunity to question the person.
  2. In
    reasoning to that conclusion, Mason and Brennan JJ emphasised the passage
    from Jordan CJ’s judgment in Bales v Parmeter earlier set out and
    expressly rejected the holding of the House of Lords in Holgate-Mohammed v
    Duke
    [38]
    that a person may be arrested on reasonable suspicion of guilt for the purpose
    of using the ensuing period of detention to dispel
    or confirm the suspicion by
    questioning of the suspect or seeking further evidence with his
    assistance[39].
    As their Honours
    explained[40]:

“That proposition [that a person may be arrested on reasonable
suspicion of guilt for the purpose of using the ensuing period of detention
to
dispel or confirm the suspicion by questioning of the suspect or seeking further
evidence with his or her assistance] is opposed
to the view which has been taken
of the common law in this country. The jealous protection of personal liberty
accorded by the common
law of Australia requires police so to conduct their
investigation as not to infringe the arrested person’s right to seek to regain
his personal liberty as soon as practicable. Practicability is not assessed by
reference to the exigencies of criminal investigation;
the right to personal
liberty is not what is left over after the police investigation is
finished.”

  1. Mason
    and Brennan JJ
    acknowledged[41]
    that it was open to question where should lie the balance between personal
    liberty and the exigencies of criminal investigation.
    But their Honours stated
    that the striking of any different balance was a task for the legislature, which
    would be able to prescribe
    safeguards to ameliorate the risk of unconscionable
    pressure being applied to persons under interrogation while being kept in
    custody.
    Their Honours added in obiter dictum that “in general” there was also
    no reason to think that an arresting police officer would be
    unable properly to
    make a complaint or to lay an oral information until he had had an opportunity
    to question the person
    arrested[42]:

“In
the ordinary case of an arrest on suspicion, the arresting officer must have
satisfied himself at the time of the arrest that
there are reasonable grounds
for suspecting the guilt of the person
arrested[43],
although the grounds of suspicion need not consist of admissible
evidence[44].
If the arresting officer believes the information in his possession to be true,
if the information reasonably points to the guilt
of the arrested person and if
the arresting officer thus believes that the arrested person is so likely to be
guilty of the offence
for which he has been arrested that on general grounds of
justice a charge is warranted, he has reasonable and probable cause for
commencing a
prosecution[45].
There is no practical necessity to construe the words ‘as soon as is
practicable’ in s 34A(1) [of the Justices Act] so as to authorize
the detention by the police of the person arrested for the purpose of
questioning him or conducting inquiries
with his assistance.”

  1. Wilson
    and Dawson JJ
    accepted[46]
    that it would be unrealistic not to recognise that the restrictions which the
    common law placed on the purpose for which an arrested
    person may be held in
    custody had on occasions hampered the police, sometimes seriously, in their
    investigation of crime and the
    institution of proceedings for its prosecution.
    But like Mason and Brennan JJ, their Honours concluded that, if the law
    were to be
    modified, it was appropriate that it be done by legislation, as they
    observed it had been modified in Victoria by amendments to s
    460 of the
    Crimes Act 1958
    (Vic)[47].

Legislative history of Pt 9 of LEPRA

  1. Despite
    the decision in Williams v The Queen, some police forces (including the
    New South Wales Police Force) continued to detain arrested persons for
    investigation for substantial
    periods of time prior to taking them before a duly
    authorised
    officer[48].
    Evidently, they did so with relative confidence that, although evidence obtained
    as a result of the process would be considered
    as improperly obtained, criminal
    courts would be disposed to admit
    it[49].
    Increasingly, however, that situation came to be regarded as
    unacceptable[50].
    In 1990, the New South Wales Law Reform Commission
    concluded[51]
    that the common law imposed artificial constraints on police, who were obliged,
    in their own view, regularly to skirt the law in
    order properly to investigate
    allegations of criminal activity, and the Law Reform Commission
    recommended[52]
    replacement of the common law regarding arrest without warrant with a
    comprehensive legislative regime “addressing the needs of the
    police for
    adequate power to conduct criminal investigations while offering proper and
    realisable safeguards for persons in police
    custody”.
  2. The
    New South Wales Parliament responded to the Law Reform Commission’s
    recommendations with the enactment of the Crimes Amendment (Detention after
    Arrest) Act 1997
    (NSW), which relevantly created a new Pt 10A of the
    Crimes Act similar in form to what now appears in Pt 9 of LEPRA. As
    was
    explained[53]
    in the Second Reading Speech for the Crimes Amendment (Detention after
    Arrest) Bill 1997
    , the new Pt 10A was intended to make the law
    accord with practice by responding to the need which had been identified in
    Williams v The Queen for legislation to enable police to detain an
    arrested person for the purpose of investigation, subject to controls to protect
    the
    person:

“The decision in Williams’ case has been very
much honoured in the breach over the years. … That is a problem that must be
remedied.

The Crimes Amendment (Detention [a]fter Arrest) Bill addresses the problem.
It does so by creating a regime whereby police are empowered
to detain persons
in custody after arrest for the completion of investigatory procedures, but only
for strictly limited periods.
A detailed system is set out whereby police and
citizens will know precisely their rights and obligations. In short, the bill
strikes
a proper balance between allowing the police to make legitimate
investigations of alleged offences on the one hand, and, on the other
hand,
safeguarding the rights of ordinary citizens suspected of having committed those
offences.

The need for legislation of this sort was of course raised by the High Court
in Williams’ case. That need was subsequently affirmed
by the New South Wales
Law Reform Commission in its 1990 report on police powers of detention and
investigation after arrest. The
recommendations of that report have guided the
preparation of this bill. Some months ago, the royal commission [into the New
South
Wales Police Service] was provided with a draft version of the bill
similar to that which was circulated more widely in April 1997.
In his interim
report … Justice Wood affirmed that the bill ‘will clarify an area of the
common law that is currently fraught with
uncertainty and difficulty in its
application’. More recently, [his] final report … has recommended the
enactment of the bill ‘as
speedily as possible’.”

  1. It
    was
    emphasised[54]
    in the Second Reading Speech, as it was provided in s 356B in the new
    Pt 10A of the Crimes Act following the enactment of the Crimes
    Amendment (Detention after Arrest) Act 1997
    (NSW), that Pt 10A was not
    intended to confer any new power of arrest, and, in particular, that it was not
    intended to confer any
    power of arrest simply for the purpose of making
    inquiries. But it was also stated that, although it would remain that a person
    could
    not be arrested without warrant unless he or she were suspected on
    reasonable grounds of having committed an offence, the new Pt
    10A would
    have the effect that the arrested person could be detained for the investigation
    period for the purpose of investigating
    the person’s involvement in the alleged
    offence before being either brought before an authorised officer to be dealt
    with according
    to law or released:

“[T]his bill confers no new power
of arrest. Police will not be able to arrest a person in any circumstance where
the law does not
otherwise already allow them to do so [and] the bill does not
in itself authorise any new investigative procedures or powers. Rather,
it
merely allows police, during the investigation period, to carry out
investigative procedures that are otherwise authorised in
relation to persons
who are lawfully under arrest. … [T]he period for which police may detain a
person is ‘a reasonable time’.
However, pursuant to proposed
section 356D(2), that reasonable time may not be more than four hours
unless a detention warrant is
granted.”

  1. In
    2002, the New South Wales Government introduced the Law Enforcement (Powers
    and Responsibilities) Bill 2002
    to give effect to the recommendations of the
    Royal Commission into the New South Wales Police
    Service[55]. As
    appears from the Second Reading Speech for that Bill, it was intended
    substantially to re-enact the existing legislation but
    with amendments more
    accurately to reflect some areas of common law and to address other areas in the
    existing law where gaps had
    been
    identified[56].
    Part 8 of LEPRA in substance re-enacted the arrest provisions of Pt 10
    of the Crimes Act and Pt 9 of LEPRA in substance re-enacted the
    investigation and questioning provisions of Pt 10A of the Crimes
    Act
    .
  2. As
    first enacted, s 99 of LEPRA appeared as follows:

Power of
police officers to arrest without warrant
(cf Crimes Act 1900,
s 352, Cth Act, s 3W)

(1) A police officer may, without a warrant, arrest a person if:
(a) the person is in the act of committing an offence under any Act or statutory
instrument, or
(b) the person has just committed any such offence, or
(c) the person has committed a serious indictable offence for which the person
has not been tried.
(2) A police officer may, without a warrant, arrest a person if the police
officer suspects on reasonable grounds that the person
has committed an offence
under any Act or statutory instrument.
(3) A police officer must not arrest a person for the purpose of taking
proceedings for an offence against the person
unless the police officer
suspects on reasonable grounds that it is necessary to arrest the person to
achieve one or more of the
following purposes:
(a) to ensure the appearance of the person before a court in respect of the
offence,
(b) to prevent a repetition or continuation of the offence or the commission of
another offence,
(c) to prevent the concealment, loss or destruction of evidence relating to the
offence,
(d) to prevent harassment of, or interference with, a person who may be required
to give evidence in proceedings in respect of the
offence,
(e) to prevent the fabrication of evidence in respect of the offence,
(f) to preserve the safety or welfare of the person.
(4) A police officer who arrests a person under this section must, as soon as is
reasonably practicable, take the person, and any
property found on the person,
before an authorised officer to be dealt with according to law.” (emphasis
added)

  1. As
    is apparent, s 99(1) and (2) as first enacted thus substantially restated
    the power of arrest without warrant previously conferred
    under s 352 of the
    Crimes Act. But whereas the power of arrest under s 352 (like the
    power of arrest at common law) had been unguided – in that it was left
    to
    the unguided discretion of the arresting police officer to determine the
    circumstances in which it was appropriate to arrest a
    suspect rather than
    proceed by other
    means[57]
    s 99(3) of LEPRA as first enacted expressly provided for six
    situations in which a police officer would be justified in exercising the
    discretion
    to arrest and, in effect, provided that the power of arrest without
    warrant was not to be exercised in any other circumstances.
  2. Clearly
    enough, s 99(3) was designed to assist police by making more certain when
    it was appropriate to arrest a suspect rather than proceeding by other
    means.
    Just as clearly, however, the new provision was also designed to guard against
    the risk of the power of arrest being exercised
    in inappropriate circumstances
    by providing that the power was not to be exercised in any other than the six
    specified circumstances.
  3. It
    is to be observed that, as first enacted, s 99(3) referred to the exercise
    of the power of arrest as being “for the purpose of taking proceedings for an
    offence against the person”:
    presumably, in order to emphasise that the only
    permissible purpose of arrest was to take the arrested person before an
    authorised
    officer to be dealt with according to law in accordance with
    s 99(4). But it should also be noticed that, as enacted, s 105 –
    located in Pt 8 of LEPRA – formed part of the context in which
    Pt 9 sat. Section 105 expressly provided for the discontinuance of an
    arrest at any time, including when and if an arrested person ceased
    to be a
    suspect or it was determined that it was more appropriate to deal with the
    matter by other means.
  4. Part 9
    of LEPRA (ss 109 to 132) as first enacted was similar to Pt 10A of the
    Crimes Act (ss 354 to 356Y) following the enactment of the Crimes
    Amendment (Detention after Arrest) Act 1997
    (NSW), with two significant
    differences. The first was the introduction of s 105, into Pt 8 of
    LEPRA, which expressly conferred the
    power of discontinuance of an arrest at any
    time, to which reference has just been made. The Crimes Act did not
    contain an express provision to that effect. The second was that Pt 9 of
    LEPRA did not include a provision like s 356Y of the Crimes Act
    providing for review of Pt 10A of the Crimes Act as soon as possible
    after 12 months from its commencement.
  5. The
    form of s 99 of LEPRA at the time of Mr Jeffries’s arrest was
    introduced by the Law Enforcement (Powers and Responsibilities) Amendment
    (Arrest without Warrant) Act 2013
    (NSW) (“the 2013 LEPRA amendments”). As is
    apparent from comparison of the form of s 99 as first enacted with the form
    of s 99 as
    it appeared following the 2013 LEPRA
    amendments[58],
    the 2013 LEPRA amendments in substance consolidated into s 99(1)(a) the
    several powers of arrest previously provided for separately
    in s 99(1) and
    (2); relocated from s 99(3) to s 99(1)(b) the list of circumstances in
    which the power of arrest may be exercised;
    added three new situations to the
    list of circumstances in which the power of arrest may be exercised (making a
    total list of nine
    such circumstances); relocated from s 99(4) to
    s 99(3) the requirement to take an arrested person before an authorised
    officer as
    soon as reasonably practicable; added to s 99(3) the
    cross-referencing note that an arresting officer may, under s 105,
    discontinue
    an arrest at any time without taking the arrested person before an
    authorised officer; removed the reference previously contained
    in s 99(3)
    to the exercise of the power of arrest being “for the purpose of taking
    proceedings for an offence against the person”;
    and added, in the form of
    s 99(4), an express provision, linking s 99 to Pt 9, that a
    person who has been lawfully arrested under
    s 99 may be detained under
    Pt 9 for the purpose of investigating whether the person committed the
    offence for which the person has
    been arrested or for any other purpose
    authorised by that Part.

The effect of s 99 of LEPRA

  1. Contrary
    to the State of New South Wales’ submissions, s 99(1)(b) of LEPRA did not
    change the purpose or add to the purposes for which
    a person may be arrested
    without warrant. As s 99(3) makes clear, a police officer who arrests a
    person under s 99(1) on reasonable
    suspicion of committing or having
    committed an offence must, as soon as is reasonably practicable, take the person
    before an authorised
    officer to be dealt with according to law. Consequently,
    the only purpose for which a person may be arrested under s 99(1) remains
    as it was under s 352 of the Crimes
    Act
    [59]: to
    take him or her before an authorised officer to be dealt with according to law.
  2. What
    did change, however, as a result of LEPRA or, more accurately, as a result of
    the enactment of Pt 10A of the Crimes Act and now appears more
    pellucidly from the cross-referencing note since added to s 99(3); the
    deletion from s 99(3) as first enacted of the stipulation that arrest be
    “for the purpose of taking proceedings for an offence against the person”; and
    the addition of the express power of discontinuance of arrest in s 105, is
    that, once a person has been lawfully arrested under s 99 for the purpose
    of taking him or her before an authorised officer to be dealt with according to
    law, the person may be detained for
    the investigation
    period[60] for
    the purpose of investigating whether he or she committed the offence for which
    he or she has been arrested, and only then be
    taken before an authorised officer
    to be dealt with according to law or alternatively dealt with by other means or
    released[61].
  3. Furthermore,
    although it remains that the only purpose for which a police officer may arrest
    a person under s 99 is the purpose of taking the person before an
    authorised officer to be dealt with according to law, and only if one or more of
    the
    circumstances adumbrated in s 99(1)(b)(i) to (ix) is applicable, a
    police officer contemplating the exercise of the power of arrest under
    s 99(1) may now properly take into account that, if the person is lawfully
    arrested on the basis of reasonable grounds to suspect that the
    person is
    committing or has committed an offence, the person may then be detained for up
    to the investigation period for the investigation
    of the person’s involvement in
    the offence for which the person has been arrested, at which point a final
    decision can then be made
    whether to proceed to take the person before the
    authorised officer to be dealt with according to law, to proceed by other means,
    or to release the person. The purpose of the power to arrest under s 99,
    being to take the person before an authorised officer to be dealt with according
    to law, is, therefore, a purpose subject to defeasance
    in accordance with the
    proper exercise of the decision-making power conferred by ss 105 and 114 in
    respect of the person detained under Pt 9.
  4. This
    is not to say that every person who is lawfully arrested under s 99 of
    LEPRA may lawfully be detained under Pt 9 for the purposes of investigating
    the person’s involvement in the commission of the offence. As was earlier set
    out, the “investigation
    period” is defined as such period of time not exceeding
    the maximum investigation period as is reasonable having regard to all the
    circumstances[62].
    In some cases, possibly many – for example, cases of relatively minor
    offences where the facts are clear – it might
    not be reasonable to detain
    the person for any significant period of time at all. There is no power to
    detain a person under Pt 9 for any purpose other than investigating the
    person’s involvement in the offence for which he or she has been arrested, or
    for investigation
    in accordance with s 114(3), and, if the facts are clear,
    there is nothing to be gained by further investigating the person’s involvement
    in the offence. In
    such a case, s 115 would curtail or preclude any
    investigation period. Equally, however, there are cases, particularly those
    involving serious offences
    where the facts are not clear – for example, a
    case of homicide where the arresting officer has reason to suspect that it might
    be a case of self-defence or of excessive self-defence manslaughter –
    where there is likely to be very good reason for the
    arresting officer to
    exercise the power under Pt 9 to detain the arrested person for the
    investigation period in order to investigate the person’s involvement in the
    offence, and only
    then make a final decision whether to take the person before
    an authorised officer to be dealt with according to law, to deal with
    the person
    by other means, or to release the person.
  5. Contrary
    to the majority’s
    reasoning[63]
    in the Court of Appeal, the fact that an arresting officer has not at the time
    of arrest definitely determined that the arrested
    person will be charged with
    the offence for which the person is arrested does not mean that the arrest is
    not for the purpose of
    taking the person before an authorised officer to be
    dealt with according to law. Generally speaking, the fact that the purpose of
    an
    act is defeasible does not mean that it is not the purpose of the act. As Joseph
    Raz
    remarks[64],
    “[t]he notion of one reason overriding another should be carefully distinguished
    from that of a reason being cancelled by a cancelling
    condition”. Hence, just as
    a reservation of funds for the purpose of discharging a designated liability
    does not cease to be for
    that purpose by reason only that it is recognised at
    the time of reservation that events might later occur which result in the
    liability
    being discharged by other means, an arrest for the purpose of taking
    the arrested person before an authorised officer does not cease
    to be for that
    purpose by reason only that it is recognised at the time of arrest that,
    following investigation of the person’s involvement
    in the offence for which the
    person is arrested, it may emerge that the arresting officer’s suspicion of the
    person’s involvement
    in the offence is not sufficiently borne out for the person
    to be charged, or that the person should be dealt with by other means,
    or that
    the person should be
    released[65].
    So long as an arresting officer’s state of mind at the time of arrest is that
    the person will be taken before an authorised officer
    to be dealt with according
    to law unless, by reason of investigation of the person’s involvement in the
    offence during the investigation
    period, it emerges that the arresting officer’s
    suspicion is not sufficiently borne out to charge the person or that the person
    should
    be dealt with by some other means or released, the arrest is for the
    purpose of taking the person before an authorised officer to
    be dealt with
    according to law. As Emmett A-JA rightly
    concluded[66]:

“While s 99 does not modify the common law principle to the
extent contended by [the State of New South Wales], 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 [finally] 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.”

The degree of certainty of guilt required to charge

  1. It
    is true, as has been noticed, that, in Williams v The Queen, Mason and
    Brennan JJ
    observed[67] in
    obiter dictum that there was no reason to think that, “in general”, an arresting
    police officer would be unable to make a complaint
    or to lay an oral information
    until he had had an opportunity to question the person arrested. But contrary to
    the majority’s reasoning
    in the Court of
    Appeal[68],
    Mason and Brennan JJ are not to be taken thereby to have represented that
    what suffices to constitute reasonable grounds to suspect
    must necessarily be
    enough to lead an arresting officer to believe that the arrested person is so
    likely to be guilty of the offence
    for which he or she has been arrested that a
    charge is warranted. The essential point of both Dumbell v
    Roberts
    [69]
    and
    Hussien[70]
    – which Mason and Brennan JJ
    cited[71] with
    evident approval in support of their analysis of reasonable grounds to suspect
    – was that the requirement of reasonable
    grounds to suspect is “very
    limited” and nothing like as much as a prima facie case. As Lord Devlin
    stated[72] in
    Hussien:

“Suspicion in its ordinary meaning is a state of
conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’
Suspicion
arises at or near the starting-point of an investigation of which the
obtaining of prima facie proof is the end.”

Likewise, as this Court
observed[73] in
George v Rockett:

“Suspicion, as Lord Devlin said in Hussien v Chong Fook
Kam
[74],
‘in its ordinary meaning is a state of conjecture or surmise where proof is
lacking: “I suspect but I cannot prove.”‘ The facts
which can reasonably ground
a suspicion may be quite insufficient reasonably to ground a belief, yet some
factual basis for the suspicion
must be shown. In Queensland Bacon Pty Ltd v
Rees
[75], a
question was raised as to whether a payee had reason to suspect that the payer,
a debtor, ‘was unable to pay [its] debts as they
became due’ as that phrase was
used in s 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J
said[76]:

‘A suspicion that something exists is more than a mere idle wondering whether
it exists or not; it is a positive feeling of actual
apprehension or mistrust,
amounting to “a slight opinion, but without sufficient evidence”, as Chambers’s
Dictionary expresses it.
Consequently, a reason to suspect that a fact exists is
more than a reason to consider or look into the possibility of its existence.
The notion which “reason to suspect” expresses in sub-s (4) is, I think, of
something which in all the circumstances would create
in the mind of a
reasonable person in the position of the payee an actual apprehension or fear
that the situation of the payer is
in actual fact that which the sub-section
describes – a mistrust of the payer’s ability to pay his debts as they
become due
and of the effect which acceptance of the payment would have as
between the payee and the other creditors.'”

  1. That
    Mason and Brennan JJ cannot have intended to equate reasonable grounds to
    suspect with the state of belief required to charge
    is further borne out by
    their Honours’
    observation[77]
    that:

“Whatever a police officer should do before making a
complaint or preferring an oral information, s 34A casts no obligation on
him
to make the complaint or prefer the information when an arrested person is
brought before a justice pursuant to that section.”

  1. At
    common law, and under s 352 of the Crimes Act as it was before the
    enactment of Pt 10A, there was no statutory warrant to delay taking an
    arrested person before an authorised officer. Hence, as Lord Devlin
    observed[78] in
    Hussien, it was desirable “as a general rule” that an arrest should not
    be made “until the case is complete”. But, as has been seen, that
    did not mean
    that an arrest could not be effected until the arresting officer was satisfied
    of the existence of a prima facie case.
    At common law, and under s 352 of
    the Crimes Act, an arresting officer had a discretion to arrest on
    reasonable suspicion when the case demanded it. What it meant was that the
    arrested
    person had to be brought before an authorised officer forthwith, and if
    the arrested person were so brought before an authorised
    officer, and
    charged
    , before the arresting officer was satisfied that the arrested person
    was so likely guilty of the offence for which he or she had
    been arrested that a
    charge was warranted, the arresting officer would be at risk of a claim for
    malicious
    prosecution[79].
    That is the significance of Mason and Brennan JJ’s observation that
    s 34A of the Justices Act cast no obligation on an arresting officer
    to make a complaint or prefer an information when an arrested person was brought
    before
    a justice pursuant to that section: the requirement was one to take the
    arrested person before the authorised officer as soon as
    practicable, not charge
    the arrested
    person[80]. In
    that sense, Basten JA was correct in
    observing[81]
    that the “incoherence” between what is required to comprise reasonable grounds
    to suspect and reasonable and probable cause to charge
    may be resolved by
    treating the obligation to take an arrested person as soon as practicable before
    an authorised officer as a separate
    obligation imposed by law once an arrest has
    taken place. But his Honour was not correct that so to reason would be
    inconsistent
    with Bales v Parmeter and Drymalik v
    Feldman
    .

Contextual construction

  1. In
    any event, and ultimately more importantly, even if Bales v Parmeter,
    Drymalik v Feldman or Williams v The Queen were properly to be
    understood as requiring that, before effecting an arrest, an arresting officer
    had to make an unqualified decision
    to charge the person arrested (and to
    repeat, for the reasons given that is not a correct understanding of those
    decisions), each
    of them was decided on the basis of legislative provisions
    that, in marked contradistinction to the cross-referencing note to s 99(3)
    of LEPRA following the 2013 LEPRA amendments, the provisions of s 99(4) and
    the provisions of Pt 9 of LEPRA that have been identified, did not
    expressly authorise the arresting officer to detain the arrested person for the
    investigation
    period for the purpose of inquiring into that person’s involvement
    in the offence for which he or she has been arrested; discontinue
    the arrest at
    any time; or within the investigation period either take the person before an
    authorised officer to be dealt with according
    to law, deal with the person by
    other means, or release the person.
  2. Granted,
    s 99(1)(a) as it has appeared since the 2013 LEPRA amendments is not
    relevantly different from the form of s 352 of the Crimes Act
    considered in Bales v Parmeter or the form of s 27 of the
    Criminal Code (Tas) considered in Williams v The Queen. And as has
    been seen, s 99(1)(b) says nothing as to the purpose for which a person may
    be arrested as opposed to circumstances in
    which arrest may be regarded as
    appropriate. But s 99(1) of LEPRA presents in a very different context from
    s 352 of the Crimes Act or s 27 of the Criminal Code
    (Tas), and it is in the context in which s 99 now appears that it must
    be construed “so that it is consistent with the language and
    purpose of all the
    provisions of the
    statute”[82].
  3. Given
    that context, and given in particular as part of that context that s 105
    expressly provides for each of the several possible
    ways in which an arrest may
    now be finalised (as opposed to the sole outcome of taking an arrested person
    before a proper officer
    that applied under s 352 of the Crimes Act
    and kindred provisions the subject of consideration in Bales v Parmeter
    and Williams v The Queen), a construction of s 99(1) which
    requires an arresting officer to have made an unqualified decision at the time
    of arrest to take the arrested person before
    an authorised officer to be dealt
    with according to law is, as Emmett A-JA
    reasoned[83],
    necessarily precluded. To treat Bales v Parmeter, Drymalik v Feldman
    and Williams v The Queen as determinative of the correct construction
    of the current form of s 99 would not only fly in the face of the express
    terms of s 99 as amended by the 2013 LEPRA amendments, but run directly
    counter to the clear legislative purpose of Pt 9 of LEPRA of providing a
    regime “whereby police are empowered to detain persons in custody after arrest
    for the completion of investigatory
    procedures”[84].

Conclusion and orders

  1. It
    follows that the trial judge was right to hold that Mr Jeffries’s arrest
    under s 99 of LEPRA was not rendered unlawful by reason of
    Constable Smith not having formed an unqualified intention to charge
    Mr Jeffries
    at the time of arrest. The appeal should be allowed. The orders
    of the Court of Appeal should be set aside and in their place it
    should be
    ordered that Mr Jeffries’s appeal to the Court of Appeal be dismissed with
    costs. Mr Jeffries should pay the State of New
    South Wales’ costs of the
    appeal to this Court.
  1. BELL,
    GAGELER, GORDON AND EDELMAN JJ. This appeal concerns whether a police
    officer has the power to arrest a person, without warrant,
    under s 99
    of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
    (“LEPRA”) when, at the time of the arrest, the officer had not formed the
    intention to charge the arrested person. The answer
    is “no”.
  2. In
    Bales v
    Parmeter
    [85],
    Jordan CJ provided a clear statement of the law in New South Wales: an arrest
    can only be for the purpose of taking the arrested
    person before a magistrate
    (or other authorised officer) to be dealt with according to law to answer a
    charge for an offence. An
    arrest merely for the purpose of asking questions or
    making investigations in order to see whether it would be proper or prudent
    to
    charge the arrested person with a crime is an arrest for an improper purpose and
    is unlawful. That straightforward, single criterion
    has been repeatedly cited
    with approval in New South Wales and
    elsewhere[86].
    In making that statement, Jordan CJ was expressing the effect of s 352 of
    the Crimes Act 1900
    (NSW)[87].
    Nothing done in LEPRA (in its original or amended form), or for that matter in
    any of the intervening legislative amendments which
    will be examined, has
    displaced that single criterion.

Facts

  1. On
    9 October 2013, Mr Jeffries was served with a Provisional Order (ex parte)
    Apprehended Personal Violence Order after a complaint
    by Ms Mitchell.
    The order restrained Mr Jeffries from, among other things,
    harassing Ms Mitchell, engaging in conduct that intimidated
    her,
    deliberately damaging or interfering with her property, or contacting her
    “by any means whatsoever” except by way of Mr Jeffries’s
    lawyer. On 16 October
    2013, the Local Court of New South Wales made an Apprehended Violence Order
    (“AVO”) against Mr Jeffries in
    terms equivalent to the initial order,
    with additional orders that he must not approach or contact or enter the
    premises at which
    Ms Mitchell lived or worked.
  2. On
    20 December 2013, Ms Mitchell reported to police that Mr Jeffries had sent an
    email to one of her employees, making false allegations.
    Ms Mitchell made a signed
    statement.
  3. Constable
    Smith of Sydney City Police Station read the police file concerning the
    complaint on the morning of Sunday 22 December 2013.
    He formed the opinion
    that Mr Jeffries had breached the AVO and that he would go to Mr Jeffries’s
    address and arrest him. At 11.15
    am, police officers, including Constable Smith,
    went to what they believed to be Mr Jeffries’s residence but were told by
    neighbours
    that Mr Jeffries no longer lived there. They were unable to
    locate him.
  4. At
    noon, Mr Jeffries telephoned the police and told Constable Colakides that he had
    been told that the Sydney City police wished to
    speak to him regarding a breach
    of an AVO. Mr Jeffries said he was homeless and currently interstate but
    that he would be in Sydney
    the next day. He refused to provide the address where
    he would be the next day. He said that he would not be attending any police
    station before seeking legal representation. Constable Colakides told Mr
    Jeffries to attend Sydney City Police Station the next day
    regarding breaching
    an AVO. Mr Jeffries was argumentative and did not agree to do so. Constable
    Colakides made a note of the conversation
    on the New South Wales Police Force’s
    Computerised Operational Policing System and told Constable Smith of what had
    occurred.
  5. At
    5.00 pm on the same day, Mr Jeffries voluntarily entered Sydney City Police
    Station. Constable Smith immediately arrested Mr Jeffries
    and told him he was
    being arrested for breaching an AVO. Constable Smith offered Mr Jeffries
    the opportunity of an interview, which
    Mr Jeffries accepted. At the end of
    the interview, at 6.18 pm, Mr Jeffries was released without charge.
  6. Mr
    Jeffries brought proceedings in the District Court of New South Wales against
    the State of New South Wales claiming damages for
    wrongful arrest and false
    imprisonment constituted by his arrest. The State of New South Wales defended
    the claim on the basis that
    the arrest was lawfully effected pursuant to
    ss 99(1)(a) and 99(1)(b)(i), (iv) and (ix) of LEPRA.
  7. At
    first instance, Constable Smith gave evidence that he believed it had been
    necessary to arrest Mr Jeffries for the alleged breach
    of the AVO because of the
    seriousness of the alleged offence, because he believed that it should be “dealt
    with”, to prevent a repetition
    of the offence, and to ensure Mr Jeffries’s
    appearance in court.
  8. At
    the time Constable Smith arrested Mr Jeffries, he had not decided to charge him
    with any offence. Constable Smith conceded that
    at the time of the arrest he
    “did not believe there was enough [evidence] to charge him”. He said the
    decision whether to charge
    Mr Jeffries depended on what Mr Jeffries
    said in his interview. Constable Smith said he did not charge Mr Jeffries after
    the interview
    as Mr Jeffries had given an explanation during the interview
    which led Constable Smith to believe further evidence would be
    needed.

Legislative framework

  1. At
    the time of Mr Jeffries’s arrest, Pt 8 of LEPRA set out the powers relating
    to arrest. Section 99, headed “[p]ower of police officers
    to arrest without
    warrant (cf Crimes Act 1900, s 352, Cth Act, s 3W)”, was the first section in
    Pt 8 and it relevantly provided:

“(1) A police officer may, without a warrant, arrest a person if:
(a) the police officer suspects on reasonable grounds that the person is
committing or has committed an offence, and
(b) the police officer is satisfied that the arrest is reasonably necessary for
any one or more of the following reasons:
(i) to stop the person committing or repeating the offence or committing another
offence,
(ii) to stop the person fleeing from a police officer or from the location of
the offence,
(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,
(iv) to ensure that the person appears before a court in relation to the
offence,
(v) to obtain property in the possession of the person that is connected with
the offence,
(vi) to preserve evidence of the offence or prevent the fabrication of
evidence,
(vii) to prevent the harassment of, or interference with, any person who may
give evidence in relation to the offence,
(viii) to protect the safety or welfare of any person (including the person
arrested),
(ix) because of the nature and seriousness of the offence.
(2) A police officer may also arrest a person without a warrant if directed to
do so by another police officer. The other police
officer is not to give such a
direction unless the other officer may lawfully arrest the person without a
warrant.
(3) A police officer who arrests a person under this section must, as soon
as is reasonably practicable, take the person before an
authorised officer to be
dealt with according to law.
Note. The police officer may discontinue the arrest at any time and
without taking the arrested person before an authorised officer –
see
section 105.
(4) A person who has been lawfully arrested under this section may be detained
by any police officer under Part 9 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 that Part.
(5) This section does not authorise a person to be arrested for an offence for
which the person has already been tried.
…”

  1. Section
    105, to which reference was made in the note to s 99(3), was also in
    Pt 8. It provided:

“(1) A police officer may discontinue an arrest at any time.
(2) Without limiting subsection (1), a police officer may discontinue an arrest
in any of the following circumstances:
(a) if the arrested person is no longer a suspect or the reason for the arrest
no longer exists for any other reason,
(b) if it is more appropriate to deal with the matter in some other manner,
including, for example, by issuing a warning or caution
or a penalty notice or
court attendance notice or, in the case of a child, dealing with the matter
under the Young Offenders Act 1997.
(3) A police officer may 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.”

  1. Section 107,
    headed “[p]art does not affect alternatives to arrest”,
    provided:

“(1) Nothing in this Part affects the power of a police officer to commence
proceedings for an offence against a person otherwise
than by arresting the
person.
(2) Nothing in this Part affects the power of a police officer to issue a
warning or a caution or a penalty notice to a
person.”

  1. Part
    9
    , to which reference was made in s 99(4), was headed “[i]nvestigations and
    questioning”. Section 111(1) provided that Pt 9 applied to a person who was
    “under arrest by a police officer for an offence”. The objects of Pt 9 were
    set out in s 109 as follows:

“(a) 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, and

(b) 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
(c) to provide for the rights of a person so
detained.”

  1. Significantly,
    s 113(1) provided, relevantly, that Pt 9 did
    not:

“(a) confer any power to arrest a person, or to detain a person who has not
been lawfully arrested
, or
(b) prevent a police officer from asking or causing a person to do a particular
thing that the police officer is authorised by law
to ask or cause the person to
do (for example, the power to require a person to submit to a breath analysis
under Division 2 of Part 2 of Schedule 3 to the Road Transport Act 2013),
or
(c) independently confer power to carry out an investigative procedure.”
(emphasis added)

  1. Division
    2 of Pt 9 was headed “[i]nvestigation and questioning powers”. It comprised
    ss 114 to 121. Section 114, entitled “[d]etention after arrest for purposes
    of investigation (cf Crimes Act 1900, s 356C)”,
    provided:

“(1) A police officer may in accordance with this section detain a person,
who is under arrest, for the investigation period provided for
by section
115
.
(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
.
(3) If, while a person is so detained, 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. It is immaterial whether
that other offence was committed before or after the commencement of this Part
or
within or outside the State.
(4) The person must be:
(a) released (whether unconditionally or on bail) within the investigation
period, or
(b) brought before an authorised officer or court within that period, or, if it
is not practicable to do so within that period, as
soon as practicable after the
end of that period.
(5) A requirement in another Part of this Act, the Bail Act 1978 or any
other relevant law that a person who is under arrest be taken before a
Magistrate or other authorised officer or court, without
delay, or within a
specified period, is affected by this Part only to the extent that the extension
of the period within which the
person is to be brought before such a Magistrate
or officer or court is authorised by this Part.
(6) If a person is arrested more than once within any period of 48 hours, the
investigation period for each arrest, other than the
first, is reduced by
so much of any earlier investigation period or periods as occurred within that
48 hour period.
(7) The investigation period for an arrest (the earlier arrest) is
not to reduce the investigation period for a later arrest if the later arrest
relates to an offence that the person is suspected
of having committed after the
person was released, or taken before a Magistrate or other authorised officer or
court, in respect
of the earlier arrest.” (emphasis
added)

  1. Section
    115 provided that the “investigation period” was “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”; and
    that “[t]he maximum
    investigation period is 4 hours or such longer period as the
    maximum investigation period may be extended to by a detention warrant”.
  2. Section
    116(1) provided that, “[i]n determining what is a reasonable time for the
    purposes of section 115(1), all the relevant circumstances
    of the
    particular case must be taken into account”. Section 116(2) provided that,
    without limiting the relevant circumstances that
    must be taken into account, the
    following circumstances (if relevant) were to be taken into
    account:

“(a) the person’s age, physical capacity and condition and mental capacity and
condition,
(b) whether the presence of the person is necessary for the investigation,
(c) the number, seriousness and complexity of the offences under
investigation,
(d) whether the person has indicated a willingness to make a statement or to
answer any questions,
(e) the time taken for police officers connected with the investigation (other
than police officers whose particular knowledge of
the investigation, or whose
particular skills, are necessary to the investigation) to attend at the place
where the person is being
detained,
(f) whether a police officer reasonably requires time to prepare for any
questioning of the person,
(g) the time required for facilities for conducting investigative procedures in
which the person is to participate (other than facilities
for complying with
section 281 of the Criminal Procedure Act
1986
[[88]])
to become available,
(h) the number and availability of other persons who need to be questioned or
from whom statements need to be obtained,
(i) the need to visit the place where any offence concerned is believed to have
been committed or any other place reasonably connected
with the investigation of
any such offence,
(j) the time during which the person is in the company of a police officer
before and after the person is arrested,
(k) the time taken to complete any searches or other investigative procedures
that are reasonably necessary to the investigation
(including any search of the
person or any other investigative procedure in which the person is to
participate),
(l) the time required to carry out any other activity that is reasonably
necessary for the proper conduct of the
investigation.”

  1. Section
    4
    of LEPRA, headed “[r]elationship to common law and other matters”,
    provided:

“(1) Unless this Act otherwise provides expressly or by implication,
this Act does not limit:
(a) the functions, obligations and liabilities that a police officer has as a
constable at common law
, or
(b) the functions that a police officer may lawfully exercise, whether under an
Act or any other law as an individual (otherwise
than as a police officer)
including, for example, powers for protecting property.
(2) Without limiting subsection (1) and subject to section 9, nothing in this
Act affects the powers conferred by the common law
on police officers to deal
with breaches of the peace.” (emphasis
added)

Earlier decisions

First instance

  1. The
    primary judge, Judge P Taylor SC, dismissed Mr Jeffries’s claim for damages for
    false imprisonment. His Honour noted that Mr Jeffries
    “accepted that
    Constable Smith had suspected a breach of the AVO” and thus the commission of an
    offence. Further, his Honour held
    that Constable Smith had reasonable grounds
    for that suspicion given information from Ms Mitchell about the email sent by
    Mr Jeffries.
    His Honour then turned to the requirement of s 99(1)(b) (that
    the police officer needs to be satisfied that the arrest is reasonably
    necessary
    for any one or more of the specified reasons), by considering three possible
    reasons for the arrest.
  2. First,
    s 99(1)(b)(i) required that “the police officer is satisfied that the
    arrest is reasonably necessary … to stop the person
    committing or repeating
    the offence or committing another offence”. His Honour found, on Constable
    Smith’s evidence (including that
    he did not have any reason to suspect that
    another breach of the AVO by Mr Jeffries may occur), that it was not established
    that
    Constable Smith was satisfied that an arrest was reasonably necessary to
    prevent repetition of the offence.
  3. Next,
    the primary judge considered s 99(1)(b)(iv), which required that “the
    police officer is satisfied that the arrest is reasonably
    necessary … to
    ensure that the person appears before a court in relation to the offence”. The
    primary judge found that s 99(1)(b)(iv)
    was satisfied
    because:

“Constable Smith was informed that Mr Jeffries would not agree to attend the
police station as requested, had refused to provide
his place of residence, had
indicated that he was homeless and that he was no longer at his noted residence.
These matters all support
a belief in Constable Smith of a concern about whether
the person, Mr Jeffries, would attend court and whether arrest was necessary
for
that purpose. I accept that this belief of Constable Smith was not displaced by
the circumstance that Mr Jeffries voluntarily
attended the police
station.”

  1. Finally,
    the primary judge considered s 99(1)(b)(ix), which required that “the
    police officer is satisfied that the arrest is reasonably
    necessary … because
    of the nature and seriousness of the offence”. Quoting an earlier decision of
    the Court of Appeal of the Supreme
    Court of New South Wales in relation to
    Mr Jeffries[89],
    the primary judge found that the requirement was met as “breach of an AVO is a
    serious offence” and “social media harassment is
    not to be lightly dismissed”,
    social media harassment evidently being considered similar to Mr Jeffries’s
    email in the circumstances.
  2. Accordingly,
    the arrest was held to be lawful, and the claim for wrongful imprisonment was
    dismissed.

Court of Appeal

  1. The
    only appeal ground was that “the primary judge erred in finding that [Mr
    Jeffries’s] 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”. The
    Court of Appeal of the Supreme Court of New South
    Wales (McColl and Basten JJA and Emmett A-JA) allowed the appeal, by majority.
    Each member of the Court of Appeal gave separate reasons for judgment.
  2. The
    majority (McColl and Basten JJA) allowed the appeal on the basis that it was a
    requirement under s 99 that, at the time of the
    arrest, the arresting
    police officer must have formed a positive intention to charge the arrested
    person with an offence and, because
    Constable Smith “had not determined at the
    time of the arrest whether he would charge Mr Jeffries”, the arrest was
    unlawful.

Powers of arrest without warrant

  1. The
    starting point is the decision of Jordan CJ in
    Bales[90]
    (with whom the rest of the Full Court of the Supreme Court of New South
    Wales
    agreed[91]),
    which has frequently been cited with
    approval[92].
  2. The
    effect of the provision in issue, s 352 of the Crimes Act 1900
    (NSW), was “merely to reinforce the common law principle” that a constable had
    to take an arrested person without delay, and by the
    most direct route, before a
    justice unless some circumstances reasonably justified a departure from those
    requirements[93].
    The provision was relevantly as follows:

“(1) Any constable or other person may without warrant apprehend,
(a) any person in the act of committing, or immediately after having committed,
an offence punishable, whether by indictment, or
on summary conviction, under
any Act,
(b) any person who has committed a felony for which he has not been tried,
and take him, and any property found upon him, before a Justice to be dealt with
according to law.
(2) Any constable may without warrant apprehend,
(a) any person whom he, with reasonable cause, suspects of having committed any
such offence or crime,
(b) any person lying, or loitering, in any highway, yard, or other place during
the night, whom he, with reasonable cause, suspects
of being about to commit any
felony,
and take him, and any property found upon him, before a Justice to be dealt with
according to law.”

  1. In
    Bales, Jordan CJ explained the relevant principles in these
    terms[94]:

“[S]uspicion that a person has committed a crime cannot justify an arrest except
for a purpose which that suspicion justifies; and
arrest and imprisonment cannot
be justified merely for the purpose of asking questions. … Where the
imposition of physical restraint
is authorised by law it may be imposed only for
the purpose for which it is authorised. … [I]t may be imposed by a police
officer
in the course of arresting and bringing before a magistrate a person for
whose arrest no warrant has issued, but whom the officer,
with reasonable cause,
suspects of having committed a crime or an offence punishable whether by
indictment or summarily under any
Act. … But the statute
[Crimes Act 1900 (NSW), s 352], like the common law,
authorises him only to take the person so arrested before a justice to be dealt
with according to law, and
to do so without unreasonable delay and by the most
reasonably direct route
: Clarke v
Bailey
[95].”
(emphasis added)

  1. Jordan
    CJ went on to
    state[96]:

“If a person has been arrested, and is in process of being brought before a
magistrate questioning within limits is regarded as proper
in New South Wales
… but a police officer has no more authority to restrain the liberty of a
suspected person for the purpose,
not of taking him before a magistrate, but of
interrogating him, than he has of restraining the liberty of a person who may be
supposed
to be capable of supplying information as a
witness.”

  1. The
    single criterion set out by Jordan CJ was approved by this Court in Williams
    v The
    Queen
    [97].
    There, “bringing [an arrested person] before a justice (or nowadays before
    some other person with power to deal with him) to be
    dealt with according to
    law” was described as the “true purpose” of
    arrest[98].
  2. Police
    officers have, in New South Wales, a power to arrest and detain a person where
    they suspect on reasonable grounds that an offence
    has been committed or is
    being committed, and that the person has committed or is committing the
    offence[99],
    and the arrest is reasonably necessary for any one or more of specified
    reasons[100].
    But that power is exercisable only for the purpose of taking the person before a
    magistrate (or other authorised officer) to be
    dealt with according to law to
    answer a charge for that offence. Arrest cannot be justified where it is merely
    for the purpose of
    questioning[101].
  3. As
    will be seen, nothing in LEPRA (in its original or amended form) has displaced
    the single criterion identified in Bales and confirmed in
    Williams.
  4. In
    Williams, Mason and Brennan JJ, as well as Wilson and Dawson JJ,
    acknowledged that the “jealousy with which the common law protect[ed] the
    personal liberty of the subject [did] nothing to assist the police in the
    investigation of criminal
    offences”[102].
    Their Honours recognised that the duties of an arresting officer were by no
    means incompatible with efficient investigation but
    that “the balance between
    personal liberty and the exigencies of criminal investigation [had] been thought
    by some to be wrongly
    struck”[103].
    But their Honours concluded that if the law was to be modified it was a task for
    the legislature, not the
    courts[104].
    As Mason and Brennan JJ said, it was the legislature that was able to “prescribe
    some safeguards which might ameliorate the risk
    of unconscionable pressure being
    applied to persons under interrogation while they are being kept in
    custody”[105].
  5. In
    1990, the New South Wales Law Reform Commission published its report into police
    powers of detention and investigation after arrest
    and concluded that the common
    law imposed “artificial constraints” on
    police[106].
    The report recommended replacing the common law regarding arrest without
    warrant with a comprehensive legislative regime “addressing
    the needs of the
    police for adequate power to conduct criminal investigations while offering
    proper and realisable safeguards for
    persons in police
    custody”[107].
  6. The
    New South Wales Parliament responded with the enactment of the Crimes
    Amendment (Detention after Arrest) Act 1997
    (NSW), which relevantly created
    a new Pt 10A of the Crimes Act 1900 (NSW) similar in form to what
    now appears in Pt 9 of LEPRA.
  7. The
    new Part was described in the Second Reading Speech as addressing the problem
    identified in
    Williams[108]:

“by creating a regime whereby police are empowered to detain persons in custody
after arrest for the completion of investigatory
procedures, but only for
strictly limited periods. A detailed system is set out whereby police and
citizens will know precisely their
rights and obligations. In short, the
bill strikes a proper balance between allowing the police to make legitimate
investigations
of alleged offences on the one hand, and, on the other hand,
safeguarding the rights of ordinary citizens suspected of having committed
those
offences.”

  1. Following
    the enactment of this amending legislation, s 356B(1) of the Crimes
    Act
    1900 (NSW) provided that:

“This Part does not:
(a) confer any power to arrest a person, or to detain a person who has
not been lawfully arrested
, or
(b) prevent a police officer from asking or causing a person to do a particular
thing that the police officer is authorised by law
to ask or cause the person to
do (for example, the power to require a person to submit to a breath analysis
under section 4E of the
Traffic Act 1909), or
(c) independently confer power to carry out an investigative procedure.”
(emphasis added)

  1. The
    purpose and extent of the amendments were clear. The single criterion for a
    lawful arrest had not changed. As was said in the
    Second Reading
    Speech[109]:

“[T]his bill confers no new power of arrest. Police will not be able to arrest a
person in any circumstance where the law does not
otherwise already allow them
to do so … [and] the bill does not itself authorise any new investigative
procedures or powers. Rather,
it merely allows police, during the investigation
period, to carry out investigative procedures that are otherwise authorised
in
relation to persons who are lawfully under arrest. … [T]he period
for which police may detain a person is ‘a reasonable time’. However,
pursuant to proposed section 356D(2), that
reasonable time may not be more
than four hours unless a detention warrant is granted.” (emphasis
added)

  1. Subsequently,
    in 2002, the Law Enforcement (Powers and Responsibilities) Bill 2002
    (NSW) was introduced to give effect to the recommendations of the Royal
    Commission into the New South Wales Police
    Service[110].
    The Bill substantially re-enacted the existing legislation but with some
    amendments intended to “more accurately reflect areas of
    the common law” and “to
    address areas in the existing law where gaps [had] been
    identified”[111].
    Unless “expressly stated”, the Bill was “not intended to change the common
    law”[112].
  2. Part
    8 of the Bill, headed “[p]owers relating to arrest”,
    contained cll 99-108. What became s 99 of LEPRA, headed “[p]ower
    of police
    officers to arrest without warrant (cf Crimes Act 1900, s 352, Cth
    Act, s 3W)”, was in the following terms:

“(1) A police officer may, without a warrant, arrest a person if:
(a) the person is in the act of committing an offence under any Act or statutory
instrument, or
(b) the person has just committed any such offence, or
(c) the person has committed a serious indictable offence for which the person
has not been tried.
(2) A police officer may, without a warrant, arrest a person if the police
officer suspects on reasonable grounds that the person
has committed an offence
under any Act or statutory instrument.
(3) A police officer must not arrest a person for the purpose of taking
proceedings for an offence against the person
unless the police officer
suspects on reasonable grounds that it is necessary to arrest the person to
achieve one or more of the following
purposes:
(a) to ensure the appearance of the person before a court in respect of the
offence,
(b) to prevent a repetition or continuation of the offence or the commission of
another offence,
(c) to prevent the concealment, loss or destruction of evidence relating to the
offence,
(d) to prevent harassment of, or interference with, a person who may be required
to give evidence in proceedings in respect of the
offence,
(e) to prevent the fabrication of evidence in respect of the offence,
(f) to preserve the safety or welfare of the person.
(4) A police officer who arrests a person under this section must, as soon
as is reasonably practicable, take the person, and any
property found on the
person, before an authorised officer to be dealt with according to law.”
(emphasis added)

  1. In
    the Second Reading Speech, Pt 8 of the Bill was described in these
    terms[113]:

“Part 8 of the bill substantially re-enacts arrest provisions of the Crimes Act
1900
and codifies the common law. The provisions of part 8 reflect that arrest
is a measure that is to be exercised only when necessary. An arrest
should only be used as a last resort as it is the strongest measure that may be
taken to secure an accused person’s attendance
at court
. Clause 99, for
example, clarifies that a police officer should not make an arrest unless it
achieves the specified purposes, such
as preventing the continuance of the
offence. Failure to comply with this clause would not, of itself, invalidate the
charge. Clauses
107 and 108 make it clear that nothing in the part affects the
power of a police officer to exercise the discretion to commence proceedings
for
an offence other than by arresting the person, for example, by way of caution or
summons or another alternative to arrest. Arrest
is a measure of last resort.
The part clarifies that police have the power to discontinue arrest at any
time.” (emphasis added)

  1. A
    number of points need to be made. Section 99(1) and (2) substantially restated
    the power of arrest without warrant previously existing under s 352 of the
    Crimes Act 1900 (NSW). The single criterion for arrest was not changed.
    Section 99(3) was new. It had two distinct parts. First, it reinforced that the
    only permissible purpose of arrest was to take the arrested person
    before an
    authorised officer to be dealt with according to law pursuant to s 99(4).
    Second, it narrowed rather than expanded the circumstances in which the arrest
    powers in s 99(1) and (2) could be exercised by providing that a police
    officer would not be justified in exercising the discretion to arrest a person
    for the purpose of taking proceedings for an offence against the person unless
    the police officer suspected on reasonable grounds
    that it was necessary to
    arrest the person to achieve one or more of six identified purposes. Section 105
    was also new and clarified
    that the police had the power to discontinue arrest
    at any
    time[114]. It
    expressly provided that a police officer could discontinue an arrest at any
    time, including if an arrested person was no longer
    a suspect or it was more
    appropriate to deal with the matter in some other manner.
  2. Section
    99
    was then amended by the Law Enforcement (Powers and Responsibilities)
    Amendment (Arrest without Warrant) Act 2013
    (NSW). It has remained in this
    form and was the section that applied when Mr Jeffries was
    arrested[115].
  3. The
    Second Reading Speech identified a number of important points about the
    amendments to
    s 99[116]:

“The bill will clarify that police can arrest without a warrant for any offence
they reasonably suspect a person is committing or
has committed. …
New section 99(1)(a) makes it abundantly clear that police can arrest without a
warrant for any offence, whether in the act of being
committed or having been
committed in the past. Having formed a reasonable suspicion that an offence is
being or has been committed,
under new section 99(1)(b) a police officer can
place a person under arrest if satisfied it is reasonably necessary to do so for
one of the reasons set out in the section. New section 99(1)(b) replicates and
simplifies the existing reasons for arrest contained
in section 99(3) of the
Act. It also introduces new reasons to arrest without a warrant that better
reflect the circumstances in
which police are called on to act in order to keep
the community safe.

Section 99 will also be amended to make clear to the arresting police officer
that an arrest may be discontinued and the person
released without requiring the
suspect be brought before an authorised officer. This may occur when
inquiries reveal the reasons
for arrest no longer exist or if police decide it
is more appropriate to deal with the matter in some other manner – for
example,
by issuing a caution, penalty notice or court attendance notice.
Finally, section 99 will be amended to make clear that a person who is
lawfully arrested under this section may be detained for the
purpose of an
investigation in accordance with part 9 of the Act
. This amendment is
intended to remove uncertainty about whether a person who is otherwise lawfully
arrested can be detained for questioning
under part 9.” (emphasis
added)

  1. The
    Explanatory Note relevantly explained that
    the[117]:

“substituted section extends the reasons for arrest without warrant to include
additional reasons in line with section 365 of the Police Powers and
Responsibilities Act 2000
of Queensland. Those additional reasons include to
stop the person fleeing, to make inquiries to establish the identity of the
person,
to obtain property in the possession of the person connected with the
offence, to preserve the safety or welfare of any person or
because of the
nature and seriousness of the offence.”

  1. However,
    significantly, the substituted section did not adopt the text of s 365 of
    the Police Powers and Responsibilities Act 2000 (Qld), which expressly
    provides that it is lawful for a police officer, without warrant, to arrest an
    adult the police officer reasonably
    suspects has committed or is committing an
    offence if it is reasonably necessary for one or more specified reasons
    and makes it lawful for a police officer, without warrant, to arrest a
    person the police officer reasonably suspects has committed or
    is committing an
    indictable offence, for questioning the person about the offence, or
    investigating the offence, under Ch 15 of that
    Act[118].

Construction of s 99

  1. Section
    99(1) stipulates conditions for arrest without a warrant, namely that “the
    police officer suspects on reasonable grounds that
    the person is committing or
    has committed an
    offence”[119]
    and that “the police officer is satisfied that the arrest is reasonably
    necessary for any one or more” of specified
    reasons[120].
    And 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[121].
    That is a requirement that takes effect immediately upon arrest. To comply with
    the requirement in s 99(3) immediately upon arrest,
    a police officer
    must at the time of arrest have an intention to take the person,
    as soon as is reasonably practicable, before an authorised officer to be
    dealt with according to law to answer
    a charge for that offence. If there is no
    intention to comply with the requirement in s 99(3), the arrest is
    unlawful. And a requirement
    for the police officer to have an intention to bring
    a person before an authorised officer means, as a matter of substance, a
    requirement
    to have an intention to charge that person.
  2. Thus,
    an arrest under s 99 can only be for the purpose, as soon as is
    reasonably practicable, of taking the arrested person before
    a magistrate (or
    other authorised officer) to be dealt with according to law to answer a charge
    for that offence. An arrest merely
    for the purpose of asking questions or making
    investigations in order to see whether it would be proper or prudent to charge
    the
    arrested person with the crime is an arrest for an improper purpose and is
    unlawful.
  3. Section
    99(1)-(3), in its terms, does not alter that single criterion for a lawful
    arrest that has been the law in New South Wales
    since at least
    1933[122].
    The note to s 99(3), which states that, under s 105, a police
    officer may discontinue the arrest at any time and without taking
    the arrested
    person before an authorised officer, says nothing about the necessary mental
    state of the police officer at the time
    of the arrest. Instead, s 105 (and
    the note to s 99(3)) underscores the possibility that while there must be
    at the time of arrest
    an intention to bring the person who is arrested before an
    authorised officer to answer a charge for the offence, that intention
    may be
    negated (and instead the arrest discontinued) if the
    circumstances after arrest are not sufficient to justify a decision to charge.
    The intention required at the time of arrest
    is an intention to charge
    unless it emerges after the arrest that the circumstances do not justify
    such a decision. As s 105 provides, discontinuing the arrest may
    mean
    that the person is dealt with in some other manner pursuant to
    s 105(2)(b).
  4. This
    is reinforced by the terms of Pt 9, which concerns investigations and
    questioning. The Part applies to a person who is under
    lawful arrest by a police
    officer for an
    offence[123].
    It expressly provides that it does not confer any power to arrest, or
    detain, a person who has not been lawfully
    arrested[124].
    Put in different terms, absent a lawful arrest under s 99, Pt 9 has no
    operation. If there is a lawful arrest, a police officer
    may “detain” a person
    for the investigation period. Part 9 has operation only when there has been a
    lawful arrest and, then, subject
    to the protective procedures and provisions in
    Pt 9. Section 114(4) provides that the person must be released within the
    investigation
    period or brought before an authorised officer or court within
    that period, or, if it is not practicable to do so within that period,
    as soon
    as practicable after the end of that period. That protection is in addition
    to that provided for under s 99(3), which, subject
    to the investigation
    period, remains a duty of the police officer – that is, as soon as
    practicable, to take the person before
    an authorised officer to be dealt with
    according to law.
  5. Part
    9, specifically ss 114 and 115, provided at the relevant time for a police
    officer to detain a person who was under arrest for
    an investigation period of
    up to four
    hours[125]
    (or such longer period as the maximum period may have been extended to by a
    detention warrant). However, the Second Reading
    Speech[126]
    for the Crimes Amendment (Detention after Arrest) Bill 1997
    (NSW)[127]
    indicates that the original introduction of the investigation period (as Pt 10A
    of the Crimes Act 1900 (NSW)) was not intended to alter the conditions of
    arrest – indeed, it was said that “[p]olice will not be able to arrest a
    person in any circumstance where the law does not otherwise already allow them
    to do
    so”[128].
    That investigation period is therefore not to be taken into account by a
    police officer at the time of the arrest. Taking it into
    account at the time of
    arrest may lead to consideration, subconsciously or consciously, of the
    possibility of questioning as a reason for the arrest, which is
    impermissible. Moreover, it may lead to an arrest being made in the
    knowledge that the relevant level of persuasion of guilt required for charging
    might be formed as a result of the investigation period. It may therefore
    in substance lower the threshold for arrest and dilute the required
    purpose of arrest, which is to take a person before an authorised officer to be
    dealt with in accordance with law to answer a charge for the offence.
  6. Thus,
    if “the police officer suspects on reasonable grounds that the person is
    committing or has committed an
    offence”[129]
    and “the police officer is satisfied that the arrest is reasonably necessary for
    any one or more” of the specified
    reasons[130],
    then the police officer who makes the arrest under s 99 must intend,
    as soon as is reasonably practicable, to take the person before an
    authorised officer to be dealt with according to
    law to answer a charge for that
    offence[131].
    And they must have that intention without taking into account at the time of
    arrest the existence of the investigation period.
  7. Reasonable
    suspicion requires an arresting constable to have reasonable grounds for
    suspicion of guilt. This is less than reasonable
    and probable cause for
    prosecution[132].
    The former is the necessary intention at the time of arrest. The latter is
    the necessary intention when making a decision to prefer
    a charge and then
    preferring
    it[133].
    Contrary to the submissions of the State of New South Wales, the requirement of
    an intention to charge at the time of arrest does
    not import, to the
    time of arrest
    , a requirement to have the mental state required at the
    time of charging. All that it means is that there is an intention to meet
    the
    requirements for charging at the time of charging, which is to take place
    as soon as is practicable after the arrest, unless it emerges after the arrest
    that there is not sufficient
    basis to bring a charge. And in that circumstance,
    the arrest should be discontinued pursuant to s 105.

Mr Jeffries’s arrest was unlawful

  1. On
    the evidence, Constable Smith had no intention, at the time of the arrest, of
    bringing Mr Jeffries before an authorised officer
    to be dealt with according to
    law unless it emerged subsequent to the arrest that there was sufficient reason
    to charge him. Constable
    Smith did not have the power to arrest
    Mr Jeffries, without warrant, under s 99 of LEPRA when, at the time of
    the arrest, Constable Smith had not formed the intention to charge
    Mr Jeffries. The arrest was unlawful.

Conclusion and
orders

  1. For
    those reasons, the appeal should be dismissed with costs.

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