The High Court of Australia has recently handed down an important judgment which makes clear that NSW police officers do not have the power to arrest individuals without a warrant if, at the time of the arrest, the officer has no clear intention of charging them with a particular offence.

Delivered on 4 December 2019, the decision could have gone either way, as four justices from the bench of seven agreed to the ruling, while the remaining judges came to the opposing view.

The decision related to an appeal by the state of NSW against a finding by the NSW Court of Appeal (NSWCA) that a NSW police officer, Constable Smith, should not have arrested a man by the name of Bradford Robinson on 22 December 2013 at Sydney City police station.

Arrested, but not charged

The arrest related to an alleged breach of an apprehended violence order (AVO). The provisional order was issued on 9 October 2013, after one Roselyn Singh reported having received threatening phone calls from, and blackmailed by, Mr Robinson.

The AVO was extended indefinitely on 16 October of that year. It restrained Robinson from harassing and intimidating Ms Singh, damaging or interfering with her property, or contacting her in any way, except via a lawyer.

But on 18 December, Ms Singh was informed by her employee that he had received an email from Robinson, which made assertions that Singh was under police investigation for fraud. When Singh checked her email address, she found the correspondence in her junk box.

Ms Singh attended the Sydney City police station on 20 December to inform officers about the email. Two days later, Constable Smith read the file and decided Mr Robinson may have breached his AVO. So, the officer went to Robinson’s listed residence to arrest him, only to find he no longer lived there.

At around noon that same day, Mr Robinson called the police station. He explained that North Sydney police had advised him that the city station was looking for him. He added that he was currently interstate, but agreed to attend the station on the following day.

At 5 pm that same afternoon, Mr Robinson turned up at the Sydney City police station, and Constable Smith immediately arrested him. The officer subsequently interviewed Robinson, and at 6.18 pm, released him from custody without charge.

Initial challenge to arrest dismissed

In 2017, Robinson commenced proceedings in the NSW District Court for wrongful arrest and false imprisonment. The state of NSW defended the case on the basis that the arrest was lawful under the provisions of section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEPRA).

That section sets out the circumstances whereby an arrest can be carried out without a warrant.

Subsection 99(1) empowers an officer to arrest a person where he or she suspects “on reasonable grounds that the person is committing or has committed an offence” and is satisfied that the arrest is necessary due to at least one of nine listed reasons.

Judge Phillip Taylor dismissed the claim of false imprisonment, finding that Constable Smith suspected the contravention of an apprehended violence order and had two valid reasons for the arrest, which were to ensure Robinson appeared before court and due to the nature and seriousness of the offence.

Successfully appealed

Mr Robinson appealed the decision to the NSW Court of Appeal in 2018. His argument was that at the time of the arrest, the constable had not formed an intention to charge him, as he did not believe there was enough to do so. According to Robinson, the officer had contemplated releasing him without charge.

NSWCA Justice Ruth McColl set out that subsection 99(1)(a) of the LEPRA requires an officer to have the intention of charging an individual at the time of arrest, as subsection 99(3) stipulates that they must take them to an authorised officer “as soon as reasonably practicable”.

An authorised officer is a magistrate, a Local Court registrar or an employee of the Department of the Attorney General. The court found that the provision to take this next step as soon as possible, does not allow for further deliberations on whether charging the arrested person is the correct thing to do.

It was therefore was found by the majority of the NSWCA that Mr Robinson had indeed been unlawfully arrested, as Constable Smith had stated that he had “not determined at the time of arrest” whether he would bring charges.

A long established position

The state of NSW appealed this finding to the highest court in the land in September last year.

Justices Virginia Bell, Stephen Gageler, Michelle Gordon and James Edelman ultimately found that constable Smith had stepped outside the boundaries of what the LEPRA permits.

Their Honours pointed to the common law principles established in the 1935 NSW case Bales versus Parameter, which found an arrest must be for the sole purpose of taking the suspected offender before a magistrate to “answer a charge for an offence”.

Following the 1930s Bales case, it was found that a practice had evolved whereby police delayed taking an arrestee before an authorised officer so as to continue with their investigations. However, in 1986’s Williams versus the Queen, the High Court ruled that no such delay is permissible.

In 1990, the NSW Law Reform Commission recommended that these common law principles be legislated. This resulted in the passing of the Crime Amendment (Detention After Arrest) Bill 1997 (NSW). Today, the legacy of that legislation can be found in part 9 of the LEPRA.

And as the majority of the High Court pointed out, section 113 of the LEPRA makes clear that nothing in part 9 confers “any power to arrest a person, or to detain a person who has not been lawfully arrested”.

The majority further made clear that section 114 stipulates that an officer may detain a person for the “purpose of investigating whether the person committed the offence for which the person is arrested”, which clearly implies that the individual must have been arrested in relation to a specific offence.

NSW police officer have no such power

“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,” the majority of the High Court ruled.

Their Honours added that to arrest an individual “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”.

The justices found that Constable Smith did not intend, at the time of the arrest, to take Mr Robinson before an authorised officer and, therefore, the arrest was unlawful.

The majority ruled that, “for those reasons, the appeal should be dismissed with costs”.