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Robinson v State of New South Wales [2018] NSWCA 231 (16 October 2018)

Last Updated: 13 May 2020





Court of Appeal

Supreme Court New South Wales



[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE

[This headnote is not to be read as part of the judgment]

At 5 pm on 22 December 2013, the appellant attended a Sydney police station in response to attempts by police to contact him. Upon attendance he was immediately arrested, without warrant, for breach of an apprehended violence order. The appellant was offered, and accepted, the opportunity to participate in a record of interview. He was released without charge at 6.18pm, following the conclusion of the interview.

The appellant commenced proceedings against the State of New South Wales, claiming damages for wrongful arrest and false imprisonment. The trial judge (P Taylor SC DCJ) dismissed the appellant’s claim.

The trial judge accepted the arresting officer’s evidence that a decision whether to charge the appellant depended on what he said in the interview and that, at the time of the arrest, he had not decided to charge him.

On appeal, the key issue was whether the arrest of the appellant was lawful under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), s 99, in circumstances where there was no positive intent to lay charges at the time of arrest.

Section 99 of LEPRA relevantly provides:

99 Power of police officers to arrest without warrant

(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:

...

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

...

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

...

(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.

The Court (McColl JA and Basten JA, Emmett AJA dissenting) allowed the appeal and held:

Per McColl JA and Basten JA:

1. LEPRA s 99 must be construed in its context, including general law principles concerning the scope and purpose of arrest: [34]-[35]; [132].

North Australian Aboriginal Justice Agency Limited v Northern Territory (2015) 256 CLR 569; [2015] HCA 41; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, applied.

2. In legal terminology, “arrest” is generally used to identify that deprivation of liberty which is a precursor to the commencement of criminal proceedings against the person arrested, justified as necessary for the enforcement of the criminal law. The power to arrest exists, and must be exercised, for the purpose of bringing the person arrested before a justice as soon as reasonably practicable: [46]; [95]; [136]; [154].

Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88; Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320; Dowse v New South Wales [2012] NSWCA 337; 226 A Crim R 36; Bales v Parmeter [1935] NSWStRp 8; (1935) 35 SR (NSW) 182; Christie v Leachinsky [1947] UKHL 2; [1947] AC 573, applied; Clyne v State of New South Wales [2012] NSWCA 265, not followed.

3. Neither the text nor context of the statute suggests an intention to depart from these general law constraints: [120]; [124]-[127]; [165]-[167]; [173]. Rather, they are embedded in the language of s 99, and expressly preserved by LEPRA, s 4: [35]; [44]; [132]-[134]. As no decision whether to charge the appellant had been made at the time of arrest, the arrest was not for the purpose of commencing the criminal process; accordingly, it was unlawful: [128]-[129]; [194].

Per Emmett AJA, dissenting:

4. The legislative scheme contemplates a distinction between the decision to arrest and the decision to charge. A positive intent to charge at the time of arrest is not a necessary precondition of the valid exercise of the power of arrest under s 99; accordingly, the appellant’s arrest was lawful: [251]; [253]; [257]; [270]-[274].

JUDGMENT

McCOLL JA: The appellant, Bradford James Robinson, appeals pursuant to leave to appeal granted on 20 February 2018 against Taylor SC DCJ’s decision of 3 August 2017, in which his Honour held that Mr Robinson’s arrest without a warrant by a Leading Constable Adam Smith on 22 December 2013 and subsequent detention by police was lawful.[1] In so doing, his Honour rejected Mr Robinson’s submission that his arrest was unlawful having regard to the fact that, at the time of his arrest, Constable Smith had not formed an intention to charge him with any offence. The respondent, the State of New South Wales (SNSW), is vicariously liable for the tortious conduct of police officers pursuant to s 8(1) of the Law Reform (Vicarious Liability) Act 1983 (NSW). Mr Robinson brought proceedings against the SNSW claiming he had been wrongfully arrested, and thereby falsely imprisoned, and sought to recover damages. Mr Robinson relies upon a single ground of appeal. He submits that the primary judge erred in finding that his arrest and subsequent detention were lawful in circumstances where, at the time of the arrest, Constable Smith had not formed an intention to charge him with any offence. For the reasons that follow, I would allow the appeal.

Factual background

The factual background is uncontroversial. On 9 October 2013, Mr Robinson was served with a Provisional Order (ex parte) Apprehended Personal Violence Order based upon a complaint made by a Ms Roselyn Singh. On 16 October 2013, the Local Court made an Apprehended Violence Order (AVO) against Mr Robinson in standard terms with additional orders that he must not approach or contact or enter the premises at which Ms Singh lived or worked. On 20 December 2013 Ms Singh complained to police that Mr Robinson had threatened her by emailing one of her employees, falsely claiming that her company was being wound up. Ms Singh’s complaint was recorded in a file, which the primary judge found Constable Smith had read earlier on the day of Mr Robinson’s arrest. After receiving the complaint, at 11.15am on Sunday, 22 December 2013, police, including Constable Smith, tried unsuccessfully to locate Mr Robinson. Mr Robinson voluntarily attended Day Street Police Station at 5pm on 22 December 2013 and was immediately arrested by Constable Smith who told him he was being arrested for breaching the AVO. Mr Robinson was offered, and accepted, the opportunity to participate in a record of interview. Constable Smith then conducted an interview with Mr Robinson. At 6.18pm, after the interview concluded, Mr Robinson was released without charge. [2] At the time Constable Smith arrested Mr Robinson, he had not decided to charge him with any offence. He gave evidence that he “did not believe there was enough to charge him.”[3] He said the decision whether to charge him depended on what Mr Robinson said in the interview. He said he did not charge him after the interview as Mr Robinson had given an explanation during it which led Constable Smith to believe further evidence would need to be obtained.

Legislative framework

In the Second Reading Speech made on the introduction of the Law Enforcement (Powers and Responsibilities) Bill 2002 (NSW) which became the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), the Attorney General, the Hon Bob Debus, explained that the Bill was the outcome of the consolidation process envisaged by the Royal Commission into the New South Wales Police Service to help strike a proper balance between the need for effective law enforcement and the protection of individual rights.[4] In dealing with the powers relating to arrest, the Attorney General said that Pt 8 of the Bill “substantially re-enacts arrest provisions of the Crimes Act 1900 and codifies the common law.”[5] At the time of Mr Robinson’s arrest, Pt 1 (Preliminary) of LEPRA relevantly provided:

4 Relationship to common law and other matters

(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,[6] nothing in this Act affects the powers conferred by the common law on police officers to deal with breaches of the peace.

...

7 Provisions in this Act

Nothing in any Part of this Act limits any functions, or prevents a police officer from exercising any functions, that the police officer has under any other Part of this Act.

Note. The general functions of police officers and other members of the NSW Police Force, and matters relating to police discipline, are dealt with in the Police Act 1990. For other Acts containing significant police and law enforcement powers, see Schedule 1.

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

99 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.[8]

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. [Emphasis added.]

Section 99 had been significantly amended by the LEPRA Amendment Act with effect from 16 December 2013, six days before Mr Robinson’s arrest. Section 105, which also appeared in Pt 8, provided:[9]

105 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. [Emphasis added.]

Section 107 in Pt 8 relevantly provided:

107 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 ...” [Emphasis added.]

The objects of Pt 9 (Investigations and questioning) as set out in Div 1 (Preliminary) s 109(b) and (c) include “to authorise the detention of a person who is under arrest for such a period despite any requirement imposed by law to bring the person before a Magistrate or other authorised officer or court without delay or within a specified period, and ... to provide for the rights of a person so detained.” Section 113, which also appears in Pt 9, Div 1 provides relevantly:

113 Effect of Part on other powers and duties (cf Crimes Act 1900, s 356B)

(1) Existing powers relating to arrest and other matters

This Part does not:

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

...

(c) independently confer power to carry out an investigative procedure. [Emphasis added.]

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

114 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. [Emphasis added.]

115 Investigation period (cf Crimes Act 1900, s 356D)

(1) 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.

(2) The maximum investigation period is 4 hours or such longer period as the maximum investigation period may be extended to by a detention warrant.

(1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following:

...

(c) the reason for the exercise of the power.

...

(2) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (other than subsection (3) (g), (i) or (j)):

(a) if it is practicable to do so, before or at the time of exercising the power, or

(b) if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power.

...

(3) This section applies to the exercise of the following powers (whether or not conferred by or under this Act):

(a) a power to search or arrest a person ... [Emphasis added.]

Primary judgment

The primary judge found, and Mr Robinson did not dispute at trial nor on appeal, that at the time of his arrest, Constable Smith suspected Mr Robinson had committed the offence of breaching the AVO.[10] His Honour also held that that Constable Smith had reasonable grounds for his suspicion that an offence had been committed.[11] Finally, relevantly, his Honour held that at the time of the arrest, Constable Smith was satisfied that Mr Robinson’s arrest was necessary to ensure his appearance before a court (s 99(1)(b)(iv), LEPRA) and because of the nature and seriousness of the offence (s 99(1)(b)(ix), LEPRA).[12] Mr Robinson’s primary challenge to the question whether Constable Smith was satisfied that his arrest was reasonably necessary to ensure that he appeared before a court was that Constable Smith had conceded that he had not determined at the time of the arrest whether he would charge Mr Robinson.[13] He argued that if, in the belief of Constable Smith, Mr Robinson might not be charged, Constable Smith could not be satisfied that an arrest was necessary to ensure that Mr Robinson appeared in court since his appearance in court might never be necessary.[14] Mr Robinson relied in this respect on Zaravinos v State of New South Wales,[15] where Bryson JA held that an arrest was unlawful as being for an extraneous purpose if made “for the purpose of questioning [the arrested person] and investigating the circumstances of the suspected offence or of any other offence”. The primary judge rejected Mr Robinson’s submission in this respect. His Honour held that if Mr Robinson’s interpretation of s 99(1)(b)(iv) were adopted:

“[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 [2007] HCA 10 at [77]), a higher obligation on the police officer to that imposed by s 99(1)(a), which requires only a suspicion on reasonable grounds.”[16]

Accordingly, the primary judge held that Constable Smith was satisfied that Mr Robinson’s arrest was reasonably necessary to ensure that he appeared before a court within the meaning of the LEPRA, s 99(1)(b)(iv).[17] The primary judge also held that he was satisfied that Mr Robinson’s arrest was necessary because of the nature and seriousness of the offence such that the elements of the LEPRA, s 99(1)(b)(ix), were satisfied.[18]

Consideration

The competing contentions are whether, as Mr Robinson submits, a police arrest without warrant is unlawful unless, at the time of arrest, the arresting officer intends to charge the person arrested or, as the SNSW frames Mr Robinson’s case, at the time of arrest an arresting police officer must have decided and intended to charge the plaintiff with an offence. Alternatively, as the SNSW contends, whether an arrest without warrant is lawful if effected for the purpose of investigating whether to charge the person arrested. The SNSW accepted in the course of oral submissions in this court that Constable Smith’s evidence that at the time of the arrest he had not decided if Mr Robinson was going to be charged was a sufficient evidentiary foundation for Mr Robinson’s submission that he was unlawfully arrested. Resolution of the issues raised on the appeal turns primarily upon issues of statutory construction. As emphasised most recently by the plurality in SZTAL v Minister for Immigration and Border Protection,[19] the starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, having regard to its context and purpose. Context should be regarded in its widest sense. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[20] Notwithstanding the necessity to construe s 99 by reference to its text, the pre-existing law concerning the common law power of arrest is necessary context for the purposes of the construction exercise.[21] That is not just because the modern approach to statutory interpretation uses “context” in its widest sense to include such things as the existing state of the law,[22] but also because the LEPRA, s 4, presupposes the continued existence of a police officer’s powers at common law.[23] The SNSW however criticises Mr Robinson’s submissions as failing to grapple with the textual and contextual matters concerning s 99. It contends that, instead, Mr Robinson’s submissions proceed by reference to a body of case law decided by reference to other provisions of the LEPRA including s 99 as it stood prior to the LEPRA Amendment Act. While the SNSW accepts that the case law may be relevant to the construction of s 99 to the extent that any analogy is persuasive or general principle is relevant, it submits that cases on previous provisions are not binding with respect to the new form of s 99 and that judicial decisions are not substitutes for the text of the legislation. Such decisions should not be given primacy.[24] As much may be accepted. Nevertheless, as I explain below, earlier decisions on powers of arrest without warrant form part of the interpretative context, and inform the process of interpreting s 99. The SNSW emphasises the statement in Commissioner of Taxation v Consolidated Media Holdings Ltd,[25] that (footnote included):

“[39] ‘This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. [67 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.” [Emphasis added].

It is “plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable.”[26] There is “a legal immunity from arrest and from the threat of arrest unless and until the conditions governing the exercise of the arresting power are fulfilled.”[27] Finally, “the principle of legality favours a construction, if one be available, which avoids or minimises the statute’s encroachment upon fundamental principles, rights and freedoms at common law”.[28]

The text

State of mind to effect an arrest

One of the reasons the primary judge gave for rejecting Mr Robinson’s submission that an arrest was unlawful if made for the purpose of questioning or investigating the person arrested was his Honour’s concern that “a charge requires reasonable and probable cause, namely a positive belief and a sufficient (or reasonable) basis for the belief (see A v New South Wales[57]), a higher obligation on the police officer to that imposed by s 99(1)(a), which requires only a suspicion on reasonable grounds.”[58] In supporting this aspect of the primary judge’s reasons, the SNSW submitted that in none of the early authorities dealing with s 352(2) of the Crimes Act, such as Bales v Parmeter, did the court consider what the SNSW contends is the differing mental states relating to the decision to arrest and the decision to prosecute. It is not the case that previous authorities did not consider the mental state relating to the decision to arrest and the decision to prosecute in the context of an arrest without warrant. However, it is apparent that the courts did not draw the distinction for which the SNSW contends. Thus, in Bales v Parmeter, a case concerning both unlawful arrest and false imprisonment, Jordan CJ held:[59]

“There is no doubt that in an action for wrongful arrest and false imprisonment by a police officer it is a good defence if the defendant proves that he had reasonable and probable cause for his actions. Such reasonable and probable cause may be established by proving that he, with reasonable cause, suspected the person whom he arrested of having committed a crime or offence.” [Emphasis added.]

The phrase “with reasonable cause” reflected s 352(2)(a) of the Crimes Act as then in force. Mason and Brennan JJ spoke to like effect in Williams,[60] a case concerning unlawful detention as a basis for excluding evidence of records of interview containing confessions allegedly made to the police by the applicant, where their Honours explained:

“Nor is there any reason to think that, in general, 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. 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, although the grounds of suspicion need not consist of admissible evidence. 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: see Mitchell v John Heine & Son Ltd; Commonwealth Life Assurance Society Ltd v Brain; Glinski v McIver.” [Emphasis added; citations omitted.] [61]

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

“There is no doubt that, in an action for wrongful arrest and false imprisonment by a police officer it is a good defence if the defendant proves that he had reasonable and probable cause for his actions. Such reasonable and probable cause may be established by proving that he, on reasonable grounds, suspected the person whom he arrested of having committed a crime or offence.” [Emphasis added.]

The test for “reasonable and probable cause” in this context conforms to the state of mind required to be held by the person arresting the person without warrant pursuant to s 99(1)(a). There are not two states of mind. Rather, on this approach the state of mind of the arresting officer which justifies the arrest of a person without warrant is also sufficient to found a finding that the arresting officer who charges the person arrested had “reasonable and probable cause” to do so. I do not accept that either A v NSW or George v Rockett[62] (discussed below) lead to a different conclusion. A v NSW concerned, relevantly, the test to be applied to determine for the purpose of the tort of malicious prosecution that the defendant acted without reasonable and probable cause. Consideration of that question involved, in part, consideration of the five conditions Jordan CJ held in Mitchell v John Heine & Son Ltd[63] had to be met if a person was to have reasonable and probable cause for prosecuting another for an offence. To succeed on the issue of reasonable and probable cause the plaintiff had to establish “that one or more of these conditions did not exist”. The plaintiff could do this “by proving, if he can, that the defendant prosecutor did not believe him to be guilty, or that the belief in his guilt was based on insufficient grounds.”[64] After an extensive consideration of Mitchell, the question whether it was inconsistent with observations by Dixon J in Sharp v Biggs,[65] (the plurality held it was not),[66] the plurality held that Jordan CJ’s five conditions were not, and could not have been, intended as “directly or indirectly providing a list of elements to be established at trial of an action for malicious prosecution.”[67] When the plurality considered the issue of what is absence of reasonable and probable cause, their Honours explained that there are two kinds of inquiry to determine that issue: one subjective (what the prosecutor made of the available material) and the other objective (what the prosecutor should have made of that material).[68] The subjective issue concerns the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion.[69] As their Honours explained, “absence of reasonable and probable cause will not in every case be shown by demonstrating that the prosecutor had no positive belief that the accused person was, or was probably, guilty.”[70] Insofar as the subjective test was concerned, the plurality concluded that “[t]he expression ‘proper case for prosecution’ is not susceptible of exhaustive definition without obscuring the importance of the burden of proving the absence of reasonable and probable cause, and the variety of factual and forensic circumstances in which the questions may arise. ... [I]t will require examination of the prosecutor’s state of persuasion about the material considered by the prosecutor.”[71] The objective aspect of an allegation of absence of reasonable and probable cause is “to an objective standard of sufficiency”, resolution of which is “ultimately one of fact”, depending “upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution.”[72] That is to say, the objective aspect turns upon an analysis of the prosecutor’s subjective state of mind based on the materials to which he, she or it had regard in either setting the processes of the criminal law in motion or continuing a prosecution. This two-step test for determining the validity of a warrantless arrest pursuant to the previous s 99 was accepted in Dowse,[73] where Basten JA held that “there are two elements to be satisfied for a warrantless arrest to be valid, namely an honestly held suspicion in the mind of the arresting officer and information in the mind of the arresting officer which when objectively assessed provides reasonable grounds for the suspicion” that the person being arrested “is committing or has committed an offence”.[74] This is to ensure that “[t]he arresting officer is held accountable”.[75] “Accountable” is clearly used in the sense of the arresting officer being accountable for the legality of the arrest. George v Rockett concerned the proper construction of s 679 of The Criminal Code (Qld), a provision concerning a justice issuing a search warrant which required a sworn complaint going to issues of both reasonable grounds for suspicion and belief. It was in that context that the High Court referred to the proposition that “suspicion and belief are different states of mind ... and the section prescribes distinct subject matters of suspicion on the one hand and belief on the other.”[76] Their Honours observed that the “facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for suspicion must be shown.”[77] That statement recognises, rather than excludes as the SNSW appears to contend, the proposition that facts which can reasonably ground a suspicion may be sufficient reasonably to ground a belief. It will turn on the facts of each case. As much is apparent as I have sought to explain from Bales v Parmeter and Williams. As was said in George v Rockett, when used in a composite phrase such as that in s 99(1)(a) (suspects on reasonable grounds), suspicion “requires the existence of facts which are sufficient to induce that state of mind in a reasonable person”.[78] Although I accept that in Bales v Parmeter Jordan CJ spoke in terms of the police officer “proving that he, with reasonable cause suspected ...”, the outcome of such a factual finding was to establish “reasonable and probable cause” for arresting and imprisoning the defendant. It is plain that his Honour was of the view that if the police officer proved the relevant suspicion was held, that would demonstrate the relevant belief to ground a finding of “reasonable and probable cause” to which his Honour referred three years later in Mitchell.[79] The position is made even plainer in Mason and Brennan JJ’s reasons in Williams from which it is apparent that the information held in the case of an arrest on suspicion based on reasonable grounds (now of course the language of s 99(1)(a)) will, where there is evidence to the effect to which their Honours referred, sustain a finding of reasonable and probable cause to prosecute, that is to say, to charge a person. On the SNSW’s submission, and the primary judge’s reasons, no arrest which conformed either to the common law test of “arrest without warrant on suspicion on reasonable grounds of commission of a felony” or the like s 99(1)(a) requirement, could be an arrest with “reasonable and probable cause” for the purposes of the tort of malicious prosecution. The position may differ, of course, as the prosecution is maintained. This is because, as explained in A v NSW,[80] an action for malicious prosecution has a temporal element, and necessarily directs attention to the material the prosecutor had available for consideration when deciding whether to maintain the prosecution. The proposition that there is a different state of mind to charge a person from the state of mind warranting a person being arrested (whether or not with a warrant) is inconsistent with the authorities to which I have referred. Moreover, as a matter of principle it does not, in my mind, withstand scrutiny. This is particularly so when it is recognised that the purpose of arrest is to charge the person arrested, that is to say, to set the processes of the criminal law in motion. In my view the primary judge fell into error in drawing a distinction between the state of mind to arrest and the state of mind to prosecute.

Context: previous cases

The SNSW relies upon a number of cases decided under previous statutory iterations of the power of arrest to contend that case law did not establish as broad a proposition as that for which Mr Robinson contends. The SNSW contended that Gleeson CJ’s reasons in Walsh,[81] decided when the statutory power of arrest was found in Crimes Act, s 352(2), were consistent with its submission that the arresting officer did not have to intend to charge the person at the time of the arrest. In Walsh, the police officers who arrested the appellant at the direction of a senior officer did not charge him immediately because they were waiting for the senior officer to arrive. They expected the senior officer both to question and charge the appellant. Gleeson CJ held that “the question whether if they had regarded it as necessary or appropriate to do so, they could have obtained enough information to charge the appellant themselves, was not explored in evidence”. The Court of Criminal Appeal heard argument on the appeal to the effect that on the facts as found there had been an unlawful arrest or detention of the appellant and that, in those circumstances, the trial judge should have exercised a discretion to reject evidence of admissions the appellant was said to have made. Gleeson CJ rejected the appellant’s submission that it was unlawful for the police officers to arrest him if they did not have sufficient knowledge or information about the crimes of which he was suspected to charge him then and there. His Honour said[82] in the passages on which the SNSW relied:

“The appellant was arrested without warrant, but he was reasonably suspected of having committed offences. The officer in charge of the investigation into the shooting on the night of the 11 April, who was apparently also investigating earlier armed robberies, obtained the assistance of other police officers to effect the actual arrest of the appellant. There is no reason to consider that this is either unusual or irregular.

...

However, the delay that occurred in the present case was not one which, in my view, was shown to involve a contravention of the relevant statutory requirements. ... It should also be noted that the police officers, whose evidence was accepted, were adamant in their denials that the appellant was being held solely for questioning.”

The SNSW contends that if Mr Robinson’s submissions were correct, the absence of an intention on the part of the junior officers to charge the appellant should have been fatal to the lawfulness of his arrest. I would not accept that submission. First, immediately preceding the first passage quoted by the SNSW, Gleeson CJ observed that “[a]s the High Court pointed out in Williams ..., and as this Court has pointed out on numerous occasions, it is of the utmost importance that police officers pay proper regard to their obligation to take an arrested person before a court or justice as soon as practical.” As is apparent from the passage I have quoted, his Honour also referred to the evidence the trial judge accepted from “the police officers [who] were adamant in their denials that the appellant was being held solely for questioning (cf Williams [1986] HCA 88; 161 CLR 278 at 313)”. In the passage to which Gleeson CJ referred, Wilson and Dawson JJ emphasised the common law obligation that an arrested person should be taken before a justice as soon as is reasonably possible and that neither the common law nor s 34A(1) of the Justices Act 1959 (Tas) there under consideration permitted delay merely for the purpose of further investigation either of the offence for which the person was arrested or of any other offence or offences. That statement was preceded by their Honours’ statement on the previous page of Williams that, “there must be reasonable time to formulate and lay appropriate charges for the purpose of bringing a person before a justice.”[83] It is clear that Gleeson CJ was accepting that the junior officers had not arrested the appellant to interrogate him, and expected the senior officer to charge him. The intention to charge the appellant was held contemporaneously with the appellant’s arrest, albeit it was held by the senior officer. Gleeson CJ’s reasons also have to be understood in the context of the facts more fully set out in Samuels JA’s reasons. As his Honour explained, the senior officer gave evidence that when he arrived at Flemington police station where the appellant was being held, he had already decided to charge him with two of the charges of armed robbery upon which he was ultimately arraigned. In Samuels JA’s view,[84] applying the doctrine of principal and agent, there was no reason why the senior officer’s “reasonable suspicion that the appellant had committed two armed robberies should not be attributed to the arresting police so as to make the arrest lawful.” His Honour added that if the doctrine were to be extended to circumstances such as those before the court, “the arresting officers ought to be put in possession of the details of the charge before they are dispatched to take up the suspect; or they should be in the position to obtain those details immediately after the arrest has been made.” Next, the SNSW submits that in Clyne v New South Wales[85] this Court had rejected the proposition for which Mr Robinson contends. In Clyne, Macfarlan JA rejected a submission by Ms Clyne to the effect that the trial judge had erred in rejecting her submission that she had been wrongfully arrested because those who arrested her did not intend to take her before an authorised officer to be dealt with according to law but, rather, had arrested her for the purpose of questioning.[86] Macfarlan JA held that the trial judge had not erred as s 352(2), Crimes Act, as in force at the time of Ms Clyne’s arrest (15 October 2003), “neither explicitly nor implicitly authorised arrests only if they were effected for the purpose of taking the person arrested before an authorised Justice.”[87] Macfarlan JA also held that “[c]onsistently with ss 356C and D, the arresting officer’s intent at the time of arrest might lawfully be only to question the person and deal with him or her as required by s 356C(4), that is, release the person or bring him before an authorised Justice.” Macfarlan JA’s conclusion was, as the SNSW accepts, reached without reference to the authorities on which Mr Robinson relies. However, in reaching this conclusion, his Honour agreed with the view to like effect expressed by Adams J in Director of Public Prosecutions v Nicholls.[88] In DPP v Nicholls, Adams J accepted that nothing in s 352(2) of the Crimes Act qualified the common law principle “that there is no power to detain a citizen for the purpose of questioning him or her, still less that the intention to do so could justify a delay in bringing the arrested person before a justice in as a short a time as is reasonably practicable.”[89] His Honour referred to passages in Williams as supporting that proposition.[90] However, Adams J reached his conclusion that this principle did not apply on the facts he was considering by reference to Pt 10A of the Crimes Act.[91] In DDP v Nicholls, Adams J appears to have accepted the DPP’s submission that Mr Nicholls had been detained under s 356C in Pt 10A of the Crimes Act (substantively, relevantly, in the same terms as s 114 of LEPRA) by reason of the expanded definition of “under arrest” in s 355 (cf s 110(2) LEPRA). It was in that context, as I understand Adams J’s reasons, that his Honour held such an arrest might lawfully be for the purposes of investigation. It was that reasoning which Macfarlan JA applied in Clyne.[92] However, after DPP v Nicholls was decided, the Court of Criminal Appeal reached a contrary conclusion in R v Dungay.[93] In that case, Ipp AJA held that an arrest solely for investigative purposes was unlawful. In the course of doing so, his Honour held that lawful detention for the purposes of investigation pursuant to Pt 10A of the Crimes Act was dependent upon lawful arrest having been effected, referring to s 356B(1)(a), s 356C(1) and s 356C(2).[94] It does not appear that R v Dungay was drawn to the Court’s attention in Clyne. It is directly contrary to the conclusion Adams J reached in DPP v Nicholls. This court will follow decisions of the Court of Criminal Appeal unless convinced they are plainly wrong.[95] In my view R v Dungay was not “plainly wrong”, rather, it was correct. Regrettably, it does not appear to have been drawn to the court’s attention in Clyne. It follows, in my view, that Clyne was decided per incuriam and should not be followed. The SNSW also relied upon Dowse as having been incorrectly decided because the Court was not referred to Clyne. As I have earlier explained (at [55]-[57]), I disagree with the SNSW’s submissions concerning Dowse independently of the fact Clyne was not referred to. Having regard to my conclusion concerning Clyne, the failure to refer to it in Dowse cannot advance the SNSW’s case. What is apparent from an examination of the authorities throughout the various iterations of the statutory power to arrest without warrant is that where the requirement to take person arrested before a justice or an authorised officer is limited by words such as “as soon as practicable”[96] or “without unreasonable delay”[97] it cannot be extended to provide time for interrogation. Contrary to Clyne and DPP v Nicholls, and as I have already explained, that decision cannot be reached insofar as Pt 9 of LEPRA is concerned, unless there has been a lawful arrest pursuant to Pt 8.

Context: the LEPRA Amendment Act

Finally, the SNSW contended that if there were any doubt about its submissions concerning the text and previous authorities, such doubt was dispelled by the context provided by the LEPRA Amendment Act which introduced the current form of s 99 and subsection (3) into s 105. It relied, in this respect, on the Second Reading Speech to the LEPRA Amendment Act and on a report by the former shadow Attorney General, Mr Andrew Tink, and the former police minister, the Honourable Paul Whelan,[98] which it contended were extrinsic materials legitimately to be taken into account in construing s 99(1), LEPRA. In my view, whatever use may be made of the Tink/Whelan report, it should be noted, as the SNSW acknowledges, for its statement that “[t]he intent of the [proposed] legislation is not to allow police the power to arrest in order to investigate”.[99] Somewhat inconsistently with this observation, in the next paragraph the authors refer to the then proposed s 99(1)(b)(v) (which was ultimately enacted) as having “been drafted in such a way to allow police to arrest to obtain property, without conferring a wider power allowing police to arrest for the purpose of investigation.” Elsewhere, the Tink/Whelan report states that subsection 3 of s 105 was to be included “for abundant caution and transparency”.[100] In addition, the SNSW relies on the Second Reading Speech to the LEPRA Amendment Act in which the premier, the Hon Mr Barry O’Farrell, described its purpose as being “to ensure that police have clear, simple and effective powers of arrest to protect the community”.[101] In reliance on these extrinsic materials, the SNSW submits that the “features” of the new section 99 as compared to its predecessor sat uneasily with a continued insistence that the purpose of arrest must be to bring the arrested person before an authorised officer as soon as reasonably practicable, all the more so when s 99 was “now linked more strongly to the investigative provisions in Pt 9 by the presence of s 99(4)”. For the reasons I have earlier given, the pathway to Pt 9 lies in there having been a lawful arrest under Pt 8. The extrinsic material to which the SNSW refers, does not, in my view, assist its submissions. In any event, it should be borne in mind that such material “cannot be determinative: it is available as an aid to interpretation” and cannot displace the text but can illuminate its meaning.[102] In my view the extrinsic materials to which the SNSW refers cast no light which supports its submissions.

Conclusion

In NAAJA v NT,[103] the plurality described as “an obvious application of the principle of legality that clear words are required if a statute is to authorise holding an arrested person in custody for a purpose other than for the purpose of charging that person and bringing him or her before a justice of the peace or court as soon as is practicable if he or she is not earlier released on bail or unconditionally.” In my view, such clear words are not found in the LEPRA. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.[104] While the text is both the starting and the end point,[105] the meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”.[106] While it has been said that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”,[107] in the case of s 99 both its text, logic and context, as well as the overall logic of the LEPRA support Mr Robinson’s contention. As is apparent from the textual analysis of the LEPRA, in particular s 99, nothing in the LEPRA expressly requires the police to charge a person arrested without a warrant. But that must occur at some stage. The SNSW accepts that that obligation is embedded in the s 99(3) requirement to take a person before an authorised officer, unless the person is released. As I have said, that interpretation is also supported by s 107 which is found in Pt 8. Further, nothing in s 99 expressly permits the police to interview the person arrested without warrant to determine whether he or she committed the offence referred to in s 99(1)(a). The s 99(1)(b)(iii) power to make inquiries as to the arrested person’s identity “if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false”, would presumably permit asking questions of the arrested person, but confined to the subject of the power. The only ability to detain and interview the arrested person to “investigat[e] ... the person’s involvement in the commission of an offence”[108] is found in Pt 9. As I have explained, the route to Pt 9 is found in Pt 8, s 99(4) of which proceeds on the premise there has been a lawful arrest pursuant to s 99. The consequence is first, that the intention to charge the arrested person must have been formed at the time of the arrest pursuant to s 99 and, second, subject to the confined s 99(1)(b)(iii) power, the arrested person cannot be interviewed in relation to the s 99(1)(a) offence (or any other, I would add out of abundant caution). Logic dictates that the decision to charge must also have been made at that time. Constable Smith had not made any such decision. Rather, he had not decided if Mr Robinson was going to be charged. Consistently with that state of mind, he did not inform Mr Robinson of the reason for his arrest. He arrested Mr Robinson in order to interview him in relation to the reported breach of the AVO. Mr Robinson’s arrest was, accordingly, unlawful.

Orders

I propose the following orders: (1) Appeal allowed.

(2) Set aside the orders of Taylor DCJ and in their place make the following orders: (a) Judgment for the plaintiff in the sum of $5000, such judgment to take effect from 3 August 2017; (b) Defendant to pay the plaintiff’s costs.

(3) Respondent to pay the appellant’s costs of the appeal and the application for leave to appeal. BASTEN JA: On 22 December 2013, the appellant, Bradford James Robinson, was arrested when he voluntarily attended a Sydney police station in response to a request from police. The sole question in this case is whether the arrest of the appellant was lawful in circumstances where the arresting officer conceded that he did not have an intention to lay charges when he carried out the arrest. The appellant contends that such an intention was an essential precondition to a lawful arrest. The State contends that the essential preconditions are to be found in s 99(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“Law Enforcement Act”) and they do not include an intention to charge. Although the State insisted that the question should be answered by reference to the terms of the Law Enforcement Act, as is often the case, the statute uses language having a specific legal meaning which provides essential context in which to understand its operation.[109] It is necessary to start with a correct understanding of the common law.[110] That is not to deny the importance of s 99 of the Law Enforcement Act in identifying the powers of a police officer to arrest without a warrant. Nor is it to accord pre-emptive force to the principle of statutory interpretation known as the principle of legality. That principle requires a clear statement of legislative intent in order to construe a statute as impairing or overriding a fundamental right or freedom accorded to individuals under the common law, or as interfering with the general system of administration of law. This was the approach adopted by all members of the majority in the High Court in considering the scope of police powers in North Australian Aboriginal Justice Agency, to which further reference will be made below. The need to identify relevant common law principles arises, in further part, because the Law Enforcement Act specifically addresses the relationship between its provisions and the common law in s 4:

4 Relationship to common law and other matters

(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.

All these matters aside, it is necessary to identify the scope and operation of the common law powers of a constable to carry out an arrest without warrant in order to test the appellant’s description of the limitation upon which he relies. Without undertaking that exercise it is not possible to say whether the statute varies the limitation, either expressly or by implication. The fact that it does not do so expressly will be unsurprising if the limitation does not arise in the terms contended for. The conclusion reached below is that in legal terminology “arrest” is generally used to identify that deprivation of liberty which is a precursor to the commencement of criminal proceedings against the person arrested, and which may be justified as necessary for the enforcement of the criminal law. There is no indication in the Law Enforcement Act that it is used in any other sense. Accordingly, an arrest without warrant in exercise of the power conferred by s 99(1) of the Law Enforcement Act is not a valid arrest unless carried out for that purpose.

Arrest under the general law

(i) scope of powers

The common law accepted that a police constable had power to arrest and detain a person without warrant upon holding a reasonable suspicion that the person was committing or had committed a felony. Other persons could arrest in such circumstances, but the arrest would only be lawful if the person arrested had in fact committed the offence.[111] The power, even for a police officer, to arrest without warrant for a lesser offence depended upon statute rather than the common law. That power has long since been extended to cover other offences, in the process providing a statutory basis for the common law powers of arrest. As the categorisation of crimes as felonies and misdemeanours has been abandoned it is more accurate to speak of general law powers, rather than common law powers. Thus, s 352 of the Crimes Act 1900 (NSW), as enacted, provided (not for the first time):

Apprehension of offenders

352 (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.

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

Apprehension of Offenders and Search Warrants

429. 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....

Those provisions expanded the common law power of a constable, and indeed, in subs 352(1), the powers of other persons. The power to arrest without warrant on suspicion in subs 352(2) extended to the same crimes, namely statutory offences and felonies. Nevertheless, this was not a codification of the law relating to arrest. For example, it said nothing about how an arrest was to be carried out; there was no reference to the need to communicate the intention to arrest and, if the person does not submit, to at least touch the person.[112] Nor, importantly for present purposes, was there any reference in these sections to the obligation of the arresting officer to notify the person of the reason for the arrest. What must be conveyed to the arrestee is not necessarily the charge, but the conduct in respect of which the person is being arrested. Thus, in Christie v Leachinsky, Lord Simonds stated that “if a man is to be deprived of his freedom he is entitled to know the reason why.”[113] Lord Simonds continued:

“If, then, this is, as I think it is, the fundamental rule, what qualification if any must be imposed upon it? The cogent instances given by Lawrence LJ are conclusive that an arrest does not become wrongful merely because the constable arrests a man for one felony, say murder, and he is subsequently charged with another felony, say manslaughter. ... It is clear that the constable has not been guilty of an illegal arrest, if he reasonably suspected that murder had been done. Again, I think it is clear that there is no need for the constable to explain the reason of arrest, if the arrested man is caught red-handed and the crime is patent to high Heaven. Nor, obviously, is explanation a necessary prelude to arrest where it is important to secure a possibly violent criminal. ... These and similar considerations lead me to the view that it is not an essential condition of lawful arrest that the constable should at the time of arrest formulate any charge at all, much less the charge which may ultimately be found in the indictment. ... It leaves untouched the principle, which lies at the heart of the matter, that the arrested man is entitled to be told what is the act for which he is arrested. The ‘charge’ ultimately made will depend upon the view taken by the law of his act. In ninety-nine cases out of hundred the same words may be used to define the charge or describe the act, nor is any technical precision necessary: for instance, if the act constituting the crime is the killing of another man, it will be immaterial that the arrest is for murder and at a later hour the charge of manslaughter is substituted. The arrested man is left in no doubt that the arrest is for that killing.”

As was made clear in Christie, the underlying principle was one that might today be described as procedural fairness. It was necessary to explain the reason both to justify the deprivation of liberty and to allow the person an opportunity to provide an immediate explanation to allay the suspicion underlying the arrest. The case law accepted that s 352 of the Crimes Act represented an expansion of common law powers of arrest without warrant, and not their displacement. In one such case, Clarke v Bailey,[114] the plaintiff sued for damages for an unlawful arrest and search. He was found to have been lawfully arrested, but was subsequently taken to a hotel and searched without lawful authority. The Full Court upheld the jury’s award of damages in respect of the post-arrest conduct. The Court stated:[115]

“Section 352 of the Crimes Act ... provides that any constable may, without warrant, apprehend any person whom he, with reasonable cause, suspects of an offence punishable on summary conviction, and take him and any property found upon him before a justice to be dealt with according to law.

At common law it was compulsory for a constable, in order to justify an arrest, to shew that he had taken the arrested person without delay, and by the most direct route, before a justice, unless some circumstances reasonably justify a departure from these requirements .... And, in my opinion, the effect of the section is merely to reinforce the common law principle, and is not intended to give the constable discretion in the matter except to the same extent as existed before.”

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

“The jury found that there was an arrest at the flat and an imprisonment at the police station. Accepting those findings, it is impossible, on the defendants’ own evidence, to escape the conclusion that any such restraint on the plaintiff’s liberty was, not for the only purpose for which in the circumstances it could have been justified – that of taking her before a magistrate to be charged and dealt with according to law – but for the purpose of asking her questions or making investigations in order to see whether it would be proper or prudent to charge her with the crime. If a person has been arrested, and is in [the] process of being brought before a magistrate questioning within limits is regarded as proper in New South Wales – indeed, within very narrow limits, it is regarded as proper in England; 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.”

The reasoning in Bales v Parmeter was expressly approved by the High Court in Williams v The Queen.[120]

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

(ii) the inconsistency challenge

Counsel for the State submitted that there is an internal inconsistency or incoherence in this approach. That is because the power of arrest under s 99 of the Law Enforcement Act is expressly conditioned upon a reasonable suspicion that the person arrested has committed an offence, or as it was earlier described in s 352 of the Crimes Act, the person should “with reasonable cause” suspect that the person has committed the offence. On the other hand, it is now generally accepted that, to lay a charge, an informant must have reasonable and probable cause to believe that a prosecution would be likely to succeed. That language is derived from an element of the tort of malicious prosecution, although absence of reasonable and probable cause alone will not establish liability for the tort.[121] However, if that be the test to be satisfied before a charge can be laid, it is a higher test than the requirement of reasonable suspicion of the commission of an offence, which is sufficient for a valid arrest. It would render the law incoherent, it was submitted, if two differing standards were to be applied to the same activity (arrest) in order for it to be lawful. It is, perhaps, curious that this potential anomaly has not been squarely addressed in the cases dealing with the common law power. The leading case in Australia, prior to the extensive statutory amendments in the last three decades expanding the powers of police to interrogate and investigate following an arrest, was Williams v The Queen. Of the three judgments in Williams, Gibbs CJ took a more liberal approach to the powers of police than did other members of the Court. Nevertheless, the Chief Justice concluded that there was “no power to detain a citizen merely for the purpose of questioning him”;[122] rather, “[t]he power given by the common law, and by [statute], to arrest a person reasonably suspected of having committed a crime is given for the purpose of enabling that person to be brought before a justice as soon as reasonably practicable so that he may be dealt with according to law.”[123] He accepted, however, that the police had broad powers of investigation within such a temporal framework, so long as the period of reasonable delay was not exceeded.[124] Mason and Brennan JJ rejected the proposition adopted by the Tasmanian Court of Criminal Appeal that it must be lawful “to continue detention for a reasonable period to enable investigating officers to establish with some precision the charge or charges upon which the accused is to be presented to the justice and what evidence there is to support any such charges.”[125] Their joint reasons continued:[126]

“Nor is there any reason to think that, in general, 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. 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 ..., although the grounds of suspicion need not consist of admissible evidence .... 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: see Mitchell v John Heine & Son Ltd;[127] Commonwealth Life Assurance Society Ltd v Brain;[128] Glinski v McIver.[129] There is no practical necessity to construe the words ‘as soon as is practicable’ ... 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.”

Mitchell, Brain and Glinski were all cases involving the tort of malicious prosecution; they were dealt with in some detail in A v State of New South Wales,[130] another case dealing with malicious prosecution and not unlawful arrest. In effect the reasoning of Mason and Brennan JJ acknowledged the theoretical discrepancy between the respective tests for arrest and laying a charge, but rejected it as a basis for extending the powers of police to arrest without being in a position to lay a charge. Mason and Brennan JJ in Williams also adopted the following statement from Lord Porter in John Lewis & Co Ltd v Tims:[131]

“Those who arrest must be persuaded of the guilt of the accused; they cannot bolster up their assurance or the strength of the case by seeking further evidence and detaining the man arrested meanwhile or taking him to some spot where they can or may find further evidence.”

John Lewis v Tims involved an arrest by shop detectives of two customers who were believed to have stolen goods, the arrest taking place after they had left the shop. The shop detectives returned with them to the shop in order to allow a senior person in management to decide what steps should be taken, the decision being to hand them over to the police to pursue charges. The House of Lords rejected the proposition that they were to be taken before a justice immediately or forthwith, accepted that the requirement was to take them before a justice as soon as reasonably practicable, and held that there was no breach of that standard involved in taking them back to a responsible officer, who might then deliver them to the authority of the police. Being an arrest by private citizens, the validity of the arrest presumably turned on whether a theft had been committed. The second joint judgment in Williams, that of Wilson and Dawson JJ, also addressed the potential inconsistency between allowing an arrest on the basis of reasonable suspicion and, in effect, requiring that the arresting officer be in a position to proceed immediately to lay a charge. The joint reasons stated:[132]

“This being the purpose of arrest, any delay in bringing a person under arrest before a justice, even if it is to effectuate some other purpose such as the questioning of that person in order to dispel or confirm the suspicion which was the basis of the arrest, is to defeat, however temporarily, the true purpose. Where no delay is involved, there can, of course, be no objection to the occasion of the arrest and subsequent detention being used for the purpose of further investigation of the offence in question or, for that matter, any other offences .... But to conduct an investigation which does not cut across the purpose for which a person is held under arrest is one thing; to disregard that purpose in order to carry out an investigation is another thing, however much the further investigation may be otherwise necessary or desirable.”

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

“There is no real protection for the individual in any formula which says that the police may not detain an arrested person longer than is necessary to enable them to prefer a charge. Obviously there must be reasonable time to formulate and lay appropriate charges for the purpose of bringing a person before a justice. The common law allows time for this and it is covered by the words ‘as soon as is practicable’. But it is something quite different to say that the police should be able to detain an arrested person to enable them, by further investigation, to gather the evidence necessary to support a charge.”

(iii) rationale as to purpose of arrest

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

“A person who is arrested may be detained only for the purpose of bringing him before a justice (or nowadays before some other person with power to deal with him) to be dealt with according to law. For arrest is the beginning of imprisonment and, whilst it is recognized that imprisonment before trial may be necessary in the administration of criminal justice, it must be justified in accordance with the law. There must be a charge and if the person charged can establish his entitlement to bail and can furnish it, the law requires that he be released subject to any conditions which might be imposed upon him. ... The point at which an arrested person is brought before a justice upon a charge is the point at which the machinery of the law leading to trial is put into operation. It is the point from which the judicial process commences and purely ministerial functions cease.”

It does not follow that the person carrying out the arrest must personally intend to lay a charge; an expectation that others will do so may be sufficient. In Williams itself, the suspect was arrested in Scottsdale, a town in northern Tasmania and detained until senior officers came from Launceston. He was then taken by police vehicle to Launceston. Having been arrested at 6am at Scottsdale, he arrived at Launceston at about 11am and could reasonably have been taken before a magistrate at about 2.15pm. The further conduct of interviews thereafter which led to his appearance being delayed until the following day rendered the detention unlawful for the additional period. In John Lewis v Tims, it does not appear that the arresting store security officers were those responsible for laying the charges. Similarly, in relation to police, in Regina v Walsh[135] the offender was arrested at about 3pm in relation to a shooting which had occurred the previous day. The arrest was carried out by police officers under the instruction of a senior officer, Detective Sergeant Rees, who informed them of his suspicions but not the detail of the specific offences. Walsh was taken to a police station and the senior officer notified. Had Detective Sergeant Rees driven directly to the police station, he would have arrived at about 5.30pm; however, he travelled first to another area to endeavour to arrest a suspected co-offender, arriving at the police station where Walsh was being held at about 8.15pm. Gleeson CJ stated:

“It was submitted on behalf of the appellant that it was unlawful for the police officers to arrest him if they did not have sufficient knowledge or information about the crimes of which he was suspected to charge him then and there. I cannot agree. The appellant was arrested without warrant, but he was reasonably suspected of having committed offences. The officer in charge of the investigation ... obtained the assistance of other police officers to effect the actual arrest of the appellant.

...

There was no attempt at the hearing to investigate the question whether, apart from the absence of Detective Sergeant Rees, and apart also from the desire of the arresting officers to leave it to him to lay the charges, it would have been practicable to take the appellant before a court or justice sooner than he was in fact so taken, that is to say, at 10am on the following day.”[136]

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

“We think that the appellants had reasonable grounds for suspecting that the plaintiff had committed the offence for which the appellants purported to arrest him, and, if he had been taken before the justice without unnecessary delay, the plaintiff would have had no ground of complaint. But if the purpose of the arrest was to afford an opportunity for questioning, then the arrest was unlawful, and, be that how it may, the detention whilst the plaintiff was being questioned was unlawful.”

These cases, and the reasoning in Williams, explain why a reasonable suspicion must be accompanied by an intention to charge the person being arrested, but need not be accompanied by a clearly formulated charge, and may be subject to contingencies. The officer must give a reason for the arrest, but this should refer to the suspected conduct rather than an offence. The specific state of mind of the arresting officer will depend on the facts of the case; in one case the existence of an offence may be in doubt, in another the identity of the offender. The purpose must be to lay a charge within a reasonable time frame to allow the suspect to seek his or her liberty, if he or she wishes. To similar effect, this Court in Zaravinos v State of New South Wales[139] held that s 352 of the Crimes Act did not displace general principles with respect to powers of arrest; rather, in providing that a constable is to take the arrested person and any property before an authorised justice, the section used language reflecting the common law and “must be understood as indicating the only proper purpose for which an arrest may be carried out.” At least in a formal sense, the incoherence of a dual test of intention for a lawful arrest may be resolved by treating the obligation to take the person as soon as practicable before a justice as a separate obligation imposed by law once an arrest has taken place, rather than a requirement that the arresting officer have a particular subjective intention. On that understanding, an arrest based on reasonable suspicion would remain valid, and the detention lawful, until the reasonable period had elapsed. From that point, if the suspect had not been taken before a justice (or released), the detention would become unlawful. It would also follow that, if the person were released before the reasonable period expired, there would be no unlawful detention. However, that conclusion is not consistent with the passages from Bales v Parmeter and Drymalik v Feldman set out above; the reason is that the purpose of commencing the criminal process attaches at the moment of arrest.

Effect of statutory amendments

(i) the power of arrest

The first step in considering the effect of relevant statutory provisions is to note that the common law referred to above developed against the background of statute, including provisions equivalent to s 352 of the Crimes Act, to which reference has already been made. The replacement of s 352 of the Crimes Act with the current s 99 of the Law Enforcement Act came about through a series of stages, which included the addition of various provisions to the Crimes Act before the relevant parts (Pts 10 and 10A) were removed. Thus, ss 114 and 115 of the Law Enforcement Act were formerly ss 356C and 356D of the Crimes Act. Although the stages may be relevant in considering the authorities, it is sufficient to consider the provisions of the Law Enforcement Act in their present form, as applicable to the present case. Section 99 relevantly provides:

99 Power of police officers to arrest without warrant

(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:

...

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

...

(ix) because of the nature and seriousness of the offence.[140]

...

(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.

There are several aspects of this provision to be noted. First, s 99(1)(a) provides that a police officer may arrest a person if he or she “suspects on reasonable grounds that the person ... has committed an offence”. That language does not suggest any variation in principle from the language of s 352, as enacted in 1900 (or indeed 1883). Section 99(1)(b), however, imposes a constraint on the use of the power of arrest without warrant. It requires that the officer be satisfied that the arrest is “reasonably necessary” for one or more of a number of reasons. Those reasons provide, in effect, that the police functions of law enforcement would not be sufficiently carried out by steps short of arrest, which, with respect to the commencement of proceedings, would commonly mean the issue of a court attendance notice. Thus, a failure to consider such an alternative course resulted in a finding that an arrest was unlawful in State of New South Wales v Smith.[141] There is, however, no reason to derive from the existence of the additional constraint an implied variation of the long standing requirement that an arrest must be a preliminary step in invoking the criminal process. Indeed, this purpose is expressly referred to in s 99(3), which imposes a requirement that the officer who arrests a person must, as soon as reasonably practicable, take the person before an authorised officer to be dealt with according to law. This statement of the general law obligation is not in the form of a condition precedent involving a state of mind of an arresting officer. Rather, it constitutes a statement of obligation which is engaged by the carrying out of an arrest. On the other hand, that is the form which the obligation has taken since the enactment of the Crimes Act in 1900 (and in 1883); it has never been expressed as the required purpose of the arrest, absent which an arrest will be invalid. Nevertheless, throughout that period, the existence of such a purpose has been held to be a condition of validity. The terms of s 99(3) do not suggest a change in the law in this regard. Further, if the effect of the new legislative form were to remove the conventional purpose underlying a valid arrest, it has been done without any indication as to any alternative purpose or rationale. If the State were correct in submitting that the general law obligation has been removed, it must be sufficient that the officer have, as a sole purpose of the arrest, the questioning of the suspect or the taking of some other step in an investigation into the suspected offending. Emmett AJA has referred to the Parliamentary Review of the Law Enforcement Act undertaken in 2013. Part 1 of the Report of the Review proposed amendments to s 99, including the insertion in what is now s 99(1)(b) of additional matters justifying an arrest. Under a subheading, “to obtain property in the possession of the person that is connected with the offence” (a reason now to be found in par (b)(v)), the following comment appears:

“The Parliamentary Counsel has advised that if the provision were drafted to allow police to lawfully arrest a suspected offender in order to ‘obtain’ evidence, this would effectively give police the power to arrest without warrant for the purpose of investigating an offence. The intent of the legislation is not to allow police the power to arrest in order to investigate. It is noted that the proposed section 99(4) clarifies that once a person has been lawfully arrested the person may be detained under Part 9 of LEPRA for investigative purpose.” [Emphasis added.]

(ii) express powers to investigate – Part 9

The extrinsic materials therefore provide express support for the view that the legislation was not intended to vary the pre-existing requirement as to the purpose for which an arrest might be carried out. The extrinsic materials do, however, draw attention to provisions in Pt 9 of the Law Enforcement Act which permit further investigation subsequent to an arrest. Part 9 is headed “Investigations and questioning”. The explanatory note to the Bill stated that the provisions in Pt 9 “re-enact existing NSW legislation”. That is so: equivalent provisions were found in Pt 10A of the Crimes Act, introduced in 1997. Section 114 now provides that a police officer may detain a person “who is under arrest” for the investigation period provided for by s 115. The officer may detain the person “for the purpose of investigating whether the person committed the offence for which the person is arrested.” Where the officer forms a reasonable suspicion of the person’s involvement in another offence, that offence may also be investigated. Section 115 identifies a period which commences “when the person is arrested” and extends for a reasonable period not exceeding six hours (which may be extended by a detention warrant). In their terms, these provisions permit investigation following arrest, whilst the suspect is in detention. However, they assume that an arrest has taken place. Further, s 111 states that Pt 9 applies “to a person ... who is under arrest by a police officer for an offence”. There must be a valid arrest before the powers in Pt 9 are engaged. Not only do the powers not expressly affect the power of arrest, s 113 provides (in part):

113 Effect of Part on other powers and duties (cf Crimes Act 1900, s 356B)

(1) Existing powers relating to arrest and other matters

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 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.

It is tolerably clear from these provisions that there is no intention to affect the conditions of a valid arrest or otherwise affect the power to arrest. Part 9 confers powers which are only engaged upon the carrying out of a valid arrest. In short, neither the Act nor the extrinsic materials provide any basis for concluding that an arrest is now something other than a preliminary step to the commencement of the criminal process and a step to be taken only for the purpose of commencing the criminal process.

(iii) a codification of preconditions to power of arrest

The State nevertheless contends that s 99(1) provides a complete statement of the preconditions to a valid arrest. As the second limb of subs (1) (namely par (b)) imposes an additional constraint, the primary condition for the carrying out of an arrest must be the existence of a reasonable suspicion that the person has committed an offence. However, that proposition, if correct, would remove the fundamental rationale for the power to arrest without warrant, namely that imprisonment before trial may be necessary in the administration of criminal justice, but is only justified for the purpose of laying a charge and thus commencing the criminal process. To accept that submission would be inconsistent with principle and would create a basis for depriving a person of his or her liberty which has not hitherto existed. There is one further matter relied on by the State. Although s 99(3) requires that the person be taken as soon as practicable before an authorised officer to be dealt with according to law, that obligation is now qualified by the conferral of a power on a police officer to “discontinue an arrest at any time”.[142] That step may be taken either because the person is no longer a suspect or because it is no longer necessary to bring the person before an authorised officer in order to deal with the relevant offence. It may be conceded that this power qualifies the obligation to commence the criminal process by taking the person before a magistrate. However, it is unclear why the conferral of an additional power to release following an arrest should be read as allowing an arrest for a purpose other than the conventional purpose. Subject to consideration of authorities dealing with the amended statutory provisions, the better view is that there is nothing in Pt 8, read with Pt 9, of the Law Enforcement Act which should be taken to broaden the power of arrest in a manner inconsistent with its long acknowledged purpose as part of the administration of criminal justice.

(iv) case law

It will be necessary to refer to decisions dealing with the New South Wales legislation below; before taking that step it is appropriate to address the approach adopted by the High Court in North Australian Aboriginal Justice Agency with respect to legislation in the Northern Territory which, while not following the form of the Law Enforcement Act, adopted a similar structure. Section 123 of the Police Administration Act (NT) conferred power on a police officer to, “without warrant, arrest and take into custody any person where he believes on reasonable grounds that the person has committed, or is committing or is about to commit an offence.” (It is doubtful that the additional words “and take into custody” add anything to the concept of “arrest”.) Section 137(1) provided that “a person taken into lawful custody ... shall ... be brought before a justice or a court of competent jurisdiction as soon as is practicable after being taken into custody, unless he or she is sooner granted bail under the Bail Act or is released from custody.” (This provision reflects s 99(3) and s 105 of the Law Enforcement Act.) That obligation was subject to a power, with respect to certain defined offences, to hold the person “for a reasonable period” to enable the person to be questioned or investigations to be carried out.[143] With respect to relatively minor “infringement notice offences” the person could be held in custody for a period up to four hours or, if intoxicated, for a longer period until the police officer believed the person was no longer intoxicated.[144] The case involved a challenge to the constitutional validity of those provisions. The challenge was rejected. Relevantly for present purposes, the joint reasons of French CJ, Kiefel and Bell JJ stated:

“[24] Absent s 137, the common law would have imposed the like requirement that a person arrested under s 123 be taken before a justice of the peace as soon as practicable after arrest. At common law delay, even if for some purpose such as questioning or to dispel or confirm the suspicion which was the basis of the arrest, would defeat the true purpose of arrest.[145] Custody after arrest is an executive measure not an exercise of judicial power. As Wilson and Dawson JJ also observed in Williams:[146]

‘The point at which an arrested person is brought before a justice upon a charge is the point at which the machinery of the law leading to trial is put into operation. It is the point from which the judicial process commences and purely ministerial functions cease.’

The common law was modified by s 137(2) and (3) to enable post-arrest custody to be extended to ‘a reasonable period’ for the purpose of questioning the person arrested or for further investigations in relation to offences attracting custodial penalties. Similar modifications have been made in all Australian jurisdictions.[147] That modification reflected recommendations made by the Australian Law Reform Commission ... in its interim report entitled Criminal Investigation published in 1975.”

Nettle and Gordon JJ stated:

“[223] Here, s 137(1) reflects the basic common law tenet that a person must be taken before a court as soon as reasonably practicable following arrest. A statute that departs from that fundamental position would need to be expressed in unmistakably clear terms.”

Nettle and Gordon JJ concluded that “the outer limit of four hours set by s 133AB(2)(a) is without prejudice to the requirement, which applies under s 137(1) to a person arrested under s 123 for an infringement notice offence, that the person be taken before a justice or court as soon as practicable after arrest unless sooner released ....”[148]

It is convenient to turn to authorities in this Court. Clyne v State of New South Wales[149] dealt with provisions in Pt 10A of the Crimes Act as they operated in March 2003. (Relevant provisions of the Law Enforcement Act did not come into effect until 1 December 2005.[150]) At that stage, (a) s 352(2) was in its historical form, including the obligation to take the arrested person before an authorised justice to be dealt with according to law; (b) s 356B reflected the current s 113; (c) s 356C reflected the current s 114, and (d) s 356D reflected the current s 115. The critical reasoning in Clyne, at [63], commenced with the proposition that “s 352(2) ... neither explicitly nor implicitly authorised arrests only if they were effected for the purpose of taking the person arrested before an authorised Justice.” If that were literally true, it is a proposition which ignores the continued operation of the common law obligation (which was at least reflected in the language of s 352(2)) and is inconsistent with the approach adopted by the High Court in Williams, as well as earlier decisions of this Court in Clarke v Bailey and Bales v Parmeter. The reasoning in Clyne continued in relation to s 352(2):

“It simply required the constable to in fact take the arrested person before a court. However if some other statutory provision came into operation before the arrested person was taken before a court, the obligation to take the arrested person before a court might be displaced. Consistently with ss 356C and D, the arresting officer's intent at the time of arrest might lawfully have been only to question the person and deal with him or her as required by s 356C(4), that is, release the person or bring him or her before an authorised Justice.”

Section 356C (now s 114) dealt with detention after arrest for the purpose of investigation and is conditioned upon the person already being under arrest. For the reasons set out above, in my view the approach adopted in Clyne in relation to these sections is inconsistent with basic principle and therefore untenable. A different approach was adopted by a differently constituted court in Dowse v New South Wales.[151] It was no doubt unfortunate that Dowse was argued before Clyne, but judgment was delivered after Clyne. Clyne was not referred to in Dowse, which considered the relevant provisions of the Law Enforcement Act as in force in March 2007. I stated (with the agreement of McColl JA and Hoeben JA):

“[26] While it is true, as Lord Hope explained in O'Hara, that there are two elements to be satisfied for a warrantless arrest to be valid, namely an honestly held suspicion in the mind of the arresting officer and information in the mind of the arresting officer which when objectively assessed provides reasonable grounds for the suspicion, these are not abstract and independent elements. They justify a deprivation of liberty which in turn is part of an ongoing process by which the person arrested must be taken before an authorised officer to be dealt with according to law: Law Enforcement Act, s 99(4). In other words, the arrest is a first step in the process by which the person is to be made answerable for the offence, the commission of which the officer suspects. The same underlying purpose is to be found in s 99(3) which limits the circumstances in which an officer may arrest a person ‘for the purpose of taking proceedings for an offence against the person’; it thus assumes that such a purpose must underlie a valid arrest.

[27] In other words, an arrest will not be valid merely because the officer believes that an offence has been committed, in circumstances where the officer has no intention of charging the person or having the person charged with that offence. If that were not so, the legal requirement that the person arrested be informed of the true grounds of the arrest would be rendered nugatory: see State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 at [9]- [11] (Ipp JA), adopting the reasoning of Lord Simonds in Christie v Leachinsky [1947] UKHL 2; [1947] AC 573 at 591-592. ...”

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

(vi) other forms of arrest

The foregoing discussion has not addressed the common law power of an officer or a private person to carry out an arrest to prevent, or prevent the continuation of, a breach of the peace. Neither party suggested that any assistance was to be obtained from consideration of that power. Nor has consideration been given to the handful of particular statutes which permit an arrest without warrant, but for a purpose other than commencing the criminal process. Thus, s 25E of the Terrorism (Police Powers) Act 2002 (NSW) permits the arrest of a person suspected of a terrorist offence “for the purpose of investigative detention” under Part 2AA of that Act. Schedule 3 to the Road Transport Act 2013 (NSW) provides for a police officer to arrest the driver of a vehicle in relation to testing for alcohol and drug use for the purpose of the person providing a blood sample. The prescription of a specific 