New High Court guidance on unlawful arrest: State of NSW v Robinson [2019] HCA 46

The power of arrest involves the deprivation of human liberty, which is a common law right. It can be intrinsically traumatising, and/or result in injury, to the person being arrested. It is imperative, then, that arrests are only carried out when the legislation permits it.

The High Court has recently assessed the power of police to arrest without warrant in the case of State of NSW v Robinson [2019] HCA 46.

• State of NSW v Robinson: the facts

In October 2013, an Apprehended Personal Violence Order ("the APVO") was made against Mr Robinson in the Local Court after a complaint by Ms Singh. The standard orders were made against Mr Robinson (that he not assault, harass etc or otherwise intimidate Ms Singh), as well as additional orders; including that he not contact Ms Singh by any means whatsoever except for through his lawyer, and that he not approach or contact or enter the premises at which Ms Singh lived or worked.

In December 2013, Ms Singh alleged that Mr Robinson has contacted one of her employees and made certain false statements about Ms Singh.

Constable Smith of Sydney City Police Station formed the opinion that Mr Robinson had breached the APVO. Importantly, however, 'at the time Constable Smith arrested Mr Robinson, he had not decided to charge him with any offence. Constable Smith conceded that at the time of the arrest he "did not believe there was enough [evidence] to charge [Mr Robinson]"'.

Constable Smith sought to locate Mr Robinson for the purposes of arrest. When Mr Robinson heard of this, he contacted Sydney City Police Station and eventually voluntarily turned himself over to the police.

When Mr Robinson appeared at the Police Station, Constable Smith informed him he was under arrest for breaching the APVO.

Mr Robinson subsequently participated in an interview. After the interview, Mr Robinson was released without charge.

Mr Robinson then brought proceedings in the District Court against the State of NSW, claiming unlawful arrest.

At trial, Constable Smith readily and honestly admitted that, in addition to not believing at that time of the arrest there was enough evidence to charge Mr Robinson, Constable Smith was only going to make a decision to charge Mr Robinson depending on what Mr Robinson said in the interview.

• Legislative framework

The power to arrest is found in Part 8 of the Law Enforcement (Powers and Responsibilities) Act 2002 ["LEPRA"].

Section 99 of LEPRA governs the power of police officers to arrest without warrant.

S99(1) states "A police officer may, without a warrant, arrest a person if—,/p>

(a) the police officer suspects on reasonable grounds that the person 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."

*emphasis added

,P.… (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…

• State of NSW v Robinson: the decision

The Trial Judge in the District Court rejected Mr Robinson's claim for unlawful arrest; holding that s99(1)(a) only requires a "suspicion on reasonable grounds".

The NSWCA overturned this decision with a 2:1 majority finding that the police officer must have the necessary intention to arrest at the time of charging the person in question.

Interestingly, the High Court narrowly decided in 4:3 majority (Bell, Gageler, Gordon and Edelman JJ; Kiefel CJ, Keane and Nettle JJ dissenting) that the NSWCA was correct and that the arrest of Mr Robinson was unlawful.

The joint judgement of the minority focused on surrounding sections of LEPRA, including s107 on the 'alternatives to arrest' and s 114 which deals with 'detention after arrest for purposes of investigation'. They further looked at the legislative history and concluded that Constable Smith did not need to have 'formed an unqualified intention to charge Mr Robinson at the time of arrest'.

The majority (also in a joint judgment) adopted a more literal reading of s99 of LEPRA. The Majority contrasted the NSW position with that of s365 of the Police Powers and Responsibilities Act 2000 (Qld) which allows for arrest for the purposes of questioning a person where the officer has formed a reasonable opinion the offence has occurred.

According to the majority, in NSW:

"An arrest merely for the purpose of asking questions or making investigations in order to see whether it would be proper or prudent to charge the arrested person with the crime is an arrest for an improper purpose and is unlawful…,/p>

Constable Smith did not have the power to arrest Mr Robinson, without warrant, under s 99 of LEPRA when, at the time of the arrest, Constable Smith had not formed the intention to charge Mr Robinson. The arrest was unlawful."

This case has clarified the law, and confirmed which of the competing readings of s99 of LEPRA is correct.

For expert legal advice, please contact Maclarens Lawyers on 96823777.